Han-Dee Pak, Inc.

HAN-DEE PAK, INC. 725 Han-Dee Pak, Inc. and Truckdrivers and Helpers Local Union No. 728, affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 10-CA-13005, 10-CA-13233, 10-CA-13292, 10-CA-13441, 10-CA-13606, 10-CA-13638, 10-CA-13721, and 10-RC-11203 May 22, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On January 23, 1980, Administrative Law Judge Julius Cohn issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, counsel for the Gener- al Counsel filed cross-exceptions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 2 We find merit in the General Counsel's cross-ex- ceptions which claim that the Administrative Law Judge erred in dismissing the allegation that Re- spondent violated Section 8(a)(5) of the Act when, subsequent to the election herein, it unilaterally changed job classifications and rates of pay of bar- gaining unit employees. The record shows that such a reclassification did occur in April 1978 and that, as a result, several employees received raises and one employee, Wyvonia Dennis, received a wage reduction.3 Although Respondent presented I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Respondent has not excepted to the Administrative Law Judge's con- clusion that it has committed various independent Sec. 8(a)(1) violations, and that by such conduct Respondent interfered with the election herein In its exceptions with respect to the Administrative Law Judge's finding that it violated Sec. 8(a)(l) and (3) by suspending and terminating em- ployees Dennis and Stallings, Respondent claims that the Administrative Law Judge erred in stating that there was no explanation for Supervisor White's absence at the hearing. While the record shows that White no longer was employed by Respondent, and that Respondent had subpen- aed him to testify, the preponderance of the evidence. even absent any adverse inference drawn from White's failure to testify, shows that Re- spondent unlawfully suspended and discharged these two employees I Although the General Counsel primarily addressed the unilateral wage reduction for employee Dennis, he did present testimony regarding 249 NLRB No. 107 evidence that such unilateral changes were based on business considerations, the record fails to show that Respondent acted as a result of compelling economic considerations. 4 Consequently, Respond- ent acted at its peril in making such changes after the election herein, but before the outcome of the election had been determined.5 However, final dis- position of this allegation is not yet possible, as de- terminative challenged ballots remain outstanding. Accordingly, we shall order that the complaint in Case 10-CA-13721, alleging that such unilateral changes are unlawful, be severed from the remain- der of this proceeding, and that a final decision thereon be postponed until the outcome of the election is resolved. We find merit to Respondent's exception which contends that the challenge to the ballot of Bobby Daniels should not be sustained. The record clearly shows that Daniels had worked at the plant on a part-time basis for over 3 years preceding the elec- tion, typically a full day each week, and that his duties included mowing the grass, cleanup work, and various duties inside the plant. The record fur- ther shows that all employees classified as mainte- nance or cleanup employees are to be included within the unit herein found appropriate. The Ad- ministrative Law Judge found that due to addition- al work performed by Daniels at the homes of Re- spondent's president and vice president he was a domestic employee. However, we find that the Ad- ministrative Law Judge used an incorrect standard for determining Daniels' eligibility. Where an em- ployee is engaged in a dual capacity, his eligibility is not dependent on where he spends the major portion of his time. Rather, the sole consideration is whether he works a sufficient amount of time performing unit work to share a community of in- terest with other unit employees.6 As the record shows that Daniels had been performing unit work on a regular part-time basis for a protracted period of time prior to the election herein, we find that he shares a community of interest with the other unit employees. Therefore, we shall order that the chal- lenge to his ballot be overruled, and that it be in- cluded with the other ballots, which pursuant to our adoption of the Administrative Law Judge's the more general changes in classifications. In addition, Respondent intro- duced evidence regarding the raises for the other employees pursuant to such changes. Accordingly, the Administrative Law Judge was incorrect in stating that the record presents only a bare complaint allegation. 4 In this regard, Respondent's alleged justification that it changed its wage rates due to their closeness to the minimum wage rate provides no support for its decision to reduce Dennis' wage rate ' See Mike O'Connor Chevrolet-Buick-GMC Co., Inc.. and Pat O'Connor Chevrolet Buick-GMC. Co., Inc., 209 NLRB 701 (1974), enforcement denied on other grounds 512 F.2d 684 (8th Cir 1975), where, as here, challenged ballots were sufficient in number to affect the result of the election Berea Publishing Company, 140 NLRB 516 (1963). HAN-DEE PAK. INC. 725 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Decision are to be opened and counted. 7 Accord- ingly, we shall order that the representation pro- ceeding be remanded to the Regional Director for Region 10 for the preparation of a revised tally and, depending on the outcome of the revised tally, the issuance of a certification of representative or the direction of second election.8 Further, we shall order that the Regional Director shall notify the Board of the results of this revised tally of ballots and the appropriate action following therefrom, so that the Board may determine the disposition of the unfair labor practice allegations regarding Re- spondent's post-election job reclassifications and wage changes, as discussed above. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Han-Dee Pak, Inc., Doraville, Georgia, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for the last four para- graphs of the Administrative Law Judge's recom- mended Order: "IT IS FURTHER ORDERED that the complaint in Case 10-CA-13721 be severed from the remainder of the present proceeding, and that the National Labor Relations Board retain jurisdiction over that complaint, pending notification of the results of the revised tally of ballots in Case 10-RC-11203, and appropriate action following therefrom. "IT IS FURTHER ORDERED that Case 10-RC- 11203 be remanded to the Regional Director for Region 10 and that the challenges to the ballots of Ernest Frost, Thomas Morgan, Dennis Larkin, Mi- chael Rutledge, Marvin Cowart, Morris Sargent, Dwayne L. Shattuck, and Shirley Wilson be sus- tained. The Regional Director shall open and count the ballots of Evelyn Jean Smith, Carol Kopis, Vickie Middlebrooks, and Bobby Daniels and pre- pare and cause to be served on the parties a revised tally of ballots. In the event that the Union re- ceives a majority of the valid votes cast, according to the revised tally, the Regional Director shall issue a certification of representative. Should the revised tally not result in such certification, the election in Case 10-RC-11203 shall be set aside and a second election shall be conducted as early as possible thereafter. 7 These consist of the ballots of employees Evelyn Jean Smith, Carol Kopis, and Vickie Middlebrooks. 8 See fn.2, supra. "IT IS FURTHER ORDERED that the Regional Di- rector shall notify the Board of the results of the revised tally of ballots and the appropriate action following therefrom." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT coercively interrogate em- ployees concerning their union activities. WE WILL NOT threaten to close our plant if employees select Truckdrivers and Helpers Local Union No. 728, affiliated with the Inter- national Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as their collective-bargaining representative. WE WILL NOT threaten employees with loss of their jobs and discharge if they select said Union as their collective-bargaining repre- sentative. WE WILL NOT warn employees and threaten them with discharge for discussing wages among themselves. WE WILL NOT maintain a rule prohibiting employees from wearing union buttons and in- signia while at work. WE WILL NOT suspend or discharge or oth- erwise discriminate against any employee be- cause of that employee's union activity. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL offer Vickie Middlebrooks, Gloria Layman, Wyvonia Dennis, and Shirlene Stall- ings immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prej- udice to their seniority or other rights and privileges and WE WILL make them whole for any loss of earnings with backpay, plus inter- est. HAN-DEE PAK, INC. HAN-DEE PAK, INC. 727 DECISION STATEMENT OF THE CASE JULIUS COHN, Administrative Law Judge: This pro- ceeding was heard at Atlanta, Georgia, during January 8-12, 1979. Commencing on August 15, 1977, and there- after, Truckdrivers and Helpers Local Union No. 728, af- filiated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, filed a series of charges upon which the Regional Director for Region 10 issued com- plaints which were finally consolidated by order dated July 5, 1978. The complaints alleged various violations by Han-Dee Pak, Inc., herein called the Respondent or the Company, of Section 8(a)(1), (3), and (5) of the Act. A petition in Case 10-RC-11203 having been filed by the Union on August 26, 1977, pursuant to a Stipulation for Certification Upon Consent Election approved Octo- ber 27, 1977, an election by secret ballot was conducted November 18, 1977, among the employees in a stipulated appropriate unit. The tally of ballots revealed that, of ap- proximately 163 eligible voters, 73 cast votes for, and 74 cast votes against, the Union and 12 ballots were chal- lenged. The challenged ballots accordingly were suffi- cient to affect the results of the election. Thereafter, on November 22, the Union filed timely objections to the election. The Regional Director, having found that the issues raised by the objections and challenges may best be resolved by a hearing, issued an order consolidating those matters on January 19, 1978, with the then consoli- dated unfair labor practices complaints. Respondent filed an answer denying the commission of unfair labor practices. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. The General Counsel and Respondent submitted briefs which have been carefully considered. Upon the entire record in the case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Respondent, a Georgia corporation, had an office and place of business at Doraville, Georgia, where it is en- gaged in the manufacturing, packaging, and sale of food products. During the calendar year preceding the issu- ance of the complaints herein, Respondent sold and shipped food products valued in excess of $50,000 direct- ly to customers located outside the State of Georgia. The complaint alleges, Respondent admits, and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent Is engaged in the manufacture, packaging, and sale of condiments and food products such as ket- chup and jelly, which it sells to airlines and fast food es- tablishments. The packaging is done by special machin- ery operated by its employees. It has plants in Dallas, Texas, and Doraville, Georgia, the latter being the only plant involved herein. In 1976 the Union conducted an organizational cam- paign at the Doraville plant which culminated in an elec- tion. These events gave rise to an unfair labor practice complaint as well as objections to Respondent's conduct preceding the election, resulting in findings by the Board that Respondent had violated Section 8(a)(1) and (3) of the Act.' Some of the events detailed herein occurred both before and after the Board's Decision in that case. The Union continued its campaign and filed the peti- tion in the instant case on August 26, 1977. Involved herein are not only objections filed by the Union to the election which are coextensive with certain alleged vio- lations of Section 8(a)(1) of the Act, but also other con- duct of Respondent alleged to be unlawful under Section 8(a)(1), (3), and (5) occurring both before the filling of the petition, after such filing, and after the election itself, including interrogation of employees, threats to close and move the plant, threats of loss of jobs, unlawful rules, and suspension and discharge of employees, and, finally, unilateral change in job classifications. B. The Supervisory Status of Certain Leadmen During the spring and summer of 1977 Respondent ap- pointed six of its employees to the position of leadman. 2 The General Counsel urges that Frost and Morgan are statutory supervisors, as they are involved in a number of alleged violations of Section 8(a)(1) of the Act.3 Morgan and Frost work in the production area on the first shift and were appointed leadpersons in May and July 1977, in fill rooms one and two, respectively. They had previously been machine operators. As leadpersons they are responsible for the equipment, including change- overs on the machines and repairs, and in addition have responsibility for getting out the work scheduled to be run on any particular day. According to Sorita Lackey, supervisor of the first shift, she was responsible for five fill rooms, each being a physically separate room involved in production. There were 14 employees in fill room one where Morgan, her brother-in-law, was leadman, while fill room two em- ployed 24 people in which Frost was the leadman. Lackey stated that she spent her time going from room to room and was responsible for overall production as well as 50 employees. Indeed, she stated that the lead- 232 NLRB 454 (1977). 2 They are Ernest Frost, Tommy Morgan, Dennis Larkin, Mike Rut- ledge, Marvin Cowart, and Morris Sargent, all of whom were challenged by the Union at the election in November 1977 as being supervisors within the meaning of the Act. 3 James Coulter and John Gentry are admitted supervisors, as is Susan Porter, personnel director. HAN-DEE PAK, INC. 727 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men were necessary because there was too much work for I supervisor over 50 people. The record reveals that a production scheduler pre- pares and posts a daily production schedule for each ma- chine on each shift. The production supervisor, Lackey, in the case of Morgan and Frost, would in turn draw up schedules for the shift indicating machine assignments for the employees. These are given to the leadmen who see to it that the employees operate the machines or perform whatever other job they have been assigned. In the event of a stoppage, the leadmen will adjust or repair the ma- chine if possible. In the interim, if a machine is down, the leadmen assigns other work, if available, to the em- ployee. As leadmen are responsible to keep production flowing, they regulate employee breaks, and provide for their relief to keep the machine operating either with other employees or by filling in themselves as needed. Leadmen are responsible for reporting rule infractions to the supervisor such as refusal to perform work, or re- turning late from breaks. In the latter connection, al- though Lackey stated that the Leadmen are required to report a person returning later from a break in all cases, it is clear that they exercise some discretion in doing so in the event that the employee is only slightly late. Leadmen are hourly paid, receiving of course a higher rate than production employees. Leadmen receive the same benefits as other employees, while supervisors are salaried and entitled to additional fringe benefits. In the event of any argument or work problems with an em- ployee, the leadmen report the incident to the supervisor, who will take over and make an investigation and deter- mination of the dispute or problem. Leadmen have and have not been present when employees are disciplined by supervisors. There is no evidence in this record that Leadmen have hired or fired employees or disciplined them in any manner. However, a number of employees testified that, at the times of the appointments of Morgan and Frost, they were called to meetings by Supervisor Lackey who told them in effect that Morgan and Frost had the au- thority to fire. Thus, Linda Posey testified that she was called to a meeting in April at which Lackey told the employees that she wanted to make it clear what Mor- gan's duties were, that he has the authority to fire them and tell them to hit the clock if they did not do what he said. Lackey said that she wanted their cooperation with him because he worked under her direct orders. Employee Winnie Bodine testified to the same effect. Joan Morgan, another employee, related that Leadman Morgan called Lackey after she had refused a job assign- ment from him and Lackey reprimanded her, threatened her with discharge, and said that Tommy Morgan was in charge and he could tell employees what to do and that he was the boss. Vickie Upkins testified that, at a meet- ing in August, Lackey told the employees that Morgan was their leadman and that he had the right to fire. Thereafter, about 2 weeks before the election, Upkins missed a day's work and Morgan told, her that if she stayed out again within the next 6 months he was going to fire her. Finally, employee Katy Brinson stated that Lackey told the employees at a meeting that they had to do whatever Morgan told them to do so he had the right to fire them. Brinson also said that, on occasions when em- ployees would protest taking a break at times other than their regular breaktime, Morgan would tell them either to take a break now or "hit the clock." At another time when Brinson had words with Morgan over a gesture he made and told him to stop, Morgan retorted that if he could not play with her like some of the other employ- ees, she could hit the clock. As to Frost, Posey testified that a few weeks before the election she was discussing union with Frost and asked if he would vote. He said no because he had been told he had the right to fire. Posey also stated that, al- though Frost and Morgan continued to work on ma- chines after becoming leadmen, they stood around a cer- tain amount of time and would tell someone else what to do. Gloria Layman, one of the alleged discriminatees herein, testified that Lackey introduced Frost as the leadman and told the employees that he had as much au- thority as she had and that they should do as he told them. Layman overheard Frost telling another employee, Rutledge, that he could not vote for a union because he was a leadman but, if he could vote, he would vote no. Carol Kopis, one of the employees found to have been discriminatorily discharged by the Board in the prior case, had a conversation with Frost a few weeks before the election. She called Frost to ask for his support in the upcoming election and he told her that he would not be allowed to vote because he had been placed in charge of fill room two and had been given authority to fire. Frost also told her that he was not supposed to have voted in the previous 1976 election, that he had been sal- aried then, but immediately afterwards had been put on the clock. On cross-examination, Kopis credibly testified that she pressed Frost on the question as to whether he would be able to vote. He said that he was positive and, although he did not practice it, he had been given the authority to fire employees. Employee Phyllis Brown also testified that, at a meeting of employees, Lackey told them that Frost had been appointed a leadman and he had the right to hire and fire. In resolving the issue of the supervisory status of Morgan and Frost, I credit the testimony of the employ- ee witnesses wherever there may be any conflict be- tween their statements and those of Frost, Morgan, or Lackey. The employees testified in a serious, forthright manner while on the other hand, Morgan and Frost were less than candid. For example, while Morgan, did not deny the testimony of employees that he often told them to hit the clock, he said if he did say something to that effect, it was merely in jest. He also stated he may have told somebody he would fire them, but it was a joke. Frost does not deny specifically the testimony of Kopis concerning his voting eligibility since becoming a lead- man, he merely admits having the conversation with Kopis, but does not recall what was said. I find, on the basis of all the evidence, that Morgan and Frost were supervisors within the meaning of the Act. While it is undoubtedly true that they had little op- portunity to hire, fire, or even discipline employees, it is sufficient that they possessed the necessary authority even though they were not called upon to exercise it. HAN-DEE PAK, INC. 729 This indeed is the significance of Kopis' credited testimo- ny concerning her telephone conversation with Frost. The conclusion from his statement is that he had been in- formed by Lackey or management that he was indeed a supervisor. Further, reliance is also placed on the testi- mony of Lackey, the supervisor of the entire first shift, who acknowledge that the leadmen were appointed be- cause 50 people divided in different rooms were too large a number for her to supervise effectively. In addi- tion, there is evidence that Frost nd Morgan exercised independence of judgment particularly in connection with the deployment of personnel in the event of a breakdown or a stoppage of a machine, not an infrequent occurrence. The leadmen reported infractions of rules which often led to discipline and I do not credit the tes- timony of Lackey and other supervisors who infer these determinations were made without reliance upon their recommendations. Finally, the leadmen were responsible for the flow of production and directed the employees for that purpose. Accordingly, I find that both Frost and Morgan are supervisors within the meaning of the Act. Assuming, however, that Morgan and Frost are not supervisors within the meaning of the Act, it is neverthe- less clear that Respondent has placed them in a strategic position where employees could reasonable believe that they speak on its behalf. By virtue of the testimony of its own witnesses, particularly Lackey, the leadmen have been made a conduit for the passage of orders from higher supervision to the employees. Their duties, which involve reporting rule infractions to the supervisors, changing work assignments when required, calling for replacements as needed, and generally transmitted infor- mation from and to the supervisors, lead me to conclude that the leadmen have close ties with mangement. From this and noting the activities in which they engaged during the union campaign which will be detailed later, the employees could reasonably believe that the leadmen were acting upon instructions from Respondent. I find, therefore, Frost and Morgan are agents of Respondent and it is responsible for their actions in their capacity as leadmen. 4 C. The Alleged 8(a)(1) Violations Vickie Middlebrooks, an alleged discriminatee, testi- fied that she had signed a union authorization card in 1976 before the first election and thereafter signed an- other one in the spring of 1977. About 2 weeks before she was discharged in April 1977, James Coulter, a su- pervisor, asked her in the warehouse whether she had at- tended any meetings. She replied that she had, and he then asked if she signed a card for the Union to which she again said she did. Coulter proceeded to ask her how she was going to vote and she told him she would vote yes. Coulter denied having talked to Middlebrooks about the Union in April. In this respect, I credit Middlebrooks who testified in a forthright manner and particularly note that, in the prior case, Respondent had been found to have violated the Act as a result of Coulter's conduct in 4 Broyhill Company, 210 NLRB 288, 294 (1974): N.LR.B v. Dayton Motels, Inc., d/b/a Holiday Inn of Dayton, 474 F.2d 328. 330 (6th Cir. 1973). a similar manner. I find no merit to Respondent's conten- tion that this was an unlikely incident because the elec- tion herein did not take place until November. It is clear that the campaign was an ongoing proceeding as the case arising from the earlier part of the union campaign and 1976 election had not been finally determined by the Board at the time of the interrogation. Accordingly I find that, by virtue of Coulter's conduct in coercively in- terrogating Middlebrooks in April 1977, Respondent vio- lated Section 8(a)(1) of the Act. In August 1977, Shirley Wilson signed a union card. Two days later Frost asked her if she had signed a card and she replied yes. He then told her that, if the employ- ees had anything to do with the cards, they were going to be in trouble about it. Wilson testified credibly while Frost did not allude to this incident in his testimony. Indeed, Respondent's position concerning the alleged violations of Section 8(a)(l) by leadpersons was merely that they are nonsupervisory employees and their acts are not imputable to Respondent. Having found that Frost was a supervisor and an agent, I further find that Respondent additionally violated Section 8(a)(1) of the Act by his unlawful interrogation of Wilson and by his threatening trouble to employees who signed union cards. Vickie Upkins testified that about a week before the election Morgan asked her how she would vote. She re- fused to tell him. Morgan then said if the Union came in the plant would be closed and shipped back to Texas. Upkins' testimony is uncontroverted in the record and I find that Respondent further violated Section 8(a)(1) by virtue of Morgan's coercive interrogations and threat of plant closure. About 3 weeks before the election, according to em- ployee Joan Morgan, Leadman Morgan, in the presence of several employees, said that, if the Union got in, the plant would close and move to Texas and people would be laid off and fired. These threats of plant closure, layoff, and discharge further violated Section 8(a)(1) of the Act. About a week before the November 18 election, Morgan told Winnie Bodine that, if they voted in the Union, none of the girls would have a job the next Monday. Similarly, Morgan told Gloria Layman during that week that there was not going to be anybody left on Monday morning but him, this being in connection with the employees talking about voting in the Union on Friday. Employee Brinson also testified that, during the second week in November, Morgan was talking to a group of employees and told them, if the Union came in, they would all be fired Monday after the election. Again, these statements of Morgan to employees convey threats of discharge in violation of Section 8(a)(l). Frost was involved in similar type threats and state- ments, and was responsible for most of the statements re- garding going to Texas. Of course this was in context of Respondent closing the Georgia plant if the Union won the election and moving it to Texas where it owned an- other plant. Frost would come into the plant wearing a cowboy hat to symbolize the move to Texas after the plant in Georgia closed. Incidentally, there is no dispute concerning this as Frost admitted wearing a cowboy hat HAN-DEE PAK, INC. 729 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the plant. Frost's remarks concerning removal to Texas were repeated by him during the weeks preceding the election to a number of employees and I find that they relate to plant shutdown, loss of jobs, and removal to Texas, all being threats in violation of Section 8(a)(1) of the Act. Finally, around November 10, Frost spoke with Gloria Layman in fill room 2, and asked her how she liked the "vote no" sign in the warehouse. Layman replied that she guessed it was all right but she was going to vote yes. Frost then told her that people who are pushing the Union are going to be on a sliding board to the slaughter house. In this conversation Frost not only engaged in coercive interrogation but also threat- ened discharge of employees if the Union were success- ful. 5 On or about November 28, Gloria Layman had a con- versation with an employee, Chris Roach, in which she repeated a statement made by Upkins to the effect that she received a raise giving her more money than Roach for the same job. The next day Lackey told Layman to see Susan Porter, director of personnel. According to Layman, Porter said Roach had been upset to hear from Layman that Upkins was making more money than she. Porter told Layman she was giving her a letter for ha- rassment and directed her not to discuss wages or this conversation or the letter itself with anyone. She further said that Layman would be fired if she did so. Actually, on November 30, Porter gave Layman a letter of warn- ing in the presence of Lackey, Finkle, Layman's supervi- sor, and Darrell Shattuck, vice president. Layman pro- tested to Shattuck that, while she may have been guilty of gossip, she was not involved in harassing anyone. Shattuck replied he could not afford such gossip and, when Layman requested that he bring in Brinson and Upkins to see if this were true, he refused to do so. The letter of November 30 handed to Layman which is signed by Porter and Shattuck confirms the above facts. While Respondent contends that its discipline of Layman was caused by the latter having unduly harassed a fellow employee, Roach, a review of the testimony of Porter herself indicates that this is not entirely free from doubt. Whether Roach felt harassed is of course a sub- jective conclusion. Based upon my observation of Roach and her demeanor, and noting that Porter actually showed Roach the payroll records which revealed her rate of pay was indeed the same as Upkins, it is difficult to believe that she really felt harassed by Layman's ap- proach to her, particularly as they were longtime friends. However, the fault in Porter's conduct toward Layman is that it mixed the concept of harassment with interfer- ence with Layman's right to engage in concerted activi- ty. Porter testified she told Layman is that it mixed the concept of harassment with interference with Layman's right to engage in concerted activity. Porter testified she told Layman not to get into a conversation with Roach about her wages, that it would be okay if somebody came up to Layman and wanted to talk about her rate of wages, but Roach had not approached her and therefore I As in the instance of Morgan, Frost testified but did not refer to these statements found to be in violation of Sec. 8(a)(I). Respondent's only contention in this regard is that Frost and the other leadmen are not supervisors and therefore it was not responsible for their conduct. she should not approach Roach. In addition, the written warning to Layman stated, "other persons' wages are none of your business, and are not to be discussed by you with them." It is also noted that two other employ- ees were involved with Layman in the so-called harass- ment of Roach and they received no discipline. In this connection Porter testified at one point that Roach told her that two other girls had asked her why she had not gotten her pay rate straightened out. When Layman pro- tested that some of the others should get warnings Porter told her that Roach said that no one directly ap- proached her except Layman. I find in all the circum- stances that Respondent violated Section 8(a)(1) of the Act by warning Layman against discussing wages with other employees, a protected concerted activity, by issu- ing a warning of discharge to Layman because of her action, and by seemingly promulgating a rule prohibiting such discussions.8 The General Counsel has alleged that Respondent vio- lated Section 8(a)(l) of the Act by maintaining a rule in its handbook as follows: "Employees are not permitted to wear signs, stickers, buttons, or any other form of adornment on clothing or hats while on company prem- ises other than official company emblems or logos." Per- sonnel Director Porter testified that the rule was main- tained for quality control purposes, the company being concerned that some one of these items might drop off into the food. Porter also stated that she was not aware of anyone ever being disciplined under the rule. As to the latter, the General Counsel has not urged any viola- tion with regard to enforcement of the rule. I find that the rule is overly broad and Respondent has not estab- lished that all the specific items mentioned and prohibit- ed by the rule, as well as "other adornment on clothing or hats," would actually result in quality control prob- lems as contended. In any case the record is clear in con- nection with other matters that the leadmen, for exam- ple, wore cowboy hats while working despite the fact the employees were required to wear special hats pro- vided by the Company. Employees have the right to wear insignia on behalf of the Union unless the Company establishes special circumstances which Respondent has not done in this instance. Accordingly, by maintaining this overly broad rule, I find Respondent violated Sec- tion 8(a)(l) of the Act.7 Finally, the General Counsel has alleged violation by Respondent of Section 8(a)(l) of the Act by reason of Supervisor John Gentry telling employees of the futility of selecting a union. One of the alleged discriminatees herein, Stallings, testified Gentry told her he had been in a union before and the union did not do anything but take dues and it was up to the Company to negotiate changes. Gentry then spoke to the same effect at a meet- ing a half hour later. Gentry testified that at a meeting he told employees he had been in a union, and it did not help him, that when the Union was voted in, they would have to have a ne- gotiated contract. There appears to be no basic conflict 6 See Richard M. Brown, D. O and Donald R. Janower. D. O.. a Co- Partnership d/b/a Park General Clinic, 218 NLRB 540 (1975). Davison-Paxon, Company. a Division of R. H. Macy and Company, Inc., 191 NLRB 58 (1971). HAN-DEE PAK, INC. 731 between the testimony of Stallings and Gentry. I find in these circumstances Gentry has merely expressed his own opinion and his statements were protected by his right of free speech under Section 8(c) of the Act. I therefore dismiss the allegation in the consolidated com- plaint with respect to the above-noted remarks of John Gentry. D. The Alleged 8(a)(3) Violations 1. Vickie Middlebrooks Middlebrooks was employed by Respondent from March 1976 until April 22, 1977, when she was terminat- ed.8 She had signed union cards before the first election and shortly before she was terminated. It will be recalled that she was the subject of interrogation by Supervisor Coulter approximately 2 weeks prior to her discharge. Middlebrooks had injured her back about 2 days before her termination and was under the care of the company doctor. Because of this she was given light duty. On April 22, she was working in the warehouse going through a box of ketchup packages looking for leakers. Before going on her lunch break she told Coulter she needed some help in this work and he said he would get it for her after lunch. That day Middlebrooks went to lunch with her sister who was employed in fill room two. She stated that she only stayed 15 minutes on her break but was met by Coulter as she was returning down the stairs who told her to clock out and go home. At that, she asked him if she was being fired and he said, "I guess so." Coulter told her that she had been on break for 45 minutes and she insisted it was only 15 because she had checked the clock. Middlebrooks said that on the day of her discharge she had no arguments or words with her supervisor nor did she refuse to perform any work assignments. Coulter testified that Middlebrooks was not a good employee during the year she worked under his supervi- sion. He stated that, no matter what they gave her to do, they could not please her, that she would frequently walk off to the bathroom for a lengthy period of time. He said on the day of her discharge he returned from lunch and found she was not working. About 5 minutes later he returned and she was not there and he could not find her until about 20 minutes after her lunch break, when he saw her sitting in the lunchroom and asked what she was doing. She retorted with a smart remark. He said he told her she was expected back on the job and this was now 20 minutes past that time. Middlebrooks had received three warnings for absen- teeism and tardiness prior to the discharge, one as recent as April 13. But Respondent's report to the State of Georgia, pursuant to the Employment Security Law, states that Middlebrooks was terminated "due to insubor- dination and refusal to perform duties assigned." I find under all the circumstances that Middlebrooks was terminated because of her union activities. Respond- ent was aware of her sympathy as a result of the interro- gation by Coulter 2 weeks before her discharge. While Middlebrooks' record as an employee may have not been 8 At the time of the hearing Middlebrooks was known as Washington. exemplary, I am persuaded that Respondent's reasons for terminating her were pretextual. Middlebrooks credibly testified that Coulter informed her she was being dis- charged because of her lateness in returning from the lunchroom break. Nevertheless Respondent stated in writing to the State of Georgia that she was terminated for insubordination and refusal to perform duties. There is nothing in the testimony of Coulter to reflect that Middlebrooks had refused any orders or would not per- form the job to which she had been assigned. Other than her lateness, the only thing referred to by Coulter was that she retorted with a smart remark when he called her for being late. With regard to the lateness, there is no evidence to in- dicate that any action was taken toward Middlebrooks' sister who was with her at the luncheon break and pre- sumably was just as late in returning as Middlebrooks. Respondent also relies, as it did in discussing the unlaw- ful interrogation of her by Coulter, on the fact that no particular election was scheduled in April. I find this to be without merit for the reasons stated above. At this point, the first election had not been definitely decided and in any case this situation presents an ongoing matter from the time of the 1976 campaign through the election in that year and the one in 1977 and thereafter. Accord- ingly, I find that, by its discharge of Middlebrooks, Re- spondent violated Section 8(a)(1) and (3) of the Act. 2. Gloria Layman Layman was employed in mid-1976 and terminated on January 31, 1978. As noted above, she had been the sub- ject of coercive interrogation by Frost just prior to the election in November 1977 and had informed him she was going to vote yes for the Union. She was also in- volved, as detailed at length above, in the wage rate inci- dent regarding Roach, an activity which I found to have been protected. On January 12, 1978, Layman became ill while at work. She went home, saw her doctor, and the following day required hospitalization. She remained in the hospital until January 20, and during that period either her mother or sister called in to the plant. She herself called her supervisor, Finkle, on January 25 telling her that she was still sick but could return to work the following Monday. Layman obtained certificates from her doctor for the period from January 13 to January 23 when she was in the hospital and her continuing illness from Janu- ary 23 to January 30 when she was at her mother's house. On January 25 when she called, Finkle asked her for the doctor's certificates stating that she had to re- ceive them by the next morning or Layman would be terminated because of the rule in the employee's hand- book. Layman protested that she was unable to bring them in because she could not drive and was staying with her mother 20 miles away from the plant. Layman states that Finkle did not tell her to put it in the mail but rather said she could not walk in on Monday, hand over the doctor's certificates, and then everthing would be all right. Finkle told her if she read her handbook, she would know the doctor's excuse had to be in by 10 days and that was the rule. Layman said she would be in on Monday with the excuses but Finkle told her if she did HAN-DEE PAK, INC. 731 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not have them there by the following day, Thursday morning, she was fired. As a result, Layman stated that she believed she had been terminated and did not go in the following Monday. Respondent wrote to Layman on January 31, detailing in length what had occurred during the period of her ill- ness and informing her that she was terminated because of her failure to report to work or comply with the rules regarding extended sick leave. Respondent annexed a copy of the extended sick leave rule to the letter. This rule constituted an amendment to the handbook by re- quiring that notice of extended illness be received by the Company within 10 work days of the employee's last day of work. This request must be in the form of a cer- tificate from the doctor. Finkle testified at some length regarding this matter and her version of the January 25 telephone call varies in that Finkle states that she read portions of the extended leave policy to Layman over the telephone, but never- theless told Layman she could mail in the doctor's excuse. Layman replied she had no way of getting a stamp or of having any other person deliver it for her at that time. Finkle further stated she then suggested it would be acceptable if Layman brought the excuse with her on Monday when she returned to work and then Layman said that she would do so. Finkle denied saying anything about firing Layman or in any way talking about a possibility of her termination. Susan Porter, the personnel manager, testified that the extended leave policy referred to in these conversations represented an amendment to the handbook distributed to employees when they were hired. She states that this amendment was put through in the spring of 1977, posted on the bulletin board, and delivered to each em- ployee with their paycheck at the time. Layman and other employees testified at the hearing that they were unaware of this and did not recall receiving a copy of the amendment. I credit the version of Layman with regard to the tele- phone call of January 25 with Finkle. Both agreed that Layman called to say she would be in on Monday. If Finkle had told Layman, as she contended, that it would be all right to bring the doctor's certificate on Monday when she reported to work, there would have been no need for the extended conversation concerning the re- quirement of Layman promptly delivering them in ac- cordance with the amended leave policy. Moreover, the very fact that Layman was calling to say she would be in Monday negates the impression, as Respondent set forth in its letter of January 31, that it appeared Layman did not want the job. Finally I note that, unlike the work records of other employees involved herein, Finkle stated Layman was indeed a very good employee. Al- though Finkle said she was aware of Layman's previous discipline arising out of the alleged harassment of Roach, but it was not a consideration in her decision to dis- charge Layman, I find this to be incredible in view of its recency and apparent importance to Respondent. In all the circumstances, I find that Layman had been informed by Finkle she should consider herself terminated if her doctor's excuses were not in by the day after the phone call, a condition with which Layman was physically unable to comply. In view of her previous protected ac- tivity, and the Company's knowledge of her union activi- ty as a result of her being interrogated by Frost, I find Respondent terminated her for those reasons rather than because of the failure to comply with the leave policy. In this latter connection it is also noted that Porter ad- mitted that the leave policy, which was presumably to be strictly construed, was not applied in the case of another employee, indicating that Layman had been treated dis- parately. Accordingly, I find that Respondent violated Section 8(a)(1) and (3) by virtue of its discharge of Layman. 3. The discharges of Wyvonia Dennis and Shirlene Stallings Dennis was employed by Respondent in November 1975 as a jelly packer and eventually became the ma- chine operator in the towelette department.9 During the union campaign in 1977, Dennis distributed authorization cards to employees, informed them about the union meetings, and eventually was a union observer at the election. She also testified, without contradiction, that she had told a leadman, Davis, that it would be a good idea if the Union came in because the employees would have more rights. This occurred after the elec- tion. Dennis testified that on April 24, 1978, she was making boxes with Stallings. They went to the breakroom about 8:45 p.m. and at 8:50 p.m., White, a supervisor, came to the area and said he wanted to see them in Jim Cham- bers' office. He told them he had heard they had been on a previous break for 1 hour and already were out for their second break 45 minutes. Dennis told him they had not been out those amounts of time on either the first or the second break. White then said he was going to lay them off 3 days. She attempted to tell him that he should not do that because other boxmakers had longer breaks. White replied he was not concerned about other people and she should not be getting smart with him. He then told them that since they were refusing to work, they were terminated. Dennis said, when they work as boxmakers, they also have to relieve other people for their breaks. On this par- ticular night, they had relieved employees and had also caught up with their work as boxmakers. She stated that, while working in this capacity, it is common for the em- ployees to take longer breaks while they are waiting. Dennis said she had gone for the first break at 6:45 p.m. and stayed for 30 minutes. On the second break at 8:45 p.m. White came for them after only 5 minutes. Dennis insisted she had not told White she was refusing to go back to work but merely said she thought they should not have to finish the rest of the shift because of the 3- day layoff. 9 The General Counsel has alleged that Respondent violated Sec. 8(a)(3) of the Act by abolishing the towelette operator position on about April 6, 1978, thereby causing Dennis to suffer a reduction in wages. Since this change in classification is also the subject of a subsequent 8(a)(5} complaint involving the towelette operator job and others, I shall discuss Dennis' change in classification in connection with the (a)(5) al- legation. _ ._ HAN-DEE PAK, INC. 733 Stallings had been employed since March 1977 as a machine operator. On the day of her discharge she was making boxes with Dennis. During the union campaign she wore a union pin and distributed authorization cards and booklets in the parking lot. Stallings testified to a similar effect as Dennis. She stated that, on the first break at or about 6:45 p.m., they stayed out until 7:15 p.m. because they were caught up making their boxes and nobody said anything to them about it. The next break was 8:45 p.m. and 5 minutes later White came in. In the office he said he was going to lay them off for 3 days and Stallings said that they had only been there for 5 minutes but White said that he heard that they were there for 15 minutes. Dennis asked if he meant that they should go home that night. White then replied that they were refusing to work and were terminated; he did not give them a chance to say anything else. White, who did the talking during the incident and discharge of Dennis and Stallings, did not appear and testify at the hearing. However, Morris Sargent, previ- ously a leadman but then a supervisor, was present with White and he testified. He said that, on the date of the discharge, his leadman, Cowart, told White and him that the two had stayed too long on their first break, having returned approximately 30 or 40 minutes late. They de- cided not to do anything about it but to watch them on the next break. He and White saw them going on break at 8:15 p.m. and they waited until 9:05 p.m. but Dennis and Stallings had not yet returned. White went up and asked the two employees to come to the office where he explained to both what had been observed. White told them they had received formal warnings and verbal warnings and now he was going to discipline them by giving them a 2-day layoff beginning the next day; and they should finish their work for the night. Dennis said that, since she was going to be laid off, she should not have to go back to work that night. White then asked if they were refusing to go back to work and Dennis said yes. White also asked Stallings and she replied yes. White said if they refused to go back to their jobs there was no choice but to terminate them. The employees then left. Sargent maintained that they were discharged for their refusal to return to work and that otherwise there would have only been a 2-day layoff. The General Counsel contends Respondent violated Section 8(a)(3) by suspending these two employees on April 24 and then further violated the Act by discharg- ing them the same day when allegedly they refused to finish the shift. Respondent on the other hand contends that the employees were suspended because they had overstayed two breaks on that particular night and had prior records of returning late from breaks, and ultimate- ly they were discharged because of their refusal to finish the shift. It is clear that Dennis was one of the most active employees involved in the union campaign, as evi- denced by her having engaged in card distribution and her showcase position as observer during the election in November 1977. I found both Dennis and Stallings to be credible witnesses who in general corroborate each other's testimony. On the other hand Sargent, a silent ob- server of the proceedings conducted by White, was the sole witness for Respondent. There was no explanation for White having not appeared despite his role as princi- pal protagonist for Respondent. Moreover, based upon my observation of her demeanor, I do not believe it credible that Dennis outright refused to continue the 2 or 3 hours left on the evening shift of April 24. This would be in sharp contrast to her behavior several weeks before her discharge, when she was informed of her reclassifica- tion which resulted in a wage cut, an act she accepted without defiance. On the other hand, if White and Sar- gent were bent on disciplining these two employees for overstaying two consecutive breaks, and presumably having information that they were late 30 or 40 minutes returning from the earlier break, it seems inconceivable that they would wait a full 50 minutes before confront- ing the two employees after the second break. Finally, the employees freely admitted taking about a half hour on their first break, a not uncommon practice when one is assigned to the job of making boxes and relieving other employees who are on break. There is other testi- mony in the record reflecting that boxmakers have a cer- tain amount of downtime when caught up making boxes and it is not time for them to relieve others for breaks. Based on the foregoing, I find that Respondent violated Section 8(a)(l) and (3) of the Act by suspending Dennis and Stallings for 2 days, and further violated the Act by terminating them the same day because of their union ac- tivities rather than their lengthy breaks and their refusal to continue working their shift. E. The Alleged 8(a)(5) Violation In Case 10-CA-13721, the General Counsel alleged that Respondent violated Section 8(a)(5) of the Act by unlawfully and unilaterally changing certain job classifi- cations and rates of pay. Respondent acknowledges that on April 6, 1978, it combined some eight job classifica- tions including that of towelette operator into one wage and job classification to be called "operator A." It then changed the rate structure for the new "operator A" so that all employees in the former classifications received some slight increase in pay except the towelette operator who substained a wage reduction. In Mike O'Connor Chevrolet-Buick-GMC Co., Inc., and Pat O'Connor Chevrolet-Buick-GMC Co., Inc., 209 NLRB 701, 703 (1974), the Board stated that it has long held, "absent compelling economic considerations for doing so, an employer acts at its peril in making changes in terms and conditions of employment during the period that objections to an election are pending and the final determination has not yet been made." Clearly these changes were made during the course of the pendency of objections to the November 1977 election. However, Re- spondent urges that there were economic considerations for its decision to make the above-noted changes. Actual- ly Respondent did submit evidence and testimony to the effect that its wage scale for the classifications involved was very close to the minimum wage, especially the starting rates. As a result, Respondent states it was diffi- cult for it to hire new employees and retain new employ- ees, particularly because the structure, as it previously existed, required a longer waiting period before increases were granted. The General Counsel submitted no evi- dence on this issue, leaving us with the bare complaint HAN-DEE PAK, INC. 733 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD allegation. Moreover, General Counsel did not allude to this matter or make any contention regarding it in his brief. In these circumstances, as Respondent did go for- ward with evidence concerning the economic necessity for the changes, and as Respondent's economic argu- ments in support of the change were not unreasonable, and, further, since no employee except the former towe- lette operator was adversely affected, I find that the General Counsel has not by a preponderance of evidence supported its allegation of violation of Section 8(a)(5) in this matter, I shall dismiss the complaint in Case 10-CA- 13721, in its entirety.' ° As previously noted, General Counsel has alleged in another complaint (Cases 10-CA-13606 and 10-CA- 13638) that Respondent reduced the wages of Wyvonia Dennis in violation of Section 8(a)(l) and (3) of the Act. Dennis was the towelette operator whose classification was eliminated and she was reclassified on April 6, 1978, as an operator A. Apparently this was the only incident of an employee sustaining any loss of pay. Although I have found that Dennis was discharged 3 weeks thereaf- ter in violation of Section 8(a)(3) of the Act, there is no evidence connecting this wage reduction with her pro- tected or union activities, and it does not appear that the action on April 6 was other than a part of the general reclassification of the operators as described above, nor is there evidence that it was discriminatorily motivated. Accordingly, I shall also dismiss so much of the allega- tion in the complaint in Case 10-CA-13606 and 10-CA- 13638 as alleged an unlawful reduction in the pay of Dennis. IV. THE OBJECTIONS AND CHALLENGED BALLOTS IN THE REPRESENTATION CASE A. The Challenges 1. The leadmen Ernest Frost, Thomas Morgan, Dennis Larkin, Mi- chael Rutledge, Marvin Cowart, and Morris Sargent were challenged by the Union as being supervisors within the meaning of the Act. I have already deter- mined above that Frost and Morgan were supervisors in connection with resolution of the unfair labor practice issues. Respondent's position of course was that they are merely leadpersons with no supervisory duties. Howev- er, Respondent has also indicated that all the leadmen challenges performed more or less similar duties, had similar job descriptions, and exercised the same authori- ty. Rutledge, who was leadperson in the warehouse, ap- parently had many duties in connection therewith and in addition the record reveals that he filled in on a regular basis in the absence of the acknowledge supervisor in that area. Cowart and Sargent were production leadmen who had the same duties as Frost and Morgan, while Larkin was employed in the maintenance department. I find, for the reasons stated here as well as those in con- nection with my findings as to Frost and Morgan, that all six of the challenged leadmen are supervisors within 'o Anchortank. Inc., 239 NLRB 430 (1978). the meaning of the Act and I shall recommend that the challenges to their ballots be sustained. 2. Bobby Daniels Daniels was challenged by the Union as a domestic worker not within the composition of the unit. Individ- uals who are in the domestic service of any family or person at his home are excluded from the coverage of the Act. (See Sec. 2(3) of the Act.) Daniels has been on Respondent's payroll since September 1974. Acccording to the testimony of Shattuck, vice president, secretary- treasurer, and chairman of the Board of Respondent, and Daniels, the latter reports each morning to the Shattuck house, using a company car. When he arrives, he re- ceives his orders from Mrs. Shattuck or else from a worksheet that is left for him. He does work around Shattuck's house including cleaning and gardening. While Shattuck testified that Daniels works at his house I or 2 days a week, he also stated that they tried to bring Daniels in, meaning the plant, on Wednesdays. In addi- tion, it is clear that Daniels worked at the home of Her- bert Sodel, the president of the Company and also a 50- percent owner. Besides doing yardwork for Sodel, he does other work such as serving at parties at his home. At the plant, Daniels does the yardwork and, in the win- tertime, some work on the inside. On the basis of the above, I find that Daniels spends a major portion of his time at the homes of the two owners of Respondent, doing mostly chores around the house and grounds, and therefore I find he is a domestic employee excluded from coverage of the Act. I shall therefore recommend that the challenge to his ballot be sustained. 3. Dwayne Shattuck Dwayne Shattuck is the son of Darrell Shattuck, who is as noted vice president and 50-percent stockholder of Respondent. Dwayne worked at the plant during four summers. After graduation from high school in the summer of 1977, he began working as a forklift driver in the warehouse and thereafter in the quality control labo- ratory helping with testing under the supervision of Finkle. In Foam Rubber City #2 of Florida, Inc. doing business as Seandia, 167 NLRB 623 (1967), the Board held that the son of one of two owners of a corporation is an individual employed by his parent and should there- fore be excluded from an employee unit because of his relationship to a substantial owner. Accordingly, I shall recommend that the challenges to the ballot of Dwayne Shattuck be sustained. 4. Shirley Wilson Wilson was challenged because she was not an em- ployee of Respondent. Wilson testified at the hearing and it appears that she was employed on April 20, 1977, and discharged in September 1977. As she was not employed on the date of the election, and she has not been found to have been unlawfully discriminatorily terminated, I recommend that the challenge to Wilson's ballot be sus- tained. HAN-DEE PAK, INC. 735 5. Evelyn Jean Smith, Carol Kopis, and Vickie Middlebrooks These three individuals were challenged because their names did not appear on the eligibility list. Smith and Kopis were found by the Board to have been discharged by the Company in violation of Section 8(a)(3) of the Act," and were therefore entitled to reinstatement. I find that they were eligible to vote in the election con- ducted in November 1977, and recommend that the chal- lenges to their ballots be overruled. Having found that Vickie Middlebrooks was discrimin- atorily discharged by Respondent on April 22, 1977, and thereby entitled to reinstatement, I further find that she was eligible to vote in the election conducted on No- vember 18, 1977, and therefore recommend that the chal- lenge to her ballot be overruled. B. The Objections The Union timely filed objections to conduct allegedly affecting the outcome of the election. After investigation, the Regional Director ordered a hearing on objections concerning the activities of the leadmen in interrogating employees, threatening employees with plant removal and discharge, and similar activities. I have found exten- sive violations of Section 8(a)(I) of the Act, with partic- ular reference to the conduct of Frost and Morgan, which are coextensive with the objections consolidated herein. The Board has stated that "conduct of this nature which is violative of Section 8(a)(1) is, afortiori, conduct which interferes with the exercise of a free and untram- meled choice in an election." Playskool Manufacturing Company, 140 NLRB 1417, 1419 (1963). This is so "be- cause the test of conduct which may interfere with the 'laboratory conditions' for an election is considerably more restrictive than the test of conduct which amounts to interference, restraint, or coercion which violates Sec- tion 8(a)(1)." Dal-Tex Optical Company, Inc., 137 NLRB 1782 (1962). 1 find therefore that Respondent did engage in conduct interfering with the election and that the Union's objections thereto are sustained. Having sustained the challenges to the ballots of Frost, Morgan, Larkin, Rutledge, Cowart, Sargent, Daniels, Shattuck, and Wilson, and having overruled the chal- lenges to the ballots of Smith, Middlebrooks, and Kopis, I shall recommend that the representation proceedings be remanded to the Regional Director with the direction to open and count those three ballots, and prepare a revised tally. Should the tally of ballots which results from such action reveal that the Union has won a majority of the votes cast, then certification should issue. In the event that the Union does not receive a majority of the votes cast, consistent with the Decision herein, I recommend that the election of November 18, 1977, be set aside and the Regional Director hold a second election as early as possible thereafter. l Handee-Pok, Inc., 232 NLRB 454 (1977). V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. Having found that Respondent discharged Vickie Middlebrooks, Gloria Layman, Wyvonia Dennis, and Shirlene Stallings, in violation of Section 8(a)(l) and (3) of the Act, I recommend that Respondent be ordered to offer them reinstatement and to make them whole for any loss of earnings and other benefits resulting from their discharge by payment to them of a sum of money equal to the amount they normally would have earned as wages and other benefits from the dates of their dis- charges to the date on which reinstatement is offered, less net earnings during that period. The amount of back- pay shall be computed in the manner ser forth in F W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Flor- ida Steel Corporation, 231 NLRB 651 (1977).12 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 violated Section 8(aX)(1) of the Act by: (a) Coercively interrogating employees concerning their union and other protected activities. (b) Threatening to close its plant should the employees select the Union as their collective-bargaining representa- tive. (c) Threatening employees with loss of their jobs and discharge should the employees select the Union as their representative. (d) Warning employees and threatening them with dis- charge for discussing wages with other employees. (e) Maintaining a rule prohibiting employee from wearing union buttons and insignia while at work. 4. Respondent violated Section 8(a)(3) and (1) of the Act by suspending Wyvonia Dennis and Shirlene Stall- ings because of their union activities. 5. Respondent violated Section 8(a)(3) and (1) of the Act by discharging Vickie Middlebrooks, Gloria Layman, Wyvonia Dennis, and Shirlene Stallings be- cause of their union activities. 12 See, generally, Isis Plumbing & Hearing Co.. 138 NLRB 716 (1962) HANDEE PAK, INC 735 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER' 3 The Respondent, Han-Dee Pak, Inc., Doraville, Geor- gia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union activities. (b) Threatening to close its Doraville, Georgia, plant should the employees select the Union as their collec- tive-bargaining representative. (c) Threatening employees with loss of jobs and dis- charge if they select the Union as their collective-bar- gaining representative. (d) Warning employees and threatening them with dis- charge should they discuss wages with other employees. (e) Maintaining a rule prohibiting employees from wearing union buttons and insignia while at work. (f) Suspending employees because of their union activi- ties. (g) Discharging or otherwise discriminating against employees because of their union activities. (h) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaran- teed them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Vickie Middlebrooks, Gloria Layman, Wy- vonia Dennis, and Shirlene Stallings immediate and full 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 and make them whole for any loss of earnings in the manner set forth in the section of this Decision entitled "The Remedy." 13 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 10248 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Doraville, Georgia, plant copies of the attached notice marked "Appendix."14 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by its authorized rep- resentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint in Case 10-CA-13721 be dismissed in its entirety. IT IS FURTHER ORDERED that the consolidated com- plaint be dismissed with respect to allegations not specifi- cally found to be violative of the Act. IT IS FURTHER ORDERED that Case 10-RC-11203 be remanded to the Regional Director with a direction to sustain the challenges to the ballots of Ernest Frost, Thomas Morgan, Dennis Larkin, Michael Rutledge, Marvin Cowart, Morris Sargent, Bobby Daniels, Dwayne L. Shattuck, and Shirley Wilson; and to open and count the ballots of Evelyn Jean Smith, Carol Kopis, and Vickie Middlebrooks; to prepare and cause to be served on the parties a revised tally of ballots, including therein the count of said ballots upon the basis of which he shall then issue the appropriate certification. IT IS FURTHER ORDERED that, in the event the revised tally of ballots does not result in the certification of the Union as collective-bargaining representative of Re- spondent's employees, then the election in Case 10-RC- 11203 be set aside and a second election be conducted as early as possible thereafter. '4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."