Fry Foods, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fry Foods, Inc. and United Steelworkers of America, AFL-CIO. Cases 8-CA-10901, 8-CA-11000, 8- CA-11095, 8-CA-11147. and 8-CA-11477 March 15, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On August 8, 1978, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. The General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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, findings,l and conclusions of the Administrative Law Judge and to adopt his remedy 2 and his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Fry Foods, Inc., Tiffin, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces 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. Nor do we find merit in Respondent's contention that, because the Administrative Law Judge gener- ally discredited the Employer's witnesses and credited the General Counsel's witnesses, his credibility resolutions are erroneous or attended by bias or prejudice. N.L.R.B. v. Pitlsburgh S.S. Co., 337 U.S. 656 (1949). We have further considered Respondent's contention that the Administrative Law Judge has evidenced a bias against Respondent's position. We have carefully considered the record and the attached Decision and reject these charges. 2 Backpay for the 30 unfair labor practice strikers who were found to have been unlawfully discharged by Respondent on April 20, 1977, will be com- puted in accordance with our recent decision in Abilities and Goodwill, Inc, 241 NLRB 27 (1979). Thus, they will be entitled to backpay from April 20, the date of their discharges, rather than June 10, the date the Union made a unilateral offer to return to work, on behalf of all strikers. For the reasons set forth in his dissenting opinion in Abilities and Goodwill, Member Penello would order backpay for the 30 unfair labor practice strikers to commence on June 10. DECISION FINDINGS OF FACT STATEMENT OF THE CASE WALTER H. MALONEY, JR., Administrative Law Judge: This case came on for hearing before me in Tiffin, Ohio, upon an amended consolidated complaint, issued by the Regional Director of Region 8, which alleges that the Re- spondent, Fry Foods, Inc..2 violated every subsection of Section 8(a) of the Act. More particularly, the amended consolidated complaint contains about 16 allegations of in- dependent 8(a)( I) conduct, including interrogations, threats to discharge and close the plant, assault by automobile upon a striker, threats of physical injury to strikers, imposi- tion of more onerous working conditions upon returning strikers, requests to employees to engage in surveillance of the union activities of other employees, a wage increase designed to discourage the union activities on the part of employees, and the institution and implementation of a sys- tem of written warnings designed to harass union sympa- thizers. The 8(a)(2) allegation asserts that Respondent un- lawfully sponsored an employee committee which discussed with the Employer certain employee benefits and other matters pertaining to the wages, hours, and working condi- tions of bargaining unit members. The 8(a)(3) allegations include the alleged demotion of Mattie Taylor, the dis- charge of Rowena Gannon, the terminations of 30 named unfair labor practice strikers, the suspension of several union sympathizers for assertedly specious disciplinary rea- sons, and the discharges of Tina Shetzer, Kay Fortney Tong, Mary Jane Bodi, Susan Neikirk, and Wanda Depi- The principal docket entries in this case are as follows: Charge filed against Respondent by United Steelworkers of America, AFL CIO (herein called Union or USWA), in Case 8-CA 10901 on March 31, 1977; second amended charge filed in Case 8 CA 10901 on April II. 1977; third amended charge filed in Case 8 ('A 10901 on April 13. 1977: charge filed by the Union against Respondent in Case 8 CA-I 1000 on May 9, 1977: first amended charge filed on May 16, 1977; second amended charge filed on May 31, 1977; charge filed by Union against Respondent in Case 8- CA-11095 on June 14, 1977; charge filed against Respondent by Union in Case 8-CA- 11147, on July 6; charge filed against Respondent by Union in Case 8 CA-1147 on October 26, 1977; amended charge filed in Case 8 CA-11147 on November 16, 1977; second amended charge filed in Case 8- CA-11477 on December 27, 1977; consolidated complaint issued by Re- gional Director of Region 8, in all of the above cases on December 20, 1977, and amended on January 12, 1978, and on February 14, 1978; Respondent's answer to amended consolidated complaint filed on January 12, 1978: hear- ing held in Tiffin, Ohio, on March 27-30, 1978, and April 18-20, 1978; briefs filed by the General Counsel and the Respondent with me on June 14, 1978. In a related. but unconsolidated representation case, the following are docket entnes of which I take official notice: Petition for representation election among Respondent's production and maintenance employees filed by USWA on December 22, 1966 (Case 8-RC- 10738); Regional Director's Decision and Direction of Election issued on February 9, 1977; election held on March 18, 1977, which Union won by a vote of 46 to 41; Union certified on March 25, 1977. Respondent admits, and I find, that it is an Ohio corporation which maintains its principal place of business at Tiffin, Ohio, where it is engaged in the processing and nonretail sale of onions and mushrooms. In the course and conduct of this business, it annually ships goods and merchandise di- rectly from its Tiffin, Ohio, place of business to points and places located outside the State of Ohio which are valued in excess of $50,000. Accordingly, Respondent is an employer engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act. The United Steelworkers of America, AFL-CIO. is a labor organization within the meaning of Sec. 2(5) of the Act. 241 NLRB No. 42 76 FRY FOODS, INC. net. The 8(a)(4) allegation is addressed to the discharge of Rowena Gannon, the discharge and demotion of Mattie Taylor, and the discharge of Kay Fortney Tong. The 8(a)(5) allegation relates to an alteration of the composition of the bargaining unit to remove employees from the unit by promoting them to supervisory positions; a flat refusal on the part of Respondent to meet and discuss terms and conditions of employment with the certified bargaining agent; the unilateral reduction of the wages of employee Mattie Taylor; a refusal to furnish data relating to wage rates and employee classifications, insurance coverage, va- cations, and pregnancy leave until required to do so by the terms of a district court order in a temporary injunction proceeding; and the unilateral imposition of new and oner- ous working conditions without first bargaining about such changes. These changes include a written warning system and new time standards for the packing of onions. Respon- dent denies the allegations of independent 8(a)(l) conduct, the alleged 8(a)(2) conduct, states that Rowena Gannon was discharged for various nondiscriminatory causes, that other discriminatees were likewise terminated for cause. and that the 30 strikers discharged on or about April 20 were fired for picket line misconduct. Respondent main- tains that it has no duty to bargain with the Union because the representation election which the Union won was the product of unlawful interference in the form of organiza- tional activity by supervisors. Upon these contentions, the issues herein were drawn.3 The Unfair Labor Practices Alleged Respondent is a family owned and operated corporation which maintains a production plant in an industrial section of Tiffin, Ohio. The principal officer and director of the firm is Norman Fry, who takes an active role in the daily man- agement of the business. He is assisted by his son, Philip, and his daughter, Beverly. Respondent has about 80-100 employees, mostly women, who manufacture and ship raw and fried onion rings, mushrooms, and, on occasion, fried fish. The facility is made up of a number of different pro- duction lines which operate depending upon whether cus- tomer orders on file call for raw onion rings, fried onion rings, raw or fried mushrooms, or fish. The plant also con- tains a storage and a packing area. Employees are given a variety of assignments depending upon the item which is being produced on a particular shift. Respondent normally operates on a two-shift basis and has, on occasion, em- ployed a small third shift. Fry Foods, Inc., has been in business at its present loca- tion on Maule Road since 1968. Its premises extend about 400 feet along Maule Road and can be entered from the road at any point, except for a 50-75 foot portion in the middle of the property line, which is a grassy strip running from the plant office to the public right of way. The plant building is about 300-350 feet long. The rest of the premises consists of parking lots. Until the events took place which gave rise to his case, Respondent's production and maintenance employees were unrepresented. In December 1976, the Steelworkers began an organizing campaign which has been fiercely resisted. I The corrections in the transcript are hereby noted and corrected. The initial general organizing meeting was held by USWA Sub-District Director, Walter Sledz, on Sunday evening, December 19, 1976, in a garage on East Davis Street. The meeting and the meeting place were arranged by Rowena Gannon, a group leader whose status as a supervisor is in dispute in this case. Sledz explained to a number of Respon- dent's employees who attended this meeting the procedure for organizing a union and the filing of a representation petition. He also answered questions. A number of employ- ees signed cards on this occasion. On December 22, the USWA filed a representation petition. A hearing was held on this petition in mid-January. A Decision and Direction of Election was issued by the Regional Director on Febru- ary 9. Respondent learned of the December 19 meeting shortly after it took place. On the morning following the meeting, Day Shift Superintendent Jacci Franklin, an admitted su- pervisor, held a meeting with day-shift employees in the breakroom during the morning break. She told them that Norman Fry had heard that a union meeting had taken place and said that Fry would like to know who was for the Union. She asked everyone who was for the Union to stand up. Everyone in the breakroom stood up. Among those pre- sent were Doris Kubis and Rowena Gannon. Franklin then went on to say that Fry did not care whether or not the Union came into the plant because he would not negotiate with it if it did. She also said that Fry had lined up three potential buyers for the plant and would sell the plant if the Union did come in. These statements by Franklin are un- controverted. Later on in December or January, Franklin told Gannon privately that if Fry ever found out who brought the Union in, he would fire them. In January 1977, Gannon had a conversation with Fry about the organizing campaign. She told Fry that she was under the impression that Fry had been blaming her for bringing the Union into the plant. After pressing him for an answer, Fry said that there was a rumor going around that Gannon was the one who had been responsible for bringing the Union into the plant. She denied being the leader of the union drive. She then told Fry that, during an organizing campaign that had taken place some years before, she had been 100 percent against the Union but this time she would be 100 percent for it. Fry replied, "Blondie, the funny thing is that nobody is going to win." Gannon then stated, "We will see." Gannon also attended the R case hearing in Janu- ary and testified at the request of the USWA. On or about February 22, Fry and Plant Manager Wayne H. Fogelman held a meeting with certain employ- ees. At this meeting Fogelman did most of the talking. He told the employees that unions might be all right for a large plant, but Fry Foods was too small for one. He also said that just because a union came into the plant did not mean that employees would get a raise because they could not get blood out of a turnip. Fogelman urged employees to attend union meetings to get all the pros and cons. Early in February, Shirley Whipple went to a public ac- counting office in Tiffin owned by Dominic G. Rainieri to get her income tax forms prepared. Rainieri is a director of Respondent's corporation. In addition to discussing her taxes, she told Rainieri she was looking for a job. He asked her how she felt about unions and she replied she did not care one way or the other. He said he would try to help her 77 DECISIONS OF NATIONAL LABOR RELATIONS BOARD get a job at Fry Foods. Whipple told Rainieri she had been there in January, but they were not accepting applications until spring. Rainieri informed her that Fry was looking for workers who were antiunion. When she returned home, Whipple received a phone call from Norman Fry. They talked about the possibility of employment. She was invited to come to the plant to fill out an application blank. She was also told that she and her friend, Sharon, could also start work the following Monday. Shortly after this phone conversation, Whipple received another call, this time from Rainieri. Rainieri told her that any information she could supply the Company on the subject of union activity would be appreciated and it would mean extra money in her pay- check. She asked Rainieri how she should transmit any such information and was told that she could just write a note and drop it in the mail. Rainieri then told her that there were other employees in the plant who were doing the same thing. On February 23, at the request of Kay Fortney Tong,' five employees received permission from Franklin to take off work for the express purpose of going to nearby Fre- mont for the announced purpose of giving affidavits to a Board agent who was investigating the first of five charges filed in these consolidated cases. They were Rowena Gan- non, Doris Kubis, Youlanda Phelps, Mattie Taylor, and Kay Fortney Tong. On March 3, 1977, Respondent filed a charge against the USWA in Case 8-CB 3347, alleging that the Union herein had restrained and coerced the freedom of choice of Re- spondent's employees by using company supervisor, Ro- wena Gannon, to coerce employees into signing designation cards. The charge was dismissed the day before the election and did not serve to block the holding of the election. During March, Fry gave two or three speeches to com- pany employees concerning the election, which took place on March 18. In these speeches, Fry spoke from a prepared text and urged employees to reject the Union. He departed from the text time to time and answered questions which employees put to him. I credit the testimony of Kubis, Gan- non, and others to the effect that, in the course of one of these massed assembly speeches, Fry told employees that he did not care whether the Union got in or not because he would not negotiate with it. He also said that he would be in charge even if the Union came in, and that if it did come in he could close the plant doors. At one of Fry's massed assembly speeches, he also told employees that he had suf- fered a number of reverses in recent months, including a death in the family and a fire in June 1976 which destroyed a substantial portion of his plant. He asked employees to bear with him one more year and give him a chance to prove himself. He suggested that if, during that time, he had not improved working conditions, including more holidays and better pay, the employees could then vote a union in. He also asked the employees what it was that they wanted. Gannon spoke up and said that the employees wanted bet- ter pay, better working conditions, and wanted to be treated better than the "scum" that Fry was bringing into the plant off the street. She complained that Fry was treating new people better then he was treating the girls who had been working for him a long time. Gannon also asked Fry if he ' Tong is often referred to under her maiden name, Barbara Kay Fortney. would fire anyone he found responsible for bringing the union into the plant. Fry replied by directing his remarks personally to Gannon. He noted that she had worked at the plant for 9 years and stated that if she continued to work as well in the future as she had in the past. she had nothing to worry about. He added that he had only fired two people in the history of the Company-one for embezzlement and the other for stealing. As indicated before, the representation election was held on March 18, 1977. Employee Mattie Taylor served as the Union's observer. The Union won the election by a vote of 46 to 41. No objections to the conduct of the election were filed so the Regional Director issued a certification of repre- sentative on March 25, 1977. On April 4, 1977, Bob L. Kemp, USWA staff representative, sent a letter to fry in which he notified Fry that a bargaining committee for his employees had been chosen consisting of Doris Kubis as chairman and Rowena Gannon and Wilma Hoover as com- mitteepersons. In the letter, Kemp requested that Fry sup- ply the union certain specified information, including a se- niority list, a list of the classifications of employees with their rates of pay, information relating to coverage of em- ployees by various insurance policies, and a list of fringe benefits enjoyed by employees. He also requested a meeting between the Union and Fry concerning the information re- quested and stated that "'once we have met and secured this information, we can properly negotiate a contract. Please advise of the earliest date that we can meet." No meetings have ever taken place between Fry and any union represen- tatives concerning either collective bargaining or the re- quested information. None of the requested information was supplied to the Union until July 9, when Respondent was directed to comply with this request by the terms of a district court order. In fact, neither Fry nor anyone on his behalf made any reply to this letter until early in June. On April 5, Respondent discharged Gannon. On this date she was called into Fry's office to meet with Fry, Bev- erly Fry, Fogelman, and Franklin. Fry had a piece of paper in front of him and appeared to be reading from it to Gan- non. He told her that, for reasons beyond his control, he had to dismiss her. He then stated as his reasons that she left company premises on numerous occasions on union matters, had been late to work, and had slowed down pro- duction, whereupon she replied that Fry had not heard the last of her. Fry then gave Gannon 15 minutes to leave the premises. At the representation hearing which took place in Janu- ary 1977, Respondent contended that several group leaders then in its employ were supervisors within the meaning of the Act and should be excluded from voting in the election. The Regional Director concluded differently and no appeal to the Board was taken from his decision. The Regional Director based his decision on the testimony of three group leaders and one former group leader who appeared at the hearing to contradict the testimony of Plant Manager Wayne H. Fogelman. He found that group leaders, as they were constituted in January 1977, had no power to hire or fire employees, nor did they play any role in the promotion of employees. While group leaders sometime reported work violations to Franklin or Fogelman, it was left to higher management to institute disciplinary action, when war- ranted, at its own initiative and based upon its own investi- 78 FRY FOODS, INC. gation. The role of group leaders in the processing of griev- ances was merely that of a conduit of complaints from employees to company management. The Regional Direc- tor also found that the authority exercised by group leaders in shifting employees from job to job was minimal and rou- tine and was accomplished as directed by a production schedule. Moreover, the Regional Director was impressed by the fact that group leaders, while receiving a slightly higher hourly rate and greater life insurance coverage than regular production and maintenance employees, received no other fringe benefits setting them apart from rank and file employees. It also appeared that they spent most of their working day performing the same production line tasks which were assigned to admittedly nonsupervisory workers. The decision, dated February 9, 1977, spelled out all of these matters and the Regional Director's conclusions in great detail. Fry was disappointed by this decision and, immediately after the election, took steps to invest group leaders with greater indicia of supervisor authority. On April 11. Re- spondent promoted ten group leaders' to become salaried employees. Respondent also posted a notice to the effect that group leaders were not officially to be referred to as supervisors, although they still continued to perform rou- tine production line tasks as in the past.6 At this time, group leaders were specifically told that they had the power to issue written warnings slips, and, as events to be recited later indicate, they exercised this power with great liberal- ity. I credit the testimony of Terrie Haman to the effect that, under the new arrangement, supervisors did not con- sult quite so often with Jacci Franklin about small produc- tion-line decision as they previously had done. They also began to make assignments of employees from line to line as the need arose, whereas previously group leaders were limited in the reassignments they made to relocating em- ployees from place to place on a single line. There is no dispute in this case that the supervisors, in their newly cre- ated status, are in fact supervisors within the meaning of the Act. The dispute is whether Respondent's action on April 11 constituted an upgrading of positions or whether it was merely a restatement of existing powers and duties of group leaders. On Saturday, April 16, a meeting of Respondent's em- sThe 10 individuals involved in this wholesale upgrading were Naomi Hardesty, Nancy Musser, Wilma Hoover, Thelma Puffenberger, Fneda Beckley, Theresa Warnament, Dorothy Robinson. Terne Haman. and Linda Nitecki. Sometime thereafter, Glenda Smith was also made a salaned super- visor. 6 An unsigned memorandum on Fry Foods Stationery, taken from com- pany files which were subpoenaed at the heanng, contains some insight into the change which took place from group leader to supervisor that took place in April 1977. While Fry denied any knowledge of the document. the docu- ment recites matters concerning a fire in 1976 and tragic events "in my life in the last year." all of which make in quite clear that the memo originated with him. Before reciting in the memorandum both a cataolgue of powers on and duties to be exercised by supervisors and an outline of the organizational structure of the plant, Fry wrote: It appears to me that it is economically important for us to restructure our organization. It has simply grown too fast and we must catch up with the growth or we simply will not be in business. The organization plan has been considered and discussed by management over the past two years. We fully intended to implement such a plan before the fire but the tragic events in my life the last year made us postpone this implementation. ployees took place at the Fireside Restaurant in Tiffin. About 55 people attended. A discussion of recent events took place, particularly the failure of Respondent to reply to Kemp's letter of April 4 and the discharge of Gannon on April 5. The employees voted to go on strike to protest these events. The strike began in the morning of Monday. April 18. Some employees gathered at the plant around as early as midnight. At some point early in the morning of April 18, picket lines were established and picketing commenced with the use of "Unfair" signs. The strike lasted until June 10. About 4 o'clock' on this morning, two large delivery trucks arrived at the plant bearing loads of onions. These loads had been dispatched to Fry Foods from a broker in Henderson, Texas. Drivers Wilfred A. Burrows and Wil- liam McCoy, both employees of the East Texas Truck Rental Company, arrived about the same time and parked their trucks on Maule Road immediately in front of the plant, but on the opposite side of the road from the plant. McCoy's truck was parked in front of Burrows' truck facing north. A number of unidentified women were milling around and came up to the truck hollering "you can't un- load here." Fry came out of the plant, got in the cab of McCoy's truck, and spoke briefly with McCoy and Bur- rows. He told the drivers he wanted the onions unloaded the easiest and best way. Burrows returned to his truck. He informed one of the strikers that he had perishables on his truck, that they were valuable, and that he had to get them unloaded or else he would be financially responsible for their spoilage. He then got into his truck and made preparation to back the truck into the plant premises from the road. He testified that he looked in his rear-view mirrors and saw about 15 people. none of whom he could identify, standing along the oppo- site side of the road between the truck and the plant. They were holding hands in such a manner as to form a barrier between Burrows and the plant. Burrows decided that he would not attempt to back his truck into the plant and did not do so. McCoy testified that one unidentified striker threatened to lay down under the wheels of his truck if he attempted to back into the plant. McCoy and Burrows then decided to pull away and meet Fry at a location a few blocks from the plant. They did so. Both of them informed their principal in Texas by long-distance phone what had happened. Burrows was instructed to proceed to Cleveland and to deliver his onions to a different consignee. McCoy parked his truck temporarily in a municipal parking lot and returned to the plant later on in the same day, at which time he unloaded it in the plant storage area without inci- dent. The events relating to the attempted delivery of onions by two over-the- road truckdrivers on the morning of Apnl 18 are the subject of widely ary- ing accounts which disagree even as to the exact time when the trucks ar- rived and departed I conclude that the events in dispute tok place between 4 and 5 a.m. and believe that the most reliable testimony concerning certain matters which are controverted came from officer Denny McCormack of the Tiffin Police Department. Officer McCormack and another member of the Tiffin Police force were hired by Fry to work during their off-duty hours to guard the plant premises. They were present during the onion truck incident. McCormack's professional training as an observer and his point of view. being a witness not personally involved in the strike. together with his de- meanor on the stand impressed me that he was the person most likely to tell an accurate and unbiased story. 79 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Both trucks were in front of Fry's premises for an esti- mated twenty minutes. Both drivers testified that no striker made any threats to harm either them or their trucks and that no one caused any damage to their property. However, the presence of some strikers shouting and holding hands along the berm of the road in front of the plant convinced them not to attempt to unload during the early morning hours. McCormack testified that he heard people yelling when the onion trucks arrived and saw them running back and forth. It was McCormack who asked Fry to have the trucks moved since they were parked in the middle of Maule Road and would block other traffic which might approach. McCormack testified that he did not observe any human chain or long lines of employees standing shoulder to shoulder along the entrance to the plant. He further tes- tified that he did not observe any conduct on the part of strikers during the time the trucks were in the vicinity which would warrant the making of an arrest under the orders which he had been given by the chief of police, which were to avoid making an arrest unless he observed someone who threatened physical harm or observed a se- vere risk to persons or property. Neither during nor after the incident was he requested to make any arrests of any strikers and he made none. Two days later, Fry discharged the 30 discriminatees named in paragrpah 31 of the amended consolidated com- plaint for picket line misconduct. Of this number, there is no eyewitness testimony that 12 of them were at the picket line during the incident involving the delivery trucks.8 There is testimony that 6 of the 30 discriminatees named in paragraph 31 were at or near the plant premises during the incident. However, these six individuals 9 took the stand, de- nied that they were present at this time, and maintained that they did not arrive at the plant until later in the morn- ing after the trucks had driven away. I credit their denials. Mattie Taylor and Rowena Gannon admit that they were present when the onion delivery trucks drove up. As to the other II individuals named in the amended consolidated complaint, there is testimony that they were present at the time in question and they did not deny this testimony. Ac- cordingly, I conclude that they were present at the time of the incident." However, the testimony is inconclusive as to which, if any, of these persons was part of a human chain or line-up which prevented Burrows from backing his truck into the plant. The only picket identified by these drivers was Kathy Lawrence, a USWA organizer. An hour or so after the delivery trucks left the plant area some employees began arriving for work and other employ- ees began arriving for picket line duty. Employee Margaret Kessler drove her pickup truck through the picket line and, in the course of doing so, struck picket Youlanda Phelps on the hand and squarely hit picket Hank Conely, throwing him on the hood of the truck and then to the grond. A "This category includes Tina Shetzer, Rose Ridner, Mary Bodi, Linda Runion, Betty Reinhart, Rita Caldwell, Patricia Davis, Timothy Magers, Carol Lockard, Linda Firestone, Brends Taulbe, and Charlotte Lucius. 9 These individuals are Elizabeth Glick, Dories Kubis, Thelma Cameron, Barbara Fortney Tong, Mary Elchert, and Youlanda Phelps. l0 These individuals are Bonnie Schroen, Lynn Burlile, Barbara Bell, Mil- dred Zallner, Polly Endicott, Deborah Wellborn, Ethel Long, Wanda Depi- net, Carolyn Bloom, and Hank Conely. crowd gathered about Conely as he was lying on the ground. An ambulance was summoned and Conely was taken to a hospital." One of those who had gathered about Conely was Tong. She was walking across the parking lot in front of the plant from the point where Conely was lying to a point near the edge of the road when she observed a car approaching driven by Supervisor Nancy Musser. In the car were other employees and supervisors including Naomi Hardesty. As the Musser car came into the parking lot, Musser gave no warning and in fact increased her speed as she passed through the picket line. She struck Tong just inside the picket line and caused her to be thrown up on the hood in spread-eagle fashion. Tong was then thrown to the ground. Musser continued on without stopping or rendering assistance and drove her car around to the back of the plant where she parked. Tong was taken to a hospital and exam- ined. Apparently she suffered no serious harm, although this finding should not be taken a determination of the na- ture and extent of any injuries arising from the collision." On April 20, Fry also sent a letter to most of his employ- ees and supervisors in which he stated: It has come to the company's attention that some employees feel that Rowena Gannon was discharged because she engaged in union activities. This is not true. This company respects the right of our employees to engage in union activities and if any company offi- cial interferes with this right, and it is brought to our attention, that offical will be visited with harsh sanc- tions. Rowena Gannon was discharged because she par- ticipated in a slow down, resulting in a heavy mone- tary loss to the company. The company had no alter- native but to discharge her for this act of disloyalty and subversion On April 22, Fry sent another letter to employees. It read: As you know by this time, the Steelworkers' Union went out on strike at 10:00 p.m. last Sunday. We ob- tained an injunction from the Court stopping all vio- lent activities on the picket line. Also last week the company continued production and we intend this week to speed up production to the normal level. This week we are advertising in the Advertiser Trib- une for new employees, replacing those who are no longer with the company. If you are interested in re- turning to work, please contact this company immedi- " Respondent contends on its brief that a newspaper photo, taken later on in the day and depicting a striker using a baseball bat as a stick on which to carry a picket sign, was of Hank Conely (or Connolly). The picture depicts the striker, with back or side turned to photographer, in a running position. There is no evidence in the record identifying the picket in question as Hank Conely. I grant so much of the General Counsel's post-trial motion which seek to strike a portion of p. 76 of Respondent's brief relating to Conely, because the assertion in the brief as to Conely is unsupported by the record. 11 Musser did not testify, although she is still a supervisor at the plant. It should be noted that Tong has instituted a civil suit against both Respondent and Musser as a result of this incident. In assessing the attitude of Musser toward strikers generally, I credit the uncontradicted testimony of employee Julie Moon that, sometime in July, Musser was heard to say to Naomi Hardesty and others at the plant that she would like to "knock hell out of all the union girls and run them down the fryer." 80 FRY FOODS, INC. ately. If you wish we will pick you up and escort you to and from work. If you decide not to contact the company and return to work, we will have no recourse but to hire new re- placements. We ask you to make your own decision and not be influenced by any threats by the union or third parties. We guarantee a peaceful atmosphere. At or about this same time, Respondent instituted an across-the-board 10-cent-an-hour increase for all produc- tion and maintenance employees. The exact time this in- crease took effect is not clear. Two employees testified that they received it just before the strike began. A stipulation in the record indicates that the increase was instituted on April 22, just after the strike began. In any event, it took place after the Union was certified and did not come about as the result of collective bargaining between Respondent and the newly certified bargaining representative. Beginning late in April, Respondent began to hire new employees. It also temporarily contracted out some of its work. On June 10, the Union terminated the strike and made an unconditional written offer to Respondent on be- half of all strikers to return to work. On June 13 or 14, 11 strikers were reinstated.' On June 24, the Regional Direc- tor filed an application in the United States District Court for the Northern District of Ohio, sitting in Toledo, for a 10(j) injunction to be directed at various allegations of the amended complaint. A hearing on the petition took place on 3 days late in June and early in July 1977, before U.S. District Judge Don J. Young.' In an order dated July 8, Judge Young ordered Respondent to reinstate Rowena Gannon and the 30 employees who were discharged on April 20. Respondent was further ordered to provide the Union with the information it requested and to cease and desist from engaging in various activities in violation of Sec- tion 8(a)(l) of the Act. The district court did not order Respondent to commence active collective bargaining with the Union. The findings and opinion of the court, entered on July 12, contain, inter alia, the following observations: After offering evidence upon all matters in issue, the petitioner (the Regional Director) and the union rested their cases. The respondent and the union rested their cases. The respondent then moved for judgment in its favor and declined to go forward with the offering of any evidence, but rested after making a long argument which included the claim that it could have produced thirty witnesses who would have conclusively proven that there was no substance to any of the claims of the petitioner or the union with relation to any unfair la- bor practices on the part of the respondent. The Court should make it clear at the outset that it does not accept respondent's interpretation of either the evidence that was offered or the remarks or rulings of the Court. The closing argument of respondent's m3 Those reinstated at this time were Betsy Albaugh, Anita Dickson, Car- rol Drake, Mary Dyer, Mary McFemn, Nancy Price. Joan Stark. Shirley Shatzer, Diane Steinmetz, Evelyn Wellman. and Clara Wolfe. " The case is captioned Levine v. Fry Foods, Inc., Civil No. C-77--304, in the United States District Court for the Northern Distnct of Ohio. At this writing, the temporary injunction issued by Judge Young is being appealed by Respondent to the U.S. Court of Appeals for the Sixth circuit. counsel is so far from what the record shows that it almost seems as if he must have been in some other courtroom during the proceedings. Continuously throughout the hearing, respondent's counsel, after the Court had made rulings, would restate the Court's rul- ings in language that usually bore little resemblance to what the Court had said. The fact that the Court did not attempt to resolve these differences is not to be considered as indicating an agreement with counsel's statements. Norman Fry, the President of the respondent com- pany, was called by the petitioner for examination as a hostile witness under the Rules of Evidence. He was examined at considerable length on what formerly would have been called redirect examination by re- spondent's counsel. His testimony was so evasive and so in conflict with all the other evidence in the case as to be worthy of little or no credence. If the respon- dent's other thirty witnesses had been no better than Mr. Fry, their testimony would have been far from conclusive." On July 18, Respondent restored to duty pursuant to the injunction all the discriminatees who desired to return. About 25 came back to work. Between the time of the in- junction and the return of these employees, Respondent held a meeting among its supervisors, company counsel, and the employees who were working. Fry told these em- ployees that no union was coming into the plant and that employees would not have to pay dues. He said that no one should talk union in the plant and that no one would tell him how to run his plant. He also informed employees that they would have no permanent or fixed job assignments. Respondent's counsel informed employees at this meeting that the other strikers would be returning to work the fol- lowing Monday. He urged them to treat them like everyone else, but stated that as far as he was concerned, there would be no union at the plant for another 4 years. He added that he thought that the union had done a dumb thing by going to the Federal court in Toledo because the district judge at that court was not an expert in labor matters. He added that the judge was a liberal and that he was going to appeal his decision. I credit the testimony of Julie Moon to the effect that her supervisor, Naomi Hardesty, told her at or about this point in time to avoid speaking with the union people who were returning to work. Just before the strikers returned to work, Fry had an- other meeting with company supervisors. Two former su- pervisors, Terrie Haman and Glenda Smith, credibly testi- fied that Fry told them at this meeting that he wanted to get rid of the strikers and instructed his supervisors to harass them. He suggested that supervisors try to get returning strikers angry, start arguments with them, and incite them to curse at their supervisors. Strikers who returned to work on July 18 were, for the most part put back to work together on the onion line pur- suant to Fry's instructions. Fry stated that he did not want them to be mingling with nonstrikers. Those who had worked elsewhere before the strike did not resume their old positions. After July 18, all employees were faced with new m' Fry was no more persuasive his second time on the stand. 81 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work rules or a more stringent enforcement or implementa- which took place in July 1977. There was considerable un- tion of old work rules. Prior to the strike, female employees contradicted testimony that, before the posting in July were required to wear hairnets which were supposed to cov- 1977, employees and supervisors occasionally engaged in er all of their hair. It frequently occurred that an employee soliciting for a variety of purposes during working time let her bangs hang out under her hairnet. This was now without incurring any objection from Respondent's man- strictly forbidden, whereas previously the practice was tol- agement. Before the strike, employees occasionally used erated. Employees were now required to wear a different working time to take up collections for birthday presents, pair of shoes inside the plant than the shoes they wore to flowers for funerals, and the Heart Fund. Employees also work and were required to take off the shoes in which they sold Avon products and homemade stuffed animals. On oc- worked and put on their street shoes before leaving the casion, an employee would leave the plant to buy lunch for plant. It frequently occurred that some employees, espe- others and would take up a collection for the food that was cially the older and heavier ones, either leaned on the con- ordered. veyor from time to time or rested their feet on a bar be- Late in August, Respondent instituted the practice of giv- neath the conveyor belt. In fact, the bar in question had ing supervisors small spiral-ring notebooks in which they become bent, presumably as a result of weight being placed were instructed to jot down any occurrences which took upon it over time. Such acts were now strictly forbidden as place during the day. They were instructed to turn these a safety hazard and supervisors gave warning slips to em- books into the office at the end of the week. On the onion ployees when they observed this practice. Prior to the strike, line, manned largely by returning strikers, a daily report Respondent observed a rule of reasonableness concerning was made of such occurrences in addition to the notations talking among employees as they worked at a conveyor made in the supervisor's booklet. A large number of books belt. They could and did talk while working so long as their were compiled in this fashion. Certain of these notebooks, talking did not interrupt their work. After the strike, em- represented to contain examples of the kind of notes which ployees were strictly forbidden from talking to those em- supervisors were keeping, are in evidence. They document ployees who were standing directly across the conveyor belt the most insignificant trivial occurrences. Great attention is from them. One supervisor, Thelma Puffenberger, told the devoted in these notebooks to the names of employees who employees under her supervision that they were not allowed went to the toilet other than at normal breaktime, together to talk at all. Supervisor Wilma Hoover'6 told employee with the times they went and the number of minutes they Betsy Albaugh that she was not allowed to talk at all to were absent on such errands. Any conversations between returning striker Mildred Zallner. employees and supervisors which were other than the most In July 1977, Respondent requested his attorney to pre- prosaic and routine were recorded, along with bits of con- pare the text of a no-solicitation rule which was then posted versations which must have been most routine. Breakdowns in the plant. The rule which was posted read: on the line, transfers of employees from one line to the other, and similar information were also noted. One super- visor did some doodling on the front of her booklet and NO SOL.ICITATION AND NO DISTRIBUTION RULE noted in writing on the booklet that she was doodling just No employee or any other person shall be permitted to to impress upon the employees under her supervision that solicit or promote subscriptions, pledges, memberships, she was wasting time while they were working. or any other types of support or cooperation, individ- Early in the fall, Respondent began to make surreptitious uals, organizations or to collect money for work pur- time studies of the employees on the onion line who were poses on their working time. The distribution or circula- assigned to pack onions. At the end of the line, onion rings tion of leaflets, pamphlets or other literature is roll down the conveyor belt and are taken off in bunches considered promotion within the meaning of this para- and placed in 2-pound boxes. The boxes are then placed in graph and is not permitted except in non-working cartons. Supervisors were instructed to record the amount areas during non-working time. Anybody who does so of time it took employees to pack a 2-pound box of onions. and thereby interferes with his own work or the work At first, they used the wall clock for such timing. Later, of others will be discharged. they were issued stopwatches. The times in question were often entered in the booklets which the supervisors kept, Norman Fry and, as indicated hereinafter, some employees were given reprimands for packing too slowly. At first, no specific time President standard or target existed to measure the proper speed of a packer. About the middle of December, Fry, after consult- Fry contends that it always had a no-solicitation rule in ing with his supervisors, determined that 35 seconds was an effect at the plant and had, in fact, posted such a rule. He appropriate amount of time for packing a 2-pound box. was unable to produce a copy of the rule. Respondent does Thereafter, employees were notified that they would be not contend that the former rule had the same text as the held to this standard.' No discussion of the establishment above-quoted rule. Fry stated that the copy of the former of a packing standard or the appropriate length of time rule which was posted was burned in the fire of June 1976. which should be allocated to this operation was ever dis- No rule was posted between June 1976, and the posting cussed with the Union. 16 Hoover, an erstwhile union committee person. apparently suffered a change of heart. After the strikers returned to work, she told a group of employees in the lunchroom tha she would like to follow one of the strikers home, comer her, and run her own car into the side of the employee's car. 17 It should be noted that factors other than an employee's diligence and dexterity affect her speed in packing a box of onions. When onions run slow on the conveyor belt, there is not as much to pack so packing time increases. 82 FRY FOODS, INC. Perhaps the most noticeable change in working condi- tions which existed after the strike was the frequency with which supervisors gave out written warnings. Normally a third written warning resulted in a discharge, although this rule was not followed inflexibly. It is not disputed that, before the strike, written warnings were only given out by the plant superintendent, the assistant superintendent, or persons above them in Respondent's hierarchy. Group leaders did not give written warnings. After the strike, su- pervisors (who formerly were group leaders) issued written warnings with great frequency. It is also undisputed that the only infraction which drew reprimands before the strike was repeated and flagrant absenteeism. Almost without ex- ception, prestrike reprimands were never handed out for misconduct on the job. This policy changed radically after the strikers returned. The General Counsel adduced de- tailed evidence relating to the issuance of poststrike written reprimands, many of which formed the predicate for sus- pensions or discharges which the General Counsel contends were discriminatory. There is also evidence in the record that job assignments were made to returning strikers which were particularly onerous, especially in the case of some employees who possessed known physical infirmities that became aggravated by fumes, smoke, or other conditions existing in certain parts of the onion factory. When illness arising out of plant conditions was brought to the attention of management, Respondent was inflexible in accomodat- ing requests for reassignments, although before the strike it normally made allowance for allergies, personal reactions to onion fumes, or similar physical conditions when making job assignments. It is true that the entire plant smells of onions, but fumes are more pungent and pronounced in some sections than in other sections. The record is replete with specific instances which af- fected employees looked upon as acts of harassment of dis- crimination by Respondent. Kubis, the bargaining commit- tee chairman and a striker who was put back to work as a result of the district court order, testified that, in January 1978, she received a message at the plant to pick up her husband at his place of employment because he had be- come ill with a sudden attack of hypertension. She left the plant with permission, picked up her husband, and took him home. The next day she took him to the doctor and missed work on account of this errand. She phoned Re- spondent's office to report that she would not be coming in and asked what she should do to establish the fact that she was taking her husband to see a physician. She was told by the receptionist to bring in a doctor's certificate saying that she was with her husband in his office. When she returned to work, Kubis presented her supervi- sor, Glenda Smith, with such a certificate. Smith turned it over to the assistant superintendent, Franklin. Shortly thereafter, Franklin gave Kubis a written warning slip for an unexcused absence, telling her that Fry refused to accept the doctor's certificate. Kubis, an employee of Respondent for 7 years, testified that this was the first time Respondent ever refused to accept a doctor's certificate from her and the first time she had ever received a warning of any kind, ei- ther oral or written, for an unexcused absence. Youlanda Phelps was an active striker and the daughter of Gannon, whose termination on April 5 is here in issue. Phelps returned to work on July 18 pursuant to the District Court order. Shortly after her return to work, she was caught up in several confrontations with Supervisor Terrie Haman. On or about July 25, Phelps was accused by Ha- man of calling employee Margaret Kessler a scab. Haman gave her a warning slip for making this remark. Phelps de- nied making it. Haman told her that she really did not un- derstand what "scab" meant. Phelps replied that the federal judge (presumably Judge Young) said it referred to anyone who walked or drove through a picket line. Fry walked up during the conversation, and Phelps turned to him and added, "I guess that means you are a scab, too." Shortly thereafter, on another occasion, Phelps began to cough re- peatedly. Haman told her to shut up and start working, adding that if employees did not act like a "bunch of damned kids," they could get their work done. Phelps re- plied by calling Haman a "suck ass." For this remark she received a second warning slip and a 2-day suspension. Ear- ly in October, Supervisor Hardesty gave Phelps a written warning slip for working too slow and for letting good on- ions fall off the conveyor. This slip noted three instances during which Phelps was timed while packing onions. In the middle of October, Phelps received a third written warning slip and a 3-day suspension to go with it. While Phelps was speaking with Tong concerning a warning slip that Tong had received. Supervisor Musser came over and screamed at them to shut their "damned mouths" and work faster. Phelps told her to "stick it." One of the least desirable assignments, in the opinion of some employees, was the batter fried onion line. This line is located in a recessed or semienclosed section of the plant. Part of this operation involves frying breaded onions in deep fat as they come down the conveyor and then remov- ing them from the fryer to be cooled and packed. For var- ious reasons including overheating, the fryer often smokes up the entire area with hot grease fumes which become mixed with the scent of onions that permeates the entire plant. Returning striker Mary McFerrin' 8 worked on the so- called garbage line before the strike and rarely worked the batter fried line because management knew she could not stand the smoke. On the garbage line, broken onion rings and other scraps unsuitable for packing are removed by hand from the conveyor. When McFerrin returned from the strike, she was regularly and frequently placed on the batter fried onion line, a job that was generally reserved for returning strikers. On several occasions she was overcome by the smoke on this line and was sent home. She consulted a doctor about her reaction to the smoke, and he advised her to quit her job. However, she declined to do so. McFer- rin also testified that, on one occasion in the middle of July, Supervisor Puffenberger gave her a written warning slip for talking with Shirley Shatzer. Returning striker Tong received several written warnings during the summer and fall of 1977 and was terminated on December 5, 1977. On October 6, Tong was given a written warning by Supervisor Smith for taking too long to pack onions. She was timed at 60, 52, and 60 seconds, respec- tively, packing for three different boxes. When asked by Smith to sign the warning slip, she simply wrote on the slip: 'a McFerrin was one of the strikers who was voluntanly offered reinstate- ment on or about June 14. 83 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Shove it up your scabby nose." A few minutes later, Smith gave Tong a second warning slip for calling a supervisor a scab. Tong wrote on this slip: "You can still stick it up your scabby nose." On October 10, she was timed at 1 minute, 1- 1/2 minutes, and I minute, respectively, in packing three boxes of onions and was given another warning slip and a 3-day suspension. On November 22, Puffenberger gave Tong a warning slip for taking one minute to pack a box of onions. On this slip Tong wrote, "Cram it, scab." Some time before Tong was discharged, Smith was heard to say to a group of employees, "We have Kay down. We have only a couple of more to go." Hardesty, who was present, laughed at this statement. On December 5, Tong was given a final warning slip for taking 59, 60, and 61 seconds, re- spectively, to pack a box of onions and was told she was terminated for this reason. Mattie Taylor, who started working for Respondent in 1970, was promoted to group leader in 1974 in charge of the mushroom or extruded onion lines. For this promotion she received a 20-cent or 30-cent-an-hour raise. On one occa- sion in 1975, Fry saw that she had become very red in the face while working on the extruded onion line so he took her off the line and transferred her to the processing room where onion fumes are at a minimum. While this transfer meant that she was no longer a group leader, she received no reduction in pay and continued to work at this location. Taylor attended the R case hearing in January 1977, and testified in support of the Union's contention that group leaders were not supervisors. At the same hearing, Beverly Fry, testifying in support of the Employer's position that group leaders were in fact supervisors, stated in the course of her testimony that Taylor was not a group leader but was a regular production worker. A week or so later, Taylor questioned Beverly Fry concerning her statement and was told that she had been demoted from the position of group leader to production worker at the request of Union Repre- sentative Sledz so that she could vote in the forthcoming election. Sledz credibly denied making this statement and Beverly Fry did not testify at all. Taylor served as the Union's observer at the election. Shortly after the election, but before the strike, she was informed that she was receiv- ing a belated reduction in pay which went with her demo- tion from group leader to production worker. As a result, she lost 35 cents an hour in wages, beginning April 8. The Union was not consulted about this reduction. Before the strike, Taylor rarely worked on the so-called garbage line because the sharp odor of freshly cut onions in the vicinity of the garbage line made her sick and occasion- ally made her vomit. After she returned from the strike under the court order, she was frequently required to work the garbage line and to bend over the freshly cut onions for 2 hours at a time. Occasionally this assignment caused her to vomit. On September 20, 1977, she complained to Fry about the assignment and the effect it had on her. Fry's reply was that nothing could be done about it, adding that the girls got themselves into this problem and they would have to work themselves out of it. He also told her that he would not accept a doctor's slip which limited her duty to jobs other than the garbage line, and that if she presented one to him he would fire her. Her reply was that she would stand over the conveyor on the garbage line until she fell over because she would not give him an excuse for firing her. Taylor is middle aged and quite heavy. In times past, it was her practice on occasion to lean on the conveyor to support her weight or to place one of her feet on the bottom rung to relieve the weight on her leg. On occasion, when she was working the mushroom line, she would pack while sit- ting down. She was not permitted to continue this practice after returning from the strike. On occasion, supervisors would follow her and watch her when she went to the bath- room. On July 26 she received a written warning slip from Supervisor Haman for packing onions with one hand. On October 13, she received a second written warning slip for slowness in packing onions. On February 8, 1978, she re- ceived another warning slip, this time from Franklin, for taking too long to pack onions. On this occasion, she also was given a 3-day suspension. Gannon returned to work under the district court order along with most of the 30 employees who were discharged on April 20. She was offered a salaried position when she returned on the same level as that of Franklin. She declined the offer and began to work as a production worker. She was rotated from job to job. On August 2, she received a warning from Smith for taking packed boxes of onions off the end of the conveyor and setting them down, and for shoving onions off the conveyor. Gannon refused to sign the warning slip that was presented to her. She denied to Smith that she had done what was written on the warning slips. On August 23, she received a second warning slip, this time from Hardesty, for pulling onions off the line onto trays when they were coming too fast to be boxed. She protested this warning slip and complained to Franklin that it was a frameup. Haman told her to shut her mouth and Gannon replied in kind. Gannon received a 3-day suspen- sion as a result of this warning. On October 11, when Ha- man had given Tong a warning slip, Tong and Gannon were discussing the matter. Musser arrived on the scene and told them to shut their "damn mouths" and pack onions. Gannon replied in kind and was given a written warning for telling a supervisor to shut up. However, she was not discharged. Thelma Cameron had been employed by Respondent for about 6 years. She worked in the backroom and was mak- ing $2.85 per hour when she was injured on February 26.19 She did not work between that date and the strike and participated in the strike. In April, she was notified in writ- ing that she was being fired for picket line misconduct. She was restored to duty by the district court order and re- turned to work on July 18. When she came back, she had a doctor's slip stating "limited duty" and gave it to Respon- dent. She was under instructions from her physician not to lift anything in excess of 25 pounds. In her former position, she was called upon from time to time to lift 50-pound bags of onions. When she came back to work, she was placed on the onion line at a wage of $2.65 per hour. When she ques- t9 Cameron testified that, in 1974, she was given a 30-cent-per-hour in- crease and made a group leader on the onion line. About 2 weeks later, she was asked to return to the backroom as a production worker and she agreed to do so if she did not receive a cut in pay. From that time until July 18, 1977, she received, for her services as a production worker, a rate which was the equivalent of what most group leaders were being paid. 84 FRY FOODS, INC. tioned Fry as to why she received a cut in pay, he said that it was because she could no longer do the same job for which she had received a higher rate. Shortly after she returned to work, Cameron was given a reprimand by Hardesty for throwing good onions rings on the floor. On November 9, Supervisor Smith gave her a written reprimand for taking 51 seconds to pack a box of onions. On December 17, she was given another written warning for packing too slowly. Between July 6 and October 13, Carrol Drake, who re- turned to work on June 14, received three warning slips. The infractions noted were a failure to call in when being absent, taking 52 seconds to pack a box of onions, and again slowness in packing. She had never received a written warning before the strike. She testified that, before the strike, she was assigned to work the batter fried onion line perhaps twice a week and about 2 hours per assignment. After the strike, it frequently occurred that she worked that line 6 consecutive hours without rotation. Other returning strikers testified without contradiction to the same effect. She complained that the area where the line was located was frequently very disagreeable because the onion fumes became mixed with the smoke from hot grease. Eventually she quit her job. Charlotte Lucius began working for Respondent in 1974. She was discharged on April 20 for alleged picket line mis- conduct and returned to work on July 18 pursuant to the district court order. In the next 3 months she received three written warning slips. Late in August, Hardesty gave her one for lateness and absenteeism. She asserted that she was late to work because of difficult driving conditions brought on by fog. In September, Smith gave her one for 3 days' absence, and, in October, gave her another warning slip with a 3-day suspension for not making an attempt to take onions off the conveyor before they fell on the floor. In November, she quit. Shirley Shatzer was a striker who was offered and ac- cepted reinstatement on June 14. Before the strike, she worked mostly on the mushroom line and worked only oc- casionally on the batter fried onion line. She was frequently assigned to the batter fried line and became bothered by the smoke and fumes. After suffering a fit of coughing on the line, she asked Musser why employees on the batter fried onion line were not allowed to change off with other em- ployees. Musser's reply was that this was a new rule. Shat- zer consulted a doctor concerning the smoke fumes and their effect on her. The doctor gave her a slip indicating that she should not be assigned to work in the vicinity of the smoke. When she presented it to Franklin, Franklin simply told her that there was no way that she could be transferred to another job. Shatzer stayed on until she got her vacation and then quit. Susan Neikirk began working for Respondent in 1972. In January 1977, she took a leave of absence to undergo sur- gery. She was under the care of two physicians, Dr. Lahy in Tiffin and Dr. Schecter in Toledo. On April 11, Dr. Lahy gave her a release to return to work. On April 13, Dr. Schecter gave her a similar release, but she did not receive it in the mail until after the strike began. She did not attempt to return to work before the strike. She engaged in the strike and took part in the picket line. just before the strike ended Neikirk attempted to return to work. Respondent thereafter sent Neikirk a letter dated June 21 which said that "This is to inform you that we accept your resignation." In fact, Neikirk had not resigned. She went to the plant to inquire about the meaning of the letter. She objected to the lan- guage in the letter, protesting that she had not resigned. Beverly Fry told her that she was being treated as if she resigned because she had not returned to work after receiv- ing Dr. Lahy's April 11 release. She asked to go to work, but her request was declined. Wanda Depinet started to work for Respondent in Janu- ary 1977, and spent most of her time before the strike cut- ting mushrooms on the mushroom line. She went on strike, was discharged on April 20. and returned to work on Jul 18 under the district court order. She was frequently criti- cized by Supervisor Puffenberger for not cutting mush- rooms fast enough and in a proper manner. On one such occasion, Depinet told Puffenberger to shut her '"gd mouth and get the hell out" of there. On November II11. Puffen- berger suspended Depinet for 3 days. on which occasion Depinet told Puffenberger to take her warning slip and "shove it." On December 22, Smith gave Depinet a third and final warning slip and terminated her tiar taking 51, 50. and 57 seconds, respectively, to pack boxes of onions. Mary Jane Bodi began working for Respondent in 1973. Before the strike, she packed fish on the fish line. She was discharged by Respondent on April 20. She was reinstated pursuant to the district court order. When she returned from the strike, the Company had discontinued packing fish so Bodi was put to work on the onion line sorting freshly cut raw onions. On Tuesday of the week she went back to work, she had to go home because of illness induced by onion fumes. Later on that week she went to a doctor and got a shot for chronic asthma. When she returned to work she again became sick because of the onion fumes and went back to the doctor. He said that if she did not improve he would send her to a specialist. Eventually her physician told her not to go back to work and referred her to Dr. Hutchin- son, a specialist. The latter told her she had a growth in her nose and also said that she was allergic to raw onions. He wrote this diagnosis on a slip along with a request or sug- gestion that she be kept away from raw onions while on the job. Bodi went back to the plant after being off because of this ailment and presented this slip to Beverly Fry. Fry told her that she thought she had quit and asked her if she had received a letter from the Company concerning her status. Bodi then went to talk with Norman Fry, who asked her why she let this doctor restrict her so much. Bodi replied that the doctor simply did not want her to come into con- tact with onions. Fry replied that everyone in the packing room comes in contact with onions and told her that he had no work on the fish line because it was discontinued. Two days later, Bodi got a letter saying that the Company ac- cepted her resignation. In fact she had not resigned. The Company stated that it had a 3-day rule, according to which a person is deemed to be a quit if she is off for that period of time without notifying the Company. Tina Shetzer returned to the plant after the strike. When she returned, she was pregnant and the smell of the onions made her dizzy. Moreover, the passing of the conveyor belt over a shiny backdrop made her ill. She was assigned to work the garbage line. She consulted a doctor and obtained a medical slip describing her condition which she presented 85 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Supervisor Carol Handley. The slip stated that there was a medical basis to explain "a vertigeas functional reaction in relation to visual stimulus of motion of the garbage line conveyor belt." It also said that a less exposed and shorter time on a conveyor line would not have the same effect. Handley took the slip into the office and, upon her return to the plant, told Shetzer that she would have to leave the plant because the medical slip was unacceptable. Shetzer went to see the doctor a second time and got a second medical slip dated September I, which is in evidence. The second slip indicated that Shetzer was "not able for medical reasons to work on shiny conveyor belt. Only job she is clearly disabled on." When she brought the second note to the plant, Handley gave it to Philip Fry. She returned and told Shetzer that the note was still not acceptable and that, to be acceptable, it had to have "no restrictions" written on it. Shetzer testified that she did not know whether she could have filled any job on the onion line because of the adverse physical reaction which it brough about. C. Analysis and Conclusions 1. The relitigation question A legal question which runs like a common thread through various aspects of this case is the extent to which I may or must defer to determinations made in a related, but unconsolidated representation case, and the extent to which I may or must preclude Respondent in this case from liti- gating issues which it either lost or failed to take up at an earlier stage in this dispute. Two regulations of the Board are principally at issue, one of which states that an em- ployer involved in a representation case must file timely objections to the conduct of an election or be barred there- after from raising such matters.?0 The other states that an employer who fails to appeal to the Board from an adverse determination of the Regional Director in a representation case is precluded from litigating the same question in a subsequent unfair labor practice case.?' The two issues are similar in character, but are not quite the same. 20 Sec. 102.69 of' the Board's Rules and Regulations provides as follows: Election procedure: tally of ballots; objections; certification by re- gional director: report on challenged ballots; report on objections; ex- ceptions: action of the Board; hearing.-(a) ... Within 5 days after the tally of ballots has been furnished, any party may file with the regional director an original and three copies of objections to the conduct of the election or conduct affecting the results of the election, which shall con- tain a short statement of the reasons therefor. Such filing must be timel3 whether or not the challenged ballots are sufficient in number to affect the results of the election. copies of such objections shall immediately be served on the other parties by the party filing them, and a statement of service shall be made. The party filing objections shall, upon request, promptly furnish to the regional director the evidence available to it to support the objections. (b) If no objections are filed within the time set forth above ... the regional director shall forthwith issue to the parties a certification of the results of the election, including certification of representatives where appropriate with the same force and effect as if issued by the Board, and the proceeding will thereupon be closed. [Emphasis supplied.l 2 Sec. 102.67(f) of the Board's Rules and Regulations provides as follows: The parties may, at any time, waive their nght to request review. Fail- ure to request review shall preclude such parties from relitigating, in any realted subsequent unfair labor practice proceeding, any issue which was, or could have been, raised in the representation proceeding. Denial of a request for review shall constitute an affirmance of the regional director's action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding. In attacking the Union's status as a bargaining represent- ative, Respondent has cited a number of cases in which supervisory solicitation of union cards served to taint the cards with an element of coercion so as to render them invalid as a basis for establishing the identity of the bar- gaining representative. These cases are all wholly inappo- site to this case because the standing of the Union as bar- gaining representative herein is not based upon designation cards, but upon a certification issued by the Regional Di- rector following the holding of a representation election among Respondent's employees. Respondent did not chal- lenge the sufficiency of the 30 percent showing of interest which the Union filed with the Regional Director in De- cember 1976 to establish the basis of the Regional Direc- tor's right to hold the election. Indeed, had the employer levelled such a challenge at the showing of interest, either because the solicitation of cards was tainted by supervisory coercion or for any other reason, the Regional Director's determination would be unreviewable in subsequent litiga- tion. N.L.R.B. v. P.A.F. Equipment Co., Inc., 528 F.2d 286 (10th Cir. 1976). In this case, no such complaint was made when the representation petition was filed or when the elec- tion was held. Nor did Respondent file timely objections within 5 days of the March 18 election, claiming that supervisory coer- cion affected the outcome of the election. Normally, the failure to file such objections, as required by the Board's Rules, precludes a Respondent from litigating the question in a subsequent proceeding. N.L.R.B. v. Conlon Bros. Mfg. Co., 187 F.2d. 329 (7th Cir. 1951). In the present case, Re- spondent filed no such objections so the Regional Director had no opportunity to pass upon their merits before issuing a certification. Hence, there was not even sufficient compli- ance with the Rules to bring into play the rule followed by the Sixth Circuit in Keco Industries, Inc., v. N.L.R.B., 458 F.2d. 1356 (6th Cir. 1972)., which held that the failure of an employer to appeal to the Board a Regional Director's ad- verse determination of objections to the conduct of an elec- tion precludes a review of those objections in a subsequent unfair labor practice case. Respondent in this case seeks to excuse its failure to exhaust these well-recognized and com- monplace administrative remedies because, in its judgment, it would have been futile to do so. Indeed, in light of well- settled law having a contrary import, it is futile for a re- spondent to fail to do so and then attempt to obtain relief in some other proceeding. In any event, it had no right to presume that timely objections would not be properly con- sidered and no right to foreclose the Regional Director and the Board from performing the basic functions assigned to them by statute and regulation in representation cases. Re- spondent did file against the Union herein an 8(b)(1)(A) charge, claiming that its own supervisors were intimidating and coercing employees. The charge was filed about 2 weeks before the date on which the election was scheduled to take place. Unless quickly resolved, the pendency of this charge would have had the effect of preventing the election from taking place. Respondent failed to present to the Di- rector sufficient evidence to warrant the issuance of a com- plaint, so the charge was dismissed and the election pro- ceeded in due course. The charge filed at that time involves essentially the same allegations which Respondent wished 86 FRY FOODS. INC. to pursue in this proceeding. Respondent claims that it was newly discovered evidence, but it makes no showing as to why such evidence, all of it involving preelection conduct, was not available when the filing of objections was timely or why, with due diligence, such evidence could not have been uncovered. It apparently had evidence to file an 8(b)(I)(A) charge. There is no excuse for not filing it in the representation case if it was authentic or relevant. The re- quirement for showing that evidence could not have been discovered with the exercise of due diligence is the standard to be applied when a claim of newly discovered evidence is raised, and it is the standard which Respondent has simply failed to meet in this case. Dock Builders, Shorers. House Movers, Pile Drivers and Foundation Workers, Local Union No. 1456, United Brotherhood of Carpenters and Joiners of America, AFL-CIO v. N.L.R.B., 505 F.2d. 310 (D.C. Cir. 1974); Heritage Nursing Center, Inc., 207 N.L.R.B. 826 (1973); Union Electric Company, 219 NLRB 1081 (1975): Knapp-Sherill Company, 201 NLRB 223 (1973). In light of these omissions, Respondent cannot be heard to say in this proceeding that the certification of the Union which the Regional Director made on March 25. 1977. is invalid, and any evidence proffered for that purpose is immaterial to any issue properly litigable in this proceeding. Accordingly, the Union herein must be deemed to be the duly certified bargaining agent of all of Respondent's production and maintenance employees on and after March 25. 1977. The General Counsel objected at the hearing to a rede- termination of the supervisory status of Rowena Gannon or any of the group supervisors whose status was in issue in the representation case. These questions were litigated in that proceeding and the Regional Director, in his decision dated February 9, 1977, concluded that group leaders were not supervisors and permitted them to vote in the March 18 election. While Gannon's status was not individually ad- dressed in that decision, it was implicitly covered by the finding as to the group to which she belonged. Respondent herein did not appeal that determination to the Board in the course of the representation proceeding. as required by the Board's Rules and Regulations. so the General Counsel urges that it is now barred from relitigating supervisory questions in this case. Both the Board and some courts have taken a different position with respect to relitigating matters in a complaint case which bear upon certification of the bargaining agent than they follow with respect to relitigating question which must be resolved in determining violations of other sections of the Act. The District of Columbia Circuit set forth the rationale behind permitting relitigation of supervisory is- sues bearing upon an 8(a)(1) allegation in Amalgamated Clothing Workers of America,, FL-CIO Sagalmore Shirt CompanY v. N.L.R.B., 365 F.2d 898, 904 (1966): In our opinion, the Board's rule against relitigation "in a subsequent unfair labor practice proceeding" does not give an employer sufficient notice that his fil- ure to pursue all of his remedies in the representation proceeding means he will be disabled, regardless of the context of the subsequent proceeding, from challeng- ing each and every issue "which was, or could have been, raised in the representation proceeding." A more natural reading of the rule, in the absence of express provision to the contrary, is one which precludes relit- igation only in a "related" subsequent unfair labor practice proceeding, construed in accordance with the doctrine announced in Niederriter a few months prior to the new regulation. Where a company is charged with refusal to bargain with a union certified after elec- tion, the proceeding is sufficiently "related" to the rep- resentation proceeding to preclude relitigation of such common issues as the scope of the appropriate unit and employees therein. Where. however, as in this case, the part of the charge involved in the relitigation issue is not refusal to bargain, but rather interference with rights of organization, the proceedings are not so related as to foreclose presentation to the Board of the underlying issues. The Board recently followed this rationale in Scrv-l.-Storcls, Inc., 234 NLRB 1143 (1978), and permitted the relitigation of a supervisory issue in a subsequent complaint case. Therefore, I have done so in this case and will proceed to determine the supervisory issue herein, according the deci- sion of the Regional irector a "persuasive relevance, a kind of administrative comity." 2. The supervisory status of group leaders before April I 1 and the status of Rowena Gannon In the Regional Director's decision in Case 8 R(' 10738, the Regional Director credited the testimony of three of Respondent's employees who testified that group leaders did not exercise the power to discipline employees and to recommend their discharge or promotion. The credited tes- timony in the record of this case is to the same effect. T'he Regional Director further found that group leaders plaxed no role in the hiring, discharging, or promoting of employ- ees, and that any complaints voiced by group leaders con- cerning the violation by employees of the Compan's work rules were the subject of independent investigation by ad- mitted supervisors (presumably Franklin). In the matter of grievances, group leaders acted only as conduits of com- plaints voiced by employees to Respondent's management. Until the promotion of group leaders to salaried supervi- sory status, group leaders could transfer or rotate employ- ees from one position on the particular assembl 3 line cohere they worked to another position. After the promotion. thex transferred employees from line to line as the need arose. Group leaders were hourly rated and received from 20 cents to 40 cents per hour more than rank-and-file emplo3- ees. Of great significance is the fact that group leaders did manual work on the assembly line along with admittedly unit employees and spent most of their workino daxs in such effort. In its brief in this case, Respondent argues that a finding that group leaders were not supervisors would mean that Respondent would have been left with a distorted ratio of supervisors to employees in violation of canons of good management and a number of Board precedents cited therein. The record does not contain a precise breakdown between the day and night shift. It does reflect that. on both shifts, the daily complement of employees varied widely with the supply of onions and mushrooms and the number of orders to be filled. On the night shift Carole H-lndell was 87 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in charge of the operation. On the day shift, Respondent had at least four admitted supervisors: Jacci Franklin, Bev- erly Fry, Wayne Fogelman, and Norman Fry himself. Fry testified that he was frequently in the plant and had worked on the assembly line himself on occasion. This number, in and of itself; was sufficient to avoid the extreme proportions found in the cases cited in Respondent's brief, especially in a unit such as this one which is composed of unskilled em- ployees performing routine assembly-line functions. The fact that group leaders spent most of their time doing bar- gaining unit work indicates clearly that there was no lack of supervisory oversight sufficient to warrant a finding of su- pervisory status based upon that factor alone. Accordingly, I conclude that before April II, group leaders were, as found by the Regional Director. employees within the meaning of the Act. Westlake United Corporation, 236 NLRB 1114 (1978). On April 11, Respondent posted a notice to the effect that several named individuals were being made supervi- sors. In the notice, they were held out to other employees as being supervisors. This promotion resulted in changing them from hourly rated to salaried employees who were then entitled to enjoy some additional insurance benefits. The individuals in question began to attend supervisory meetings and were given the right to issue written repri- mands to employees for job infractions, something which group leaders never did. Respondent's President Fry testi- fied that he made these changes in order to insure that the class of persons in question were supervisors and not unit employees, as found by the Regional Director. Accordingly, I conclude that the persons so designated by Respondent as supervisors do in fact meet the statutory criteria set forth in Section 2(1 1) of the Act. Before her discharge on April 5, Rowena Gannon served as a group leader on the onion line. Two other group lead- ers were in some respects subordinate to her. Gannon re- ported directly to Franklin. Gannon was essentially a "pusher" who worked on the onion line as well as giving routine directions to others concerning its operation. With scant exception. her duties fell within the description of a group leader's duties as set forth above. On one occasion, when Jacci Franklin was forced to be absent because of her father's death, Gannon filled in for Franklin and, during that period of time, exercised plainly supervisory functions. When Flanklin returned to work, Gannon resumed her for- mer duties and functions. The record is unclear as to when this took place or the length of time she substituted for Franklin. It is apparent that Franklin was off for a rela- tively short period on this occasion and that the assumption of her duties by Gannon took place only once. It was dur- ing this period that Gannon initialed timecards of tardy employees and then only for the purpose of verifying their presence in the plant, not for the purpose of excusing their lateness. While, under some circumstances, a recurring practice of elevating a unit employee to a supervisory post when the supervisor is absent has been held to vest the employee with indicia of supervisory authority which per- sists when he or she returns to the bargaining unit, a single instance of exercising supervisory responsibility during an absence for a reason not likely to occur again is normally not sufficient to warrant the conclusion that the employee in question is a supervisor. Olka-lnn d/bla Holiday Inn of Henryetta, 198 NLRB 410 (1972). In light of these consider- ations, I conclude that Rowena Gannon was not a supervi- sor and was entitled to the protection of the Act prior to and at the time of her discharge on April 5,22 3. The mass upgrading of unit employees on April 11 It has long been held that the subcontracting of bargain- ing unit work to persons or concerns outside the bargaining unit, without notification to the bargaining agent and af- fording the bargaining agent an opportunity to negotiate concerning this decision is a violation of the Act because it amounts to unilateral action, taken in derrogation of the Union's status as bargaining agent, which adversely affects the availability of work and the bargaining position of rep- resented employees. Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203 (1964). One refinement growing out of the Fibreboard decision is that a unilateral promotion of bargaining unit employees to supervisory positions, without bargaining with the Union concerning the change, has been held to violate Section 8(a)(5) of the Act even though sub- contracting is not involved where newly created supervisors continue to perform unit work because such a change also has the effect of eliminating bargaining unit positions and transferring unit work to nonunit employees. Oil, Chemical, and Atomic Workers International Union, AFL-CIO [Kan- sas Refined Helium Company] v. N.L.R.B., 547 F.2d 575 (C.A.D.C. 1977); Tesoro Petroleum Corporation, 192 NLRB 354 (1971); Kendall College, 228 NLRB 1083 (1977). This is not to say that an employer is inhibited by the Act in his selection of individuals for supervisory positions. It is to say that the reclassification of a position from a bargaining unit job to a nonunit job is a mandatory subject of collective bargaining if the reclassification has an impact on bargain- ing unit work. Here the impact is quite clear because the new supervisors in question continued to do assembly-line work. In the instant case the mass promotions which took place on April II (and thereafter in the case of Glenda Smith) transformed 10 bargaining-unit jobs into nonunit jobs by investing the incumbents in those positions with sufficient status to make them supervisors. Fry candidly testified that he invested them with supervisory authority to insure that they would not be unit employees, as the Regional Director had found them to be in his Decision and Direction of Election. In a memo contained in Respondent's file, Fry wrote that it is "economically important for us to restruc- ture our organization." There is no suggestion that Respon- dent bargained, or even offered to bargain, about this or any other change which it effected in the plant after the Union was certified. Accordingly, I conclude that, by uni- laterally promoting a class of group leaders to the positions of supervisor, thereby transferring unit work from repre- sented employees to nonunit employees, Respondent herein violated Section 8(a)(l) and (5) of the Act. 12 When Gannon returned to work on July 18 pursuant to an order of the district court, she accepted a bargaining unit position and has retained a unit position since that time. 88 FRY FOODS, INC. 4. The discharge of Rowena Gannon There is little doubt that Rowena Gannon was one of the Union's principal in-house proponents and that Respon- dent knew it. It so stated in the 8(b)(1)(A) charge which Respondent filed against the Union on or about March 4. She arranged for the first union meeting which took place December 19. When, on the following day. Franklin asked day-shift employees to indicate their union sentiments by standing up, Gannon was among those who stood up. Franklin later told Gannon that if Fry ever found out who brought the union into the plant, he would fire the individ- ual. In a conversation with Fry which took place about a month later, Fry admitted to her that she was rumored to be the one who brought the Union into the plant. At this time she told Fry that she was 100 percent for the Union even though she opposed an organizing campaign which had taken place at a previous time. Fry told her, "Blondie, the funny thing is that nobody is going to win." Gannon attended the representation case hearing on behalf of the Union. It also came to Respondent's attention early in Feb- ruary that Gannon was going to Fremont to give a state- ment to a Board agent. During the couse of a preelection speech which Fry gave to employees in early or mid-March. Gannon again exhib- ited her union sentiments by answering a question Fry posed to employees asking what they wanted that prompted them to seek union support. Her reply was that employees were tired of being treated worse than the "scum" that Fry was hiring off the street. During another massed assembly speech, Gannon asked Fry if he would fire anyone he found responsible for bringing the Union into the plant. While the question was a general one, the answer was not. Fry told her in front of all of the employees who had gathered to listen to him that Gannon had worked at the plant for 9 years, had worked well, and if she continued to work as well as she had in the past, she had nothing to worry about. The election took place on March 18 and the Union was certified on March 25. As noted above, the Union wrote to Respondent on April 4 a preliminary letter requesting infor- mation designed to assist it in the preparation of bargaining demands. In this letter, Gannon was named as one of three employees who had been selected to serve on the in-plant bargaining committee. On April 5, Gannon was discharged. Her discharge was personally accomplished by Fry who called her into a meeting in his office with three other super- visors. Reading from a paper which he had prepared, Fry told Gannon she was being discharged "for reasons beyond his control." The reasons asserted were the fact she left company premises on numerous occasions on union busi- ness, had been late to work, and had slowed production. At the conclusion of his remarks, Gannon replied that Fry had not heard the last of her. There were only two occasions in the record when Gan- non ever left the company premises on union business. In January 1977, she attended the R case hearing. In Febru- ary, she sought and obtained permission to leave in order to meet with a Board agent who was taking statements in a C case investigation. The record is silent as to whether she was formally excused from work to attend the R case hear- ing. In any event, she had a right under the Act to attend and to testify at this hearing, and Respondent is forbidden by law from preventing her from attending. There is no substantial evidence in the record that she had been coming late to work. Respondent's main thrust in this proceeding was to contend that she was in fact discharged for partici- pating in and directing a production slowdown during the first 3 months of 1977. I regard the reasons asserted as pre- textual. Respondent introduced into evidence a prodigious amount of company records in support of its contention that there was a slowdown, and sifted the facts in those documents into the record in this case through the testi- mony of a hired witness who had prepared some misleading graphs. In fact, production varies from day to day and, on the onion line in early 1977 where Gannon was work leader, production followed such fluctuations. Overall, it was slightly lower per person during this period than other periods and markedly lower in total volume. We have no evidence as to whether the night-shift onion line and the other product lines suffered a similar decline in per capita productivity. Gannon complained that the more experi- enced employees were constantly being transferred to other lines during this period of time by Franklin and that her line was operating with less competent employees than at other times. There was also a seasonal shortage of raw on- ions at this time. There is testimony that Gannon did not holler at employees during this period as much as she usu- ally did although, with a shortage of available onions, there was little to holler about. From these facts, Respondent seeks to have an inference drawn that there was a deliberate slowdown on the onion line and that Gannon organized it. I decline to do so. Fry told Gannon late in the course of the so-called slowdown, and within a few weeks of her dis- charge, that if she kept on working the way she had been working, she would have no problem. This statement is a far cry from the conclusion which Respondent seeks to have the Board draw concerning a discharge that took place two or three weeks thereafter. This flimsy excuse is proffered against a background of intense antiunion ani- mus, 8(a)(l) conduct directed at the discriminatee. a threat to discharge the leader of the organizing campaign, and company knowledge that the discriminatee was the leader of the in-house campaign. It is also proffered to explain an action which occurred coincidentally with receipt of infor- mation by Respondent that the discriminatee, who had suc- ceeded in bringing the Union in, had just become a member of the bargaining commmittee. Moreover, one of the as- serted reasons offered by Fry was a reference to the fact that the discriminatee participated in a Board investigation of the Union's petition and charge. In light of these factors, I conclude that Respondent discharged Rowena Gannon on April 5 because of her union activities and because she gave testimony under the Act, all in violation of' Section 8(a)( 1), (3), and (4) of the Act. 5. Other pre-strike violations In December 1976, Respondent's day-shift superinten- dent, Jacci Franklin, held a meeting with Respondent's em- ployees in order to find out who was supporting the union drive. She did so at the request of Fry, who had learned 89 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from his son that a union was beginning to organize. Dur- ing the talk, Franklin unlawfully interrogated employees by asking them to stand up if they supported the Union. She also violated the law on this occasion by voicing a threat that the plant would be closed and sold by Fry if the Union came in. She also unlawfully created an impression among employees that their union activities were under surveil- lance by informing them that Fry had learned of the union meeting which took place the night before the meeting. A few days or weeks later, she uttered an unlawful threat to Gannon by telling the latter that Fry would fire the leader of the organizing campaign if ever he found out who it was. All of the uncontroverted statements violated Section 8(a)(1) of the Act. Dominic Rainieri is a member of Respondent's board of directors and, as such, is an agent for whose words and deeds Respondent is vicariously responsible. Early in Feb- ruary, he unlawfully requested job applicant Shirley Whip- ple to spy on the union activities of other employees and created an impression that union activities in the plant were under company surveillance by telling her that others work- ing in the plant were making reports to the Company con- cerning union activities which were taking place. These statements violated Section 8(a)(l) of the Act. I have credited testimony to the effect that Fry told em- ployees in the course of a massed assembly speech that he would never bargain with the Union. A statement such as this violates Section 8(a)(l) of the Act and is evidence of overall subjective bad faith in determining the existence of an 8(a)(5) violation. Fry also solicited grievances from em- ployees in the course of this speech and promised to better their lot in the near future if only they would reject the Union and give him a year to extricate himself from a fi- nancial and personal predicament in which he presently found himself. Such a statement, made as an inducement to employees to vote against representation, constitutes an un- lawful promise of benefit and an unlawful solicitation of grievances which violated Section 8(a)(1) of the Act. Mattie Taylor had worked for Respondent for a number of years and was promoted to the position of group leader. Her hourly rate was increased at the same time. About 1975, it became apparent that Taylor was experiencing great physical difficulty in performing the tasks in the area to which she and her group were assigned, so Respondent offered to place her in another location, but where the plant atmosphere would not cause her so much personal physical discomfort. Taylor accepted the transfer on the condition that she receive no cut in wages, and she worked at the new assignment for a period of nearly 2 years. Shortly after she testified for the Union at the R case hearing, she was told by Beverly Fry that she was no longer a group supervisor and had been demoted to the position of a rank-and-file employee because Sledz, the union representative, had re- quested Respondent to do so in order that Taylor might vote in the election. The reason offered was patently absurd and was denied by Sledz in his testimony. I conclude that the reason asserted was merely an arch way of telling Tay- lor that the demotion was the price she paid for testifying on the Union's behalf. At this time, Taylor suffered no re- duction in pay. On March 18, she served as union observer. Shortly thereafter, she was given a reduction in wages to correspond with the reduction in status about which she had been informed in January. It is obvious that both the reduction in status and the reduction in wages were prompted by Taylor's union activities and because she gave testimony under the Act. Accordingly, both actions by Re- spondent violated Section 8(aX1), (3), and (4) of the Act. Since the reduction in wages was carried out unilaterally, it also violated Section 8(a)(5) of the Act. As noted above, the Union wrote to Respondent on April 4, asking for information concerning classifications, wages, and benfits of unit employees. It also asked for a meeting to discuss this information. Respondent, whose president shortly before this time had told the employees that he would never bargain with the Union, did not respond to this letter or supply any information requested until months later when he was ordered to do so by the district court in the 10(j) proceeding. The refusal to furnish information re- lating to the compensation of employees in a bargaining unit so as to permit a union to formulate proposals is a classic violation of Section 8(a)(5) of the Act. N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149, (1956); N.L.R.B. v. Acme Industrial Co., 385 U.S. 432 (1967). By failing to meet with the Union and to supply requested information in a timely fashion, Respondent herein violated Section 8(a)(5) of the Act. The same finding applies to later requests for informa- tion which the Union made to Respondent. 6. The character of the strike As outlined above, the strike which began early in the morning of April 18 was preceeded by an assortment of serious and repeated unfair labor practices which were committed by a respondent which knew no bounds in the means it selected to defeat the unionization of its employ- ees. On April 16, about 55 employees met at a restaurant to consider the events which had transpired and to determine what action should be taken. They were particularly con- cerned about the discharge of Gannon and about the fail- ure of Respondent to supply the Union with the informa- tion it requested or to meet with it. After some discussion, they voted to strike in order to protest these actions. In light of the fact that the employer acts which were protested constitute unfair labor practices, there can be no doubt that the strike called in response to these violations of law was an unfair labor practice strike. Four days after the strike began, Fry sent letters to several striking employees, asking them to come back to work and telling them that the Em- ployer would provide transportation across the picket line to those requesting it. Fry stated further, "If you decide not to contact the Company and return to work, we will have no recourse but to hire new replacements." Because the employees to whom the letter was sent were unfair labor practice strikers, Respondent had no legal right to replace them. By threatening to replace unfair labor practice strik- ers, as it did in the April 22 letter, Respondent herein com- mitted a violation of Section 8(a)(1) of the Act. Cal-Pacific Furniture Mfg. Co., 228 NLRB 1337 (1977). 7. Picket line activity on April 18 and the discharge of 30 strikers The events which took place in front of the plant early in the morning of April 18 take on considerable significance 90 FRY FOODS, INC. because 30 employees were discharged shortly thereafter because of asserted misconduct which took place on the line. Picketing is protected concerted activity. However, when one engages in concerted activity in such a manner as to cause or threaten serious injury to persons or property, the activity loses its protected character and becomes grounds for discharge. Whether particular actions fall into one or the other category often poses nice questions ofjudg- ment. In addressing this question, it is always well to re- member that the burden of proving that concerted activity has lost its protected character is upon the party making that contention. Thus, sprinkling nails on the driveways of a struck plant, smashing plant windows, and damaging light poles has been deemed to be conduct disqualifying strikers from the protection of the law. Advance Industries Division-Overhead Door Corporation v. N.L.R.B., 540 F.2d 878 (7th Cir. 1976). Mass picketing, coupled with the prevention of cars and trucks from entering and leaving a plant, hitting the side of an auto with a sign, and throwing rocks at nonstrikers re- moves from a picket the protections of the Act. Hartmann Luggage Company v. N.L.R.B., 447 F.2d. 396 at 400 (6th Cir. 1971). However, in the course of a labor dispute, cer- tain amount of "picket-line rhetoric" is to be expected. Hartmann Luggage Co. v. N.L.R.B., supra at 185. Concerning the 30 discharges made by Fry on April 20 for picket line misconduct in the attempted delivery of on- ions during the early morning hours of April 18, I have concluded that 18 individuals who were discharged were not at or near the plant when the incident in question took place. As to them, there is no basis for a claim that they engaged in unprotected activity and the defense asserted herein is not only pretextual but simply false. Moreover, the use of such a groundless and fabricated reason to fire more than half of the group that were discharged casts serious doubt on the validity of Respondent's action concerning others who were at or near the plant at the time in question. As to them, Respondent must present particularized proof that each discriminatee was personally guilty of serious mis- conduct before the individual in question loses the protec- tion of the Act. A shotgun approach in justifying the dis- charge of union adherents who are engaging in protected activity is wholly inconsistent with protections afforded them under the Act. Advance Industries Division v. N.L.R.B., supra at 883. There is no suggestion in this case that any of Respon- dent's employees or supervisory force was personally harmed or threatened with harm by an identified striker. Furthermore, there is no proof that the property of Respon- dent or any other persons were vandalized or threatened with damage or destruction by an identified striker, despite the fact that two off-duty policemen guarded the premises and were paid by Respondent to be on the lookout for such activity. If any of the 12 discriminatees present at the onion truck incident lost the protection of the Act by virtue of picket line misconduct, it occurred because of failure or inability of the two trucks to unload onions due to a block- ing of the ingress to the plant. Gannon asked a truckdriver if he would back into the plant is she were to lay down in the path of the truck. This suggestion or threat of self-im- molation is not a threat to the person or property of anyone and falls into the category of picket line rhetoric. No one, including Gannon, did in fact lay down in the path of any truck which was seeking to back in. In fact, neither of the onion delivery trucks made any physical overt act to back into the plant on the morning in question. A difficult factual question arises concerning whether named strikers lined up along the side of the road between the public right of way and the plant in such a menacing manner as to prevent the trucks from coming into the plant. One truckdriver said they did for a brief interval. Three company witnesses, including the unbelievable Fry, also said they did and for varying periods of time. One company witness said that he could not testify that strikers either held hands or locked arms along the side of the road in such a manner as to prevent the entry of the truck. Officer Mc- Cormack, whom I regard as the most reliable witness, said he did not see anyone linking arms and hands to prevent the trucks from coming into the plant and did not see any conduct on the part of the strikers which warranted an ar- rest. Moreover, he was not requested to make any arrests. As he was being paid by Fry to maintain the security of the premises at the time, I feel that his account of the situation was the most reliable of the ones offered and that Respon- dent simply seized upon this noisy but essentially harmless incident to rid itself of strikers whom it did not want in the plant, using a broad brush to gather into one careless stroke people who were present at the time along with others who were home in bed when the incident occurred. Accordingly, I conclude that the 30 employees named in the amended consolidated complaint who were discharged on April 20 were discharged for union activities, namely engaging in an unfair labor practice strike, in violation of Section 8(a)(3) of the Act. 8. The Nancy Musser incident Not long after the union delivery trucks departed, non- striking employees and supervisors began coming to work. In order to reach the parking area provided on Respon- dent's premises, employees had to drive from Maule Road across the picket line into plant property. One employee, Margaret Kessler, drove into picket Hank Conely while driving across the picket line and, under circumstances not fully described in the record, knocked him down with her pickup truck. A few minutes later, Supervisor Nancy Mus- ser and three other employees or supervisors arrived in Musser's car. Musser, who is now the defendant in a suit for civil damages, did not testify in this case. The pendency of a civil action against her is not a justification for declining to draw the normal inference relative to evidence which could be provided by witnesses who are available, but are not called to testify. According to credited testimony in the record, Musser drove her car across the picket line, acceler- ated when she got inside the line, gave no warning to on- coming pedestrians when she was on company premises. and drove the car into Tong. After the collision, when Tong laid on the ground to the side of the car, Musser did not stop to render assistance but drove on. She parked the car behind the plant and did not return to the scene of the collision even to inquire as to the condition of the victim. Musser's comment about what she would like to do to union girls, uttered some months later, gives some insight 91 DECISIONS OF NATIONAL LABOR RELATIONS BOARD into the vicious attitude she harbored and lends support to the conclusion that she deliberately drove her automobile into a striking employee when the employee was engaging in concerted, protected activities. Whatever may be the civil or criminal consequences of these actions under state law, this assault clearly invades the employee's Section 7 rights and is a violation of Section 8(a)(1) of the Act. When Mus- ser told a group of employees sometime in July that she would like to "knock hell out of the Union girls and run them down the fryer," her statement also violated Section 8(a)(1) of the Act. 9. The April 22 wage increase It is undisputed that in April 1977, Respondent granted to all of its employees a 10-cent-an-hour across-the-board wage increase. There is some question in the record as to the exact date on which the increase took effect, but the parties stipulated that it occurred on April 22, so I will abide by the stipulation. The increase was granted 4 days after the strike began and at a time Respondent was solicit- ing strikers to return to work. The decision to grant this wage increase was not negotiated by Respondent with the certified bargaining agent. Respondent attempts to justify the wage increase on the basis that, in previous years, it had given 10-cent hourly increases across the board to its em- ployees. It is true that employees in previous years received blanket wage increases, usually in that amount. However, the regularity, the timing, and the amount of prior increases had not been so automatic or so predictable that it could constitute the basis for a finding that a pattern existed in this regard. Even if a prior pattern of wage increases could be established, the existence of such a labor relations his- tory could not justify the failure of Respondent to notit' the bargaining agent in advance of this proposal and its failure to negotiate the timing and the amount of the increase. Accordingly, by granting a wage increase of 10-cents per hour to employees on April 22 without notifying and bar- gaining with the duly certified bargaining agent, Respon- dent herein violated Section 8(a)(l) and (5) of the Act. 10. Post-strike changes in working conditions It is apparent from this record that, before the April 18 strike, Respondent herein ran a rather "loose ship." It is equally clear that after the first strikers returned on June 14 and particularly after the remainder were ordered back to work on July 18, Respondent began to run a "taut ship" in the enforcement of its work rules and in administering com- pany discipline. This change in the vigor of its discipline was never negotiated. Before the strike, written warning slips were never issued for work deficiencies and were re- served exclusively and sporadically for absenteeism. Since July 1977, over 100 written warning slips have been issued to employees for job-related infractions. At a prestrike speech Fry told employees that he had only fired employees for two reasons, stealing and embezzlement. After the strike began, employees came to be fired for a variety of reasons. It is clear that, whatever were the work rules which existed before the strike, they were frequently honored in the breach rather than in the observance and the infraction of these rules was a matter that was lightly regarded. This attitude changed suddenly and radically in the summer of 1977. One area in which rules were clearly changed related to the matter of talking with other employees who were work- ing on the same conveyor. Before the strike, Respondent permitted such talking among employees according to what might be called a rule of reasonableness. They were permit- ted to talk during working time with others who were lo- cated at or near their work stations so long as the talking did not hamper production. If and when it did, a supervisor would verbally caution the person or persons who were talking too much. After the strike, there was a clamp down on employee talking. Some supervisors told employees they could not talk with returning union supporters. Other su- pervisors told employees that they could not talk at all dur- ing working time. Some told employees they could speak to the employee next to them on the conveyor line, but could not speak to employees working directly across the con- veyor. After the strike, excessive talking, whether or not it violated a stated rule, was not met simply with verabl cau- tions, but with written disciplinary slips. Some of these slips played a part in layoffs or discharge which were later justi- fied or supported by warnings which had been issued for talking. Respondent attempts to justify the imposition of new talking rules (or the stricter enforcement of old rules) on the basis that it was faced with a business emergency which necessitated these and other stern measures. The na- ture of this emergency and the casual connection between it and the rules in question was never quite spelled out. It was clear that Fry was miffed that he had to take back into his plant, under penalty of contempt of court, strikers whom he disliked and had discharged. It takes little imagination to conclude that the rule or rules against talking, as well as the other changes in working conditions which were imposed when strikers returned, were generated in retaliation for union activity and as a means of goading returning strikers into leaving the plant of their own accord. Fry frankly con- fessed this desire to his supervisors. Hence, the imposition of new rules respecting talking and disciplining of employ- ees for excessive talking during worktime violated Section 8(a)(1) of the Act. This change in conditions of employ- ment, both as to the substance of the rules and in their enforcement, without first bargaining with the certified bar- gaining agent about the changes, violated Section 8(a)(5) of the Act. I have credited the testimony of two former supervisors who took the stand and testified that, shortly after the strik- ers returned, Fry instructed them to harass the returning strikers and goad them into cursing back at their supervi- sors. This instruction indelibly colors many events which took place in the plant after the strikers returned concering employer actions which might, in some other context, be regarded as a legitimate exercise of business judgment in the running of a plant and the disciplining of employees. Regardless of the theoretical existence of a rule requiring employees to wear hair nets in such a manner as to cover all of their hair, employees were in fact permitted to let their hair hand out beneath the hair nets rather than place the hair nets far down on their foreheads. After the strike, hair nets had in fact to be worn strictly in accordance with this 92 FRY FOODS, INC. rule. Beginning in the summer of 1977. employees were re- quired to change shoes before coming to work and were required to wear in the plant any shoes which had not been worn on the street. The practice before the strike was quite to the contrary. Previously employees had frequently leaned on the conveyor or rested their feet on a bar under the conveyor prior to the strike. They were disciplined for doing so after the strike. The use of profanity and obscenity was not infrequent before the strike. After the strike, the use of such language often resulted in written disciplinary slips when it was used in remarks to supervisors. I conclude that these changes in rule enforcement were part of'a picky atti- tude adopted by supervisors toward employees. and espe- cially returning strikers, in response to Fry's instruction to crack down. Such harassment violates Section 8(a)( ) of the Act. After the conclusion of the strike. Respondent also insti- tuted a policy of requiring its supervisors to make written accounts of minor, inconsequential actions and statements of employees which took place in the course of the work- day. These notebooks included the most trivial items, in- cluding the length of time it took certain employees to go to the toilet. The accounts were turned into the office at the end of the week, although reports of activities on the onion line, where the bulk of the returning strikers were assigned to work, were turned in to the office on a daily basis. Such pettiness, when viewed in light of Fry's instructions to ha- rass returning strikers, clearly forms an element employer harassment of employees in reprisal for engaging in union activities, all in violation of Section 8(a)( ) of the Act. 11. The institution of production standards for packing onion boxes Toward the end of the summer, Fry instructed some of the supervisors to begin timing employees to determine how long it took them to remove breaded onion rings from the conveyor and pack them in 2-pound boxes. For the most part the timing was done without the employee's knowledge that her work was under surveillance. A number of employ- ees received disciplinary warning slips for packing boxes at too slow a pace, altough no standard for box packing had been established and announced until mid-December. At that time, Fry informed employees that 35 seconds was the time standard for the packing of a box of onions. Respon- dent did not notify the Union that it was seeking to impose a job standard relating to the packing of boxes, nor did it negotiate with the Union either the decision to impose a standard or how much time should properly constitute the standard for the operation in question. Such unilateral ac- tion was taken in derogation of the Union's status as bar- gaining representative and constitutes a violation of Section 8(a)(l) and (5) of the Act. 12. The no-solicitation rule Respondent insists that it has always maintained and en- forced a no-solicitation rule which forbids employees from soliciting at the plant except during nonworking time and in nonworking areas. Fry also insisted that such a rule had been posted on the bulletin board for all to see. No one else remembers seeing the posting of such a rule. and no copy of' the rule was produced during the hearing. Fry justifies the nonproduction of the written rule on the basis that his files were destroyed, along with the bulletin board and the post- ings thereon, during a fire which took place in June 1976. No such rule was posted between the time of the fire in June 1976 and July 1977, when the rule here in controversy was established and posted. Various employees testified that it was commonplace before the strike to see employees selling items, collecting money for the "sunshine fund," or engaging in similar nonworking activities during working hours. From the testimony, from the lack of an) corrobora- tion of Fry's testimony, and from the collective testimony that Respondent had a relaxed view ot' discipline beftre the strike began. I conclude that. before the stike. Respondent had no rule against soliciting during working time. It fol- lows from this conclusion that the rule which the attorney drew up and which Fry promulgated in July 1977. was a new rule which altered terms and conditions of employ- ment that previously existed in the bargaining unit. Since the promulgation of the new rule was not negotiated with the certified bargaining agent, the unilateral action of Re- spondent is imposing it violates Section 8(a)(1) and (5) of the Act. 13. The 3-day rule In the past Respondent had a rule which stated that if an employee was absent for 3 consecutive days without calling in, she would be discharged. In Respondent's lexicon, the rule was so phrased that she would be deemed to have quit. However, before the strike, this rule was never enforced. There is credited and uncontradicted testimony in the rec- ord from employees of instances in which they were absent for more than 3 consecutive days without notifying Respon- dent but were not discharged. There is also Fry's statement, noted above, that he never discharged anyone except for embezzlement and stealing. However., after the strike be- gan, the employer began to enforce this rule with a heavy hand. The change in enforcement policy constitutes, in ef- fect. a different term or condition of employment. Since it was instituted without negotiation with the bargaining agent, the change amounts to a violation of Section 8(a)(l) and (5) of the Act. 14. Oppressive assignments to returning strikers Fry told his supervisors to segregate returning strikers from other employees by assigning them to the onion line and by keeping them away from jobs in the packing room, although some of these employees had worked in the pack- ing room before the strike. Respondent also assigned re- turning strikers in disproportionate numbers to the batter fried onion line whenever the "batter fried" line operated. This line is one of the most onerous positions in the plant because working on this line subjects an employee to large amounts of intense onion fumes mixed with the fumes of hot grease. Moreover, it was the custom previous to the strike to rotate employees into this position for short peri- ods of time. It was also customary to permit employees to avoid entirely those jobs which produced in them a unique 93 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or particularly strong physical reaction. No such latitude was granted after the strike. There is little doubt that the change of heart was dictated by union considerations. Fry admitted as much, sometime in September, when he told Taylor, in response to a request for a transfer from the garbage line, that "the girls got themselves into the prob- lem" and they would have to work it out the best they could. The type of harassment described above, namely, imposing onerous tasks on union supporters in retaliation for their union activities, violates Section 8(a)(1) of the Act. 15. Other independent violations of Section 8(a)(l) of the Act Just before the discharged strikers came back to the plant under the terms of a district court order, Respondent held a meeting with employees to inform them of this forthcoming event. During this meeting, Respondent's attorney, Affeldt, spoke to the assembled employees, who included both re- placements and strikers who were offered reinstatement on June 14. He attempted to convey to them the futility of the union effort by telling them that it would be at least 4 years before the Union came into the plant. Such a statement violates Section 8(a)(1) of the Act. During this same time, Supervisor Wilma Hoover was heard to say to a number of employees that she would like to follow a striker home and ram her automobile into a striker's car. This statement displayed deep hostility on the part of a supervisor who had originally been selected as a member of the plant bargaining committee and is a clear violation of Section 8(a)(l) of the Act. 16. The second refusal to furnish information As noted above, Respondent unlawfully refused to fur- nish information to the Union relating to classifications, wages, and certain fringe benefits of unit employees which was requested in the Union's April 4 Letter. On June 17, Union Attorney Lackey wrote to Company Attorney Affeldt to inquire as to the status of health insurance cover- age to employees who had been discharged. He also asked about a request by unit employee Nancy Hill for pregnancy leave and sought additional information relating to a griev- ance being pressed by unit employee Bonnie Schroen for vacation pay which she had not received. On July 12, Union Representative Sledz wrote to Beverly Fry to inquire about the discontinuance of health insurance benefits for seven strikers. He also asked Respondent to justify or explain the action it had taken on June I in dis- continuing the payment of health insurance premiums. On July 11, the Union wrote Fry asking for the same informa- tion it had requested in the April 4 letter. On July 26, after the issuance of the district court order, Fry wrote to Union Representative Kemp, supplying him with certain general information concerning existing wages and benefits which Kemp had asked about in a letter dated July 18. Fry's re- sponse did not contain a list of employees with their wages and job classifications. This information was not furnished to the Union until November 14. Some of the above infor- mation was furnished in a desultory manner and some of the requested information apparently was never furnished. All of it related to matters well within a bargaining agent's legitimate scope of inquiry. The failure to furnish such in- formation and the failure to furnish other information with reasonable promptness and without the interposition of a district court order amounts to a violation by this Respon- dent of Section 8(a)(l) and (5) of the Act. 17. Post-strike disciplinary suspensions Youlanda Phelps, the daughter of Gannon and a striker who was ordered back to work by the district court, re- ceived three written warnings during the late summer of 1977. One was issued for calling a fellow employee a scab, one for calling her supervisor a "suck ass," and one for letting good onions fall on the floor from the conveyor. Under the new policy of giving a suspension after three written warnings, Phelps was suspended for 3 days. This suspension took place pursuant to a change in disciplinary policy which was unilaterally instituted or implemented. It was imposed upon a known union activist for activities which, before the strike, would not have drawn any written warnings, and was imposed following Fry's instruction to supervisors to crack down on union adherents. Accord- ingly, I conclude that the reasons advanced to justify the suspension were pretextual and that it was effectuated be- cause of Phelp's union sentiments and activities. Accord- ingly, the suspension violated Section 8(a)(l) and (3) of the Act. Returning striker Kay Fortney Tong was given a written warning by Supervisor Smith in October for failing to pack onions as fast as required under an illegally adopted and as yet unannounced work standard. She was given a second written warning for writing "shove it up your scabby nose" on the warning slip which she just received for packing onions too slowly. Three days later she was given a third warning slip for packing onions too slowly and along with it received a 3-day suspension. It is clear these slips and the resulting suspension fitted the pattern of behavior by Re- spondent's supervisors which was prompted by the instruc- tions they had received to harass returning strikers. Hence the reasons given for suspending Tong were pretextual. Ac- cordingly, I find that the suspension violated Section 8(a)(l) and (3) of the Act. On August 2, Gannon was given a warning slip for taking packed boxes of onions off the conveyor and for shoving onions off the conveyor. She denied the truth of the asser- tions on the warning slip. On August 23, she received a second written warning for pulling onions off the line onto trays when they were coming down the conveyor belt too fast to be boxed. In so doing, she was following a practice which had been regularly employed during the prestrike period. She protested the issuance of this slip and got into a verbal tiff with the supervisor who issued it. Under these circumstances, she was suspended for 3 days. Gannon was the acknowledged in-house leader of the organizing effort. The suspension was accomplished in pursuance of an ille- gally imposed warning system and followed the Fry instruc- tion to crack down on strikers. I conclude that the reasons offered for the suspensions were pretextual and that Gan- non was suspended for union activities in violation of Sec- tion 8(a)(1) and (3) of the Act. 94 FRY FOODS, INC. Returning striker Wanda Depinet was frequently criti- cized by her supervisor for not cutting mushrooms fast enough and for not cutting them in a proper manner. On one occasion in November 1977, when a supervisor criti- cized Depinet for the manner in which she was preparing mushrooms, Depinet told her to shut her "gd mouth and get the hell out of there." Upon receiving a warning slip for using such language, Depinet told her supervisor to "shove it," whereupon she was suspended for 3 days. Normally a response such as the one Depinet made to supervisory cor- rection would amply justify the issuance of a disciplinary suspension. However, as frequently noted before, Respon- dent had adopted a policy of goading union employees into cursing supervisors in order to acquire a basis for disciplin- ing or discharging them. Accordingly, it cannot now be heard to complain about management prerogatives and company discipline when the policy it was following brought about the results it was designed to accomplish, namely obscene or insubordinate language uttered in angry reply to calculated employee-baiting. Accordingly, I con- clude that the suspension of Depinet violated Section 8(aXl) and (3) of the Act. In January 1978, Doris Kubis, the chairman of the bar- gaining committee, had to leave work suddenly in response to a message she received. Her husband had suddenly be- come seriously ill. The following day, she took him to the doctor and missed a day's work in the process. However, she notified Respondent of her intended absence and the reason for it and presented a written doctor's verification of the reason for her absence when she returned to the plant. Upon tendering the excuse, she was told that her absence was unexcused and that she would receive a temporary sus- pension for missing work. I conclude that the reason prof- fered for imposing this suspension was specious and that kubis was suspended in order to punish a leading union adherent, all in violation of Section 8(a)(1) and (3) of the Act. 18. Post-strike individual discharges a. Susan Neikirk Susan Neikirk had been employed by Respondent since 1972. In January 1977, she took an extended leave of ab- sence to undergo surgery and was under the care and treat- ment of two physicians, one located in Tiffin and the other in Toledo. Her Tiffin physician, Dr. Lahy, gave her a writ- ten release dated April II1, a week before the strike. How- ever, she did not receive a release from Dr. Schecter in Toledo, which was dated April 13, until after the strike began. She did not return to work, but actively participated in the picketing effort. She tried to return to work in June, but was met with a so-called "letter of resignation" in which Respondent asserted that, by failing to come back to work when released by a physician or within 3 days there- after, Neikirk was deemed to have resigned. In fact, Neikirk did not resign and Respondent's letter of June 21 amounted to a discharge notice. Until the strike began, Respondent made no effort to insist that employees, as the price of re- turning from sick leave, report for work within 3 days from the date of the doctor's release. If Neikirk had returned within the 3-day grace period after receiving Dr. Schecter's release, she would have had to cross the picket line which she helped to support. In fact, as so often noted above, Fry said just before the strike that he never fired anyone except for embezzlement or stealing. In this case, the record pres- ents a situation where an employer, who was exhibited col- lateral evidence of animus in a high degree, discharged a known union adherent and striker for a reason never before used to discharge any employee. I conclude that the reason proffered was specious and that Neikirk was in fact dis- charged for union activities in violation of Section 8(a)(I) and (3) of the Act. b. Mary Jane Bodi Striker Mary Jane Bodi was reinstated on July 18 pursu- ant to the district court order. She was placed on the onion line sorting freshly cut raw onions, a position she had occu- pied either rarely or not at all before the strike. Bodi suf- fered from asthma and the fumes of freshly cut onions were particularly noxious to her, requiring her to seek medical attention and an asthma shot. She missed work for a few days because of this ailment. When she returned, she pre- sented a medical slip containing a doctor's request that she be assigned to work which did not involve immediate con- tact with raw onions. Respondent refused to accept this excuse, saying that everyone in the plant had to come into contact with raw onions. Shortly thereafter, Bodi received a letter stating that she had resigned. In fact, she had not resigned. As in the case of Neikirk, the letter was in effect a discharge notice. This reason asserted for the discharge was that she had been absent from work for 3 consecutive days without notifying the Company. The reason asserted for Bodi's discharge was a reason based upon Respondent's newly adopted policy of enforc- ing a 3-day rule, a rule which was not used before the strike to cause the termination of an employee. As found above, the change of policy which was used as the justification for Bodi's discharge amounted to a violation of the Act be- cause it had not been negotiated with the bargaining agent. Hence, Bodi was discharged for a reason which Respondent was not free to use. Moreover, the reason which was prof- fered was wholly pretextual. Bodi was a striker and an ac- tive union adherent whose presence in the plant Fry was ordered to accept by the district court. Fry was looking for any excuse available to discharge these returnees and, in the case of Bodi, found one in the matter of her illness and the resulting absence. Accordingly, I conclude that, by dis- charging Bodi, Respondent herein violated Section 8(a)(l) and (3) of the Act. c. Tina Shetzer Tina Shetzer began working for Respondent in February 1977. She started working on the fish line on the third shift. She went on strike on April 18. During the strike, the fish line was discontinued. When she returned to work in July pursuant to the district court order, she was assigned to the garbage line. During or shortly before the strike she became pregnant. After working a short time on the garbage line, she complained that the shiny material under the conveyor belt made her dizzy so she sought medical attention. She obtained a doctor's slip stating that there was a medical 95 DECISIONS OF NATIONAL LABOR RELATIONS BOARD basis to her complaint of dizziness brought on by the move- ment of the conveyor over a shiny backdrop. When she presented the slip to Respondent, she was told that it was not acceptable and that she would not be allowed to work unless there were no restrictions on work assignments. In the past, as in the case of Taylor and others, Respondent normally honored requests for transfers to other positions when they were prompted by particular physical discomfort resulting from a particular assignment. Most positions in the plant on the production lines are unskilled and were, until the strike, frequently interchanged. The refusal of Re- spondent to apply its past practice in the face of Shetzer's request, as well as its treatment of the second medical ex- cuse limiting her activities in the plant as tantamount to resignation, was simply another ploy to remove union ad- herents who returned to the plant under a court order. Whether this action constitutes bad faith on the part of Respondent in complying with the terms of the district court order is a matter for determination in another forum. Within the parameters of this case, it is clear that the reason offered in the Shetzer discharge was pretextual and that Shetzer was fired for union activities in violation of Section 8(a)(l) and (3) of the Act. d. Barbara Kay Fortney Tong After Tong returned to work from the suspension dis- cussed above, she was given another written warning on November 22 for taking I minute to pack a box of onions. Tong wrote on a slip, "Cram it, scab." On December 5, her packing efforts were timed again and she was recorded as taking 59, 60, and 61 seconds, respectively, for packing three boxes of onions. For this deficiency she was dis- charged. At the time Tong was terminated, no employees had been notified by Respondent how long they were ex- pected to take packing onions. Moreover, the standard had not been negotiated with the bargaining agent, either at that time or at any subsequent time, so Respondent was not free to impose any set standard upon its employees. As in the other discharge cases, it is clear that Respondent was looking for excuses to get rid of returning strikers, espe- cially one like Tong who was most vocal in her support of the Union, who gave an affidavit in the investigation of a charge, and who is now maintaining a civil suit against Respondent for injuries which she received while engaging in union activities in front of Respondent's plant. Accord- ingly, I conclude that Tong was discharged for her union activities in violation of Section 8(a)(1), (3), and (4) of the Act. e. Wanda Depinet About a month after Depinet returned to work from the suspension she received in early November, she was dis- charged. This event occurred on December 22 and asserted- ly resulted from the fact that she was timed packing onions at 51, 50, and 57 seconds, respectively. Her discharge was effectuated pursuant to an illegally imposed work standard and, as in the case of Tong and other strikers, was pre- textual in nature. Accordingly, I find that Depinet was dis- charged for engaging in union activities in violation of Sec- tion 8(a)(l) and (3) of the Act. 19. The alleged domination of an employee committee While not discussed above, the General Counsel alleges that Respondent assisted and dominated an employee com- mittee which acted in the capacity of a labor organization purporting to represent the employees in the bargaining unit. To establish this charge, he must present evidence of assistance or domination occurring after September 29, 1976, when the period of limitations began. Local Lodge No. 1424, International Association of Machinists [Bryan Manufacturing Company] v. N.L.R.B., 362 U.S. 411 (1960). Events which transpired before that date may only be relied upon insofar as they illuminate or lay bare unfair labor practices arising out of operative facts occurring after that date. There is no dispute that there existed for several years at Respondent's plant an employee committee, known simply as the Committee, which was composed for the most part of employees elected each September for terms of one year. As far as the record in this case discloses, the committee had no written constitution, by-laws, or rules of procedure. It simply met from time to time. One of its principal functions was to plan and carry out social events for employees, in- cluding summer picnics, Halloween and Christmas parties, and similar events. From time to time the Committee also considered and made recommendations to management concerning matters which can properly be described as em- ployee grievances. Elections of employees to the Committee took place un- der direct company supervision. Employees would gather in the breakroom in the presence of either Beverly Fry or Jacci Franklin and cast written ballots. Apparently 10 em- ployees would be verbally nominated and nominees would then be selected by written ballot. The last of these elections occurred in September 1976, at a time which I conclude was outside the 10(b) period. In October 1976, the Commit- tee met to plan a Halloween party and in December 1976, it met to plan a Christmas party. At a meeting in December 1976, within the 10(b) period, the Committee discussed a grievance of part-time employ- ees Melinda Hardesty and Florence Bayliss. Respondent had a rule that, to be eligible to receive holiday pay for those holidays for which benefits were granted, an em- ployee was required to work both the day before and the day following the holiday. Respondent refused to pay holi- day to Bayliss and Hardesty. While the record is somewhat confused, it appears that both employees normally worked 4-hour shifts, so to apply a strict requirement of working, full 8-hour shift both before and after a holiday would not, in each instance, permit them to qualify for holiday pay, even though they were present for work for the entire time they were scheduled to work. The Committee voted to rec- ommend granting Hardesty the requested holiday pay and told Beverly Fry, who was present during the meeting, of this decision. It is unclear what happened to Bayliss' griev- ance. On another occasion within the 10(b) period, the Com- mittee voted to recommend holiday pay for Charlotte Lu- cius, who had been denied this benefit on one occasion. It appeared that Lucius suffered a leg burn and had a medical appointment the day before the holiday. She was told either 96 FRY FOODS, INC. to reschedule her appointment or to forfeit holiday pay un- der the terms of the rule described above. The Committee took a vote recommending action in Lucius' case. Phelps was later told that the Committee had been discontinued and that employees who desired to hold the picnic Phelps was promoting would have to do so on their own, without any assistance from Respondent. There is no question that the Committee functioned, in part, as a labor organization within the meaning of the Act because it processed and pressed grievances on behalf of employees relating to wages and fringe benefits. It is also clear that the Committee functioned in this capacity within 6 months prior to the filing of the first charge in this con- solidated case. The clear domination of the Committee by Respondent in supervising the semisecret balloting for com- mittee members took place before the commencement of the 10(b) period. The statement of Franklin to Phelps in September 1977 that the Committee had been discontinued evidenced, as nothing else could, how completely the Com- mittee was a creature of Respondent's undertaking and ini- tiative. Within the 10(b) period, the Committee considered and processed grievances at meetings chaired by supervi- sory personnel. Such interferences amounts to domination within the meaning of the Act. Fremont Manufacturing Company, Inc., 224 NLRB 597 (1976). The fact that the Committee had gone out of existence and Respondent has ostensibly ceased to commit this violation is no defense to a remedial order. Mexia Textile Mills, Inc. v. N.L.R.B., 339 U.S. 567 (1950). Accordingly, I conclude that, by dominat- ing the operations of an employee committee, which consti- tutes a labor organization, Respondent herein violated Sec- tion 8(a)(2) of the Act. Upon the foregoing findings of fact, and upon the entire record herein considered as a whole, and pursuant to Sec- tion 10(b) of the Act, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Fry Foods, Inc., is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, and an employee group known as the Committee are, respectively, labor organizations within the meaning of Section 2(5) of the Act. 3. All full-time and part-time production and mainte- nance employees, including group leaders, dock employees, and truckdrivers employed by Respondent at its Tiffin, Ohio, plant, excluding office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(a) of the Act. 4. Since March 25, 1977, the United Steelworkers of America, AFL-CIO, has been the exclusive representative of all employees in the unit set forth above in Conclusion of Law 3 for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By failing and refusing to meet and bargain with the United Steelworkers of America, AFL-CIO; by unilater- ally instituting or enforcing new terms and conditions of employment in the bargaining unit set forth in Conclusion of Law 3, including a newly enforced policy of discharging employees who had been absent on sick leave for more than 3 days without notifying Respondent, establishing job stan- dard for packing onions, instituting a program of progres- sive discipline including written warnings forjob-related in- fractions, refusing to grant in-plant transfers to employees whose health required such transfers, unilaterally institut- ing a new rule prohibiting talking, and unilaterally impos- ing a no-solicitation rule: by refusing to furnish the United Steelworkers of America, AFL-CIO, requested data relat- ing to grievances and to wages, hours, and terms and condi- tions of employment in the bargaining unit, and by refusing to furnish such data in a timely manner; by altering the composition of the bargaining unit and diminishing job op- portunities within the unit by promoting unit employees to supervisory positions while continuing to allow them to do bargaining unit work; and by unilaterally granting a wage increase to bargaining unit personnel without notifying and bargaining with the Union, Respondent herein violated Section 8(a)(5) of the Act. 6. By discharging and suspending Rowena Gannon, by suspending and later discharging Barbara Kay Fortney Tong, and by suspending Mattie Taylor and reducing her status and her wages because said employees gave testi- mony under the Act, Respondent herein violated Section 8(a)(4) of the Act. 7. By discharging 30 employees named in Paragraph 31 of the amended order consolidating cases, amended consoli- dated complaint and notice of consolidated hearing, on April 20, 1977, because said employees engaged in an un- fair labor practice strike; by discharging on other dates Ro- wena Gannon, Barbara Kay Fortney Tong, Mary Jane Bodi, Tina Shetzer, Wanda Depinet, and Susan Neikirk be- cause they engaged in union activities; and by demoting Mattie Taylor because she engaged in union activities; and by suspending Rowena Gannon, Wanda Depinet, Barbara Kay Fortney Tong, Youlanda Phelps, and Doris Kubis be- cause they engaged in union activities, Respondent violated Section 8(a)(3) of the Act. 8. By dominating an employee group known as the Committee, Respondent violated Section 8(a)(2) of the Act. 9. By the acts and conduct set forth above in Conclu- sions of Law 5, 6, 7, and 9: by coercively interrogating employees concerning their union sentiments; by creating among employees the impression that their union activities were subject to company surveillance; by threatening to close the plant and threatening to fire employees if the union won the election: by soliciting employee grievances and promising to grant wage increases and improvements in fringe benefits if the employees rejected the union; by stating that Respondent would not bargain with the Union even if it won the election; by telling employees that it would be 4 years before a union which was already certified would come into the plant; by threatening to replace unfair labor practice strikers if they did not return to work; by stating that they would like to do physical harm to union supporters or threatening such harm; by assaulting an em- ployee by automobile while said employee was engaging in union activities; by harassing employees through instituting new work rules relating to dress, talking, resting while working, intensified surveillance and written reports of mi- 97 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nor on-the-job activities of employees, refusing to rotate job assignments, and selecting union supporters for the most onerous tasks in the plant; by requesting supervisors to ha- rass employees and to goad them into cursing them; by issuing large numbers of disciplinary warnings by telling employees not to speak to returning strikers; by requesting a job applicant to engage in surveillance of the union activi- ties of the employees, Respondent herein violated Section 8(a)(1) of the Act. 10. The aforesaid unfair labor practices have a close, in- timate, and adverse effect on the free flow of commerce within the meaning of Sections 2(6) and (7) of the Act. REMEDY Having found that Respondent herein has adopted a cal- culated, long-term policy of committing serious and re- peated unfair labor practices, I will recommend to the Board an Order requiring that Respondent cease and desist therefrom and that it take certain affirmative actions de- signed to effectuate the purposes and policies of the Act. I will recommend that the Board issue against Respondent a so-called broad 8(a)(1) order designed to suppress any and all violations of that section of the Act. I will further recom- mend that Respondent be required to grant full and imme- diate reinstatement to their former or substantially equiv- alent positions to all of the discriminatees found in this case, and that it make them whole for any loss of pay or benefits which they have suffered by reason of the discrimi- nations practiced against them, whether by way of dis- charge, demotion, or suspension, in accordance with the Woolworth formula,23 with interest thereon in accordance with the adjusted prime rate used by the U.S. Internal Rev- enue Service for computing interest on tax payments. Flor- ida Steel Corporation, 231 NLRB 651 (1977); Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I will also recom- mend that Respondent be required to post the usual notice, notifying its employees of their rights and the results of this case. Upon the foregoing findings of fact, conclusions of law, and upon the entire record herein considered as a whole, and pursuant to Section 10(c) of the Act, I make the follow- ing recommended: ORDER2 4 The Respondent, Fry Foods, Inc., Tiffin, Ohio, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain with the United Steelworkers of America, AFL-CIO, as the exclusive col- lective-bargaining representative of its full-time and part- time production and maintenance employees, including 23 F W Woolworth Company, 90 NLRB 289 (1950). 14 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. 102.48 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. group leaders, dock employees, and truckdrivers employed at Respondent's Tiffin, Ohio, plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. (b) Dominating or assisting in the administration of the Committee or with the formation or administration of any other labor organization of its employees, and contributing support to the Committee or to any other labor organiza- tion of its employees. (c) Coercively interrogating employees concerning their union sentiments and activities. (d) Creating among employees the impression that their union activities are the subject of company surveillance. (e) Threatening to close the plant or threatening to fire employees because of their union activities or in the event the Union should win a representation election. (f) Telling employees that it will not bargain with the Union even if it becomes the certified bargaining represent- ative. (g) Telling employees that an excessive and extended pe- riod of time will elapse before the certified bargaining agent is able to gain recognition. (h) Asking employees not to speak with other employees who are union sympathizers. (i) Stating to employees that it would like to do physical harm to union supporters or threatening to do physical harm to union supporters. (j) Committing physical assaults upon union sympathiz- ers. (k) Harassing union supporters on the job or instituting new work rules by stepping up the enforcement of old rules, by engaging in excessive surveillance, prohibiting employ- ees from talking, assigning union sympathizers to more onerous tasks, refusing to rotate them into other jobs, or by any other means or method. (1) Requesting supervisors to harass union sympathizers and to goad such employees into cursing supervisors or doing other insubordinate acts. (m) Requesting job applicants or employees to engage in surveillance of the union activities of employees. (n) Instituting or effectuating a policy of written disci- plinary warnings designed to harass or intimidate union supporters. (o) Altering the composition of the bargaining unit by reclassifying positions from bargaining unit positions to su- pervisory positions and promoting bargaining unit mem- bers to such positions, while permitting them to continue to do bargaining unit work, without first negotiating with the Union. (p) Refusing to provide the Union in a timely manner with any information it requests which is relevant to the exercise by the Union of its responsibilities as the certified bargaining agent. (q) Unilaterally granting wage increases, instituting a new policy on sick excuses, enforcing a rule making 3 days absence without notification a basis for discharge, changing work rules or changing the lack of enforcement of old work rules so to prohibit employees from talking to other em- ployees or resting, imposing no-solicitation rule, instituting job standards for the tasks, granting wage increases to or reducing the wages of any employee, utilizing a practice of 98 FRY FOODS, INC. issuing written disciplinary warnings for violation of work rules, or otherwise unilaterally changing the wages. hours. or terms and conditions of employment of any bargaining unit employee without first notifying the Union and bar- gaining collectively with it in good faith concerning such proposed changes provided that nothing herein shall re- quire Respondent to rescind any wage increase which it has previously granted. (r) Discouraging membership in or activities on behalf of United Steelworkers of America, AFL CIO, or any other labor organization, by suspending demotions. discharging employees, or otherwise discriminating against them in their hire or tenure. (s) Discharging, suspending, or otherwise interfering with, restraining, or coercing employees because they have given testimony under the Act. (t) Imposing or enforcing any job standard for the pack- ing of onions or any other operation unless and until said standard has been negotiated in good faith with the Union. (u) Causing, requiring, or permitting its supervisors to make detailed written notes of acts done and words uttered by employees in the course of their employment. (v) Threatening to replace unfair labor practice strikers if they do not abandon their strike and return to work. (w) Soliciting employee grievances and promising to im- prove wages and benefits if employees reject union repre- sentation. (x) By any other means interfering with, restraining. or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act: (a) Offer to Rowena Gannon, Mattie Taylor, Wanda Depinet, Doris Kubis, Barbara Kay Fortney Tong, Susan Neikirk, Tina Shetzer, Mary Jane Bodi, Bonnie Schroen. Rose Ridner, Lynn Burlile, Elizabeth Glick, Barbara Bell, Lina Runion, Betty Reinhart, Rita Caldwell, Patricia Da- vis, Timothy Magers. Carol Lockard, Thelma Cameron, Linda Firestone, Mildred Zallner, Polly Endicott, Deborah Willborn, Ethel Long, Youlanda Phelps, Carolyn Bloom. Brenda Taulbee, Fay Clinard, Charlotte Lucius, Mary Elchert, Hank Conely, and to any other employee who was suspended after July 18, 1977, pursuant to the policy or practice of issuing written reprimands for violations of work rules, full and immediate reinstatement to their former posi- tions or, in the event that their former positions no longer exist, to substantially equivalent employment, without prejudice to their seniority or to other rights which they formerly enjoyed. (b) Make whole all of the employees and classes of em- ployees named or designated in paragraph 2(a) of this Or- der for any loss of pay and benefits which they may have suffered by reason of the discrimination found herein. in the manner described above in the section entitled "Remedy." (c) Withdraw all recognition from the Committee as a representative of any of its employees for the purposes of dealing with Fry Foods, Inc., concerning grievances, labor disputes, wages, rates of pay. hours of employment, or other conditions of work and completely disestablish the Com- mittee as such representative, provided that nothing herein shall be construed as prohibiting its employees from form- ing. joining, or assisting any labor organization. (d) Expunge from the personnel records of all of its em- ployees any written disciplinary warnings given to employ- ees after July 18, 1977. (e) Destroy all of the notebooks and other written re- ports prepared by supervisors since July 18, 1977. in which detailed daily accounts of minor words and deeds of em- ployees have been reported. (f) Provide to the Union all of the information requested in its letters to Respondent on April 4. June 17. and Jul 12 and 18, 1977: and any other information which the Union requests from Respondent which is relevant to the perform- ance by the Union of its responsibilities as certified bargain- ing agent. (g) Recognize and, upon request, bargain collectively in good faith with the United Steelworkers of America, AFL CIO, as the exclusive collective-bargaining representative of all of Respondent's employees in the unit set forth in para- graph I(a) of this Order. (h) Instruct its supervisors in writing to cease and desist from harassing employees and goading them into acts and words of insubordination, and post a signed copy of said notice for a period of 60 days on company bulletin boards and all places where notices to employees are customarily posted. (i) Cease giving effect to any and all changes in work rules and changes in enforcement and implementation of work rules which took place after March 25, 1977. unless and until Respondent has bargained collectively in good faith with the Union concerning the changes in said rules and the implementation and enforcement thereof. () Preserve and, upon request, make available to the Board or its agents for examination and copying all pay roll and other records necessary to analyze the amounts of backpay due under the terms of this Order. (k) Post at its Tiffin. Ohio, plant copies of the attached notice marked "Appendix."2' Copies of the Appendix, to be furnished to Respondent by the Regional Director for Re- gion 8, after being duly signed by a representative of Re- spondent, shall be posted by Respondent immediately upon receipt thereof, and shall be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customar- ily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered bh any other material. (1) Notify the Regional Director for Region 8. in writing. within 20 days from the date of this Order, what steps it has taken to comply herewith. 2f In the event that this Order is enforced bh a judgment of the Uinled States Court of Appeals., the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to Judg- ment of the LUnited States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board" APPENDIX NOli(t: To EMPI.oYIt:S POSTEI) B ORI)ER OF 1IE NATIONAL. LABOR RELATIONS BOARD An Agency of the United States Government Fry Foods. Inc.. is posting this notice to comply with an order of the National Labor Relations Board. This order 99 I)E(CISIONS OF NATIONAL LABOR RELATIONS BOARD was issued after a hearing before an Administrative Law Judge, iollowing which we were found to have violated sev- eral provisions of the National l.abor Relations Act. Wl wll.l NI() coercively interrogate employees con- cerning their union sentiments and activities. Wl WIl. N() create among employees the impres- sion that their union activities are subject to company surveillance. Wt wl I[ Not threaten to close the plant or to dis- charge employees because of their union activities or because they select a union as their bargaining agent. Wt xv i NoI tell employees that it will take a lengthy and excessive period of time befire the certi- fied bargaining agent is granted recognition. WI witl. NOI threaten or state that we would like to do physical harm to union sympathizers. Wi lWI.I. NI commit assaults upon union sympa- thizers. Wt WIl.I Noi harass employees for union activities by changing working rules or by enforcing work rules which were previously not enforced, including chang- ing dress requirements. prohibiting resting while work- ing which does not interfere with production, prohibit- ing reasonable amounts of talking while working, engaging in intensive surveillance and reporting of mi- nor acts and words of employees, refusing to rotate employees into and out of onerous jobs, requesting su- pervisors to goad employees into cursing them or en- gaging in other insubordinate acts, or by any other similar acts and conduct. WI Will NoI foillow a policy or practice of assigning union sympathizers to the most onerous jobs in the plant. WIE Wl.i. NOT threaten to replace unfair labor prac- tice strikers if thev do not abandon their strike and return to work. WE Wl.l NOI promise improved wage benefits to employees fir rejecting union representation. W wlVi.l. NOI ask employees not to speak to other employees who are union sympathizers. WE WiLL N)I issue written disciplinary warnings in order to harass union sympathizers. WE Will. NO request job applicants to engage in surveillance of union activities of other employees. WE Will. Nol dominate a labor organization known as the Committee, and WE NvIi.. withdraw and with- hold recognition of the Committee as a representative or spokesman for employees in grievances, labor dis- putes, and other matters relating to wages, hours, and terms and conditions of employment. Wv wltl N(l discharge, suspend. or otherwise inter- fere with. restrain, or coerce employees because they have given testimon under the National Labor Rela- tions Act. WI Wii.. NoI discourage membership in or activities on behalf of the United Steelworkers of America, A:.I, (10. or any other labor organization, by sus- pending. demoting, or discharging employees or other- wise discriminating against them in their hire or ten- ure. WE Will.. NOT by any other means interfere with, restrain, or coerce employees in the exercise of rights guaranteed to them by Section 7 of the Act. WE WILL offer full and immediate reinstatement to their former positions, or in the event that their former positions no longer exist, to substantially equivalent employment, without prejudice to their seniority or to other rights which they formerly enjoyed to: Rowena Gannon Mattie Taylor Wanda Depinet Doris Kubis Barbara Kay Fortney Tong Susan Neikirk Tina Shetzer Mary Jane Bodi Bonnie Schroen Rose Ridner Mary Elchert Lynn Burlile Elizabeth Glick Barbara Bell Linda Runion Betty Reinhart Charlotte Lucius Rita Caldwell Patricia Davis Timothy Magers Carol Lockard Thelma Cameron Hank Conely Linda Firestone Mildred Zallner Polly Endicott Deborah Willborn Ethel Long Youlanda Phelps Carolyn Bloom Brenda Taulbee Fay Clinard and to any other employee who was suspended after July 18, 1977. pursuant to the policy or practice of issuing written reprimands for violation of work rules. WE WILL make whole all of the employees and classes of employees noted above for any loss of pay and benefits which they may have suffered by reason of the discrimination practices against them, with in- terest. WE w.l. recognize and bargain collectively in good faith with United Steelworkers of America, AFL-CIO, as the exclusive collective bargaining representative of all of our full-time and part-time production and main- tenance employees, including group leaders, dock em- ployees, and truckdrivers employed at our Tiffin, Ohio, plant, exclusive of office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act. WE WILL furnish to the United Steelworkers of America, AFL-CIO, all of the information previously requested from us concerning individual grievances, wages, hours, and terms and conditions of employees employed in the bargaining unit, WE WILL, in the fu- ture, furnish to the United Steelworkers of America, AFL CIO, in a timely manner any information which it requests from us which is relevant to the perform- ance by that Union of its function as bargaining agent. WE WILL NOT make unilateral changes in wages, hours, and terms and conditions of employment, and wE wi.li notify the Union in advance of any good pro- posed changes in wages, hours, and terms and condi- tions of employment, and will bargain collectively in 10 FRY FOODS, INC. good faith with the Union concerning such proposed changes. WE WILL discontinue to follow practices previously followed which were unilaterally changed without no- tification and bargain with the Union. These practices include giving of written disciplinary warnings for vio- lation of work rules, a work standard for the packing of onions, the enforcement of newly-enforced dress code, rules concerning talking and resting while work- ing, a no-solicitation rule, and other newly-imposed or newly-enforced rules. WE WILL notify our supervisors in writing to cease and desist from goading employees into cursing them or engaging in other insubordinate acts. WE WILL cease making and compiling notebooks and detailed written reports concerning minor words and deeds of employees while working, and WE WILL destroy such books and reports which have previously been made. WE expunge from all personnel records all written disciplinary warnings which were issued after July 18, 1977. FRY FOODS, INC. 101