Wis-Pak Foods, Inc.

National Labor Relations Board - Board Decisions

Dec 12, 1995

319 N.L.R.B. 933 (N.L.R.B. 1995)

933
319 NLRB No. 126
WIS-PAK FOODS, INC.
1 On August 3, 1995, Administrative Law Judge Lowell M.
Goerlich issued the attached decision. The Respondent filed excep-
tions and a supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) when Chief Operating Officer Segel promised production
employees a wage increase, we rely only on employee Willie James
Chison’s credited testimony about Segel’s statements to employees.
The Respondent has excepted to the judge’s conclusion that the
Respondent’s change of its overtime policy was objectionable, con-
tending that the change was announced outside of the critical period.
Although the announcement of the change was made 2 days before
the petition was filed, we agree with the judge that the actual change
in the Respondent’s overtime policy, which was not made effective
until after the petition was filed, was objectionable.
Finally, we correct three chronological misstatements in the
judge’s decision. First, Segel testified that he gave an anti-Team-
sters’ speech ‘‘sometime’’ in August, rather than mid-July or early
August. Second, Segel testified that he learned about the Union’s
campaign on October 17, 1994, not on December 15, 1994. Third,
Manufacturing Manager Korbar essentially testified that there had
been no changes in attendance rules since August 1994, not August
1992. None of these misstatements materially affected the judge’s
analysis of the issues presented.
3 There are no exceptions to the judge’s recommendation to dis-
miss certain allegations of 8(a)(1) violations.
Wis-Pak Foods, Inc. and United Food and Commer-
cial Workers, Local 73A, a/w United Food and
Commercial Workers International Union,
AFL–CIO, CLC. Cases 30–CA–12755 and 30–
RC–5638
December 12, 1995
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The issues presented in this case are whether the
judge correctly found that the Respondent committed
several violations of Section 8(a)(1) of the Act and en-
gaged in objectionable conduct requiring the invalida-
tion of a representation election.1 The Board has con-
sidered the decision and the record in light of the ex-
ceptions and brief and has decided to affirm the
judge’s rulings, findings,2 and conclusions3 and to
adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Wis-Pak Foods, Inc., But-
ler, Wisconsin, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
[Direction of Second Election omitted from publica-
tion.]
Dennis M. Selby, Esq., for the General Counsel.
Gary A. Marzak, Esq., and Thomas W. Mackinzie, Esq., of
Milwaukee, Wisconsin, for the Respondent.
Ike Edwards, of Milwaukee, Wisconsin, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
LOWELL M. GOERLICH, Administrative Law Judge. An
order consolidating cases and notice of hearing on objections
was issued on April 14, 1995, in Cases 30–CA–12755 and
30–RC–5638. The original charge in Case 30–CA–12755
was filed on December 19, 1994, by the United Food and
Commercial Workers, Local 73A, affiliated with the United
Food and Commercial Workers International Union, AFL–
CIO, CLC (the Union) and was served on Wis-Pak Foods,
Inc. (the Respondent) on the same date. The first amended
charge filed by the Union on March 10, 1995, was served
on the Respondent on the same date.
A complaint and notice of hearing issued on April 14,
1995. In the complaint it was alleged that the Respondent
granted unlawful wage increases and committed other viola-
tions of Section 8(a)(1) of the National Labor Relations Act.
Case 30–RC–5638 concerned objections to a election that
occurred on December 15, 1994.
The Respondent filed timely answers denying that it had
committed the unfair labor practices alleged.
The matter was heard on May 16, 17, and 18, 1995, in
Milwaukee, Wisconsin. Each party was afforded a full op-
portunity to be heard, to call, examine, and cross-examine
witnesses, to argue orally on the record, to submit proposed
findings of facts and conclusions, and to file briefs. All briefs
have been carefully considered.
On the entire record in this case and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT, CONCLUSIONS, AND REASONS
THEREFOR
I. BUSINESS OF RESPONDENT
At all material times, the Respondent, a corporation with
an office and place of business in Butler, Wisconsin (Re-
spondent’s facility), has been engaged in the operation of a
meat processing facility that produces hamburger patties for
customers in the fast food industry.
During the past calendar year ending December 31, 1994,
Respondent, in conducting its operations described above
purchased and received products, goods, and materials at its
facility valued in excess of $50,000 directly from points out-
side the State of Wisconsin and sold and shipped products
valued in excess of $50,000 directly from its Butler facility
to customers located outside the State of Wisconsin.
At all material times, the Respondent has engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 It seems incongruous that the feedback would have revealed the
details of the Teamsters’ last meeting without a mention of Local
73A and the distribution and signing of authorization cards espe-
cially when Segel testified, ‘‘[N]othing is very secret very long in
the work place.’’
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
The Respondent is a patty-making plant that is engaged in
the forming of hamburger products. Its principle customer is
Burger King. At the time the events herein were taking place
the Respondent was operating what has been termed the
north plant. It was in the process of opening a south plant,
which went on line in February 1995, although it was sched-
uled to go in to operation on December 5, 1995. The Re-
spondent used FORMAX machines to form the hamburgers.
The Respondent operated 10 assembly lines in the north
plant and 3 in the south plant.
Prior to October 2, 1994, the Teamsters were trying to or-
ganize the Respondent’s employees. In mid-July or early Au-
gust Justin Segel, chief operating officer of the Respondent,
gave an anti-Teamsters speech to employees.
On October 2, 1994, the Teamsters held a meeting for the
Respondent employees. There were 65 to 75 employees
present. Representatives of United Food and Commercial
Workers of America, Local 73A also attended the meeting.
It was explained to the employees present that the Teamsters
were surrendering jurisdiction over the production and main-
tenance employees and that thereafter Local 73A would take
over the organizational drive. Local 73A authorization cards
were distributed. Some cards were signed by employees at
the meeting. Other cards were distributed by the employees
at the Respondent’s plant and in the cafeteria. Thereafter
Local 73A pursued the organizational effort. By October 12,
1994, Local 73A had gathered 79 authorization cards.
Around 226 employees were in the unit. Employees
‘‘gripes’’ were inadequate wages, maintenance employees
had been given raises but not the production workers, the at-
tendance program was unfair, and overtime was denied some
employees during a holiday week. Local 73A, by Ike Ed-
wards, passed the first leaflets at the plant on October 10,
1994. The leaflet announced a meeting of October 12, 1994.
The leaflet was passed out prior to the first and second
shifts. While Edwards was passing out leaflets someone
came from the plant and advised Edwards that he was on
company property. Afterwards a police officer appeared and
told Edwards that he would have to obtain a permit to dis-
tribute leaflets. Edwards obtained the permit. Thereafter Ed-
wards passed out leaflets at the street entrance.
The Teamsters ceased organizing after October 2, 1994.
Justin Segel, the chief operating officer of the Respondent,
testified that he was aware of the Teamsters campaign in
July and that he learned of Local 73A’s campaign when its
petition for an election was filed on December 15, 1994.
Segel testified that he had become aware of the Teamsters
organization effort ‘‘through anecdotal information.’’ By
mid-September Segel testified,
We were getting very little feedback about it. We saw
almost no evidence, especially in September, of any ac-
tivity or letters or anything like that. And then there
was what was billed as—some sort of final meeting, I
think the last week in September or some time around
then. And feedback we got was that less than 10 people
attended and the Teamsters said that they were backing
away from it.1
I am convinced that the Respondent knew about the union
organizational campaign from its genesis. Although Segel ap-
peared to be an intelligent and able individual I am further
convinced that his testimony was tailored to fit the defense
that the Respondent has proffered in this case.
A. The Maintenance Department Raise
Michael Allen Nelson was the Respondent’s plant engi-
neer. He has been employed for 1 year. His first duties were
‘‘to get the maintenance department on track.’’ The ‘‘prob-
lem’’ was that the Respondent did not have enough mainte-
nance people. At that time there were 12 maintenance em-
ployees, now there are 17.
On October 9, 1994, ‘‘an across the board’’ wage increase
was granted to the maintenance employees who received
‘‘from slightly less than 50 cents an hour upward to $3.00
an hour.’’ Their last wage increase had been the previous
January.
When Nelson came aboard he tried to find out why the
Respondent was losing employees in the maintenance depart-
ment. To accomplish this he talked to the current employees
and some supervisors. Nelson discovered that there were
three issues: ‘‘One being pay,’’ a ‘‘second was the manage-
ment and differences with management,’’ and ‘‘the third item
was the number of hours that they were being asked to
work.’’ The employees in maintenance were working 7 days
a week in the range of 55 to 65 hours. Nelson made a wage
comparison between the Respondent’s wages and area wages.
He ‘‘felt we were somewhere around the 50 percent mark.’’
The Respondent was operating three maintenance shifts.
On the first shift were assigned an electrician and three me-
chanics, on the second were an electrician and two mechan-
ics, and on the third were five mechanics. The Respondent
needed 16 employees for a full compliment. According to
Nelson the Respondent did not have the required com-
plement ‘‘because people had left and they had not been able
to find people to take their place.’’ Moreover, expansion was
to occur when the Respondent opened its south plant on De-
cember 5, 1994. The expansion would require six additional
employees. Thus, the Respondent faced increasing its mainte-
nance crew to 22.
In order to alleviate the situation Nelson proposed what
was termed TPC. TPC was a training program, the purpose
of which was to upgrade the existing staff and any new staff
‘‘in regards to about twelve different disciplines involving
maintenance.’’ ‘‘We asked them to take twelve placement
tests, on regarding each of the areas, and based upon those
results they would be rolled over from the old maintenance
program to the new maintenance program.’’ There were 130
training manuals. Wage raises were factored into the pro-
gram.
935WIS-PAK FOODS, INC.
The program failed. The ‘‘existing maintenance rebelled
against the program.’’ People were ‘‘continuing to leave be-
cause they could not get the benefits of the new wage pro-
posal.’’ Nelson testified, ‘‘I was continuing to bring people
to the interview and I could not get them hired on at the
wages that I was able to offer.’’ Although the TPC program
went in effect July 3, 1994, no one received a wage increase.
To get a wage increase the employees had to go through the
TPC program. According to Nelson what they had to do was
‘‘[t]ake each one of the twelve tests and then depending on
the number that they passed would put them onto the new
wage scale as far as a range.’’ None of the employee who
took the tests passed except one who took the refrigeration
tests. Some employees threatened to leave.
In the meantime the Respondent sought employees through
advertising in magazines and newspapers. It advertised at
technical schools. The TPC wage scale was offered and Nel-
son received 120 job applications. For prospective employ-
ees, whom Nelson thought had potential, interviews were set
up. Nelson interviewed 80 applicants through July, August,
and September. A number of the applicants mentioned that
the wages offered were below what they were currently earn-
ing and they were not interested in the job. The Respondent
was able to hire four applicants. Because the Respondent was
unable to hire employees it worked its current employees
longer hours and engaged outside contractors to perform
some of the maintenance work. The Respondent also experi-
enced substantial downtime. The TPC program was tabled
because maintenance employees would not cooperate. Nelson
also realized that the pay scale for the area was low and that
the ‘‘type of individuals [he] was looking for [he] could not
get into the plant at the wage [the Respondent] was offer-
ing.’’ The number of maintenance employees had not in-
creased. It stood at or 11 or 12. The Respondent was still
‘‘10 mechanics or technicians short.’’ As stated by Nelson,
‘‘We felt we needed to increase our wages and we need to
shelf the TPC program and get our existing crew onto the
new pay scale.’’ On October 9, 1994, a wage increase was
put into effect for the maintenance employees. It was in line
with the Milwaukee market, based on an independent survey.
Some of the employees whom Nelson had interviewed who
had refused employment now accepted the new pay scale and
went to work. Other employees in the plant were upset by
the wage increase for the maintenance employees. Realizing
this, he explained the situation in a captive audience speech.
In order to maintain our current, as well as new
equipment and facilities, we have qualified maintenance
employees. Since the first of the year, downtime has in-
creased over 100%. (Chart) this problem is also Re-
sponsible in part for our Saturday work; something you
and I both do not want. Further, this directly impacts
your gain sharing. Currently we have 12 maintenance
employees, down from 14, and we need 22. We put big
ads in the paper, interviewed approximately 78 appli-
cants, and none of them took the job (waive the appli-
cations). The reason given was that due to their skills,
they would get more elsewhere. We made a business
decision, to raise the wage rate to attract new mainte-
nance personnel. Because we had no choice. [G.C. Exh.
6, p. 10.]
The Respondent maintains that the Respondent’s decision
to increase maintenance wages was motivated by business
reasons and not union activity. I agree.
The Board said in United Airline Services Corp., 290
NLRB 954 (1988):
It is well established that the mere grant of benefits
during the critical period is not, per se, grounds for set-
ting aside an election. Rather, the critical inquiry is
whether the benefits were granted for the purpose of in-
fluencing the employees’ vote in the election and were
of a type reasonably calculated to have that effect.
NLRB v. Exchange Parts Co., 375 U.S. 405 (1964). As
a general rule, an employer’s legal duty in deciding
whether to grant benefits while a representation pro-
ceeding is pending is to decide that question precisely
as it would if the union were not in the scene. R.
Dakin, supra, quoting Reds Express, 268 NLRB 1154,
1155 (1984). In determining whether a grant of benefits
is objectionable, the Board had drawn the inference that
benefits granted during the critical period are coercive,
but it has allowed the employer to rebut the inference
by coming forward with an explanation, other than the
pending election, for the timing of the grant or an-
nouncement of such benefits. Uarco Inc., 216 NLRB 1,
2 (1974). See, e.g., Singer Co., 199 NLRB 1195
(1972).
From the above-detailed facts it is apparent that the Re-
spondent was faced and had been faced with a deteriorating
situation. Its seriousness was magnified by the fact it was
opening a new addition that needed additional maintenance
employees that it was unable to obtain because of its low
wage scale. Indeed, the situation had reached emergency pro-
portions requiring the Respondent to utilize outside contrac-
tors. Thus, the Respondent’s determination to grant mainte-
nance employees a wage raise was based on business consid-
eration and would have occurred even though the Union had
not been in the picture. Moreover, if the wage increase was
given to influence employees favorably it failed, because the
remaining employees (around 200) were antagonized because
they received no increases.
The allegations in the complaint that claim the October 6,
1994 increase given to maintenance employees was unlawful
are dismissed.
B. Change in Overtime Pay, October 12, 1994
The Respondent’s overtime policy provided that if individ-
uals worked over 40 hours in 1 week they would be com-
pensated at time and a half, however, if a holiday fell in the
week, the holiday would not be considered as time worked
in computing the overtime. Employees complained about not
receiving overtime during the weeks in which holidays fell.
On October 12, 1994, a notice was posted changing the pol-
icy so that employees would be paid overtime for those
weeks in which a holiday fell. The notice reads: ‘‘For the
purpose of computing overtime, all paid scheduled days off
(for example: holidays, personal days, funeral leave days)
will be counted as days worked.’’ The new overtime policy
was effective October 17, 1994.
Segel testified that after the Teamsters’ campaign ‘‘went
away’’ the overtime policy change that had been considered
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 In drawing my credibility resolutions I am not unmindful of the
Supreme Court’s observation in NLRB v. Walton Mfg. Co., 369 U.S.
404, 408 (1962).
For the demeanor of a witness:
. . . may satisfy the tribunal, not only that the witness’ testi-
mony is not true, but that the truth is the opposite of his story;
for the denial of one, who has a motive to deny, may be uttered
with such hesitation, discomfort, arrogance or defiance, as to
give assurance that he is fabricating, and that, if he is, there is
no alternative but to assume the truth of what he denies. Dyer
v. MacDougall, 201 F.2d 265, 269.
3 On cross-examination Cumming testified in regard to Briggs &
Stratton, ‘‘They planned on shipping jobs down south,’’ and that a
‘‘hot’’ debate was going on between the union and the company.
before was put into effect. In one of his captive audience
speeches Segel, referring to changes that the Respondent had
made, said, ‘‘We also changed the overtime policy so some
one who is on a personal or vacation day during the week,
and works on Saturday still receives the overtime pay.’’
Segel commented, ‘‘[T]his was accomplished without a
union. Who needs a union.’’ The fact that Segel used the
change in overtime as an example of the Respondent’s benef-
icence in order to persuade employees to vote against the
Union is explicative of his purpose in making the change.
Segel testified that during his anti-Teamsters speech, dur-
ing a question and answer period, the question was raised
concerning why employees were not paid time and a half for
Saturday work in a week in which a holiday fell. Segel at
once resolved to remedy the situation. He asked his counsel
if he could change the rule. According to Segel his counsel’s
answer was negative. Thereafter when he thought that the
Teamsters’ campaign was over with, ‘‘and we weren’t aware
that there was another campaign brewing,’’ he changed the
rule. I consider the statement, ‘‘we weren’t aware that there
was another campaign brewing’’ to be an untruth. As stated
above, I am convinced that Segel tailored his testimony to
accommodate the Respondent’s defense in this case. His tes-
timony about the change in overtime pay is another exam-
ple.2 I find that the change in overtime pay was for the pur-
pose of discouraging union affection in derogation of em-
ployees’ Section 7 rights, and to appease the employees and
convince them they did not need a union. ‘‘Who needs a
union.’’
The Respondent’s change in overtime pay violated Section
8(a)(1) of the Act. Cf. NLRB v. Exchange Parts Co., 375
U.S. 405, 409 (1964).
C. Lydia Stanley Caldwell’s Alleged 8(a)(1) Violations
The Respondent maintained a program that provided a
$100 bonus to employees who recruited persons who re-
mained employed for at least 60 days. Montel Joyner, an em-
ployee, was aware of the program. According to Joyner as
he was driving down the street when he saw a lady whom
he knew; she stopped him. During the conversation that en-
sued she said that she needed a job. He thought about the
$100 and told her they were ‘‘needing people’’ at the Re-
spondent’s plant. She asked Joyner to take her to the plant.
The lady’s name was Linda but Joyner did not know her last
name nor where she lived. Joyner drove Linda to the plant
where he told Caldwell that Linda was looking for a job.
Caldwell gave her an application and took her into another
room. Joyner left and returned to his car. When Linda did
not return Joyner returned to the plant because he was sched-
uled to work at 2 p.m. Caldwell called him ‘‘in there’’ and
said, ‘‘Montel, you know if you vote for the Union . . . the
union is bad for you. The union is no good.’’ She continued,
‘‘If you vote for the union you might not even have a job
. . . you could lose your 401K, insurance, even your job.’’
‘‘Then she said something to Linda about was she voting
union.’’ She asked, ‘‘[H]ow do you feel about the union.’’
Caldwell denied that either Joyner had brought a person in
for employment or that she had made the remarks attributed
to her by Joyner.
I have carefully considered the demeanor of the two wit-
nesses and the probabilities regarding whether the conversa-
tions actually occurred and I am unable to reach resolution.
As the General Counsel has the burden of proving by a pre-
ponderance of evidence that of the alleged violations oc-
curred, I shall dismiss that part of the complaint that at-
tributes unlawful conduct to Caldwell.
In view of my ruling it becomes unnecessary to determine
whether Caldwell was an agent of the Respondent.
D. Unser Warning
Christine F. Cumming testified that about a week before
November 17, she said to employee Paul Klosterman that she
‘‘heard we had enough cards signed that they could have a
union vote.’’ A short time later, Frank Unser, a second shift
supervisor, called Cumming to the personnel office. She
went to the office where she found Unser and supervisor
trainee Rich Kirby. Cumming describes what occurred:
So I went down there and Rich Kirby who was in
training for the second shift supervisor position and
Frank Unser were both standing there and Frank said
he wanted to talk to me and I said, ‘‘Oh, what did I
do?’’ And he took me into the human resource office
and asked me what I had said to Paul—or he said,
‘‘What did you have to say in the ticket office?’’ And
I said I only—I just said all I heard was that we had
enough votes for the union to come in and take a vote
on a union. ‘‘Well, you shouldn’t talk about union.
Look what is going on with Briggs and Stratton. Look
at all the other companies that were in a union, how
many are closed down and on strike. This place had a
union and it didn’t work for them so let’s not talk about
the union. Talk about going against the union.’’
And I replied, ‘‘I don’t give a shit because I’ve
worked in union and nonunion places so I could really
care less,’’ and Rich Kirby looked at Frank Unser and
he says, ‘‘It’s true. I have known Chris and she has
worked in both union and nonunion places.’’ So when
I left he said, ‘‘Well, remember, talk nonunion. It’s not
good for this company.’’
Cumming also testified on cross-examination, ‘‘[H]e speci-
fied that I should talk against the union and talk for not
union in the company plant,’’ and ‘‘He said look at other
companies, look at Briggs & Stratton.’’3
Cumming further testified on cross-examination, ‘‘You
should not be talking about the union on the shop floor, that
it wasn’t right for me to talk about the union because a lot
of people’s jobs were on the line. . . . Well, Rich Kirby and
937WIS-PAK FOODS, INC.
4 Segel’s first captive audience speech was delivered on November
8, 1994.
5 Another example was given about employees who carpooled and
were delayed in a traffic jam caused by a fatal accident. They were
not excused; they were given points.
I are friends and will say joking around between us he said,
‘Now don’t you do it again or you’ll be in big trouble.’’’
Cumming viewed it as a joke ‘‘because I’ve known him for
many, many years.’’ She said she did not feel intimidated.
Kirby denied the conversation, Unser did not testify. I
credit Cumming.
The Respondent’s claims Unser’s remarks were privileged
opinion. His remarks, however, had a tendency to interfere
with, restrain, and coerce employees in the exercise of their
Section 7 rights by his implication of job loss, restrictions on
union activities, and encouragement of engaging in nonunion
activities.
In the case of Helena Laboratories Corp., 228 NLRB 294,
295 (1977), the Board said, ‘‘[I]t is axiomatic by now that
a finding of restraint or coercion depends not on the subjec-
tive impressions of employees, but on the objective standard
as to whether such conduct reasonably ‘tends to interfere
with the free exercise of employee rights.’’’
By Unser’s remarks the Respondent violated Section
8(a)(1) of the Act.
E. Alleged Change in Attendance Policy
Montel Joyner testified that he sought to ask Segel a ques-
tion about the point system at one of the captive audience
meetings.4 Segel said he could not answer any questions at
that time. Later Linda Korbar, manufacturing manager, called
Joyner into the office to answer his question about the point
system. She said, according to Joyner, that ‘‘it had been
changed’’ and that he should ‘‘go out and spread the word.’’
She said, ‘‘We couldn’t post it but it’s been changed.’’
Korbar said that ‘‘if you had say an emergency and you
called in, you wouldn’t lose a point for that [o]r going to
court or something like that you could prove.’’ Joyner spread
the word to other employees. According to Joyner if an em-
ployee received eight points he would be fired. Employees
had complained about this system.
Korber testified that the no-fault program had been last re-
vised in August 1994. The last revision before the August re-
vision was in 1992. The August revision changed the word
‘‘discharge’’ to ‘‘subject to discharge.’’
Among other things the Respondent’s attendance rules
provided:
ATTENDANCE POLICIES
A. Attendance will be considered acceptable until an
employee’s record of chargeable absences becomes ex-
cessive. Employees who develop a record of excessive
chargeable absences shall be subject to disciplinary ac-
tion.
B. Employee absences shall be classified into two
categories:
1. Non Chargeables
The Company realizes that certain absences are not
only excusable should not be charged to the employee’s
attendance record and are not to be part of the discipli-
nary procedure.
a. Vacation—An authorized absence scheduled and
approved and limited to the amount of continuous vaca-
tion days permitted the employees according to the
Company vacation policy.
b. Holiday—Absence to observe established holidays
according to the Company holiday policy.
c. Jury Duty—Absence resulting from jury duty or
subpoenaed witness service as authorized according to
jury duty policy.
d. Military—Absence to fulfill military obligations as
defined by the Company military policy.
e. Industrial Injury—Absence as deemed necessary
by the attending physician to recover from injury sus-
tained as a result of on-the-job accident.
f. Funeral—Absence resulting from the death of a
member of the immediate family shall include: spouse,
child, mother, father, mother-in-law, father-in-law,
brother or sister.
g. Authorized Leave of Absence—Absence for which
the employee is placed on approved family, medical,
personal or military leave of absence according to
Company policies or applicable law regarding such
leave of absence.
h. Scheduled Time Off—Absences resulting from
such designated time off as determined by management.
I. Weather Conditions—Absences which occur dur-
ing those times when management feels attendance is
not mandatory due to hazardous weather conditions.
2. Chargeables
The following categories of absence are defined as
chargeable and are subject to disciplinary action if they
become excessive:
a. Late—Failure to report to work area at the start
of the scheduled shift.
b. Leaving—Failure to complete a full shift for rea-
sons other than on-the-job injury.
c. Unexcused—No call/no show absences which are
unreported and unexplained.
d. Unauthorized Leave of Absence—Absence for any
reason including illness or injury, which does not qual-
ify for leave for absence as outlined in Section B.1.g.
above.
These rules do not specifically cover emergencies or
court appearances.
Korbar testified that there had been no change in the rules
since 1992 at which time they were promulgated.
Korbar determines whether a leave of absence is to be ap-
proved. Kobar explained, ‘‘We go under the basis of the law,
what is required by that. We take in account the nature of
the situation, what type of request is being made.’’ Korbar
gave an example of an emergency leave that was allowed
when an employee requested leave because ‘‘his fiancee’s
son had been shot in the head, been critically injured, and
he needed to leave.’’5
Korbar testified that during the election campaign employ-
ees asked questions about the attendance policy. A typical
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 In Low Kit Mining Co., 309 NLRB 501, 507 (1992), it was said,
‘‘Offering financial inducements to employees during an organiza-
tional campaign is a classic violation of the Act.’’
question was: ‘‘The attendance policy is unfair because of
my child gets hit by a car and in the hospital, I am going
to get charged attendance points for. . . . that was a common
thread throughout the conversation that we had’’ Korbar ex-
plained to the employees that if the employees provided doc-
umentation that the child was hit by a car, they would not
be charged attendance points.
Korbar could not ‘‘specifically recall’’ Joyner coming into
her office when the attendance program was discussed, but
she did hear that employees at some of the captive meetings
had asked questions about the attendance policy.
As noted, according to Korbar, during the election cam-
paign, she responded to employees’ assertions that the at-
tendance policy was unfair because it did not allow for emer-
gencies such as when a child was hit by a car. Apparently
she tried to ease employees’ apprehensions by telling them
that if the employees provided documentation they would not
be changed attendance points. Thus, it does not seem un-
likely that when Joyner asked a question about the attend-
ance Korbar would have tendered him an answer somewhat
similar to the answers she had given other employees.
Apparently what Korbar wanted to convey to Joyner was
that there was a modification in the administration of the at-
tendance policy that would accommodate employee’s emer-
gencies. Such departure from what appeared to be past prac-
tice was clearly the granting of a benefit and was for the pur-
pose of appeasing the employees who believed the plan did
not accommodate emergencies.
That the change was not in the wording of the policy is
immaterial. The change was in the administration of the pol-
icy. Korbar gave employees a reason to believe that the at-
tendance policy would be administered in a more lenient and
humane manner in the future. Such representations had a
tendency to condition employees’ union affection.
I credit Joyner regarding this incident.
By Korbar’s remarks to Joyner the Respondent violated
Section 8(a)(1) of the Act. Cf. B & D Plastics, 302 NLRB
245 (1991).
F. Alleged Promised Wage Increase
During the election campaign, commencing on November
8, 1994, Segel gave a number of speeches to captive audi-
ences of 18 to 25 employees. At one of these speeches
Willie James Chison asked about the raises the maintenance
employees received. Chison’s testified, ‘‘I asked him about
raises maintenance got and I explained to him about sibling
rivalness, that if one person in the family got a bicycle or
a piece of cake that the rest of them should get a bicycle
or piece of cake too. Otherwise you had problem with the
rest of the employees. And he said he would take care of the
other part of you—that we would get a raise. I asked about
that amount but I didn’t get an amount on that and I didn’t
get a date on when maintenance got a raise but he told us
that the rest of the plant would get a raise after first of the
year.’’
On cross-examination Chison testified that he asked Segel
‘‘[W]hy was it that maintenance got a raise and we didn’t.’’
Segel responded that ‘‘he was trying to keep his maintenance
department intact.’’
On cross-examination employee Cumming, who had at-
tended some of the meeting, was asked whether Segel had
said that he could not talk about wage raises because of
union activity. She answered, ‘‘Yes.’’ Cumming also quoted
Segel as saying he had to give the maintenance raises to
‘‘keep Wis-Pak running.’’
Segel remembered that Chison asked if the employees
were going to get a raise. According to Segel he responded,
‘‘[W]e would review wages, as we have in the past, in Janu-
ary,’’ which was his usual response to this question when
asked by employees.
Because a promise of a wage raise during an election cam-
paign is an unfair labor practice6 the Respondent’s guilt de-
pends on which witness, Segel or Chison, I deem to be truth-
ful. As noted above I have considered Segel to have tailored
his testimony to accommodate the Respondent’s defenses. I
see no reason to treat this testimony differently. Concerning
Chison, he appeared to have lacked the sophistication nec-
essary to have made up the story. I have also considered de-
meanor and Segel’s supererogatory characteristics. Moreover,
because the Respondent had sometimes in the past given
wage increases in January (see infra) Segel’s admitted state-
ment that he told employees that ‘‘we would review wages,
as we have, in the past’’ was tantamount to saying ‘‘we will
grant a wage raise in January as we have done the past,’’
which he did. Segel was affirming the expectations of the
employees.
By Segel’s statements to employees in respect to a wage
increase, the Respondent violated Section 8(a)(1) of the Act.
G. The January Wage Increase
On January 22, 1995, the Respondent gave its production
workers a wage increase. Segel testified that the Respondent
‘‘typically reviewed every January’’ the situation in regard to
wage increases. ‘‘Sometimes we didn’t give wage in-
creases.’’ ‘‘January is usually when at least we review when
we are.’’
An across-the-board increase was given in 1988; the next
one was given in 1992. Increases in 1989, 1990, and 1991
were not given because of the Respondent’s strained finan-
cial condition. In 1993 the Respondent did not grant a wage
increase because it installed a gain-sharing plan. The gain-
sharing plan payoff was greater than the wage increase
would have been. In 1994 a wage increase was granted. The
wage increase was 3 percent. All across-the-board increases
were granted in the month of January.
The turnover among production maintenance quality con-
trol employee in 1993 was 45.7 percent; in 1994 it was 76
to 78 percent.
In 1995 Segel made the final decision to grant an across-
the-board increase after considerations of his staff. The in-
crease was 5.4 percent.
On November 3, 1994, G.C. Long sent a memorandum to
K. Glinski and others in part as follows:
As a follow up to Brett’s memo of October 1, 1994,
I would like to set up a meeting to begin reviewing our
wage structure. Our last wage review was January,
1994 and would be due this January, 1995.
939WIS-PAK FOODS, INC.
7 Kenneth Glinski is the director of human resources. 8 See NLRB v. Exchange Parts Co., 375 U.S. 405 (1964).
Prior to setting the meeting date, I think it would be
helpful to disseminate some basic wage data for every-
one’s review.
A meeting was suggested for no later than the week of
November 14. Glinski’s7 staff conducted a wage survey.
Glinski proposed a 4-percent wage increase.
A meeting was held in early January 1995. Present were
George Lang, Frank Vigniere, Brett Chambers, Linda
Korber, Kathy Kirst, and Glinski. A 5.4-percent wage in-
crease was recommended. It was given to the employees on
January 22, 1995.
According to Segel, in respect to the 4-percent rec-
ommendation, ‘‘Frank Vigniere looked at it, thought about it,
thought about the turn-over problem, and thought that, being
a marketing kind of guy, you know, 7.99 sounds cheaper
than 8, well, in this case $8.00 seemed a quantum amount
better than $7.87 or $7.89 or whatever it was. . . . We want-
ed to ring the bell at $8.00.’’ Thus, the 5.4 percent resulted
from selecting a base rate of $8. The base rate in 1994 had
been $7.89. According to Glinksi, ‘‘Frank Vignieri suggested
strongly that we go to $8.00 starting salary,’’ to keep other
employers from drawing off the Respondent’s employees.
‘‘[A] lot of employees were being lost to a company called
Tombstone.’’
As noted above, the election occurred on December 15,
1994. Objections to the election were filed on December 22,
1994. Thus, the objections were pending when the Respond-
ent gave the January wage increase.
The unfair labor practices found herein, as well as the
speeches of Segel demonstrate the Respondent’s antiunion
animus and its fixed purpose to defeat the Union’s organiza-
tion campaign, ‘‘. . . every equivocal act that was done may
be properly viewed in the light of the Respondent’s animus
toward the effort to organize its men.’’ NLRB v. Houston &
North Texas Motor Freight Lines, 193 F.2d 394, 398 (5th
Cir. 1950) cert. denied 543 U.S. 934 (1951).
As noted above I have found that Segel promised employ-
ees a raise after the first of the year. The January raise was
in recognition of this promise. In a somewhat similar situa-
tion the Board has said in Reliable Ambulance Services, 256
NLRB 1165 (1981):
The profit-sharing plan subsequently announced and
implemented by the Employer as the fulfillment of its
earlier objectionable promise is similarly objectionable.
An employer is not free to carry out an objectionable
promise made during the critical period of a first elec-
tion, and then argue that he is merely implementing a
promise made at an earlier time. Rather, it is clear that
the implementation of a promise initially made to de-
feat a union is simply another step in that effort, and
is therefore objectionable when undertaken during the
critical period of a subsequent election. Such a grant is
designed to assure continued employee support of an
employer’s position in a subsequent election. Triangle
Plastics, Inc., 166 NLRB 768, 775 (1967). We there-
fore find that Employer’s announcement and implemen-
tation of the profit-sharing plan, made at a time when
objections to the first election were still pending and
the possibility of a second election was very real, was
an objectionable continuation of its earlier objectionable
promise. We accordingly set aside the second election.
[Footnote omitted.]
See also Pembrook Management, 296 NLRB 1226,
1242 (1989). Cf. Hobby Farms Corp., 311 NLRB 273,
274 (1993).
This language from the case of Triangle Plastics, 166
NLRB 768, 775 (1967), cited by the Board in Hospital Serv-
ice Corp., 219 NLRB 1, 19 (1975), is apropos:
On the basis of the entire record, I am convinced that
the postelection announcement of the general wage in-
crease which was made at a time when the election
‘‘was clearly subject to invalidation if the objections
were meritorious,’’ was ‘‘an attempt to gain [employee]
support and to assure a continued majority against the
union representation in the event a second election was
directed by the Board. I also find that the amount of
the increase was intended as a further inducement to
employees to vote against the Union should the Board
direct a second election. Accordingly, I find that the
Respondent’s announcement of the wage increase inter-
fered with the Board’s election procedures and made a
fair election impossible and therefore constituted in ad-
ditional violation of Section 8(a)(1) of the Act.
The Respondent struck with the ‘‘fist inside the velvet
Glove.’’8 I conclude that the timing and motive of the Re-
spondent in granting an increase while objections to the elec-
tion were pending was to dissuade and discourage employees
from voting for the Union in a second election if one were
ordered. In reaching this conclusions I am not unmindful of
the principles that the Board has applied to wage increase
cases. See United Airlines Corp., 290 NLRB 954 (1988).
The credible record does not reveal that there was an
emergency that faced the Respondent necessitating a grant of
a wage increase during the pending of election objections. It
was not chiseled in stone that a wage increase was a January
certainty. Indeed, wage increases were not given in 1989,
1990, 1991, and 1993. Thus, from some employees’ stand-
point it does not neccessarily appear that the Respondent had
a fixed policy to grant wage increases in January although
Segel lead some employees to believe that a wage increase
was in the offering when he promised them and said, ‘‘[W]e
would review wages, as we have in the past.’’ In regard to
turnover the Respondent employer produced no credible evi-
dence that employee turnover had effected production or
profits. Apparently the Respondent was able to obtain suffi-
cient temporaries for on occasion temporaries who were
called were not needed. The Respondent’s defenses of past
practice and employee turnover were pretexts to cloak its real
purpose. Its real purpose was to cause a defeat of the Union
in a second election if it occurred and to demonstrate to em-
ployees that they did not need a union to obtain a wage in-
crease. (‘‘Who needs a union.’’)
The Respondent’s grant of wage increases on January 22,
1995, was in violation of Section 8(a)(1) of the Act.
940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 See Ideal Electric Co., 134 NLRB 1275 (1961).
10 The Respondent maintains that the Respondent’s acts of inter-
ference were too isolated to justify the direction of a new election.
It has been said in Pembrook Management, 296 NLRB 1226, 1242
(1989):
In determining whether an employer’s unfair labor practice
conduct is de minimus with respect to affecting the results of an
election, the Board takes into consideration the number of viola-
tions, their severity, the extent of dissemination, the size of the
unit, and other relevant factors Caron International, 246 NLRB
1120 (1979).
Applying these principles I find the Respondent’s position is not
well taken.
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
12 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
National 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.’’
H. The Objections to the Election
As noted above an election was held on December 15,
1994. The petition was filed on October 14, 1994, and a di-
rection of election issued on November 14, 1994. There were
77 votes cast for the Union and 113 ballots cast against the
Union. On December 22, 1994, the petitioner filed the fol-
lowing objections to the election.
On October 12, 1994, the Employer issued a notice chang-
ing the overtime pay policy for all employees, effective Oc-
tober 17, 1994.
Shortly before the election the Employer changed its es-
tablished attendance policy to no longer charge employees a
point if they have family emergencies and have to leave the
facility.
An employee was told by Frank Unser not to be talking
about the Union on the plant floor, that it was not right to
talk about the Union because a lot of peoples’ jobs were on
the line.
Employees were promised a wage increase in January.
On April 14, 1995, the objections were consolidated with
this case for the purpose of hearing, ruling, and decision by
an administrative law judge.
As noted in the foregoing decision I have found all the ob-
jections to be well taken.
Having found that the Respondent engaged in violations of
Section 8(a)(1) of the Act during the critical election cam-
paign period.9 I find that the Respondent has unlawfully
interfered with the employees’ exercise of a free choice for
or against a bargaining representative. ‘‘Conduct violative of
Section 8(a)(1) is, a fortiori, conduct which interferes with
the exercise of a free and untrammeled choice in an elec-
tion.’’ Dal Tex Optical Co., 137 NLRB 1782, 1786 (1962);
Concord Furniture Industries, 241 NLRB 643 (1979); GTE
Automatic Electric, 196 NLRB 902 (1972).
I further find that, by reason of unlawful interference the
election conducted on December 15, 1994, should be set
aside and held for naught. ‘‘If an election were won by the
employer through illegal conduct and in violation of law, the
Union was wronged and it had a right to have such an elec-
tion set aside.’’ NLRB v. Plaskolite, Inc., 309 F.2d 788, 790
(6th Cir. 1962).10
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of Act and it will effectuate
the purposes of the Act to assert jurisdiction herein.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing employees
in the exercise of the rights guaranteed them by Section 7
of the Act, the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
The Respondent unlawfully interfered with the representa-
tion election held on December 15, 1994, and a new election
should be conducted.
THE REMEDY
It is recommended that the Respondent cease and desist
from its unfair labor practices take certain affirmative action
deemed necessary to effectuate the purposes of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, Wis-Pak Foods, Inc., Butler, Wisconsin,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unlawfully changing the overtime pay policy for em-
ployees to discourage their union activities.
(b) Unlawfully warning employees not to talk about the
Union in order to discourage their union affection.
(c) Unlawfully changing its attendance policy to discour-
age union activities.
(d) Unlawfully promising or granting wage increases to
discourage union activities.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its plant in Butler, Wisconsin, copies of the at-
tached notice marked ‘‘Appendix.’’12 Copies of the notice,
on forms provided by the Regional Director for Region 30,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act other than those
found in this decision.
941WIS-PAK FOODS, INC.
IT IS FURTHER ORDERED that the election held on Decem-
ber 15, 1994, be set aside and a new election be ordered in
conformity with the Board’s practices and procedures.
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 unlawfully change the overtime pay policy
for employees to discourage their union activities.
WE WILL NOT unlawfully warn employees not to talk
about the Union in order to discourage their union affection.
WE WILL NOT unlawfully change our attendance policy to
discourage union activity.
WE WILL NOT promise or grant wage increases to discour-
age union activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WIS-PAK FOODS, INC.