Zartic, Inc.

National Labor Relations Board - Board Decisions

Jan 10, 1986

277 N.L.R.B. 1478 (N.L.R.B. 1986)

1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zartic, Inc. and United Food & Commercial Work-
ers International Union, AFL-CIO, District
#442. Cases 10-CA-17414 and 10-RC-12485
10 January 1986
indicates that they all were on leaves of absence at
the time of the strike. We therefore shall delete
their names from the list of former strikers entitled
to reinstatement.
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 29 September -1983 Administrative Law
Judge John H. West issued the attached decision.
The Respondent, the General Counsel, and the
Charging Party filed exceptions and supporting
briefs, and the Respondent 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 decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 with one exception discussed below,
and to adopt the recommended Order as modified.3
We reverse the judge's finding that the Respond-
ent violated Section 8(a)(1) of the Act by maintain-
ing and enforcing a policy of terminating employ-
ees who enter into workers' compensation settle-
ments. The Board held in Central Georgia Electric
Corp., 269 NLRB 635 (1984), that an employee's
pursuit of a workers' compensation claim does not
constitute concerted activity within the meaning of
Section 7 of the Act. Accordingly, we shall dismiss
this complaint allegation.4 No exceptions were
filed to the judge's finding that employees Lewis
C. McClarity, Tretha Piccione, Susan C. and
Thomas J. Ridgeway, and James W. Wells were
terminated pursuant to this policy, and the record
' The Respondent and the Charging Party have excepted to some of
the judge's credibility findings. 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.
2 In affirming the judge's conclusion that the Respondent violated Sec.
8(a)(3) and (1) by permanently replacing strikers who had made uncondi-
tional offers to return to work, we emphasize that we do not find that the
employees were ever engaged in an illegal strike, but rather we assume
for the purposes of analysis that the strike was illegal at its inception
Any illegality ceased at least after the second day of the strike and in any
event was not a factor in the Respondent's decision to treat all strikers as
permanently replaced employees on and after 22 July 1981. We disavow
any implication from the judge's decision that the replacement of an air
conditioner can never be the type of improvement in working conditions
which can violate the Act. We, however, agree there was no violation or
objectionable conduct in this case because of a failure of proof
2 In his recommended remedy for backpay, the judge inadvertently
failed to cite F W Woolworth Co, 90 NLRB 289 (1950), for computation
of net quarterly interim earnings
4 In light of our dismissal on the merits, we find it unnecessary to pass
on the Respondent's contention that the judge erred in permitting the
General Counsel to amend the complaint at the hearing to add this alle-
gation
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , Zartic, Inc., Cedartown, Georgia , its of-
ficers, agents, successors , and assigns, shall take the
action set forth in the Order as modified.
1. Delete paragraph 1(e) and reletter the subse-
quent paragraphs.
2. Substitute the following for paragraphs 2(a)
and (b).
"(a) Offer to Lucy A. Maestas and to former
striking employees listed in Appendix A immediate
reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights
and privileges , dismissing, if necessary , persons
hired as replacements by the Respondent on or
after 22 July 1981. If, after such dismissals , suffi-
cient jobs are not available for former strikers
listed in Appendix A, they shall be placed on a
preferential hiring list in accordance with their se-
niority or other nondiscriminatory practice utilized
by the Respondent , and they shall be offered em-
ployment before any other persons are hired.
"(b) Make whole Lucy A. Maestas and the
former striking employees listed in Appendix A for
their loss of earnings , in the manner set forth in the
section above entitled `The Remedy."'
3. Substitute the attached Appendix A and notice
for those of the administrative law judge. [Appen-
dix A omitted , see Appendix B for list of names.]
IT IS FURTHER ORDERED that Case 10-RC-12485
is severed from Case 10-CA- 17414 and remanded
to the Regional Director to open and count the
ballots of Dennis Roberts and David McFarland
and to issue a revised tally of ballots and, based
thereon, the appropriate certification.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
277 NLRB No. 171
ZARTIC, INC
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten our employees that it
would be futile for them to select a union as their
collective-bargaining representative by telling our
employeess that we will never have a union election
at our plant.
WE WILL NOT threaten any employee that if the
Union does not come in the employee will be out
hunting a job.
WE WILL NOT threaten our employees by telling
them that it would be futile for them to select the
Union as their collective-bargaining representative
by telling our employees that we would never
agree to dues checkoff.
WE WILL NOT discharge or otherwise punish you
because you have joined, supported, or assisted any
union or engaged in concerted activities for mutual
aid or protection.
WE WILL NOT discharge you, or otherwise dis-
criminate in regard to your hire or tenure of em-
ployment or any term or condition of employment,
to discourage membership in United Food & Com-
mercial Workers International Union, AFL-CIO,
]District #442.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer to Lucy A. Maestas and to the
former striking employees listed below immediate
reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights
and privileges, dismissing, if necessary, persons
hired as replacements by us on or after 22 July
1981. If, after such dismissals, sufficient jobs are
not available for the following former strikers, they
shall be placed on a preferential hiring list in ac-
cordance with their seniority or other nondiscrim-
inatory practice, and they shall be offered employ-
ment before any other persons are hired.
WE WILL make whole Lucy A. Maestas and the
former striking employees listed below for their
loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus
interest.
Harvey D. Andert Kay Lankford
Betty L. Arrington Susan Law
Tammy Barnett Jackie Ledbetter
Judy Benefield Sylvia D. Lockridge
Teresa Ann Bennett
Glenda Bowens
Neina Bridges
Debra F. Bridges
Margaret H.
Broadway
Billy Joe Brown
Douglas M. Brummit
Mary I. Calloway
Cathy D. Campbell
Nancy Campbell
W. Carnes
Walter F. Carnes
Janice Cheeks
Amanda Clark
Christopher L. Coats
Felisha Cochrano
Mary Elizabeth
Cooper
Vera V. Corley
Willie F. Couzzort
Tona R. Cox
Mildred L. Cupp
Debra S. Daniel
Tony Davis
Jimmy E. Dawson
William Dudley
Alice P. Fincher
James E. Floyd
Dale Gable
Frances Gable
Mary Jane Gattis
Judy Glass
Lester G. Hackney
Lori Harper
Cathy Hendrix
Samuel L. Henderson
Mattie Hopkins
Annette J. Hudgins
Shirley A. Hudgins
Robert B. Hulsey
Will Holsey
Gladys M. Jackson
Penny C. Jenkins
Richard Jenkins
Anna Maria Jones
Shirley A. Jones
Jimmy Langston
ZARTIC, INC.
Vickie Long
David M . McFarland
Sherry D. Meeker
Sandra Miller
Roy Mitchell, Jr.
Bobbie D. Mobbs
Leigh Ann Mobbs
JoAnne Nale
Barbara Nation
Charlotte D. Norton
Shirley Nicholson
Cora Olivet
James Parris
Manuel T. Perez
Glenda Ploof
Tim Plunkett
Jackie Privett
Betty Pyles
Janice Queen
Ruby Reece
Bonnie E. Reid
Kevin E. Ruark
Terry Ruark
Clara Simpson
Dolesa Slaughter
Sherry Smith
Glenda Steele
Glenda Stephens
John Jackie Stephen
Edith Stough
Myrtle Streetman
Gail Stubblefield
Lillie Summerville
Tommy Thompson
Denise Tillery
Susette Truett
Robin Walters
Judy Vandiver
Howard Vines
Mary Vuckovich
Annie L. Whorton
Judy I. Williams
Barry Williamson
Billy Worthy
Linda F. Wright
1479
Judith M. Anderson, Esq., and Ellen K. Hampton, Esq.,
for the General Counsel.
James M. Walters, Esq., Michael C. Towers, Esq., and
Roger K. Quillen, Esq. (Fisher & Phillips), of Atlanta,
Georgia, for the Respondent.
Morgan C. Stanford, Esq. (Stanford, Fagan, and Giolito),
of Atlanta, Georgia, for the Charging Party-Petitioner.
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. The origi-
nal charge' was filed by United Food and Commercial
Workers, AFL-CIO (Union) on September 9, 1981,2 and
it was amended on October 16. The complaint was
issued on November 13, amended on April 16, 1982, fur-
ther amended on June 30, 1982, and further amended at
the hearing.
The General Counsel alleges violations, collectively,
of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act, in that assertedly, (1) on July 20 specified em-
ployees of Respondent ceased work concertedly and en-
gaged in a strike;3 (2) on July 20 Respondent unlawfully
threatened its employees that it would be futile for them
to select "the Union" as their collective-bargaining rep-
resentative by telling the employees that it would never
have a union election at its plant; (3) on July 22 the em-
ployees made an unconditional application with Re-
spondent for return to work; (4) Respondent unlawfully
refused to reinstate the employees because they engaged
in protected concerted activities; (5) on July 23 specified
employees of Respondent ceased work concertedly and
engaged in a strike and the strike was caused and pro-
longed by the unfair labor practices of Respondent de-
scribed in (4) above; (6) the Union began an organiza-
tional campaign among Respondent's employees; (7) on
July 24 Respondent unlawfully discharged and thereafter
failed and refused to reinstate specified employees be-
cause of their membership in, and activities on behalf of,
the Union, and because they engaged in protected con-
certed activities; (8) Respondent on July 31 unlawfully
discharged and thereafter failed and refused to reinstate
its employee Lucy Maestas because of her membership
in, and activities on behalf of, the Union, and because she
engaged in protected concerted activities ; (9) on August
10 the Union filed a representation petition in Case 10-
RC-12485; (10) Respondent on September 14 promised
certain of its employees a wage increase , installed air
conditioning in the employees' breakroom, and installed
picnic tables for its employees; (11) Respondent on Sep-
tember 23 granted certain of its employees a $1-per-hour
wage increase; (12) Respondent took the actions de-
scribed in (10) and (11) above for the purpose of causing
its employees to reject the Union as their collective-bar-
gaining agent; (13) on October 13 and 19, Respondent
threatened its employees with discharge if they joined or
engaged in activities on behalf of the Union; (14) on Oc-
tober 20 Respondent, by letter, threatened its employees
with bodily harm if they joined or engaged in activities
on behalf of the Union; (15) on October 21 Respondent
(a) threatened its employees that it would be futile for
them to select a union by telling them that Respondent
would not bargain with the Union and they would be re-
quired to go out on strike, and (b) Respondent, through
' The complaint was amended at the hearing to reflect the correct
name of Respondent, Zartic, Inc
2 All dates are in 1981 unless otherwise stated
3 As is normally the case, the complaint in this and other instances
reads on or about" a specified date
its president, James Mauer, threatened its employees that
it would be futile for the employees to select the Union
as their collective-bargaining representative by telling its
employees that "this was his goddamn plant and nobody
would tell him how to run it," and promised Respond-
ent's employees improved working conditions; (16), on
October 22 Respondent threatened its employees that it
would be futile for the employees to select the Union as
their collective-bargaining representative by telling its
employees that Respondent would never agree to dues
checkoff; (17) Respondent twice on July 21, 1982, unlaw-
fully interrogated employees; and (18) since March 10
has maintained and enforced a rule requiring termination
of employees who enter into workers' compensation set-
tlements thereby interfering with, restraining, and coerc-
ing its employees in the exercise of the rights guranteed
them by Section 7 of the Act. Respondent denies the al-
legations.
By order entered June 24, 1982, Case 10-CA-17414
was consolidated and set for hearing with Case 10-RC-
12485. The latter involves objections filed by the Union
regarding alleged conduct which assertedly affected the
results of the election held on October 23. The objec-
tions are in part coextensive with the conduct alleged in
the former. Also, the latter involves 6 challenged ballots
which, in view of the fact that 177 voters cast valid
votes for and 176 cast valid votes against Petitioner, are
sufficient in number to affect the outcome of the elec-
tion.
A hearing on these consolidated cases was held on
July 26-30, 1982, August 3-6, 24-27, and August 31-
September 3, and October 4-7, 1982. Briefs were filed by
the General Counsel, the Union, and Respondent at the
end of January 1983.4 By telegraphic order entered Feb-
ruary 18, 1983, the record in the above-described con-
solidated cases was reopened and this proceeding was
consolidated with another case and set for hearing on
March 21, 1983. By telegraphic order entered March 17,
1983, the other proceeding was severed and settled and
the record in the consolidated cases was closed a second
time. On the entire record in this proceeding, including
my observation of the witnesses and their demeanor, and
after considering the aforementioned briefs, I make the
following
FINDINGS OF FACT
1. JURISDICTION
Respondent , a Georgia corporation , is engaged in the
processing , packing, sale , and distribution of food. The
complaint alleges, the Respondent admits, and I find,
that at all times material herein, Respondent has been en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. The Union is a labor organization
within the meaning of Section 2(5) of the Act.
4 The filing date for the brief was extended four times at the request of
Respondent
ZARTIC, INC. 1481
II. PRELIMINARY MATTER
On brief, the General Counsel renewed" the motion to
strike the entire testimony of Patricia Lewis, Respond-
ent's, personnel director, except wherein admissions
against interest were made. Pursuant to the request of
Respondent, witnesses were sequestered. Subsequently,
Lewis admitted on cross-examination by the General
Counsel that prior to testifying herein, she read a tran-
script containing the testimony of another witness given
earlier in this proceeding.6 It is contended by the Gener-
al Counsel that the reading, of a transcript of another wit-
ness' testimony prior to testifying is the same as being
present in the courtroom during the testimony itself and
is in violation of the sequestration rule. Additionally, the
General Counsel contends that Lewis continued to vio-
late the sequestration rule when she spoke with Respond-
ent's employee Danny Wiggins and Raybun about her
testimony between testifying on September 1 and 2,
1982.
Respondent, on brief, concedes that "Lewis inadvert-
ently.violated the rule of sequestration when she glanced
over the transcript of Ray bun's testimony from the first
two days of the hearing." (Br. 8) However, Respondent
argues that the appropriate remedy would be the one ap-
plied in Robin American Corp., 245 NLRB 822 (1979);
namely, to scrutinize the testimony of the violating wit-
ness with great care.
After doing just that, it must be concluded that the
testimony of Lewis, to the extent it is challenged and not
corroborated by credible evidence, cannot be credited.
Lewis was a "classic example of someone who eschewed
being candid unless the question was propounded by
counsel for Respondent. On more than one occasion she
changed her testimony, initially elicited during cross-ex-
ainination the day before, after discussing it during an
overnight adjournment with counsel for Respondent.
Much of her testimony was equivocal and unreliable.
With- respect to her demeanor, she impressed me as being
a witness whose paramount concern was to avoid giving
testimony which might be detrimental to Respondent.
She lacked the sophistication to always make this deter-
mination and, consequently, sometimes she initially
avoided stating the obvious. Quite often instead of reply-
ing in a candid fashion to questions propounded by the
General Counsel or counsel for the Union, she hesitated
and then would begrudgingly give an equivocal re-
sponse. Yet when the same information was subsequently
sought by counsel for Respondent, Lewis would unhesi-
tatingly supply specifics.
In my opinion, in the circumstances present here, the
aforementioned sanction proposed by the General Coun-
sel is not warranted. Consequently, the- General Coun-
sel's motion to strike, with exceptions, the testimony of
Lewis is denied. For the reasons given above, however,
5 The motion was taken under advisement when first made during the
trial
6 The General Counsel points out that Lewis first admitted to reading
the transcript for approximately 15 minutes and covering only the first
day of Assistant Personnel Director Rusty Raybun's testimony, but that a
comparison of Lewis' testimony and the transcript proved that Lewis
read far more than she had initially admitted, and indicated that Lewis
may have read all of Raybun's testimony given up to that point in time
Lewis' challenged testimony, to the extent it is not cor-
roborated by credible evidence, is not credited.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Before July 20, certain things happened which cannot
be disregarded. In 1976 Respondent commenced operat-
ing in Cedartown, Georgia. As testified to by Jerrell
Clark, Respondent's vice president, late in the summer of
1980 "a Mexican-American employee of Zartic was shot
and killed in the Cedartown area by a Cedartown resi-
dent." Consequently, there was "a lot „ .. [of] public
awareness that Zartic was employing Mexican-Ameri-
cans." The Ku Klux Klan (the Klan) "took this up as an
issue" and "[i]n October ... 1980, it . . . [held] a rally
in the City Park and then a march down to Zartic and
picketing [sic] at Zartic on a Saturday afternoon." Men
wearing white robes and pointed hats carried signs "de-
manding that . . . [Zartic] fire . . . [its] Mexican-Ameri-
cans." In an article on June 21 in The Atlanta Journal
and Constitution, which describes a meeting held in a
field in Cedartown, Respondent's Exhibit 20, it was indi-
cated that:
[someone described therein as being the leader of
the Marietta-based New Order Klan] specifically
promised that the Klan would continue to put pres-
sure on a local frozen food business to get rid of its
Mexican workers.
In the early morning hours of Friday, July 17, two
third-shift workers at Zartic were severely burned when
they attempted to change an electric fuse using metal,
channel-lock pliers. Neither was a qualified electrician.
This was not the first time a Zartic worker was injured
"pulling" fuses. Employee Cecil Witt testified that in De-
cember 1980, although he had previously asked for insu-
lated fuse pullers, he burned his arms and eyes when he
had to use metal channel-lock pliers.7
Later, on July 17; rumors began to circulate at Zartic
that the Klan was going to picket the plant on Monday,
July 20.8
On Saturday, July 18, Nation spoke with James Wells,
who was a Zartic employee on leave of absence, who
asked her to sign the'following leaflet (G.C. Exh. 20):
7 Another Zartic employee, Barbara Nation, testified that in April,
May, and June 1981 she complained to Respondent':, management about
such things as leaking carbon dioxide and ammonia and a safety switch
Nation's testimony, which referred to at least three of Zartic's supervi-
sors, was challenged only by the equivocal testimony of Janice Howard,
Nation's supervisor, who claimed she did not recalll the complaints but
testified that if the safety switch on the machine used by Nation did not
work she could have reached up and unplugged it Howard testified that
other employees complained to her about carbon dioxide and ammonia
leaks and boxes falling off an overhead conveyor belt
s Clark's "estimate" that he first heard the rumor on July 16 is not
credited in view of the fact that he could not recall who told him and he
was not sure that he was first told on July 16.
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STRIKE NOW-DEMAND YOUR RIGHTS
JOIN THE AMERICAN WORKERS UNION
ATTENTION OFFICERS AND MANAGERS OF
ZAR TIC COMPANY
The workers of Zartic hereby empower the elect-
ed leaders of the American Workers Union to bar-
gain with company representatives for a redress of
the following grievances:
WE DEMAND THE FOLLOWING:
1) All illegal and "Green Card" aliens must be dis-
missed because they are being used to depress
working standards for American citizens workers.
2) An across the board wage increase of at least
$2.50 per hour with guaranteed wage hikes in the
future to keep up with inflation.
3) Greatly improved insurance benefits and a retire-
ment plan equal to that of other packing plants
throughout the nation.
4) An end to employee harassment and unjustified
firings. Working rules must be agreed to with the
Union which must have the right to review the rea-
sons over which an employee is fired.
5) Guaranteed vacations, 2 weeks off the first year,
3 weeks after 3 years and 4 weeks after 5 years.
Sick leave with full pay with doctor's statement of
illness, 5 days after 1 year, 10 days after 3 years and
15 days after 5 years.
6) Full pay for time spent in the break room, regu-
lar work hours and reasonable overtime that is
agreeable with the Union.
Zartic workers hereby authorize the elected lead-
ers of this union to bargain with company officials
for a redress of these grievances.
ALL ZAR TIC WORKERS ARE INVITED TO
JOIN ALL
ALL MEMBERS' NAMES WILL BE KEPT
STRICTLY SECRET
To The American Workers Union
Cedartown , Georgia
As an employee of Zartic I hereby request mem-
bership in The American Workers Union. I ask that
your bargaining committee meet with management
to achieve the above listed improvements in pay,
working conditions , and job security at Zartic in
behalf of all company citizen employees.
NAME ADDRESS-__
How Long Employed at Zartic
Phone No.
On Monday morning, July 20, about 25 men dressed in
white robes and hoods began to picket Zartic's plant.
They carried signs which read as follows: "AMERICAN
WORKERS UNION FOR U.S. CITIZENS ONLY,"
"REGULAR PAID VACATION BETTER PAY,"
"BETTER INSURANCE BENEFITS REGULAR
PAID HOLIDAYS," "AMERICA FOR AMERI-
CANS, MEXICO FOR MEXICANS," "STRIKE ON
ZARTIC," "SEND ILLEGAL ALIENS HOME,"
"BOAT TICKET TO MEXICO ONE WAY NO EL
RETURNO," "WE SUPPORT FREE ENTERPRISE
NOT UNAMERICAN EXPLOITATION," "WE
LOVE MEXICANS WHEN THEY ARE IN
MEXICO," "ZARTIC FOODS UNFAIR," "REASON-
ABLE AMMOUNT [sic] OF OVERTIME,"9 and "RE-
TIREMENT PLAN; SICK LEAVE."
Wells was dressed in a white robe and hood and car-
ried one of the above-described signs. He was the presi-
dent of the American Workers Union and Nation became
its secretary on July 20. Both, among others, handed out
the above-described leaflet to Zartic employees that day.
Many first-shift employees did not report for work on
July 20. One, Maestas, testified that she was afraid to
cross the Klan picket line and that she feared for her
personal safety because she was Hispanic. Production
suffered. Clark testified that Zartic's products were per-
ishable and, therefore, they needed to be processed
promptly or they would lose a lot of their quality. Also,
he testified that freezing fresh products might affect their
marketability.
Some of Zartic's supervisors attempted to convince
the employees to come to work. Supervisor Vicky
Myers approached a number of Zartic's employees who
were standing about a block away from Zartic's plant.
After Myers attempted to assure them that they would
not be hurt by the hooded and robed men if they crossed
the picket line, one of the men wearing the traditional
Klan attire advised the employees that they should not
worry because anyone who wanted to could cross the
picket line to go to work. Myers testified that when she
convinced only one employee to return to work, she re-
turned to the plant saying nothing about an election or a
union.
Two employees, JoAnn Nale and Mary Calloway, dis=
agreed with Myers' testimony on this point. They testi-
fied that Myers did make a comment about a union. But
their testimony differs in that while both agree that
someone said we want a union or we need a union, Nale
testified that Myers then told the group of employees,
"Well, I promise you that there will never ben [sic] an
election here at this plant and, if there is there will never
be a union." Calloway testified that she thought she
heard all that Myers said; that Myers said, "There will
never be a Union at Zartic; I will guarantee you that";
that those were Myers' exact words; and that Myers did
not say anything else about a union, about voting for a
union, or about an election.
Again, at the behest of Wells, another Zartic employee,
Vickie Long, also signed one of the leaflets on Sunday,
July 19.
9 This sign was not carried by a man wearing a robe and hood but
rather by an unidentified female wearing a T-shirt with "Ku Klux Klan"
printed on it
ZARTIC, INC.
Before lunchtime, Mauer told Lewis to "[g]et some
people in here to go to work." She and Raybun began to
review the applications they had on file and supervisors
were advised to hire. People who were hired were ad-
vised that the job was permanent. Lewis testified that it
was decided to make new hires permanent to get them to
cross the picket line.
Zartic filed a motion for a temporary restraining order
(TRO) in Zartic Frozen Meats & Seafoods v. Knights of the
Kau-Klux Klan, et al., Case No. C 81180R (N.D. GA.
19,81). At the TRO hearing, held late in the afternoon of
July, 20, on the motion, Zartic's attorney advised the
court that "[a]s to telling employees they're fired, no em-
ployee who has honored the picket line, even when we
contend it's illegal, is going to be fired." (G.C. Exh. 35,
p. 15.) Clark was present and he testified herein that he
heard the attorney's representation. Earlier in the TRO
hearing Clark testified that 80 of the 240 employees
scheduled to work the first shift actually came to work
(Ci.C. Exh. 35, p. 12) and that he had no way of know-
ing how many of Zartic's "Mexican" employees were
citizens of the United States because Zartic has a ques-
tion on its application, "Are you a U.S. Citizen?," and if
the applicant checks off "yes" the subject is dropped be-
cause to do otherwise, in Clark's opinion, would be a
violation of the applicant's civil rights. (G.C. Exh. 35, p.
13.) The court temporarily restrained picketing and ac-
tivities which interfered with the civil rights of Zartic's
"Mexican-American" employees. It was pointed out by
the court that it was not prohibiting any picketing or any
other labor activity as long as there was no implication
of violating the civil rights of Mexican-American em-
ployees. (G.C. Exh. 35, p. 18.)
On Tuesday, July 21, about five men dressed in white
robes and hoods picketed Zartic's plant. The men,
Nation, and the strikers handed out the above-described
leaflet, with the first demand crossed out. Raybun testi-
fied that he and employee Debora Couch went to the
local office of the Georgia Department of Labor and
interviewed and hired about 50 people. The person in
charge of that office, John Gains, pursuant to a subpoe-
na, produced a Georgia Department of Labor record
(GI.C. Exh. 43) which reflected that 13 people were
interviewed by Zartic and hired on July 21. The list
refers to five other applicants but their referral date is
not July 21. While Gains conceded that it is possible that
not all the applicants' names were placed on the form, he
testified he could hardly see how Zartic could have
interviewed 25 people more than were on the list. Early
in the evening of July 21 it was decided by Zartic that
the hiring should slow clown and a determination be
made regarding the number of people hired. It was also
decided that Zartic's 3-day rule, namely, that if an em-
ployee did not call in for 3 consecutive days he would
be considered a voluntary quit, did not apply to the situ-
ation at hand. Later that evening there was a meeting be-
tween Lewis, Raybun, and David Williams, who is Zar-
tic's manager at Cedartown. According to the testimony
of the participants, it was decided, after Williams dis-
cussed the matter with Zartic's attorney on the telephone
during the meeting, that Williams would advise any em-
ployee who did not work on July 20 and 21, but at-
1483
tempted to return on July 22 that he or she was replaced
and would be put on a preferential recall list. This was a
change in company policy since on July 20 and 21 em-
ployees were allowed, indeed encouraged, to return to
work. Regarding this meeting, Williams testified that he
decided that "we would not continue to hire any people
beyond that."
Estimates on the number of men wearing white robes
and hoods in front of Zartic on Wednesday, July 22,
varied from 10 to 2, viz, Wells and a 14 year old. A
number of employees attempted to return to work before
the first shift began. With a few exceptions, they were,
however, not allowed to enter the plant. Ten employees
testified as to what they were told by management repre-
sentatives at the employee entrance gate.,10 The employ-
ees went up to the gate at different times and in a total
of about eight different groups. They were not asked for
their names or job classifications. Depending on the time,
the gate was manned by one or more of the following
Zartic supervisors: Williams, Harlan Asche, who is Zar-
tic's plant manager, Raybun, Denny DiGerlando, and
David Dixon, who is in charge of security. Five of the
employees testified regarding what Williams told their
groups. Walter Carnes testified that Williams said they
were temporarily laid off. Nale testified that Williams
said they were temporarily laid off and put on a prefer-
ential recall list. Elizabeth Cooper testified that Williams
said they were temporarily replaced and put on a prefer-
ential recall list. Marie Bartlett testified that Williams
told her group that they were temporarily replaced and
put on a preferential recall list. And Jacqueline Ledbetter
testified that Williams said they were put on a preferen-
tial recall list. When one of the employees in Ledbetter's
group showed Williams her identification card and asked
him if she was on the list, Williams responded, "yes,"
and then Ledbetter held up her identification card and
asked him if she had been put on the list and Williams
said, "yes you have too." Denise Tillery, Margaret
Broadway, and Calloway testified that their groups were
told by Asche that they were temporarily replaced and
put on a preferential recall list. James Parris testified that
Raybun told his group that they were temporarily re-
placed and put on a preferential recall list. Vickie Long
testified that DiGerlando said to her group that they
were replaced and put on a preferential recall list. The
size of the groups ranged from 2 to about 20. While
Wells and the aforementioned 14 year old accompanied
the large group, many of the witnesses testified that no
one wearing a white robe and hood accompanied their
groups when they approached Zartic's gate. Nale and
Calloway testified that they joined the picket line after
they were told they could not return to work on July 22.
Neither Asche nor DiGerlando, both of whom were
still with Respondent at the time of the hearing herein,
testified. Williams testified that on the morning of July
22 he had three conversations with strikers. During the
first he allegedly told employees Lester Hackney and
Tommy Thompson that they were "permanently re-
10 Nation did not testify regarding what management said to her
group, but rather what someone told her management said Her testimo-
ny in view of subsequent testimony is corroborative
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
placed and will be put on a preferential recall list." Later
he advised employee Barry Williamson that he could not
return to work. And then about 7 a.m., Williams spoke
to a large group of employees and allegedly told them
that they were permanently replaced and "will be" put
on a preferential recall list. Two other times during the
trial herein, however; Williams testified that he advised
employees' on July 22 ' that they were "placed" on a
recall list and - that ' they "were on" a preferential recall
list. 11 Clark, who was present at the gate for about 1
hour on the morning of July 22, testified herein that he
understood that if the employees were put on a preferen-
tial recall list it would mean that they would be called
back before any new people were hired. All of Zartic's
witnesses denied any knowledge that a preferential recall
list'existed on July 22.
Raybun testified herein that he was not aware of em-
ployees, individuals , or small groups attempting to return
to work on July 22, other than the "mass of people"
whom Williams spoke to.
After Raybun testified that during the strike he did not
see any list of those who did not come to work the first
2 days of the strike, Zartic employee Cheryl Galloway
testified that at 6 a.m., on July 22, she was in the lab in
Zartic's plant, when Raybun telephoned her from the
personnel office and asked her to come to his office to
pick up something she was to type; that Pam Lee, who
was in the lab with Galloway at the time and answered
the telephone, accompanied her to Raybun's office; that,
in the presence of Asche, Raybun handed her two pages
of names and asked her to type it and give it back as
soon as possible; that the list was titled "PREFEREN-
TIAL RECALL LIST"; that she recognized the names
on the list to be those of strikers; that she returned the
typed list to Raybun at 7 a.m.; and that later, about 7:15
a.m., Asche came to the lab and she asked him what the
list was for and that Asche told her and Lee that if open-
ings occurred the list would be used for recall purposes
and he told them not to say anything about the list to
anyone. Lee corroborated the above. There were some
minor inconsistencies in their testimony but, for the most
part, the testimony of Galloway and Lee was consistent
and very detailed. When Raybun was subsequently re-
called, he testified that he remembered giving something
to Galloway to type on one of the first 3 days of the
strike because that was the only time he arrived at work
before 8 a.m.; that he did not recall what it was he gave
Galloway to type; and that he was sure it would not
have been a preferential recall list. As noted above,
Asche did not testify here. Consequently, he did not
deny his above-described, alleged conversation with Gal-
loway and Lee in the lab. Williams testified that he did
not see any preferential recall list on July 22, and that he
did not put the names of the people he talked to on July
22 on a preferential recall list because he forgot, or be-
cause he did not believe one individual was serious about
returning to work, or because of the presence of Wells
11 As noted infra, Raybun testified on July 27 in the above-described
Federal district court case that employees were told on July 22 that they
were "put on" a preferential recall list (G.C Exh 8, p. 63, L 20)
and the 14 year old with the one large group of employ-
ees.i2
Williams testified that as production manager it was
his belief that at 7 a.m. on July 22 there were no open-
ings on the first shift; he did not have any, vacancies.
Raybun testified herein that he was not sure what jobs
Zartic had because people had been hired but they had
not reported for work yet. Employee Galloway, who
worked in quality assurance and "moved around" the
plant on July 22, testified that she saw at least 50 posi-
tions which were not filled that day. While Raybun testi-
fied that he did not personally allow any employees who
stayed out July 20 and 21 to return to work on July 22,
and Williams testified that he was not aware that this oc-
curred, it appears that a number of such employees man-
aged to enter the plant and when they were discovered
it was decided by management to let them work.
On July 22 Zartic petitioned the above-described court
for an adjudication of contempt arguing that the picket-
ing and wearing of robes violated the TRO. A hearing
was held that afternoon. (G.C: Exh. 7.) The petition was
denied but the court amended its TRO to' "enjoin any
picketing by individuals who are attired in the traditional
Ku Klux Klan robes and hoods." In its order, the court
pointed out that the TRO permitted lawful picketing. (R.
Exh. 24.)
Clark testified at the July 22 court hearing that, count-
ing office personnel, approximately 130 out of 425 em-
ployees reported for work on July 20; that about 150 em-
ployees out of 425 reported on July 21; that excluding
the office staff, 98 first-shift employees reported for work
July 22 (the same number reported on July 21); that
Zartic operated about one-third capacity on July 20, one-
half capacity on July 21, and about one-half capacity on
the first shift of July 22; and that the operation was suf-
fering because of a lack of production.
A copy of portions of the Wednesday evening July 22,
1981 Atlanta Journal were introduced by the Govern-
ment. (G.C. Exh. 30.) Involved is an article which ap-
peared on the first page titled "Klan and blacks unite in
an ironic alliance in Cedartown strike." The article con-
tinues on page 18,A where it is indicated:
The assistant director of a separate union, United
Food and Commercial Workers, said his office'has
been contacted by "a couple" of Zartic employees.
Jory McChesney , assistant director, said the union
will "make itself available if this is a bona fide labor
dispute" and if employees qualify for representation
by the Union.
As for whether the union would proceed if the
Klan is involved, McChesney said the matter, is
being studied.
While the entire article and two pictures are in the
record, the receipt of General Counsel's Exhibit 30 was
limited to one of the pictures in the article. It was not
demonstrated that Zartic had notice of the contents of
the article. Counsel for Zartic, however, did not chal-
12 It was also noted that Wells asked Williams to explain what these
"big" words meant because the employees did not understand them
ZARTIC, INC.
lenge that this is what in fact appeared in the above-de-
scribed newspaper on that date. It is not set forth above
for the truth of the matters stated therein.
Respondent introduced a number of business records
to demonstrate when new employees were hired after
the strike began. (See generally R. Exhs. 40 through
144.) The records for the involved employees generally
include the application for employment, a State of Geor-
gia employees' withholding exemption certificate, a Fed-
eral employee's withholding certificate, a United States
Department of Agriculture form, and an employee
master payroll file maintenance form. The last includes a
"Hire Date." The "Hire Date," on many of the forms is
a date which was subsequent to the above-described at-
tempt by employees to return to work on July 22 when
they were told they had been put on a preferential recall
list. Respondent sought to qualify many of the "Hire
]Date[s]" with an application form or testimony, It is Re-
spondent's position that the "Hire Date" on the mainte-
nance form indicates when the person began to work and
it was used for seniority purposes. Allegedly, the applica-
tion form and testimony demonstrate that, regarding a
number of the new hires, there was an offer and accept-
ance before the person actually began working.
While some allowances, practically speaking, would
have to be made for the hectic conditions which appar-
ently existed at that time, generally, notwithstanding this,
the other evidence submitted by Respondent to qualify
the "Hire Date" is not reliable. The application forms
raise almost as many questions as they answer. Lewis, as
indicated above, is not a credible witness. At one point
she testified herein that she spoke with Raybun at night
during the trial to "help" her refresh her memory on cer-
tain employees she had talked to supervisors about. With
respect to some of the new hires, the supervisors who al-
legedly hired them did not testify. In the circumstances it
is concluded that a number of people were hired for jobs
the strikers either previously held or could have per-
formed and these individuals were hired after employees
who attempted to return were advised they had been put
on a preferential recall list.
On July 23 Nation and Long went to Atlanta, Geor-
gia, and met with representatives of Local 442. Nation
was given authorization cards which she subsequently
handed out to employees. Maestas signed one of the
cards at her home on July 23. (G.C. Exh. 22.)
Cecil Witt testified that he was not due to report back
from vacation until July 27 but he was called on the
evening of July 23 and was advised by Supervisors Wil-
liam Grimes and DiGerlando that they were "short of
help" and would appreciate it if Witt would return to
work before July 24, which he did; that DiGerlando said
the employees walked out because of the supervisors,
working conditions, and the hours they had to work; and
that he normally works 54 hours a week and can average
between 10 and 30 hours over that.
Guards at Zartic's gate handed out a memorandum
from Clark to all employees including strikers who
walked up to the gate on Friday, July 24. (G.C. Exh. 2 )
It reads , in part, as follows-
1485
We have heard that in addition to the Klan and
its so-called "American Workers' Union" the Meat
Cutters Union is making a pitch to our employees.
We don't believe it is in your best interest to get
hooked up with this group. This is the same union
that has represented our Plainfield, Illinois employ-
ees. They went out on strike in May of this year
and we have replaced the majority of the union
members there with permanent replacements. If, for
example, they were voted in here they could con-
ceivably call for a "sympathy strike" among you,
our Cedartown employees. 13
On the night of July 24 the Klan held a rally at a
public park in Cedartown. Raybun and Williams attend-
ed and took pictures. Williams testified that the head of
the group stated that the Klan was withdrawing from
the union activities at Zartic.
Zartic's plant operated on Saturday, July 25, to make
up lost production.
Aubrey Robinson, a carpenter at Zartic, testified that
he received a pay raise effective July 26.
On Monday, July 27, Williams drafted a form and left
it in the guard shack for employees who wanted to
return to work to fill out. The form is a white lined
piece of paper with the date, July 27, 1981, written in the
upper right-hand corner and with the following written
on the first line: "NAME PHONE ADDRESS DATE
TIME." (C.P. Exh. 15.) He himself did not advise strik-
ers of the existence or the purpose of the sheet of paper
and he did not place any names on the sheet. It contains
four names. Three other lines were crossed out after it
was decided to establish a separate list for strikers who
telephoned Zartic inquiring about returning. (C.P. Exh.
16.) The "Called In" list contains five names. Regarding
Charging Party's Exhibit 15, Williams testified that no
one instructed him to make it up; that he did it on his
own; that he did not recall conferring with Clark before
drafting the form; that he did not confer with Mauer
first; and that he probably conferred with counsel for
Respondent, if anyone, before drafting the form.
Nation testified that about July 27 the signs were
changed to read "United Food and Commercial Work-
ers, 442, Unfair Labor Practice."
Testimony was taken at the hearing on the preliminary
injunction on Monday, July 27, in the above-described
civil action. Clark testified that Zartic had not yet re-
sumed total normal production; that Zartic was experi-
encing some problems in the maintenance area in that it
had some people who had not crossed the picket line and
some that were on the picket line, and as a result "it has
been damaging to us"; that because of the picketing and
people not reporting to work, the production of the plant
was down all of the prior week; that the people who did
not report for work July 20 and 21 were not fired; that
"[w]e did hiring on Monday and Tuesday, as many as 60
people and whether we replaced some of the people in
that group, we probably very well have"; and that on
Wednesday, July 22, Zartic could have determined on an
13 Zartic also has a plant in Plainfield Unless indicated otherwise all
references to its plant will involve Cedartown
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
individual basis whether it had openings . Raybun testi-
fied at the preliminary, injunction hearing on July 27 that
Zartic had not yet resumed full production because it did
not "have enough people to do the work;" that when the
group of employees attempted to return to work on July
22 "[t]hey were told that they had been permanently re-
placed and put on preferential recall" (emphasis added);
that he estimated that between 40 and 50 positions were
not filled Wednesday, July 22; that individuals did "show
up who were not a member of a large group . . . . they
show[ed] up at the proper time to go to work, and they
were turned away"; that the reason Zartic did not let
certain employees return to work on July 22 was because
"we didn't know what specific job skills were available,
and that is why we put them on a list, and as soon as we
knew what jobs were available, we would be recalling
them" (emphasis added).
The following ads appeared, one immediately under
the other, in the July 28 edition of the Rome News-Trib-
une (C.P. Exh. 13):
Immediate Opening
Experienced General Maintenance Line mechanics
welders, and electricians
Call 748-2700
Ext. 226 or 245
EXPERIENCED REFRIGERATION AMMO-
NIA TECHNICIAN
With supervisory experience.
Excellent salary for the right individual.
To Apply Call: 2748-2700
Ext. 226 or 245
Clark testified herein that he did not know of the first
ad. Raybun testified that normally Lewis places the ads.
Maestas, who as indicated above did not go to work
the week before because she is Hispanic and she feared
for her safety, had Zartic management informed on July
20 of her reasons for not working. On July 28, she tele-
phoned Zartic and spoke to her husband, Jerry Shaw,
who is a supervisor. Maestas asked him to speak to Earl
Madsen, her supervisor, to find out if she could return to
work. Later that day, Maestas again called her husband
at Zartic and he informed her that Madsen said she
could return to work July 29. However, later in the day
Shaw overheard Asche tell "Earl to tell Lucy [Maestas]
not to come in, that they didn't need her right now; they
found out she signed a union card." Madsen told Shaw
to tell his wife not to come to work stating: "I reckon
they found out she signed a union card." Subsequently
Asche told Shaw that Zartic needed a trimmer "real
bad." Maestas was a trimmer in roast beef. Neither
Madsen nor Asche testified herein and, consequently,
neither denies the above-described statements.
On July 29, Mauer issued a memorandum to all Zartic
employees. (G.C. Exh. 38.) Portions of the memorandum
read as follows:
All of the other employees who stayed out of
work last week in concert with this small group
[described earlier in the memorandum as the Klan]
have been permanently replaced. We do have an
obligation to our customers-many of whom are
boards of education-to supply them with our prod-
ucts. This does not mean we have fired the other
people. Simply that we have replaced them with
new employees.
Lastly, I would like to make a few comments
about the newspaper reports that the Ku Klux Klan
has met with the United Food and Commericial
Workers. This is the same union who has had our
Plainfield, Illinois employees out on strike for ap-
proximately ten weeks. As we have done here when
faced with the work stoppage last week, we have
hired permanent replacements for the strikers in
Plainfield, Illinois . . . [M]y personal opinion is,
that the second group the United Food and Com-
mericial Workers Union-wouldn't be a whole lot
different than the Klan. I would like each of you to
think long and hard about this because it seems to
me that if our-basic problem has been comunication,
it wouldn't make any sense to go hire an outside
spokesman to get into the problem. That would
seem a lot like asking your mother-in-law to inter-
vene when you and your spouse are having an ar-
gument.
Maestas signed a recall list on Friday, July 31, along
with Williamson, Shirley Hudgins, and Ruth Pike. In its
statement of position dated October 21, Respondent's
counsel indicated on page 8 thereof, that Ruth Pike was
called back to work on August 10. "She had placed her
name on a separate recall sign up list at the guard
shack." (G.C. Exh. 32.) At the trial herein, counsel for
Respondent represented that "[w]e don't have a list with
her name on it. I haven't seen it."
On Sunday, August 2, the two above-described ads
again appeared in the Rome News-Tribune (C.P. Exh. 1).
Clark testified herein that the 245 extension was Zartic's
maintenance department, and Raybun testified that the
226 extension was Zartic's personnel department, and
that he did not place the ads. Lewis testified that she was
sure she placed the ads; that the ads were placed before
the strike began ; that the ads run regularly; that the ads
were canceled when "[w]e just realized it was running
and we cancelled it"; that at that time Zartic did not
have openings in general maintenance but Zartic was
always looking for refrigeration and ammonia techni-
cians; that while she did not know when she placed the
ads, she was sure she did not place them in August; that
the August 2 ad for "General Maintenance Line Me-
chanics" was a mistake; that "[a]s soon as I found out the
ad was in there, we had them to stop [sic] running it";
and that "we called them" (the newspaper) to advise
them that the ad was run by mistake but Zartic did not
ask for a refund. This matter will be treated below in
connection with another Zartic ad which ran on August
I l.
The picketing of Zartic ended on August 9. Counsel
for the Union made an unconditional offer on behalf of
all the involved striking employees to return to work by
letter to Respondent dated August 9 The following day
the Union filed a petition for a representation election in
ZARTIC, INC.
Case 10-RC-2485 and, by letter, it requested recognition
from Respondent . Zartic declined by letter dated August
11.
Also, on August 11 the following ad appeared in the
Rome News-Tribune (C.P. Exh. 2):
IMMEDIATE OPENING
Experienced General Maintenance Line mechanics
welders and electricians
Call 748-2700
Ext. 266 or 245
Raybun testified that he did not place the ad. Lewis testi-
fied that she was sure she placed the ad; that she did not
know when she placed the ad but she did not place it in
August; and that in view of this ad it looks like she did
not cancel the August 2 ad or possibly the paper made a
mistake and canceled the wrong ad. The classified adver-
tising manager of the Rome News-Tribune Neal Rich-
ards, testifying on rebuttal produced a copy of a receipt
written July 27 which indicates that Zartic paid $210 by
check for an ad to run beginning July 23 through August
2. Richards also produced his personal ad book which in-
dicated when the ad ran. He viewed the August 2 ads
(C.P. Exh. 1), and testified that considering the rates in
effect at that time, the above-described amount would
have covered this advertising. While his personal ad
book did not indicate the date the ads were placed, Rich-
ards testified that they were placed July 21. He did not
know exactly when the $210 payment was made, and he
testified that although he did not handle it, he believed
that there was an additional order to continue the ad or
something similar to it beyond August 2.
Williams gave his second speech to Zartic employees
on August 11. (R. Exh. 182.) In part, it reads as follows:
Just yesterday, the Company received a letter
from the Union announcing that the strike is over
and that the strikers will be coming back for their
jobs. It looks pretty obvious that what they're doing
is trying to get their supporters back inside the
plant so they can push the Union from within. Since
this affects everyone of you, I want to make sure
that you understand what the Company's position is
with respect to returning strikers. All the jobs in
this plant are filled. So long as no job opens up, no
striker will have a job here. So the Union is just en-
gaging in some wishful thinking when it says the
strikers are going I o waltz in here and start to
work, and we have sent the Union a letter telling
them so. If the Union pushers are telling any of you
that returning strikers will take your job, don't be-
lieve them.
The General Counsel introduced a multipage comput-
er printout dated August 13 which gives the employee
number, name, anniversary date, and department number
of Respondent's employees as of that date. As indicated
thereon, a number of the employees listed are highlight-
ed in yellow. Also, there are checkmarks next to the
highlighted names and some are followed by "Term,"
meaning ' terminated, or "L.O.A.," meaning on leave of
absence. Lewis testified that she did the highlighting by
1487
using timecards and memory, she thought, and that
maybe she used absentee records. 14 Some of the names
are highlighted and then a notation was made that they
were on leave. One of the individuals highlighted is
David MacFarland.
Witt testified that in mid-September Supervisor
Grimes assembled the maintenance employees in his
office and advised them that they would receive a raise
of $1 per hour in their next paycheck, and that manage-
ment appreciated the fact that they crossed the picket
line. Grimes did not testify. Maintenance employee Rob-
inson did not recall any such meeting. As indicated
above, Robinson testified that he received a raise on July
26. The reason Robinson did not recall such a meeting
was because he was working for Zartic in New York
during the strike, which is when the meeting apparently
was held. Management's expression of its appreciation
for certain maintenance employees crossing the picket
line would then be timely. As testified to by Robinson,
and as demonstrated by Respondent's business records
(R. Exh. 145 through 163), the raise was actually effec-
tive in July and not September.
Lee testified that on returning from vacation in mid-
September she became aware of air-conditioning in the
seafood breakroom and she asked supervisor Hans Leder
about it, and that Leder said, "Yeah, we've gotten new
air conditioning." Leder did not testify. Also James
Googe, who handles air- conditioning at Zartic did not
testify. Another maintenance employee, Robert Wallace,
testified that in August or September he replaced the
ceiling tiles under the involved air-conditioning unit
which was not working; that the unit was not working in
August, September, or October; that 2.artic's air-condi-
tioning work at times is contracted out; and that a new
air-conditioning unit was installed in July 1982. Myers,
whose office was next to the seafood breakroom, testified
that the air-conditioning unit in the seafood breakroom
was installed in 1976; that Zartic had problems with the
unit beginning in 1978; and that during, 1981 an outside
plumbing firm repaired the unit and then a new unit was
installed. A business record (R. Exh. 26) was introduced
to show that Zartic experienced problems with the unit
in 1979. No business record was introduced to show ex-
actly when the new air-conditioning unit was ordered,
installed, and paid for.
In September Zartic placed three picnic tables in front
of its plant for the convenience of employees' who
wanted to eat outside. (G.C. Exh. 3, p. 3.) Previously
some employees ate outside the plant in another area.
They believed that they were then acting in violation of
a company rule. Some management witnesses testified
that any such rule was not strictly enforced. Williams
testified that there was no company rule against employ-
ees eating outside before the picnic tables were put in
place. The United States Department of Agriculture
(U.S.D.A.) food inspector in charge of Zartic, Sanford
Chambers, testified that he did not know if employees
eating outside the plant on Zartic premises was against a
14 Later, on questioning by one of Respondent's counsel, Lewis appar-
ently changed some of her testimony about absentee lists kept in 1981.
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company rule but it was not exactly within U.S.D.A.
guidelines because employees left trash ; and that after
Zartic improved conditions regarding eating outside, it
was not necessarily a violation of any U.S.D.A. rule. In
April or May Dixon asked Chambers if it would be okay
to put a break area in front of the plant and Chambers
said yes . Robinson, who built the tables , testified that
Dixon first asked him for a price for the work, which
was to be done on his own time , in April. Six weeks
later Robinson revised the quote . Since Robinson was in
New York for a part of July and had to harvest his
produce crop , he did not build the tables until Septem-
ber.
An administrative hearing officer of the Georgia De-
partment of Labor, Appeals Tribunal , released his deci-
sion on October 2 in Docket 11,696-81 -LD which dealt
with whether 76-named employees of Zartic, including
Nation , were involved in a labor dispute and whether
they were discharged or separated from employment
during such work stoppage and whether Zartic's tax ac-
count should be relieved of charges . The decision, in
part, states as follows:
FINDINGS OF FACT: A stoppage of work began
on July 20 , 1981, as a result of a labor dispute and
all picketing ceased on August 9, 1981.
It was stipulated that all employees had been placed
on indefinite layoff and were not discharged for
cause,
On October 13, a five-page memorandum from Mauer
was given to employees as they left work. It covers what
Mauer describes as the "most often asked questions
[during an organizing drive] and their answers." While
initially the General Counsel asserted that the entire
letter constituted a threat to employees that they would
be discharged if they joined or acted on behalf of the
Union, it was later asked that specific attention be given
the following portion:
Q. Can the Company continue to operate during
a strike?
A. Yes. The Company can go on running with
non-striking employees. The law also permits the
Company to hire new employees to permanently re-
place strikers in any economic strike. Look at what
happened, for example when we had the strike here
in July and August of this year. As has been said in
many talks-we do intend to continue operating in
any strike-we will hire replacements for anyone
who strikes. We owe that to our employees who
want to continue working, and to our customers.
During the week before the election Leder met with
Lee, Gail Hobbs, Beverly Wilson, Cheryl Galloway, and
Gail Henderson. According to Lee, who was the only
person to testify regarding this matter, Leder said that
"he could not make our mind up f o r us about ... how
we were to vote; that it could either be good or bad for
us to have a Union." Lee also testified that Leder "told
me that if the Union didn't come in, then I would be out
hunting a job." (Emphasis added.)
The following was distributed to Zartic's Cedartown
employees:
October 20, 1981
Dear Fellow Zartic Employee:
As we get close to the union election this Friday,
I'd like to share a few additional thoughts with you.
Many of your fellow employees in Plainfield, Illi-
nois are standing out in the cold today. In fact,
they've been standing out in the cold now for 160
days. That's 23 straight weeks. Some of these em-
ployees have worked for Zartic for many years.
Most of them haven't been able to find another job.
I sincerely believe that most of them would really
like to come back to work. The saddest thing is that
the union officers are still being paid by the United
Food & Commercial Workers, even though they're
the ones who called the strike. Why should they
care if our Plainfield employees haven't been paid
for 23 weeks. It hasn't hurt the union officers.
Another sad thing is that I can't even talk with
those employees about the strike. I would really like
to sit down with them, and I know many of them
would like to talk with me. But we can't do this. By
law, I can only talk with the union about what it
would take to settle the strike. That's what happens
when you have a union. It makes it much harder to
talk to each other.
One of the saddest things about the strike is how
it's turned people against each other. Our employ-
ees who decided not to strike have been called
names, have had their cars damaged and in some
cases have been beaten up. Our plant engineer-
who worked during the strike-had a "contract"
put out on him by the Secretary-Treasurer of the
United Food & Commercial Workers. That's where
he actually paid a "hit man" $500.00 to seriously
injure our plant engineer . We've also heard that the
union was trying to do this to one [of] our clean-up
employees. They've also made harassing telephone
calls and bomb threats.
The saddest thing of all is that if the strike was
over tomorrow, we wouldn't be able to put the
strikers back to work right away. Our Plainfield
plant has hired enough permanent replacements to
run 100% production. If the union called off the
strike and everyone offered to come back to work,
all we would be able to do is put the strikers on a
preferential hiring list.
So when you hear the union promising you all
those wonderful things if they're voted in, just
remind yourself what this same union has done for
our people in Plainfield-6 months out in the cold
without paychecks.
The union has told a lot of our employees that
there could be a strike if they're voted in. In fact,
Articles 8(B) and (G) of the UFCW Constitution
provide that the International's President, William
Wynn, who sits in Washington drawing $145,000 a
year, could order you and Local 442 out on a "sym-
pathy strike" here in Cedartown in support of
ZARTIC, INC.
Local 55 in Plainfield. That's a lot of risk to take
for nothing guaranteed in return.
One last thing. Some of our employees are still
saying they're against the union but aren't going to
bother voting. Please don't be misled into not
voting. This election'is too important to all of us for
you to let someone else decide your future for you.
We've all worked too hard building up the Compa-
ny. We've continued to grow and improve things. I
hope we can continue to grow and improve and I
hope we can do this on our own, without union in-
terference and without the threat' of union -strikes.
I'd like to- have your support on October 23, in the
form of a NO vote, -
Sincerely,
Zartic Frozen Meats & Seafoods, Inc.
James E. Mauer
President
After Respondent served a subpoena on Special Agent
James Deitz of the Federal Bureau of Investigation and
after a motion to quash the subpoena was filed by United
States Attorney Dan K. Webb, t 5 which motion was
granted, a private detective, hired at Zartic's Plainfield
plant, Raymond Green, and a lieutenant on the Plainfield
police department, Melvin Lantz, testified about the role
they played in the investigation regarding Zartic's Plain-
field plant engineer. Both testified that they never heard
anything about the hiring of a "hit man" to seriously
injure one of Zartic's cleanup employees.
Regarding the allegation that Williams about October
21 threatened employees that it was futile for them to
vote for the Union because, even if it won, the Respond-
ent would not bargain with the Union and the employees
would be required to go out on strike, the General
Counsel called two witnesses. The first, John Welchel,
testified on direct that he attended a meeting with about
25 second-shift employees and supervisors. He specifical-
ly named a number of those who attended. Williams
spoke. On direct, Welchel testified that Williams stated
that if the Union was voted in (a) the Cedartown em-
ployees "would have to go out on a sympathy strike for
the employees in Illinois"; (b) the Company would not
agree to deduct the union dues from our pay; (c) the
Union probably would want so many benefits and things
that there will be no way for the plant to operate; and
(d) if the employees went out on strike, after 3 days they
would be considered "voluntary quits." On cross-exami-
nation Welchel testified that Williams fired him; that the
The motion (ALJ Exh. 2) reads in part as follows '
1 Title 28, Code of Federal Regulations Subsection 16 21 et seq.,
establishes the conditions under which employees of the United
States Department of Justice 'are permitted to testify or produce doc-
uments in administrative and judicial proceedings.
2. 28 C . F.R. Subsec . 16.26(b)(4) precludes the giving of testimony
that would reveal a confidential source or informant.
3. 28 C.F.R Subsec . 16 26(b)(5) precludes the giving of testimony
that would reveal investigatory records compiled for law enforce-
ment purposes and would interfere with enforcement proceedings.
4. Testimony by Special Agent Dietz pursuant to the subpoena
served upon him would directly mtefere with an on going criminal
investigation and may result in revealing the identity of a confiden-
tial source or informant
1489
exact words of Williams . regarding a strike were "The
Union will call employees out on a, sympathy strike";
that Williams had a typed statement that he read from
"part of the time"; that Williams stated that the purpose
of the typed statement was that "his lawyer had in-
formed him not to say anything that wasn 't written out";
that when Williams , in the seafood breakroom , said that
the Union would ' call the employees out on a 'sympathy
strike, he was reading the typed statement; and that he
was positive Williams did not say:
Before you go in to vote on Friday, there are, a
number of questions you all have got to ask your-
selves. What Will the Union personally do for me?
Will the Union take us all out on strike ? Will they
call us out on a sympathy strike over the Zartic
plant in Plainfield? The Company doesn't have the
answers to all these things , and we can 't be expect-
ed to.
Welchel further testified that Williams read: "This will
be read to you so that the Union can't accuse us of
trying to threaten you"; that Williams said the Company
has been improved without a Union; that Williams
stated, "if you vote the Union out on Friday-And we
sincerely hope that you do just that-and you think
during the next year we haven't done a good job of run-
ning the Company then you can vote the Union in"; and
that when Williams said the Company would not make
dues deductions he was not reading from the statement
but rather talking to the employees.
Lee, the other General Counsel witness who gave evi-
dence regarding this matter, testified that on October 2
she attended a meeting with other first-shift employees,
and that at the meeting Williams said, "that if the Union
did come in that we could be asked to go out on a sym-
pathy strike with the Plainfield workers and that they
had been permanently replaced." Welchel was the, only
employee on the second shift to testify about what Wil-
liam allegedly said.
Respondent called a number of witnesses who testified
about what Williams allegedly said to employees during
the meetings. Apparently there were, however, four such
meetings held that day. (R. Exh. 185.) With the- excep-
tion of Williams himself, all of Respondent's witnesses
testified about what Williams said during the first-shift
meeting. The witnesses also testified that the normal pro-
cedure at said meetings was for Williams to read his
statement, a copy of which, was read at the same time by
designated employees who then signed and 'returned
their copies to Williams. This alone, however, does not
mean that the procedure was in fact followed at the
above-described second-shift meeting. But Williams testi-
fied that at the October 21 meetings he read from a text
and did not deviate; he read it verbatim. Williams also
testified that it was his practice to reread a portion of the
text when an employee asked a question, and that on
advice of counsel he "chose to stick strictly to that text
word for word and not wander from it one iota, which
... [he] had not."
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As pertinent, the October 21 speech 16 (R Exh. 184)
reads as follows:
I know by now you're all tired of hearing about
this Union business, and we're tired of talking about
it too, But we wanted just a few more minutes of
your time this (morning) (afternoon) (evening) to
talk about the Union vote on Friday. Again, this
will be read to you so that the Union can't accuse
us of trying to threaten you.
Before you go in to vote on Friday, there are a
number of questions all of you ought to ask your-
selves. "What will the Union personally do for
me?" "Will the Union take us all out on strike?"
"Will they call us out in a "sympathy strike" over
the Zartic plant in Plainfield?" The Company
doesn't know the answers to all of these things, and
we can't be expected to. After all we don't run the
Union's business, and we wouldn't wait to. But by
the same token, the Union doesn't run our business
and it never will even if it were to get voted in.
Suppose the Union did win the election. What
would happen then? By law, we would be required
to sit down and bargain with it over your wages,
hours and working conditions here in the plant.
What happens when a Company and a Union can't
get together on a contract? That does happen some-
times. It happened to our Company with' this same
Union in Plainfield last spring. We just couldn't get
together with the Union. The main issue was
money. We felt their demands were just too high,
so we said "NO" to the Union. Like I asked earlier,
what happens when a Company and a Union can't
get together on a contract? At that point, the Union
has two choices: It can either keep on talking or
take the employees out on strike. This same Union
decided to strike in Plainfield when we couldn't
agree. Our employees there who went out on strike
have been going without pay for almost six months
Not only that, but permanent replacements have
been hired, The plant is running at 100% produc-
tion and the strikers have not received one nickel in
unemployment benefits.
Now I'm not making any predictions and I cer-
tainly hope we don't have another strike here. But
we'd hate to see you caught in a "picket line
squeeze" around Christmas time for example, and
not be able to say that the Company at least tried to
warn you about some of the things that can happen
when you get a Union involved.
You've all worked hard to build up this Compa-
ny.- You deserve the credit and we appreciate your
hard work and we've tried to do our part to im-
prove the Company and make it a better place to
'S A portion position of the speech was read only to third-shift em-
ployees and, therefore, is not relevant to allegations regarding what was
said at the first and second shift meetings It is noted that part of one
sentence in the third shift portion, viz, "The picketing wasn't hurting our
sales or business" is contrary to fact and the position Zartic took in Fed-
eral court in the above-described civil action
work. While we have been in the process of adding
new plants, this plant has grown to its present size.
Many of our supervisors here started out working
on a line. As we continue to grow, there is more
room for everyone to advance. We've added new
equipment and cleaned up the plant. We get higher
and higher marks with each USDA inspection.
We've added holidays and added new vacation-its
now 3 weeks after 5 years-we've done these things
because you deserve them. We've done them with-
out a Union and we've continued to improve the
Company without a Union. If you vote the Union
out on Friday-and we sincerely hope you do just
that-and if you think during the next year we
haven't done a good job of running the Company,
then you can vote the Union in. You only have to
wait one year to get another election. On the other
hand, if the Union is voted in and you decide later
on you're unhappy with it, it can be very, very
hard to get rid of a Union.
You can see exactly what it is that all of you
have now-a job that gives you 52 weeks of work a
year with no Union involved. Personally, if I had
that choice versus something as uncertain as life
under the United Food & Commercial Workers, I
wouldn't have any problem in making up my mind
how to vote.
Thank you for your time. Are there any ques-
tions?
Welchel also testified that about October 21, Mauer
spoke to second-shift employees after asking all of the
supervisors,to leave the room. It is Welchel's direct testi-
mony that Mauer said, "If you'll vote no on the day of
the election, I will promise you that there will be better
working conditions, and I will try to raise your salary
within the next 12 months." On being asked whether, be-
sides possibly raising salaries , Zartic would start paying
insurance premiums for dependents, Mauer, according to
Welchel's testimony, said that he "couldn't make a defi-
nite promise . . . but he would do what he could." Wel-
chel went on to testify:
At this point, Gary Diamond said, fellow, I have
to work hard in the Grinding Room, and what I
want is a raise in pay, not promises, and Mr.
Mauer's reply to that was, "this is my goddamn
plant, no one tells me how to run it." -
According to Welchel's testimony, Mauer started to lose
his temper because his face became red and he was
shouting. Welchel testified that usually Mauer is a real
soft-spoken man and he seemed to regain his normal atti-
tude in just a matter of seconds. On cross-examination
Welchel testified that Mauer-said he could not make any
definite promises; that Mauer said, "if we would not vote
for the Union and give him another year, that there
would be some changes made in -working conditions,
possibly would be some wage raise," and that Mauer
said, "he couldn't make no [sic] definite promises about
the insurance or about the wage raise, but there would
be some changes in working conditions in the next year."
ZARTIC, INC.
Regarding the October 21 meeting with first-shift em-
ployees, Lee testified that Mauer asked Williams to leave
the room and then:
Mauer said that he wanted us to give him another
year to show that he could make improvements and
that things would be better he promised us, and said
that if in a year we saw that things were not better,
we could vote the damn thing in.
All of the witnesses Respondent called, who testified
about what Mauer said while addressing employees on
October 21, testified about the first-shift meeting. Gloria
Spurgeon testified that when she "griped" about a raise,
Mauer said he could not talk about money and could not
promise anything and that Mauer did not use the expres-
sion "damn Union" at her meeting . Jerry Tolbert, who
by the time of the trial had become a supervisor, testified
that Mauer asked the employees for a year, indicated
that he could not make any promises, and did not say
what he would do in that year. Tolbert, who has poor
hearing, testified that he did not hear Mauer say "damn
Union." Robinson testified that he never heard Mauer
say "damn Union." Mauer did not testify.
On the day before the election, October 22, Asche
spoke to Lee while she was in the quality control lab at
her desk. Gail Hobbs and Beverly Wilson were in the
lab. Lee testified that she asked Asche: "What would
happen if the Union came in the next day. And he said
the first thing they would ask for would be a check-off
and Jim Mauer would never agree to it." No one else
testified regarding this conversation.
As indicated above, an election was held on October
23.
As set forth in Respondent's statement of position
(G.C. Exh. 31), the Immigration and Naturalization Serv-
ice (I.N.S.) visited Zartic's Cedartown plant on February
22, 1982. Clarke was advised that of the Company's ap-
proximately 30 Spanish surnamed employees "only about
five" were beyond suspicion of being illegal immigrants;
that the others would be given a grace period of about 10
days to leave the United States voluntarily; and that all
of the Mexican employees in question were at the time
employed on Zartic's third-shift sanitation crew About
February 25, 1982, Zartic sent a letter (R. Exhs. 29 and
30) to about 20 people on the preferential recall list in-
quiring whether they wanted to work on the third-shift.
At one point Lewis testified on cross-examination that
Zartic sent out a lot more letters than it had jobs to be
filled. On the very next page of the transcript Lewis tes-
tified that she did not say Zartic sent out a lot more.
Then on the next page of the transcript she testified that
maybe she was incorrect when she said Zartic sent out
more letters than it had jobs available. The following
day in answer to questions propounded by Respondent's
attorney, Lewis testified that she sent out approximately
25 letters to former strikers regarding third-shift jobs;
that 17 accepted the offer of reinstatement; that about 9
sanitation workers left; that about 4 of the 17 returning
employees walked off the job in a few days; and that
those returning workers who did not replace the "Mexi-
can-Americans" did other work.
1491
In March 1982, Zartic attempted to obtain a trailer
washer from the preferential recall list. Lewis testified
that after unsuccessfully calling about 15 people on the
list over a 2-day period, however, Zartic hired someone
off the street allegedly because it did not have the time
to go through the entire list.
According to the testimony of employee Carnes, about
1 or 2 weeks before he testified herein , he was escorted
by Williams to the latter's office where Carnes, in the
presence of Williams, spoke with one of Respondent's at-
torneys, Michael Towers. The following is the pertinent
direct testimony of Carnes:
Q. Now, tell us what was said. Did Mr. Williams
talk during the conversation.
A. He never opened his mouth. But I don't quite
remember what was said. There was a few ques-
tions asked me, and I answered them the best I
could.
Q. Before he asked you any questions, do you
recall Mr. Towers telling you that you didn't have
to talk to him?
A. He didn't.
Q. Do you recall him telling you that if you
chose not to talk with him that you could leave and
it wouldn't hurt your job?
A. No.
Q. All right. Well, what did he first ask you?
A. I don't quite remember.
Q. Okay. What was he asking you about?
A. The strike.
Q. What did he ask you about the strike?
A. Asked me why I didn't cross the picket line,
and I told him I didn't cross picket lines.
Q. Okay. What else do you recall him asking you
about?
A. I just don't remember nothing.
Q. Did he ask you anyting about the day you re-
turned to work, or you tried to return to work?
A. I don't believe he did. I don't remember.
Q. All right. Do you recall him asking you any-
thing about when you went up to the guard shack
with your wife?
A Yes, he named that.
Q. Okay. What did he say about that?
A. He asked us why-when we went up there
what they said, and I told him we was temporary
laid off 'til further notice.
Q. Did he say anything else?
A. Not that I remember.
Q. Did he ask you that once or more than once?
A. Once I believe is all he asked me.
Q. All right. Was he writing anything, or was he
just talking to you?
A. He was writing.
Q. And then what happened after you were talk-
ing and he was writing.
A. Well, I don't remember.
Q. At any time, did he read anything to you?
A Yes,, he read it to me after he got it written,
and he asked me to sign it, and I told him I didn't
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sign papers , because I done got in trouble once
And I told him no, I had to go to the rest room.
Q. And what did he say?
A. He said he would go up there with me and
get me to sign it. So, I did. I told him, no, that I
would initial it before I left.
JUDGE WEST: I didn't get that last part. You told
him you were going to what?
THE WITNESS: I told him I would initial it before
I went. I didn't want him to follow me. I didn't
want him to follow me to the rest room, so I just
went ahead and initialed it
JUDGE WEST: Okay Thank you.
By Ms. Anderson:
Q. Mr. Carnes, how much education do you
have, formal education? -
A. Well, I dust went to the fourth grade
Q. The fourth grade?
A. Yes.
Q. Can you read very well?
A. No.
Q. Do you read at all?
A. No.
Ms. Anderson: I have no further questions.
Before cross-examining Carnes, Towers requested any
statements Carnes gave the Board asking the following
questions:
By Mr. Towers:
Q. Mr. Carnes, have you given any written state-
ments to the National Labor Relations Board in
preparation for this case for trial?
A. No, sir.
Q. No, you have not? To the best of your recol-
lection, you haven't?
A. That's right.
The General Counsel then tendered two statements
Carnes gave the Board, both of which were signed by
Carnes, and both of which indicate that the statements
were read to Carnes. One of the statements was given by
Carnes 9 days before he testified herein.
Subsequently, the General Counsel introduced the
two-page statement Carnes gave Towers. (G.C. Exh. 42.)
"W. F. Carnes," in Carnes' handwriting, appears on both
pages of the statement The following typed statement
appears on the first page:
The company is attempting to secure information
necessary to its defense in a case before the Nation-
al Labor Relations Board. This interview has no
other purpose and I will only ask questions relevant
to the case. I will not ask you for, and you should
not volunteer, any information concerning your per-
sonal feelings or activities respecting the union.
Your cooperation is voluntary, and you are free to
answer or not answer my questions. You will not be
rewarded for your cooperation, nor will there be
any adverse consequences if you exercise your right
to refuse to assist me. You may terminate this inter-
view at any time.
Over the General Counsel's objection Towers was al-
lowed to cross-examine Carnes. Towers did not testify
about this matter. Williams did, testifying that prior to
asking Carnes any questions Towers read Carnes his
"rights," that portion of the statement set forth in the
next preceding paragraph or in other words:
He said for one that Mr. Carnes, had the right to
not answer any of the questions , if he desired not
to, that he had the right to disband or stop the con-
versation at any time; he would not be rewarded for
doing so, nor would he be reprimanded for doing
so.
[And] Walter [Carnes was told that he] did not
have to and he [Towers] did not want Walter to
disclose what his feelings toward the Union were,
nor would . . . [Towers] ask him any questions
with regard to that.
Williams further testified that he witnessed Carnes sign-
ing the statement he gave to Towers after Carnes indi-
cated he would only initial it On cross-examination of
Williams, the General Counsel elicited testimony that
Williams was present when Towers talked to employee
Nina Coleman and she elected not to answer any ques-
tions after Towers read Coleman her "rights."
Witt testified that during the next-to-last week in July
1982, during a meeting of the safety committee, he ad-
vised Raybun that the Labor Board had subpoenaed him.
Allegedly Raybun responded that "he would love to talk
to me [Witt] after the meeting." When the meeting was
over Witt and Rayburn talked. It is Witt's testimony that
Raybun initially said that Witt did not have to tell him
anything if he did not want to; that he told Raybun that
he talked with the Union's attorney about receiving a
dollar-an-hour raise and about whether Grimes changed
since all of this occurred; that Raybun asked him to
write it down. Witt further testified that he also "talked"
with Raybun about whether he, Witt, would join the
Union if it was elected. The next day Witt was "mistak-
enly" summoned to Raybun's office to pick up a subpoe-
na While there, Witt gave Raybun the paper with Witt's
notations on it. According to Witt, at that time Raybun
said that they were not supposed to be talking about it.
On cross-examination Witt testified that at the safety
meeting Raybun may have said, "I don't want to talk
about it now; let's talk about it later"; that he believed
after the meeting Raybun said, "it really doesn't matter
to me"; that two or three times during the union organiz-
ing drive Witt went to DiGerlando and volunteered in-
formation, i.e., that authorization cards were being
signed by unnamed people and some unnamed people
wanted to walk out and join the strikers; that his wife
was terminated by Zartic while under a doctor's care;
that one of his sons was terminated by Zartic a week
before Witt testified; and that he gave an affidavit to the
Board the night before he testified. After testifying at
least three times that he wrote three questions and an-
swers on the piece of paper, the following exchange oc-
curred between the General Counsel and Witt:
ZARTIC, INC.
Q. And you didn't actually put down a question.
You just put down the answer to everything that
you talked to Mr. Raybun about?
A. Yes, ma'am; that's correct, I didn't write the
whole question out, because it was a single piece of
paper that came out of my notebook that I tote in
my pocket.
Q. So you just put answers to all the questions
that were discussed on the stairway?
A. Yes, ma'am, to the best of my knowledge.
Earlier, Witt testified that Rayburn asked him to write
the questions and answers he gave to the union attorney.
And just before the above-described exchange with the
General Counsel, Witt was asked why, if Rayburn asked
whether Witt would join the Union, it would be neces-
sary to write out the question and Witt's answers on a
piece of paper that lie was giving to Raybun. Witt re-
plied, "I don't know.. I just did. It was something they
brung [sic] up, and I thought he might want to know
about it." When pressed further on this Witt, in effect,
stated that he did not understand the question.
Raybun testified that during the safety committee
meeting Witt said he had some things he wanted to tell
Raybun; that he told Witt they would have to wait until
after the meeting; that after the meeting Witt approached
him and Raybun advised Witt, "I could not ask him any-
thing and it would have to be strictly on a voluntary
basis"; that Witt said that some attorneys came by his
house and asked him some questions, or had given him a
list of some questions that they would be asking him
during the hearing; that Witt then told him two or three
of the questions, viz, did Grimes' attitude change before
or after the strike, did Witt receive a pay raise in 1981,
and if a Union came to Zartic would he join to which
Witt told Raybun he answered, "hell, no!"; that the next
day he summoned Witt to his office when he mistakenly
believed he had a subpoena for Witt and Witt gave
Raybun some pages of a notebook with three or four
questions on them; that as Witt was leaving he said he
forgot to put down the question regarding whether he
would join the Union if it came to Zartic; that regarding
the question of whether Witt would join the Union, he
did not remember whether he himself wrote that down
on the note; that he did not know where the papers were
and, had not seen them since that day; and that he had
not shown the papers to anyone else.
Lewis testified that "as a matter of course anyone re-
ceiving a workers' compensation settlement is terminated
by Zartic." This has been Zartic's policy for years. Indi-
viduals terminated for this reason include Wells, Lewis,
McClarity, Susan and Thomas Ridgeway, and Tretha
Piccione. Lewis did not know what the percentage of
disability would have to be for the worker to be termi-
nated but testified that the worker is terminated if he or
she has a disability which could be as little as a 5-percent
disability in his or her right forefinger. Since January 23,
1982, Zartic has been a self-insurer regarding workers'
compensation. Lewis also testified that Zartic has hired
several handicapped people and in some cases Zartic has
received a tax "break" when it hired these individuals.
1493
B. Analysis
Was the July 20 strike protected by the Act? The
General Counsel argues that the inclusion of one possible
illegal demand does not negate the legitimacy of the re-
maining demands, and even assuming arguendo that the
strike was unprotected, Respondent's subsequent placing
of the strikers on a preferential recall list, maintaining
their employee status, and ultimately reinstating them
with full seniority rights constituted condonation of any
unprotected aspect of the strike. The Union argues that
the July 20 strike constituted protected concerted activi-
ty under Section 7 of the Act. On the other hand, Re-
spondent contends that the strike was illegal from its in-
ception; that, notwithstanding the possible presence of
legal objectives, the inclusion of the demand that Re-
spondent terminate its Mexican-American employees ren-
dered the strike illegal; that backpay is not an appropri-
ate remedy for strikers who are replaced while engaging
in a strike that is illegal from its inception; and that Re-
spondent did not violate the Act in any event because
the usual doctrine of condonation does not apply where
a strike is illegal from its inception.
As noted above, one of the demands, indeed the first,
was that "[a]ll illegal and `Green Card' aliens must be
dismissed, Additionally, signs carried on the first day of
the strike referred to Mexicans. On the issuance of the
TRO, the demand was dropped and the signs in question
were no longer carried. The Board has determined when
the conduct of strikers is unlawful under the Act.
Mackay Radio & Telegraph Co., 96 NLRB 740 (1951),
and Thompson Products, 72 NLRB 886 (1947). In Ameri-
can News Co., 55 NLRB 1302 (1944), the Board dealt
with an attempt to violate an explicit ruling by a regional
director of the National War Labor Board. In ABC Pres-
tress & Concrete, 201 NLRB 820 (1973), the Board af-
firmed the decision of an administrative law judge
wherein he made extensive findings regarding wage-and-
price freeze laws. It, would appear that the matters he
covered were a part of the record in that case. And the
five-to-four majority in the Supreme Court decision
reached during World War II in Southern S.S. Co. v.
NLRB, 316 U.S. 31 (1942), concluded that a strike
aboard a ship docked in Houston, Texas, was a violation
of specified sections of the United States Criminal Code
dealing with mutiny. Three years earlier in a case involv-
ing strikers who seized an employer's buildings, dis-
obeyed a court injunction ordering them to surrender the
property, and were forcefully arrested, fined, and given
jail sentences, a majority of the Supreme Court in NLRB
v. Fansteel Corp., 306 U.S. 240, 256 (1939), concluded
that,
[w]hen the employees resorted to that sort of com-
pulsion they took a position outside the protection
of the statute and accepted the risk of the termina-
tion of their employment.
The Court went on the conclude that in the circum-
stances the Board could not compel reinstatement of the
employees. Here apparently there has been no final de-
termination that the conduct which was the subject of
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the TRO was unlawful . Since the conduct does not deal
with a matter which is either subject to the Act and
within the Board 's expertise, or treated sufficiently on
the record (Respondent does treat the matter on brief) to
allow an informed judgment , it is questionable that this
determination , notwithstanding the apparent unlawful
nature of the conduct , should be made in the first in-
stance in this forum . In Southern S.S. Co. v. NLRB, supra
at 47, the Court admonished the Board , however , that it:
has not been commissioned to effectuate the policies
of the Labor Relations Act so single -mindedly that
it may wholly ignore other and equally important
Congressional objectives.
Consequently, it will be assumed for the sake of this
analysis that the first demand and the questioned signs
constituted unlawful conduct . (The evidence does not
demonstrate that any striker carried allegedly objection-
able signs on July 20.)
As pointed out in Mackay, supra, at fn . 6, the Board
has held that activity which has both a lawful and un-
lawful objective is unlawful . As also pointed out in
Mackay, those who participate in an unlawful strike do
not automatically terminate the employer -employee rela-
tionship . Such strikers , however, give up their right to
invoke the protection of the Act and at the same time
provide the employer with grounds for discharging
them. In Mackay, the majority held it "did not believe
that the principle of condonation should be applied .. .
to strikers who .. . participated in a strike which was
unlawful from its inception , and not merely unprotect-
ed." Consequently , the fact that Zartic asked the strikers
to return to work on July 20 and 21 did not bring the
strikers back under the protection of the Act.
The unlawful objective was discontinued by the strik-
ers with the issuance of the TRO, which was later
amended to speak to the attire worn by some of those
picketing Zartic. The record does not reveal any overt
action by strikers in support of the unlawful objective
after July 20.
Paragraphs 21, 22, and 23 of the complaint allege that
on July 22, specified employees , among others , made an
unconditional application with Respondent for return to
work and that Respondent refused and continues to
refuse to reinstate the employees because they engaged
in concerted activities with other employees for the. pur-
poses of collective bargaining and other mutual aid and
protection . On brief, the General Counsel argues that
while Zartic hired some replacements for the strikers on
July 20 and 21, there were still positions open when the
strikers made their unconditional offers to return to work
on July 22; that when Respondent refused the offers and
strikers resumed their picketing the economic strike was
converted into an unfair labor strike; that it was not nec-
essary that each and every striker make separate individ-
ual requests to secure their right to reinstatement since
the strikers returning to the plant at their regular starting
times clearly indicated their desire and readiness to end
the strike , and, Respondent 's position on July 22 made it
clear that continued offers by employees would be futile;
that the Supreme Court held in Fleetwood Trailer Co.,
389 U.S . 375 (1967), and Great Dane Trailers , 388 U.S. 26
(1967), that an employer who refuses to reinstate eco-
nomic strikers who make unconditional offers to return
to work has the burden of proving that the strikers have
been permanently replaced; that Respondent failed to
carry this burden since its own document and the 'testi-
mony of its - witnesses show that vacancies still existed on
July 22 and 80 new employees were hired after the strik-
ers made their unconditional offers to return to work (R.
Exh. 21 ); that although there was some evidence present-
ed by Respondent in an attempt to establish that a com-
mitment was made to new hires on July 20 and 21 with
the agreement that they would report at a later date,
such evidence was incomplete and lacked credibility; and
that the mere offering of a job without a showing that a
mutual understanding and commitment had been made is
insufficient to qualify the new hires as permanent re-
placements.
Citing Laidlaw Corp., 171 NLRB 1366 (1968), enfd.
414 F . 2d 99 (7th Cir . 1969), the Union points out on brief
that both the Board and the court held that the employ-
er's attempt to terminate the "employee" status of a,
former striker as of the date of application for reinstate-
ment, and the hiring of new applicants when reinstate-
ment applications were still outstanding , were presump-
tive violations of the Act regardless of the employer's
motive; that the employer can defend said action only by
demonstrating either that the former striker had in the
meantime secured regular and equivalent employment
elsewhere , or that its refusal to reinstate the strikers was
founded on a legitimate and substantial business reason;
and that Respondent 's conduct in this regard was an
unfair labor practice sufficient to convert an economic
strike into an unfair labor practice strike.
Respondent , on brief, contends that its refusal to rec-
ognize the "Klan-led Rush on the Gate" as an uncondi-
tional offer to return to work did not violate the Act.
As pointed out by the General Counsel , there was no
need for each and every , striker to make an offer for rein-
statement on July 22, in view of the fact that Zartic was
not asking employees' names or job classifications and its
representatives told all of the strikers who attempted to
return at that time that they were replaced and put on a
preferential recall list. Management 's belated attempt to
make any reference , on July 22, to the preferential recall
list a future tense reference is belied not only by Wil-
liams' own shifting testimony regarding what he said but
also the above-described Federal court testimony of
Raybun who was present at the gate that morning. Man-
agement's testimony did not overcome the credible testi-
mony of employees who were told that they were put on
a preferential recall list . That list existed on July 22. It
memorialized Respondent 's voluntary elevation of the
status of the strikers to that of economic strikers. Con-
trary to the impression Respondent attempts to convey
on brief, there was no charge on the gate by a Klan-led
mob. Indeed many of the witnesses , including ,Williams,
testified about small groups, sometimes only one person,
coming to the gate with no Klansman present. On July
22, strikers made an unconditional offer for reinstatement
and Respondent accepted that offer indicating to the em-
ZARTIC, INC.
ployees that their names were put on a preferential recall
list, which list had already been drafted.
Notwithstanding this , Respondent did not at that time
go to the recall list to fill its needs but rather continued
to hire new employees as permanent replacements. As
pointed out by the Union, this resulted in a violation of
the Act unless Respondent had a legitimate and substan-
tial business reason for its refusal to go the preferential
recall list first. Its above-described alleged reason, viz.,
that the offer was no more than,a "Klan-led Rush on the
Gate" is not supported by the facts. Respondent has not
carried its burden of proving that when the strikers at-
tempted to return they had already been permanently re-
placed. Consequently, in light of the conclusion reached
below, Respondent's refusal to first go to the preferential
recall list constituted a violation of the Act. That viola-
tion prolonged the strike and converted it into an unfair
labor practice strike.
In October 1980, when the Klan picketed Zartic, it at-
tempted to have Respondent's employees support an-
other local of the AFL-CIO. Zartic knew this for it
filmed the picketing, which included the Klan carrying a
sign stating "Join AFL-CIO, Local No. 527." (R. Exh.
165.)
On the first day of the involved strike, July 20, Myers
stated management 's position regarding the unionization
of Zartic when she said, "there will never be a union at
Zartic." Her denial is not credited . She did not impress
me as being a credible witness. On the other hand, Nale
and Calloway did impress me as being credible witnesses
and, notwithstanding some discrepancies in their testimo-
ny, which are understandable considering the circum-
stances of that morning, it is credited. On brief, Respond-
ent argues that Calloway should not be credited because
of alleged inaccuracies in her testimony regarding what
occurred on July 22. The record does not support Re-
spondent on this point. Respondent then argues that only
the AWU was involved on July 20 and, therefore,
Myers' reference could only have related to it. Myers
denied making any statement about a union, qualified or
otherwise. Her statement "there will never be a union at
Zartic" was in no way qualified by her. And circum-
stances in no way dictate that it should be limited to the
AWU, even though Local 442 of the AFL-CIO was not
involved at that time. Myers statement was a threat in
violation of the Act.
That Zartic did not want union supporters in the plant
was demonstrated by its treatment of Maestas. An His-
panic who is married to one of Zartic's supervisors,
Shaw, Maestas is a timid, soft-spoken individual. She did
not go to work during a portion of the strike because she
was afraid. Zartic knew this. It allowed other workers
who stayed out because of fear to return. Maestas was
treated differently, however, because even though she
was a trimmer and Zartic needed trimmers, Maestas
signed a authorization card for Local 442 and Zartic dis-
covered this. Neither Supervisor Madsen nor Manager
Asche testified herein to deny that this stated reason was
the only reason for not allowing Maestas to return.
Maestas was further discriminated against when she,
along with Pike, signed a recall list in the guard shack on
July 31, and then Pike was recalled and Maestas was not.
1495
While counsel for Respondent referred to such recall list
in its above-described position statement, the where-
abouts of the list was not known by counsel at the time
of the trial. Zartic violated the Act in its treatment of
Maestas.
Although the General Counsel was unable to prove
that Zartic had notice of the involvement of the Union
on July 22, as noted above, an Atlanta newspaper had a
front page article which discussed this, among other
things. Clark's July 24, memorandum speaks to the in-
volvement of the Union and expresses Zartic's opinion of
the Union.
An employer can discharge employees for taking part
in an unlawful strike. The fact that Zartic asked strikers
to return on July 20 and 21 did not change their status.
But when Zartic voluntarily took a positive action,
namely, put strikers on a preferential recall list and ad-
vised them of this when they attempted to return on July
22, it could not later disregard that positive action with-
out giving a reasonable explanation for its conduct. Re-
spondent could not logically argue that the strikers' un-
lawful conduct on July 20 was the reason it did not first
go to the recall list to meet its post July 22 employee
needs for no one would then have to ask, if that is so,
why was the list established in ` the first place. Conse-
quently, Respondent argues that on reflection it decided
that an unconditional offer was not made on July 22. Al-
though convenient from Zartic's point of view, this argu-
ment is not supported by the record. While Zartic volun-
tarily changed the strikers' status on July 22, it never
gave a valid explanation why it subsequently disregarded
that changed status. As noted above, Clark testified in
Federal court that although Zartic could have deter-
mined on an individual basis whether it had openings on
July 22, no real attempt was made to do this. One is left
to speculate that Zartic was concerned with another pos-
sible attempt to unionize and it wanted to take a "wait
and see" posture. When it realized that there was a possi-
bility of a recognized Union becoming involved, it decid-
ed to reverse its course. There is, however, no need to
decide this issue on speculation. Zartic, in these circum-
stances, had the burden of demonstrating that there was
a lawful explanation for its 'conduct. This it failed to do.
One is left, therefore, with only the possible unlawful ex-
planation. While the Board normally could not order re-
instatement of strikers who participate in a strike which
is unlawful from its inception, in the circumstances of
this case it is my opinion that the strikers were dis-
charged on July 22, and that reinstatement can be or-
dered as of that date.
It is the General Counsel's contention that during the
period after the Union filed its representation petition
and before the election Zartic violated the Act on, a
number of occasions. In my opinion, except for two of
the allegations, the General Counsel did not prove her
case. Unrefuted documentary evidence demonstrates that
Witt, the only witness to testify in support of the allega-
tion, was, at best, mistaken regarding a promise and the
receipt of a wage increase in September.
Regarding the air-conditioning unit in the seafood
breakroom, if in fact such a unit was installed during the
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
critical period, it would have been a replacement unit
since the room had been air-conditioned since 1976. Ap-
parently Zartic had experienced problems with the unit
for years. The replacement, if it did occur during the
critical period would not, in my opinion, have been the
type of improvement in working conditions which would
have violated the Act and affected the outcome of the
election.
Plans for the building and installation of the picnic
tables were made long before the critical period began,
and any change in rules, if one did occur, would have
been contemplated before the critical period. There was
a reasonable explanation for the timing of the installation
and, therefore, it cannot be concluded that it was inten-
tionally delayed so as to affect the outcome of the elec-
tion.
The above-specified portion of Mauer's October 13
memorandum does not, in my opinion, constitute a threat
to employees that they would be discharged if they
joined or engaged in activities on behalf of the Union. It
is a statement of the Company's intent to "hire replace-
ments for anyone who strikes." This sentence does not
indicate whether the replacements would be temporary
or permanent. In the preceding sentence Mauer impliedly
characterizes the strike involved herein as an economic
strike. Even though it has been concluded herein that
Respondent violated the Act when it refused to reinstate
strikers in July, Mauer's opinion does not constitute a
threat. But it is interesting to note that this is how the
president of Zartic viewed the strike as of October 13. In
my opinion nothing in the October 13 memorandum con-
stitutes a threat to employees that they would be dis-
charged if they supported the Union.
Does the October 20 Mauer letter threaten employees
with bodily harm if they joined or engaged in activities
on behalf of the Union? In my opinion it does not. On
brief, the General Counsel contends that the truth or fal-
sity of the allegation about a "hit" man is not at issue.
That there is no logical explanation as_ to why Respond-
ent would include such a paragraph unless it wanted its
Cedartown employees to fear that a vote for the Union
is a vote for a strike, violence, damaged cars, beaten em-
ployees, "contracts" on cleanup employees, harassing
telephone calls, and bomb threats. Respondent, on brief,
argues that the letter simply and truthfully advised the
employees about the kind of union that might be repre-
senting them if Charging Party-Petitioner won the elec-
tion; that Section 8(c) of the Act protects the kind of
free speech exercised by the Respondent in its October
20 letter; and that it did everything it could to prove the
truth of the statements. To the extent it could, Respond-
ent demonstrated that it had a reasonable basis for the al-
legations made in the third paragraph of the letter. Re-
garding the reference to cleanup employees, Mauer
qualified it with "We've also heard." In my opinion' the
letter does not constitute a threat to Cedartown employ-
ees.
Paragraph 9 of the complaint alleges that on October
21 Williams threatened employees that it would be futile
for them to select the Union by telling them that Re-
spondent would not bargain with the Union and the em-
ployees "would be required to go out on strike." Of the
two witnesses called by the General Counsel, Lee testi-
fied that Williams told the first shift that they "could be
asked to go out on a sympathy strike." Obviously this is
not the same as "would be required." On brief, Respond-
ent argues that while Lee's recollection coincided very
closely with the "gist" of a portion of Williams' speech,
Welchel's recollection was less accurate in that it is not
in agreement with the actual text of the speech and all of
the corroborating testimony which establishes the accu-
racy of the text in evidence. As noted above, all of the
corroborating testimony speaks to the first-shift meeting
and not Welchel's second-shift meeting. Although appar-
ently there were about 25 second-shift employees
present, Welchel was the only one called to testify. As
noted above, Welchel was fired by Williams. Any state-
ment Williams made regarding a sympathy strike could
be no more than speculation and it is highly unlikely that
it could be treated objectively or subjectively as any-
thing but conjecture. That is the way it is presented in
the prepared text. That Williams would have strayed
from the prepared text to the degree alleged by Welchel,
stating extemporaneously that if the Union won, (a)
Zartic would not agree to a checkoff, (b) the plant
would probably close, and (c) sympathy strikers would
be "voluntary quits" after 3 days, is difficult to believe.
Welchel conceded on cross-examination that Williams
read: "this will be read to you so the Union can' t accuse
us of trying the threaten you." Yet at the same time Wel-
chel alleges that Williams then went on and did just the
opposite. In these circumstances I hesitate to credit Wel-
chel's testimony without corroboration. Williams' testi-
mony that he did not deviate from the prepared text (R.
Exh. 184) is therefore, credited. Nothing in the text con-
stitutes a violation of the Act.
As noted above, William 's, in his October 21 speech,
stated:
We've added new equipment and cleaned up the
plant . . . we've added holidays and added new va-
cation . . . we've done . . . [these things] without a
union and we've continued to improve the Compa-
ny without a Union. If you vote the union out on
Friday-and we sincerely hope you do just that-
and if you think during the next year we haven't
done a good job of running the Company, then you
can vote the Union in. You only have to wait one
year to get another election.
Paragraph 14 of the complaint alleges that on October
21 Mauer promised improved working conditions. The
General Counsel called Lee and Welchel. Regarding the
former, she did not testify that Mauer promised anything
specific. Rather, Lee testified that Mauer asked for an-
other year "to show that he could make improvements
and that things would be better he promised." As testi-
fied to by Lee, Mauer's statement followed Williams'
speech. Two other witnesses, who as first-shift employ
ees attended this same meeting, testified that` Mauer said
he could not make any promises. In my opinion, Mauer
was reiterating that portion of Williams' speech set forth
in the preceding paragraph. In other words, Mauer was
asking for 1 year with the understanding that improve-
ZARTIC, INC. 1497
ments had been made in the past and they would contin-
ue and, if employees were not satisfied after 1 year, they
could bring the Union in. Welchel was the only witness
to testify about what Mauer allegedly said to second-shift
employees on October 21. On both direct and cross-ex-
amination Welchel testified that Mauer stated that he
could not make any definite promises. Welchel testified
that Mauer did state that if he was given a year, there
would be changes in working conditions and Mauer did
indicate that there was the possibility of a raise in the
next year. In my opinion Mauer handled second-shift em-
ployees' questions the same way he handled those of the
first shift, he was doing, nothing more than reiterating the
above-described portion of Williams' speech and fielding
questions with the indication that he could not make any
definite promises
Regarding Mauer 's alleged response to an employee
during the second-shift meeting on October 21, which is
the subject of paragraph 10 of the complaint, that "this is
my [Mauer's] goddamn plant; no one tells me how to run
it," in my opinion Respondent, on brief, correctly char-
acterizes the alleged response as one directed personally
at the employee. The outburst, if it occurred, as alleged,
had nothing whatsoever to do with whether Zartic
would bargain with the Union.
Two managers, Leder and Asche, who allegedly made
two unlawful statements during the critical period did
not testify herein. In both instances, Lee was the only
witness to testify about the statements. Paragraph 8 of
the complaint alleges that Leder, on October 19, threat-
ened employees with discharge if they joined or engaged
in activities on behalf of the Union. Lee testified that
Leder "told me that if the Union didn't come in, then I
would be out hunting a job." On brief, Respondent con-
tends that Leder was not available because he left Zartic
and was employed outside Georgia; that Lee's testimony
is incredible; that even if her testimony is credited, Leder
would have been encouraging Lee to vote for the Union;
and that Galloway allegedly was there and while she tes-
tified about other matters, Galloway was not asked by
the General Counsel to corroborate Lee and, therefore,
under Teamsters Local 959 (Northland Maintenance), 248
NLRB 693 (1980), an inference' is warranted that she
would not have corroborated Lee in this point. Lee is
credited. Contrary to the contentions of Respondent,
Leder's statement was an unlawful threat in violation of
the Act. While Galloway was present during this meet-
ing, it is not clear on the record that she overheard what
Leder said to Lee. As noted, Lee testified that Leder
"told me." She did not testify that Leder told "us." Con-
sequently Galloway may not have been in a position to
corroborate Lee. Lee's testimony is not contradicted.
Similarly her testimony that on the day before the elec-
tion Asche told her that Mauer would never agree to a
dues checkoff is uncontradicted (par. 11 of the com-
plaint). It is credited. Respondent violated the Act in
making this threat of futility.
Amended paragraph 8(b) of the complaint alleges that
on July 21, Respondent, through an unnamed agent, in-
terrogated employees. Carnes was the only employee to
testify in support of this allegation. His direct testimony,
which is set forth above, demonstrates, in my opinion,
that Carnes was not a reliable witness even taking into
consideration, his limited education and inability to read.
Williams, who was present, testified that the typed
"rights" portion of what is now General Counsel's Ex-
hibit 42 was read to Carnes. Consequently, Williams'
summary thereof is not determinative . On cross-examina-
tion of Williams, the General Counsel elicited testimony
that another named employee refused to answer any of
Towers' questions after he read the employee her
"rights." This was not rebutted. Consequently, it would
appear that the "rights" statement was understood by
that employee. The General Counsel argues , on brief,
however, that the language of the "rights" statement
should be "designed for that employee [Carnes] to under-
stand." One would then have to pose the obvious ques-
tion, viz, if the employee did not understand the lan-
guage could he not ask what it means? But here Carnes
is not testifying that he did not understand the language.
Apparently this is the General Counsel' s assertion. 17
Carnes claims that Towers did not read the employees'
"rights." In my opinion, Carnes is, at best, mistaken.
Paragraph 8(c) of the amended complaint alleges that
about July 21, 1982, Raybun unlawfully interrogated em-
ployees concerning their testimony to the Board and
their union activities. The General Counsel contends that
Raybun's questioning of Witt as to his union sentiments
constitutes unlawful interrogation. Respondent argues, on
brief, that Witt's testimony on this point is so ridiculous
that it simply cannot be believed in that it would have
made no sense at all for Witt to record for Raybun's ben-
efit a question which Raybun himself allegedly asked.
Witt was not a credible witness. As pointed out by Re-
spondent , Witt's testimony about Raybun 's alleged ques-
tion regarding Witt's union sentiments is ridiculous. Witt
was either mistaken, as he might have been initially re-
garding the above-described alleged raise, and refused to
admit his mistake , or his testimony is a fabrication. It
would be a fabrication if Witt 's union sentiments "was
something they [the person or persons who came to
Witt's house-one of whom was the union adviser]
brung [sic] up, and . . . [he] thought . . . [Raybun]
might want to know about it," but 'Witt testified, as he
did, that Raybun and not "they" asked this question. Ini-
tially Witt testified in terms of he and Raybun "talking
about" the question of Witt's union sentiments. Eventual-
ly, Witt testified that Raybun asked the question. Witt
did not initially make this unequivocal assertion. When
he finally made the allegation it did not square with
common sense and at one point Witt unwittingly conced-
ed that the above-described "they"' and not Raybun,
asked the question. In my opinion, that is just the way it
occurred. Witt volunteered this information to Raybun.
Witt was the only one testifying in support of this allega-
tion. Since his testimony cannot be credited this portion
of the complaint will be dismissed.
17 In reference to the General Counsel 's assertion regarding Respond-
ent's question why Carnes did not cross the picket line, it is noted that
whether employees were afraid to cross the Klan picket line was deter-
mined to be a relevant subject of inquiry Consequently such a question
would not be unlawful
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Citing Krispy Kreme Doughnut Corp., 245 NLRB 1053
(1979), enf. denied 635 F.2d. 304 (4th Cir. 1980), the
General Counsel contends, on brief, that Zartic's policy
of terminating employees who receive workmen's com-
pensation settlements is coercive and restrains its em-
ployees, from exercising their Section 7 rights in violation
of Section 8(a)(1) of the Act. The Union makes a similar
argument citing the additional case of Ohio Brass Co.,
261 NLRB 137 (1982). Respondent, on the other hand,
argues that it has a legitimate interest in insuring the
safety of its workplace by requiring the termination of
employees who formally claim to be suffering a perma-
nent disability. According to Respondent, employees are
not terminated for filing a claim. Rather, they "are termi-
nated because by their own admission, they are unable to
work because of their permanent disability." (R. Br. X-3.)
The facts in this case differ from those in Krispy Kreme,
supra, in that in the latter, an individual employee was
involved. Here, since this is a company policy, all of
Zartics' employees have been placed on notice, not by
the example of what happens to an individual employee,
but rather they are aware, before the fact, that if they
successfully file a workmen's compensation claim they
will be terminated. Consequently, Respondent itself has
distinguished this case from the Fourth Circuit decision
in Krispy Kreme supra, wherein that court refused to en-
force the Board's Order finding that the Board complete-
ly failed to establish "concerted activity." Here, the Gen-
eral Counsel has made a prima facie showing that a
number of employees have been terminated by Zartic be-
cause of the above-described company policy. Respond-
ent did not come forward with evidence that there are
any exceptions or that it ever attempts to review the in-
dividual cases to determine the extent of the disability,
i.e., the partial permanent disability, and whether the in-
dividual could work. Zartic does hire handicapped indi-
viduals and it gave no reason for the disparate treatment
of its employees who may suffer partial permanent dis-
abilities. Respondent's argument that employees are not
terminated for filing a claim begs the question. If the em-
ployee successfully prosecutes the claim he or she is ter-
minated. Moreover, it appears that when the employee
files the claim he or she is placed on leave of absence
which becomes a termination if the claimant receives a
settlement.
Thus, Zartic, a self-insurer, has placed all of its em-
ployees on notice, it has threatened its employees, that if
they file a claim and then settle, no matter what the cir-
cumstance, they will be terminated. In my opinion, Re-
spondent is attempting to deny employees access to
workmen's compensation benefits. That a number of em-
ployees have filed claims notwithstanding Zartic's policy
does not mean that others have not waived this right in
order to keep their jobs Moreover, the issue is not
whether employees have or have not filed claims, the
issue is whether Zartic has unlawfully threatened em-
ployees. In my opinion, it has. The filing of a workmen's
compensation claim is done on an individual basis.
Groups of employees do not file' a group claim. A repre-
sentative of a group does not file a claim on its behalf.
Would it be necessary for (1) a group to protest this
company policy, and (2) the company to reiterate the
policy, before a finding pan be made that there was a
concerted activity? Has not Zartic itself by establishing
such a policy for all employees obviated the need for
such a useless gesture? In my opinion, it has. Would it be
necessary that the policy speak to a group vis-a-vis indi-
viduals? As noted above, the filings occur on an individ-
ual basis. The policy does, however, speak to a group,
viz, all employees of Zartic.
IV. OBJECTIONS
Petitioners objections set for hearing (Objections 3-6,
10, and 11, respectively) are as follows:
The Employer threatened and intimidated em-
ployee union supporters by advising them that if the
Union lost the election they would be discharged.
The Employer promised its employees changes in
wages, hours or other terms and conditions of em-
ployment in order to influence the outcome of the
election.
The Employer put into effect changes in wages,
hours or other terms and conditions of employment
in order to influence the election outcome.
The Employer at a time which prevented reply
by the Union made material misrepresentations
wherein it stated that the Union and/or its officers
had engaged in criminal misconduct.
The Employer advised its employees that the or-
dinary processes of collective bargaining and their
being represented by Petitioner could mean nothing
for them as collective bargaining was foredoomed
because the Employer had such a fixed obdurate
and recalcitrant attitude against the Petitioner that
the Petitioner could accomplish nothing at the bar-
gaining table and would be forced to strike in an at-
tempt to get the Employer to agree to anything.
The Employer made material misrepresentations
of the rights of employees, unions, and employers as
to the existing state of the law.
The first objection set forth above is sustained in view
of Leder's statement to Lee that she would be looking
for a job if the Union did not win the election.
The second objection set forth above is overruled inas-
much as it was determined above that Mauer did not
promise employees, either explicitly or implicitly that
there would be changes in wages, hours, or, terms and
conditions of employment. Consequently, it has not been
demonstrated that Mauer attempted to influence the out-
come of the election.
The third above-described objection is overruled since
it was demonstrated that the picnic tables were planned
long before the critical period and the reasons given for
the delay in executing the plans were, in my opinion,
valid and had nothing whatsoever to do with the upcom-
ing election; that the seafood breakroom was air-condi-
tioned for a number of years and even if the unit, which
had not been functioning properly, was repaired or re-
placed this would not be the type of a change in work-
ing conditions which, in my opinion, would be done in
order to influence the outcome of the election; and that
the allegation that approximately 1 month before the
ZARTIC, INC.
election the wages of maintenance employees were in-
creased by $1 per hour was not accurate.
Regarding the next objection, set forth above, which
would be Objection 6 as described in the Regional Di-
rector's supplemental decision and order entered March
30, 1982, it is noted that, relying on Hollywood Ceramics
Co., 140 NLRB 221 (1962), he concluded that the above-
described October 20 letter from Mauer to Zartic em-
ployees constituted conduct which was sufficient to war-
rant setting aside the election. The Board in its tele-
graphic order of June 4, 1982, deferred ruling on the
appeal to the Regional Director 's decision to sustain Pe-
titioner's Objection 6 without hearing. In his order of
June 24, 1982, directing hearing, the Regional Director
neither specifically reverses his prior ruling on Objection
6 nor does he specifically include Objection 6 in those
set for hearing, other than by referring to the "afore-
mentioned objections." Nevertheless, in view of the fact
that this objection is coextensive with one of the allega-
tions in the complaint, it will be treated here . It was not
demonstrated that Zartic made material misrepresenta-
tions in Mauers' above-described October 20 letter to
employees, regarding whether another Local of the
Union and/or its officers had engaged in criminal mis-
conduct. Moreover, the Board in Midland National Life
Insurance, 263 NLRB 127 (1982), ruled that, as here per-
tinent, it would no longer probe into the truth or falsity
of the parties campaign statements , and that it would not
set elections aside on the basis of misleading campaign
statements . In these circumstances this objection is over-
ruled.
The next-to-last objection is sustained only to the
extent that it involve Asche's statement to Lee that if the
Union was voted in "the first thing they would ask for
would be a [dues] checkoff and Jim Mauer would never
agree to it." It appears that the only employee who
heard this statement was Lee. It was made to Lee at her
desk in response to a question she asked. Two other
named employees were in the quality control lab at the
time but neither testified herein that they heard this state-
ment. The record does not support, as indicated above,
the assertion that Zartic told its employees that they
would be forced to strike to get Zartic to agree to any-
thing.
Regarding the last objection, it was determined above
that Mauer's October 13 question and answer memoran-
dum did not constitute a threat to employees. On its face
it is not a material misrepresentation of the law. And
conclusions reached herein regarding the July-August
strike do not convert the statement into a material mis-
representation of the law. Accordingly, this objection is
overruled.
Do the two sustained objections warrant setting the
election aside? Lee was actively involved with the Union
during the election campaign. She worked with the
union attorney trying to convince the employees that the
Union was in their best interest and she was the union
observer at the election. Should an election be set aside
based on two statements made to Lee who works in a
unit of approximately 350 employees? In my opinion, suf-
ficient grounds have not been advanced for setting the
election aside.
V. CHALLENGES
1499
The Regional Director 's June 24, 1982 , above-de-
scribed order set six challenged ballots for hearing. Re-
spondent and the Union stipulated that one, Fidel Cis-
neros, was not eligible and his vote should not be count-
ed. This individual was challanged by the Board and, as
indicated in the Regional Director's supplemental deci-
sion of March 30, 1982, could not be located for ques-
tioning.
The Regional Director's decision also points out that
two other individuals challanged by the Board could not
be located for questioning , namely, Gillermo Arrendond
Peinado and Rosendo Segura Belasquez . The decision in-
dicates that the employment application of the former
reads Peinado , Guillermo A ; the employee identification
reads Gillermo Arrendond and the voter eligibility list
reads Gillermo Peinado ; and that the employment appli-
cation of the latter reads Rosendo S. Elelasquez , the em-
ployee identification card reads Rosendo Segura, and the
voter eligibility list reads Rosendo Belasques . The latter
did not testify herein. An individual claiming to be Gil-
lermo Penado Arrendondo did testify in this proceeding.
While the individual testified that he was 25 years old,
according to the employment application Peinado filed
on April 14, with Zartic (C.P. Exh. 22), Peinado would
have been 27. While the individual testified that he did
not know his birthday , the employment application Pein-
ado filed with Zartic gives a date of birth of "3/20/55."
While the individual testified that he has one child, who
would have been 4 years old when Peinado 's application
was filed, Peinado 's employment application indicates
that he has five children. The individual testifying
changed his testimony regarding where he lived at the
time of his testimony , finally settling on an apartment
vis-a-vis a trailer. At the same time, however , he testified
that rent for the trailer was deducted from the August
27, 1982 paycheck he had on his person when he testi-
fied. He did not have the stub which shows the deduc-
tions. The paycheck the individual had on his person was
made out to Penado, Gillermo, Knights Trailer Park, Ce-
dartown, Georgia . The individual also had ' a Zartic iden-
tification card on his person but no other identification.
Respondent pointed out that Peinado was asked during
the investigation if he would agree to speak to the Board
and he refused. The General Counsel indicated during
the trial herein that on June 21, 1982, she forwarded two
subpoenas to Knights Trailer Park, one to Gillermo Ar-
rendond and one to Gillermo Peinado, and both were re-
turned marked, "Moved, no forwarding address." While
the individual testified that he voted in the involved elec-
tion, he also testified that he did not remember what the
question was that he voted on and that he never knew
what the question was. It was stipulated that the ballots
were in Spanish, English, and Vietnamese.
Even taking into consideration the fact that the wit-
ness could not speak , read , or write English, and could
not read or write Spanish, the testimony of this individ-
ual cannot be credited. There are many unexplained dis-
crepancies, i.e., his age, the number of children he has,
and the fact that while Peinado knew his birth date in
April 1981, the witness did not know it in August 1982.
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These are rather basic facts. The witness's demeanor also
concerned me in that he did not hesitate to change his
testimony and apparently concluded that it was unneces-
sary to explain the changes. He testified that he is not a
citizen of the United States; that he has no immigration
papers; and that he never had any immigration papers.
This raises a question in that if the individual was telling
the truth, he would have been at Zartic in February 1982
when I.N.S. conducted one of its investigations at the
plant and a number of illegal aliens were required to
return to Mexico. The witness was very nonchalant and
as I watched him testify I questioned in my own mind
whether he fully appreciated the significance of the oath
he took. In my opinion he did not.
Only Raybun was asked to corroborate the testimony
of the individual who claimed he was Gillermo Peinado
Arrendondo. Raybun, however, was not a credible wit-
ness. Witt's testimony regarding whether Raybun inter-
rogated him in July 1982 was not credited not because it
was contradicted by Raybun. Rather, Witt did not im-
press me as being a credible witness. Raybun's testimony
was not factual in a number of instances, i.e., regarding
what occurred and what was said on July 22, and the
number of people he spoke to at the Georgia Employ-
ment Agency. As noted above, testimony he gave herein
contradicted testimony he gave in the above-described
Federal court case. Raybun, like Lewis, chose Zartic
over giving candid, reliable, truthful testimony herein. In
the circumstances, I cannot rely on his, testimony. And as
noted above, I do not credit the testimony of the individ-
ual who testified he is Peinado. Only he and Raybun tes-
tified about Belasques . Consequently, the votes of Pein-
ado and Belasques should not be counted.
Dennis Roberts' ballot was challanged by the Union,
which alleged that he was a supervisor. While Roberts
was a supervisor when he first worked with Zartic, he
returned to the Respondent in January 1981 as a rank-
and-file employee who "punched" a timeclock, no longer
attended supervisors meetings , and in no way met the
definition of a supervisor under the Act. At the time of
the election Roberts was on extended sick leave as a
result of an automobile accident. In view of the fact that
Zartic accepted his health insurance premiums and car-
ried his name on its formal employee list, Respondent
viewed Roberts as an employee who would return to
work in a matter of time. Roberts retained his employee
status and was eligible to vote in the election. Accord-
ingly, the Union's challange is overruled and Roberts'
vote should be counted.
David McFarland, according to Zartic, is ineligible to
vote because allegedly he was hired as a welder on a
temporary basis on May 4, and was advised that his job
was to last approximately 30 to 60 days. McFarland's
status turns on credibility. He testified that DiGerlando
hired him and said nothing about-the position being tem-
porary. DiGerlando did not testify to deny this. MacFar-
land testified that on either July 17 or 18, after two
Zartic employees were badly burned changing a fuse, he
was asked to work on the second shift and DiGerlando
gave him forms to fill out for insurance. DiGerlando did
not testify to deny this. Toward the end of their proba-
tionary period Zartic's permanent employees receive in-
surance through the Respondent. MacFarland testified
that while initially he welded freezers, after approximate-
ly 3 to 5 weeks he did general maintenance work such as
maintaining and repairing machinery and running wire.
Neither DiGerlando nor the maintenance supervisor,
William Grimes, testified to contradict this. MacFar-
land's name appears on Respondent's preferential recall
list. (G.C. Exh. 10.) When MacFarland attempted to
return to work on July 22, DiGerlando told him that he
had been placed on a preferential recall list. DiGerlando
did not testify to contradict this. On October 1, MacFar-
land spoke to Raybun and was told that he was on a
preferential recall list and Zartic did not require his serv-
ices at that time. Raybun did testify. He, along with
Lewis, works in the personnel department . It does not
appear that either of them knew what kind of work Mac-
Farland was actually doing just before the July 20 strike.
Raybun was not a credible witness and his testimony re-
garding the role he played in hiring MacFarland cannot
be credited, especially in view of the fact that MacFar-
land contradicted it and DiGerlando was not called to
corroborate Raybun.
Witt testified about a conversation he allegedly had
with MacFarland, who could not recall such a conversa-
tion, but as noted above, in my opinion, Witt was not a
credible witness. One of the grounds on which Respond-
ent based its assertion that MacFarland was not a credi-
ble witness is that he denied that the signature on the ap-
plication of employment of another company was his.
(R. Exh. 15.) In my opinion, MacFarland was not dis-
credited on the basis of this document since (1) there was
no apparent reason for MacFarland to lie about this, (2)
while MacFarland weighed 200 pounds at the time, the
application lists his weight at 125 pounds, and (3) twice
Respondent was, in effect, advised by me that in these,
circumstances this is a matter which, in my opinion, is
best left to an expert in that field, and notwithstanding
the fact that the exhibit was initially rejected, Respond-
ent did not call such an expert. In my opinion, there is a
sufficient basis on this record for concluding that the dis-
puted signature was not made by MacFarland and I so
conclude. Respondent asserts that MacFarland was a
temporary welder yet, although it has the means of es-
tablishing whether this is true, it chooses not to call Di-
Gerlando or Grimes. On the other hand, it calls a super-
visor from a former employee, to testify about a signa-
ture on an application he did not look at closely. And it
relies on the testimony of a witness, Witt, which else-
where it contends, on brief, gave incredible testimony re-
garding his alleged unlawful interrogation-by Raybun. In
the circumstance MacFarland's assertion that he was a
permanent employee is credited. He is eligible and his
vote should be counted.
The Union challenged the' eligibility of Danny Wig-
gins asserting that he was a supervisor at the time of the
election. While Wiggins status at the time of the' election
is determinative, some background is necessary to fully
appreciate the situation. Wiggins was a supervisor or
more specifically the freezer foreman until January 1981.
Regarding the circumstances of the termination of this
position, Wiggins testified as follows:
ZARTIC, INC.
Q. Well, isn't it a fact, Mr. Wiggins, that nobody
in Management at Zartic had ever told you, at the
time you left the freezer locker, that the Company
no longer needed a Foreman in the freezer locker?
A. She said that. Pat Burton [Wiggins' supervi-
sor].
Q. Pat Burton said that?
A. Said they did not need a Freezer Foreman
and they were going to let me go.
Q. I thought you said a moment ago that Pat
Burton told you you were being let go because you
were not doing your job.
A. Well, yes, sir, she said that.
Q. Is that the reason that Pat Burton gave you
for taking you out of the freezer locker as Fore-
man?
A. Yes, sir.
Q. And that's the only reason she gave you,
wasn't it?
A. That's the only one; yes, sir.
Q. Well now, who is it that took your place as
Foreman of the freezer locker?
A. No, sir, nobody.
Q. Nobody.
A. When I left the Freezer Foreman, no one took
the job.
Q. But you were never told that you were being
taken out of the freezer locker because the Compa-
ny no longer needed a Foreman in the freezer
locker. You were never told that, were you?
A. I was told that the day she told me that they
was going to let me go.
Q. Now, who is this that told you that?
A. Pat Burton.
Q. I thought you said a moment ago she told you
that you were going to be let go because you
weren't doing your job?
A. She did, and she also said that they was going
to have to let me go. She said fist, Danny, we're
going to have to let you go. And then I asked why.
And she said, you're not doing your job.
Q. And that's the only reason she gave you,
you're not doing your job?
A. Yes, sir.
Q. Right. Well, where did the stuff about they
didn't need a Freezer Locker Foreman come in?
A. That's what she said too. Maybe that was two
reasons; one was I wasn 't doing my job, and the
second reason was they didn't need a Freezer Fore-
man.
Wiggins' uncorroborated testimony about Burton saying
that he was going to be let go because he was not doing
his job is not credited . In my opinion, it was given to
imply that not only had Wiggins' supervisory position
been abolished but Wiggins ' supervisory authority was
also terminated.
Wiggins was transferred to bulk ground beef. Howard,
who is in charge of that department , testified that Wig-
gins was not a supervisor in her department but rather
just an employee . Regarding the transfer , Wiggins testi-
fied as follows:
1501
Q. What shift did you work on after you were
sent over to bulk ground beef?
A. First shift.
Q. First shift. And Janice Howard came back and
introduced you to the employees in bulk ground
beef, did she not? She took you around?
A. Yes, sir.
Q. And she told the employees that you were
going to be working there and that you would tell
them what to do?
A. I would tell them what had Io be done.
Q. Right.
A. Yes, sir.
Q. And that you would tell them when to go on
their breaks?
A. No, sir.
Q. And tell them when they could take their
lunch breaks?
A. No, sir.
Q. And she also told them that you had the right
to discipline them, that they had to follow out what
you did, because you were the Foreman in there,
and if they did not, that you had the power to disci-
pline them and give them reprimands?
A. No, sir; she did not say that.
Q. Well, what did she say along those lines?
A. All she done was walk back there, which I
knowed all the girls but one; she introduced me to
her and said that I would be running the machinery.
Neither Howard nor Wiggins specifically denies that the
latter, while he was in bulk ground beef, in May 1981,
wrote up employee Chris Coats and suspended him for 3
days. Undoubtedly there would have been documentary
support of this personnel action . Zartic did not come for-
ward with it, however. This gives rise to an adverse in-
ference. Accordingly it is concluded that Wiggins exer-
cised supervisory authority on at least one occasion
while he was in bulk ground beef.
According to Wiggins ' testimony , in July 1981 he noti-
fied Zartic that he was leaving to take a higher paying
job. Zartic asked him to stay and it matched the pay of-
fered by ' the other company. At about the same time,
Wiggins was asked by striking Zartic employees what
Mauer paid him to cross the picket line. Wiggins testified
that he "could have" told the striking employees that he
was given a raise and a supervisor 's job . The reason he
"could have" said this was because at the time he was
angry and he "thought it would just tick them off." He
went on to testify:
I was saying anything that would make them mad, I
guess, because everybody out there seemed like
they was having fun doing what they were doing,
and I was the one suffering. I'd tell them anything, I
guess. [Emphasis added.] i a
18 Wiggins testified that "my house had got egged , my car, my neigh-
bors car was painted and egged , his house My dogs was [sic] turned
loose off their chains, people riding by cussing my kids, shooting birds at
them, and just all kinds of things "
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regarding his change in position in July 1981, Wiggins
testified as follows:
Harlan Asche give me the raise , and then Earl
Madsen asked me the same day in the office would
I take the second shift for a couple of days-well,
for awhile 'til we got caught up.
Q. You said two days?
A. I said a couple of days, but I mean for awhile,
until we get caught up.
Q. They told you they wanted you to go on the
second shift?
A. They asked me would I take it for awhile to
get caught up.
Q. Take the second shift for awhile to get caught
up?
A. Yes, sir.
Q. I see. And Jerry Shaw stayed on the first
shift?
A. Yes, sir.
Q. So, as a matter of fact, business was so good
that 's the reason they had started the second shift;
they had more roast beef business than they could
handle on the first shift, didn't they?
A. It's not they were so busy; it's we didn't have
the employees there to produce as much as we had.
Like we went from four trimmers to one trimmer
on the strike , and we got behind.
Q. Is this what you're saying; you couldn't get
enough employees to agree to work the first shift so
you could get all this roast beef out, so then you
had to start a second shift so you could get more
employees?
A. No, sir; what I 'm saying is that our produc-
tion got behind on roast beef, so they had hired
some in to get our Roast Beef line going . All_ right?
And then they were all new help . New help, you
can't doing anything, I mean that fast. And we had
orders coming every day. So, Earl Madsen asked
me at the same time that I was on my two weeks
leave-or notice to quit would I take the second.
Like I said , again , they probably didn ' t believe that
I was leaving, but I had already told them.
Q. I see . But now-Well then , what I think
you're saying is, the Company couldn 't get enought
employees for the first shift , so they wanted to start
a second shift?
A. No, sir; they had enough for the first shift, but
they couldn 't produce the orders because we were
so far behind.
Q. So they needed more direction ; they needed a
second shift and somebody to direct them and make
sure these orders got out . Is that correct?
A. Well, I don't know what you mean by "direc-
tion." What I would do was get a list from Earl
Madsen, showing what had to be done , and then
that's what we would do.
Q. Well, didn't you all discuss that you were an
experienced fellow and you are a pusher and you
could get this production out?
A. I was experienced at it. I was a trimmer. And
I could do what had to be done and show anybody.
Q. Sure. And you told the Company you could
push; you could get this production out?
A. No; I didn't tell them I could push. I just told
them I would work the second shift until it got
caught up.
Q. Well, in discussing giving you this additional
money if you would go to the second shift, wasn't it
mentioned by Mr. Asche and Madsen and possibly
Patricia Lewis that you were a good man, you
could get the production out that they needed?
A. No, sir; that never was brought up.
Q. Well do you know why they selected you to
take the second shift, as you put it?
A. They needed someone that knowed [sic] the
Roast Beef, and that was either myself or Jerry
Shaw, and they asked him first and he refused the
second.
At one point while testifying about Shaw, a stipulated
supervisor on the first-shift roast beef, Wiggins stated:
"Well, his job as an Assistant Supervisor was the same as
mine, to help me keep things brought out." Shaw testi-
fied that Wiggins was a supervisor on the second shift at
the time of the election, and that Wiggins had the same
responsibilities on the second shift as Shaw had on the
first.
Regarding certain of his responsibilities on second
shift, Wiggins testified that if someone requested to go
home because they were sick, he would authorize it
without getting prior approval from someone else. As
Wiggins testified , there was no one else there . Then Wig-
gins would call, Blair Warner, Zartic's second-shift plant
superintendent, for a replacement. According to Wig-
gins, Madsen, who was in charge of roast beef, would be
consulted by Wiggins over the telephone regarding items
which were needed. Wiggins testified that Warner "was
new and really didn't know Roast Beef at that time."
Wiggins also testified that he expected employees on the
second-shift roast beef to do what he told them to do.
A luncheon recess was taken before redirect. The fol-
lowing testimony was then elicited on redirect examina-
tion-
By Mr. Quillen:
Q. Mr. Wiggins, I believe you testified earlier
today on cross-examination that your job is the
same as Jerry Shaw's job. Do you recall testifying
to that effect?
A. Yes, sir.
Q. In what respects is your job the same as Jerry
Shaw's job?
A. Okay. Jerry Shaw and myself-manual labor.
We do the same , such as bringing meat out, putting
meat up, spice, anything that has to be done. That's
what we do together. If he's not doing this, then I
do it if I'm not busy.
Q. Is your job in Roast Beef different in any re-
spect from Jerry Shaw's job in Roast Beef?
ZARTIC, INC.
A. Jerry Shaw can write people up for doing
something wrong, let people off. He can change
people from job to job in the Roast Beef area. He
can replace me in the Roast Beef area. And I can't
do any of that.
Q. Does Jerry Shaw do any of those things?
A. Yes, he does.
Q. What specifically have you seen Jerry Shaw
do in that respect?
A. Well, just yesterday Jerry Shaw had someone,
one of the girls, to pump the spice into the meat
and had me take all of the meat out of the tanks for
the trimmers.
Q. Have you ever seen Jerry Shaw let anyone off
to go home early?
A. Yes, sir.
Q. Can you remember who that was?
A. Just-He's probably let everybody go home at
one time or another since he's been in Roast Beef.
Q. Do you ever do that?
A. No, sir.
When Wiggins gave this testimony he was working on
the first shift under Shaw. As is evident, the comparison
Wiggins was drawing was not a comparison of Wiggins'
functions on the second-shift roast beef and Shaw's func-
tions on the first-shift roast beef but rather a comparison
of their functions on the first shift. t s Wiggins did the
same thing on direct with the following testimony:
Q. How do your duties compare with Jerry
Shaw's duties right now?
A. Well, Jerry Shaw can write people up, let
people go home early, let them go home sick. He
can move them from job to job. He can tell them
what to do with the meat and what meat we will
use. I can't do either of those.
Q. How did your duties compare with Jerry
Shaw's duties when you were a Line Leader on the
second shift?
A. Still Jerry, he could come in and tell-you
know, when the people come in and I put them to
work and I start doing what I've got to do, if he
don't like it, he can come in and change it, and, you
know, I can't change it back. And I still can't let
anybody go home sick. I can't authorize it, which
he can.
Section 2(11) of the Act defines the term "supervisor"
as:
any individual having authority in the interest of the
employer, to hire, transfer, suspend, lay off, recall,
promote, discharge , assign, reward or discipline
other employees, or responsibly to direct them, or
to adjust their grievances, or effectively to recom-
mend such action, if in connection with the forego-
ing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of in-
dependent judgment.
19 Wiggins testified that during the luncheon recess Quillen "showed
me where I got excited, I guess, and said something that's not true "
1503
At the time of the election Wiggins was a supervisor.
The second-shift roast beef position was not the first time
Wiggins exercised supervising authority even though he
may not have had a specific supervisor's title. Prior to
working second-shift roast beef Wiggins had exercised
supervisory authority for some time. Until January 1981
he was freezer foreman. When the job was abolished he
lost his title and was transferred. Nevertheless, in May
1981, he exercised supervisory authority regarding the
Coat's suspension . Approximately 2 weeks later, when
Zartic had to start a second-shift roast beef, it was look-
ing for someone to be placed in charge of the shift. It
first asked supervisor Shaw. When he turned the position
down, Zartic asked Wiggins to take the job which super-
visor Shaw testified was a supervisory position.20 Wig-
gins' comparisons are not credited in view of the fact
that he was not truly comparing the second-shift position
with Shaw's position . According to Wiggins' testimony,
Madsen gave Wiggins a list of what had to be done. If
he had problems, Wiggins could then reach Madsen at
home. In my opinion, Wiggins, however, was not merely
a conduit between Madsen and the employees. Wiggins
told striking employees that he was a supervisor. While
in charge of the second shift Wiggins allowed sick em-
ployees to leave work without obtaining anyone else's
approval. He advised new employees which meat items
to spice. Of those working on second-shift roast beef,
only Wiggins dealt with the second-shift plant superin-
tendent, who, as Wiggins testified knew nothing about
roast beef. No other supervisor was present in roast beef
during the second shift . Wiggins told the second-shift
employees what to do and he expected them to do as
told. At one point he testified that none of them refused
to follow his instructions. With respect to attending su-
pervisors' meetings, it is noted that Wiggins testified that
he did not attend such meetings even when he had the
title of freezer foreman . Whether art individual is a super-
visor is not determined strictly on the basis of what title
the person holds and it is not required that the individual
hold authority to do all the things described in Section
2(11) of the Act, as set forth above. Stipulated Supervi-
sor Shaw does not. It is a question of what authority the
person has. Here, in my opinion, Wiggins was expected
to use independent judgment and he did. Practically
speaking, one would not expect Madsen to sit next to his
home telephone every night Wiggins worked so that he
would be available to give advice. Madsen did not testi-
fy. Wiggins testified, "I would report to Earl Madsen by
phone, if I could locate him. And then if I could not, I
would get with Blair Warner." (Emphasis added.) As
noted above, Wiggins testified that "Warner was new
and really didn't know Roast Beef' at that time." It fol-
20 Williams' testimony regarding whether Wiggins' second-shift roast
beef position was supervisory is not credited Carnes' allegation that
Towers did not read the employees "rights" was not discounted on the
basis of Williams' testimony Carnes was not a reliable witness And the
General Counsel elicited unrebutted testimony that Towers, at'least one
other time, read an employee her rights Welchel's above-described testi-
mony, which conflicted with Williams, also was not credible Conse-
quently, in those circumstances Williams' testimony could be credited
Here it is contradicted by a reliable witness and,, therefore, it is not cred-
ited
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lows that there could have been times Madsen would not
be available to Wiggins by phone and Warner would not
be able to assist regarding roast beef matters. Therefore,
if Wiggins could not exercise independent judgment, un-
doubtedly certain decisions could not be made when
Madsen was unavailable . Production could suffer. In-
creased production was the purpose of the second shift.
That is the reason Zartic wanted Shaw or Wiggins to
take the shift . Zartic would not at the same time have
hamstrung Wiggins so that he could not make up for lost
production . Zartic placed Wiggins in a position to make
independent judgments notwithstanding his protestations
to the contrary . In my opinion , Wiggins was a supervisor
at the time of the election . Accordingly, the Union's
challange is sustained . Wiggins' vote should not be
counted.
In summary , it is my opinion that of the six challenged
ballots set for hearing only the ballots of Dennis Roberts
and David MacFarland should be counted.
On the basis of the foregoing findings of fact, and on
the entire record in this proceeding , I make the follow-
ing
CONCLUSIONS OF LAW
1. Respondent 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. Respondent , as found supra, and as alleged in the
above-described complaint , violated Section 8(a)(1) of
the Act by unlawfully threatening its employees in that it
told them that it would never have a union election at its
plant ; by unlawfully threatening Lee in telling her that if
the Union did not come in she would be hunting a job;
by unlawfully threatening Lee that it would be futile for
the employees to select the Union because the Respond-
ent would never agree to a dues checkoff; and by unlaw-
fully maintaining and enforcing a rule requiring the ter-
mination of employees who enter into workers compen-
sation settlements. Respondent violated Section 8(a)(1)
and (3) of the Act by discharging and thereafter failing
and refusing to reinstate Lucy A. Maestas.
4. In view of the employees' unconditional offer to
return to work and the establishment of a preferential
recall list on July 22, 1981, the strike became an unfair
labor practice strike when Respondent , thereafter, per-
manently replaced strikers. Thereby discharging them,
and discriminated in regard to hire or tenure or terms
and conditions of employment of its employees, thereby
discouraging membership in a labor organization in vio-
lation of Section 8(a)(1) and (3) of the Act.
5. The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that Respondent be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the purposes of
the Act.
Having found that Respondent discharged Lucy A.
Maestas in violation of Section 8(a)(1) and (3) of the Act,
it is recommended that Respondent offer Maestas imme-
diate 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 other rights and
privileges , and make her whole for any loss of pay she
may have suffered as a result of the discrimination
against her by payment to her of a sum of money equal
to that which she would have earned as wages during
the period from the date of her discharge to the date on
which Respondent offers reinstatement less her net earn-
ings, if any, during said period, with interest thereon to
be computed in the manner set forth in Florida Steel
Corp., 231 NLRB 651 (1977), and Isis Plumbing & Co.,
139 NLRB 176 (1962).
Having found that the strikers made an unconditional
offer to return to work on July 22, 1981, and that Re-
spondent placed them on a preferential recall list, Re-
spondent then converted the strike to an unfair labor
practice strike , and unlawfully discharged its striking em-
ployees when it subsequently hired permanent replace-
ments, it is ordered that Respondent shall reinstate all of
those employees listed in Appendix A not already rein-
stated who participated in the unfair labor practice strike
to their former positions or, if such positions no longer
exist, to substantially equivalent positions , without im-
pairment to their seniority and other rights and privi-
leges, dismissing , if necessary, any persons hired as re-
placements on or after July 22, 1981. If after such dismis-
sals, there are insufficient positions remaining for all the
striking employees who are to be reinstated, the available
positions shall be distributed among them, without dis-
crimination because of their union membership , activities,
or participation in the strike , in accordance with seniori-
ty or with some other nondiscriminatory practice. Those
strikers for whom no employment is immediately avail-
able after such distribution shall be chosen from the pref-
erential hiring list with priority determined among them
by seniority or by another nondiscriminatory practice
and, thereafter in accordance with such systems, they
shall be offered reinstatement as positions become avail-
able and before other persons are hired for such work. It
is also recommended that Respondent make the striking
employees whole for any loss of earnings they may have
suffered or may suffer by reason of Respondent's refusal
to reinstate them, by payment to each of a sum of money
equal to that he or she normally would have earned
during the period July 22, 1981, to the date they are re-
instated, absent a lawful justification for Respondent's
failure to make an offer of reinstatement . Interest shall be
computed in the manner set forth in Florida Steel Corp.,
supra and Isis Plumbing & Co., supra.
It will further be recommended that Respondent pre-
serve and make available to the Board or its agents, on
request, all payroll records and reports, and all other
records necessary and useful to determine the amount of
backpay due and rights of reinstatement under the terms
of this decision. In addition, Respondent will be directed
to post the attached notice.
ZARTIC, INC.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed21
ORDER
The Respondent, Zartic Inc., Cedartown, Georgia, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees that it would be futile for
the employees to select the Union, as their collective-bar-
gaining representative by telling its employees that it
would never have a union election at the plant.
(b) Threatening an employee that if the Union does
not come in she would be out hunting a job.
(c) Threatening an employee that it would be futile for
the employees to select a union because the Respondent
would never agree to a dues checkoff.
(d) Discouraging protected concerted activities by dis-
charging any employee.
(e) Maintaining and enforcing a rule requiring the ter-
mination of employees, who enter into workmens' com-
pensation settlements.
(f) In any other manner interfering with, restraining,
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
effectuate the policies of the Act.
(a) Make whole, with interest, as provided above,
Lucy A. Maestas for all losses of pay suffered by her as
a result of discharge
(b) Offer to employees listed in Appendix A, on their
reinstatement, if it has not already occurred, their former
jobs or, if they no longer exist, to substantially equivalent
jobs without prejudice to their seniority and other rights,
dismissing, if necessary, any persons hired as replace-
ments by Respondent on or after July 22, 1981, If, after
such dismissals, sufficient jobs are not available for these
employees, they shall be chosen from the preferential
21 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1505
hiring list in accordance with their seniority or other
nondiscriminatory practice theretofore utilized by Re-
spondent, and they shall be offered employment before
any other persons are hired. Make whole these employ-
ees for any loss of earnings they may have suffered or
may suffer by reason of Respondent's refusal, if any, to
reinstate them in accordance with the terms of this
Order, in the manner set forth in the remedy section of
this decision.
(c) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at Cedartown, Georgia facility copies of the
attached notice marked "Appendix 73."22 Copies of the
notice, on forms provided by the Regional Director for
Region 10, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
IT IS FURTHER ORDERED that Case 10-RC-12485 be
remanded to the Regional Director to count the ballots
of Dennis Roberts and David MacFarland and to issue a
revised tally of ballots and a certification of representa-
tive if United Food & Commercial Workers International
Union AFL-CIO, District 442, has received a majority
of the votes cast.
22 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 "