Tasty Frozen Products Of Kansas, Inc.

National Labor Relations Board - Board Decisions

Nov 29, 1985

277 N.L.R.B. 903 (N.L.R.B. 1985)

TASTY FROZEN PRODUCTS
Tasty Frozen Products of Kansas, Inc. and Bakery
Workers Local 218 affiliated with Bakery &
Confectionery Workers International Union of
America . Case 17-CA--12476
29 November 1985
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 14 August 1985 Administrative Law Judge
Bernard Ries issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed her brief to the
judge as an answering 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 briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Tasty Frozen Products of Kansas, Inc.,
Lenexa, Kansas, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 1(c).
"(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the following for paragraphs 2(d)
and (e).
"(d) Post at its place of business in Lenexa,
Kansas, copies of the attached notice marked "Ap-
pendix."2 a Copies of the notice, on forms provided
by the Regional Director for Region 17, after
being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utiLve days in conspicuous places including all
i 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 ,fudge'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.
2 The judge provided broad cease and-desist language in his recom-
mended Order We find that a narrow cease-and-desist order is appropri-
ate here and we shall modify the recommended Order and conform the
notice accordingly
903
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered,
defaced, or covered by any other material.
"(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
3. Substitute the attached notice for that of the
administrative law judge.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge or otherwise discrimi-
nate against any employee to discourage member-
ship in Bakery Workers Local 218 affiliated with
Bakery & Confectionery Workers International
Union of America or any other labor organization.
WE WILL NOT threaten employees with dis-
charge or with closing of our business, and WE
WILL NOT coercively interrogate them, in order to
affect their support for the Union or any other
labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Glenn H. Mecum immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge on 17
December 1984, less any net interim earnings, plus
interest.
277 NLRB No. 94
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL notify him that we have removed from
our files any reference to his discharge and that the
discharge will not be used against him in any way.
TASTY FROZEN PRODUCTS OF KANSAS, INC.
Naomi L. Stuart, Esq., for the General Counsel.
Martin Gringer, Esq. (Marshall M. Miller Associates, Inc.),
of Hewlett, New York, for the Respondent.
DECISION
BERNARD RIES, Administrative Law Judge. This case
was heard in Kansas City, Kansas, on 23 April 1985, pur-
suant to a charge filed on 31 January 1985 and a com-
plaint issued on 28 February 1985. The complaint, as
amended at the hearing, alleges that Respondent Tasty 1
Frozen Products of Kansas, Inc. violated Section 8(a)(3)
of the Act on 17 December 1984 by terminating the em-
ployment of Glenn H. Mecum because of his participa-
tion in activities protected by the Act, and also violated
Section 8(a)(1) on that date by coercively interrogating
employees about union activities, by creating an impres-
sion that Respondent was keeping the union activities of
its employees under surveillance, by threatening to dis-
charge employees, by threatening to close the facility,
and by threatening to ascertain the identity of employees
engaged in union activities.
While Respondent's answer concedes that its oper-
ations satisfy the Board's jurisdictional standards, it
denies all the ,substantive allegations of the complaint.
Briefs have been filed by the parties. Having reviewed
the entire record, having considered the briefs, and
having in mind my impression of the witnesses as they
testified, I make the following findings of fact,2 conclu-
sions of law, and recommendations.
I. THE MATERIAL FACTS
Glenn H. Mecum was hired by Respondent, a whole-
sale baking company, as a machine operator on 13
August 1984.3 Although Respondent stipulated at the
hearing that he was a "good operator," Mecum was dis-
charged on 17 December. An outline of the relevant evi-
dence follows.
Respondent commenced operation in Kansas in 1984.
It runs two shifts. Mecum worked on the second shift,
from 3 to 11 p.m., running a machine that "cut the
doughs up into different weights " On 7 December, the
second-shift employees discussed their dissatisfaction
with their benefits and concluded that it would be a
good thing to seek union representation.4 Mecum there-
after contacted a representative of the Charging Party,
who, on 12 December, gave Mecum and fellow employ-
As corrected at the hearing
z By a motion filed with her brief, counsel for the General Counsel
seeks to correct the transcript in two respects No opposition to the
motion having been filed, and the corrections appearing to be appropri-
ate, the motion is granted
3 All dates hereafter refer to the year 1984
4 The background evidence here discussed is derived from the credited
testimony of Mecum and fellow employee Donald Lepic
ee Donald Lepic some NLRB pamphlets and union au-
thorization cards.
Mecum "kind of discussed" the Union effort with "ev-
erybody" on the night shift on 13 and 14 December, and
went to the apartment of a fellow employee on 14 De-
cember to get a card signed Mecum also handed out
cards to two employees in the parking lot after work in
the early morning of 15 December, and on Sunday, De-
cember 16, he went to visit some six employees at their
homes for the same purpose.
Mecum testified that about 5 p.m. on Monday, 17 De-
cember, he was told by his supervisor Brad Patterson to
accompany him to the front office. There Mecum' found
the Respondent's president Stephen Ruvolo and vicepre-
sident Gary Welthy. According to Mecum, Welthy had
in his hand one of the pamphlets thatMecum had been
handing out. Welthy said to Mecum, "I hear you have
been taking up a petition to start a union." Mecum
denied the accusation After that, "a few calls were
made," the contents of which were not divulged at the
hearing, and Welthy told Mecum that he could return to
work.
A few minutes after Mecum returned to work, Donald
Lepic, the other machine operator on the second shift,
was called into the office. Lepic returned 15 minutes
later. The contents of that interview will be discussed
infra. Soon after Lepic's return to work, Supervisor Pat-
terson approached Mecum and told him that he was
wanted in the office again. When Mecum entered the
office, he found Welthy and Ruvolo. The former, still
waving the union literature, said, "Since you lied to me,
in trying to take up a petition on company time, we do
not no longer need your services anymore " Mecum
asked Welthy if he was "sure that's what [he] want[s]."
Welthy said that he was. At that point, Welthy opened a
desk drawer, threw the pamphlet in it, picked up a blank
authorization card, and said that "he knew that I" had
been over to the Olives' house on Sunday or over the
weekend."5 Mecum punched out and went home. At the,
hearing, Mecum denied that he had ever distributed
cards or pamphlets on company time.
The testimony given by fellow employees Randy Ollie
and Donald Lepic, if believed, would indisputably make
the General Counsel's case. Ollie testified that around
5.30 or 6 p.m. on 17 December, Patterson directed him
to go to the break room to speak to Ruvolo. In the
room, Ruvolo asked him if he knew anything about a
union being started in the plant; he replied in the nega-
tive Ruvolo then asked if Mecum had come to his
house, and Ollie said he knew nothing about it. Ruvolo
stated that "he had reason to believe" that Ollie was "in
on trying to get the union started," and he asked if
"Glenn Mecum started it." Ollie denied knowledge
After a few more similar questions, Ruvolo "said he was
going to let Glenn Mecum go." He also said that "who-
ever else was in on it, he was going to find out and let
them go too " Finally, Ruvolo threatened that "he
s Three employees named Olive in the same residence There is also, as
discussed hereafter, an employee named Randy Ollie
TASTY FROZEN PRODUCTS
would close the place down if he have to and start all
over again."e
Lepic, the other second-shift machine operator, testi-
fied that when Mecum returned from his first visit to the
front office on 17 December, he told Lepic, "Boy, I've
got to watch myself. They're after me now. I've got to
cover my behind. You'll probably be next."a As predict-
ed, Foreman Patterson soon told Lepic to go to the
office. On the way, Patterson asked Lepic "if I knew
anything ; about a petition to start a union;" Lepic replied
"No." In the office with Ruvolo and Welthy, the latter
showed him the NLRB pamphlet and asked if he had
ever seen one. There were more questions about the or-
ganizing effort, and one of the two bosses said that "no
matter how long it took or how many people were in-
volved, that they were going to get rid of them, that
they weren't going to have a union." One of them went
on to say that "they had a union in New York and it
caused nothing but problems . . . [i]f they had to, they
would put the key in the door and lock it and that
would be it, just close up." There followed some discus-
sion of why the employees were dissatisfied. Welthy told
Lepic that "they had heard that it was Mr. Mecum that
was trying to start this, and that anybody else involved,
they would find out, no matter how long it took, they
would get rid of them." One of the employers stated that
"apparently [Mecum] had been going around to people's
houses trying to organize a union and that they were
going to let him go."
Ruvolo, Welthy, and Patterson testified for Respond-
ent. The general tenor of their testimony was that
Mecum had been an unsatisfactory worker in the past;
that, on 17 December, he had engaged in insubordination
by refusing to start work when ordered to by Patterson;
that this act of insubordination was of the camel's-back-
breaking variety; and that they knew nothing about any
union activity by Mecum until he mentioned it after
being , terminated. Within the framework of this explana-
tion , however, there were some inconsistencies between
the witnesses for Respondent.
The basic structure of Respondent's version of the
events was given by Supervisor Patterson. He said that
"on many occasions" prior to 17 December, Mecum had
asserted that he was being paid improperly, which had
required Patterson to go over Mecum's timecard with
him. In addition , Mecum was unhappy about the time-
clock system under which (as I understand this some-
what confused record) an employee who clocks in and
goes to work less than 5 minutes before the scheduled
starting time does not get paid for the extra minutes. Pat-
terson found it extraordinary that Mecum "wanted to get
paid for every minute he worked... . He didn't feel that
it was fair that he had to work extra minutes without
being paid for them." Patterson also said that he had pre-
The record shows that the Respondent is a corporation owned, as is
Tasty Frozen Products of New York, Inc, by the Ruvolo family Welthy
came to Kansas from New York in 1983, and Ruvolo in 1984, to start up
the Midwestern facility The employees at the New York plant are repre-
sented by a union
r As earlier described, Lepic had accompanied Mecum to the union
hall the previous week Other than that mission , Leptc engaged in no ac-
tivity except to hand a card to his brother-in-law
905
viously talked to Welthy about an incident, perhaps in
mid-November, in which Mecum had refused to obey
the order of the day-shift foreman about removing some
cigarettes from his shirt pocket, asserting that only the
night foreman was authorized to give him orders.8
On 17 December, Patterson testified, having mixed the
dough so that the two machine operators, Mecum and
Lepic, could start 3 their work, he told the second-shaft
employees, at a few minutes before 3 p.m., to go out on
the floor and begin work. Mecum, who had punched in
at 2:55, assertedly replied that he was not going to work
until 3 p.m. "I don't get paid until 3.00, so I'm not going
to work until 3:00." Since this was not the first time that
Patterson had had problems with Mecum, he went to
speak to Ruvolo. The latter told Patterson that he and
Welthy had a meeting to attend, but that the three of
them would get together after the meeting. Shortly
before 5 p.m. Patterson again went to see Ruvolo and
Welthy, and they then told him to bring Mecum to the
office.
Patterson further testified that after the second conver-
sation between Mecum, Ruvolo, and Welthy, he was
told that his superiors had let Mecum go "`because of the
problems I had discussed. He had a poor attitude. He ran
the machine well, but he had a very poor attitude.. . .
Patterson conceded that he had, on 17 December, asked
Lepic about union activity, saying, that after he took
Mecum to the office the first time, "everybody was, you
know, wondering why Glenn had got sent up to the
office for. And somebody asked me, they said, is he in
trouble with the Union or is he in trouble because of the
Union."9 This was allegedly the first mention Patterson
had heard about union activity and his curiosity pro-
voked him to ask Lepic if he knew "anything about this
union thing" as he led Lepic to the office on 17 Decem-
ber.
In his testimony, Vice President Welthy corroborated
Patterson's testimony that Mecum was summoned to the
office because of insubordination related to starting
work, but his version of the problem was inconsistent
with the one given by Patterson and Ruvolo. Welthy
said that the insubordination was that Mecum "had
punched in and at 3:00-when 3:00 came, he refused to
go to work . . . it was 3:00 and everyone else was out
on the production floor working and he refused to go to
work. . . . At 3:00, when he was called to go to work,
he said that the clock wasn't right and he refused to go
to work."
Welthy also testified about other problems with
Mecum of which he was aware: an instance in which
Mecum's home furnace had broken down, Mecum had
called and said he would be at the plant by 5:30, and
then had failed to show up;1 ° "a couple of other in-
stances with the time clock where he had stated that our
time clock was not in accordance with his time clock, his
On recall, Mecum conceded that this incident had in fact occurred
If believed, Patterson's testimony to this effect would be dispositive
of Respondent's argument on brief that Mecum might not have engaged
in any union activity at all
1A Mecum testified that he had "tried to call and nobody would
answer the phone "
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
watch, rather"; the fact that in making a certain "twisted
dough" product, Mecum was "unable or unwilling to
keep up"; I' the incident in which Mecum had refused to
obey the order of the day forelady to remove cigarettes
from his shirt pocket;' 2 an occasion on which Mecum
had failed to show up or call, and came in the next day
saying that he had had a doctor's appointment; 1 3 and the
frequent complaints by Mecum about the timeclock.
Welthy went on to testify that when he and Ruvolo
first spoke to Mecum, they told him "we start work here
at 3:00. We expect that, if you punch in, since you are
being paid for it, to go to work. And he said that he's
going to be paid for every minute of work." 14 Mecum
was sent back to his work station and Ruvolo and
Welthy debated his fate. They concluded, after the dis-
cussion, that he was a "bad apple," and they called him
back in and told him they were letting him go. Mecum
asked if the reason for discharge was "union activities."
This caught the two by surprise, since they assertedly
knew nothing of an organizing effort until then. After
telling Mecum that union activity was unrelated to his
release, he was dismissed.
Following up on the reference to a union, however,
Ruvolo and Welthy spoke to some employees to find out
what was going on. They had dinner at home on 17 De-
cember, then returned to the plant and spoke to Lepic.
That conversation, Welthy said, consisted of Lepic's
denial of knowledge of a union campaign and a discus-
sion of the reasons for employee dissatisfaction. There
was no mention, Welthy testified, of closing the plant in
the event of unionization, or of weeding out union insti-
gators. To get a perspective on the subject of employee
discontent, however, Welthy and Ruvolo also spoke to
other employees about that topic.
President Ruvolo testified about the array of Mecum
problems much as Welthy had, adding only that on one
occasion, Mecum had told Ruvolo that Respondent did
not pay adequate wages and that as soon as he was again
authorized to drive (his license having been suspended),
he was "going back to being a truck driver." According-
ly, when Patterson came to Ruvolo to complain about
Mecum on 17 December, saying that Mecum "is
punched in and refuses to come to work, the dough is
out on-the floor, the whole crew is working, I can't get
the shop running, I'm paying people for doing nothing
because this man says he is not coming to work until
3.00," Ruvolo reacted. t s At the first meeting between
Mecum and his two superiors, they asked him "if he had
a problem in obeying the orders of his supervisors," to
which he answered "no," and then asked him "why he
I I This appears to contradict both the stipulation at the hearing by Re-
spondent that Mecum was a "good" operator and also Patterson's testi-
mony, quoting Ruvolo and Welthy on 17 December, that Mecum "ran
the machine well "
12 Mecum conceded on cross-examination that he had refused the in-
struction because she was not his foreperson
13 On cross-examination, however, Welthy agreed that the appoint-
ment did not keep Mecum away all day, but rather he showed up late
i4 Welthy's alleged admonitory statement that the shift began work
"ast 3 00" would have made no sense in a context in which, as Patterson
testified, Mecum had started work at 3 p in
is As noted above, Welthy gave a different description of Patterson's
story
didn't start working when he was told to and he said it
wasn't 3:00 yet." After dismissing Mecum, the two
owners asked each other "how long are we going to
continue to, you know, let this man do what he wants
around here." Concluding that Mecum was "unhappy
here," they decided to let him go. At that point, Mecum
accused the two of "firing me for my union activities,"
which was the first that Ruvolo had heard of any such
conduct.
After Mecum left, said Ruvolo, the two owners decid-
ed to look into Mecum's allusion to a union Ruvolo
spoke to Ollie and Lepic. Ruvolo asked Ollie if he had
heard about a union, and Ollie said he had not. Ruvolo
then told Ollie that his company in New York had a
union, and they would rather not have one in Kansas.
Asked by Respondent's counsel if he had told Ollie that
he was "going to close the plant down if a union came
in," Ruvolo answered, "I told him that it was more diffi-
cult working with a union, that it is a family business,
you know, if it came to the fact that a union did come
in, you know, we would have to make a decision wheth-
er or not we would want to keep running the business.
But it certainly was not a threat." His version of the con-
versation with Lepic was that they had talked about
Mecum having said that he was organizing for a union,
which 'led into questioning and discussion about the
nature of employee dissatisfaction.
Called as a rebuttal witness, Mecum denied that he
said anything to Ruvolo and Welthy on 17 December re-
garding his union activities. He further testified, as he
had said on cross-examination in his first appearance on
the stand, that Patterson had said nothing to him on 17
December about starting work before 3 p.m., and that
the incident to which Patterson referred probably was
based on something that had occurred about 2 weeks
before he was discharged (Patterson had asked him to
begin work early, Mecum had replied that he "wasn't
getting paid to start work early and that I hadn't
punched in yet," and Patterson had said nothing about
Mecum being compensated for an early start). Lepic,
also testifying in rebuttal, "did not believe" that Patter-
son had asked the crew to begin work before the sched-
uled starting time on 17 December. Like Mecum, how-
ever, Lepic recalled an incident about 2 weeks or so
before that date when Patterson had asked the night
crew to start early, which all the employees except
Mecum had agreed to do.
H. ANALYSIS AND CONCLUSIONS REGARDING THE
8(A)(3) ALLEGATIONS
In considering the resolution of the issues in this case,
I must say that if Mecum alone had testified for the Gen-
eral Counsel, I might have had some difficulty in con-
chiding that a violation of Section 8(a)(3) had been
proved. Mecum made a very positive impression on me
during his direct examination, but on cross he became
evasive and truculent, refusing to admit that he had left
his previous job because he had lost his driver' s license, a
fact about which he had lied on his job application with
Respondent. Measured against Patterson, Ruvolo, and
Welthy, all of whom struck me as reasonably good wit-
TASTY FROZEN PRODUCTS
nesses, but taking into account the inconsistency in some
of their testimony, the ultimate decision could have been
a close call. 16
With the testimony of Ollie and Lepic added into the
mix, however, I really have no choice but to find in
favor of the General Counsel. Both of these men made
an excellent impression on the witness stand, and their
testimony was consistent throughout.'' Both were em-
ployed by Respondent at the time that they testified; that
fact is not a guarantor of credibility, but it is something
to be considered in assessing the reliability of an employ-
ee's adverse testimony against his employer. In addition,
the record shows that the General Counsel had a good
deal of trouble winning Lepic's cooperation, and that no
one from the Board had succeeded in speaking to him
until the morning of the hearing.
Having reached such a conclusion, I find that the testi-
mony of Ollie that Ruvolo told him that the company
"was going to let Glenn Mecum go" as well as "whoev-
er else was in on it," and the testimony of Lepic that the
owners had said that "apparently [Mecum] had been
going around to people's houses trying to organize a
union and that they were going to let him go," un-
equivocally establishes that Mecum's discharge was dis-
criminatory within the meaning of Section 8(a)(3) of the
Act.18
The statute provides that the General Counsel must es-
tablish an unfair labor practice by "a preponderance (6th
Cir. 1982) of the testimony taken." In Jim Causley Ponti-
ac v. NLRB, 675 F.2d 125, 127, the Court of Appeals for
the Sixth Circuit defined the foregoing test to mean
"more likely so than not so." In my view of the evidence
presented, I find it "more likely so than not so" that Re-
spondent's discharge of Mecum was for a reason pro-
scribed by the Act. In the terms of NLRB v. Transporta-
tion Management Corp., 462 U.S 393 (1983), the General
Counsel has proved that Mecum's union activity was "a
motivating factor" behind his discharge, and, indeed, was
the only motivating factor.
III. ANALYSIS AND CONCLUSIONS REGARDING THE
8(A)(1) ALLEGATIONS
As for the independent violations of Section 8(a)(1) al-
leged in the complaint, I conclude that Respondent vio-
lated that statutory provision in several ways. When
Welthy said to Mecum on 17 December, "I hear you
11 Even without reference to the directly incriminating testimony of
Mecum, Ollie, and Lepic, the case against Respondent would still be
fairly impressive The timing of the discharge-so soon after Mecum had
begun to solicit for the Union-obviously raises suspicion, as do the facts
that Mecum was regarded as a "good" operator and that no replacement
for Mecum had been hired at the time he was discharged.
17 Respondent's argument predicated on Lepic's uncertain testimony
about the timing of the events of 17 December does not seem to me to be
of great consequence There is more force in Respondent's contention
that the presumably sophisticated Ruvolo and Welthy would not have so
blatantly announced an unlawful reason for the dismissal of Mecum On
the other hand, I would not have thought that Ruvolo would tell an em-
ployee, as he testified, that if a union came in, we would have to make a
decision whether or not we would want to keep running the business "
See Textile Workers v Darlington Co., 380 U S 263, 274 fn 20 (1965)
to Because Mecum's testimony is of a piece with that given by Ollie
and Lepic, I also credit Mecum on the subject of his discussions with
Ruvolo and Welthy
907
have been taking up a petition to start a union," he was
really asking a question; taking into account "all of the
circumstances" in order to evaluate whether the interro-
gation "reasonably tends to restrain, coerce, or interfere
with rights guaranteed by the Act," Rossmore House, 269
NLRB 1176, 1177 (1984), it seems clear that this kind of
abrupt, unexplained, and unjustified front-office inquiry
into the protected activities of an employee unquestion-
ably had the capability to coerce. I doubt, however, that
Welthy's statement to Mecum that he knew Mecum "had
been over to the Olives' on Sunday" would have tended
to create the impression that Respondent was keeping
the employees' Section 7 activity under surveillance; the
inference that somebody had simply reported this fact to
Welthy is just as, or perhaps more, reasonable.
Ruvolo's 17 December conversation with Ollie was
violative of the law in some respects. The various ques-
tions put to Ollie in the break room by the president of
Respondent, without explanation and in the context of
the directly threatening remarks to follow, were forbid-
den interrogations. Similarly, Ruvolo's statements to
Ollie that he was going to let Mecum go as well as
anyone else involved in the organizing was about as
threatening a remark as an employer can make, right up
there with Ruvolo's final remark that "he would close
the place down if he have to and start all over again."
Again, however, I do not believe that Ruvolo's comment
that he "had reason to believe" that Ollie was involved
in the organizing effort necessarily implies spying; it
could as easily mean that someone voluntarily reported
the information to Ruvolo.
Finally, Patterson's question to Lepic as to whether
the latter "knew anything about a petition to start a
union"; the subsequent questioning in the front office di-
rected at Lepic by Ruvolo and Welthy; and the stark
threats by the latter two officials to weed out Mecum
and other union proponents and, if necessary, close the
plant rather than accept unionization, constituted forbid-
den coercive conduct.
CONCLUSIONS OF LAW
1. Respondent Tasty Frozen Products of Kansas, Inc.
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Bakery Workers Local 218 affiliated with Bakery
and Confectionery Workers International Union of
America (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
3. By, on 17 December 1984, coercively interrogating
employees, threatening to discharge union supporters,
and threatening to close the plant rather than accept
unionization, Respondent violated Section 8(a)(1) of the
Act.
4. By, on 17 December 1984, discharging Glenn H.
Mecum in order to discourage union activity, Respond-
ent violated Section 8(a)(3) of the Act.
5. Except as set out above, Respondent has not violat-
ed the Act in any other respect alleged in the complaint.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent unlawfully discharged
Glenn H. Mecum on, 17 December 1984, I shall recom-
mend that it be ordered to offer him immediate and full
reinstatement to his former job, without prejudice to his
seniority and other rights and privileges, and to make
him whole for any loss of earnings he may have suffered
from 17 December 1984 to the date of Respondent's
offer of reinstatement, with interest, in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida
Steel Corp., 231 NLRB 651 (1977).19
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed20
ORDER
The Respondent, Tasty Frozen Products of Kansas,
Inc., Lenexa, Kansas, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because of any activities on behalf of the
Union or any other labor organization.
(b) Threatening plant closure and discharge of employ-
ees for assisting or supporting the Union or any other
labor organization and coercively interrogating employ-
ees about union activities.
(c) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights
to self-organization, to form, join, or assist any labor or-
ganization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted ac-
tivities for the purposes of collective bargaining or other
mutual aid, or to refrain from any and all such activities.
19 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
20 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
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Glenn H. Mecum immediate and full rein-
statement to his former job or, if that job no longer exist,
to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges previ-
ously enjoyed, and make him whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him, in the manner set forth in the
remedy section of the decision.
(b) Remove from its files any reference to the dis-
charge of Glenn H. Mecum on 17 December 1984, and
notify him in writing that this has been done and that
evidence of this unlawful discharge will not be used as a
basis for future personnel actions against him.
(c) 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.
(d) Post at its place of business in Lenexa , Kansas,
copies of the attached notice marked "Appendix."2i
Copies of the notice, on forms provided by the Regional
Director for Region 17, after being signed by the Re-
spondent'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 Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS ALSO ORDERED that the portions of the complaint
found to be without merit are hereby dismissed.
21 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 "