Venture Packaging, Inc.

National Labor Relations Board - Board Decisions

May 31, 1989

294 N.L.R.B. 544 (N.L.R.B. 1989)

544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Venture Packaging, Inc. and Glass, Pottery, Plastics
and Allied Workers International Union, AFL-
CIO, CLC. Cases 8-CA-19242, 8-CA-19371,
8-CA-19438, 8-CA-20046, and 8-CA-20318
May 31, 1989
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On June 17, 1987, Administrative Law Judge
Lowell Goerlich issued the attached decision in
Cases 8-CA-19242, 8-CA-19371, and 8-CA-19438.
The Respondent filed exceptions and a supporting
brief, the General Counsel filed exceptions and a
supporting brief which the Charging Party joined,
and the Charging Party filed an answering brief to
the Respondent's exceptions.
On January 29, 1988, Administrative Law Judge
Marvin Roth issued the attached decision in Cases
8-CA-20046 and 8-CA-20318. The Respondent,
the General Counsel, and the Charging Party filed
exceptions and supporting briefs. The Charging
Party filed an answering brief to the Respondent's
and General Counsel's exceptions. The General
Counsel also filed a motion to consolidate' to
which the Charging Party filed 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 decisions and the
records in light of the exceptions and briefs and has
decided to affirm both judges' rulings, findings,2
' The General Counsel moves to consolidate Cases 8-CA-20046 and
8-CA-20318 with Cases 8-CA-19242, 8-CA-19371, and 8-CA-19438
The General Counsel urges that the cases involve the same Respondent
and Union and that the consolidation would expedite the consideration of
what are basically the same issues in both cases, i e , the continuing un-
lawful unilateral acts of the Respondent We find merit to the General
Counsel 's motion and find that it will expedite the proceedings to consoli-
date the cases and we thus grant the General Counsel 's motion The at-
tached Order has been modified to reflect the consolidation of the cases
and a new notice is substituted for those of the administrative law judges
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 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
In his remedy and recommended Order, Judge Goerlich recommended
the inclusion of a visitatonal clause We find a visitatonal clause is unnec-
essary based on the facts and circumstances of this case Cherokee Marine
Terminal, 287 NLRB 1080 (1988)
As noted in Judge Goerlich's decision, Company President John Rath-
bun held 27 captive-audience meetings in the 3 weeks preceding the elec-
tion During these meetings he made numerous antiunion statements Not
all of Rathbun's quoted statements would be unlawful standing alone, but
in view of his threats that any appeals the Respondent might take to
avoid bargaining could "take up to 4 years to go through the Courts,"
that employees would lose things they already had if the Union came in,
and that he might even "lock the doors" if that happened , we agree with
Judge Goerlich that Rathbun's speeches amounted to unlawful threats to
and conclusions and to adopt their recommended
Orders as modified in the attached consolidated
Order.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3
in Administrative Law Judge Goerlich's decision:
"3. By conveying to employees the futility of se-
lecting the Union as their collective-bargaining rep-
resentative and by unlawfully depriving the Union
of the use of its bulletin board or threatening to
discharge employees who lawfully use the board
for posting union publicity, the Respondent has
violated Section 8(a)(1) of the Act."
ORDER
The National Labor Relations Board orders that
the Respondent, Venture Packaging, Inc., Monroe-
ville, Ohio, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with
Glass, Pottery, Plastics and Allied Workers Inter-
national Union, AFL-CIO, CLC, as the exclusive
bargaining representative of its employees in the
appropriate unit with respect to wages, hours,
working conditions, or other terms and conditions
of employment of the employees. The appropriate
unit is:
All production and maintenance employees, in-
cluding employees who perform molding,
packing, printing, shipping, janitorial, regrind
and machine cleaning work, and maintenance
and training foremen, but excluding all general
foremen, lead foremen, managers, salesmen,
office clerical employees and all other supervi-
sors, professional employees, and guards as de-
fined in the Act.
(b) Refusing to bargain with the Union by failing
or refusing to furnish requested information rele-
vant or necessary to the Union's performance of its
function as bargaining representative.
(c) Unilaterally making changes in its employees'
wages, hours, working conditions, or other condi-
tions of employment concerning mandatory sub-
jects of bargaining without bargaining collectively
employees that their selection of a representative for the purpose of col-
lective bargaining would be an exercise in futility
With respect to the Respondent 's reliance on the "compelling econom-
ic considerations" exception , stated in dictum in Mike O'Connor Chevro-
let, 209 NLRB 701, 703 ( 1974), revd on other grounds 512 F 2d 684 (8th
Cir 1975), we find that the Respondent 's assertions of economic losses,
even if credited , do not constitute "compelling economic considerations"
that would excuse the Respondent from failing to offer to bargain with
the Union over the various changes in terms and conditions of employ-
ment that were alleged here as unlawful unilateral actions
294 NLRB No. 42
VENTURE PACKAGING
with the Union in accordance with the require-
ments of Section 8(a)(5) of the Act.
(d) Discouraging membership in the Union or
any other labor organization by constructively dis-
charging its employees in violation of Section
8(a)(3) and (1) of the Act.
(e) Depriving the Union of the use of its bulletin
board or threatening to discharge employees who
lawfully use the board for posting union publicity
in violation of Section 8(a)(1) of the Act.
(f) Threatening employees with the futility, of
choosing a labor union as their collective-bargain-
ing representative, in violation of Section 8(a)(1) of
the Act.
(g) Denying employees wage increases and other
benefits in violation of Section 8(a)(1) and (3) of
the Act.
(h) 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. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Recognize and, on request, bargain collec-
tively with the Union as the exclusive representa-
tive of all employees in the appropriate unit de-
scribed above, with regard to rates of pay, hours of
employment, and other terms and conditions of em-
ployment and, if an understanding is reached,
embody the understanding in a signed agreement.
(b) Promptly furnish the Union with a complete
and accurate list of the names and addresses of all
unit employees.
(c) Make whole the unit employees for any
losses they sustained as a result of its failure to pay
its December 1986 Christmas bonus, with interest,
and continue to pay the bonus, with interest, until
it bargains in good faith with the Union, or the
Union refuses to bargain in good faith over cessa-
tion of the bonus.
(d) Retroactively put into effect 10-cent-an-hour
wage increases for all employees in the appropriate
unit as of July 1, 1986 and 1987, and pay to those
employees the amount of back wages accrued, and
continue to grant such annual increases, effective
each July 1, all with interest on the increases, until
it bargains in good faith with the Union, or the
Union refuses to bargain in good faith over cessa-
tion of such increases, as set forth in the remedy
sections of the judges' decisions.
(e) Rescind the following named new policies or
changes for unit employees that were unilaterally
implemented in June, July, and August 1986, and
remove from the files of the employees any disci-
plinary warnings , notices, or memoranda that
issued as a result of the application of these new
545
policies: Breaktime; personal time and attendance;
cancellation of employee disability benefits; over-
time rule and overtime benefits; transfer of unit em-
ployees to different work schedules; alteration of
hours of work of printing department employees;
final warning procedure and disciplinary proce-
dure; and paid maternity policy. Offer all employ-
ees discharged, suspended, or otherwise disciplined
because of the institution of the new attendance
policy immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against them, in the manner pre-
scribed in F W. Woolworth Co., 90 NLRB 289
(1950), with interest as provided in New Horizons
for the Retarded, 283 NLRB 1173 (1987). Interest
accrued before January 1, 1987, will be computed
under Florida Steel Corp., 231 NLRB 651 (1977).
(f) On request by the Union, rescind the classifi-
cation or reclassification plan unilaterally imple-
mented in June 1986.
(g) Offer Carlene Fluty immediate and full rein-
statement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other
rights or privileges previously enjoyed, and make
her whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
her as set forth in the remedy section of Judge
Goerlich's decision, with interest accrued to Janu-
ary 1, 1987, to be computed under Florida Steel,
supra.
(h) Remove from its files any reference to the
unlawful discharge of Fluty and notify her in writ-
ing that this has been done and that the discharge
will not be used against her in any way.
(i) 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 or reimbursement due under
the terms of this Order.
(j) Post at its Monroeville facility, copies of the
attached notice marked "Appendix."3 Copies of
the notice, on forms provided by the Regional Di-
rector for Region 8, after being signed by the Re-
spondent's authorized representative, shall be
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 read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
posted 'by -the Respondent immediately upon re-
ceipt and maintained for 60" consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to ensure
that the notices are not altered, defaced, or cov-
ered by any other material.
(k) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
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 refuse to recognize and bargain
with the Glass, Pottery, Plastics and Allied Work-
ers International Union, AFL-CIO, CLC, as the
exclusive representative of our employees in the
following appropriate unit:
All production and maintenance employees, in-
cluding employees who perform molding,
packing, printing, shipping, janitorial, regrind
and machine cleaning work, and maintenance
and training foremen, but excluding all general
foremen, lead foremen, managers, salesmen,
office clerical employees and all other supervi-
sors, professional employees, and guards as de-
fined in the Act.
WE WILL NOT refuse to bargain with the Union
by failing or refusing to 'furnish requested informa-
tion relevant or necessary to the Union's perform-
ance of its function as such bargaining representa-
tive.
WE WILL NOT make unlawful unilateral changes
in our employees' wages, hours, working condi-
tions, or other conditions of employment concern-
ing mandatory subjects of bargaining without bar-
gaining collectively with the Union in accordance
with the requirements of the National Labor Rela-
tions Act.
WE WILL NOT constructively discharge our em-
ployees for the purpose of discouraging their mem-
bership in the Union or any other labor organiza-
tion.
WE WILL NOT unlawfully deprive the Union of
the use of our bulletin boards or threaten to dis-
charge employees who lawfully use such boards
for posting union publicity.
WE WILL, NOT threaten employees that it will be
futile for them to `choose a union as their collec-
tive-bargaining representative.
WE WILL NOT unlawfully deny our employees
wage increases and other benefits in violation of
Section 8(a)(3) and (1) of the Act.
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, on request, bargain with the above-
named Union as the exclusive representative of all
the employees in the appropriate unit concerning
rates of pay, wages, hours of work, and other
terms and conditions of employment.
WE WILL promptly furnish the Union with a
complete and accurate list of the names and ad-
dresses of all unit employees.
WE WILL make whole the unit employees for
any losses they sustained as a result of our failure
to pay our December 1986 Christmas bonus, with
interest, and continue to pay the bonus,,- with inter-
est, until we bargain in good faith with the Union,
or the Union refuses to bargain in good faith over
cessation of the bonus.
WE WILL retroactively put into effect 10-cent-an-
hour'increases for all employees in the appropriate
unit commencing July 1, 1986, and pay to those
employees the amount of back wages accrued, and
continue to grant such annual increases, effective
each July 1, all with interest on the increases, until
we bargain in good faith with the Union, or the
Union refuses to bargain in good faith over cessa-
tion of such increases.
WE WILL rescind the following new policies that
were unilaterally implemented in June, July, and
August 1986: Breaktime; personal time and attend-
ance; cancellation of employee disability benefits;
overtime rule and overtime benefits; transfer of unit
employees to different work schedules; alteration
of hours of work of printing department employ-
ees; final warning procedure and disciplinary pro-
cedure; and paid maternity policy.
WE WILL, on request of the Union, rescind the
classification or reclassification plan unilaterally im-
plemented in June 1986.
WE WILL remove from the files of employees
any disciplinary warnings, notices, or memoranda
issued that resulted from application of the new
policies and WE WILL offer all employees dis-
charged, suspended, or otherwise disciplined be-
cause of the new attendance policies immediate and
full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any
other rights or privileges previously enjoyed and
VENTURE PACKAGING
WE WILL make them whole for any loss of earnings
and other,,, benefits suffered as a result of the dis-
crimination against them.
WE WILL offer Carlene Fluty immediate and full
reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other
rights or privileges previously enjoyed and WE
WILL make her whole for any loss of earnings and
other benefits resulting from her discharge, less any
net interim earnings, plus interest.
WE WILL notify Carlene Fluty that we have re-
moved from our files any reference to her dis-
charge and that the discharge will not be used
against her in any way.
VENTURE PACKAGING CO.
Frank Motil, Esq., for the General Counsel
Frederick R. Post, Esq., of Toledo, Ohio, for the Re-
spondent.
Joshua M.' Spielberg, Esq., of Haddonfield, New Jersey,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge. The
charge filed by Glass, Pottery, Plastics and Allied Work-
ers Union, AFL-CIO, CLC (the Union or the Charging
Party) on 13 January 1986 in Case 8-CA-19242 was
served by certified mail on Venture Packaging, Inc., the
Respondent, on the same date. An amended charge in
the same case, filed 8 July 1986, was served on the Re-
spondent by certified mail on the same date The charge
in Case 8-CA-19371, filed by the Union on 29 July 1986,
was served on the Respondent by certified mail on 30
July 1986. The charge in Case 8-CA-19438, filed by the
Union on 22 August 1986, was served on the Respondent
by certified mail on 25 August 1986. The second amend-
ed charge in Case 8-CA-19242, filed on 2 October 1986,
was served on the Respondent 3 October 1986. An order
consolidating cases, amended consolidated complaint,'
and notice of hearing was issued on 12 September 1986.
Among other things, it is alleged in the amended consoli-
dated complaint that the Respondent refused to recog-
nize and bargain with the Union after it was designated
by a majority of the Respondent's employees in an ap-
propriate unit as the statutory bargaining agent for its
employees in violation of Section 8(a)(1) and (5) of the
National Labor Relations Act. Additionally, it is alleged
that the Respondent has also violated Section 8(a)(1) and
(3) of the Act.
The Respondent filed a timely answer denying that it
had engaged in the unfair labor practices alleged.
The case came on for hearing in Sandusky, Ohio, on
12-15 November 1986 and 6-8 January 1987. All parties
were afforded a full opportunity to be heard, to call, to
' Certain amendments were allowed at the hearing
547
examine and cross-examine witnesses, to argue orally on
the record, to submit proposed findings of fact and con-'
clusions, and to file briefs. All briefs have been carefully
considered.
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing2
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At all times material , the Respondent, an Ohio corpo-
ration, with an office and place of business in Monroe-
ville, Ohio (the Respondent's facility), has been engaged
in the manufacture of plastic food containers. Annually,
the Respondent, in the course and conduct of its business
operations described above, sold and shipped from its
Monroeville, Ohio facility products, goods, and materials
valued in excess of $50,000 directly to points outside the
State of Ohio. The Respondent is now, and has been at
all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act
III. THE UNFAIR LABOR PRACTICES
A. The Refusal to Recognize and Bargain with the
Union
A representation election was held among the Re-
spondent's employees on 22 and 23 May 1986 in the fol-
lowing unit of employees.
All production and maintenance employees, includ-
ing employees who perform molding, packing,
printing, shipping, janitorial, regrind and machine
cleaning work, and maintenance and training fore-
men, but excluding all general foremen, lead fore-
men, managers, salesmen , office clerical employees
and all other supervisors, professional employees,
and guards as defined in the Act
Over the objection of the Respondent, the Board on 8
August 1986 denied Employer's request for review of the
Regional Director's Supplemental Decision and certifica-
tion of representative in which the Regional Director
had certified the Union as the bargaining representative
2 The facts found here are based on the record as a whole and the ob-
servation of the witnesses The credibility resolutions have been derived
from a review of the entire testimonial record and exhibits, with due
regard for the logic of probability , the demeanor of the witnesses, and
the teachings of NLRB v Walton Mfg Co, 369 U S 404, 408 (1962) As
to those witnesses testifying in contradiction of the findings here, their
testimonies have been discredited either as having been in conflict with
the testimonies of credible witnesses or because the testimony was in and
of itself incredible and unworthy of belief All testimony has been re-
viewed and weighed in the light of the entire record No testimony has
been pretermitted
548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the employees in the unit described above, which was
found to have been an appropriate unit under the statute.
In this proceeding the Respondent has justified its re-
fusal to recognize and bargain with the Union as stated
by the Respondent's counsel:
We have refused to bargain in good faith, and our
refusal is based upon the background in this matter,
which involves a determination by Region 8 of the
labor board, about supervisors, which we believe
was wrong, under Section 2(11) of the Act, which
caused the election to be improperly conducted, be-
cause statutory supervisors were declared eligible to
vote, and did, in fact, vote in the election.3
The Union requested the Respondent to recognize it as
the exclusive bargaining representative on 1 July 1986;
the Respondent refused on 20 August 1986
As stated in Kline's Potato Chips, 274 NLRB 628, 629
(1985):
It is well settled that in the absence of newly dis-
covered and previously unavailable evidence or spe-
cial circumstances , a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled to
relitigate issues that were or could have been litigat-
ed in a prior representation proceeding . See Pitts-
burgh Glass Co. v. NLRB, 313 U S. 146, 162 (1941);
Secs. 102.67(f) and 102.69(c) of the Board's Rules
and Regulations. [See also Ryder Driver Leasing, 282
NLRB 451 (1986).]
All issues which the Employer seeks to raise were or
could have been litigated in the prior representation pro-
ceedings. The Respondent has offered no newly discov-
ered or previously unavailable evidence nor has it ad-
duced any special circumstances which would require a
reexamination of the Board 's decision in the representa-
tion case. I conclude, therefore, and find that the Re-
spondent has not raised any issue which is properly liti-
gable in this unfair labor proceeding pertaining to those
matters relating to the representation case. Accordingly,
I find that the Respondent's refusal to recognize and bar-
gain with the Union on and after 23 May 19864 as the
statutory bargaining representative of its employees in
the above-described appropriate unit was and is in viola-
tion of Section 8(a)(1) and (3) of the Act and that the
Union continues to be the exclusive representative under
Section 9(a) of the Act in the above-described appropri-
ate unit.
' In its answer the Respondent has alleged
The Consolidated Complaint fails to state a claim against Respond-
ent upon which relief can be granted , since in its entirety, it is based
upon the initial erroneous determination by the Regional Director
and the Labor Board that the unit described in paragraph 6 of the
Consolidated Complaint constitutes a unit appropriate for collective
bargaining which it does not because it improperly contains supervi-
sors excluded by Section 2(11) of the Act and is therefore, inappro-
priate, making all further orders and decisions improper and having
no legal effect upon the employer
" As stated in Fleming Mfg Co, 119 NLRB 452, 464 (1957)
[O]nce any employer becomes aware of a properly designated bar-
gaining representative , he may not unilaterally make changes in the
employees ' terms and conditions of employment without first giving
the representative an opportunity to bargain collectively
B. The Respondent's Antiunion Animus
Willard John Rathbun, president of the Respondent,
testified that he conducted nine captive-audience meet-
ings each week during the 3 weeks before the election.
Each meeting lasted approximately an hour. Rathbun
gave 27 talks in all at which, among other things, he
said, "I told them I was not in favor of it [the Union],
and I told them I did not think it was in their best inter-
est." Rathbun further testified that he told the employ-
ees:
Well, I had been a member of this very union
myself. I'd been a dues paying member . I never saw
it did a thing for me. I certainly have seen enough
occasions, in this town alone, where unions have
put companies out of business, and I couldn't see
where it could benefit-I couldn't see where they
could get anything from Venture Packaging, that
they didn't already have, or we couldn't give them
if we made profit.
We talked about their bylaws. We talked about
the salaries that their national hierarchy made. I
can't give you-you know, I don't know, word for
word, what I said in those meetings.
I explained to them what the union was looking
for, as far as dues, and what it would, take out of
their pockets. -
Employee Carlene Fluty remembered Rathbun said at
one of these meetings, "[Y]ou know, that we'd be losing
a lot if we had the union in. They wasn't going to do
anything for us. And, you know, it just wouldn't be
good for the company, if the union came in."
Employee Vicki Lynn Boesch testified that Rathbun
showed her a "paper" in the R case and said that
he was going to appeal the decision , because he
didn't think that it was right, and he said it could
take up to four years,5 to go through the Courts, to
have it appealed, I guess. Or to negotiate with the
Union. [T]he union could not get us the sweat off
his assn and that we would eventually end losing a
lot of the things that we did have already
Employee Theresa K. Hopkins remembered that Rath-
bun had said in September 1986 that "if you wore your
T-shirts, you stood out, and he recognized who you
were, and you would draw less attention if you didn't
wear them, you know, and then he wouldn't notice
you.,,
In regard to a union bulletin board posting incident
(see infra), Rathbun, very angry, said that if the employ-
ees "wanted to play fuck around he would play back."
Moreover, concerning the same incident, he testified that
5 Cf Fry Foods, 241 NLRB 76, 81 (1979), enfd 609 F 2d 267 (6th Cir
1979)
8 At this point Boesch's affidavit included "because the company had
lost money the first quarter of this year "
VENTURE PACKAGING
he denied the Union the use of the bulletin board be-
cause unfair. labor practice charges were filed.
At an' employee meeting called in August, Mary J.
Hester testified that Rathbun commented, in reference to
the pending unfair labor practices, "if the fines were big
. . . it would not be coming out of his pocket. It would
be coming out of the employees' pockets . . if it got to
be too much, he didn't give a rat's ass about anything.
He would lock the doors and let the banks take over."
When employee Helen F. Vanderpool advised John
Wilson that she had been subpoenaed as a witness in this
proceeding, he remarked, "[T]hey had expected to lose
this case, but it wouldn't make any difference, because
they would ignore the union, as they had done in the
past,"
The foregoing excerpts from the record establish
beyond a reasonable doubt that the Respondent harbored
a deep resentment against the Union. Indeed Rathbun,
who set policy for the Respondent, while on the witness
stand portrayed a person who was indignant and angered
at the advent of the Union and embittered at those of his
employees who supported it. Union T-shirts caused him
concern. Even prior to the conclusion of the election,
the Respondent had already determined to appeal if the
election favored the Union.7 Thus Rathbun chose to risk
unfair labor practices rather than deal with the Union, al-
though he testified that his choice was costing the Re-
spondent a "fortune." Hence, it is obvious that he would
rather have spent a fortune than bargain with the Union
The Respondent's strategy was well reflected in Gen-
eral Manager John Wilson's testimony: "[T]hey expected
to lose this case, but it wouldn't make any difference, be-
cause they would ignore the union, as they have done in
the past," and Rathbun's observation that the appeal
could take up to 4 years during which time the "union
could not get the sweat off his ass." Rather than deal
with the Union in respect to employee concerns, Rath-
bun's strategy was one of delay which could only mili-
tate to the Union's disadvantage and the Respondent's
advantage for it is unlikely that an employee generally
will remain loyal to a union when the union is virtually
impotent and can produce little
Additionally, Rathbun became so angered at the em-
ployees' exercising their Section 7 rights by seeking help
from 'the Board that he threatened to charge them with
"fines," if imposed by the Board
It seems evident, therefore, that the Respondent's al-
leged misconduct must be weighed in the light of Rath-
bun's antiunion animus, his bitterness toward his proun-
ion employees, his zest for retaliation, and his uncompro-
mising efforts to avoid recognizing or dealing with the
Union, all of which is manifested in Rathbun's testimony
and his attitude while testifying on the witness stand. I
am convinced that the credible evidence in this case es-
tablishes that the Respondent harbored a strong antiun-
ion animus and I so find.
C. The Respondent's Changes in Working Conditions
The General Counsel in her brief contends that the
unilateral changes in working conditions effected by the
549
Respondent (as detailed herein infra) were, instituted at
the Respondent's peril, citing Allstate Insurance Co., 234
NLRB 193 (1978), "It is well established that an employ-
er refuses to recognize a certified labor organization at
its peril "
In the case of Mike O'Connor Chevrolet, 209 NLRB
701, 703 (1974), the Board said:
The Board has long held that, absent compelling
economic considerations for doing so, an employer
acts at its peril in making changes in terms and con-
ditions of employment during the period that objec-
tions to an election are pending and the final deter-
mination has not yet been made. . . To hold oth-
erwise would allow an employer to box the union
in on future bargaining positions by implementing
changes of policy and practice during the period
when objections or determinative challenges to the
election are pending
Moreover, the Board has long held that an employer
may not make unilateral changes in employees' terms and
conditions of employment after the union has been desig-
nated as the statutory bargaining agent without giving
the union an opportunity to bargain collectively. In
Fleming Mfg. Co., 119 NLRB 452, 464 (1957), it is re-
ported:
The Union's majority was established on July 16,
1956, when the tally of ballots was counted. On that
day McClelland admittedly was aware of the estab-
lishment of the Union's majority status. The Board
has held that once any employer becomes aware of
a properly designated bargaining representative, he
may not unilaterally make changes in the employ-
ees' terms and conditions of employment, without
first giving the representative an opportunity to bar-
gain collectively.
Additionally, an employer's refusal to fulfill its statuto-
ry obligations to bargain cannot be measured by the em-
ployer's alleged good-faith or economic justifications.
Mike O'Connor Chevrolet, supra at 704. In this case the
Board opines-
Respondent does not dispute the fact that it an-
nounced that these changes in rules and policies
would be implemented on or about the date alleged.
Instead, it defends its changes on the ground that,
as a new employer, it had to make known its poli-
cies to its employees, and that the changes in policy
and practice which were made were motivated by
sound business considerations, and not for the pur-
pose of undermining the Union. It is well estab-
lished, however, that, whether unlawfully motivat-
ed or not, an employer violates Section 8(a)(5) and
(1) where it makes changes in terms and conditions
of employment during the pendency of objections
' See R Br at 73 and 74
550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to an election which eventually results in the certifi-
cation of the union.12
' 2 As the Trial Examiner stated, with Board approval, in Flem-
ing Mfg Co, supra, at 465 "Nor is there any merit to the Re-
spondent's defense, even if true, that its action was dictated by
economic considerations 'The Respondent had a duty to bargain
with the employees' representative, and it could not elect to ob-
serve or disregard this duty on the basis of economic expediency,
even in good faith "'
Again in Master Slack, 230 NLRB 1054 (1977), it was
said.
The general principles of law applicable to the
issues raised by the General Counsel's exceptions
are well established. Unilateral changes of "wages,
hours and terms and conditions of employment," as
defined in Section 8(d), at a time when an employer
is obligated to bargain with the duly designated rep-
resentative of the employees in an appropriate unit,
violates. Section 8(a)(5) of the Act. This applies
even absent an independent showing of overall sub-
jective bad faith and is not excused by "economic
expediency, even in good faith."
Thus, Respondent not only was obligated to bar-
gain with the Union about terms and conditions of
employment but also was obligated not to change
established working conditions without consulting
the Union.
Nevertheless, the Respondent argues that it is excused
from the obligation to bargain because its economic con-
ditions come within the exception noted in the language
of Mike O'Connor Chevrolet, supra, "absent compelling
economic considerations." In support of this contention,
the Respondent has cited no case in which the facts fall
within the doctrine As will appear hereinafter, after ex-
amining the Respondent's brief and arguments and the
record as a whole, I am convinced that no compelling
economic considerations warranted the Respondent's uni-
lateral action
Thus the Respondent's effecting of the unilateral
changes, hereinafter detailed, either admitted or proved
(which were all instituted without bargaining collectively
with the Union), constitutes violations of Section 8(a)(1)
and (5) of the Act. Additionally, all those unilateral
changes which had a tendency to discourage union affec-
tion and union membership constituted violations of Sec-
tion 8(a)(1) and (3) of the Act. (See infra.)
D. Alleged Unilateral changes in Working Conditions
for the Purpose of Discouraging Union Affection
The General Counsel has alleged in her amended con-
solidated complaint that after the Union became the des-
ignated bargaining representative8 of the Respondent's
employees, the Respondent effected certain unilateral
changes in working conditions for the purpose of dis-
couraging union affection. These allegations will be con-
sidered seriatim
8 The Union was chosen as the designated bargaining representative on
23 May 1986
(a) Around June 1986, the exact date being unknown,
the Respondent implemented a new policy requiring em-
ployees to check in with Supervisors when leaving
and/or returning from breaks and it disciplined Barbara
Potts and other unit employees pursuant to this policy.
In its answer, as amended, the Respondent denied
"any change in the policy requiring employees to check
in with supervisors regarding breaks, but, admitted a lit-
eral interpretation of that policy, and a strict application
of it.9
The Respondent's admission brings it within the lan-
guage of Fry Foods, 241 NLRB 76, 93 (1979)•
The change in enforcement policy constitutes, in
effect, a different term or condition of employment.
Since it was instituted without negotiation with the
bargaining agent , the change amounts to a violation
of Section 8(a)(1) and (5) of the Act.
When Rathbun was asked whether there was a change
in the break policy after the election in the treatment of
personal breaks, he replied, "The only thing we did, we
enforced the times."
As described by employee Boesch, prior to Rathbun's
new enforcement policy:
You were working at your machine, and either a
foreman or a packer would come and tell you to go
on your break, and you would just go, take your
time and come back. Whichever time you had. Like
a 10 minute break, or your half hour break. You'd
just take that time, and then come back
Employee Mary J Hester referred to the system as
"an honor system."
After Rathbun instituted his new enforcement policy,
he supplied the foremen with digital watches for the pur-
pose of timing employees while on their breaks. Employ-
ees were required to check with the foremen before and
after their breaktimes The foremen "would write down
the time that you left, and when you came back " Em-
ployees were written up if they were late returning from
their'breaks, among whom were Helen L. Vanderpool
and Mary J. Hester. Employees also were required to
locate the exact foreman with whom they had signed out
on their return
I am convinced that the new harsh enforcement policy
for breaktime was instituted to punish employees for
choosing the Union. Rathbun's strong antiunion animus
is enough to support this conclusion. Apparently Rath-
bun intended to set the employees straight and cause
them to "knuckle under," for, after referring to the situa-
tion after the election, he said, "[I]t seemed like every-
body thought the Union could just fly over and crap
gold."
The Respondent's monitoring of the employees' break-
time in the provocative manner detailed in the record
was more than the "minimal" change referred to in the
Respondent's brief (p. 57) which the Respondent argues
precludes a finding of retaliation for union activities. Ad-
s As amended at the hearing
VENTURE PACKAGING
ditionally, the need for this "minimal" change (as ad-
dressed by the Respondent) was not of such a compel-
ling economic nature to relieve it from its obligation to
bargain about the change.
The Respondent's change in the breaktime policy was
in violation of Section 8(a)(1), (3), and (5) of the Act
(b) Around June 1986, the exact date being unknown,
the Respondent elevated approximately 20 unit employ-
ees to the status of foreman, thereby improving their
wages and benefits.' °
The Respondent answered that
we admit to creating a new supervisor's job classifi-
cation The procedure to recruit applicants was ac-
cording to past practice. We deny any unlawful
motive, and admit the procedure resulted in ap-
proximately 20 new supervisors
In the instant case the Board included in the appropri-
ate unit employees whom the Respondent contended
should have been excluded as supervisors Shortly there-
after, the Respondent announced changes in the jobs de-
claring that it was taking away from them supervisory
powers with which it claimed they had been possessed
Later in June, Rathbun created what he termed new su-
pervisory classifications without collectively bargaining
with the Union.
As stated in Fry Foods, supra, 241 NLRB at 88.
[T]he reclassification of a position from a bargaining
unit job to a nonunit job is a mandatory subject of
collective bargaining if the reclassification has an
impact on bargaining work. Here the impact is quite
clear because the new supervisors in question con-
tinued to do assembly-line work. [See also Sands
Motel, 280 NLRB 132 (1986).]
In regard to these new supervisory positions, Rathbun
testified:
Basically, we returned some of the fellows that
were taken away from us, back to the salaried
ranks, by changing their job classification, changing
their payroll, and trying to get them total, to where
they would be within, what is it, 2(11) or whatever.
About one-half the employees who the Respondent
contended should have been excluded from the appropri-
ate unit were reclassified as salaried supervisors. Appar-
ently their duties remained substantially the same as
before the reclassification. However, they did receive
wage increases. In regard to the supervisory powers al-
legedly bestowed on these employees in the reclassifica-
tion, Rathbun testified that they "[n]ot only had it [su-
pervisory power], they demonstrated it, which we gave
evidence to at the trial."
Some of the reclassified employees also became "qual-
ity control supervisors." "The rest of them are supervi-
sors in the molding and printing department."
10 As amended at the hearing
11 Rathbun's testimony
551
Phillip Paul Haar, a witness called by the Respondent,
testified that the differences between his job responsibil-
ities on his reclassified job and the job he filled as an em-
ployee in the appropriate unit were "[b]asically, not too
many at all, not to mention." Ralph G. Smith and Don
Wheeler testified in like vein All these employees, as
well as some others, were put back to "maintenance per-
sons" after the Board's decision and then reclassified to
positions similar to the ones they had prior to the
Board's decision which had been in the appropriate unit.
As noted, the Respondent also established a quality
control classification that centered in the employee cer-
tain inspection duties which had previously been left to
the employee Vickie Lynn Boesch described her duties
prior to the change as "I was a packer. I was at a ma-
chine, one specific machine, on my shift and I just
packed the bucket or the lid. I inspected it. If it was bad, I
threw it away " (Emphasis added.)
After becoming a quality control person, she'described
her duties as follows:
Just inspecting the product, and making sure
people knew what they were doing. Training the
people. Writing them up, if they had to be written
up That's all I was doing
Her wages were increased.
Employee Helen L. Vanderpool described her job as-
signments as follows:
Well, my main duty is to check the printing' on
the containers and lids that we print. Make sure that
the print is plain. It's not off center, or there is no
infractions in the print that's going out. And that I
also had to watch for bad products that came from
the molding department into our department, and
make sure that they weren't packed. That occasion-
ally, you know, the printers would not see, you
know, like a short in the lid, and I would have to
watch for things of that nature, and that I would
also have to take care of the stock on all of the ma-
chines Make sure there were stock taken to and
from the machines for printed and imprinted stock.
And that I would have to do write-ups on bad
products.
Like if I had told a person that their print was
not clear, and not to pack it, and they continued to
pack it, or if it'd been packed, and it was very visi-
ble, you know, then that person was to be wrote up
for packing that product.
Gregory Schlett, head of the printing department, tes-
tified that he told an employee:
I needed somebody . . that knew what they were
doing, to watch quality . . I told her what her
duties were, which is make sure that the colors are
right, the print's clear, your containers, your lids
are drying, watch for the scrap, keep the stock up,
make sure that all machines have enough stock
. . . make sure they use the numbers . . . to make
sure that they did stamp their boxes If they didn't,
552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
they were warned, if they still didn't, then, they
were wrote up. . . She had written up people for
not putting their stamps on boxes, or packing bad
products
Rathbun also testified that the employees who were
"relegated back to the maintenance department" 12 were
evaluated for the purpose of advancing them to new su-
pervisory positions. "[W]e picked out the people we felt
should be elevated to salary, who were the most trained,
had the best abilities . . . 12 new salary people" were
put in the molding department and "about 2 or 3" in
printing. "We'll put in a quality control department, and
we will try to have quality control train people." Sup-
posedly, the quality control supervisors were put on in
response to complaints from customers in regard to the
unsatisfactory product the Respondent was shipping and
the fact that Rathbun believed his products were being
sabotaged by the employees. Unlike regular employees,
the quality control supervisors were on salary, received 4
sick or personal leave days a year, and had to work 8-
1/2 hours a day.
Hence, it appears from the credited evidence that the
alleged supervisors in the quality control department and
the supervisors in the molding and print departments
who were either classified or reclassified, performed or
continued to perform duties which fell within the appro-
priate bargaining unit, and their classification or reclassi-
fication had an impact on bargaining work, . concerning
which the Respondent was obligated to bargain.
But the Respondent argues that compelling economic
considerations existed in that it was necessary for the Re-
spondent to regain control of the work force that was
lost because the "supervisory group was dramatically re-
duced by the Region's decision in the R Case " Howev-
er, incongruously the Respondent does not explain why
it could not have left the status quo, which had pro-
duced profits for the Respondent, continue until it had
bargained with the Union or until the appeal had been
resolved Thus the Respondent would have avoided the
claimed ill effects13 (also referred to as a "tail spin" in
12 These were the employees who in the R case the Respondent had
contended were supervisors
13 For example the excerpts from the Respondent 's brief, p 5, state
"chaos erupted in the plant largely because there were no longer enough
first line supervisors available to manage the work force because of the
decision of Region 8 of the Labor Board " The Respondent did not meet its
problems because it was preoccupied with the difficult time consuming
challenge of struggling through the pre-election campaign with little help
from its depleted ranks of supervisors " (Br 8)
The alleged "product sabotage explosion as well as the deterioration in
product quality " was the result of the "virtual dearth of supervisors, who
had been reduced by bureaucratic fiat from 40 down to 10 "
Rathbun also testified extensively about additional problems that were
being experienced with the work place , which he characterized as virtu-
ally chaos within the plant , a state of anarchy that was the direct result of
the loss of 75 percent of his supervisors (40 down to 10) which made proper
monitoring of the employee group almost impossible and further facilitat-
ed a reckless disregard for rules and procedures that had been in effect
previously (Br 41, 42 )
Changes were absolutely necessary based upon compelling eco-
nomic considerations that existed at the time as a part of Rathbun's
efforts to regain control of the work force that was lost because his
supervisory group was dramatically reduced by the Region 's decision in
the R Case [Br 50 ]
the Respondent's brief) which it claimed resulted from
the Board's decision. The fact that Rathbun reacted hos-
tilely to the Board's decision (if his version of the events
is to be believed) did not license him to make unilateral
changes without bargaining with the Union and afford
him an excuse to throttle employees' rights. Rathbun's
motive seems obvious There were no compelling eco-
nomic considerations for the above-detailed unilateral
changes. The Respondent violated Section 8(a)(1) and (5)
of the Act.
The Charging Party contends that the Respondent
used the establishment of the foregoing positions to
create an atmosphere that coerced employees in the free
exercise of their Section 7 rights and discouraged union
membership. The Charging Party cites the following rea-
sons.
1. All these persons received substantial increases and
other benefits and those who were in the Union' s unit re-
ceived nothing and were subjected to harsh work rules.
2. Employee Boesch, who had been offered a job, and
thereafter accepted it, was affected in her choice thereof
by the demonstrated impotence of the Union in being
unable to accomplish any work changes.14
3 Rathbun handpicked key union supporters, Boesch,
Vanderpool, McCool, and Phillips,15 so thathehe could
not only reduce the quantity of bargaining unit employ-
ees but also reduce the quality of available union leader-
ship.
Considering the antiunion animus of Rathbun, the fore-
going inferences are not without foundation. '
The Respondent pleads business considerations. How-
ever, this does not explain the choice of a disproportion-
ate number of union partisans. Nor does it explain why
Rathbun did not return to the successful operation he
had conducted prior to the union election at which time
the duties performed by the reclassified alleged supervi-
sorsls belonged to the employees in the unit who were
eligible for union membership. The Respondent had op-
erated profitably under such a setup. I conclude that
Rathbun, displeased with the selection of the Union,
challenged the Board's unit determination to avoid bar-
gaining with the Union and, in furtherance , of such ob-
jective, deemed certain unit employees to become super-
visors for the purpose diluting the unit and depriving the
[T]he Regional Director committed errors of law in his Decision
and Direction of Election in the underlying R Case thereby greatly
improving the chance for a union victory in the R Case by substan-
tially stripping the employer of the vast majority of its first line super-
vision which had the predicted results of anarchy and chaos within the
work place and an enormous explosion of quality control problems,
sabotage and other matters brought into evidence during the trial of
the C Case [Br 711 [Emphasis added ]
14 Rathbun believed that Boesch could no longer remain in the Union
and take the offered job Rathbun had also told employees it would take
4 years to have the decision in this case appealed and that the "union
could not get us the sweat off his ass , and that we would eventually end
up losing a lot of the things that we did have already "
is According to Boesch, Boesch was temporary president, Carla
McCool, vice president, Mary Hester, recording secretary, and Sharon
Phillips, treasurer of the Union Vanderpool had been a witness for the
Union None of their new jobs were posted They were individually se-
lected by Rathbun
Is For the purpose of this decision , I deem it unnecessary to decide the
supervisory status of the reclassified employees
VENTURE PACKAGING
Union of its right to bargain for work in the appropriate
unit. '
I find that the classification or reclassification of em-
ployees as quality control supervisor or supervisors in
the molding and printing departments was so adminis-
trated to create an atmosphere that coerced employees in
their free choice of a bargaining representative and dis-
couraged union membership and thereby the Respondent
violated Section 8(a)(1) and (3) of the Act.
(c) About 10 June 1986, the exact date being unknown,
the Respondent changed its policy regarding personal
time, and about 10 July 1986, implemented a new attend-
ance policy, thereby adversely affecting Mitchell Bell,
Denville Hunt, Karen Norman, Patricia Pow, Mary
Hester, Encil Matheny, Theresa Hopkins, and other unit
employees.17
For its answer the Respondent admitted to having
modified its policies regarding personal time and attend-
ance based on business needs, pursuant to an economic
justification, and after advance notice to all employees
affected
After the election employee Mary I. Hester testified
that she was told that "there would be no more personal
days off."
Because the Respondent has not offered credible evi-
dence establishing that it was relieved of its obligation to
bargain with the Union about personal time and attend-
ance policies, subjects of mandatory bargaining, the Re-
spondent has violated Section 8(a)(1) and (5) of the Act.
Additionally, in view of Rathbun's antiunion animus dis-
cussed above and the nature of the action of the Re-
spondent, I find that the Respondent also violated Sec-
tion 8(a)(3) of the Act.
(d) On or about 13 June 1986, the Respondent can-
celed unit employees' disability benefits
The Respondent in its answer admitted the above alle-
gation but denied that the cancellation was done for any
illegal motive.
On 10 June 1986 the Respondent posted a notice
which in part read, "Due to the extremely difficult
market place and due to the competitive situation we are
in we are forced to discontinue our short term disability
plan. This is effective immediately." (G.C. Exh 4.) Prior
to the elimination of these benefits "people who were
disabled got $50.00 a week." Rathbun said the plan was
terminated because "we just couldn't afford it."
The Respondent, having produced no credible evi-
dence which relieved it of the duty to bargain collective-
ly with the Union in regard to disability benefits violated
Section 8(a)(1) and (5) of the Act by its discontinuance
of its short-term disability plan, a mandatory subject of
bargaining, without bargaining collectively with the
Union. Additionally, in view of Rathbun' s antiunion
animus discussed above and the nature of the Respond-
ent's action, I also find that the Respondent violated Sec-
tion 8(a)(3) of the Act.
(e) Around 1 July 1986, the exact date being unknown,
the Respondent created a new job classification of qual-
ity control inspector, thereby granting additional benefits
to unit employees elevated to that classification.
11 As amended at the hearing
553
In its answer, as amended, the Respondent admitted
creating a new quality control supervisor job following a
procedure to recruit applicants as was done in the past.
It denied an unlawful nature
The foregoing allegation has been considered fully in
section (b), supra.
(f) About 1 July 1986, the Respondent failed to give a
regularly scheduled across-the-board wage increase to
unit employees.
In its answer, as amended, the Respondent admitted
that it had been unable to grant any annual wage in-
creases but denied that such was done for unlawful mo-
tives.
The parties stipulated as follows:
That on or about July 7th, 1982, such a general
increase was given in the amount of 25 cents per
hour, that on or about July 4th, 1983 that amount
was 15 cents per hour; that on or about July 1, 1984
that amount was 20 cents per hour, and that the last
such general increase to production and mainte-
nance employees was on or about July 11th, 1985 in
the amount of 15 cents per hour
Rathbun testified that commencing in July 1978, the next
year after the Respondent commenced business, and
thereafter until July 1986 it was the Respondent's
"normal procedure" to grant the employees a wage in-
crease in July. (Emphasis added.)
Britt C. Bauer, controller of the Respondent, testified
that a prospective like18 wage raise was included in the
Respondent's 1986 fiscal year budget 19
The inclusion of the wage was discussed with Rathbun
by Bauer in October or November 1985 when the budget
was prepared.
According to Rathbun, the wage raise would have
amounted to around $50,000 for the 1986 fiscal year (or
around $960 a week). Controller Bauer agreed with
Rathbun's figure of $50,000. In June 1986 Bauer "esti-
mated that a 10 cent raise would cost the company ap-
proximately $50,000 in these direct kind of costs."
In July,20 according to Bauer, he discussed with Rath-
bun
that we needed to cut costs anywhere possible and
giving a raise increase at that time just wasn't feasi-
ble based on our cash situation and the financial sit-
uation of the company being our losing quar-
ters. . .21 We always had given raises in the past
and it was always a consideration. We would have
wanted to, but based on . . . the financial situation
of the company, we felt like we needed to decrease
our costs, anyway we could.22 [Emphasis added.]
18 Bauer referred to the annual July increase as having been "tradition-
ally" given
is The fiscal year covered by the budget was from 1 October 1985 to
30 September 1986
20 Bauer was not definite as to when this discussion actually took
place
21 At that time, July 1986, there had been only one losing quarter
22 Bauer did not remember whether Rathbun or he had brought the
subject up
554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Although Bauer indicated that the Respondent wanted
to decrease its costs "anyway [it] could," it increased the
payments of dividends in 1986 from $1156 in 1985 to
$5782 in 1986, over 19 percent. A dividend was declared
in the amount of $5782 on the earnings in fiscal year
1986. Rathbun owned 86.5 percent of the stock of the
Respondent.2 3 Bauer testified-
Now after the much worst year, in fiscal year 1986,
we did not choose to decrease that dividend amount
because . . . . We felt because these shareholders
for years had only been given a small portion of a
dividend and even $25.00 share dividend is a very
small return on their investment. And the fact that
we didn't want to decrease it to really alarm them
or get them upset,24 and after all, we didn't de-
crease wages when we had a bad year, and didn't
feel at that time that we should decrease dividends
Bauer testified that in April or May the Respondent's
financial position began deteriorating. According to
Bauer, the last two quarters of fiscal year 1986 showed
losses which in part were due to: "[W]e started having
[April 1986] many quality problems, customer returns,
customer complaints, and actual sabotage out in the
plant, which tended to increase our operating expense
significantly."
As stated in Sweetwater Hospital Assn., 226 NLRB 321,
324(1976)-
On the basis of its established practice the employ-
ees in the bargaining unit would have been granted
the wage increase, and Respondent's desire to test
the legal validity of the certification clearly did not
justify withholding the wage increase without
notice to the Union or giving it an opportunity to
bargain.
See also Baker Brush Co., 233 NLRB 561, 562 (1977),
in which it is reported.
The Board, with Court approval, has consistently
held that an employer who withholds pay increases
from employees who have chosen a union as their
bargaining representative violates the Act if the em-
ployees otherwise would have been granted the
raises in the normal course of the employer's busi-
ness.
In Atlantic Forest Products, 282 NLRB 855 at 858
(1987), the Board said, "It is well established that an em-
ployer is required to proceed with an expected wage or
benefit adjustment as if the union were not on the
scene."
On the basis of the credited record in this case, I find
that had the Union not appeared in the Respondent's
plant, the practice of giving an across-the-board wage in-
crease would have been followed and the budgeted in-
crease would have been implemented in July 1986.
21 Rathbun's wife owned one share Rathbun's dividend was $5001 43,
the remaining shareholders received $780 57
24 This explanation would have warranted greater credibility if 86 57
percent of the dividend had not gone to Rathbun
Moreover , in any event the Respondent was obligated to
bargain with the Union about its change in a' practice
which had been well established . Nevertheless , the Re-
spondent refused to bargain.
Nor is the defense that the Respondent was excused
from bargaining because of compelling economic consid-
erations tenable since during the negotiations the budg-
eted raise would have been withheld , thus its financial
condition during negotiations would have remained, as
far as the wage raise was concerned , in status quo.
Indeed , had bargaining proceeded , as commanded by the
statute, and a good-faith impasse been reached , the Re-
spondent could have lawfully instituted a change in its
practice and lawfully canceled the budgeted wage in-
crease. "Had the Respondent bargained with the union
concerning these changes and reached a good faith im-
passe, it could have lawfully instituted the changes."
Fleming Mfg. Co., 119 NLRB 452, 465 fn 14 (1957).
The Respondent's refusal to bargain concerning the
changes in its practice of granting across-the -board in-
creases in July of each year was clearly a violation of
Section 8(a)(1) and (5) of the Act.
The Respondent argues that it ought not be charged
with a violation of Section 8(a)(3) of the Act because of
the bleak financial condition of the Respondent which
prevented it from coming up with the $50,000, or around
$960 a week , to fulfill its usual practice of giving wage
raises in July. Thus the supposed financial disaster it
faced , if wage raises were given , established the Re-
spondent ' s motive as pure and absolved it from any
charge that its actions were tainted by discriminatory
motives.
Nevertheless , I am persuaded that the Respondent can-
celed its budgeted wage increases in order to punish its
employees for choosing the Union and to discourage
union affection for the following reasons
1 The Respondent had budgeted and intended general
wage increase for July 1986. Respondent 's Exhibit 40
discloses that it had budgeted $2,382,715 for wages for
the fiscal year ending 30 September 1986, an increase of
$725,215, or almost 44 percent ( 14.89 percent of project-
ed sales). Such increase was included in the budget even
though the budget called for a decrease in net income
before Federal income tax in the amount of $303,268, or
17.6 percent.
Thus it is quite obvious that the Employer at the time
the budget was formulated was apparently willing to sac-
rifice some of its net profits for employees ' wage in-
creases . After the election the Respondent seemingly
changed this attitude and determined to sacrifice wage
increases , but not dividends.
2. Although the Respondent claimed hard times in the
fiscal year 1986, it paid out $5782 in dividends, an in-
crease of $4626 or 400 percent (or 11 564 percent of a
$50,000 raise) even though Bauer testified "we needed to
decrease our costs any way we could ." Said Bauer, "We
didn't feel . . we should decrease dividends " but unbe-
lievingly the Respondent increased dividends in the face
of alleged losses . Had the Respondent eliminated divi-
dends the $50,000 needed for the 10-cent -wage increase
would have amounted to only $44,218 or $850 a week.
VENTURE PACKAGING
Thus it is difficult to comprehend the Respondent's in-
tense thrust-to decrease expenses by $50,000.
3. Employer's Exhibit 41 reveals that for fiscal year
1986 the Respondent's sales increased over fiscal year
1985 by $2,359,453 or by 19.77 percent and its retained
earnings increased (allowing for $5782 paid out in divi-
dends) by $604,375 or 15 6 percent. Thus, it seems un-
likely that the Respondent's financial soundness would
have been imperiled by the payment of an additional
$50,000.
4. Although Employer's Exhibit 42 discloses a de-
crease of net cash from $25,766 to a minus $125,180 be-
tween 1985 and 1986 fiscal years, in 1985 cash provided
by financing activities ($2,058,131) exceeded 1986
($1,864,707) by $193,424 and in 1986 the purchase of
fixed assets increases from $3,737,884 to $4,908,206, or
$1,170,322 (31 1 percent). This increase in the purchase
of fixed assets does not jell with the Respondent's claim
that it needed to decrease costs "any way [it] could."
5. Employer's Exhibit 44 indicates that the total fixed
assets of the Respondent increased during fiscal year
1986 from $9,950,214 to $13,190,042, or $3,239,828 and
that the stockholders equity increased from $3,904,309 to
$4,508,684, or $604,375. There were slight decreases in
the last fiscal quarter but increases in the quarter ending
30 June 1986. These figures do not reveal a financially
strapped business
6. Employer's Exhibit 45 reveals that the net income
fell to a minus $4787 in the last fiscal quarter of 1986 but
not during the fiscal quarter in which the July raise
would have been apparently resolved. In fact in this
quarter the net income was $156,668, which would have
adequately covered the $50,000 wage increase (During
any quarter only $12,500 would have been needed for
the wage increase.)
7. The Respondent chose a time shortly after the elec-
tion to withdraw its budgeted wage increase, the timing
of which was calculated to lead employees to believe
that the wage increase was canceled because the Union
had won the election.25
8 The Respondent during the investigation of unfair
labor practice charges furnished the Board none of the
financial records which it offered in this hearing, imply-
ing that the records did not enter into its decision for de-
fending itself against the charge of discriminatorily deny-
ing employees wage increases, but were produced only
as an adjunct to this proceeding Cf. U. S. Tubular, Inc.,
280 NLRB 710 at 713 (1986).
9 Sales commissions were increased although sup-
posedly the Respondent was in a tailspin.
10 The Respondents increased its payroll after the
election adding about 12 employees a month 26
11. By increasing its capital expenditures and its pay-
roll, the Respondent manifested an intent to continue ex-
panding its business which is contradictory to the por-
trayal of a business which had fallen on hard times and
25 "Timing alone may suggest anti-union animus as a motivating factor
in the employer's action " NLRB v Rain-Ware, 732 F 2d 1349, 1359 (7th
Cir 1984)
zs Rathbun testified, "I would guess we added 12 [employees] a month,
maybe "
555
indicates that the Respondent treated the alleged imper-
iled profit position as a temporary occurrence.
12. The Respondent's withdrawal of the budgeted
wage increase was in line with Rathbun's assertion that
the Union could not get the "sweat off [Rathbun' s] ass."
13 The Respondent's sales increased for fiscal year
1986.
14 In 1986 the Respondent spent $1.2 million more in
fixed assets than in 1985
15. The Respondent increased its borrowing in 1986
16. Bauer believed that there would be an increase in
sales in fiscal year 1987.
Finally, I do not credit the testimony of Rathbun and
Bauer that they ever discussed the withdrawal of the
July-budgeted wage increase in terms of its economic
impact on the financial situation of the Respondent. Al-
though Bauer was concise and straightforward in a great
part of his testimony, while testifying about his conversa-
tion with Rathbun about the withdrawal of the wage in-
crease, he was vague and evasive.27
27 Bauer testified as follows
JUDGE GOERLICH Did you make any recommendation to Mr
Rathbun as to whether or not the company could cover $50,0007
THE WITNESS What I discussed with him was that we needed to
cut costs anywhere possible and giving a raise increase at that time
Just wasn't feasible based on our cash situation and the financial situ-
ation of the company being our losing quarters [According to R
Exh 45, there had been no "losing quarters" prior to July 1986 In
the quarter ending 30 June 1986 the net income was $156 668 ]
JUDGE GOERLICH Are you referring to what date that you had
this conversation with Mr Rathbun?
THE WITNESS I don't remember specifically We had many infor-
mal discussions throughout the year
JUDGE GOERLICH Or what month it was?
THE WITNESS Pardon me
JUDGE GOERLICH Or what month it Was?
THE WITNESS It probably would have been back right after the
end of June statements, so within the early part of July
JUDGE GOERLICH 19867 _
THE WITNESS Of 1986, right
JUDGE GOERLICH How did the question of wage raises come up"
THE WITNESS We always had given raises in the past and it was
always a consideration We would have wanted to, but based on fi-
nancial-again, like I said, the financial situation of the company, we
felt like we needed to decrease our costs, anyway we could
JUDGE GOERLICH Did you or Mr Rathbun bring up the question
of raises for 19869
THE WITNESS I don't remember, Your Honor It was probably,
like I said, we had many informal discussions, so it could have been
brought up by either one of us
JUDGE GOERLICH Did Mr Rathbun know that your budget
should include-
THE WITNESS Yes, he did
JUDGE GOERLICH -wage raise increases?
THE WITNESS Yes, and then like I testified to earlier, we both had
discussed that at the time we had prepared that budget
JUDGE GOERLICH And somewhere along the line you changed
your mind, is that right?
THE WITNESS Well-
JUDGE GOERLICH Is that correct?
THE WITNESS Yes, we did change our mind
JUDGE GOERLICH Now, I want you to think back and tell me on
what dates you changed your mind?
THE WITNESS It would have been-as far as whether we could
give the raise or not it would have been after I had prepared the
final actual figures for June Now, we had discussed it before that,
by reviewing the daily P&L statements, but we wanted to wait until
after the actual results for the quarter were completed before we
mate a final decision
Continued
556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It is also of significance that, if Bauer's testimony is to
be believed, the decision to withdraw the budgeted wage
increases was not decided until "two, two and a half
weeks" after 30 June 1986, thus the decision was made
later in July than the wage increases which had been
given in prior years. Increases were given on 7 July
1982, 4 July 1983, 1 July 1984, and 11 July 1985 Why
Rathbun waited so long is not clear in the credible
record. Additionally, the Respondent did not explain to
its employees why it was deviation from past practice.
Hence,, employees were led to believe that Rathbun's
threat was being implemented, i.e, "the Union could not
get us the sweat off his ass, and that we would eventual-
ly end up losing a lot of the things that we did have al-
ready."
I find that the credible evidence in the record supports
a finding that the budgeted wage increase was canceled
to discourage employees from becoming or remaining
members of the Union and that the Respondent was not
motivated in this regard by economic considerations
The Respondent has violated Section 8(a)(1) and (3) of
the Act by withholding the July 1986 budgeted wage in-
crease.
(g) "On or about 14 July 1986 the Respondent [imple-
mented] a new policy requiring Encil Matheny, Jr. and
other unit employees, to work mandatory overtime,
thereby affecting them.1128
In its answer the Respondent admitted
to having modified the overtime policy based upon
business needs, pursuant to an economic justification
and after ample advance notice to all employees af-
fected thereby, but denied any adverse effect upon
employees due to the modified policy allowing em-
ployees more control over any necessary overtime
that needed to be scheduled.
Rathbun testified that under the new policy employees
had to be available for overtime five times a month.
They could refuse overtime one time, but the other
four times a month, on the days that were marked
in yellow, they had the responsibility to accept 4
hours overtime if it was offered to them.
Rathbun indicated that he had changed the prior over-
time policy "of basically a voluntary overtime"29 be-
cause he wanted "a few experienced people to work
overtime sometimes during the month "
Because the Respondent did not negotiate with the
Union before it altered its overtime rule, a mandatory
subject of bargaining, the Respondent violated Section
8(a)(1) and (5) of the Act. Nor can the reduction in em-
ployees' overtime benefits be disassociation from the Re-
JUDGE GOERLICH So, It was at the end of the June quarter9
THE WITNESS It was after the end of the June quarter It takes me
approximately two, two and a half weeks to actually finalize the fig-
ures for the month
28 As amended at the hearing
29 Employee Boesch explained the policy thus "[t]hey would just ask
people if they would want to work over, and they either could or
couldn't " Of the new policy Boesch explained, "You're allowed to
refuse once a month The second time you get written up It's
counted as an absent-tardy "
spondent 's other acts aimed at causing disaffection for
the Union, thus I find that the Respondent is guilty of a
violation of Section 8(a)(1) and (3) of the Act.
E. Alleged Unilateral Changes Constituting Violation
of Section 8(a)(5) of the Act
The General Counsel has alleged in her amended com-
plaint that after the Union became the designated bar-
gaining representative of the Respondent's employees,
the Respondent effected certain changes in working con-
ditions without having afforded the Union an opportuni-
ty to negotiate and bargain in respect thereto. These alle-
gations will be considered seriatim.
(a) About 1 July 1986, the Respondent caused the in-
voluntary transfer of certain bargaining unit employees
to different work schedules as a result of a general layoff
occurring about that date.
In its answer the Respondent denied the allegation and
averred "that any changes necessary were made based
upon past practice and with economic justification."
In his testimony Rathbun admitted that in July 1986
"there was a transfer of bargaining unit employees to dif-
ferent work schedules, as the result of a layoff' "12 or
14" employees were laid off. The layoff was for about a
week. Low seniority employees were taken. There was
some transferring of employees The Respondent offered
no evidence why this layoff occurred.
Because layoffs and transfers are subjects of mandato-
ry collective bargaining, and the Respondent did not ne-
gotiate with the Union about them, the Respondent vio-
lated Section 8(a)(1) and (5) of the Act
(b) About 1 July 1986, the Respondent altered the
hours of work of unit employees in its printing depart-
ment.
The Respondent in its answer admitted the allegation
but averred that the changes were based on past prac-
tice, with economic justification, and not done for an un-
lawful motive.30
According to employee Vicki Lynn Boesch, just
before the election the Respondent finished a larger
breakroom Thereafter, in August 1986, the Respondent
changed the working hours of the employees in the
printing department to conform with the working hours
of the molding employees because, with a larger break-
room, the Respondent did not need to stagger the breaks
or continue different working hours for the printing de-
partment employees. The printing department had re-
ported for work an hour before the molding department.
The printing department employees hours were "7:00 to
3:00, 3:00 to 11:00, 11:00 to 7:00." Rathbun admitted that
such a change in printing department employees hours
had been made without prior notice to the Union or
giving the Union an opportunity to negotiate in respect
to the change.
"Hours of employment" are mandatory subjects of
bargaining specifically mentioned in Section 9(a) of the
Act. Thus the Respondent's unilateral change in working
hours for the printing department employees without no-
" As amended at the hearing
VENTURE PACKAGING
tifying and bargaining with the Union was in violation of
Section 8(a)(5) of the Act.
(c) About 6 August 1986, the Respondent altered its
established disciplinary procedure regarding the suspen-
sion of employees.
In its answer the Respondent denied the above allega-
tion
On 10 July 1986 the Respondent issued a written state-
ment on absenteeism and tardiness in which disciplinary
rules on absence and tardiness were changed. Automatic
discharges were provided which was not true under the
prior policy. Because the changes made by the Respond-
ent were in the area of mandatory bargaining and the
Respondent did not bargain with the Union, the Re-
spondent violated Section 8(a)(1) and (5) of the Act
(d) About 30 July 1986, the Respondent eliminated its
paid maternity leave policy.
In its answer the Respondent admits that it eliminated
"paid maternity leave, but denied that it was done for an
unlawful motive."3 t
Because an employer's leave policy falls within the
area of mandatory collective bargaining, and the Re-
spondent made changes in such policy without bargain-
ing with the Union, the Respondent violated Section
8(a)(1) and (5) of the Act See Bryan Memorial Hospital,
279 NLRB 222 (1986).
(e) About 11 August 1986, the Respondent altered the
"final warning" procedures of its disciplinary policy.
By its answer the Respondent denied the foregoing al-
legation. (See par. (c), supra.)
F. The Alleged 8(a)(1) Violations Attributed to
John Rathbun
By the following remarks attributed to Rathbun,
which were of the nature to impress employees of the fu-
tility of choosing a union as their bargaining agent, the
Respondent violated Section 8(a)(1) of the Act:
Rathbun told employees that he "did not think [the
Union] was in their best interest", he "couldn't see where
it could benefit-I couldn't see where they could get
anything from Venture Packaging, that they didn't al-
ready have, or we couldn't give them";32 the employees
would be losing a lot "if the union came in; the union
wasn't going to do anything" for the employees, "it just
wouldn't be good for the company"; the appeal in this
case could "take up to 4 years, to go through the
Courts"; "the union could not get [employees] the sweat
off his ass, and that the [employees] would eventually
end up losing a lot of things that they did have already";
"if the fines were big . . . [i]t would be coming out of
the employees' pockets . . . if it got to be too much, [he
didn't give] a rat's ass about anything. [He] would lock
the doors and let the bank take over."
G. The Demotion of Employee Helen Vanderpool
Vanderpool , shortly after the election, was reduced to
a training foreman . Wilson told her "they did not feel
that I was doing the job that I was hired to do."
31 As amended at the hearing
32 Rathbun's testimony
557
I do not consider the evidence offered to support this
allegation sufficient upon which to make a finding.
H. The Alleged Constructive Discharge of
Carlene Fluty
Carlene Fluty was hired by the Respondent on 27 Sep-
tember 1984 as a packer. Later she became assigned to
the molding department where she inspected buckets,
packed them, placed them on skids, and transported
them to shipping. She worked on the first shift. The last
day she worked was 3 June 1986.
In January 1986 Fluty attended her first union meet-
ing Thereafter, before the election, on 23 and 26 May
1986, she attended nine union meetings . On 3 March
1986 she signed a union card, and her name was on the
in-plant committee. Thereafter, Fluty wore a T-shirt and
"talked with other employees about the Union "
At the time of Fluty's separation from employment,
her shift hours were from 8 a.m. to 4 p.m. During June
1986, Fluty was absent from work for her vacation She
was scheduled to return to work on 12 June 1986 on the
first shift. However, before she returned to work, an em-
ployee phoned her and informed her that she had been
listed as being assigned to the third shift. The third shift
ran from midnight to 8 a.m.
Fluty was the mother of two children aged 8 and 5.
Both Rathbun and Wilson were aware of this situation.
On 6 June 1986 Fluty phoned Wilson about her trans-
fer to the third shift. During the conversation, among
other things, she told Wilson that she could not work the
third shift because she had "two small children and my
husband, Bernie, also worked third." Wilson refused to
make any change in Fluty's shift hours Fluty then
phoned Rathbun on Friday, 13 June 1986. Concerning
this conversation, Rathbun testified that Fluty advised
him that she could not work the third shift because she
could not get a babysitter; she wanted him to change the
schedule. He replied that he could not change the sched-
ule "now," but she should see him on Monday33 and he
would "talk about it." She replied, " I can 't, I don't have
.a babysitter." Fluty then inquired what would happen if
she could not come to work for the next 2 or 3 days.
Rathbun answered, "[Y]ou'd be terminated for three
days no show."34 Fluty responded, "I might as well
quit "
Rathbun further testified that Fluty related that she
had talked to Wilson but "couldn't get any satisfaction
out of him" and that she had said to Wilson, "I really
have lost faith in Venture Packaging, and he said well,
I've kind of lost faith in you, too." Rathbun commented,
"[W]ell, Carlene, I guess that kind of makes it even,
doesn't it?"36
33 Had Fluty been unable to work the remainder of her schedule, she
would have been automatically discharged by Monday
34 Rathbun's wife testified that she heard Rathbun say, "That's stupid,
Carlene, if you don't show up for work, you know it's a termination You
know your rules "
as Fluty, whom I credit, testified that she told Rathbun that Wilson
had said that he had "lost his faith in me when he seen my name on the
in-plant committee" and that Rathbun responded, "Well, do you, blame
hlm9" According to Fluty, among other things, Rathbun asked her why
Continued
558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Although Wilson in his conversation with Fluty called
her a "runner changer," she was a good employee, for
the Respondent had paid for her schooling at Vicker's
Hydraulic School in Toledo, Ohio. Wilson also told
Fluty that he had placed her on the third shift "to sepa-
rate me from Carla McCool and Brett Bauer. 1136 An em-
ployee with less seniority was transferred from the third
shift to the second shift at the same time Fluty was trans-
ferred from the third shift to the first shift. Wilson testi-
fied that there was "no specific reason" why Fluty,
rather than McCool, was chosen for the third shift
The Respondent contended in the record, "We're
saying that she [Fluty] was not constructively discharged
because she voluntarily quit, and refused to comply with
a request by her management, to come to work "
For the following reasons the Respondent's contention
is not well taken and I find that Fluty was constructively
discharged in violation of Section 8(a)(3) of the Act
1. Because Fluty, due to babysitting problems, could
not have appeared for first-shift work, as demanded by
Rathbun, her choice was either to quit or be fired
2. Fluty was an active union partisan. _
3. Because Fluty was a good employee for whom the
Respondent had invested money for schooling, it seems
unreasonable that the Respondent would not have tried
to accommodate her babysitting problems rather than
force her to quit
4 The credible evidence does not establish that Fluty
was needed immediately on the first-shift job because,
when the transfer occurred, she was on vacation. Thus,
there would have been no prejudice to the Respondent
by waiting until Fluty's babysitting problems were
solved.
5. There is no credible reason advanced in the record
why Rathbun could not have waited a couple of days to
try to adjust a schedule which would have accommodat-
ed Fluty's babysitting problems; thus it seems a shabby
way to treat a good employee
6. Fluty was transferred to a less desirable shift, al-
though there were junior employees assigned to the first
shift
7. Respondent placed Fluty on the third shift while
she was on vacation without discussing the matter with
her, even though it was known that she had small chil-
dren to care for
8. Wilson put Fluty on the third shift to separate her
from Bauer and McCool, union partisans.
9. Wilson had lost faith in Fluty because her name ap-
peared on the in-plant committee, an opinion which was
apparently shared by Rathbun
10. After Fluty informed Rathbun that she would be
unable to work the third shift because of unsolved baby-
sitting problems, he still demanded that she either
she was not at work Thursday night She replied that it was because she
did not have a babysitter Rathbun stated, "[T]hat's unexcused absence
and one more of them by Monday, and you'll be fired " Fluty responded,
"I shouldn't have to take this kind of-this type of pressure I'm not
working third shift, and I just quit " Rathbun asked, "[I]s that officials"
Fluty replied, "[I]t's official as you're going to get it " Thus, the conver-
sation ended
11 McCool and Bauer were on the in-plant union committee
appear, as assigned, or be discharged, making her also a
victim of the Respondent's new harsh workrules ,
The Respondent has not established a business justifi-
cation for its treatment of Fluty (cf Wright Line, 251
NLRB 1083 (1980)) Nor is it explained in the record
why the Respondent could not have worked out a satis-
factory arrangement with Fluty until her babysitting
problems could be solved Rathbun's precipitant action in
forcing Fluty, a strong union partisan and a good em-
ployee, to be fired or quit revealed his true motive, i.e,
to rid the plant of a union partisan. Such action accom-
modated Rathbun's antiunion animus and furthered his
objective to defeat the Union as the employees' bargain-
ing agent as is elsewhere disclosed in the record. I con-
clude that Fluty's separation from employment would
not have occurred had Fluty not been a union partisan.
Because Fluty's separation from employment was
caused by an unlawful, unilateral change in her work
schedule without the Respondent's bargaining with the
Union37 and because of the Respondent's desire to
remove a union partisan from its payrolls, I find that
Fluty's separation from employment was in violation of
Section 8(a)(1) and (3) of the Act of which the Respond-
ent was guilty.
I The Bulletin Board Incident
Vicki Lynn Boesch testified that 13 August 1986 Rath-
bun came to her machine with a union meeting notice in
his hand which had been posted on the bulletin board.
He put the notice in a bucket Boesch was packing and
said that the employees "did not have the right to post
any union literature on the bulletin board . . We
would have to negotiate for that right." Rathbun added
that "if any one was caught . . . they would be terminat-
ed." Rathbun started to walk away but turned around
and walked back, "very angry," and said to Boesch that
if the employees "wanted to play `fuck around' he would
play back " Boesch had posted the notice. At the time
Boesch was temporary president of the Union.
The bulletin board, which was located in the break-
room, had been used for posting "about parties, items for
sale, that type of thing. . . . [A]nybody could just post
anything they wanted." There was no rule against post-
ing.
After the above incident, except for union notices,
other notices continued to be posted on the bulletin
board
Rathbun admitted that he knew that Boesch was on
the union in-plant committee.
The Respondent in its answer admitted "on or about
13 August 1986, Respondent by its agent and supervisor
John Rathbun promulgated and since said date has main-
tained a rule prohibiting the posting of union related an-
nouncements on its bulletin board."
Rathbun described his reaction to the union notice
posting.
37 See Lifetime Shingle Co, 203 NLRB 688, 693 (1973), Block-South-
land Sportswear, 170 NLRB 936, 938 (1968), Advance Electric Co, 268
NLRB 1001 (1984), and Jo-Vin Dress Co, 279 NLRB 525 (1986)
VENTURE PACKAGING
I was basically upset at the ridiculous charges that
kept coming in, that were going to cost myself, the
company money, and I decided if the union wants
to be that cheap and petty , I don 't let them post
union notices , plain and simple.
It is obvious that, among other things, Rathbun's bar-
ring the use of the bulletin board was in retaliation to
employees ' rights to lodge unfair labor practices with the
Board
The Respondent's rule denying the Union the right to
use a bulletin board, which was used for other employee
publicity, and the threat to discharge an employee for
violating the rule was unlawful and in violation of Sec-
tion 8(a)(1) of the Act. See R. H. Macy & Co., 267
NLRB 177, 181 (1983), Honeywell, Inc., 262 NLRB 1402
(1982).
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, and it will effectuate the purposes of the Act for
jurisdiction to be exercised here.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interfering with, restraining , and coercing em-
ployees in the exercise of their rights guaranteed by Sec-
tion 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
4. The following constitute a unit appropriate for col-
lective bargaining within the meaning of Section 9(b) of
the Act:
All production and maintenance employees , includ-
ing employees who perform molding, packing,
printing, shipping , janitorial , regrind and machine
cleaning work , and maintenance and training fore-
men, but excluding all general foremen, lead fore-
men, managers , salesmen, office clerical employees
and all other supervisors , professional employees,
and guards as defined in the Act.
5. At all times since 22 May 1986, the Union has been
the exclusive collective-bargaining representative of the
employees in the appropriate unit within the meaning of
Section 9(a) of the Act
6 By refusing since 22 May 1986 to bargain with the
Union as the exclusive representative of the employees in
the above-described appropriate unit, the Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act
7. By unilaterally changing terms and conditions of
employment of its employees without giving the Union
an opportunity to negotiate and bargain as the exclusive
representative of its employees in the appropriate unit
and for the purpose of discouraging membership in a
union the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1), (5), and (3) of the
Act.
8. By withdrawing a budgeted wage raise without col-
lectively bargaining with the Union to discourage mem-
559
bership in a labor organization , the Respondent engaged
in unfair labor practices within the meaning of Section
8(a)(1), (5), and (3) of the Act
9 By constructively discharging Carlene Fluty on 13
June 1986 because of her union affection and to discour-
age membership in a labor organization , the Respondent
violated Section 8(a)(1) and (3) of the Act.
10 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices , it is recommended that
it cease and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act. It
also having been found that the Respondent unlawfully
constructively discharged Carlene Fluty on 13 June 1986
in violation of Section 8(a)(3) and (1) of the Act, it is
recommended that the Respondent remedy such unlaw-
ful conduct . In accordance with Board policy, it is rec-
ommended that the Respondent offer Fluty immediate
and full reinstatement to her former position or, if that
position no longer exists , to a substantially equivalent po-
sition , without prejudice to her seniority or any other
rights or privileges previously enjoyed, dismissing, if
necessary , any employee hired on or since the date of
her discharge to fill the position, and make her whole for
any loss of earnings she may have suffered by reason of
the Respondent's acts herein detailed , by payment to her
of a sum of money equal to the amount she would have
earned from the dates of her unlawful discharge to the
date of a valid offer of reinstatement, 38 less net earnings
during such period , to be computed on a quarterly basis
in the manner established by the Board in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest to be com-
puted in the manner prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987)
It is further recommended that, concerning the Re-
spondent ' s unlawful unilateral changes in terms and con-
ditions of employment found herein, the Respondent re-
establish the status quo ante39 except concerning those
changes which have been beneficial to the employees in
the appropriate unit . It is further recommended that a
determination of whether the changes have been benefi-
cial to employees, whether employees have lost benefits
or money by reason of the changes , and whether there is
any money due and owing employees and the amount
thereof be referred to the compliance stage of this pro-
ceeding. See Ogle Protection Service, 183 NLRB 682
(1970).
It is further recommended that the Respondent be or-
dered to put in effect a 10-cent-an -hour wage increase
18 I have not decided whether the Respondent 's offer to Fluty was an
unconditional offer of employment This is best left to the compliance
stage of this proceeding
se As stated in Mashkin Freight Lines, 272 NLRB 427 at 428 (1984)
[I]n cases involving discriminatory conduct , the restoration of the
status quo ante is a necessary remedy as it is the Board 's policy that
the wrongdoer , rather than the innocent victim, should bear the
hardships of the unlawful action
560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for all employees in the appropriate unit retroactive from
1 July 1986 until such time when the increase, may be
changed through collective bargaining or in some other
lawful manner and make payment of the increase to the
employees, with interest on the increases
In order to ensure that the Board can effectively moni-
tor and secure compliance with the Order, it is recom-
mended that the Order include a visitatorial clause au-
thorizing the Board to engage in discovery under the
Federal Rules of Civil Procedure.
[Recommended Order omitted from publication ]
Frank D. Motil, Esq., for the General Counsel.
Frederick R. Post, Esq., of Toledo, Ohio, for the Re-
spondent.
Joshua M. Spielberg, Esq., of Haddonfield, New Jersey,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. These
cases, consolidated with Venture Packaging, Inc. and
Angela S. Enderby, an individual, Case 8-CA-19989,
were heard at Sandusky, Ohio, on 5 and 6 November
1987.1 The charges in Cases 8-CA-20046 and 8-CA-
20318 were filed respectively on 21 April and 17 August
by Glass, Pottery, Plastics and Allied Workers Interna-
tional Union, AFL-CIO, CLC (the Union). The second
consolidated amended complaint, which issued on 20 Oc-
tober, alleges that Venture Packaging, Inc. (Respondent
or the Company) has violated and is violating Section
8(a)(1), (3), and (5) of the National Labor Relations Act
The gravamen of the complaint, insofar as pertinent to
Cases 8-CA-20046 and 8-CA-20318, is that the Compa-
ny violated Section 8(a)(1) and (5) by failing to furnish
the Union with a list of the names and addresses of unit
employees, unilaterally discontinuing its prior practice of
granting unit employees a cash Christmas bonus, and uni-
laterally discontinuing its prior practice of granting an
annual hourly wage increase to the unit employees Inso-
far as pertinent to Case 8-CA-19989, the complaint al-
leges in sum that the Company engaged in unlawful in-
terrogation and discriminatorily discharged Enderby.
The Company by its answer denies commission of the al-
leged unfair labor practices. At the hearing, for reasons
which will be discussed, I granted summary judgment in
favor of General Counsel on the allegations pertaining to
Cases 8-CA-20046 and 8-CA-20318. However, ques-
tions arose concerning the appropriate remedy. I heard
oral argument from the parties. At the conclusion of the
hearing, I ruled that the parties could further discuss the
matter of remedy in their posthearing briefs, but that
Cases 8-CA-20046 and 8-CA-20318 were severed from
Case 8-CA-19989 for purposes of decision and further
processing before the Board. Before submitting briefs,
the parties filed a joint motion, dated 4 December, re-
questing me to issue an order severing Cases 8-CA-
20046 and 8-CA-20038 from Case 8-CA-19989, transfer-
I All dates herein are for 1987 unless otherwise indicated
ring Cases 8-CA-20046 and 8-CA-20038 to the Board,
and directing that they be consolidated with prior con-
solidated Cases 8-CA-19242, 8-CA-19371, and 8-CA-
19438, involving the Company and the Union, presently
pending before the Board on exceptions to a decision of
Administrative Law Judge Lowell Goerlich (JD-128-
87). Due to my involvement with a lengthy hearing
which commenced on 8 December, I was not able to
rule on the motion before the due date for submission of
briefs The Company dealt briefly with the remedy ques-
tion in its brief. However, the General Counsel and the
Union confined their briefs to the issues in Case 8-CA-
19989. The briefs and exceptions to the Board in the ear-
lier proceeding were made part of the record in the
present proceeding.
The joint motion is denied. I find that it would effectu-
ate the purposes of the Act, and facilitate further proc-
essing of this matter, if I issued a self-contained decision
and recommended Order in Cases 8-CA-20046 and 8-
CA-20319. I also do not believe that I have authority to
direct consolidation of the cases before me with a pro-
ceeding which is pending before the Board. Therefore, I
shall proceed to issue a Decision and recommended
Order in the now severed Cases 8-CA-20046 and 20318.
Of course the parties are free, after issuance of my deci-
sion, to request the Board to consolidate those cases with
the prior proceeding.
On the record in the proceeding before me, and
having considered the positions of the parties, I make the
following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, an Ohio corporation with an office and
place of business in Monroeville, Ohio, is engaged in the
manufacture of plastic food containers. In the course of
its business, the Company annually ships from its Mon-
roeville facility goods valued in excess of $50,000 direct-
ly to points outside of Ohio. I find, as the Company
admits, that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
I THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The material facts are undisputed and were stipulated
by the parties. A representation election was held among
the Company's employees on 22 and 23 May 1986 in the
following unit of employees:
All production and maintenance employees includ-
ing employees who perform molding, packing,
printing, shipping, janitorial, regrind and machine
cleaning work, and maintenance and training fore-
men, but excluding all general foremen, lead fore-
men, managers , salesmen , office clerical employees
and all other supervisors, professional employees,
and guards as defined in the Act.
VENTURE PACKAGING
Over the Company's objection, the Board on 8 August
1986 denied Employer's Request for Review of the Re-
gional Director's Supplemental Decision and Certifica-
tion of Representative in which the Regional Director
had certified the Union as the bargaining representative
of the employees in the unit described above, which was
found to have been an appropriate unit under the Act.
On 1 July 1986 the Union requested the Company to
recognize it as the exclusive collective -bargaining repre-
sentative of the unit employees. Since 20 August 1986
the Company has refused to so recognize the Union. In
the prior unfair labor practice proceeding and in the
present proceeding the Company has justified its refusal
to recognize and bargain with the Union on the follow-
ing grounds:
We have refused to bargain in good faith, and our
refusal is based upon the background in this matter,
which involves a determination by Region 8 of the
labor board, about supervisors, which we believe
was wrong, under Section 2(11) of the Act, which
caused the election to be improperly conducted, be-
cause statutory supervisors were declared eligible to
vote, and did, in fact, vote in the election.
On 23 March 1987, the Union sent a letter to the Com-
pany requesting names and addresses and phone numbers
of unit employees, for the purposes of International
Union communication, and requesting a reply by 1 April.
The Company has never responded to this letter and re-
quest from this Union. The Company's refusal to comply
with this request is assertedly based on its contention
that the Union was improperly certified by the Board.
In each of the years 1982, 1983, 1984, and 1985, the
Company gave a Christmas bonus to unit employees ac-
cording to the following formula To qualify, an employ-
ee must have been employed for at least 30 days. During
the first year of employment, an employee would get $10
for each month of seniority. For example, an employee
who had been employed for 11 months, would get $110
Christmas bonus. During the second and third year of
employment, employees would get a Christmas bonus of
$120, and employees who had been employed beyond 3
years would receive an additional $60 increase above the
$120.
In December 1986, no Christmas bonus was given.
The Company did not negotiate with the Union about
the decision not to give the Christmas bonus in Decem-
ber 1986. The Company's failure to negotiate with the
Union concerning discontinuance of the Christmas bonus
is assertedly based on its contention that the Union was
improperly certified by the Board, and upon its further
contention that its actions were made "pursuant to com-
pelling economic justification based upon the continuing
depressed financial condition of the Respondent "
The Company gave an annual July general wage in-
crease to unit employees in past years as follows- July
1982, 25 cents per hour; July 1983, 15 cents per hour;
July 1984, 20 cents per hour; July 1985, 15 cent per
hour. In July 1986, the Company did not give such an
annual July raise, and the Company did not negotiate
with the Union about this decision not to give the raise.
That failure was the subject of an unfair labor practice
561
allegation in the prior proceeding. In July 1987, the
Company again did not give an annual 'July raise, and
the Company did not negotiate with the Union about
that decision not to give a raise. In the prior proceeding
and in the present proceeding, the Company based its
unilateral discontinuance of the annual wage increase on
its assertions of improper certification and compelling
economic justification.
In the prior proceeding, Judge Goerlich found that
since 23 May 1986, the Union has been the exclusive col-
lective-bargaining representative of the Company's em-
ployees in the appropriate unit, and that the Company
since that date has violated Section 8(a)(5) and (1) of the
Act by failing and refusing to recognize and bargain
with the Union as such representative. Judge Goerlich
invoked the well-settled principle that in the absence of
,newly discovered and previously unavailable evidence or
special circumstances a respondent in a proceeding alleg-
ing a violation of Section 8(a)(5) is not entitled to reliti-
gate issues that were or ,could have been litigated in a
prior representation proceeding. He specifically found,
with respect to this matter, that all issues raised by the
Company were or could have been litigated in the repre-
sentation proceeding, that the Company offered no
newly discovered or previously unavailable evidence,
nor did it adduce any special circumstances which would
require a reexamination of the Board's decision in the
representation proceeding. Therefore, the Company did
not raise any issue that was properly litigable in the
unfair labor practice proceeding. Judge Goerlich further
found that the Company violated Section 8(a)(1), (3), and
(5) by failing to grant a general wage increase in July
1986, because (1) the Company's action was discrimina-
torily motivated, and (2) the Company discontinued its
prior practice without affording the Union an opportuni-
ty to bargain about the matter. In the present case, Gen-
eral Counsel and the Union stated with respect to the al-
legations in Cases 8-CA-20046 and 8-CA-20318, that
they did not intend to present evidence that the Compa-
ny's conduct was discriminatorily motivated. Rather they
rested on the contention that the Company violated Sec-
tion 8(a)(5) by failing to comply with its bargaining alle-
gations, and derivatively violated Section 8(a)(1)
In agreement with and for the reasons stated by Judge
Goerlich, I find that the Company violated Section
8(a)(5) and (1) by failing and refusing to recognize and
bargain with the Union as exclusive representative of the
Company's employees in the appropriate unit I further
find that information requested by the Union, specifically
the names and addresses of unit employees, was and is
necessary for and relevant to the Union's performance of
its function as bargaining representative. United Aircraft
Corp. V. NLRB, 434 F.2d 1198, 1204 (2d Cir. 1970), cert.
denied 401 U.S. 993. Therefore, the Company violated
Section 8(a)(5) and (1) by failing and refusing to furnish
such information. I further find that the Company violat-
ed Section 8(a)(5) and (1) by unilaterally discontinuing its
prior practices of granting unit employees a cash Christ-
mas bonus and an annual hourly wage increase. The
Company's assertion of economic justification, even if
based on proven objective facts, would not excuse the
562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Company from its statutory obligation to bargain with
the Union. Mike O'Connor Chevrolet, 209 NLRB 701, 704
(1974), enf. denied on other grounds 512 F.2d 684 (8th
Cir 1975); see also NLRB v. Allied Products Corp., 548
F 2d 644, 652-653 (6th Cir. 1977). Therefore I granted
summary judgment at the hearing.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3. All production and maintenance employees em-
ployed by the Company, including employees who per-
form molding, packing, printing, shipping, janitorial, re-
grind and machine cleaning work, and maintenance and
training foremen, but excluding all general foremen, lead
foremen, managers, salesmen , office clerical employees
and all other supervisors, professional employees, and
guards as defined in the Act, constitute a unit appropri-
ate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since 23 May 1986 the Union has been, and is, the
exclusive collective-bargaining representative of the
Company's employees in the unit described above.
5. By failing and refusing to furnish the Union with in-
formation relevant and necessary to the Union's func-
tions as bargaining representative, and by unilaterally dis-
continuing its prior practices of granting unit employees
a cash Christmas bonus and an annual hourly wage in-
crease, the Company has engaged, and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act.
6 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has committed viola-
tions of Section 8(a)(1) and (5) of the Act, I shall recom-
mend that it be required to cease and desist therefrom
and from like or related conduct, and take certain affirm-
ative action designed to effectuate the policies of the
Act. I shall recommend that the Company be ordered to
recognize and, on request, bargain with the Union as the
bargaining representative of the employees in the appro-
priate unit, and to post appropriate notices To ensure
that the employees are accorded the services of their se-
lected bargaining agent for the period provided by law,
the initial period of the certification shall be construed as
beginning the date the Company begins to bargain in
good faith, with the Union. Mar-Jac Poultry Co., 136
NLRB 785 (1962). I shall direct that the Company
promptly furnish the Union with a complete and accu-
rate list of the names and addresses of all unit employees.
I shall further direct that the Company pay unit employ-
ees a Christmas bonus for 1986 in accordance with its
prior practice, with interest from 20 December 1986, and
shall continue to pay the bonus to its employees, with in-
terest, until it bargains in good faith with the Union, or
the Union refuses to bargain in good faith over its cessa-
tion Production Plated Plastics, 247 NLRB,, -595, 596
(1980), enfd. 663 F.2d 709 (6th Cir. 1981).
With regard to the annual wage increase, the parties
differ as to the amount of an appropriate remedy. In the
prior proceeding, Judge Goerlich recommended that the
Company be ordered to implement a 10-cent-per-hour in-
crease for all unit employees, "retroactive from 1 July
1986 until such time when the increase 'may be changed
through collective-bargaining or in some other lawful
manner . . . ." Judge Goerlich based this remedy on his
findings that the Company budgeted a sum of money
which would have provided for a 10-cent-per hour in-
crease in July 1986, and but for the Union, would have
implemented such an increase. In its exceptions to the
decision, General Counsel argued that the remedy should
provide a 15-cent-per-hour increase, i e, the amount
granted in 1985. In the present proceeding, the Union
argued that I should direct a 15-cent-per-hour increase
for 1987. The Company took the position that in the
event I found a violation, a 10-cent-per-hour remedy
would be appropriate General Counsel urged that the
amount of the 1987 increase should be determined at the
compliance stage of this proceeding. I agree with the
Company. Judge Goerlich found that the status quo, i.e.,
the situation prior to the Union's organizational cam-
paign, was one in which the Company had administra-
tively determined to grant a 10-cent-per-hour increase. In
deference to Judge Goerlich's findings, an appropriate
remedy should provide for restoration and maintenance
of that status quo. Allied Products Corp., 218 NLRB 1246
(1975), enfd. on other grounds 548 F 2d 644 (6th Cir.
1977) Therefore I am recommending that the Company
be ordered to put into effect a 10-cent-per-hour increase
for all unit employees retroactive to 1 July 1986, and
shall continue to grant such annual increases, effective
each July 1, all with interest on the increases, until the
Company bargains in good faith with the Union, or the
Union refuses to bargain in good faith over cessation of
such increases
Interest on the Christmas bonuses and wage increases
shall be computed in the manner set forth in Ogle Protec-
tion Service, 183 NLRB 682 (1970), and New Horizons for
the Retarded, 283 NLRB 1173 (1987).2 I am rejecting
General Counsel's request for a visitatorial clause. Since
October 1985 General Counsel has uniformly requested a
visitatorial clause in all litigated unfair labor practice
cases In Hilton Inn North, 279 NLRB 45 fn. 3 (1986),
the Board approved such clause. For remedial purposes,
Hilton was arguably comparable to the present case. So
far as I can determine, this was the only case in which
the Board expressly approved a visitatorial clause. In
subsequent cases, including cases comparable to Hilton,
the Board has refused to approve or grant a visitatorial
clause.
[Recommended Order omitted from publication.]
2 Under New Horizons, interest is computed at the "short-term Federal
rate" for the underpayment of taxes set out in the 1986 amendment to 26
U S C § 6621 Interest accured before,1 January 1987 (the effective date
of the amendment) shall be computed as in Florida Steel Corp, 231
NLRB 651 (1977)