Seville Flexpack Corp.

National Labor Relations Board - Board Decisions

Apr 20, 1988

288 N.L.R.B. 518 (N.L.R.B. 1988)

518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Seville Flexpack Corporation and Milwaukee Local
7-C Subordinate to the Graphic Communica-
tions International Union, AFL-CIO. Case 30-
CA-8850
April 20, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
BABSON AND CRACRAFT
On January 20, 1987, Administrative Law Judge
Robert A. Giannasi issued the attached decision.
The Respondent filed exceptions and the General
Counsel filed an answering brief and a limited
cross-exception. 1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, fmdings, 2 and
conclusions as modified.3
The General Counsel requests that we disregard the Respondent's ex-
ceptions because, inter alia, they fail to set forth specifically the questithiS
of procedure, fact, law, or policy to which exceptions are taken, and fail
to set forth with specificity the excepted-to portions of the judge's deci-
sion. Sec. 102.46(b) of the National Labor Relations Board Rules and
Regulations states that any exception that does not comply with the re-
quirements of that section "may be disregarded." We find that the Re-
spondent's exceptions are procedurally sufficient and adequately desig-
nate the portions of the decision the Respondent claims are erroneous.
See Churchill's Restaurant, 276 NLRB 775 at fn. 1 (1985); Rice Growers
Assn. of California, 224 NLRB 663 fn. 1(1976)
-The Respondent filed a document labeled "answering brief," which, in
fact, is not a response to the General Counsel's cross-exception, but, in-
stead, is primarily a reply to the General Counsel's answering brief to the
Respondent's exceptions. This is an abuse of Board processes, which limit
parties to one brief in support of, and one brief in opposition to, each set
of exceptions and cross-exceptions. We therefore grant the General
Counsel's motion to strike that portion of the Respondent's brief, at 4-20,
which does not directly relate to the cross-exception. Save-it Discount
Foods, 263 NLRB 689 fn. 1 (1982).
The General Counsel seeks a visitatorial clause authorizing the Board,
for compliance purposes, to obtain discovery from the Respondent under
the Federal Rules of Civil Procedure, subject to the supervision of the
court of appeals enforcing this Order. Under the circumstances of this
case, we find it unnecessary to include such a clause.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convmces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings
We correct the judge's inadvertent error in referring to employee
Donald Wild as Jack Wild in the decision, recommended Order, and
nottce.
We find it unnecessary to rely on the implication in sec. II,E,4, par. 3
of the judge's decision that whether or not an election is pending, the
grant of a benefit explicitly for rejecting a umon is unlawful. We note
that the benefit in this case was granted during the period when objec-
tions to the election could still be filed.
a We will issue an Order in lieu of the judge's recommended Order to
provide that the Respondent cease and desist from utilizing its unlawful
disciplinary system and from designating its paid holiday as "Freedom
Day." The judge ordered that the Respondent rename Freedom Day to
Employee Rights Day and change the date of the holiday from the
Friday falling closest to the anniversary date of the election to the awn-
The judge found, and we agree, that on August
30, 1985, the Respondent unlawfully changed its
disciplinary policy regarding quality-related prob-
lems.4 The judge found that the Respondent uti-
lized this new system to constructively discharge
four employee members of the in-plant union orga-
nizing committee in violation of Section 8(a)(3) and
(1). We agree with that finding regarding Mark
Iwanski and Randy Mjelde, but are unable to reach
the same conclusion regarding Dave Ehlers and
John Langowski.
The Board has held that constructive discharge
occurs when an employee quits because an employ-
er has deliberately made working conditions un-
bearable. 3 Two elements must be proven to estab-
lish a constructive discharge:
First, the burdens imposed upon the employee
must cause, and be intended to cause, a change
in his working conditions so difficult or un-
pleasant as to force him to resign. Second, it
must be shown that those burdens were im-
posed because of the employee's union activi-
ties. 6
Although described by the Respondent as a very
good pressman, Randy Mjelde received six written
warnings and a 1-day suspension pursuant to the
Respondent's unlawful disciplinary system. 7 Addi-
tionally, the Respondent scheduled Mjelde to work
overtime on the Saturday prior to his vacation, de-
spite credited testimony that the Respondent had
verr,ary date of either the judge's decision or the Board's decision. While
we agree that by granting this holiday the Respondent violated Sec.
8(aX1) of the Act, we believe that the judge went beyond the remedial
powers of the Act in requiring that the Respondent change the date of
the illegally granted holiday. However, because the designation of the
day as "Freedom Day" is so inextricably intertwined with the very
reason the granting of this benefit was unlawful, in an effort to eradicate
the coercive aspects of the holiday, which will remain, we do find it ap-
propriate to order the Respondent to cease using the name "Freedom
Day" in its description of this holiday.
In accordance with our decision in New Horizons for the Retarded, 283
NLRB 1173 (1987), interest on and after January 1, 1987, shall be com-
puted at the "short-term Federal rate" for the underpayment of taxes as
set out in the 1986 amendment to 26 U.S.C. § 6621 Interest on amounts
accrued prior to January 1, 1987 (the effective date of the 1986 amend-
ment to 26 U.S.C. § 6621), shall be computed in accordance with Florida
Steel Corp. 231 NLRB 651 (1977).
In adopting the judge's finding in sec. II,F, par. 6 of his decision that
the change in the Respondent's disciplinary system was discriminatorily
motivated, we disavow his conclusion that Jim Yaluch's testimony was
an admission that the system was implemented because of the union cam-
paign and because written warnings to union adherents could be suspect
unless there was an appearance that nonunion employees were treated the
same
, 5 Keller Mfg Co., 237 NLRB 712 (1978).
6 Crystal Princeton Refining Co, 222 NLRB 1068, 1069 (1976).
7 The Respondent contends the warnings were for quality-related
problems. Although the Respondent contended that waste of 5 or 6 per-
cent on a job was considered high, nothing m the record indicates that
every employee who committed waste over that amount was Issued a
written warning. Nor is there evidence in the record that the Respondent
ever sought Mjelde's explanation for the waste on any job for which he
was issued a warning.
288 NLRB No. 61
SEVILLE FLEXPACK CORP. 519
previously granted Mjelde permission to have the
day off. The judge found, and we agree, that this
assignment violated Section 8(a)(3) of the Act.
Mjelde testified that after he began receiving the
series of written warnings he "could see that it was
only a matter of time before I was going to be axed
out the door." He applied for another job and was
offered employment, but did not accept the offer
until he received his last warning and suspension.
At that point Mjelde told Yakich he would quit
and "make it easy for him." Yaldch replied, "I am
sorry it had to happen that way."
Mark Iwanski, also described by the Respondent
as one of its best employees, received a written
warning shortly before the election. Like Mjelde's
warnings, Iwanski's warning appeared arbitrarily
issued. The Respondent's owner, Jim Yakich, re-
fused to discuss the warning until after the election.
At the postelection meeting with Iwanski, howev-
er, Yakich dismissed the warning itself, but asked
why Iwanski became involved with the Union and
questioned his role as a union election observer.
Yakich also stated that the plate mounting depart-
ment was infested with union supporters. Yaldch
then told Iwansld that they "had got the number
one man" and "it looked like" Iwanski was the
"number two man." Yaldch further stated that
Iwansld had put himself in a "shit hole" and it
would be a long time before he worked his "way
out of it." The record also contains evidence that
the Respondent attempted to transfer Iwanski to a
less desirable shift with additional people to train.
Moreover, when Iwanski advised the Respondent
that he was resigning to avoid hassles, the Re-
spondent agreed, stating that it could not guarantee
Iwanski any benefits or raises.
By contrast, in our judgment, the record does
not demonstrate that the working conditions for
either Ehlers or LangOwski were so difficult or un-
pleasant that they were forced to quit. Unlike the
substantial evidence of adverse working conditions
imposed on Mjelde and Iwanski, the evidence re-
garding difficult or unpleasant working conditions
for committee members Ehlers and Langowski is
scarce. Ehlers received one written warning re-
garding quality problems and Langowslci received
none. The judge credited Ehlers' testimony that
when he announced his resignation to the Respond-
ent he was told that his future was over with the
Respondent anyway. However, no other statements
prior to Ehlers' resignation were attributed to the
Respondent regarding the working conditions for
Ehlers. The Respondent admitted that when Ehlers
announced his resignation he was told to see if he
'This apparently was a reference to the unlawful discharge of Donald
Wild, a leading union supporter
could find a job for Langowski. Although Lan-
gowsld learned of Respondent's statement regard-
ing Ehlers finding a job for him, no evidence exists
that the Respondent engaged in any adverse action
against Langowski. Accordingly, we conclude that
the evidence is insufficient to establish that the Re-
spondent constructively discharged Dave Ehlers or
John Langowski, and we shall dismiss these allega-
tions of the complaint.
ORDER
The National Labor Relations Board orders that
the Respondent, Seville Flexpack Corporation, Oak
Creek, Wisconsin, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about
their union activities, including requests that they
wear "vote no" union buttons provided by the Re-
spondent.
(b) Creating the impression that union activities
of employees are under surveillance.
(c) Stating that it would be futile for its employ-
ees to select a union to represent them.
, (d) Threatening reprisals, including but not limit-
ed to plant closures or relocations, and discharge
or other discriminatory action, against employees
because they engage in union activities, or to dis-
courage union activities.
(e) Granting benefits to employees for rejecting a
union and designating its paid holiday as "Freedom
Day."
(f) Attempting to convince employees not to par-
ticipate in a Board election.
(g) Utilizing the new disciplinary system imple-
mented on August 30, 1985, and warning, disciplin-
ing, discharging, or otherwise discriminating
against employees regarding. their hire, tenure of
employment, or any term or condition thereof, be-
cause of union considerations or to discourage
union activities.
(h) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer to employees Donald Wild, Mark
Iwanski, and Randy Mjelde immediate and full re-
instatement to their former positions or, if those
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or
other rights and privileges, and make them whole
for any loss of earnings and other benefits that they
may have suffered as a result of Respondent's un-
lawful conduct in the manner set forth in the
remedy section of the decision.
520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Remove from its records and files any nota-
tions dealing with the unlawful warnings issued to
and terminations of employees Donald Wild, Mark
Iwanski, and Randy Mjelde and notify them in
writing that this has been done and that evidence
of such actions will not be used as a basis for
future personnel actions against them.
(c) Remove from its files any reference to qual-
ity-related written warnings issued to employees
after August 30, 1985, and notify these affected em-
ployees in writing that this has been done and that
evidence of these warnings will not be used as a
basis for future personnel actions against them.
(d) Post at its premises in Oak Creek, Wisconsin,
copies of the attached notice marked "Appendix."9
Copies of the notice, on forms provided by the Re-
gional Director for Region 30, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Preserve and, on 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) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that those allegations of
the complaint not found here to have been sus-
tained are dismissed.
9 If 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 Nation-
al Labor Relations Board" shall lead "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 Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT coercively interrogate you about
your union activities, including requests that you
wear "vote no" union buttons.
WE WILL NOT create the impression that your
union activities are under surveillance.
WE WILL NOT state that it would be futile for
you to select a union to represent you.
WE WILL NOT threaten reprisals, including but
not limited to plant closures or relocations, and dis-
charge or other discriminatory action, against you
because you engage in union activities, or to dis-
courage union activities.
WE WILL NOT grant you benefits for rejecting a
union, and we will not designate our paid holiday
as "Freedom Day."
WE WILL NOT attempt to convince you not to
participate in a Board election.
WE WILL NOT utilize our new disciplinary
system implemented August 30, 1985, and warn,
discipline, discharge, or otherwise discriminate
against you with regard to your hire, tenure of em-
ployment, or any term or condition thereof, be-
cause of union considerations or to discourage
union activities.
- WE WILL NOT in any like or related maimer re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer to Donald Wild, Mark Iwanski,
and Randy Mjelde immediate and full reinstate-
ment to their former positions or, if those positions
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges, and WE WILL make them
whole for any loss of earnings and other benefits
that they may have suffered as result or our unlaw-
ful conduct.
WE WILL remove from our records and files any
notations dealing with the unlawful warnings
issued to and terminations of employees Donald
Wild, Mark Iwanslci, and Randy Mjelde, and notify
them in writing that this has been done and that
evidence of such actions will not be used as a basis
for future personnel actions against them.
WE WILL remove from our files any reference to
quality-related written warnings issued to employ-
ees after August 30, 1985, and notify these affected
employees in writing that this has been done and
that evidence of these warnings will not be used as
a basis for future personnel actions against them.
SEVILLE FLEXPACK CORPORATION
Benjamin Mandelman, Esq., for the General Counsel.
Robert W Mulcahy, Esq. and Daniel G. Vliet, Esq. (Mul-
cahy & Wherry, S.C.), of Milwaukee, Wisconsin, for
the Respondent.
SEVILLE FLEXPACK CORP. 521
Robert C. Pruess, Secretary-Treasurer, of West Allis,
Wisconsin, and Robert Robinson, Organizer, of Mena-
sha, Wisconsin, for the Charging Party Union.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIAcNNASE Administrative Law Judge.
This case was tried in Milwaukee, Wisconsin, for 13 days
on various dates in April, May, and June 1986. The com-
plaint, as amended, including at the hearing, alleges that
Respondent violated Section 8(a)(1) of the Act by
making threats and other coercive statements to employ-
ees and by engaging in coercive interrogation and other
conduct prior to, after, and in connection with a Board
election that took place on 2 August 1985. 1 The com-
plaint, as amended, also alleges that Respondent violated
Section 8(a)(3) and (1) of the Act by implementing a new
discriminatorily motivated disciplinary system and by
discharging employee Jack Wild and "caus[ing] the ter-
mination of' employees Randy Mjelde, Mark Iwanski,
Dave Ehlers, and John Langowski because they were
union adherents, actually members of the union organiz-
ing committee, and in order to discourage further union
activity. The Respondent denied the essential allegations
of the complaint as amended. The General Counsel and
the Respondent have filed lengthy briefs and reply briefs,
which I have read and considered.
Based on the entire record, including the testimony of
the witnesses and my observation of their demeanor, I
make the following
FINDINGS OF FACT
I. JURISDICTIONAL MATTERS
Respondent, a Wisconsin corporation that maintains a
facility in Oak Creek, Wisconsin, admits that it is an em-
ployer engaged in interstate commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
The Charging Party Union (the Union) is a labor orga-
nization within the meaning of Section 2(5) of the Act.2
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent's facility is located at 9905 South Ridge-
view Avenue, Oak Creek, Wisconsin, a suburb of Mil-
waukee. Walter Yakich is Respondent's president and
sole stockholder. His son, James, is vice president of
manufacturing and another son, John, is the maintenance
supervisor. The building at 9905 South Ridgeview
Avenue is owned by a Yakich family trust. Respondent
is party to a 20-year lease on the building that com-
menced in 1978. Respondent owns some of the equip-
ment—mostly large printing presses—in the facility; an-
1 The Charging Party lost that election by a vote of 35 to 21 with 3
undeterminative challenged ballots. No timely objections were filed
Thus, the Board certified the results on 12 August 1985. (Case 30-RC-
4496.)
2 There was no complaint allegation or specific evidence on this pomt,
but I note that the Union participated m the Board election at Respond-
ent's facility in Case 30-RC-4496 without any objection.
other Yakich family-owned company, El Dorado Pack-
aging Corp., which also operates from the same facility,
owns the rest.
Respondent is in the flexible packaging business. It
prints soda bottle labels, as well as candy and other
wrappers, on printing presses and ships them to its cus-
tomers. Its primary equipment is five large printing
presses. The presses are about 40 feet long and 10 to 12
feet wide. The Respondent employs about 60 hourly em-
ployees most of whom work on the first of three shifts.
Respondent began operations about 7 or 8 years ago
when Walter Yakich, a part owner of a concern called
Sunrise Packaging, broke away to form his own compa-
ny. Within a few months, he brought his son, James, and
several other Sunrise employees, including Al Zalim,
Don Wild, and Dave Muschinske to form the nucleus of
his work force. It is conceded that Respondent is ada-
mantly opposed to unions. Walter Yakich has expressed
this view on many occasions, including a number of
formal speeches he gave to assembled employees during
the election campaign. His son, John, testified that
Walter Yakich had said, more than once, that he would
close the plant before letting a union in.
After unsuccessful attempts to resolve safety problems
at the plant through the formation of a safety committee,
some employees sought union representation. Employee
Randy Mjelde first contacted the Union in May 1985.
Later that month Mjelde and employees Don Wild,
Dave Muschinske, and one other employee met with
union representatives. An organizing committee was
formed that included Mjelde, Wild, Muschinske, and em-
ployees Mark Iwanski, Dave Ehlers, John Langowski,
and John Osowski, who dropped out of the committee
after a few weeks. 2 The members of the union organiz-
ing committee solicited authorization petitions, attended
meetings, and campaigned on behalf of the Union. On 20
June 1985, the Union filed an election petition that was
served on Respondent.
On the evening of 20 June, Wild had a priv ate conver-
sation with employee Al Zalim at a local bar. Wild and
Zalim were friends. Wild told Zalim about the organiz-
ing effort and his support of the Union. Zalim responded
by stating his opposition to the Union and his loyalty to
the Yakich family Wild nevertheless invited Zalim to
attend a union meeting on Sunday, 23 June, in the hope
that he could change Zalim's mind. Wild asked Zalim to
keep the conversation confidential and Zalim agreed.
Zalim attended the meeting and observed the visual iden-
tification of organizing committee members.
On 9 July, Zalim met with Jim Yakich in the latter's
office.4 They discussed the Union's organizing campaign.
The General Counsel alleges that Yakich improperly
questioned Zalim and thereby discovered the names of
the union organizing committee. Zalim was evasive and
prone to exaggeration in his testimony. He also contra-
dicted his pretrial affidavit in one material respect and
his testimony was influenced by his intense antiunion at-
3 Osowski was, m any event, off work from 1 July through 20 Septem-
ber 1985. He thus missed most of the union campaign.
4 Zalim had been on vacation the previous week; Yaluch was on vaca-
tion the week before Zahm was
522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
titude and his expressed loyalty to, and friendship with,
the Yakich family. After the election he was promoted
to a supervisory position. Jim Yakich was likewise unre-
liable. They both strove to give the impression that
Zalim volunteered information about the union campaign
and the union meeting Zalim attended, although both ad-
mitted that Yakich actually asked Zalim the names of the
organizing committee members. In view of my lack of
confidence in the credibility of either witness on this or
any other material issue in this case, I cannot pass on the
allegation that Zalim was coercively interrogated by
Yakich, and I will dismiss the complaint allegation deal-
ing with this matter.5
It is clear, however, that by 9 July 1985, Respondent
knew of Wild's efforts to solicit Zalim and which em-
ployees were on the organizing committee. Zalim identi-
fied Wild, Muschinske, Iwanski, Langowski, Ehlers, and
Mjelde as members. 6 Moreover, according to Jim
Yakich, Zalim told him that Wild had talked to Zalim
for about 2 hours in an attempt to convince Zalim to join
the organizational effort and that Wild had invited him
to the union meeting.
On Wednesday, 10 July, Wild was told by a fellow
employee, Ehlers, that Zalim had revealed the names of
the organizing committee to James Yakich. He was
upset. He thereafter went to Zalim's work station and
asked him if the report he had heard was true. Zalim
said that Yakich already knew the names and that he had
simply confirmed what Yakich already knew. Wild asked
about their agreement of confidentiality and Zalim said,
"What agreement?" Wild then walked away and, from a
distance of about 5 feet, turned, pointed his finger
toward Zalim, and said, "Fuck you, watch out." He then
continued to walk away.7
Zalim did not immediately report Wild's remarks to
any management official. He did, however, apparently
approach John Yakich at some point and said, "Watch
the back of my head. Somebody's out to get me." Zalim
did not elaborate and said he would "rather not talk
about it." Yakich did not ask Zalim to elaborate and tes-
tified that he did not think the matter was worth explor-
ing. Yakich also testified that he told his brother, Jim,
about what Zalim had told him Jim Yakich, however,
did not corroborate his brother on this point. He testified
that he first learned of the alleged threat to Zalim on
Saturday, 13 June, when Zalim called him at home. Jim
Yakich then arranged to transmit Zalim's report to his
father, Walter. Walter called Al Zalim at his home and
asked him about the report. Zalim said that on the previ-
5 I note that, in any event, finding a violation here would be superflu-
ous in view of my other findings of interrogation in this case.
6 He erroneously identified one other person as a member, but correct-
ed this mistake by subsequently notifying Yaluch.
7 The above is based on the testimony of Wild whom I found to be a
candid witness whose testimony survived vigorous cross-examination.
Zalim essentially corroborated Wild's version except for a slightly differ-
ent account of the words used by Wild Another employee, Jeff Bucher,
also essentially corroborated Wild, although he said Wild promised to
"get even" with Zahm One of Respondent's witnesses, Robert Kieck,
also corroborated Wild's version of the words used. To the extent
Zahm's account differs from that of Wild, I credit Wild and not Zalun
who, as I have described elsewhere in this decision, was an unreliable
witness
ous Wednesday, Wild approached him and asked if he
had given the names of the union organizing committee
to Jim Yakich and that Zalim said he had. Zalim said
that Wild then pointed his finger at him and said, "You
fucker, look out."
On Thursday, 11 July, Walter Yakich delivered the
first of four antiunion speeches he gave to all three shifts
of employees prior to the election. He opened his speech
by mentioning several national companies with local fa-
cilities and asked a single employee on each shift what
those companies had in common. On the first shift, for
example, he addressed the question to Wild. Wild gave a
predictable response, namely, that Yakich had named
union companies that had closed their local facilities,
leaving, as Yakieh interjected, "thousands of workers
without jobs." 8
On Monday morning, 15 July, Walter Yakich called
Don Wild into his office. Also present were Jim Yakich
and Jan Drewswicki, Walter's daughter, and the director
of corporate planning, who took notes of the meeting.
Walter Yakich asked Wild to give his account of the 10
July incident with Zalim. Wild told Yaldch that he was
upset because he believed Zalim breached a confidential
communication by revealing the names of the union or-
ganizing committee to management but denied threaten-
ing Zalirn. When Walter Yakich mentioned the words
Zalim attributed to Wild in their confrontation, Wild said
that those were not the exact words used and he de-
clined further comment on the grounds of self-incrimina-
tion. Yakich then asked Wild if he realized that threaten-
ing a fellow employee was a serious violation of compa-
ny rules and Wild said he did. Yakich then fired Wild.
Yakich testified that the only reason for Wild's discharge
was, in his words, "threatening a fellow employee with
violence." The rule he was referring to is rule 11 of the
Company's rules, which states, "Do not engage in horse-
play, fighting, throwing or in any act which might en-
danger persons or property." The rules were posted at
the plant in July 1981 and were in effect in the summer
of 1985. They provide for a three-way enforcement pro-
cedure: warning, disciplinary layoff, or dismissal.
After the meeting, Walter and Jim Yakich escorted
Wild out of the plant and to his car. Wild was also told
he was not permitted on company property. Walter
Yakich then assembled all the first-shift employees and
told them he had fired Wild. He said that he did not care
if employees were prounion or antiunion, but that if
there were any other threats of violence, "they would
get the same immediate discharge." He gave the same
speech that day to the second and the third shifts.
B. Interrogations and Impressions of Surveillance
1. Interrogations
The General Counsel alleges that, in several instances,
Respondent's officials engaged in coercive interrogation.
I analyze the allegations below.
8 I reject Yaluch's testimony that his selection of Wild was not deliber-
ate He addressed a sumlar question to Mjelde in a speech to his shift
SEVILLE FLEXPACK CORP. 523
On 1 July 1985, Jim Yakich approached employee
Dave Ehlers at the latter's machine and asked if he "was
one of the ones who signed a union card." Ehlers replied
that he did not want to get involved and just wanted to
go about his business. At that point John Yakich came
up and Jim turned to John and said, "Yeah, he's one of
the ones who signed the card." Ehlers did not respond.9
The questioning of Ehlers was coercive. This confron-
tation took place before Jim Yakich was notified of
Ehlers' involvement in the Union by Zalim. Ehlers, who
testified that management officials would have had "no
idea" about his union involvement at this point, was ap-
proached by a high management official and asked to
reveal his union sympathies. There was no purpose for
the questioning and no assurances against repnsals.
Ehlers clearly indicated he did not want to respond, thus
confirming the intrusive nature of the encounter. Ac-
cordingly, I fmd that Yaldch's questioning of Ehlers was
unlawful. See NLRB v. Ajax Tool Works, 713 F.2d 1307,
1314 (7th Cir. 1983).
One day in early July 1985, John Yakich observed em-
ployee John Melotik away from his work station talking
to other employees. Yakich told Melotik to get back to
his work station. Later that day Melotik was called into
Jim Yakich's office. According to Jim Yakich, he told
Melotik "I didn't care if he was pro-Union or pro-Com-
pany, but he was being paid to work on the DCM press"
and he should not be "roaming all over the plant bother-
ing other employees." Yakich testified that he "assumed"
Melotik was talking about the Union. Yakich then started
discussing the union campaign. Although, at one point,
Melotik testified that he could not remember who initiat-
ed discussion about the Union, a consideration of all of
his testimony clearly shows that Yakich asked him a
number of questions about the subject. Based on the de-
meanor of both witnesses, I reject Yakich's testimony
that Melotik volunteered the information that both wit-
nesses testified was elicited. Melotik, who was still em-
ployed when he testified, impressed me as a truthful wit-
ness. He credibly testified that Yakich asked if Melotik
attended any of the union meetings and whether he
signed a union card. Melotik answered that he had at-
tended two meetings and signed a union authorization
sheet. Yakich also mentioned that there were rumors that
Melotik was one of the union organizers and asked "who
some of the people were." At this point Don Wild ap-
peared outside the doorway of Yakich's office. Melotik
stopped talking because, according to Melotik, he did
not want to be seen as a "stool pigeon." The meeting
lasted for about 15 minutes.
Based on the credited testimony of Melotik, I find that
Respondent, through Jim Yakich, engaged in coercive
interrogation. The questioning took place in the office of
a high management official and Melotik was not given a
lawful purpose for the questioning. Nor was it innocuous
questioning. Yakich wanted to know the extent of Melo-
9 I credit Ehlers' testimony about the above conversation. He reaf-
firmed his direct testimony on cross-examination Neither John nor Jim
Yakich specifically denied that Jim questioned Ehlers, although both
denied that John said Ehlers was one of the card signers Ehlers attrib-
uted the remark to Jun Yaluch Ehlers' testimony was clearer and more
reliable than that of Jim and John Yaluch.
tik's involvement in the Union as well as the names of
other union adherents. The conversation lasted until it
became apparent that Melotik did not want to be seen as
a "stool pigeon." Yakich's remark that he did not care
whether Melotik was prounion is not, as Respondent
seems to suggest, the equivalent of an assurance against
reprisal. It was uttered in connection with Yakich's criti-
cism of Melotik's wandering away from his work station
and had nothing to do with the remainder of the conver-
sation. Indeed, that Yakich was criticizing Melotik for
being away from his work station and injected the rumor
that he was thought to be a union adherent made the
confrontation all the more coercive. Accordingly, I find
that Yakich's questioning on this occasion was unlawful.
On one occasion early in the campaign, employee Jay
Schmidt approached Jim Yakich near Schmidt's machine
and asked him what the Union was "all about." Yakich
said that the employees were trying to get a union into
the plant. Yakich then asked Schmidt if anyone had ap-
proached him about signing a union card. Schmidt said,
"no," and Yakich replied that he knew 16 people had
signed cards. Yakich also asked Schmidt if he knew of
any one who was "in the union." Schmidt said no but he
would find out. About 1 week later, Schmidt called
Yakich to his machine and told him he found out who
was in the Union. He wrote Don Wild's name in the dust
on his machine. Yakich said, "Okay." About a week
after Wild was fired, Yakich approached Schmidt and
asked him if he knew anyone else involved in the Union.
Schmidt said he would find out, but, according to
Schmidt, he did not follow up on the matter "because I
thought that if I would say something, that maybe some-
body else was going to be fired." °
I find that Yakich's questioning of Schmidt was unlaw-
ful. Although Schmidt initiated the first conversation be-
tween the two, Jim Yalkich—a high management offi-
cial—questioned Schmidt about his union activities and
those of others. Schmidt offered to obtain the informa-
tion and actually fingered Don Wild. Although the first
two conversations might not be considered coercive be-
cause of Schmidt's having volunteered to report on
union activities, there is no doubt that Yaldch's question-
ing prompted Schmidt's cooperation. The third conver-
sation is the one that tips the balance here. In that con-
versation—after Wild's discharge—Yakich approached
Schmidt; this was his initiative. He asked Schmidt for
more information. Schmidt agreed but his testimony re-
veals the coercive impact of Yakich's conduct. Schmidt
feared that Wild was fired because he fingered Wild as a
union supporter and he did not want "to mention any-
body else's name." Sclunidt's testimony demonstrates in a
dramatic manner not only the coercive effect of Yalcich's
questioning, but also the coercive effect of interrogation
generally. It often leaves the employee with the impres-
Yakich testified about the first conversation with Schmidt. He
demed asking Schmidt if anyone asked him to sign a union card or if he
knew anyone "in the union" Yakich did not testify about the second two
conversations related by Schmidt Because of this and because Schmidt
was still employed when he testified and appeared to me to be a candid
witness who was antiunion and made it clear to Respondent's officials
that he was, I credit Schmidt.
524 . DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sion that the information will be used for retaliatory pur-
poses.
Uncontradicted testimony shows that, in early July,
Supervisor Ron Milke approached employees Roger
Mettila and John Langowski at their work stations.
Milke said that he had participated in a meeting with
Walter Yakich and Yakich had said "how much a union
would hurt the company." Milke then asked Mettila his
opinion of the Union. Mettila said he "would rather not
comment on it." Although Mettila testified that he could
not remember Milke's exact question, Mettila's testimony
is sufficiently clear to support a factual finding that
Milke asked him his opinion of the Union.
Milke's questioning of Mettila was unlawful. Mettila
was not a known union supporter. There was no lawful
purpose stated for the question and no assurances against
reprisal. Although Milke was not a top management offi-
cial and the conversation took place at the employee's
work station, in all the circumstances, the question had a
tendency to coerce. Milke's request for Mettila's opinion
concerning the Union would have forced him to declare
his allegiance in the presence not only of a supervisor,
but also of Langowski, who had solicited Mettila to sign
a union petition. Mettila was thus caught in the middle
of a dilemma and refused to answer the question. Also
significant was the fact that Milke preceded his question
with a reference to the owner of the Company stating
that a union would hurt Respondent. In these circum-
stances, I find that Milke's questioning of Mettila was co-
ercive.
The General Counsel also alleges that Ron Milke at-
tempted to determine employee sentiment by soliciting
employees to wear "vote no" buttons. Milke was the
night-shift supervisor who oversaw the work of 10-12
employees. Three employees testified in a mutually cor-
roborative way that Milke did indeed solicit employees
to wear vote no buttons after one of Walter Yakich's an-
tiunion speeches. Yakich, who was wearing a large "vote
no" button, told employees, in response to a question
from his son-in-law, employee Joel Spieth, that his
daughter, Jan Drzewiecki, had a box of "vote no" but-
tons available for employees after the speech. Later that
evening, Milke approached employees individually and
asked if they wanted to wear a union button. He had
some in his possession. He approached employee Lan-
gowski twice that evening. He also approached employ-
ee Mettila and asked where his buttons were. Mettila an-
swered, "I am free, I don't go either way" Milke simi-
larly approached employee John Brulz and asked him
the same question. Brulz responded that he did not want
to declare his sympathies and asked to be left alone.
Milke admitted that he approached employees with
"vote no" buttons in his hands and told them that the
buttons were "available for you, if you want them." In
addition, I note that Walter Yakich admitted that super-
visors passed out and asked employees to wear "vote
no" buttons.11
1 s To the extent that Milke's testimony differs from that of the three
employee witnesses named above, I credit them and not Milke who was
evasive when testifying about the Respondent's new warning system.
The evidence shows that Milke affirmatively confront-
ed employees individually and sought to have them de-
clare their sentiments on the question of supporting the
Union or the Company. His conduct was not innocuous
but was systematic and intrusive. Two employees de-
clared their neutrality and one asked to be left alone.
This conduct forced employees to declare not only their
positions but the strength of their positions in front of a
management official. Such conduct is thus coercive and
unlawful. See Borg-Warner Corp., 229 NLRB 1149, 1151
(1977), and cases there cited.
The General Counsel further alleges that John Yakich
questioned an employee concerning "vote no" buttons.
The testimony cited in support of this allegation is as fol-
lows: Employee Mettila was at the "bubbler," or water
fountain, when Yakich asked him where his button was.
Mettila testified that this involved "a quick few words"
and he did not respond. Yakich denied the incident oc-
curred. Even assuming that the conversation occurred as
Mettila testified, I can see no coercion in Yakich's re-
marks. Mettila was at first unsure whether it was John
Yaldch who approached him and he said he was not
asked directly to wear a button. In any event, according
to Mettila, it was a quick exchange and Yakich did not
press for a response. It is perfectly obvious that the ex-
change was innocuous and not coercive. I will therefore
dismiss this aspect of the complaint.
2. Impression of surveillance
The General Counsel alleges that Walter Yakich's sin-
gling out Jack Wild for a rhetorical question in the
course of his first antiunion speech created the impres-
sion of surveillance of union activity. I agree. Yakich's
speech was given 2 days after Zalim identified Wild as a
member of the union organizing committee. Yakich's
question of Wild obviously highlighted the fact that Re-
spondent had learned the names of the union activists
through 'Zalim who in turn had learned the names by at-
tending a union meeting. An employer's statements, par-
ticularly during the course of antiunion speeches to as-
sembled employees, must be analyzed in terms of the
economic dependence of employees and their tendency
to pick up more readily intended implications by the em-
ployer than would a disinterested listener. NLRB v.
Gissel Packing Co., 395 U.S. 575, 617 (1969). The em-
ployees knew of Zalim's revelations and his conduct had
resulted in much talk among the employees and a con-
sensus that he should be barred from attending future
union meetings. Although Zalim was not, as a matter of
law, an agent of Respondent, 12 he was viewed by em-
ployees as a company loyalist who subsequently was
named a supervisor. In these circumstances, Yakich's de-
liberate public identification of Wild would reasonably
- 12 Before he was promoted to supervisor sometime m early October
1985, Zalim was a lead pressman who had some responsibility for tram-
mg employees. He talked to Jim Yaldch about the union campaign about
six or seven times and Yakich knew Zalim was campaigning against the
Union on the plant floor. There is no evidence, however, that Respond-
ent authorized Zahm to speak for it and the employees, in my view,
simply viewed Zalim as an opportunistic antiunion employee, but certain-
ly not an authorized agent of Respondent. Thus, I reject the General
Counsel's contention that Zalim was an agent of Respondent
SEVILLE FLEXPACK CORP. 525
tend to create in the minds of employees the impression
that Respondent monitored their union activity and
indeed their union meetings. Such conduct, particularly
in the context of Respondent's other misconduct, is un-
lawful. See Hendrix Mfg. Co. v. NLRB, 321 F.2d 100,
104-105 fn. 7 (5th Cir. 1963); Link Mfg. Co., 281 NLRB
294 (1986); Zero Corp., 262 NLRB 495, 496 (1982)."
C. The Discharge of Jack Wild
The General Counsel alleges that Respondent's dis-
charge of Jack Wild, a senior plate mounting employee,
was discriminatorily motivated. Respondent counters
that Wild was discharged for cause, threatening Al
Zalim with violence. I agree with the General Counsel.
The General Counsel has persuasively shown that Re-
spondent's discharge of Wild was discriminatorily moti-
vated. Wild was a prominent member of the union orga-
nizing committee who had solicited many employees to
sign a union authorization petition and who also had at-
tempted to interest Zalim in the Union. Respondent
learned of Wild's union leadership position through
Zalim and through employee Schmidt. Moreover, in his
antiunion speech of 11 July, just a few days before
Wild's discharge, Walter Yakich singled out Wild to
answer a pointed question at the outset of the speech.
There is no doubt that Walter Yakich, who alone was re-
sponsible for Wild's discharge, was adamantly opposed
to the Union. In addition, as I find later in this decision,
he unlawfully threatened employees with plant closure
and treated union adherents differently in one-to-one
meetings with employees.
Respondent allegedly discharged Wild solely because
of a single statement he made to Zalim. Significantly,
that single statement—"fuck you watch out"—was made
in the context, known to Respondent, of union activity.
Thus, Respondent knew that Wild was upset because he
believed that Zalim had breached a confidence by telling
Respondent that he and other named employees were on
the Union's organizing committee. And Yakich men-
tioned the union campaign as a backdrop for his dis-
charge of Wild when he announced it to the employees.
However, the Wild remark was unaccompanied by any
violence or physical contact, and, indeed, Zalim did not
apparently think the remark was significant because he
did not report it to any management official until Satur-
day morning, 3 days after it occurred.
That Respondent's motive for the discharge was
Wild's union activity rather than his statement to Zalim
is also shown by Jim Yakich's, subsequent comments to
employee Mark lwanski. 14 He told Iwanski that Re-
spondent had gotten rid of "number one," an obvious
reference to Wild, because the conversation dealt with
union activities. In light of the Respondent's subsequent
discriminatory conduct toward other members of the
union organizing committee, this comment fairly reflects
the notion that Respondent fired Wild for his union ac-
" The complaint also alleges several other instances of creating the
impression of surveillance. I need not reach those allegations because,
even if they were upheld, such fmdings vvould be superfluous and would
not affect the remedy m this case
14 1 discuss this incident m more detail, below.
tivities. Moreover, it is unlikely that Wild, a former su-
pervisor and a highly regarded employee, would have
been discharged under normal circumstances. In these
circumstances, I fmd that the General Counsel has made
out a strong prima facie case of unlawful motivation for
the discharge.
Under the Board's rules, the Respondent may rebut a
prima facie case of discrimination by persuasively show-
ing that its action would have occurred even in the ab-
sence of union activity. I find that Respondent has failed
in its burden. First of all, the words used by Wild were
inextricably intertwined with Wild's union activity. He
was protesting to Zalim the latter's breach of confidence
by revealing to management the names of the union or-
ganizing committee, more particularly, his name. Yakich
knew that this was the reason for Wild's outburst. Nor
did the conversation lose the protection of the Act be-
cause it took place on worktime. First, the evidence in
this case shows that employees often engaged in union
and other nonwork-related discussions for short periods
on worktime without being subjected to discipline, much
less discharge. At most employees were told to get back
to their work stations. Second, Walter Yakich specifical-
ly disavowed at the hearing that he fired Wild for being
away from his work station or for speaking about the
Union on worktime. He testified that the only reason for
the discharge was Wild's alleged threat of violence
against a fellow employee. Thus, not only was the dis-
cussion itself protected, but, aside from the alleged
threat, nothing else about the 10 July Wild-Zalim inci-
dent was objectionable. See Somerset Shirt & Pajama Co.,
232 NLRB 1103, 1109-1110 (1977).
Wild's remark did not amount to a threat of violence.
Wild credibly testified that he was upset and he meant to
repay Zalim for his breach of confidence by lbreaching
similar confidences he had with Zalim such as revealing
to management the fact that Zalim was responsible for a
safety inspection. Wild mentioned these possible nonvio-
lent verbal acts of retaliation to other employees. He
even mentioned one, without naming Zalim, in a ques-
tion to Walter Yakich after the latter's first speech to
employees. There was no violence during the incident
and no physical contact. Wild was 5 or 6 feet away from
Zalim and Zalim was the taller and more athletic of the
two. It is highly unlikely, given Zalim's failure to report
the matter to anyone for 3 days, that he felt threatened
in any physical way by Wild's remarks. This is consistent
with the view of the Wisconsin Unemployment Compen-
sation Commission, 15 which ruled that Wild's discharge
was not for "misconduct connected with his employ-
ment," a decision that is not conclusive in Board cases,
but is certainly probative. I agree with the Commission's
determination that the words spoken were too vague to
amount to a threat of physical harm and fall "short of
showing a wilful and substantial disregard of the employ-
er's interests." Accordingly, I find that Wild's remark
was ambiguous and did not amount to a threat of vio-
lence. Nor was it the kind of remark that would remove
' 5 The full name of the Commission is the Appeal Tribunal of the Wis-
consin Department of Industry, Labor & Human Relations Job Service
Division.
526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wild's union-related conversation with Zalim from the
protection of the Act or otherwise interfere with an em-
ployer's operations. See NLRB v. Thor Power Tool Co.,
351 F.2d 584, 587 (7th Cir. 1965); Twilight Haven, 235
NLRB 1337, 1342 (1978); Consumers Power Co., 282
NLRB 130 (1986).
In support of the discharge, Respondent relies on the
testimony of Zalim and Walter Yakich, which exaggerat-
ed the single remark by Wild and transformed it into
multiple threats of violence that the record does not sup-
port. They both exaggerated what had happened to such
an extent that I must discredit their testimony as it re-
lates to any significant issue in this case. Zalim, for exatii-
ple, testified that he was told by another employee, Jeff
Bucher, on Friday afternoon, that he "may be big" but
"if somebody hits you from the back of the head" he
would fall. According to Zalim, Bucher was reporting
what he, Bucher, had heard in the breakroom. Bucher al-
legedly said he did not "go along with anybody wreck-
ing or destroying anybody's else property" and that it
would probably be in Zalim's "best interest" if he did
not attend the next union meeting. Bucher, in contrast,
testified that it was Zalim who said that he was con-
cerned that his fellow employees would think he was a
"squealer" and that they would smash his car, or come
up to him with a bat or crowbar "from behind." Bucher
told him not to worry. According to Bucher, it was
Zalim who introduced the topic of watching out for the
back of his head—a comment strikingly similar to the
words Zalim used in his cryptic comments to John
Yakich. Moreover, Bucher testified that although the
employees in the breakroom spoke of barring Zalim from
future union meetings, there was no threat that any phys-
ical violence was going to be used and he heard no em-
ployees say that they were going to use physical vio-
lence on Zalim's person or property. Bucher, who was
testifying under subpoena against his Employer's interest,
was nervous, primarily for that reason, but he was far
more credible than Zalim. Even under Zalim's view,
however, none of the imagined threats were shown to
have emanated from Wild. Indeed, many employees testi-
fied in this case and no threats were attributed to Wild
or any other identifiable prounion employee. The only
statements attributed to Wild concerning Zalim's revela-
tion to management were that if anyone felt harassed by
Zalim, they could file a charge with the Labor Board
and, as was expressed also by many others, that Zalim
could be barred from future union meetings.
Two other incidents that occurred on Friday illustrate
Zalim's propensity to exaggerate. Although Zalim testi-
fied generally that other threats emanated from employ-
ees in the breakroom on Friday, he was not even present
in the breakroom when the alleged threats were made
and Bucher confirms that none were made. This did not,
however, stop Zalim. Two employees, Ehlers and
Kuehn, testified that about 2:30 p.m. on Friday—after
Zalim's conversation with Bucher—Zalim was talking
very loudly in the breakroom. He stated that he had
been threatened by unidentified people, that he would
not put up with those threats, and that he did not want a
union in the shop because he would lose all he had. He
was not specific and did not mention Wild's name. Zalim
also testified that another employee, Joseph Zsakovic,
met him after work on Friday and followed him home
after they discussed the threats at a bar. The implication
was that Zsakovic confirmed the threats and tried to
protect Zalim. When Zsakovic testified, however, it
became clear that Zsakovic knew nothing about these al-
leged threats, including Wild's statement, before Zalim
told him. Any protection from Zsakovic, a small and
wiry person, would have been illusory, but, in any event,
it is clear to me, from observing the witnesses and their
demeanor, that Zsakovic's concern was fueled by Zalim's
exaggerated view of imagined threats, none of which
were attributed to Wild.
Walter Yakich also exaggerated the Wild statement.
Although he conceded he discharged Wild for the single
statement he made to Zalirn on Wednesday, he also testi-
fied that he considered the statement in the context of
other statements, transmitted by Bucher and Zsakovic to
Zalim, which occurred 2 days after Wild's remarks. Of
course none of these subsequent statements were attribut-
able to Wild as Yakich would have found had he investi-
gated them. He also purportedly relied on statements al-
legedly made in the breakroom on Friday when he knew
Zalim was not present there and was simply transmitting
hearsay. According to Walter Yakich, Zalim "said Wild
was a part of the discussion in the breakroom. But what,
specifically Wild said in the breakroom, he did not say
and I do not know." Yakich did not even talk to em-
ployees who may have been in the breakroom to confirm
what had happened there before he discharged Wild. Ya-
kich's reliance on Zalim's generalized report weakens
Respondent's case, but it also exposes Yakich's unreliabi-
lity as a witness. Yakich's own exaggerated testimony re-
veals that he seized on a single remark by Wild as a pre-
text to justify the discharge of a leading union adherent.
Yakich offered other shifting and strained explanations
for Wild's discharge. For example, Yaldch seemed to
suggest in his testimony that a mental breakdown suf-
fered several years ago by Wild contributed to a propen-
sity for violence. There is, however, absolutely no evi-
dence of such a propensity. Jim Yakich called him a
"level-headed type of person" and Walter Yakich admit-
ted that he had observed no propensity for violence in
Wild's 7 years of employment. Indeed, there was evi-
dence in this record that Zalim does have a temper and
exhibited it in the plant. Yakich also suggested that the
discharge was somehow related to two incidents of al-
leged sabotage at the plant: a broken broom handle,
which was found between a pipe and wall; and the dis-
covery of holes in the bottom of a bucket of adhesive.
Yakich placed the first incident on the Friday before
Wild's discharge,' but he was unable to date the second
incident. Despite Yaldch's suggestion that the Union or
Wild were involved in these incidents, there is absolutely
no evidence that these incidents were deliberate or were
caused by the Union or its adherents and certainly none
that would connect them to Wild. On cross-examination,
Yakich admitted he had no idea who was responsible for
these incidents and did not even investigate them before
Wild's discharge. Nor did he mention them to Wild or to
employees on 15 July when he explained why he had
SEVILLE FLEXPACK CORP. 527
fired Wild. Thus, Y akich's attempt to embellish at least
the context of Wild's discharge by reference to these
other matters during his testimony impugns his testimony
that Wild's union activities did not influence his decision
to fire Wild."
In addition, Wild was a highly regarded employee, as
shown by his periodic evaluations and the testimony of
Jim Yaldch. He had been one of the first people hired by
Respondent and had served as a supervisor in the past, a
position he voluntarily relinquished. Jim Yakich conced-
ed that Respondent was hard pressed for experienced
plate mounters during the summer and fall of 1985. The
peremptory nature of the discharge and the absence of a
full investigation or consideration of the context of
Wild's remark are unexplainable in view of Wild's value
to Respondent as an experienced plate mounter. More-
over, no lesser punishment was considered even though
the rule Walter Yakich relied on permitted it. It is incon-
ceivable to me that Respondent would have discharged
such a valued and experienced employee in the absence
of union activities,
Both sides point to seemingly similar incidents to
show, on the one hand, that Wild was treated differently
from other employees who engaged in similar conduct
or, on the other, that he was treated the same. The evi-
dence certainly does not disturb the strong evidence of
discrimination in this case. Indeed, if anything, it
strengthens the General Counsel's case, though not to
any great degree.
The only evidence of this sort submitted by Respond-
ent is written evidence relating to employee Robert
Nowacyznski, who was fired on 25 October 1985 for a
number of reasons dealing with the preparation and dis-
tribution of a document that slandered and harassed a
fellow employee. The document contained the logo of
the Company and was placed in the automobiles of
fellow employees. Nowacyznski had prepared the docu-
ment on company time, a reason mentioned for the dis-
charge, and the document "belittled the religious beliefs"
of the employee and constituted "sexual harassment."
Thus explained, Nowacyznski's discharge was clearly
distinguishable on its facts from Wild's. Moreover,
Nowacyznski's discharge came after the election when
Respondent had admittedly become concerned with
acting "consistently," according to Jim Yakich, and well
after Wild's discharge, thus further lessening its proba-
tive value. Finally, there was no testimonial evidence
16 Yeldch did not impress me as a credible witness in other respects.
He was evasive, argumentative, and unresponsive m much of his teptimo-
ny. I also perceived m Yaluch's demeanor an unusual lingering hostility
towards Wild, which I believe was attributable to Wild's union aCtivity
He admitted he was upset at the change in atmosphere in the plant,
which was in part attributable to Wild and other union organizing com-
mittee members. He also described the alleged threat m an angry tone
, and insisted that Wild "poked" or shook his fmger in Zalim's face; he, of
course, was not present and Zalim himself testified that Wild was 6 feet
away at the time. Moreover, although Yakich admitted that the words
"fuck you" are not unusual in a plant environment, his description of
why he found the language objectionable is pure babble. He said that the
words were - objectionable "m conjunction with the- frame of mind and
the action, and the tone in which it was said and the actions that came
with it." Yakich could have known nothing of the tone or the context Of
the words, except that they were part of a union-related dispute, because
he was not present and did not adequately investigate the matter.
fleshing out the documentary evidence concerning the
Nowacyznski discharge. Accordingly, I cannot make a
determination that the circumstances of Wild's discharge
were the same as those of Nowacyznski's or that Re-
spondent treated Wild as it treated other employees in
similar circumstances.
The General Counsel, on the other hand, submits evi-
dence from a number of employees that Zalim seemed to
be prone to engage in and prOmpt threats. Joseph Pac-
zesny, who was essentially corroborated by other em-
ployees on this point, testified that, about February 1985,
Zalim approached him from behind in the breakroom in
the presence of 15 to 20 employees. Zalim said, "What
the hell is going on," and asked if Paczesny had threat-
ened him Paczesny said yes but there was "a story
behind it." This apparently stemmed from a previous in-
cident at Respondent's Christmas party. Zalirn answered,
"if you ever say anything to me or make a threat of any
kind" he would take Paczesny outside and "kick [his] ass
in." Zalim was inches away from Paczesny and angry.
Respondent did nothing about the threat. However, it
appears that Respondent did not know of the incident
when it occurred and, when its officials learned of it
during the trial of this case, the failure to discipline
Zalim, by then a supervisor, was excusable because of
the passage of time. Still, the failure to discipline even at
such a late date stands in stark contrast to the perempto-
ry discharge of Wild. Jim Yakich also admitted that one
employee, John Osowski, "told off' or got into argu-
ments with supervisors, for which he only received
"verbal discipline . . . several times." Although there
was no development of any further evidence on this
point, the problem seems to be at least as serious as the
one allegedly presented in the Wild-Zalim confrontation.
It apparently occurred more than once and could have
amounted to insubordination. At the very least these in-
cidents and others indicate that harsh language was not
unusual in the plant, but the Respondent did not normal-
ly punish employees for it.
In summary, I find that Yakich focused on a single
remark by Wild, which cannot be deemed a physical
threat, and an incident that did not involve violence, but
did involve an employee's anger at having his union ac-
tivities reported to management—a fact known' to
Yakich—in order to rid himself of a leading union adher-
ent and, by example, to discourage union activities by
other employees. The General Counsel has established
the violation and the Respondent has failed to establish
that it would have fired Wild in the absence of union ac-
tivities. See NLRB v. Vought Corp., 788 F.2d 1378 (8th
Cir. 1986).
D. The Speeches of Walter Yakich
During the campaign Walter Yakich gave several
speeches about the Union to assembled employees on all
three shifts. The General' Counsel alleges that some of
the speeches contained unlawful threats and that they all
demonstrated Respondent's union animus. The General
528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Counsel also relies on a letter to employees and a cam-
paign poster that contained the same message.17
More specifically, the General Counsel alleges that in
Yaldch's 26 and 31 July speeches, in a large poster that
hung in the plant throughout the campaign, and in a 30
July letter to employees, Respondent threatened its em-
ployees with plant closure or relocation. The allegation
is, basically, that Respondent weaved a previously unre-
lated problem concerning compliance with state and
Federal environmental standards regulated by the Wis-
consin Department of Natural Resources (the DNR)
with the potential of union representation to create a
threat in the minds of employees that Respondent would -
move or relocate the Oak Creek plant. The General
Counsel asserts that the plant closing or relocation state-
ments—which no one denies—were made because of the
possibility of union representation and were not attributa-
ble to factors outside Respondent's control. Respondent
asserts that the statements were made because of the ac-
tions of the DNR and were based on objective facts
beyond Respondent's control.
Yakich's third campaign speech, delivered on 26 July,
was described as covering a subject that "may affect the
jobs of all of you." He said he was concerned about
"any outside influence" that might affect "future
growth" and "jobs" and then referred to the "DNIX
problem." According to Yakich, this was the first time
he told the employees about the matter." He said that
the DNR had designated the Milwaukee area a nonat-
tainment area because of air pollution problems. He also
said that he had been working with the DNR on the
"problem," presumably his noncompliance with air pol-
lution regulations, "for approximately the past year" and
that the DNR was exhibiting "toughness" in enforcing
air pollution standards.
Yakich continued by stating that earlier in the year he
had informed the DNR that he was considering "moving
our operation" to another State. He said he had visited
many States, including Texas, Oklahoma, Arkansas, Ken-
tucky, South Carolina, and Pennsylvania and was re-
ceived "with open arms." He then said that on 6 May he
was served with a notice of violation by the DNR,
which required some affirmative action by Respondent,
and that he had employed engineers "to determine the
best alternatives." He said that "within the past few
days" he had received the "first quotation" of the cost of
compliance, which he said would be "in the neighbor-
hood of" $1 million. Yakich also said that he had tried to
17 In his brief, counsel for the General Counsel alleges that the speech-
es of 11 and 19 July contain threats of plant closure and strike violence.
He also alleges that, in a 22 July letter to employees, Respondent unlaw-
fully attempted to have employees rescind their union authorizations.
However, nothing m the complaint or the amendments allege specific
violations of this sort. Although I have considered the content of the
speeches and the letter as background, together with the Union's cam-
paign literature, I do not consider these allegations encompassed in the
complaint as amended. I gave the General Counsel every opportunity to
specify alleged violations at the trial. I cannot permit an expansion of the
specific allegations at this late stage because this would be unfair to the
Respondent and would, in any event, not appreciably affect the remedy
in this case. See Baddour, Inc., 281 NLRB 546 (1986).
12 Other evidence indicates that he, and/or Jim Yakich, had earlier
told employee Muschinske something about the problem, but not in any
specific detail.
fulfill his end of some undefined bargain by keeping the
plant operating "here in Oak Creek." He asked employ-
ees to uphold their "end of the deal and not drive an-
other nail in the coffin by bringing a union into this com-
pany." He then warned employees against believing that
he would not move the facility. He said, "this plant is
only a pile of cement blocks and steel walls. The ma-
chines in it have traveled along way to get here . . all
the way from Europe and Japan. Moving the machines
south a few hundred miles is only a hop, skip and jump."
Yakich ended his prepared remarks by asking "if you
were running this company and it became unionized. . .
what would you do?" 1 9
On 31 July, 2 days before the election, Yakich gave
his fourth and final speech to employees. He alluded to
"threats of violence" at the plant that arose only after
the union campaign began. He reminded employees that
Respondent already had one problem with the DNR, it
did not need another with union representation. He also
said that he was being courted by many States "for pur-
poses of relocation" and that one factor in support of a
move was that Wisconsin was not a "right to work"
state where employees could not "be forced to join a
union in order to hold a job." He also referred to letters
he had sent to employees at their homes containing
offers from other States to have his plant moved there.
He again reminded employees that "our plant could be
located anywhere in the USA." He reminded 6inployees
that if a union were to "come in" it would be a "night-
mare." He told employees to vote against a union in the
election for several reasons, including supporting "Walt"
to "save the jobs of all of you and keep this plant operat-
ing in Oak Creek," but to vote for the union if, among
other things, they wanted to "Dnve another nail in the
coffin and have this plant relocate in another state."
The letter to employees that Yakich referred to in his
speech was dated 30 July and again mentioned "any out-
side influence" as it might affect the "job future" of em-
ployees. He reemphasized some of the points made in his
26 July speech about the DNR problem, including his
travels to other States relative to his possible move "out
of the state." He referred to enclosures of information
from other States where the advantages included "lower
labor rates, the workers' attitude toward their jobs and the
quality of life." (Emphasis in original.) He closed the
letter by stating, "We have enough problems already
with the DNR. Do not add to our problems. I am fight-
ing for your jobs and to keep this plant open" (emphasis
in driginni). 2 0
A few days before the election, Respondent posted a
25-foot campaign sign in the plant that read, "DNR and
12 Uncontradicted testimony shows that at the end of this meeting, em-
ployee John Langowslo asked Yakich if it would not be cheaper to install
a catalytic converter at the plant instead of moving the entire plant
"down South." Yakich answered that it would be cheaper to move the
whole plant South. No support for that statement appears m this record.
2 ° Among the attachments and in another exhibit submitted at trial by
Respondent were wage rates for these other locations. They did not deal
with other printing companies who did the same work as Respondent
Nor did they include comparable job classifications, such as pressman or
platemounter, which made up most of Respondent's work force
SEVILLE FLEXPACK CORP. 529
or Union = ???. It's your future. Think about it." The
sign remained posted until the day before the election.
The relevant facts relating to the "DNR problem"
from its inception through early November 1985 are as
follows:
In May 1984, the DNR began investigating Respond-
ent's Oak Creek plant to determine whether it was in
compliance with state air pollution control regulations.
In February 1985 Respondent was presented with a de-
tailed air compliance inspection report. The report set
forth the view that Respondent was in violation of appli-
cable laws and regulations. It also indicated that the
DNR official, Patrick Brady, had visited the plant and
spoke with Walter Yaldch about possible compliance. At
this meeting Brady told Yakich ways that he could bring
the Oak Creek facility into compliance and that they
would be "costly." Yaldch thereafter hired consultants to
look into methods of compliance. Yakich told Brady, as
was mentioned in the report, that "because of the regula-
tions and future restrictions," Respondent was "consider-
ing moving, possibly out of state."
On 6 May 1985 the DNR issued a notice of violation
to Respondent specifying the violations involved and set-
ting up a compliance conference to be held on 24 May.
The conference was held as scheduled. Respondent was
represented by its attorney, John Mahoney, and other
representatives, apparently including an engineering con-
sultant. There was agreement on some issues. According
to the conference agreement, Respondent was to submit,
by 15 July, a specific compliance plan and, by 28 July, a
description of all major equipment at the plant.
In a letter to Yakich dated 6 June 1985 an enforcement
official for the DNB, Deborah Roszak, wrote that be-
cause prompt compliance "may not be possible" and be-
cause of the severity of Respondent's noncompliance due
to "years of disregard for air pollution regulations," the
DNR was considering referral of the case to the Attor-
ney General. Roszak, however, called for a "good faith
effort" to hold off a referral decision and to aid in an
"eventual settlement." Roszak also noted that she was
told by Respondent's attorney that a press ordered for
February 1986 delivery "would be located in Texas if en-
vironmental regulations prevented its installation" at the
Oak Creek facility.
Walter Yakich immediately responded, in a letter
dated 8 June 1985, disputing some of the charges in Ros-
zak's letter and stating that, since he had been informed
of his noncompliance, he had been traveling to other
States "examining sites for a new 100,000 square foot
plant" (emphasis added). He closed the letter by stating
that he would "do 'whatever is reasonable to comply
with the regulations" and stated that the new machine he
expected to receive in early 1986 would be installed in
another ,State.21
Documentary evidence indicates that on 27 June and
again on 15 July 1985 Respondent submitted requested
information and a compliance plan, pursuant to the May
agreement of the parties. The compliance plan included
21 Yakich testified that he made the latter statement because he was
"trying to influence the DNR in accepting a less costly solution to the
Oak Creek problem."
tentative dates for certain interim steps, including engi-
neering design and specification work, and final compli-
ance by 31 December 1986.
On 6 November 1985 the DNR wrote Respondent
stating that the Oak Creek facility has been "in violation
of emission limitations for volatile organic compounds"
in the industry since the regulations became effective in
August 1979 and April 1982. The DNR also stated that
Respondent was in violation of statutes and regulations
that required a construction permit before the plant
opened in 1979 and the submission of annual reports of
air emissions. The DNR then stated its intent to initiate
enforcement proceedings through the attorney general of
Wisconsin. The next day Walter Yakich expressed to his
attorney his "shock" at receiving the letter because of
what he perceived as her earlier "cooperative attitude."
He called for political intervention.22
In his correspondence with other States, Yakich said
he was considering opening a plant in early 1986 or in
the spring of 1986. In fact Yakich has decided to build a
plant in Waco, Texas. There is no evidence that the Oak
Creek plant is being phased out or that the facility is
being abandoned or sold. There has been no effort to
break the long-term lease or fmd new tenants. Yakich
testified that, in mid-1986, he was "looking for a plant
site to where we were not under the very tight restric-
tions that the State of Wisconsin has. . . . And in con-
junction with that I was looking for a plant site where
we could maintain a more competitive posture in our in-
dustry from the standpoint of costs." He stated that, at
the time of the hearing in June 1986, he had broken
ground for a plant in Waco, Texas, which is targeted to
open on 1 January 1987. He said that it was his "purpose
to close the Oak Creek facility if we could not resolve
our differences with [DNR]."
The standard governing the legality of Yakich's state-
ments of plant closure or relocation in his DNR-related
speeches and campaign material is set forth in NLRB v.
Gime! Packing Co., 395 U.S. 575, 618-619 (1969), in
which the Court stated:
[A]n employer is free to communicate to his em-
ployees any of his general views about unionism or
any of his specific views about a particular union,
so long as the communications do not contain a
"threat of reprisal or force or promise of benefit."
He may even make a prediction as to the precise
effect he believes unionization will have on his com-
pany. In such a case, however, the prediction must
be carefully phrased on the basis of objective fact to
convey an employer's belief as to demonstrably
probable consequences beyond his control or to
convey a management decision already arrived al to
close the plant in case of unionization. See Textile
Workers v. Darlington Mfg. Co., 380 U.S. 263, 274, n.
20 (1965). If there is any implication that an em-
22 This evidence, together with other documentary evidence concern-
ing the agreed-on compliance plan submitted by Respondent in June and
July 1985, contradicts Yaldch's testimony early in the hearing that the
DNR "absolutely" did not take a conciliatory approach at any time
during the summer or fall of 1985.
530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployer may or may not take action solely on his
own initiative for reasons unrelated to economic ne-
cessities and known only to him, the statement is no
longer a reasonable prediction based on available
facts but a threat of retaliation based on misrepre-
sentation and coercion, and as such without protec-
tion of the First Amendment. We therefore agree
with the court below that "[c]onveyance of the em-
ployer's belief, even though sincere, that unioniza-
tion will or may result in the closing of the plant is
not a statement of fact unless, which is most im-
probable, the eventuality of closing is capable of
proof." 397 F.2d 157, 160. As stated elsewhere, an
employer is free only to tell "what he reasonably
believes will be the likely economic consequences
of unionization that are outside his control," and
not "threats of economic reprisal to be taken solely
on his own volition." N.L.R.B. v. River Togs, Inc.,
382 F.2d 198, 202 (C.A. 2d Cir. 1967).
The Court continued as follows:
[An employer] . . . cannot be heard to complain
that he is without an adequate guide for his behav-
ior. He can easily make his views known without
engaging in "brinskmanship" when it becomes all
too easy to "overstep and tumble [over] the brink,"
Wausau Steel Corp. v. NLRB, 377 F.2d 369, 372
(C.A. 7th Cir. 1967). At the least he can avoid coer-
cive speech simply by avoiding conscious overstate-
ments he has reason to believe will mislead his em-
ployees. [395 U.S. at 620.]
Yakich's DNR speeches did not meet the Gissel stand-
ard for lawful comment and amounted to a coercive
threat of plant closure or relocation if the employees
chose the Union. Yakich repeatedly threatened loss of
jobs and plant closure or relocation, and he said these
consequences would flow from a union victory, not from
any action by the DNR. Indeed, it appears his main pur-
pose for injecting the "DNR problem" into the union
debate was to heighten the anxiety of employees and em-
phasize the danger of a plant closure. Thus, he implored
the employees to vote for the Union if they wanted to
"drive another nail in the coffin and have this plant relo-
cate in another state." Yaldch conceded that his threats
were union related when he testified that, if the DNR
problem was not resolved, he would have closed the
plant. The implication was that the opposite also fol-
lowed: if the problem were resolved, he would not close.
Yet he threatened employees that he would close if they
voted for the Union.
The evidence shows that Respondent misrepresented
or at least exaggerated the "DNR problem." Yakich was,
aware of his noncompliance with air pollution regula-
tions and the heavy costs of bringing the plant into com-
pliance well before the union campaign. Yet his first gen-
eral notification to employees of the depth of the prob-
lem—with the attendant danger of relocation—came
during the last 2 weeks of the union campaign and then
only in connection with antiunion speeches. Moreover,
the evidence demonstrates that at the very same time he
was expressing a parade of horribles to employees, he
was complying with an agreed-on accommodation with
DNR officials that would have made it unnecessary for
the DNR to initiate enforcement proceedings or to carry
out Yakich's threat to relocate. Indeed, although at an
early stage of the DNR negotiations, Yakich had threat-
ened DNR officials that he would move his operation
out of State, subsequent statements by Yakich, including
one made on 8 June—over a month before his speeches
to employees—his threat was pared down to building a
new plant elsewhere. Yet his emphasis in speeches to em-
ployees was that he would move the existing plant.
Moreover, there is no evidence that Yakich ever sought
to break his lease or close the Oak Creek facility or, in
fact, to move the plant—despite the eventual breakdown
of negotiations and the initiation of enforcement proceed-
ings by the DNR in April 1986. Yakich actually built a
new plant in Waco, Texas, but he still operates the Oak
Creek facility. In these circumstances, I find that Re-
spondent exaggerated the "DNR problem" and injected
it into the union campaign to frighten and threaten em-
ployees with relocation if they voted for the Union.
Yakich thus utilized "conscious overstatements" that he
had "reason to believe" would "mislead his employees."
(Gissel, supra at 620.)
I fmd that the threat to move or relocate was con-
veyed to employees not as a legitimate by-product of
unionization caused by factors out of Respondent's con-
trol, but rather as a reflection of matters within Respond-
ent's control through which it threatened retaliation
against employees for choosing the Union. As I have in-
dicated, the "DNR problem" does not provide a legiti-
mate defense to Respondent's union-related threats. Even
assuming the validity of the "DNR problem," the plant
closing or relocation was specifically attributable to a
vote for the Union in the election. Nor was there any
other objective basis for the threat of closure or reloca-
tion. Nothing in the 26 July speech gave any other
reason for the threatened relocation except a nebulous
reference to a "non-union and less regulated environ-
ment." The 31 July speech did mention violence and sab-
otage, but these were not given as reasons for the threat-
ened move. In any event, it was not demonstrably
proved that Respondent's unionized employees would
engage in -violence so as to cause the Oak Creek plant to
close. The other possible reason advanced was that other
States seeking Respondent's new plant were right-to-
work States, unlike Wisconsin Yakich said that because
of right-to-work laws, wage rates were lower and more
competitive in those States. This was not demonstrated
in Yakich's speeches and his wage data was not linked to
his competitors or job classifications in his operation.
These reasons, in any event, do not provide a rationale
for the threatened action. Respondent failed to show that
unionization would force the Oak Creek plant to close.
The decision to close, after all, would have to be made
by Yakich. Thus, Yakich's generalized statements do not
amount to objective considerations capable of proof
under Gissel. At the very least they amounted to unlaw-
ful "brinksmanship," which the Supreme Court and the
Seventh Circuit have condemned. See Gissel, supra at
SEVILLE FLEXPACK CORP. 531
620, quoting from Wausau Steel Corp. v. NLRB, 377 F.2d
369, 372 (7th Cir. 1967).
In its brief, Respondent defends the DNR speeches
and references to plant closings and relocations by argu-
ing that it has "clearly established" that its "search for
another location preceded the Union organizational drive
in June of 1985" and that Respondent was in fact "likely
to be expanding or relocating outside of the Oak Creek
area." The Gissel standard is not that ephemeral. If, as
Respondent asserts, it had planned to relocate prior to
the election, why did it tie its threat to close to the out-
come of the union election? Respondent apparently at-
tempts to answer this question by referring to unsupport-
ed generalities such as "lower wage rates available in the
South," "higher wages and restrictive work practices,"
and Yakich's experiences at a unionized plant 20 years
before. None of these references constitute factually sup-
ported reasons to explain why unionization would cause
Respondent—due to factors outside its control—to close
the Oak Creek plant. Of course, an employer can always
postulate other locations where wage rates are lower and
it is likely that union wages are generally higher than
nonunion wages. But Respondent had no idea what the
Union would request once it did win bargaining rights at
Oak Creek. Not only would Respondent be able to resist
costly demands in free collective bargaining, but it could
not reasonably assume that employees would deliberately'
bargain in such a way as to force Yaldch—due to factors
outside his control—to close his plant."
Gissel requires more specificity. Yakich submitted no
cost figures for his own operation that would demon-
strate he would be forced, by factors outside his control,
to close because of unionization. Nor did he show that
his unionized competitors had closed their plants because
of unionization. Indeed, he argued, in an earlier speech,
that his wage rates were competitive. And after the elec-
tion, he granted a new paid holiday to employees. What
reason, then, outside of his control, could Yakich possi-
bly have had to close his plant? I can find none demon-
strated on this record.
Finally, Gissel requires the trier of fact to take into ac-
count both what the speaker intended and the employees
understood in the entire context of the employer-employ-
ee relationship. (395 U.S. at 617.) Here, the context in-
cludes not only previous speeches that raised the specter
of plant closings that were not found to be unlawful, but
also Respondent's other unfair labor practices and their
coercive effect. The employees thus felt the impact of
the discriminatory discharge of Jack Wild a few weeks
before. In addition, Yakich himself exaggerated the
"DNR problem" to maximize fears of plant closure and
he also admittedly exaggerated a threat to install new
machinery out of State so that DNR would settle the
matter on more favorable terms. I have no doubt, in
these circumstances, that, by his repeated references to
plant closure, Yaldch intended to convey a retaliatory
message to employees. Accordingly, I find that Yakich's
23 Although bargaining is not an exact science, and perhaps union de-
mands may sometimes contribute to plant closings, see NLRB v. Shenani-
gans, Inc, 723 F 2d 1360, 1367-1368 (7th Cir. 1982), recent history dem-
onstrates that unionized employees go to great lengths to keep this from
happening.
references to plant closure and relocation in his DNR-re-
lated messages were not intended or understood as "pre-
dictions that unionization would inevitably cause the
plant to close" but rather "threats to throw employees
out of work regardless of the economic realities." Gissel,
supra, 395 U.S. at 619-620. See also Bay State Ambu-
lance, 280 NLRB 1079 (1986); Long-Airdox Co., 277
NLRB 1157 (1985); Armon Co., 279 NLRB 1245
(1986).24
E. Threats and Other Violations
1. Threats to and discrimination against Mjelde,
Muschinske, and Langowski
In the last 2 weeks of July, Walter Yakich met individ-
ually with all the employees in the unit on each of the
three shifts. These one-on-one meetings lasted between a
few minutes to 1-1/2 hours depending on the employee
involved. The employees were given summaries of their
employment history and a description of Respondent's
benefits. The purpose of these meetings was to convince
employees to vote against the Union in the upcoming
election.
Yaldch's meetings with known union leaders were
short. He told the organizing committee members that he
knew their views and was not going to "waste time" on
them Yakich called Mjelde a "savior" and said if he was
so "damn smart" he should quit and start his own busi-
ness. 25 In the Langowski meeting, Yakich mentioned
hospital bills paid by Respondent's insurance company
dealing with the birth of his daughter. He asked, "Isn't it
true that your wife was pregnant before you were mar-
ried?" Langowski said, "No." Yakich then asked if the
dates on the insurance forms were changed so that he
could receive benefits. Langowski explained that they
had not been changed and that Jim Yakich approved the
procedure he followed. Yaldch ended the meeting by
saying, "We really appreciate the way you say 'thanks'
and that's all I have to say to you."26
The General Counsel alleges that, in his remarks to
Mjelde, Yakich unlawfully encouraged him to quit and
impliedly threatened retaliation. I agree. The meeting in
which the remarks were made was a one-on-one meeting
24 In support of its position that Respondent's threat was an objective-
ly based prediction, Respondent, in its brief, cites, without discussion,
NLRB v. Shenanigans, Inc., 723 F 2d 1360 (7th Cir. 1982) In that case,
the Court held that the Board's finding of an unlawful threat of closure
was not supported by substantial evidence. That case is distinguishable
from this case. In Shenanigans, the Court held that the employer "provid-
ed objective support for his prediction of the consequences of unionizing
[the restaurant] by pointing to the competitive nature of the restaurant
business and to the fact that only one restaurant in Decatur was union-
ized and it was doing badly." (723 F 2d at 1368.) Here, Respondent com-
petes on a nationwide basis with union and nonunion firms; there was no
showing that union competitors have difficulty, or, in fact, closed, be-
cause of their unionized status. Moreover, the Court in Shenanigans noted
that "the tenor of" the employer's remarks did not convey a "retaliatory
message." (Ibid.) Here, m view of Respondent's other unfair labor prac-
tices and its repeated references to plant closure due to unionization,
there was a retaliatory message and it was not lost on the employees
25 Yakich corroborated Mielde's testimony on this point. He adrrutted
he may have used the word "quit" when talking to Mjelde.
26 Yakich did not deny the exchange as credibly related by Lan-
gowskt. He testified he did not recall what was said.
532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for the specific purpose of campaigning against the
Union. Yakich sarcastically called him a "savior" be-
cause, as Yakich admitted, Mjelde "was one of the mem-
bers of the committee active in the Union organizing
campaign." He also urged Mjelde to quit, the obvious
reason for this being that Yakich did not want this union
activist in his employ. Yakich, of course, had the power
to end Mjelde's employment. Respondent states in its
reply brief (Br. 25) that it "would interpret this to mean
that if Mjelde were so smart that he felt he could be a
saviour [sic] for all Seville employees, then perhaps start-
ing his own business would convince him to the con-
trary." This seems a strained interpretation especially be-
cause it was Yakich who used the word "savior." View-
ing the remarks from the perspective of the employee-
employer relationship, as I must under the Gissel case
and other authorities, 27 I cannot give such a benign in-
terpretation to the remarks, particularly to the reference
that Mjelde should "quit" his employment. In view of
Respondent's other unfair labor practices, Yaldch's
known hostility against the Union and the discriminatory
discharge of union activist Jack Wild, which was an-
nounced to all employees just 2 weeks before, Yakich's
remarks, constituted an implied threat of retaliation,
which, in Mjelde's case, proved prophetic because Re-
spondent forced him to quit after the election. See Groves
Truck & Trailer, 281 NLRB 1194 (1986) (supervisor told
employee, "if I was as unhappy as it sounds like you are,
I would leave"). See also Heritage Nursing Homes, 269
NLRB 230, 231 (1984), and cases there cited.
The General Counsel also alleges that Yakich's re-
marks to Langowski, particularly his accusation that
Langowski falsified an insurance claim and his implica-
tion that Respondent did Langowski a favor by over-
looking possible deficiencies, amounted to unlawful har-
assment and humiliation. I believe the facts on this inci-
dent present a close question. Yakich equated Langows-
ld's prounion position with disloyalty and this establishes
some degree of animus that certainly bears on the allega-
tion that Langowski, like three other union activists, was
forced to quit his employment for union reasons. But I
doubt there was a reasonable tendency to coerce or an
implied threat or a promise in Yakich's remarks. Lan-
gowski explained the apparent discrepancy in the insur-
ance documents and Yakich did not press the matter so
far as the record shows. I cannot infer that Yakich's re-
marks implicitly threatened unfavorable future treatment,
as the General Counsel contends. I shall therefore dis-
miss this aspect of the complaint.
In late July, employees Dave Muschinske, Andy Boen,
and Ron Kuehn were taking their break in the break-
room. Jim Yakich was filling a soda machine. Kuehn
asked Yakich if the employees had to work on Saturday.
Yakich said that Kuehn did not have to work, but that
IVIuschinske would. He also stated, "I will make sure he
works every Saturday from now on." Yaldch continued
by stating, "We are going to take Dave out in the woods
and we are going to play survival games with him"
Yakich apparently was referring to a so-called sporting
27 See, e.g, Jay Foods v NLRB, 573 F 2d 438, 444 (7th Cir 1978),
cert. denied 439 I.J.S 859 (1978)
activity where people shoot each other with "yellow pel-
lets that look like blood when they hit you." Although
the employees laughed at this point, there is no doubt
that Muschinske was concerned about Yakich's remarks.
As a result Muschinske went into Yakich's office and
asked him what he meant. Yakich said he was just kid-
ding about the yellow pellets and Muschinske conceded
that, at this point, he no longer believed that Yakich was
serious about those remarks. Yakich, however, reaf-
firmed that Muschinske would have to work on Saturday
and Muschinske was concerned about this aspect of Ya-
kich's remarks. Muschinske reminded Yakich that he had
previously requested to be off on Saturday, 10 August,
because it was the day before his scheduled vacation.
Yakich answered that he had just canceled Randy
Mjelde's day off and he had "to treat everybody equal."
In April Muschinske had scheduled his vacation for
the middle of August and he had asked Respondent for
the Saturday before his vacation, 10 August, off in early
July. This took place in a conversation between Mus-
chinske and Jim Yaldch in the latter's office. Yakich said
that he "would imagine" that Muschinske could have the
day off and "we will see what we can do." When the
schedule was posted for work on Saturday, 10 August,
Muschinske's name was on it. Normally vacations run
from Sunday through the following Saturday and em-
ployees are excused from working the Saturday before
their vacations.28
Employee Randy Mjelde had scheduled his vacation
to begin 28 July. Prior to his vacation, he went into Jim
Yakich's office and asked if he could also have the Satur-
day prior to his vacation, 27 July, off. Yakich responded,
"No problem" that he could "work around it."29
The week before Mjelde's scheduled vacation, an
overtime schedule was posted that included Mjelde for
work on Saturday 27 July. Mjelde went into Yakich's
office and reminded him about the prior approval of his
Saturday off. Yaldch did not explain his change of posi-
tion and insisted that Mjelde had to work that Satur-
day.3°
The General Counsel alleges that Respondent reneged
on its previously granted permission for Mjelde and
Muschinske to be off the Saturday prior to their vaca-
tions because they were known union adherents. There is
no doubt that their requests for time off were at least
tentatively granted in April, prior to the onset of the
28 Yaluch did not really contradict Muschmske's testimony concerning
the above incidents although he emphasized the jocular nature of his re-
marks about survival games and that his approval of Muschuiske's Satur-
day off was only tentative. I found Muschmske, who was still employed
by Respondent when he testified, to be a reliable witness. Based on my
assessment of the demeanor of both witnesses, I credit Muschinske's ac-
counts to the extent that they differ from Yakich's versions.
29 The above is based on Mjelde's credible testimony. Yakich testified
that Mjelde asked him for the day off in April He testified that "that was
too far in the' future to say yes or no but I would mark it down and I
would consider it." On cross-examination, Yaldch admitted that he told
Mjelde he would try to accommodate him
29 Mjelde's testimony set forth above was not specifically contradicted
by Yakich. Yaluch's testimony was not very clear on this point. Yaktch
testified about why Mjelde had to work but not that he told Mjelde why
In any event, to the extent that Yakich's testimony differs from Mjelde's,
I credit Mjelde I found Yakich not to be a reliable witness in other as-
pects of his testimony.
SEVILLE FLEXPACK CORP. 533
union campaign. There is also no doubt that Respondent
knew that Mjelde and Muschinske were members of the
union organizing committee and that it was adamantly
opposed to the Union. Yakich acknowledged that these
were the only two instances where employees had previ-
ously been granted Saturday off but were thereafter
forced to work. The record shows no 6thers. 31 Yakich
offered Mjelde no explanation for changing his mind.
Yakich himself tied the two denials together when he
told Muschinske that he had to treat him the same way
he did Mjelde. Yakich also suggested that he would
force Muschinske, but not other employees, to work on
Saturdays. No other reason appears for these distinctions
except that Mjelde and Muschinske were organizing
committee members. Respondent's animus toward and
focus on union organizing committee members is clear
on this record. In these circumstances, I find that the
General Counsel has shown, at least prima facie, that the
denials of these two requests were discriminatory.
The Respondent asserts that summer was its busy
season and it was short on employees. As a result, ac-
cording to Respondent, it had to require Mjelde and
Muschinske to work on the Saturday before their vaca-
tions even though it had previously tentatively agreed
not to require them to work. Documentary evidence
shows that many employees were required to work on
27 July and 10 August. But the record does not show
whether any had previously asked for and been granted
the day off or whether their vacations began the next
day. It is clear, however, that Respondent did not re-
quire Zalim, the leading antiunion employee, to work on
Saturday, 27 July. He, like Mjd de, took his vacation the
week of 28 July and he, like Mjelde, was a pressman.
Indeed, he was more experienced than Mjelde. 32 Re-
spondent does not explain why Zalim, who, so far as the
record shows, did not ask for 27 July off was not asked
to work, but Mjelde, who did, was forced to work. The
only reason appears to be their respective positions on
the Union. In these circumstances, I find that Respond-
ent has not shown that it would have denied Mjelde time
off in the absence of his union activities.
Muschinske's situation is a bit different because many
people worked on 10 August, including Kuehn, whom
Yakich had suggested would be treated differently from
Muschinske, and Zalim. In addition, Muschinske admit-
ted that both the first and second shifts worked on 10
August and he himself had worked 68 hours the week
before going on vacation. Although the Muschinske case
is a close one, particularly since he and Mjelde were the
only ones treated differently regarding Saturday over-
time previously requested and granted, I believe that the
Respondent has shown that it needed Muschinske on 10
31 Actually, Yaloch initially admitted that these were the only two ex-
amples where an employee requested off the Saturday before a vacation
and was denied that request. Later, however, in response to questions
from his counsel, he said that this had happened often, without giving
specific examples This is an example of Jim Yakich's generally unreliable
testimony.
32 In arguing that Muschinske was properly required to work overtime
on 10 August, Respondent argues that he was an experienced pressman.
(Br. 31.) Respondent cannot have it both ways: if experience was a factor
in assigning overtime, why was not Zalim assigned instead of Mjelde on
27 July?
August and that it would have required Muschinske to
work on that day even in the absence of union consider-
ations.
The General Counsel also alleges that Yakich's re-
marks to Muschinske in late July amounted to a threat of
physical harm and harassment. Yakich made two differ-
ent remarks to Muschinske: first, he suggested jokingly
that he would take Muschinske in the woods, play sur-
vival games, and pepper him with yellow pellets; second-
ly, he suggested that Muschinske would be treated differ-
ently from another employee regarding Saturday work.
There is no doubt that Muschinske was at first con-
cerned with both of these remarks. This is based not
only on my assessment of the testimony of both Mus-
chinske and Kuehn, but also because Muschinske later
went in to talk to Yaldch about the matter. After Yakich
said he was just kidding about the yellow pellets, Mus-
chinske no longer took that statement seriously. He did,
however, take seriously Yakich's remark' that he would
have to work on Saturdays, but Kuehn would not, par-
ticularly since Yakich had tentatively approved that day
off for Muschinske. In my view there is no doubt that
Yakich's remarks singling out Muschinske for different
treatment was based on his being a member of the union
organizing committee. No other reason appears for sin-
gling out Muschinske. Respondent's opposition to the
Union and knowledge and concern about the union orga-
nizing committee members is clear. Thus, Yakich made
the remarks about survival games and Saturday work be-
cause of Muschinske's union activities.33
The question then becomes, Did those remarks have
the tendency to coerce? I think they did. It is fairly clear
that, except for a few minutes of uncertainty, Mus-
chinske did not seriously believe that Yakich would
shoot him with yellow pellets. Thus, the literal threat of
physical harm was not a violation. That remark, howev-
er, gives color to the threatened denial of Saturday off.
Statements of this sort must be evaluated, not based on
the subjective views of employees when testifying
months after the events, but as they are reasonably per-
ceived at the time by employees in the context of the
employee-employer relationship and insofar as the trier
of fact can view them objectively as having the tendency
to coerce. See National Apartment Leasing Co., 263
NLRB 15 (1982); American Freightways Co., 124 NLRB
146, 147 (1959); NLRB v. Gold Standard Enterprises, 679
F.2d 673, 676 (7th Cir. 1982); Sioux Products v. NLRJ3,
684 F.2d 1251, 1254 (7th Cir. 1982); Illinois Tool Works,
153 F.2d 811, 814 (7th Cir. 1946).
In so evaluating Yakich's remarks, I believe that they
had the tendency to coerce. Yakich was telling Mus-
chinske—and perhaps the other employees present—that
he would treat union adherents differently and retaliate
against them. The retaliation would come in the most
tangible way an employer could affect an employee—on-
the-job discrimination, in this case denial of Saturdays
33 Yaldch's testimony that he singled out Muschinske because he
simply "lik[ed] to tease him" and in response to Musclunske's complaints
about not wanting to work overtime is inherently incredible. YakMh ac-
knowledged that Kuehn also complained about overtime in the same con-
versation. Indeed, Kuehn initiated the discussion about overtime.
534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
off. Thus, Yakich's remarks had the tendency to coerce
employees and I find that, through Yakich's remarks, Re-
spondent threatened harassment and reprisals because of
Muschinske's union activities in violation of Section
8(a)(1) of the Act.34
The General Counsel also alleges that Muschinske was
threatened by Yakich on an earlier occasion. On 3 July
Jim Yaldch was supervising the hanging of large ply-
wood boards that contained Respondent's antiunion mes-
sage. The boards were 4 by 8 feet. Muschinske, who had
earlier been asked by Supervisor Bill Hintz whether he
was circulating a union petition to become the Union's
president, asked Yakich what he was doing. Yakich said
Respondent was starting its campaign, which would be
positive rather than negative. Yakich then added, with a
laugh, "if we find out who organized this, we are going
to drop [the plywood boards] on them."
I disagree with the General Counsel's contention that
this incident is violative of the Act because it amounts to
a threat of bodily harm. I believe the remark could not
reasonably be taken literally or seriously. It was made at
the beginning of the campaign before more serious per-
sonnel-related unfair labor practices and thus was not
made in the context of other unlawful statements or re-
marks. Muschinske admitted that Yaldch was kidding
and he laughed after Yakich made the statement. Thus,
in my view, it was simply a crude and seemingly humor-
ous way of saying that Respondent was against the
Union, a fact that was consistently made clear to em-
ployees. In all the circumstances, including the context
of the remarks, I do not fmd the violation alleged by the
General Counsel.
2. Coercive remarks concerning the futility of union
representation and voting for the Union
The General Counsel alleges that in two instances—
one before and one after the election—Respondent's
highest ranking officials, Walter and Jim Yaldch, unlaw-
fully expressed to employees the futility of union repre-
sentation in violation of the Act. I agree.
The General Counsel alleges that, in Yakich's 19 July
preelection speech to employees, Respondent created the
impression that it would be futile to select a union. This
was 4 days after Wild's discriminatory discharge, a
matter that had been announced to all employees. The 19
July speech referred to a union handout and made sever-
al points: (1) a union contract could not guarantee jobs;
(2) union representation would interfere with individual
34 Respondent's attempt to explain Yaloch's remarks as banter is una-
vailing. The employees laughed at Yaldch's remarks about survival
games But he also mentioned Saturday work, a serious subject, and he
reaffirmed the denial of time off for Muschinske in a private meeting.
Nor is the coercive nature of Yakich's remarks diluted because Mus-
chinske testified, in response to general questions, that he was not threat-
ened by any official of Respondent. He may have been referring to his
view that he did not take the survival games threat literally. In any
event, as I have indicated, violations are to be measured by the objective
standard of whether remarks have the tendency to coerce, not whether
Muschinske, or any particular employee, felt threatened. Finally, my find-
ing is not affected by my further fmding that Respondent's assignment of
Saturday work to Muschinske was not discrimination in violation of the
Act. Respondent rebutted the General Counsel's evidence of actual dis-
crinunation. But this provides no defense for its having made the threat.
rights to independently press grievances; and (3) Re-
spondent's wages were competitive with those in the in-
dustry. Thereafter, Yakich made the following statement
on which the General Counsel focuses as establishing the
violation here:
The company and your productive work are the
sole reason our employees have these wage rates
and other benefits. Let me assure you it has nothing
to do with the union. The union can only promise
you wonderful things. For instance, the union can
promise you that the contract will be opened for
negotiations right now and that you will get $1.00
an hour increase. BUT UNION PROMISES ARE
LIKE COUNTERFEIT MONEY. The union
cannot get more than we can afford to give. In ne-
gotiations, the union can make all the demands it
wants, BUT WE DO NOT HAVE TO AGREE
TO A THING.
The fact of the matter is that when the company
makes a final offer, the union has, in reality, two
choices. It can accept that offer on strike. Bitter
strikes have long been the hallmark of the printing
and publishing industry.
Yaldch followed the statement by referring to several ex-
amples of failed strikes involving companies outside of
the Milwaukee area. None of the strikes involved the
same local union as was involved in this case, although
they apparently involved the same international union.
After the Board election, sometime in August, Yakich
called Muschinske into his office and talked to him.
Yakich said "now that the election and everything is
over with we can bring everything out in the open."
Yakich said that now that the vote was over everyone
was saying they voted "no" but 21 people had voted
"yes." He also said that there would "never be a union
at Seville Flexpack." Yaldch admitted to having such a
conversation with Muschinske, although he denied
saying anything about "21 yes votes." Yakich testified he
asked why Muschinske "got involved in the Union orga-
nizing and why he was in favor of having a Union."
Yakich did not deny telling Muschinske that there would
never be a union at Seville; indeed, he testified he may
have said something of the sort to employees. To the
extent their versions differ, I credit Muschinske.35
I believe that Walter Yakich's remarks, in the context
of Respondent's other unfair labor practices here, includ-
ing the discriminatory discharge of Don Wild just a few
days before this speech, and Walter Yakich's known and
expressed opposition to the Union, conveyed the impres-
sion that selection of a union would be futile. Although,
in his first speech, Yakich did make a fleeting reference
35 In its bnef, Respondent concedes that Yakich told Muschinske that
"there will never be a union at Seville Flexpack," but argues that this
was a "prediction" which post-dated the NLRB election and therefore
could not have affected the outcome. (Br. 33.) I must reject the Respond-
ent's defense. The issue here is not whether the statement affected the
outcome of the election, but whether it had a reasonable tendency to
coerce employees in the exercise of their Sec. 7 rights. Muschinske and
other employees are entitled to continue supporting and advocating a
union even after the election loss by the Union.
SEVILLE PLEXPACK CORP. 535
to the fact that he "would bargain in good faith," in his
second—the one in question here, he did not. And the
language he used was strikingly (excuse the pun) similar
to that proscribed by the Supreme Court in NLRB v.
Gissel Packing Co., 395 U.S. 575, 619 (1969). Thus, there,
as here, the employer "had no support for its basic as-
sumption that the union, which had not even presented
any demands, would have to strike to be heard." (Ibid.)
Yakich's statement that Respondent would not agree to
any of the Union's demands—even before any were
made—and that the Union would either have to agree to
Respondent's offer or strike, amounted to a statement
that Respondent's intransigence—not economic necessity
or the give-and-take of negotiations—would render it
useless to support a union. See E. L du Pont & Co., 263
NLRB 159, 165-166 (1982).
That Walter Yakich's remarks were intended to im-
press on employees the futility of union representation is
confirmed by Jim Yaldch's postelection comments to
Muschinske. He denigrated the unsuccessful union effort
and baldly stated that there would never be a union at
Seville. He did not bother embroidering that statement
with a discussion of economic necessity or any other
seemingly defensible explanation, such as the desire of
employees. In these circumstances, both statements could
reasonably be viewed as suggesting the futility of union
representation because of Respondent's intransigence.
Such statements are considered coercive. See Peabody
Coal Co. v. NLRB, 725 F.2d 357, 364 (6th Cir. 1984);
Neo-Life Co., 273 NLRB 72 (1984).
Prior to the election, employee David Zimmerman,
who had been off work since April 1985 because of a
work-related injury, spoke to James Yakich in the latter's
office about returning to work and having him sign a
loan document. Yakich brought up the subject of the
election. In a joking fashion, Yakich said if he wanted to
vote for the Union he should stay home, but if he
wanted to vote against the Union, he should come in.
Zimmerman did not respond to James Yakich's remark.
During the campaign, Zimmerman had attended union
meetings and also was called into the plant by Jim
Yakich to attend Walter Yakich's antiunion speeches.
Zimmerman voted in the election and discussed Yakich's
remarks about staying home with other employees. Al-
though, at one point, Zimmerman answered a leading
question from Respondent's counsel by stating that he
did not take Yakich's remarks seriously, he also acknowl-
edged that supporting the Union would "probably" work
to his disadvantage and that he did not "entirely dis-
count" Yakich's statement or consider it "frivolous."
Zimmerman's uncontradicted testimony establishes a
violation. The standard for determining whether a viola-
tion of Section 8(a)(1) has occurred is an objective—not
a subjective—standard: Does the language or conduct
have the tendency to coerce? See cases cited above at
48-49.
Under this standard, Yakich's statement was coercive.
See Link Mfg. Co., 281 NLRB 294 (1986). The statement
was made by a high management official in the locus of
authority—his office. One of the reasons for Zimmer-
man's being in the office was to secure his employer's
approval for a loan document. Zimmerman had been
wooed by Respondent and asked to come in to the plant
to hear antiunion speeches. He had no doubt that man-
agement would look with disfavor on his support of the
Union. And he repeated the remarks to other employees.
In these circumstances, and in view of Respondent's
other unfair labor practices, I -believe that Yakich's re-
marks, although delivered in a joking manner, made a se-
rious point and had an unlawful tendency to coerce. See
Mastercraft Leather Mfg. Co., 249 NLRB 483, 485 (1980).
3. Discrimination on the safety committee
The complaint also alleges that Respondent discrimina-
torily denied union adherents the opportunity to partici-
pate on the safety committee. The facts are as follows:
After initially fending off employee requests for the for-
mation of a safety committee, the Respondent agreed to
the employees' request that a safety committee be
formed. 36 On 22 June 1985 Jim Yakich wrote and posted
a notice inviting all interested employees to the first
meeting on 2 July at 4 p.m. The meeting took place.
Five people attended, including employees Ehlers, Lan-
gowski, and Iwanski, all members of the union organiz-
ing committee. The second meeting was held, after a
similar notice to all employees, on 6 August at 4 p.m. At
this meeting, Chris Guzikowski was elected chairman
and Mark Iwanski was elected secretary. Jim Yakich, Al
Zalim, and Dave Durkee also attended the meeting.
Yaldch was on vacation at this time, but came into the
plant to attend the meeting. A third meeting was sched-
uled—again pursuant to a posted notice—for 3 Septem-
ber 1985 at 4 p.m. Only Chris Guzikowski showed up for
the meeting, so it was canceled.
In support of this allegation, the General Counsel ap-
parently relies on testimony of John Langowski. He tes-
tified that he was told by Supervisor Ron Milke that the
August safety meeting was canceled because Jim lie akich
was on vacation. According to Langowski, Milke told
him, "as far as he knew" Respondent was not going to
permit employees on the union organizing committee to
be involved on the safety committee. Milke denied
making the latter statement. Testimony from Milke and
John Yakich demonstrates that Langowski was given er-
roneous instructions because of a misunderstanding about
whether Jim Yakich would attend the safety committee
meeting. Even assuming Milke made the statement attrib-
uted to him, the statement carried an ambiguous cast. On
this point, I do not believe Milke spoke with the author-
ity of management; he was simply stating an opinion that
was not based on fact. Nor do I believe Langowski rea-
sonably believed Milke's statement was authoritative.
The next day, according to Langowski, Milke told him
that he was wrong and Langowski could have attended
the meeting. In fact, Mark Iwanski, another union orga-
nizing committee member, attended the 6 August meet-
ing and was elected secretary. The evidence thus fails to
show that Langowski, or anyone else, was prevented
36 There is no allegation in the complaint that the formation of the
committee was an unlawful reaction to the election petition although the
tuning is strongly suggestive of a connection.
536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
from participating on the safety committee because of
their union activities.
The General Counsel does not press the 8(a)(1) allega-
tion in her brief, but does apparently rely on the incident
as bearing on Respondent's animus towards the union or-
ganizing committee, and Langowski in particular. In
view of my assessment of the evidence and its ambiguous
character, I will dismiss the complaint allegation con-
cerning the denial of participation in the safety commit-
tee and I will not consider the episode as evidence of
union animus.
4. Freedom day
By letter dated 7 August 1985, Walker Yakich ex-
pressed his appreciation to the employees for rejecting
the Union 5 days before. He ended the letter as follows:
I also want to take this opportunity to announce to
each of you the addition of paid holiday number 12
to our list of employee benefits. Each year, the paid
holiday will be on the Friday that is closest to
August 2nd. This will give all of the employees a
three day weekend in early August. This paid holi-
day will be known as FREEDOM DAY. Freedom
from all the friction, threats and violence that come
with a union.
Respondent granted a benefit to employees solely be-
cause a majority of them had, several days before, voted
against union representation. No nondiscriminatory
reason was offered by Respondent for its action. Indeed,
Respondent made clear that the name of the holiday—
FREEDOM DAY—referred to freedom from the Union,
a constant reminder to the employees of the reason for
the benefit. Such conduct clearly conveys to the employ-
ees that benefits can and will flow to them if they contin-
ue to reject a union. See NLRB v. Exchange Parts Co.,
375 U.S. 405 (1964).
The Respondent contends that the grant of the holiday
was not unlawful because it took place after the election.
This contention is without merit. Whether or not an
election is pending, the grant of a benefit explicitly for
rejecting a union tells employees that avoidance of union
activity in the future will be rewarded. Employees are
entitled to continue to engage in union activities after a
union loses an election and they may file a new petition
for election after 1 year. An employer may not grant
benefits to inhibit such activity.
It is true, as Respondent points out, that some cases
have held that the grant of benefits within the period be-
tween an election and the date when objections are to be
filed is unlawful because the implication is that the bene-
fits are granted for union reasons. See, e.g., F. W Wool-
worth Co., 188 NLRB 941, 949 (1971). In those cases the
implication that the benefit was granted for union rea-
sons follows because of the pendency of the election.
Here, there is no need for implication or inference. The
benefit was granted explicitly for union reasons. In any
event, in this case, as the General Counsel points out, the
Union had until 9 August to file objections to the 2
August election. The Board's rules provide that objec-
tions may be filed within 5 days of an election, and since
a weekend intervened, the Union had an additional 2
days to file. See Sections 102.69 and 102.114 of the
Board's Rules and Regulations. Because the benefit was
granted during a period when objections to the election
still could be filed, the violation is established even under
the Respondent's view of the case.37
5. Threats against Iwanski
Sometime during the week of 12 August, following
Jim Yakich's return from vacation, Iwanski spoke with
Yakich in the latter's office about the only written warn-
ing he had ever received shortly before the election. He
had earlier been told by Yakich that he could not speak
to Iwanski about the warning until after the election. In
the postelection meeting, Iwanski protested his receipt of
the warning. Yakich sympathized with Iwanski. Yaldch
testified that he told Iwanski to "forget about the [warn-
ing] letter. Yakich then changed the subject. He said
now that the election was over, he could talk more
freely about the Union. He asked why Iwanski became
involved with the Union. lwanski referred to Respond-
ent's failure to adequately resolve safety issues. Yakich
also mentioned that some employees said that he was
"harping about job security at Union meetings." Iwanski
replied, "[W]hat do you expect when I get a letter
threatening my termination?" Yakich also questioned
Iwanski's role as an election observer for the Union.
Iwanski revealed that he simply substituted as observer
for Mjelde. Yakich also made the statement that the plate
mounting department was infested with union supporters.
Yakich said that they "had got the number one man"
and "it looked like" Iwanski was the "number two man."
He said that Iwanski had put himself in a "shit hole" and
it would be a long time before he worked his "way out
of it."
The above is based primarily on the credited testimony
of Iwanski who impressed me as an honest witness
whose testimony survived vigorous cross-examination.
Yakich confirmed that he met with Iwanski about his
warning letter after having refused to talk about it before
the election. He testified, however, that he changed the
subject and talked about rebuilding the plate' mounting
department, not about Iwanski's union activities. Accord-
ing to Yakich, he suggested that Iwanski, as his most ex-
perienced plate mounter, help rebuild the plate mounting
department by transferring to the second shift and start-
ing to train additional people. According to Yaldch,
Iwanski agreed and said it was a "good idea." I do not
credit Yakich's testimony. It is inconceivable to me that
Iwanski would have voluntarily agreed to transfer to the
second shift or that he thought it was a good idea. The
first shift was considered the most desirable shift.38
37 Respondent's further contention that this benefit is no different from
any increases in benefits, "which frequently occur after an employer has
been prevented from making any changes in wages or benefits during the
pre-election period" (Br. 94), is specious. Here there was no business
reason for conferring benefits; the holiday had not been scheduled or
planned previously to the union campaign nor, was it delayed because of
possible mterference with employee choice The only reason expressed
for the benefit was to reward rejection of the 'Union.
38 Yakich admitted that employees frequently asked him to work the
first shift, which he described as the "prenuum shift"
SEVILLE FLEXPACK CORP. 537
Moreover, Yakich's testimony concerning whether he
wanted Iwanski to remain employed after the election
was peppered with inconsistencies and ambiguity. His
testimony that he valued Iwanski and did not want him
to leave does not mesh with other testimony indicating
that he made no effort to keep Iwanski or to keep him
happy. For example, when Respondent wanted to keep
an employee—such as Muschinske—there is evidence
that it explicitly said as much to the employee. Finally, I
thought Yakich generally was not an impressive or a re-
liable witness. Thus, I credit Ivvanski's version of their
postelection conversation.
The General Counsel alleges that Yakich's remarks
threatened more onerous working conditions. I agree.
Yakich indicated that Wild had been discharged because
he was the leading union adherent, and that Iwanski was
"number two," implying the same fate for Iwanski. The
statement was made after Yakich said he was surprised
that Iwanski served as the Union's election observer.
Going beyond implication, Yakich also threatened that
Iwanski had put himself in a "shit hole" and it would be
a long time before he worked his way out of it. This
again was made in the context of statements indicating
Yakich's displeasure with Iwanski's union activities. Such
statements are clearly unlawful.
F. Discriminatory Change in Policy Regarding
Quality-Related Warnings
The General Counsel also alleges that, after the elec-
tion, Respondent instituted a new discriminatorily moti-
vated disciplinary system, issued unwarranted and un-
precedented quality-related warnings to the remaining
union organizing committee members, and forced four of
the remaining five union organizing committee members
to quit, thereby constructively discharging them for dis-
criminatory reasons. Respondent contends that the new
warning system was prompted by customer complaints
about quality and that the organizing committee mem-
bers quit without regard to any discrimination on the
part of Respondent.
Respondent conceded, through the testimony of Jim
Yakich, that its policy regarding quality related problems
changed on 30 August 1985 from an oral warning system
to a written warning system. Jim Yaldch further de-
scribed the change as follows:
We very seldom got to the written warning stage
before August 30, 1985. There were a number of
reasons for it, but our waste was escalating. I decid-
ed that I had to take action to crack down and get
this thing under control. So I changed my way of
thinking, and I had the—I wanted any waste being
written up, and I also got my supervisors more in-
volved at that point.
Documentary evidence confirms this change in policy.
From 1 January through 30 September 1985, by which
time 4 of the 6 organizing committee members had been
fired or quit, Respondent issued 10 quality-related writ-
ten warnings to employees. Only one was issued before
the beginning of the election campaign. Of the nine
issued after the organizing campaign began, all but one
were issued to organizing committee members. The only
other written warning issued during this period went to
Joel Spieth who was issued a warning for high waste on
the same job, which resulted in a warning to Dave
Ehlers, a union organizing committee member. I have
analyzed the eight warnings issued to organizing com-
mittee members individually and found them to have
been issued for discriminatory reasons.
The new system was not announced or conveyed to
the employees. The only apparent announcement to su-
pervisors was a memorandum to Supervisors Ron Milke
and Mike Harris dated 4 September 1985, in which
Yakich stated that if a slitter operator came up with poor
quality samples, he was to document "how much materi-
al was involved in the defect" and to "sign and date the
Roll Report" and to submit it to the supervisors and in
turn to Yaldch.39
Respondent contends that its "crackdown"--the term
used by Jim and Walter Yakich—occurred because of
customer complaints, particularly those from Owens-Illi-
nois, Respondent's largest customer. On 6 August 1985
Walter Yakich wrote a memo to Roger Lewicki, a vice
president in charge of production control, with a copy
designated for Respondent's bulletin board, notifying
Lewicki that he was investigating quality complaints re-
cently lodged by Owens-Illinois. He attached a letter he
had received from an official of Owens-Minois dated 29
July 1985, stating, inter alia, that he had "mentioned to
you in the past that your quality has gone downhill" and
asking him to visit the Owens-Illinois Birmingham plant
to meet with officials there to resolve the problem. The
quality problems continued thereafter as evidenced by
complaint letters from Owens-Illinois as well as other
customers. It is conceded both in the documents and in
Walter Yakich's testimony that such complaints occurred
before this period. But it is impossible to determine
whether the complaints in the targeted period were sig-
nificantly greater than in other periods. Other documen-
tary evidence—and indeed much oral testimony—indi-
cates that quality problems on the presses occurred often
both before and after the union campaign. Indeed, docu-
mentary evidence submitted by Respondent demonstrates
that Respondent has exhorted employees to cut down on
waste since at least 1981. Jim Yakich testified that cus-
tomer complaints were posted on the employee bulletin
boards "at various times."
Jim Yakich supported his father's testimony that the
crackdown was prompted in part by customer com-
plaints. He added, however, that another reason was that
the union campaign caused Respondent to document
quality-related warnings because Respondent needed to
be "consistent" after the onset of the Union. The follow-
ing is Yakich's testimony on cross-examination:
Q. Now, when is it that you implemented this
new discipline policy?
39 Barns did not testify ,and, although Mince did, his testimony about
this subject was quite confusing. At first he denied receiving any direc-
tive about a change in policy, but later, on cross-examination, he admit-
ted to receiving the above memo.
538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. I believe it was the end of August, or early
September, when I sent the memo to my supervi-
sors saying that we were going to put more things
in writing. And I believe, you know, it stated how I
wanted it done.
Q. And you decided to have more documenta-
tion—are those your words?
A. Put more things in writing, yes.
Q. And how is it that that came about?
A. Well, it came about because of nothing being
in writing, and because of this union organization
drive. You know, we saw some weaknesses in the
way we had been doing things since '79. And we
felt that, in order for these merit reviews to work
correctly, and in order for our performance bonuses
to work correctly, that things were going to have
to be more in black and white. Otherwise it is just
hearsay, I guess, when you are talking to an indi-
vidual about their performance.
Q. And if you were going to get rid of people,
you were told to build a record against them, is that
true?
A. Well, I wasn't told that. I realized that build-
ing a record against somebody is, you know, some-
thing that you could do, especially if you don't
want to pay him unemployment compensation.
Q, Well, those unemployment compensation con-
cerns, I take it, were ongoing. I take it that problem
wasn't triggered in July or August of 1985, was it?
A. No.
Q. Your documentation was triggered by the
union's campaign, wasn't it?
A. Yes.
Q. And you were told if you were going to dis-
charge people, you ought better have a record
against them, is that true?
A. I was told that if we were going to discharge
people for quality, yes, it should be in writing, and
you should have a record.
Q. And were you also told that you had to act
consistently? If you were going to give someone a
written warning, you had to give all the involved
parties the same kind of treatment?
A. Well, yes, I was told to be fair with every-
body; that you should act consistently.
Q. You did that, is that what you are saying?
A. I tried to do it, yes.
Q. And when you gave warnings to—let's see if I
have this right. When you gave warnings to Mr.
Ehlers and Mr. Spieth, that was part of that, wasn't
it?
A. Yes.
Q. You couldn't very well give Mr. Ehlers a
warning if you didn't give one to Mr. Spieth, right?
A. That is true.
The General Counsel argues that this testimony amounts
to an admission that Respondent's new warning system
was implemented because of the union campaign and be-
cause written warnings to union adherents would be sus-
pect unless there was an appearance that nonunion em-
ployees were treated the same. I agree.
In view of Yakich's testimony, set forth above, I
cannot accept Respondent's contention that it would
have implemented its new policy for business reasons
even in the absence of the union campaign. In addition,
Respondent's other reasons for instituting the new policy
do not withstand scrutiny. Walter Yakich testified, con-
trary to his son, that he decided he would institute the
new policy in May or June 1985. There were no written
warnings, however, issued in May and June 1985. More-
over, customer complaints were ongoing. Respondent
has not shown persuasively either that the customer
complaints were significantly different in the period im-
mediately preceding the implementation of new policy or
that its concern about waste was any different from at
other times since 1981. Nor was it shown why a new
written warning system was needed at this time. If the
Respondent 'really wanted its new warning system to be
effective in cutting down mistakes, it seems natural that
it would have announced that policy to employees. It did
not. It did, of course, announce to employees that it was
receiving many customer complaints when Walter Ya-
kich's 6 August memo was posted on the employee bul-
letin board. These exhortations about waste and custom-
er complaints, however, were no different from similar
ones issued from time to time since 1981.
I note also that the new written warning system did
not affect a preexisting quality control procedure that
clearly was addressed to correcting mistakes. Thus, both
before and after institution of the new warning system,
Respondent had in place a procedure that included a
monthly review of an employee's waste reports by his
supervisor. The supervisor might make a notation on the
report as to the degree of waste or talk to the employee
about his waste. The new warning system was something
different from this review, however, and required the is-
suance of written warnings for particular jobs, not as a
result of a review, on a regular basis, of monthly waste
reports.
In its brief, Respondent concedes that customer com-
plaints predated the election. But Respondent argues that
although the new warning system could have been im-
plemented prior to the election, it was implemented
thereafter because Respondent did not want to change
working conditions during the pendency of the election.
(Br. 108.) There is no credible evidence, however, that
Respondent considered changing its warning system
during the election campaign or at any time before it was
actually implemented on 30 August. Walter Yakich's tes-
timony that such a decision was made in May or June
1985 is contrary to his son Jim's testimony and is unsup-
ported by anything else in this record. In these circum-
stances, Respondent has failed to rebut the General
Counsel's evidence that the new policy was implemented
for discriminatory reasons.
The instant case thus presents the same type of dis-
crimination as was condemned in Electri-Flex Co. v.
NLRB, 570 F.2d 1327, 1334-1335 (7th Cir. 1978), cert.
denied 439 U.S. 911 (1978). As the court stated in en-
forcing the Board's order in that case:
The company's explanation was that it was neces-
sary to improve its system and assure more accurate
SEVILLE FLEXPACK CORP. 539
record keeping, since it expected "new experiences,
in terms of grievances, arbitrations and perhaps
even NLRB charges." As the Board noted, inherent
in this explanation is the idea that it was the pres-
ence of the union which made the system necessary.
Moreover, as the Seventh Circuit observed in Electri-
Flex, it is not necessary to analyze each of the warnings
to sustain the violation and it matters not that some of
the warnings may have been warranted. For it is "moti-
vation, not justification, which determines the existence
vet non of the discriminatory motive." Ibid. Here, as
there, "the system as a whole was implemented for a re-
taliatory purpose, and was being used as a way of harass-
ing and justifying dismissal of union sympathizers." Ibid.
The evidence in this case also shows that three union
organizing committee members—Iwanski, Mjelde, and
Ehlers—received specific warnings that were discrimina-
torily motivated. Although I shall discuss each warning
individually, I consider these warnings in light of Re-
spondent's change in policy implemented in late August
and in light of much documentary evidence that shows
that written warnings were not normally issued for mis-
takes or errors similar to those that resulted in written
warnings to these members of the union organizing com-
mittee. Moreover, documentary evidence, including
some dealing with monthly waste reports of particular
employees, shows that instances of waste and mistakes
similar to that in the warnings did not result in written
warnings. Nor, in other cases, were threats of termina-
tion included in the warnings as was the case in the
warnings of Iwanski, Ehlers, and Mjelde. Finally, I con-
sider the Respondent's hostility toward the union leaders
as exemplified particularly by the threat and discrimina-
torily motivated denial of a day off to Mjelde, the threat
of more onerous working conditions to Iwanski, and the
discriminatory discharge of Jack Wild, as well as the fact
that most of the written warnings in the relevant period
fell on the organizing committee members. This evidence
supports a prima facie showing that the warnings were
discriminatorily motivated.
On 30 July—just 3 days before the election—a written
warning was issued to Mark Iwanski Iwanski was an
outstanding employee, the premier and most experienced
plate mounter, whom Jim Yakich had hand picked, ac-
cording to his own testimony, to lead the effort to re-
build the plating department. Yakich conceded that
Iwanski was one of his "best" employees. His April 1985
evaluation, prepared by Jim Yakich before the election
campaign, stated that he "require[d] absolute minimum of
supervision" and was "almost always accurate." His
major strong point was listed as "accuracy." The warn-
ing, the first and only warning ever issued to Iwanski,
was given for a minor infraction in circumstances that, in
the absence of the union campaign, would not have led
to a warning. Yakich refused to talk to Iwanski about the
warning until after the election and then, when he did,
he dismissed the warning itself and virtually admitted
that Respondent was retaliating against him because of
his union activities.
The warning itself was issued because two jobs were
out of register, meaning that the colors were not aligned
properly. The warning, which was handed to Iwanski by
Jim Yakich, stated, "[i]f these mistakes continue, it will
result in your termination." The first job was mounted
after Iwanski and his supervisor, Ron Milke, discussed it;
it was mounted quickly because of time pressures. The
job had to be pulled, but Milke did not warn Iwanski or
tell him at the time that he had done anything that
would justify a warning. Out-of-register mistakes are
common and Yakich himself testified that this incident
alone would not have justified a warning. Iwanski was
directed to mount the second job differently from in the
usual fashion again apparently because of time pressures.
Iwanski testified that he knew that "that was not the best
way to do the job." The job was, however, visually
checked and approved by Jim Yakich before it began.
Nevertheless this job too was out of register. No supervi-
sor talked to Iwansld about these alleged mistakes at the
time they were made.
It is inconceivable that, under ordinary circumstances,
Iwanski would have been issued a written warning for
these two out-of-register jobs that had been undeniably
approved beforehand by supervisors. Milke never testi-
fied about either job and Yakich did not dispute that he
had visually approved the second job. Moreover, Yakich
refused to talk to Iwanski about the warning before the
election and later told him to forget about it. There was
no substantive discussion of what Iwanslci did wrong and
certainly no justification for a threat of discharge.
Indeed, Jim Yakich testified that, even after this warning,
he was counting on Iwanski to rebuild his plate-mount-
ing department. Thus, Respondent's effort at trial and in
brief to magnify the warning is at odds with its contem-
poraneous treatment of the warning and inconsistent
with Jim Yakich's testimony. Furthermore, Yakich ad-
mitted that written warnings were not ordinarily issued
for quality problems before the end of August 1985. He
also conceded that Iwanski was Respondent's best plate
mounter who made few mistakes. Finally, there was
much testimony—most from Jim Yakich himself—that
other out-of-register and other plate mounting problems
were not met with written warnings or any discipline at
all." Thus Respondent has fallen far short of a showing
that the warning would have been issued even in the ab-
sence of Iwanski's union activities.
Beginning on 30 August and through 25 September,
Randy Mjelde, who had recently been promoted to a
pressman's position, received six written warnings and a
1-day suspension for mistakes on his press. All the warn-
ings were pursuant to the new unlawful disciplinary
system since written warnings would not have previous-
ly been issued for such mistakes. Specifically focusing on
the Mjelde warnings, I find that they would not have
been issued but for Mjelde's union activities. Except for
the last warning, Yakich did not talk to Mjelde to seek
his explanation for the mistakes he allegedly made before
issuing him the written warnings. Nor was Mjelde con-
40 Respondent argues that some—but not all—of these problems in-
volved rather new - employees for whom discipline would have lowered
morale. I fail to see how that would justify issuing a written warning to
Iwanski In any event, Respondent apparently did not follow this practice
when issuing warnings to Mjelde, a relatively new pressman.
540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fronted or consulted at the time of the mistakes by his
supervisor. Indeed, Mike Harris, Mjelde's supervisor,
who was still employed by Respondent at the time of the
hearing, did not testify. 41 This is significant because
Mjelde's uncontradicted testimony indicates that, on at
least one of these jobs, he spoke with Harris about the
problem and attempted to correct it. I infer from these
facts, as well as the documentary evidence concerning
waste that was not accompanied by written warnings,
that Mjelde's mistakes were similar to those of other
pressmen at Respondent's facility that would not ordinar-
ily have resulted in written warnings.
Thus, Respondent relied on an after the fact analysis
of documents reflecting waste on jobs to issue warnings
to Mjelde. Although other warnings were apparently
issued on the same basis, the evidence shows that other
instances of high waste went without warnings of any
kind—and certainly not written warnings—being issued.
The Respondent asserted that it considered waste of 5 or
6 percent on a job too high. I have no doubt that it tried
to keep waste at this level, but the record shows that it
did not issue a written warning for all waste over that
figure. At best, Respondent's warning policy was incon-
sistent. Thus, on 30 August, Mjelde received a warn-
ing—Mjelde's first since becoming a pressman less than 2
months before—for waste of 17.2 percent. Al Zalim,
however, a more experienced pressman who was later
promoted to supervisor, had 35.5 percent waste on a job
in August 1985 and no warning issued. Moreover, even
though Jim Yakich testified that he generally gave more
leeway to employees in a new position, he warned
Mjelde that he would be "replaced" if mistakes contin-
ued. Employee Joel Spieth, who had 62 percent waste
on a job at about the same time, received a much milder
written warning with no threat of replacement. Indeed,
that warning indicates that Spieth's explanation was
sought before the warning was issued, unlike in Mjelde's
case. 42 Thus Respondent has failed to show that it
would have issued the 30 August warning in the absence
of Mjelde's union activities.
Mjelde's other warnings are similarly indistinguishable
from other incidents of waste that did not trigger warn-
ings. Thus, on 4 September, Mjelde had 13.8-percent
waste on a job and was again threatened with termina-
tion. At about the same time, in September 1985, em-
ployee Paul Chybowsld had a job with 21.6-percent
waste and was not issued a written warning. Another
warning given to Mjelde the same day involved a mis-
take that was only partially attributable to him. The total
waste on the job, part of which was run by another op-
erator, was 8.7 percent. It is impossible to determine
what percentage of waste was attributable to Mjelde. In
any event, waste of greater amounts during this period
41 I reject Jim Yaluch's hearsay testimony that "he believe[d] that
Mjelde's supervisor spoke to him about these matters." The testimony is
vague in any event and does not specify when the supervisor may have
spoken to Mjelde. It is uncontradicted that Harris did present Mjelde
with some of the warnings. But this was after they had already been
written.
42 Spieth's warning was issued m connection with a job for which he
and Ehlers were thought responsible for high waste. I discuss this mci-
dent in more detail later in connection with Ehlers' warning.
went by without a written warning being issued. Indeed,
documentary evidence shows that overall plant waste for
September 1985 was 13.6 percent. On 1 day in that
month overall plant waste for soda label jobs was 23.1
percent; on 2 days, overall plant waste for nonsoda label
jobs was 21.1 and 28.2 percent respectively.
On 5 September Mjelde received another warning for
a job that ran partially on his shift. Another pressman,
however, Paul Chybowski, ran most of this job. The
total waste was 13.8 percent, again a figure that was high
but not totally attributable to Mjelde. Indeed, Chybowski
received only a verbal warning for his part in the job
and the written notation for his verbal warning indicates
that, unlike Mjelde, he was asked for his explanation of
the problem.
Mjelde's 6 September warning indicates that the job he
worked on had 64.2-percent waste, a very high figure.
Again no explanation was sought before the warning was
issued. Mjelde's uncontradicted testimony shows that the
job was set up before he reported for work. The job was
approved by the supervisor of the prior shift. Mjelde ran
the job for some time before he noticed the problem,
faint adhesive lines on a label. Mjelde stopped the press
and corrected the problem. This warning is the strongest
one, from Respondent's standpoint, for the proposition
that it would have been issued in any event. However,
Respondent makes it difficult to separate this warning
from the others. In view of Respondent's other unlawful-
ly issued, warnings to Mjelde and the failure to seek
Mjelde's explanation before issuance of the warning, I
find that Respondent's issuance of this warning was part
of the pattern and would not have occurred but for
Mjelde's union activities."
Mjelde's final warning on 25 September was for a
high-waste job caused by sticky edges. However, the job
was run by three different press operators and Yakich
admitted that no specific amount of waste could be at-
tributed to Mjelde as opposed to the other operators.
Indeed, Respondent, at trial, initially prepared a docu-
ment erroneously attributing greater waste to Mjelde
than the other employees, but then recalculated the
amount, dividing the waste equally among the three.
However, neither of the other operators received either
a written or verbal warning for their role in the failed
job. Finally, to the extent that Mjelde was responsible
for any sticky edges, the evidence shows that his ma-
chine, which was of course also used by other employees
and on other shifts, was prone to cause sticky edges.
Other problems of this sort occurred but no written
warnings were issued for the problems. Jim Yakich testi-
fied that Respondent had a problem with sticky edges
throughout September 1985; documentary evidence con-
firms the problem I find that Mjelde's warning and re-
sulting suspension would not have occurred but for his
union activities.
Ehlers, who became a pressman in April 1985, re-
ceived a written warning on 23 August 1985 for a job
43 Even if this single warning would have been issued to Mjelde m the
absence of his union activities, it would not change my findings that the
new warnmg system was discrimmatonly implemented and that Respond-
ent was pressurmg Mjelde to quit.
SEVILLE FLEXPACK CORP. 541
that had 62-percent waste due to ink buildup. He was
threatened with termination if he could not produce
quality at "the lowest possible waste." This warning was
issued prior to Respondent's alleged "crackdown" at a
time when written warnings were not prevalent. More-
over, as I have indicated, written warnings were not
issued for all high waste jobs. In any event, this was the
only written warning Ehlers ever received, and Jim
Yakich could not recall Ehlers ever receiving any verbal
warnings.
Ehlers' uncontradicted explanation for this warning is
as follows: He started the job just before the end of his
shift. He tokl the pressman on the next shift, Joel Spieth,
that he was having trouble with ink buildup and to
watch carefully for it. He noted the problem on the roll
analysis, a document on which employees note job prob-
lems. It is difficult to see what Ehlers could have done
any differently to resolve the problem. In any event,
Spieth apparently completed the job without immediate-
ly resolving the problem and he, too, received a written
warning. His warning, however, was milder in tone and
did not threaten discharge. Thus, Ehlers was treated dif-
ferently from the other operator who shared responsibil-
ity for the high waste on this job. Indeed, it appears
from the documentary evidence that most of the "junk"
on this job was attributable to Spieth. Ehlers ran 5000
feet of material. Spieth ran 10,000 feet. In these circum-
stances, I do not believe that Respondent has shown that
Ehlers would have received a written warning for this
job in the absence of his union activities.
In summary, after having considered all the evidence
concerning the written warnings issued pursuant to the
new quality-related warning system, I find that the new
warning system was implemented for discriminatory rea-
sons, more precisely, to build a record against union or-
ganizing committee members in order to force them to
quit. Jim Yakich's testimony is very revealing on this
latter point. He testified that some mistakes were the
result of inexperience but:
if you really start disciplining somebody that has
a lack of experience, what you will really do is de-
stroy his morale. And that could possibly, you
know, cause the individual to leave the company.
Thus, although ordinarily it is unnecessary to analyze
each individual warning to sustain a violation of this sort,
here I have gone further and found a pattern of discrimi-
nation as exemplified by specific written warnings issued
to members of the organizing committee from 30 July
through 30 September 1985. See Hedaya Bros., 277
NLRB 309 (1985)."
44 I reject R. Exh. 50, winch purports to be the cost of lwanski's two
mistakes for which he received a warning. The document, which was
prepared only for trial, is based on alleged time lost and production fig-
ures of $250 per hour, which Respondent apparently uses to cost jobs for
customers. These figures were not prepared in connection with the warn-
ing and were not prepared for any other employee mistakes, many of
which did not result m warnings. Even if the document was admissible it
is entitled to very little weight. These costs are miniscule in comparison
with the alleged costs due to inexperienced plate mounters, a problem
that Respondent caused itself to a great degree by firing Don Wild and
forcing the resignation of Iwanski. More importantly, Jim Yakich's own
G. The Constructive Discharges of lwanski, Mjelde,
Ehlers, and Langowski
Mark Iwansld, who had been a plate mounter for Re-
spondent since September 1982, applied for a job at Seal-
craft, another company in the printing industry, on 17
August. He also applied for jobs at other companies. He
accepted employment at Sealcraft on 26 August. He took
sick Leave on 23 September and started employment at
Sealcraft that week. On 30 September he advised Jim
Yakich that he was quitting. Iwanski told Yakich that he
decided to quit because he did not want to get into any
"hassles" like the ones Jack Wild had. Yaldch agreed be-
cause, as he put it, he could not "guarantee. . . you any
benefits or raises."
Mjelde, who was described by Supervisor Ron Milke
as a "very good" pressman, began working for Respond-
ent in March 1982, After he began receiving a series of
written warnings from Respondent, he testified, "I could
see it was only a matter of time before I was going to be
axed out the door." He applied at Sealcraft on 19 Sep-
tember. He was offered employment on 24 September
but did not accept the offer until he received his last
warning and suspension from Respondent on 30 Septem-
ber. After he received his suspension, Mjelde told Jim
Yaldch that he would "make it easy for him"; he would
quit. Yakich replied, "Well, I am sorry it had to happen
this way."
Ehlers was employed at Respondent since July 1982.
He applied for work at Sealeraft on 17 September. He
received a job offer from Sealcraft on 25 September. On
30 September, the same day that Iwansld and Mjelde
quit, Ehlers announced his resignation to Jim Yakich in
the latter's office. Supervisor Mike Harris was also
present. Yakich said he had heard that Ehlers inter-
viewed at Sealcraft and told him, "you know your future
was over here anyway." Ehlers replied, "Well I stuck
my neck out and lost." Ehlers also said he did not want
to "end up with the same hassle that Don Wild is going
through now." Yakich said he understood, Then, as
Ehlers was leaving, Yakich said, "Why don't you see if
you can get a job for John Langowski down there too?"
Ehlers went back to work because he had given Yakich
a week's notice. Shortly thereafter—about 1-1/2 hours
later—he was called into Yakich's office and told he was
terminated.
John Langowski, who had been employed since Sep-
tember 1982, quit his employment with Respondent in
October 1985. He applied at Sealcraft on 3 October and
began working there on 21 October. He had spoken with
other organizing committee members and was aware of
the warnings issued to them. He also learned about Ya-
kich's statement to Ehlers about finding a job for him at
testimony refutes the value of this document since he admittedly told
/wanski to forget about his warning.
Similarly unreliable is R Exh. 51, a purported cost summary of
Mjelde's mistakes. Again, this document was prepared foi trial, and no
similar document was prepared for similar mistakes of other pressmen,
many of which went without warnings being issued. Even if this docu-
ment was admissible it would be entitled to very little weight Respond-
ent made the argument that it needed Mjekle and did not want hiin to
leave. This argument is inconsistent with the thrust and intent of the ex-
hibit.
542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sealcraft. He applied at Sealcraft 3 days after Yakich's
statement. Two or 3 weeks earlier he had applied for
employment at other firms.
Respondent correctly points out that Ehlers denied
telling Langowski about Yakich's statement whereas
Langowski said that he did. I believe, however, that
Ehlers was mistaken. Langowski said he was first told of
Yakich's remarks by another employee and that he there-
after spoke to Ehlers, who confirmed the report. It is
perfectly plausible that Langowski learned of the remark
from someone. The organizing committee members
spoke together often and four of them wound up at Seal-
craft. Moreover, Yakich admitted making the statement;
He obviously wanted Langowski to quit. That this was
common knowledge is confirmed by Zalim's suggestion,.
just a few days later, in the presence of Langowski and
Supervisor Ron Milke, that Langowski should look for
employment elsewhere.45
As detailed above, Respondent discriminatorily imple-
mented a new disciplinary warning system after the elec-
tion. It also issued discriminatorily motivated written
warnings threatening discharge to three of the five re-
maining union organizing committee members. Those
warnings were calculated to drive the remaining organiz-
ing committee members from Respondent's employ. Re-
spondent unlawfully threatened Mjelde and Iwanski and
discriminatorily denied Mjelde time off. Moreover, Re,
spondent took Iwanski off his job of training employees,
tried to transfer him to the less desirable second shift,
and told him he could not count on further "benefits or
raises." When Ehlers announced his resignation, Yakich
told him he had no future with Respondent. The state-
ment was made in the context of a discussion about
Ehlers' union activities and about Jack Wild who was, of
course, discriminatorily discharged. These employees
were aware of the warnings being issued to organizing
committee members and spoke among themselves about
what management officials had told them. They conclud-
ed that their days at Respondent were numbered and
they all applied for work at Sealcraft. As Ehlers testified,
"we talked about what was happening to us, about the
letters we were receiving. And we all decided that we
better get out . . . . Sooner or later we figured they
were going to get rid of us, somewhere down the road."
Even one of Respondent's witnesses testified that
Iwanski, Mjelde, and Langowski expressed to him the
fear that they, were going to be fired because of their
union activities.
Even though Langowski was not subjected to dis-
criminatory warnings and threats, it is obvious that Re-
spondent's desire to have him quit was related to the fact
that he was on the union organizing committee. He
learned of Yakich's comments about Ehlers fmding a job
46 The General Counsel asserts that Zahm's remarks on this occasion
constituted an unlawful threat. The record, however, is unclear as to ex-
actly when in October Zalim was made a supervisor and whether he was
a supervisor when he made the statement. Zahm testified he was made a
supervisor on 7 October. Moreover, as I have found, he was not an agent
of Respondent before that date. I therefore will dismiss this allegation of
the complaint, which is, in any event, superfluous in view of the other
findings I have made. I shall also dismiss as superfluous alleged threats
emanating from Yakich during the resignation meetings of Ehlers,
Mjelde, and Iwanski.
for him and he could not have missed the implication
that Respondent's discriminatory conduct aimed at other
organizing committee members would eventually reach
him He specifically mentioned this to at least one em-
ployee. Thus, I find that the General Counsel has made a
strong showing that these employees were forced by dis-
criminatory conduct to quit their employment. They are
not required to wait while warnings continue to mount
and the axe actually falls. Here, as in Winer Motors, 265
NLRB 1457, 1469 (1982), the employees "felt compelled
to quit . . . before [their] record[s] [were] injured and
[they] would be unable to obtain gainful employment
elsewhere."4 6
Respondent's attempt to show that Iwanski left for
greener pastures without regard to its discriminatory
pressure is unavailing and unconvincing. Iwanski testified
that he left because of Respondent's adverse treatment of
him and he told several employees of his concern about
Respondent's treatment of him. He began looking for
work after his preelection warning and indeed applied
for a job at Sealcraft—which he eventually accepted—on
17 August, just 2 weeks after the election and after Jim
Yakich had said he was the next union adherent to go
and that he had put himself in a "shit hole." To the
extent that Respondent asserts that it did not want
Iwanski to leave because the plate mounting department
would be depleted of good people, Respondent has ad-
verted to a problem of its own making. It fired Wild and
forced Iwanski to quit, after threatening him with termi-
nation. As I have indicated, Jim Yakich's testimony
about wanting to keep Iwanski is inconsistent with his
actual treatment of Iwanski and the complete absence of
any effort, on his part, to keep Iwanski. Thus, I reject his
testimony about wanting to keep Iwanski, as well as
Mjelde, Ehlers, and Langowski, as completely unreliable.
Respondent points to the testimony of employee Burt
Tabora to argue that Iwanski stated to Tabora that he
was going to quit if the Union lost the election and that
this statement was made before the issuance of the warn-
ing letter to Iwanski. On cross-examination, however,
Tabora seemed confused about the time relationship of
certain of his assertions. In contrast to his previous testi-
mony, he conceded on cross-examination that Iwanski
sent out resumes after the election. I do not consider
Tabora to be a reliable witness on this point. No other
witness testified that Iwanski expressed an intention to
quit before his first warning. Moreover, even Tabora tes-
tified that Iwanski expressed the fear, after Wild's dis-
charge, that he would be fired, just like Wild, and that
he was being set up for a termination. Respondent also
46 Board law on constructive discharges requires that the General
Counsel prove two elements
First the burdens imposed upon the employee must cause, and be in-
tended to cause, a change in his workmg conditions so difficult or
unpleasant as to force him to resign. Second, it must be shown that
those burdens were imposed because of the employee's union activi-
ties.
Crystal Princeton Refining Co., 222 NLRB 1068, 1069 (1976). Accord:
K & S Circuits, 255 NLRB 1270 (1981); Algreco Sportswear Co., 271
NLRB 499, 500 (1984). In the instant case, the discriminatory warning
system whose impact, both generally and specifically, was felt by union
organizing comnuttee members, satisfies the requirements of Crystal
Princeton.
SEVILLE FLEXPACK CORP. 543
argues that Respondent did not tell prospective employ-
ers that he was being forced to quit and gave other rea-
sons for changing jobs. It is natural, however, that an ap-
plicant would not want to mention union-related prob-
lems as the reason for leaving his present employer. This
evidence in no way shows that Iwanski would have quit
Respondent's employ in the absence of Respondent's dis-
criminatory treatment of him and other union supporters.
Respondent's other efforts to show that Iwansld as
well as Ehlers, Mjelde, and Langowski left for reasons
unconnected With its discriminatory conduct also fail. Its
argument seems to be that these employees conspired to
quit in order to leave Respondent in a difficult position
by depleting its experienced work force. This argument
loses most of its appeal because Respondent never made
any effort to retain these employees. Moreover, the argu-
ment is inconsistent with Respondent's attempt to justify
its written warnings of Iwanski, Ehlers, and Mjelde, to-
gether with threats to discharge them. Respondent also
seems to argue that these employees quit because they
could make more money at Sealcraft than they did at
Respondent and the working conditions were better at
Sealcraft. Actually, only two of the four—Ehlers and
Mjelde—started at a higher rate than they made at Re-
spondent. It is hard to quantify other alleged benefits
such as the fact that Sealcraft, unlike Respondent, did
not require overtime and scheduled work so as to give
employeeg 3-day weekends. Sealcraft, however, unlike
Respondent, had no year-end bonus program. In any
event, I cannot disregard the testimony of the employees
themselves that they left because of Respondent's dis-
criminatory conduct toward union supporters. Even as-
suming that one of their reasons for leaving was better
wages and working conditions, Respondent has not
shown that these employees would have left in the ab-
sence of Respondent's discriminatory treatment of union
supporters which, after all, was a rather imposing work-
ing condition. Finally, Respondent argues that it retained
Muschinske, thereby showing that it did not discriminate
against, all organizing committee members. It is well set-
tled, however, that a charge of discrimination is not re-
butted by evidence that an employer did not ferret out
all of the union supporters. See NLRB v. Rain-Ware, 732
F.2d 1349, 1355 (7th Cir. 1984); and Link Mfg. Co., 281
NLRB 294 (1986).47
CONCLUSIONS OF LAW
1. By coercively interrogating employees about union
activities, requesting that employees wear "vote no" but-
tons provided by Respondent, creating the impression
that union activities were under surveillance, stating that
it would be futile to select a union to represent employ-
47 Respondent also argues that Langowski applied for other work
before Yakich mentioned that Ehlers should find him another job. Al-
though this is true, Langowslo was well aware of the discriminatory con-
duct addressed to other members of the organizing committee which pre-
dated his application._ Moreover, although Yaloch's statement about find-
ing a job for Langowski postdated this application, it fairly reflects Re-
spondent's preexistmg motivation. I find that this evidence fails to rebut
the overwhelming evidence that Langowski, like the others, was forced
to quit because of Respondent's discriminatory treatment of uruon orga-
nizing committee members.
ees, attempting to convince an employee not to partici-
pate in a (Labor Board election, threatening plant closure
or relocation and other reprisals against employees for
supporting a union, and granting benefits for rejecting a
union, Respondent violated Section 8(a)(1) of the Act.
2. By denying time off to employees, instituting a new
written warning system, and issuing written warnings to
employees for discriminatory reasons and to discourage
union activity, Respondent violated Section 8(a)(3) and
(1) of the Act.
3. By discharging employee Jack Wild and by forcing
the resignation of employees Mark Iwanski, Randy
Mjelde, Dave Ehlers, and John Langowski because of
their union activities and to discourage union activities,
Respondent violated Section 8(a)(3) and (1) of the Act.
4. The violations set forth above constitute unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
5. The Respondent has not otherwise violated the Act.
THE REMEDY
Having found that Respondent has violated the Act, I
shall recommend that Respondent be ordered to cease
and desist from engaging in the conduct found to be un-
lawful, and to post an appropriate notice. I shall also rec-
ommend that Respondent be ordered to offer reinstate-
ment to employees Jack Wild, Mark Iwanski, Randy
Mjelde, Dave Ehlers, and John Langowski, to remove'
from their records any notations or warnings found to
have been discriminatorily issued, and to make them
whole for any loss of wages or benefits they may have
suffered due to the unlawful and discriminatory conduct
directed towards them by Respondent in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), and
Florida Steel Corp., 231 NLRB 651 (1977).4 8
Regarding the discriminatory institution of a new writ-
ten warning or disciplinary system, I shall issue the
standard order in such cases. Thus Respondent will be
ordered to expunge all quality-related written warnings
issued to employees by Respondent after 30 August 1985.
The Respondent will be entitled to show in the compli-
ance stage of this proceeding that any written warn-
ings—except those specifically found to have been un-
lawfully motivated—issued under the new system, would
have been imposed under the more lenient disciplinary
system maintained by Respondent prior to 30 August
1985. See Ro-Lab Rubber Co., 279 NLRB 386 (1986),"
The unlawful grant of a holiday—Freedom Day--in
honor of the defeat of the Union presents a unique reme-
dial problem. Ordinarily the Board declines to order the
rescission of benefits even though they are unlawfully
granted. To force rescission in this case would put the
Board in the position of taking benefits away from em-
ployees. To do nothing, however, would leave the viola-
tion unremedied. Respondent would be able to empha-
48 See generally Isis Plumbing Co.., 138 NLRB 716 (1962).
48 As I have indicated, before the new system was initiated, Respond-
ent issued verbal warnmgs to employees and also utilized monthly re-
views of employee waste reports. In addition, Respondent has an annual
employee evaluation program. These programs will, of course, continue
unaffected by this remedy.
544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
size that it is the source of all benefits that are conferred
when employees reject unionization. The name of the
holiday, its origin, and relationship to the union election
would be a constant reminder to employees that reject-
ing a union results in benefits with the implication that
the benefit would remain as long as employees continued
to reject a union. The discriminatory connotation of
keeping the paid holiday must be removed. Respondent
clearly granted a 12th holiday to employees in apparent
recognition that it could afford to grant such a benefit—
an ironic contrast, incidentally, with preelection state-
ments that competitive pressures would preclude it from
paying the increased benefits that might flow from union
demands. Accordingly, I believe an appropriate remedy
here—one that effectuates the policies of the Act and
does not infringe on Respondent's interests, is that the
Respondent be ordered to change the name and date of
the holiday to reflect a nondiscriminatory purpose. The
new holiday shall be renamed "Employee Rights Day."
The newly named holiday will be observed beginning on
the anniversary date of the administrative law judges' de-
cision or the Board's decision, whichever is more con-
venient for Respondent, and for as long as it was ob-
served under the "Freedom Day" rubric. Thus, if free-
dom day was observed in August 1985 and 1986, the
newly named and dated holiday must be observed for 2
additional years. If the holiday is observed in 1987 or
thereafter because of failure to comply with this deci-
sion, the newly named and dated holiday is to be ob-
served for an additional period. At the end of this period
of observance, the Respondent is free to drop the holi-
day for nondiscriminatory reasons.
[Recommended Order omitted from publication.]