Talawanda Springs, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1986

280 N.L.R.B. 1353 (N.L.R.B. 1986)

TALAWANDA SPRINGS , INC. 1353
Talawanda Springs, Inc. and Barry D. Harvey. Case
9-CA-22377
31 July 1986
DECISION AND ORDER
On the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed
by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 28 February 1986 Administrative Law Judge
Leonard M. Wagman issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
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 brief and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Talawanda
Springs, Inc., College Comer, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
'The Respondent has excepted to some of the judge 's credibility find-
ings. The Board's established policy is not to overnile an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces 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 also find totally without ment the Respondent 's allega-
tions of bias and prejudice on the part of the judge . Upon our full consid-
eration of the record and the decision, we perceive no evidence that the
judge prejudged the case , made prejudicial rulings, or demonstrated a
bias against the Respondent in his analysis or discussion of the evidence
David L. Ness, Esq., for the General Counsel.
Bernard C. Fox, Esq. (Fox & Clear), of Cincinnati, Ohio,
for the Respondent.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge.
On a charge filed by Barry D. Harvey, an individual, the
Regional Director for Region 9 of the National Labor
Relations Board issued a complaint on 21 October 1985.1
The complaint alleged that Respondent, Talawanda
Springs, Inc., had violated Section 8(aXl) and (3) of the
National Labor Relations Act discharging Barry D.
Harvey and Marjorie D. Harvey. Respondent, by its
timely answer, denied commission of the alleged unfair
labor practices.
' Unless otherwise stated, all dates refer to 1985.
1. JURISDICTION
Respondent , an Ohio corporation, conceded that it
bottles and sells spring and distilled water at its College
Corner, Ohio facility, and that during the 12-month
period ending 30 September it received at its College
Corner, Ohio facility products , goods, and materials
valued at more than $50,000, directly from points outside
of Ohio. Respondent admits, and I fmd, that Respondent
is, and has been at all times material , an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
Respondent conceded , and I find that the Union,
United Food and Commercial Workers International
Union, Local 1099, AFL-CIO-CLC, is, and at all times
material has been, a labor organization within the mean-
ing of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Marjorie D. Harvey's employment at Respondent's
College Comer facility began in March 1984. For the
first 13 months of her employment there, Marjorie D.
Harvey was a blow mold packer. At the end of April,
Respondent sold one of its blow mold machines, but re-
tained Marjorie as a janitorial employee until her dis-
charge on 27 June.
Marjorie's husband, Barry D. Harvey, began working
at Respondent's College Comer plant in August 1981, as
a water production employee. After approximately I
year, during which Respondent had promoted him to a
leadman position, Respondent transferred Barry to fork-
lift driving. Approximately 6 months later , in late 1983,
Respondent returned Barry to the production line as a
leadman. Barry remained a leadman until Respondent
discharged him on 27 June.
As a leadman , Barry set up a production line of three
employees. Each workday, Barry saw to it that "every-
body was ready for work." He also kept the production
line going by obtaining and distributing supplies to his
colleagues , and helping them with production when
"they got behind ."2 Michael Wilhelm, who has been Re-
spondent's plant manager for approximately 8-1/2 years,
testified that he considered the leadman position to be
one of responsibility and trust.
I find from the testimony of Production Foreman John
R. Buttery that the Respondent's policy throughout
Barry's employment was to give production employees a
12-1/2-cent hourly increase every 6 months. In addition
to such increases , Barry, as a leadman , received an addi-
tional 25 cents per hour.
8 I based my findings regarding the Iiarveys ' employment history on
their testimony.
280 NLRB No. 156
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is undisputed that the Union sought unsuccessfully
to organize Respondent 's College Corner plant in 1984.
On 26 October 1984 the Regional Director conducted a
representation election among Respondent's College
Corner employees. Plant Manager Wilhelm conceded
that Respondent campaigned against the Union in the
1984 election, and that it retained Hal Burchette, a con-
sultant, for that purpose. The Union lost the election by
a vote of 17 to 12.
I find from Foreman John R. Buttery's testimony that
during the 1984 preelection campaign, Burchette in-
structed Buttery on how to conduct himself at the plant.
Burchette cautioned Buttery against threatening employ-
ees. However, Burchette also instructed Buttery to try to
satisfy employee gripes and characterized him as "the
eyes and ears for management." Burchette counseled
Buttery to report employee gripes as well as the names
of prounion employees to his superiors. At the hearing,
Wilhelm and Foreman Buttery admitted that they were
aware that the Union could petition for a second election
and that the Board could conduct it 12 months after the
1984 election.
Prior to the 1984 election, Marjorie D. Harvey attend-
ed a few union meetings. There was no showing that she
had actively assisted the Union prior to or since the elec-
tion. However, she voted in the election and discussed
the Union with fellow employees from time to time, until
her discharge.3
In 1984, during the preelection campaign, Barry D.
Harvey spoke in favor of the Union to fellow employees
in the plant and at company meetings, in the presence of
Plant Manager Michael Wilhelm, Production Foreman
John Buttery, President Robert West, and Production
Manager Larry Price. Barry continued to voice support
for the Union to employees at the plant in 1985 until his
discharge.'
Following the October 1984 election, union activity
ceased at the Respondent's College Corner plant. Al-
though employees discussed the Union, they did not
raise the topic at company meetings following the elec-
tion until 25 June.
On the afternoon of 25 June, Foreman Buttery, with
Plant Manager Wilhelm's approval, interrupted produc-
tion to conduct a meeting lasting the better part of an
hour, with the approximately 15 production employees
in the plant's breakroom. Buttery began by telling the as-
sembled employees that he intended to apply the Re-
spondent's personnel policy manual literally. He com-
plained that his superiors were pressuring him because he
was not filing written notices of employee misconduct.
The employees responded to Buttery by asking about
raises and complaining about favoritism. They com-
plained that Debbie Wilhelm, the factory manager's wife,
was taking more days off from work than she was enti-
tled to under Respondent's rules.
Employee Binita Buttery5 inquired about an incident
on the previous day when Plant Manager Wilhelm had
a I based my findings regarding Marjorie D. Harvey's discharge on her
testimony.
* I based my findings regarding Barry's union activity on his and em-
ployee Thomas Harvey's testimony.
6 Bimta Buttery is not related to Foreman Buttery.
observed Barry Harvey and most of his production line
in the breakroom, shortly before the end of their shift.
Wilhelm had claimed that the employees had been in the
breakroom for 15 minutes. John Buttery told her "not to
worry about it, that nobody was going to get wrote up
about it."
Barry asked John Buttery about a hammer Barry had
allegedly broken. Buttery assured Barry that he need not
worry about it adding: "It's been thrown out of your
files."
Binita Buttery suggested that Barry was entitled to a
25-cent hourly wage increase because he performed an
additional task which other leadpersons did not. John
Buttery replied: "Well, Barry never complains about
working on the lines. I don't have no problems with him
complaining about it."
There ensued a flurry of uncomplimentary remarks
and complaints by the assembled employees about Plant
Manager Wilhelm and Foreman Buttery. In reply, But-
tery asked employee Polly Raider if her husband came
home complaining to her "about his job at Square D."
Raider answered: "No. He had a union to go to."
At this, Marjorie said: "Well, our union will be back
up for re-election." Barry added: "Yeah, in three months,
and this time we'll get it in."
John Buttery responded with a shrug of his shoulders,
and words of indifference.8 After a few more minutes of
discussion, the meeting ended.
Within a few minutes after the meeting had concluded,
Barry observed Foreman Buttery and Plant Manager
Wilhelm conversing. Barry did not hear their conversa-
tion. Buttery and Wilhelm admit that they conversed im-
mediately after the meeting.
However, both Buttery and Wilhelm emphatically
denied talking about what went on at the meeting. Thus,
Buttery testified
I went to Mr. Wilhelm, and I said, `You want to
know what went on?' And he said, 'No, I don't
want to hear nothing, just forget it.'
Wilhelm testified that he rejected Buttery's offer to
report on the meeting. When Respondent's counsel asked
"Why?" Wilhelm testified:
I guess I was tired of, really hearing about anything.
When he came up to me, I told him I didn't want to
know about the meeting. I mean I didn't know that there
was any specific reason I had to have. It's just I didn't
want to know about it.
I find it hard to accept the proposition that Wilhelm was
totally uninterested in the employees' remarks at a meet-
ing which he had authorized during working time and
which interfered with needed production.' What could
Wilhelm have expected to hear that was so distasteful as
to provoke such a negative response? Wilhelm's explana-
tion leaves that answer to inference. Respondent present-
I based my findings regarding the meeting of 25 June on the testimo-0
ny of Barry, Marjorie, Thomas Harvey , and Foreman Buttery.
T John Buttery conceded that it was important to keep production
going, and added - "It was important to have the meeting too."
TALAWANDA SPRINGS, INC. 1355
ed this unusual display of disinterest to show that But-
tery did, not inform Wilhelm that the Harveys had
voiced renewed interest in the Union. However, But-
tery's and Wilhelm's testimonies and the reluctance with
which they delivered • it, left me with the suspicion that
Buttery and Wilhelm were being less than candid.
Review of John Buttery's testimony regarding Re-
spondent's opposition to the Union, and the instructions
he received during the Union's 1984 organizing cam-
paign, persuaded me that on 25 June, after the meeting,
Buttery informed Wilhelm of the Harveys' prounion re-
marks. Thus, Buttery admitted that Respondent was op-
posed to having a union in its plant. He also admitted
that during the 1984 union organizing campaign, Re-
spondent's labor relations consultant had instructed But-
tery to listen to employee gripes and try to resolve them.
The consultant also had told Buttery, that he was "like
the eyes and ears of management" and that he had the
responsibility to tell his superiors which employees
"were for the union." In light of these instructions and
Respondent's concern about identifying union supporters
among its employees, I find that Buttery reported the
Harveys' prounion remarks to Wilhelm.
At 8 am. on Thursday, 27 June,s the Harveys arrived
at Respondent's plant, prepared to begin work. They
found, their timecards were missing from the timeclock.
Barry questioned Foreman Buttery, who told Barry and
Marjorie to come to his office, where Plant Manager
Wilhelm wanted to talk to them.
When Buttery and the Harveys arrived at Buttery's
office, Wilhelm told them that as far as he was con-
cerned, the Harveys were no longer in Respondent's
employ. Wilhelm also said he could no longer tolerate
employees who were "bitching and fighting all of the
time," and that he was about "to start thinning people
out."
Wilhelm also stated that Barry's attitude was bad, that
Barry never liked working at the Respondent's plant,
and that he did not devote himself "100 percent" to his
job. Wilhelm also suggested that Barry "would probably
make a good worker somewhere else."
I find from Foreman Buttery's testimony that Wilhelm
did not discuss his decision to discharge the Harveys
with Buttery. Indeed, Buttery first learned of the deci-
sion on 27 June, when Wilhelm discharged them.
When Barry requested "some better reasons" for his
and Marjorie's discharges, Wilhelm answered in sub-
stance that they were at the Respondent's Cincinnati
office and that Respondent would send a written state-
ment of the reasons along with their last paychecks. The
record did not show whether Respondent ever presented
Barry with a written statement of reasons for his dis-
charge.9
I also find from Marjorie's testimony that a few min-
utes after the Harveys left the office, Marjorie returned
to ask Wilhelm why he had discharged her. I also credit
s According to the Respondent 's personnel policy manual , its'regular
workweek begins "with the start of the second shift on Friday" and con-
cludes "with the end of the first shift on the following Friday."
I based my findings regarding the confrontation between Wilhelm
and the Haiveys on Barry 's testimony . Of the four participants, Barry im-
pressed me as the most conscientious and straightforward witness.
her uncontradicted testimony that, in response, Wilhelm
said that he had discharged Marjorie because she would
hold a grudge against Respondent for discharging
Barry.10 Respondent has not offered reinstatement to
either of the Harveys.
B. Analysis and Conclusions
The General Counsel contends that Respondent dis-
charged Marjorie D. and Barry D. Harvey because they
expressed support for the Union if it again sought to or=
ganize Respondent's employees, and that the Respond-
ent's proffered explanation was pretextual. Respondent
contends that the record shows that the Harvey's union
sentiments played no part in its decision to discharge
them. For the reasons stated below, I find merit in the
General Counsel's position.
The issue presented is one of motivation. For if the
evidence shows that Respondent's opposition to its em-
ployees' activity on behalf of or support for a union was
a motivating factor in its discharge decisions, the Board
will find such discharges to have violated the Act, unless
the employer can show, that the discharge would have
occurred even in the absence of such prounion activity
or support. Wright Line, 251 NLRB 1083, 1089 (1980).
However, if the evidence shows that the proffered
lawful reason or reasons "did not exist, or [were] not, in
fact relied upon" the Respondent's reason or reasons
"may be termed pretextual. Because no legitimate busi-
ness justification for the [discharge] exists, there is, by
strict definition, no dual motive." Wright Line, 251
NLRB at 1084.
Here, the record shows that less than 48 hours after
Plant Manager Wilhelm learned of their outspoken sup-
port for the Union, he discharged the Harveys, without
warning, 1 day before the end of the workweek. There
was no showing that either Marjorie or Barry had en-
gaged in any misconduct during the interval between
their prounion remarks on 25 June and Wilhelm's an-
nouncement of their discharges on 27 June. Further,
Barry's immediate supervisor, Production Foreman John
Buttery, first learned of the decision to discharge Barry
when it happened. The circumstances which I have re-
cited in this paragraph strongly suggested that Respond-
ent acted as quickly as it could to get rid of two outspo-
ken prounion employees who raised the specter of a
second organizing campaign, even though its hasty
action might have interfered with one of its production
lines. Indeed, given the circumstances recited above, "[i]t
stretches credulity too far to believe that there was only
a coincidental connection between [Respondent's discov-
ery that Marjorie and Barry Harvey were anxious to see
the Union succeed in organizing the plant and their
abrupt discharge on 27 June.]" Angwell Curtain Co. v.
NLRB, 192 F.2d 899, 903 (7th Cir. 1951).
In a further effort to show that union sentiment played
no part in the Harveys' discharges, Respondent asserted
in its brief that on the morning of 25 June, prior to But-
10 Respondent's president, Robert West, conceded that Plant Manager
Michael Wilhelm made the decision to discharge the Harveys . I also find
from West's testimony that Wilhelm first informed the president on 26
June of his decision to discharge the Harveys.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tery's meeting with the production employees, Wilhelm
decided to terminate Barry. In support of this assertion,
Respondent relied on Wilhelm's testimony . However, I
find such reliance misplaced . Careful study of Plant
Manager Wilhelm's testimony regarding his decision to
terminate and his preparation of Barry's termination
notice revealed uncertainty about date and time. Thus,
when asked : "When was [the termination notice] pre-
pared?" Wilhelm testified: "To the best of my knowledge
somewhere around June 26-25th." When pressed by Re-
spondent's counsel to be more precise, Wilhelm testified:
"That's to the best of my knowledge." Although Wil-
helm went on to fix 25 June as the day of his decision to
terminate Barry, Wilhelm's testimony did not disclose
the time of day when he arrived at that decision. All that
Wilhelm's testimony disclosed was that he made his deci-
sion on 25 June . Thus, Respondent has not shown that
Wilhelm's decision came before he learned of the Har-
veys' prounion remarks . Instead, the record supported
the inference that Wilhelm did not decide the Harveys'
fate until after Buttery reported their remarks.
In its attempt to escape the finding that Barry D. Har-
vey's discharge was motivated by union animus, Re-
spondent presented a written notice of termination con-
taining seven instances of misconduct which Respondent
attributed to him . Plant Manager Wilhelm signed the list
on 27 June. Foreman Buttery signed it on the same date
as "Witness #1." These reasons included, sabotage, re-
peated defiance of Respondent 's requirement that em-
ployees wear hairnets , willful destruction of a company
hammer and failing to report the event, consumption of a
soft drink on the production line, constantly causing bad
feelings among employees, and going to the breakroom
and loafing for 5 minutes before the end of his work
shift.
Initially, I note that Respondent 's defense suffers from
the infirmity of shifting and inconsistent reasons. Thus,
on 27 June, Wilhelm suggested that "bitching and fight-
ing" was a reason for discharging the Harveys. Wilhelm
also complained that Barry had a bad attitude, never
liked working for Respondent , and did not devote him-
self fully to his job . None of these reasons found their
way to the termination notice . Moreover, on 27 June,
when Barry asked for further reasons, Wilhelm could not
remember them . Wilhelm's lapse of memory suggested
that Wilhelm had not yet settled on a plausible explana-
tion to camouflage the two discharges . The fatal infirmi-
ty in Respondent 's defense is its apparent willingness to
tolerate Barry's asserted faults, permit him to be a lead-
man,11 and reward him with an enhanced hourly wage
rate up until the day it discharged him. It was only after
Foreman Buttery told Wilhelm of the Harveys' prounion
outburst that Respondent found Barry's presence unbear-
able.
Wilhelm 's explanation of one of the reasons included
in the termination notice he prepared for Barry also im-
" Wilhelm testified that in September 1984 after learning that Barry
D. Harvey had committed sabotage against Respondent , he refrained
from discharging Barry because of the pending representation election.
However, Wilhelm never explained why he continued to employ Barry
as a leadman for 8 months after the election , particularly when Wilhelm
considered that position to be one of responsibility and trust.
paired the credibility of Respondent' s defense . In the ter-
mination notice, Wilhelm alleged that Barry had violated
Respondent's Rule No . 8 which called for dismissal of an
employee "[r]esponsible for instigating fighting on com-
pany property." When counsel for the General Counsel
asked "What fight was Barry Harvey involved in?" Wil-
helm evaded the question, testifying: "I'd consider argu-
ing fighting . It doesn't necessarily mean fistcuffs." This
resort to a distorted definition of "fighting" strongly sug-
gested that in preparing Barry's termination notice, Wil-
helm had fabricated the alleged violation of rule 8. Thus
did Wilhelm show a strong desire to shore up his attempt
to justify his untimely decision to discharge a vocal
union advocate.
The Respondent erased any doubt of its unlawful
motive in its treatment of Barry after the incident in the
breakroom on 24 June. According to Wilhelm, at 4:15
p.m. on 24 June , 15 minutes before the first shift ended,
he noted that only one production employee was stand-
ing and working on the production line. Wilhelm also
testified that he went to the breakroom , where he came
upon Barry, leadperson Polly Raider, and production
employees Linda Brookland, Binita Buttery, and Eric
Cantrell. Wilhelm suspected that these employees should
have been on the production floor.
The next day, in discussion with Foreman Buttery, he
learned that the production employees he had spotted in
the breakroom should have been on the production line.
Wilhelm testified that he immediately directed Buttery to
write up a warning on all the employees who had been
in the breakroom.
Buttery testified that he prepared and signed the four
warnings Wilhelm had requested for the production em-
ployees who had been in the breakroom prior to 4:30
p.m. on the afternoon of 24 June. However, Respond.
ent's personnel records showed no warnings for the inci-
dent of 24 June in the files of Polly Raider, Linda
Brookland, Binita Buttery, and Barry. This circumstance,
together with his remark to the employees on 25 June
that Respondent would not issue written warnings to the
employees involved in that incident, gave further support
for the impression that John Buttery was not a candid
witness. I therefore reject his testimony that he prepared
written warnings for the employees observed by Wil-
helm on 24 June.
Though the General Counsel had subpoenaed Eric
Cantrell's personnel file from Respondent, it was not
available at the hearing . Thus, contrary to John Buttery's
testimony, and Wilhelm 's asserted instructions to him, I
find that as of 27 June, Respondent had not issued warn-
ings to the employees involved in the breakroom inci-
dent of 24 June. But that was not the end of the matter.
I also find from Wilhelm's testimony that in a further
attempt to conceal his real motive, after he had dis-
charged the Harveys, he found it necessary to document
Barry's participation in the incident of 24 June, after
Foreman Buttery had announced "that nobody was
going to get wrote up about it." Thus, while visiting the
office of Respondent 's counsel, after 27 June, Wilhelm
prepared a single written warning for Barry regarding
TALAWANDA SPRINGS, INC.
the incident of 24 June . 12 Here again , Wilhelm wanted
to make sure that he had legitimized his effort to rid Re-
spondent of two outspoken union advocates.
In light of Wilhelm 's willingness to engage in such de-
ception , I did not accept his denial that he discharged
Barry for union reasons . Instead, I find that Wilhelm's
attempt at deception provided further support for the
General Counsel's contention. I find that Respondent's
proffered reasons for discharging Barry were pretextual.
The timing of Respondent's change of heart toward
Barry also supports that contention. Thus, prior to 25
June, neither the fingers in the bottle, nor the hairnet,
nor the drinking of a soft drink on the production line
provoked Respondent into giving Barry either a written
correction as its policy manual required , or a warning of
discharge. However, after Barry openly voiced support
for a union organizing campaign , Respondent seized on
these three incidents as grounds for discharging him.
I also find that Wilhelm discharged Marjorie because
she and her husband had voiced support for the Union.
Respondent made no effort to show that it had any
ground for its claim that Marjorie was likely to injure it
in retribution for Barry's discharge. There was no show-
ing that Marjorie by word or deed had given Respond-
ent any cause to fear her. Here again , Respondent resort-
ed to a pretext to rid itself of a potentially strong proun-
ion voice.
In sum, I find that more than a preponderance of the
evidence supported the contention that Respondent dis-
charged the Harveys because of their adherence to the
Union as prounion sentiments . Accordingly, I further
find that Respondent violated Section 8(a)(3) and (1) by
that conduct.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
12 Wilhelm did not flatly admit that he wrote a warning for Barry
Harvey after 27 June . However, I find that his defensive tone and his
choice of words in the following portion of the transcript implied as
much:
Q (Mr. Fox) I hand you what's been marked as Respondent's 9
and see if you can identify it.
A Yes, it was a written warning that I wrote up for the incident
that happened on June 24th, 1985.
Q And when did you write that up?
A I'm not real sure It was in your office
Q. June-you said in my office?
A. Right. When this was written up to put in the record-
Q. No. Then this was not part of the record that-in Barry Har-
vey's file?
JUDGE WAGMAN: You wrote that up in whose office? In the attor-
ney's office?
THE WrrNEss. Yes.
JUDGE WAGMAN- I see . After the man got fired?
THE WrrNEss: Well, I had- it is on his termination notice, too,
and I wrote that-
Specifically, Wilhelm's reference to the termination notice, and his tone
strongly implied that he was speaking in retrospect , explaining that by
the time he reached the lawyer's office and wrote the warning, he had
already referred to the incident of 24 June in the termination notice
Counsel for Respondent provided support for my inference when he
withheld the written warning from being received as an exhibit. In his
view the warning was "not relevant if it was prepared that long after the
situation " (Tr. 190.)
1357
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging Barry D. Harvey and Marjorie D.
Harvey because they voiced support for the Union, Re-
spondent violated Section 8 (a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices affected com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices, I shall recommend that they be or-
dered to cease and desist from such conduct and to take
affirmative action necessary to effectuate the purposes of
the Act.
Having found that Respondent unlawfully discharged
Barry D. Harvey and Marjorie D. Harvey, I shall rec-
ommend that Respondent be ordered to offer each of
them immediate reinstatement to their respective former
positions or, if such positions no longer exist , to substan-
tially equivalent positions without loss of seniority or
other rights and privileges, discharging if necessary any
replacements, and to make each of them whole for any
losses of pay and benefits each may have suffered, by
payment to each of them of sums they would have
earned , but for the discrimination against them. Such
losses shall be computed in the manner set forth in F. W.
Woolworth Co. 90 NLRB 289 (1950), with interest as pre-
scribed in Florida Steel Corp., 251 NLRB 651 (1977).13
I shall also recommend that Respondent be required to
remove from its files any reference to either Barry D.
Harvey's discharge on 27 June or to Marjorie D. Har-
vey's discharge on the same date, and notify each of
them in writing that evidence of his or her unlawful dis-
charge will not be used as a basis for future personnel
actions against him or her.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed14
ORDER
The Respondent, Talawanda Springs, Inc., College
Corner, Ohio, its officers, agents , successors, and assigns,
shall
1. Cease and desist from
(a) Discharging, refusing to reinstate , or otherwise dis-
criminating against employees because they support
United Food and Commercial Workers International
Union, Local 1099, AFL-CIO-CLC, or any other labor
organization.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act.
is See, generally, Isis Plumbing & Co., 138 NLRB 716 (1962).
14 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer Barry D. Harvey and Marjorie D. Harvey
immediate and full reinstatement to their respective
former positions of employment, dismissing if necessary
anyone who may have been hired or assigned to perform
their functions or, if their former respective positions do
not exist, to substantially equivalent positions without
prejudice to their seniority or other rights and privileges.
(b) Make whole employees Barry D. Harvey and Mar-
jorie D. Harvey for any loss of pay and benefits each
may have suffered as a result of the discrimination each
has suffered , in the manner set forth above in the remedy
section of this decision.
(c) Remove from its files any references to the dis-
charges of Barry D. Harvey and Marjorie D. Harvey on
27 June 1985 and notify each of them in writing that this
had been done, and that evidence of his or her unlawful
discharge will not be used as a basis for future personnel
actions against him or her.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its College Corner plant, copies of the at-
tached notice marked "Appendix." 18 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
15 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 read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
The National Labor Relations Act gives employees the
following rights.
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representatives
who they themselves select
To engage in activities together for the purposes
of collective bargaining or to act together in order
to seek improvement in their wages, hours, or
working conditions, and other terms and conditions
of employment
To refrain from any and all such activities.
WE WILL NOT discharge, refuse to reinstate, or other-
wise discriminate against employees because they sup-
port United Food and Commercial Workers Internation-
al Union, Local 1099, AFL-CIO-CLC or any other
labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Barry D. Harvey and Marjorie D.
Harvey immediate reinstatement to their former posi-
tions, dismissing if necessary any one who may have
been hired or assigned to perform the work which they
performed prior to their discharge or, if those jobs no
longer exist, to substantially equivalent positions without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay and benefits
they may have suffered as a result of our discrimination
together with interest on those amounts.
WE WILL remove from our files any references to the
discharges of Barry D. Harvey and Marjorie D. Harvey
on 27 June 1985 and notify each of them in writing that
this has been done, and that evidence of his or her un-
lawful discharge will not be used as a basis for future
personnel actions against him or her.
TALAWANDA SPRINGS, INC.