Han-Dee Pak, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Han-Dee Pak, Inc. and Teamsters Local Union No. 728, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent. Cases 10-CA- 12273, 10-CA-12439, and l0-RC-10770 September 28, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On July 8, 1977, Administrative Law Judge Donald R. Holley issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge, to modify his remedy,3 and to adopt his recommended Order, as modified herein.4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified by footnote 4, supra, and hereby orders that the Respondent, Han-Dee Pak, Inc., Doraville, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as so modified. Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to 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 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. We note that in sec. I11, 3, par. 8, of his Decision, the Administrative Law Judge referred to an unlawful statement made by Darrel Shattuck, whereas it is clear from the record, and the Administrative Law Judge himself previously found, that the statement in question was made by Clayton Shattuck. Inasmuch as we agree with the Administrative Law Judge that the conduct of Clayton Shattuck is imputable to Respondent (see fn. 2, infra), this apparently inadvertent error does not affect our decision herein. 2 We agree with Respondent that the Administrative Law Judge erred in stating in fn. 3 of his Decision that Respondent admitted that Clayton Shattuck was its agent and supervisor within the meaning of the Act. However, we nevertheless find a sufficient basis in the record for adopting the Administrative Law Judge's conclusion that the threat of plant closure made by Clayton Shattuck to assembled employees on June 21, 1976, is attributable to Respondent. Thus, employee Carol Kopis testified that Clayton Shattuck was her shift supervisor until the middle of July 1976. Similarly. Shattuck himself testified that prior to July 1976 he was the supervisor of the first shift. Finally, Respondent's counsel elicited the following testimony from Plant Manager Chambers: Q. All right. Going back to the meeting on the 21st of June that you called for the first shift, were you the only one that talked insofar as any supervisor or management employee of Han-Dee Pak? A. Let's see. Clayt Shattuck was there, and he did make a couple of comments after a meeting, yes. In view of the foregoing, we find that Clayton Shattuck was a supervisor of Respondent at the time the threat of plant closure was made, and that, even if he were not, Respondent would still be responsible for his conduct because it placed him in a position where employees could reasonably believe that he spoke on behalf of management. See Helena Laboratories Corporation, 225 NLRB 257 (1976), enfd. in pertinent part 557 F.2d 1183 (C.A. 5, 1977); Broyhill Company, 210 NLRB 288, 294 (1974), enfd. 514 F.2d 655 (C.A. 8, 1975). 3 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior to August 25, 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. 4 On September 20, 1977, the Board issued an order sevenng Case 10- RC-10770 from Cases 10-CA-12273 and 10-CA-12439, granting the Petitioner's request to withdraw its petition previously filed in Case IO-RC- 10770, and closing Case 10-RC-10770. For that reason, we do not adopt the Administrative Law Judge's recommendation that the election held in Case 10-RC-10770 be set aside and the case be remanded to the Regional Director for Region 10 for the purpose of conducting a new election. DECISION STATEMENT OF THE CASE DONALD R. HOLLEY, Administrative Law Judge: Upon a charge filed by the above-named Union in Case IO1CA- 12273 on September 17, 1976,1 a complaint alleging independent violations of Section 8(a)(l) of the National Labor Relations Act, as amended, herein called the Act, and violation of Section 8(aX)() and (3) of the Act by the discharge of employee Carol Kopis, was issued on November 1. Respondent duly answered the complaint, denying the commission of the unfair labor practices alleged. On November 5, the Regional Director for Region 10 issued an order directing hearing, consolidating cases and notice of hearing wherein he provided that certain objections filed in Case 10-RC-10770 be consolidated for hearing with Case (0-CA-12273. Thereafter, on November 22 the complaint in Case 10-CA-12273 was amended and Respondent filed a timely answer. The Union filed the charges in Case 10-CA-12439 on November 29 and on December 29 the aforesaid Regional Director issued complaint, notice of hearing, and order consolidating cases which consolidated all three cases for hearing and alleged further violation of Section 8(a)(I) of the Act and further violation of Section 8(aX)(I) and (3) of the Act by the discharge of Evelyn Smith. Respondent filed a timely answer to the December 29 complaint, denying the commission of the unfair labor practices alleged. The case was heard in Atlanta, Georgia, on February 22 and 23, 1977. All parties were afforded full opportunity to participate in the hearing.2 Following the close of the hearing, counsel for General Counsel and Respondent filed briefs, which have been carefully considered. Upon the All dates are in 1976 unless otherwise indicated. 2 At the commencement of the hearing, General Counsel was permitted to amend the consolidated complaint to change the spelling of "Sobel" in par. 6 to "Sodel" and to add the name "Clayton Shattuck" to par. 8 of the onginal complaint. 232 NLRB No. 71 454 entire record and the briefs filed by the parties, I make the following: FINDINGS OF FACT I. JURISDICTION The consolidated complaint alleges, and the answer admits, that Respondent is a Georgia corporation with an office and place of business located at Doraville, Georgia, where it is engaged in the manufacture and sale of food and products. During calendar year 1975, a representative period, it sold and shipped products valued in excess of $50,000 to customers located outside the State of Georgia. Upon these facts, I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION It was admitted, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES I. Background Respondent operates a plant at Doraville, Georgia, where it utilizes some 150 employees on 3 shifts to manufacture and package condiments such as salad items, jams and jellies, mustard, and catsup for customers in the fast food industry. Most of its employees, approximately 130, work on the first shift (8 a.m. to 4 p.m.). Supervision of the employees and the operation is accomplished through the following: Herbert A. Sodel, president; Darrel Shat- tuck, vice president; James Chambers, plant manager; Clayton Shattuck, material coordinator; and James Coul- ter, assistant production manager. 3 In early June, employee Carol Kopis contacted the Union regarding representation for the plant employees and she thereafter distributed approximately 40 union authorization cards to employees. The Union notified Respondent it enjoyed majority status by telegram dated June 28, and it filed the petition in Case 10-RC-10770 on July 8. 2. Issues General Counsel alleges that Respondent engaged in numerous violations of Section 8(a)(1) and (3) during the period June 21, 1976, to September 1, 1976. The issues posed are whether Evelyn Smith and Carol Kopis were discharged in violation of Section 8(aXl) and (3) on August 4 and September I, respectively, and whether Respondent engaged in independent violations of Section 8(a)( ) by: (1) creating the impression of surveillance of employees' union activities on June 21; (2) threatening to move the plant due to union activity on June 28; (3) promulgating and thereafter enforcing a new absentee policy to discourage union activity commencing July 7; (4) posting two pictures :' It was admitted, and I find, that the named individuals are agents of Respondent and are supervisors within the meaning of Sec. 2(1 ) of the Act. 4Clayton Shattuck testified his remark was to the effect that if something HAN-DEE PAK, INC. which threatened plant closing because of union activity from July 22 to July 30; (5) coercively interrogating an employee on July 29; (6) threatening employees with discharge for signing union cards on July 29; (7) creating an impression that employees' union activities were under surveillance on July 29; (8) threatening on July 30 to eliminate employee participation in Respondent's profit- sharing plan if employees selected the Union as their bargaining agent; (9) creating an impression that employ- ees' union activities were under surveillance on July 30; (10) threatening employees on July 30 with lack of direct access to management for discussion of grievances if they selected the Union; and (1 I1) threatening employees on July 30 with loss of benefits if they selected the Union. Discussion of the issues is set forth chronologically below. 3. The alleged 8(a)(l1) conduct The June 21 Meeting On June 21 Respondent held a meeting with first-shift employees. James Chambers and Clayton Shattuck repre- sented management. General Counsel's witness, Carol Kopis, testified that Chambers did most of the talking and informed the employees that they were aware of union activities in the plant and knew who was behind it; the Company did not need a union and there was no room for people like this and they wished they would leave; the person responsible had 24 hours and only 24 hours to come to the office. Kopis testified Shattuck informed the employees they had a plant in Texas which was growing and would if necessary move the plant there. According to Kopis, the remainder of the meeting involved questions and answers. Employees Ruth Harrison and Alma Taylor corroborated Kopis' testimony to some extent. Chambers' version of the meeting was that he told the employees they had heard rumors of union talk and activities and he did not feel it was necessary, that they did not need any kind of union in the plant or any people involved in it, and that if people had problems they could come to the office and talk about it. Chambers denied he said he knew who was behind the Union and he denied he said people for it should leave and the leader should come to the office in 24 hours. He testified Shattuck told the employees if the Union was voted into Han-Dee Pak it would probably be necessary for some people to go down possibly to keep up production in the Dallas plant. 4 I found Kopis to be a straightforward witness who attempted to limit her testimo- ny to matters she was certain of and I credit her where her testimony conflicts with that of Chambers and Shattuck. Accordingly, I find that Respondent violated Section 8(a)(1) of the Act on June 21 by: (1) stating to employees that Respondent did not need a union or any people involved in it and those involved should leave; (2) creating an impression that the employees' union activities were under surveillance by stating they knew who was behind the Union; (3) threatening employees by saying the person responsible for the union activity should come to the office happened some of them might have to go to Dallas to help out. Shattuck claimed he was referring to supervisors. I find the testimony of Kopis and Chambers was more explicit and credible than that of Shattuck. 455 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in 24 hours; and (4) threatening to move the plant or employees to Dallas because of union activities.5 Promulgation and Enforcement of Absentee Rule James Chambers testified Respondent was experiencing difficulty with absenteeism and lateness in July and then sought to rectify the situation by revising the company policy regarding absenteeism. Thus, on July 7 or 8, he met with employees and gave them copies of a document which was placed in evidence as Respondent's Exhibit 1. In its original form, the document stated: July 7, 1976 To: All Han-Dee Pak Employees Subject: Absenteeism Your Company feels it is necessary and appropriate to clarify our policy regarding absenteeism on the part of our employees. First, we want to discourage all of our employees from being absent in that it hurts production and tends to place an extra burden on your fellow employees who are working. However, we know from time to time it may be necessary for an employee to be absent for a good reason such as illness, death in family, etc. If you find it necessary to be absent, call your immediate supervisor as soon as possible prior to the start of your shift and tell him the reason for your absence. If you cannot phone, have a relative or friend call in for you. Your immediate supervisor will have the responsibility of determining if your absence is to be excused based upon your reasons. The Company reserves the right to require evidence of your excuse, including a Doctor's certificate, if you visit a Doctor. In the event you fail to call in to your immediate supervisor on the day you are absent, it will be an unexcused absence, except in the case of extraordinary circumstances. In the event you incur more than three days of unexcused absences in a six (6) months period, you will be subjected to disciplinary action up to and including discharge. In the event you incur two days of unexcused absences during a six month period you will receive a written warning notice that a third day's absence within the six month period will subject you to disciplinary action. Any employee who is absent for three consecutive working days without notifying his immediate supervi- sor will be assumed to have quit his employment with this Company. Herbert A. Sodel - Pres. Darrel L. Shattuck - Sec./Treas. Chambers testified that he explained at meetings held with the employees that the fourth paragraph of the above- ' The statement regarding Respondent's wish that those involved in union activity leave and the demand that the person responsible report to the office were not alleged as violations. The issues were fully litigated, however, and I deem the findings appropriate. quoted document was erroneous as it should have stated that three unexcused absences would result in the issuance of a warning slip which would state that a fourth unexcused absence in a 6-month period would subject the employee to disciplinary action. In addition, he testified an unexcused absence was an absence for which the employee did not produce a doctor's excuse or another acceptable written excuse. When describing a new 3-day policy, Chambers told employees the only requirement was that they call their supervisor before the start of their shift to report they would be out. He referred to the 3 days as "go to hell" days, meaning they did not have to explain the reason for the absence. The record reveals that Respondent's prior absenteeism policy was one which caused employees missing 3 consecu- tive days to be terminated as quits. There was no policy applicable to the I- or 2-day absences, and Chambers testified many employees took advantage of the lack of a policy, with many being absent on Monday in particular. It is undisputed that no mention was made of the Union at meetings wherein the new policy was discussed. Analysis General Counsel contends that the promulgation and enforcement of the above-discussed absenteeism policy violated the Act. I find no merit in this contention. General Counsel does not contend in this case that Respondent violated Section 8(aX5) of the Act by instituting a new policy at a time when it was obligated to bargain with the Union, and I note that the Union or union activities of Respondent's employees were not mentioned in connection with institution of the policy. Moreover, I find Respondent was experiencing difficulty with absenteeism prior to the promulgation of the policy in question and conclude that it had adequate valid business reasons for changing its policy. Accordingly, I find General Counsel has not sustained the applicable complaint allegations and recom- mend that paragraphs II and 12 of the original complaint be dismissed. The Photograph(s) General Counsel's witness Evelyn Smith testified that during the month of July she saw two pictures posted on the bulletin board in the plant. Over Respondent's best evidence objection, she testified one picture depicted a plant with people in trucks and goods sitting on docks, and the other was of the same premises with an absence of people, nothing on the dock, weeds growing, the gate closed, and signs which stated "closed due to union" and "This was once a thriving company until the Union was voted in." Through Plant Manager Chambers, Respondent placed in evidence a photograph it claimed was posted on the bulletin board from July 22 to July 30.6 Chambers testified the document was the only picture or photograph posted by Respondent. The photograph in question depicts a plant with no persons visible which has a "for sale" sign affixed 6 See Resp. Exh. 2. 456 HAN-DEE PAK, INC. to a cyclone fence surrounding the property. The sign on the fence is illegible, but an arrow leads from the sign to the bottom of the photograph where it is reproduced in such a manner as to permit the viewer to read the language on the sign. Additionally, a union campaign message to employ- ees is set forth in the lower left corner of the photograph. The sign reads: FOR SALE 13.9 acres - INCLUDNG LAND & BLDG. Call SY. 9-5371 or your real estate broker The campaign message reads: The union won its demands in this meat-packing plant - but they forced the plant to close. Closing the plant (and its cattle pens) may have sweetened the air in this neighborhood, but it surely soured on the Georgia workers who lost their jobs, cattle growers who lost this market, countless mer- chants, bankers, others who lost these customers. Employees, stockholders in the company, everybody came out losers. General Counsel elected to prove the alleged photograph violation by offering testimony rather than the actual photograph(s) which could have been obtained by subpe- na. The testimonial evidence was received reluctantly since the photographs would have clearly constituted the best evidence available in the circumstances. When Smith was shown Respondent's Exhibit 2, she originally said it was the photograph of the closed plant she had described in her direct testimony. After inspecting the exhibit, she changed her mind and testified she had never seen it before. Smith exhibited confusion regarding the photograph(s) posted and Respondent has represented that the photograph placed in evidence was the only one posted. I conclude that the testimony of Chambers is more reliable than that of Smith and view the photograph in evidence to determine whether the complaint allegation has been proved.7 Considering in context the probable impact of Respon- dent's Exhibit 2 upon employees, I find that Respondent violated Section 8(a)(l) of the Act as alleged by posting the photograph which clearly conveyed the message that unionization leads to plant closure. Before the photograph was posted, Darrel Shattuck had informed employees that their selection of the Union might cause transfer of the operations to the Dallas plant. In the circumstances, I fmd that Respondent's posting of the photograph in question constituted a threat of reprisal rather than an objective prediction of what might possibly happen, and as such the action constituted a violation of Section 8(a)(1).8 ' Smith inaccurately testified Respondent threatened to cease employee participation in a nonexisting pension plan and she inaccurately testified her son telephoned the plant from her bedroom. As her testimony is sprinkled with inaccuracies revealing her recollection was somewhat faulty, I find Chambers' testimony more reliable. Alleged Interrogation of Smith by Coulter Smith testified her supervisor, James Coulter, ap- proached her at her work station in late July and stated they knew she had signed the union cards. She claimed she asked how they knew she had signed a union card, and that Coulter replied they had their way of knowing these things. She allegedly asked if he had seen the card, and he reportedly replied he did not have to see the card. Smith stated she replied that he should not come to her and accuse her of doing something unless he could show her the card she was supposed to have signed. She claims Coulter then stated "she wasn't so cute; that they were going to fire everybody that signed a union card." Coulter testified he did not engage in the conversation described by Smith. He testified he "vaguely" recalled that Smith told him on one occasion that she did not want to have anything to do with the Union. Significantly, Kopis testified that subsequent to Smith's discharge she con- versed with Coulter, indicating to him that Smith had discussed the union card with her about a week prior to her discharge and he had no right to question people about signing authorization cards. Kopis testified Coulter told her he had not, but if he did it would not matter because he was an hourly employee like everybody else. Analysis While Smith exhibited a tendency towards inaccuracy, her demeanor while on the stand was such that I felt she sought to testify truthfully. Her problem was inaccurate recollection rather than dishonesty. As her testimony concerning the Coulter interrogation was indirectly corrob- orated by Kopis, I credit the testimony. Accordingly, I find as alleged that Respondent, through Coulter's late July actions, violated Section 8(aX)(I) of the Act by: coercively interrogating an employee concerning her union activities: unlawfully threatening with discharge employees who had signed union cards; and unlawfully creating an impression that the union activities of employees were under surveil- lance by Respondent. The July 30 Employee Meeting On or around July 30, Respondent Vice President Darrel Shattuck conducted meetings with the employees on all three shifts. The record reveals he appeared at the meetings with written questions and answers and he testified that his talk with all employees closely followed the written document, with some elaboration and some deletion. The written document, which is in evidence as General Counsel's Exhibit 7, reads as follows: July 30, 1976 Here are some questions that usually come up when a union election is to be held and I thought it might be interesting to each of you to go over them in a question and answer manner. 8 Essex Wire Corporation, 188 NLRB 397, 403 (1971), and cases cited therein. 457 DECISIONS OF NATIONAL LABOR RELATIONS BOARD i. Do I have to vote in the election? A. No, you are not required to vote, but a majority of the vote cast will determine the outcome, so if you don't want someone else to make your decision for you, you should be sure and vote. 2. Will anyone know how I vote when I vote in the election? A. No. The election will be absolutely secret. You will be given a ballot that has no number on it. You will take it into a booth - where you mark it yes or not - and then put it in a sealed ballot box. No person can ever know how you vote except yourself. There are no names or other identifying marks on the ballot which you cast. 3. If I sign a union authorization card do I have to vote for the union at the time of the election? A. No - You can vote either way you like - either No or Yes. Nothing you have signed or said or promised in any manner binds you to vote a certain way. 4. If I have not signed a card or if I vote NO and against the union will this affect me in any way if the union wins the election? A. No - The union is required to represent all of the people, whether or not they have joined the union or not. Everyone will be treated in the same manner. 5. If the union is voted in here at Han-Dee Pak, do I have to join the union to keep my job? A. No - definitely not - Georgia law prohibits a union or a company from requiring you to join any union in order to keep your job. 6. If the union promises me a raise or other benefits if I vote for the union, can I bank on it? A. No - Even if the union is voted in here all the company is required to do is bargain with the union in good faith. The union cannot require the company to do anything that it does not want to do. Such union promises are just hot air and you should not rely on them when making your decision on how to vote. 7. What do I have to lose by voting for the union? A. A lot - a whole lot- (a) You could run the risk of having to pay union dues, union fines, initiation fees, special assessments and on and on. (b) You could lose your pay check if the union calls a strike and you go out on strike. (c) You could no longer take up any problem you might have with your supervisor, but would have to go through some union job steward or some union business agent. (d) You could lose your job if the union calls a strike as the company has the right to permanently replace striking employees. 8. If I go out on strike will I continue to get a paycheck? A. NO. B. If I go out on strike, can I draw unemployment benefits? A. No - The law provides that persons on strike are not eligible for unemployment benefits. General Counsel asserts that paragraph 7(c) of the above-quoted document was intended to mislead employ- ees regarding their rights under the Act, and he maintains Respondent violated Section 8(aX)I) of the Act when Shattuck read such remarks to employees. Shattuck testified that his comment on representation was very close to the statements in the document. He indicated, "I said that the Company always had an open-door policy; that if anybody felt they were [not] getting the right kind of interest from a supervisor, they certainly could see me or Mr. Sodel; and that if a union got in they would most likely have to go through a union steward or arbitrate." In addition to attacking paragraph 7(c) of the document in question, General Counsel adduced testimony to show that during the meetings Shattuck made violative com- ments which do not appear in the document. Thus, Smith testified if they voted union and the Union said strike, they had to strike and had no choice; that they would more than likely lose their profit-sharing and pension benefits because the Union would not allow those things; and that Shattuck concluded the meeting she attended by stating "they weren't dummies and that they knew who were behind the Union." Kopis testified that Shattuck told those attending the first-shift meeting that if the Union was voted in they had to bargain, but the law did not control where they started and they could cut wages back to $2.30 per hour and prolong negotiations. Employee Harrison corrobo- rated Kopis' assertion that Shattuck told employees Respondent could prolong negotiations. Shattuck testified he did not expand on the written questions and answers as Smith, Kopis, and Harrison claim he did. He claimed he did not threaten to eliminate benefits if the employees selected the Union and that the only mention of profit sharing occurred in a context wherein he enumerated the benefits employees were then receiving. He testified he did not say anything about pensions and would have no reason to as the Company does not have a pension plan. He flatly denied mentioning a minimum wage of $2.30 per hour; denied that he threatened to prolong negotiations; and denied that he said they were not dummies and they knew who was behind the Union. Respondent adduced testimony through employee wit- nesses Gloria Layman, Betty Jo Cheek, and William Griffin to bolster Shattuck's denial that he made state- ments attributed to him by General Counsel's witnesses. Layman testified Shattuck did not tell employees they would not receive profit sharing if the Union came in; that he did not threaten loss of any benefits; that he did not say he knew who was behind the Union; and that he simply read questions and answers from a document. Cheek testified that the meeting merely consisted of a discussion of the pros and cons; that Shattuck said if they had the Union they might not have all their present benefits, with specific reference to profit sharing; and that Shattuck said negotiations would probably take some time. Griffin testified he did not hear Shattuck say he knew who was behind the Union. Analysis Technically, Respondent violated the Act when Shattuck informed employees they would not be able to come 458 HAN-DEE PAK, INC. directly to management with their problems if they selected the Union, since Section 9(a) provides "any individual employee or a group of employees shall have the right at any time to present grievances to their employer ... without the intervention of the bargaining representative." As Shattuck's remarks, whether they involved the reading to employees of paragraph 7(c) of General Counsel's Exhibit 7 or followed the testimonial version given at the hearing, constituted a misstatement of the employees' rights under the Act and they clearly implied that by selecting the Union the employees would lose the rights guaranteed by Section 9(a), I find the remarks constituted a threat of the loss of a substantial benefit and that by making them Respondent violated Section 8(aXl) as alleged. 9 The remaining issues regarding Shattuck's comments at the meeting in question are not easily resolved. In my view, the witnesses offered by General Counsel, and Respondent as well, described the conclusions they reached after hearing Shattuck rather than what he actually said. Thus, without specifying what Shattuck said, Smith and Respon- dent's witness Cheek testified Shattuck threatened them with loss of profit sharing if the Union came in, but Respondent's witness Layman testified no threat to remove the profit-sharing benefit was made. Similarly, General Counsel witnesses Kopis and Harrison testified Shattuck threatened to prolong negotiations while Respondent witness Cheek testified Shattuck said negotiations might take some time. Finally, Smith's assertion that Shattuck said they knew who was behind the Union was not corroborated by any General Counsel witness and was denied by Shattuck and Respondent's witnesses; addition- ally, Kopis' assertion that Shattuck specifically threatened to start wage negotiations at the minimum wage of $2.30 per hour was not corroborated by any other witness and the assertion was denied by Shattuck. In view of the fact that Shattuck obviously received legal assistance during his preparation for the meeting in question, including prepara- tion of General Counsel's Exhibit 7, 1 am disposed to credit Shattuck's denial that he made the comments attributed to him. Accordingly, I find that General Counsel has failed to prove by a preponderance of the credible evidence that Respondent, through Shattuck's remarks on July 30, threatened to eliminate profit sharing if the employees selected the Union; created the impression that it had employees' union activities under surveillance by stating they knew who was behind the Union; 10 threatened employees with loss of benefits if they selected the Union; or threatened to prolong negotiations for a year. For the reasons stated, I recommend the dismissal of paragraph 9 of the original complaint and paragraphs 10, I 1, and 13 of the consolidated complaint issued on December 29, 1976. " Cosmo Graphics, Inc., 217 NLRB 1061 (1975). '0 This contention was based on Smith's testimony. which I found to be inaccurate in several respects. " Respondent considered the July 26 absence to be unexcused as the doctor's note made reference to July 27 only. 4. The alleged 8(a)(3) conduct; the alleged discriminatory discharge of Evelyn Smith Evelyn Smith was hired by Respondent on July I and commenced work on July 2. She worked in the catsup room where she boxed catsup. Smith was hired by James Coulter who credibly testified he told her at the time of hire that he was hiring her over other applicants at the request of one of her friends because she needed a job. Coulter indicated he told her at the time of hire that he asked two things: an honest day's work and an attempt to try to be at work and not lose any work. The record reveals that Smith signed a union authoriza- tion card on July 6, 1976. She testified this was the extent of her union activity. As previously indicated in the section of this Decision entitled "The alleged 8(a)(1) conduct," James Coulter told Smith in late July that he knew she had signed a card and, when she argued with him about signing, he replied she "wasn't so cute," they were going to fire everybody who had signed cards. Consequently, it is clear that Respondent knew or suspected that Smith was a union advocate. Coulter testified Smith had a bad attendance record during her brief period of employment. He testified her records revealed: she was absent on July 12 (excused); she came in late and left early on July 15; she left early on July 19; she was late on July 21; she left early on July 22 and 23; she was absent on July 27 (unexcused and did not call); she was absent on July 27 (excused); she left early on July 29; she asked permission to leave on August 3 and the request was denied; and she was absent on August 4, 5, and 6. Coulter indicated that leaving early does not "go against" an employee. While Smith was unable to recall the exact dates on which she arrived at work late or took time off, she indicated she had valid reasons for her absences. On July 12, she testified she took the day off to take her little girl to the doctor; she became ill at the plant on Friday, July 23, and recuperated at home on July 26 and 27, obtaining a doctor's excuse on July 27.11 On Tuesday, August 3, Smith went to work with a headache. Twice during the day she asked Coulter if she could go home and he told her to continue to work. The following day, August 4, she stayed home and her son called the plant and told Coulter his mother was sick and Coulter replied it was all right, "just have her bring a doctor's note the next day and everything would be okay." Linda Frix, Smith's girl friend, stayed with her on Tuesday and Wednesday nights (August 3 and 4) and she called the plant on Wednesday or Thursday morning August 4 or 5, and asked to speak to Coulter.' 2 She testified a person who identified himself as Coulter came to the phone and she told him she was calling for Jean Smith who was sick. She claims Coulter told her he was sorry that she had been terminated and, when she asked if that was fair since she was sick, he hung up.'3 On Friday, August 6, Smith went to the plant to get her paycheck. She testified she then asked Coulter why he had 12 The record does not clearly indicate whether the absences occurred on Tuesday, Wednesday, and Thursday or commenced on Wednesday. In any event the son made his call the first day of absences and Fnx called the next day. 13 Coulter denied that he talked to Frix. I credit Frix. 459 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terminated her without giving her a chance to bring in a doctor's excuse, and he allegedly replied she was not fired, but had been laid off. Smith claims she asked for how long, and that Coulter turned around and left without answer- ing.14 Several weeks later, Smith was notified by letter from Respondent that she had been terminated on August 6 because of unexcused absences. Respondent does not dispute the fact that Smith did not receive a warning notice prior to her termination. In further defense of its discharge of Smith, Respondent adduced testimony to show her sickness was self-inflicted. Cheek testified that Smith told her on an occasion at work that she had come in late the night before and was sick with a hangover. Similarly, Locklear testified that, one day when Smith was out sick, she had observed Smith "coming in" as she was on her way to work at approximately 7:30 a.m. Additionally, Respondent defended the discharge by adducing testimony through Cheek that Smith told her after she had been working several weeks that she did not want to have anything to do with either side in the union matter. Similarly, Locklear testified Smith told her at an undisclosed time that she was not going to have anything to do with the Union. Analysis Respondent's basic contention was that it fired Smith because she had four unexcused absences. The absenteeism policy it followed from July 7 forward is revealed by Respondent's Exhibit 1, which provides (in relevant part): If you find it necessary to be absent, call your immediate supervisor as soon as possible prior to the start of your shift and tell him the reason for your absence. If you cannot phone, have a relative or friend call in for you. Your immediate supervisor will have the responsibility of determining if your absence is to be excused based upon your reasons. The Company reserves the right to require evidence of your excuse, including a Doctor's certificate, if you visit a Doctor. In the event you fail to call in to your immediate supervisor on the day you absent, it will be an unexcused absence, except in the case of extraordinary circumstances. In the event you incur more than three days of unexcused absences in a six (6) month period, you will be subject to disciplinary action up to and including discharge. In the event you incur [three] days of unexcused absences during a six months period you will receive a written warning notice that [any unex- cused after] a third day's absence within the six month period will subject you to disciplinary action.' 5 Any employee who is absent for three consecutive working days without notifying his immediate supervi- sor will be assumed to have quit his employment with this Company. The record clearly reveals that, at most, Smith had one unexcused absence when she experienced the illness which 14 Coulter denied the August 6 conversation with Smith. I credit Smith. 15 Bracketed portion denotes interlineations. resulted in her termination. Respondent claims she was terminated after she had four unexcused absences. I find no merit in this defense. Apparently, Coulter's attitude towards this employee changed at some point in time as illustrated by the fact that he refused to permit her to leave work on the Monday or Tuesday preceding her last period of absences even though she told him several times that day that she was ill and wanted to go home. It seems unlikely that he would conclude she was feigning illness as she had previously almost fainted while working and she had informed him her doctor had taken diagnostic x-rays to determine the cause of her difficulty. The only evidence which serves to explain the change in his attitude is that evidence which reveals he questioned her about signing a card immediately before her final illness and then told her she was not so cute, that they were going to fire those who had signed union cards. It certainly appears that Coulter decided, at the time of the conversation concerning the signing of a card, that she no longer deserved his consideration. Thus, it is clear that he did nothing after her son and girl friend called him to advise higher management that the employee was absent due to illness, and he permitted the front office to send her on August 6, 1976, a letter of termination for four unexcused absences. In the circumstances, I infer that the reason for Coulter's actions was his dissatisfaction with Smith which resulted from their discussion concerning the signing of a union card. I find that Coulter deliberately refrained from reporting the true facts regarding Smith's absence to cause her to be discharged, thus fulfilling the earlier prediction that she would be discharged because she signed a union card. The remaining defenses offered to justify the termination of this employee were clearly afterthoughts. Thus, while Cheek and Locklear testified Smith had indicated to them, or they had observed, that part of her absences was due to the fact that she drank too much or stayed out too late, it was not shown that Coulter or any Respondent official was aware of this or considered such facts when the decision to terminate was made. Similarly, Respondent observes in its brief that Smith's overall attendance record was sufficiently poor that it justified the discharge action. While this is true, her poor overall attendance record was not the assigned cause for the termination. In sum, I conclude the reasons assigned for the discharge were a pretext and that the real reason was Coulter's desire to show Smith "she wasn't so cute" and could be discharged for signing a union card. It follows, and I find, that Respondent violated Section 8(a)(1) and (3) of the Act by discharging Evelyn Smith on August 5, 1976.16 The Alleged Discriminatory Discharge of Carol Kopis Carol Kopis started to work for Respondent on Septem- ber 11, 1974, and was a machine operator in the cuproom at the time of her termination on September 1, 1976. No issue was raised concerning her work performance and all agreed she had an excellent attendance record during the term of her employment. She was the employee who 16 1 find the date of the discharge to be August 5, 1976, as Coulter informed Frix on that day that Smith was terminated. 460 HAN-DEE PAK, INC. contacted the Union in early June, and the record clearly reveals she was the principal employee organizer at Respondent's plant. While there is no direct evidence that Respondent was aware of the extent of her activities on behalf of the Union, she served as the Union's observer at the election held on August 20. Kopis testified that James Coulter, her immediate supervisor, told her on August 24 that there were hard feelings against her in the Company and if she had succeeded in getting the Union in they would have lost two of the best men in the business. Upon hearing this, Kopis claims she asked Coulter, "Why don't you just fire me." She testified Coulter replied, "Why don't you quit," and that she said, "No. When you get rid of me, you're going to fire me because I'm going to draw my unemployment while I'm looking for another job." 17 Later in the afternoon on August 24, Coulter and Kopis had a conversation concerning Respondent's absenteeism policy. Coulter testified Kopis started the conversation by asking him to review the rules on absence and he told her that after 3 days of unexcused absence a written warning was issued to the employee which indicated that a fourth unexcused absence within a 6-month period could result in discharge. t Kopis did not work on August 25, 26, or 27. She testified without contradiction that she called Coulter at the plant on August 25 and told him she had an ear infection and would not be in. He replied that she should take care of herself and he would arrange to send a vacation check to her by her sister.' 9 On August 26, Kopis called the plant before Coulter got there and asked Ruth Harrison to tell Coulter she would be out that day because she still had an ear infection; on August 27 she called early and told Donald Harper essentially the same thing. Kopis reported for work on Monday, August 30, and worked that day. She credibly testified no management official asked her for a doctor's excuse for the absences during the preceding week.20 She testified her ears were still bothering her and for this reason she did not go to work on Tuesday, August 31. She indicated, without contradiction, that she called the plant on August 31 and told Coulter she would not be in because she was still sick and he said nothing. When Kopis reported for work on Wednesday, Septem- ber I, she testified Coulter asked her if she had a doctor's excuse and when she said she had none he told her they would have to terminate her and asked if she wanted to work the rest of the day. She claims she said she would like to work the rest of the day. Subsequently, between 10 and 10:30 a.m. Plant Manager Chambers called her to his ti Coulter testified that Kopis initiated the conversation by telling him she felt there were hard feelings against her in the Company and that she asked if he could fire her so she could draw unemployment. I found Kopis to be the more reliable witness and credit her version of the incident. "' While I found Kopis to be a more reliable witness than Coulter generally, my observation of the demeanor of both witnesses while they testified concerning the afternoon discussion causes me to conclude that Kopis started the conversation as claimed by Coulter. 19 Coulter testified that he told Kopis on August 25 to bring in a doctor's excuse when she returned. Kopis testified she was never asked for a doctor's excuse for the August 25, 26, or 27 absences. If Coulter had asked for such an excuse on August 25 as he contended, the probability is that Kopis would have told him she had medication and did not intend to go to the doctor. I office. She testified that Chambers opened the conversation by saying he understood from James (Coulter) that she had quit. She replied she had not quit, she was terminated. Chambers replied if James was going to fire her he should have fired her before she hit the clock that morning and told her she would have to leave. She maintains she then asked if she was terminated and he replied she was terminated for unexcused absences.2 1 Kopis testified she did not go to the doctor during the period August 23 - August 30 because her sister had given her medication for her ear infection. Without indicating specific details, she testified that she has been absent from work on occasion while at Respondent and, although she did not visit a doctor, the absences were excused. Analysis General Counsel contends Respondent terminated Kopis becuase it bore animosity towards her because she was the employee who was most active in the attempt to cause unionization of the plant. Respondent contends the employer intentionally remained away from work for 4 days and she was discharged because she had four unexcused absences within a 6-month period, and solely for this reason. The contentions are discussed below. To prove a primafacie case of discriminatory discharge, General Counsel adduced evidence which revealed that Respondent exhibited marked union animus at the outset of the union campaign by telling its employees it was aware of union activity, it did not need a union, and it did not need employees who were involved in it. His evidence revealed that Supervisor Coulter was particularly adamant in his opposition to the Union, and that Coulter invited Kopis to quit her job on August 24 because he felt there were hard feelings against her due to her leadership in the organizing campaign. Finally, General Counsel contends Kopis was terminated on September I for reasons which would not have resulted in her discharge but for the animosity against her which had developed because of her union activities. Respondent defends by claiming the evidence reveals that Kopis intentionally missed work on August 25, 26, 27, and 31, thus creating a situation wherein she had four unexcused absences. It points to the evidence which reveals Kopis asked Coulter on August 24 to review Respondent's absenteeism policy for her, and to the fact that her absences immediately followed the discussion, thus strong- ly suggesting the absences were intentional and not caused by illness. It maintains the record reveals she was given an opportunity to establish that the absences were due to illness but she failed to produce a doctor's certificate and credit Kopis' claim that she was never asked for a doctor's excuse for the 3 days under discussion and I do not credit Coulter's claim that he told her on August 25 to bring a doctor's excuse. 20 I credit Kopis because Chambers and Coulter gave inconsistent testimony regarding what happened on Monday. Chambers testified that a warning slip was prepared for Kopis on that afternoon but it was never given to her because she was absent the next day. Coulter testified he asked her for a doctor's excuse for the 3 days and gave her a warning slip when he learned she had not been to a doctor. Kopis denied receiving a warning slip. 21 Chamber's testimony was substantially the same. He testified he specifically asked Kopis if she had a doctor's excuse for the absence on August 31 and when she said she had no doctor's excuse he told her she had four unexcused absences and should leave the plant. 461 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that its decision to terminate her was in accord with company policy. The legal principles governing the resolution of this issue have been frequently stated and are as follows: The issue before us is not, of course, whether or not there existed grounds for discharge of these employees apart from their union activities. The fact that the employer had ample reason for discharging them is of no moment. It was free to discharge them for any reason good or bad, so long as it did not discharge them for their union activity. And even though the discharges may have been based upon other reasons as well, if the employer was partly motivated by union activity, the discharges were violative of the Act. [N.L.R.B. v. Great Eastern Color Lithographic Corp., 309 F.2d 352, 355 (C.A. 2, 1962), enfg. 133 NLRB 911 (1961).] The mere existence of valid grounds for a discharge is no defense to a charge that the discharge was unlawful, unless the discharge was predicated solely on those grounds, and not by a desire to discourage union activity. [Sunshine Biscuits, Inc. v. N.LR.B., 274 F.2d 738, 742 (C.A. 7, 1960), cited with approval in N.L.R.B. v. Symons Manufacturing Co., 328 F.2d 835, 837 (C.A. 7, 1964).] It must be remembered, in this connection, that the question involved [a finding of discrimination I is a pure question of fact; that, in passing upon it, the Board may give consideration to circumstantial evidence as well as to that which is direct; that direct evidence of a purpose to violate the statute is rarely obtainable; and that where the finding of the Board is supported by circumstances from which the conclusion of discrimi- natory discharge may legitimately be drawn, it is binding upon the courts, as they are without power to find facts or to substitute their judgment for that of the Board. [Hartsell Mills Co. v. N.L.R.B., III F.2d 291, 293 (C.A. 4, 1940).] Applying the above discussed principles to the facts relating to the Kopis discharge, I am compelled to conclude that this employee's union activities played a substantial part in the motivation for her discharge, and therefore the termination violated Section 8(a)(1) and (3) of the Act. Thus the record reveals Kopis had an excellent atten- dance record and prior to her involvement in union activity her periodic absences had been excused when she ex- plained the reasons for the absences, despite the fact that she offered no doctor's certificate to prove illness. More- over, the absenteeism policy adopted by Respondent on July 7, 1976, specifically states, inter alia, "Your immediate supervisor will have the responsibility of determining if your absence is to be excused based upon your reasons. The Company reserves the right to require evidence of your excuse, including a Doctor's certificate, ifyou visit a Doctor. " (Emphasis supplied.) While Kopis credibly testified she did not go to a doctor in connection with her late August absences since she obtained needed medication from her 2~ The requirement was imposed despite the fact that Coulter testified Kopis told him she had not gone to the doctor. 23 Kopis credibly testified that Coulter told her she was fired when she sister, Respondent offered no evidence which would reveal it had reason to believe she did not have an ear infection as she claimed. Instead, contrary to its stated policy, the employee was arbitrarily asked to produce a doctor's certificate to prove the absences were legitimate.2 2 When she indicated she had no doctor's certificate, she was immediately terminated.2 3 The summarized facts which reveal Respondent's actions in connection with the Kopis termination show that Respondent treated this employee differently on the occasion of her August absences from the way it had treated her prior to her involvement in the Union. Additionally, they reveal it failed to follow its written absenteeism policy to determine whether her August absences were excused or unexcused. In view of the fact that Coulter told her immediately prior to the absences in question that her union activities had caused hard feelings against her and he would like to have her quit, I infer that she was asked to do that which was impossible in the circumstances on September 1 - produce a doctor's certificate - because her union activities rather than her work performance or her attendance record had rendered her an undesirable employee. While it is true that participation in union activities does not insulate an employee from discharge for cause, it is equally true that if part of the motivation for the discharge of a union adherent is the union activities of the employee, the discharge is unlawful. I find that Respondent was motiva- ted, at least in part, to terminate Carol Kopis by its displeasure with the fact that she had tried to unionize the Company and, accordingly, find that by discharging her on September 1, 1976, it violated Section 8(a)(1) and (3) of the Act as alleged. IV. THE REPRESENTATION CASE The following objections were consolidated for hearing with the complaint cases: Objection No. 2: Prior to the election on August 20, 1976, the Comnpany threatened that it would not agree to any contract with the Union and that a strike would be necessary if the Union was voted in. Objection No. 3: The conduct of the Company enumerated above was blatantly unfair and willful conduct which affected the results of the election by destroying the laboratory conditions of the election and influencing the voters in favor of the Company. Objection No. 4: Conduct disclosed by the investigation but not alleged as objections. The evidence offered to prove Objections 2 and 3 was evidence which related to the July 30 meetings Shattuck held with employees. As previously indicated in the section of this Decision entitled "The alleged 8(aX I) conduct" I find the evidence offered was insufficient to prove that came to work on September I and that Chambers confirmed the action and told her to leave immediately at or about 10:30 a.m. 462 HAN-DEE PAK, INC. Shattuck threatened to prolong negotiations for a year if the Union was selected by the employees. I further finmd that no evidence has been offered to prove the objection allegation that "Prior to the election on August 20, 1976, the Company threatened that it would not agree to any contract with the Union and that a strike would be necessary if the Union was voted in." Accordingly, I recommend that Objection 2 be overruled. Since Objection 3 is based on Objection 2, I recommend that it be overruled also. Remaining is Objection 4. While the objection is sufficiently broad to cover any conduct engaged in by Respondent during the period July 8, 1976 (date petition was filed), to August 20, 1976 (date election was held), Respondent contends this objection should be overruled as General Counsel contended at the hearing that the objection was coextensive with paragraph 7 of the original complaint and that allegation was deleted from the complaint on General Counsel's motion at the conclusion of his case. I conclude that Respondent's contention is without merit. Objection 4, which embraces any objection- al conduct occurring during the pertinent period, has not been withdrawn. Moreover, I would arguably be required to consider the impact of the unfair labor practices found herein upon the employees in the absence of any objection whatsoever.24 Accordingly, Objection 4 is considered below. In the instant case, I have found that Respondent violated Section 8(aX1) of the Act during the pertinent period by engaging in unlawful interrogation and uttering unlawful threats and by creating the impression that the union activities of employees were under surveillance. Additionally, I have found that on August 5, 1976, it terminated Evelyn Smith in violation of Section 8(aX)() and (3). I find that this conduct interfered with a free and untrammeled choice of the employees in the election and recommend that Objection 4 be sustained and that the results of the August 20, 1976, election be set aside. v. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 24 See Monroe Tube Conmany, Inc., 220 NLRB 302, 305 (1975), where the Board held: "IW e find that matters litigated in a complaint case which is consolidated with a representation case can form a basis for setting aside the election even though those matters were not raised by the objections. 3. Respondent violated Section 8(a)(l) of the Act by interrogating an employee concerning her union activities; threatening employees with plant closing and loss of the right to discuss grievances directly with management if they selected a union to represent them; coercing employ- ees by stating it did not need employees involved in a union and they should leave and that the leader should report to the office in 24 hours; threatening an employee with discharge because she had signed a union card; and coercing employees by creating the impression that their union activities were under surveillance. 4. Respondent violated Section 8(aXI) and (3) of the Act by discharging Evelyn Smith and Carol Kopis because of their union activities. 5. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not committed any other unfair labor practices alleged in the complaint. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX)() and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Objection 4 to the election in Case 10-RC-10770 is to be sustained, I shall recommend that the election held on August 20, 1976, be set aside and that the case be remanded to the Regional Director for Region 10 for the purpose of conducting a new election. Respondent will be required to offer Evelyn Smith and Carol Kopis reinstatement to their former positions of employment or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, anyone who may have been hired to perform the work which they had been performing. Additionally, Respondent will be ordered to make these employees whole for any loss of earnings they may have suffered by reason of their unlawful termination, with backpay to be computed on a quarterly basis, making deductions for interim earnings, and with interest to be paid at the rate of 6 percent per annum. F. W. Woolworth Conpany, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962), enforcement denied on different grounds 322 F.2d 913 (C.A. 9, 1963). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER25 The Respondent, Han-Dee Pak, Inc., Doraville, Georgia, its officers, agents, successors, and assigns, shall: 25 In the event no exceptions are filed as provided in 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 he deemed waived for all purposes. 463 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Interrogating employees concerning their union activities and sentiments. (b) Threatening employees with discharge, plant closing, or other reprisals (including loss of their statutory right to discuss grievances directly with management) if they select a union to represent them or engage in activities on behalf of a union. (c) Coercing employees by asking them to leave or report to the office because of their union activities or sentiments. (d) Creating the impression that the union activities of employees are under surveillance to discourage member- ship in or activities on behalf of a union. (e) Discouraging membership in or activities on behalf of Teamsters Local Union No. 728, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, or any other labor organization of its employees, by discharg- ing employees because of their activities on behalf thereof or otherwise discriminating in regard to the hire or tenure of employment or any terms or conditions of employment of its employees. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Evelyn Smith and Carol Kopis immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights previously enjoyed, and make them whole for any loss of pay due to the violation against them in accordance with the manner set forth in "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its place of business in Doraville, Georgia, copies of the attached notice marked "Appendix."2 6 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the consolidated complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices not specifically found herein. IT IS FURTHER ORDERED that the election held in Case 10- RC-10770 be, and it hereby is, set aside and that case be remanded to the Regional Director for Region 10 for the purpose of conducting a new election in the appropriate unit at such time as he deems the circumstances permit the free choice of a bargaining representative. 26 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate employees concerning their union activities and sentiments. WE WILL NOT threaten employees with discharge, plant closing, or other reprisals (including loss of their statutory right to discuss grievances directly with management) because they select a union as their bargaining agent or engage in union activities. WE WILL NOT coerce our employees by asking them to leave or report to the office because of their union activities or sentiments. WE WILL NOT create the impression that the union activities of our employees are under surveillance to discourage membership in or activities on behalf of a union. WE WILL NOT discourage membership in or activities on behalf of Teamsters Local Union No. 728, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, or any other labor organization, by discharging employees because of their activities on behalf of a union or otherwise discriminate in regard to the hire or tenure of employment or any terms or conditions of employment of our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through represen- tatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any or all such activities. 464 HAN-DEE PAK, INC. WE WILL offer Evelyn Smith and Carol Kopis immediate and full reinstatement to their former jobs or, if such positions no longer exist, to substantially equivalent positions of employment, without prejudice to their seniority or other rights and WE WILL make them whole for any loss of pay they may have suffered by reason of our discrimination against them. HAN-DEE PAK, INC. 465