Pacific Isle Packaging, Inc

1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Pacific Isle Packaging, Inc and Hotel Employees & Restaurant Employees Local 5, AFL-CIO, af- filiated with Hotel Employees and Restaurant Employees International Union, AFL-CIO Case 37-CA-2546 February 14, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On July 6, 1988, Administrative Law Judge Gordon J Myatt issued the attached decision The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions and a brief in response to the General Counsel's ex- ceptions and in support of its cross-exceptions The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,' findings, 2 and conclusions only to the extent consistent with this Decision and Order We agree with the judge's finding that the Re spondent did not unlawfully discharge its employ- ees or refuse to bargain with the Union Contrary to the judge, we find that the Respondent unlaw- fully threatened its employees in violation of Sec- tion 8(a)(1) The judge found, and we agree, that on August 11, 1987, the Respondent's employees walked out of the Respondent's facility striking on behalf of their demand for recognition As the employees were leaving the premises, Phyllis Lawrence, the Respondent's president and manager, repeatedly shouted at the employees that they were jeopardiz ing their jobs The judge found this statement law fully informed the employees that their jobs could be affected and that the Respondent was not re- quired to recite all the rights of economic strikers ' The General Counsel and the Respondent have excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces its that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 We reverse the judge s failure to admit into evidence a copy of a de cision of the State of Hawaii Unemployment Insurance Division regard ing the employees claim for unemployment insurance Duquesne Electric 212 NLRB 142 fn 1 (1974) We admit these documents nto evidence and note that their admission does not affect the outcome in this case Because of our resolution of the other issues in this case we find it unnecessary to pass on the Respondent s contentions that the judge erred in not drawing adverse inferences from the General Counsels failure to present Wade Kahele and Elroy Kaniho as witnesses as well as the fail ure to introduce the representation petition which Slim Ilae intended to file with the Board Economic strikers who have made unconditional offers to return to work have the right to full rein- statement and, if they have been permanently re- placed, the right to be placed on a preferential hiring list for openings that become available 3 The Respondent's blanket statement that the employees were jeopardizing their jobs clearly implied that by walking out the employees were in danger of losing their jobs The Respondent's unqualified statement could reasonably be interpreted as a threat of reprisal against the employees for engag- ing in strike activity Thus, we find that the state ment constitutes an unlawful threat in violation of Section 8(a)(1) 4 ORDER The National Labor Relations Board orders that the Respondent, Pacific Isle Packaging, Inc, Pearl City, Hawaii, its officers, agents, successors, and as- signs, shall I Cease and desist from (a) Threatening employees by telling them that they are jeopardizing their jobs because they engage in a strike (b) In any like or related manner interfering with, restraining, or coercing employees in the ex ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Post at its Pearl City, Oahu, Hawaii facility copies of the attached notice marked "Appendix "5 Copies of the notice, on forms provided by the Re- gional Director for Region 20, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 8 Laidlaw Corp 171 NLRB 1366 (1968) enfd 414 F 2d 79 (7th Cir 1969) cert denied 397 U S 920 (1970) 4 The General Counsel argues that the strike was an unfair labor prat tice strike We cannot agree The strike was not caused by the Respond ent s unlawful conduct The employees had already begun their walkout before the threats were made Nor is there sufficient evidence to establish that the strike was prolonged by the Respondents threats S If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation all 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 292 NLRB No 102 PACIFIC ISLE PACKAGING 1051 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT threaten you by telling you that you are jeopardizing your jobs because you engage in a strike WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act PACIFIC ISLE PACKING, INC Wanda L Pate and Michael S Hurtado Esqs, of Honolu lu, Hawaii, for the General Counsel Richard M Rand Esq (Torkildson Katz Jossem Fonseca & Moore), of Honolulu, Hawaii, for the Respondent William A Sokol Esq (Van Bourg Weinberg Roger & Rosenfeld), of San Francisco, California, for the Charg ing Party DECISION STATEMENT OF THE CASE GORDON J MYATT Administrative Law Judge On a charge filed on August 11, 1987 by Hotel Employees & Restaurant Employees, Local 5, AFL-CIO (the Union) against Pacific Isle Packaging, Inc (the Respondent), the Regional Director for Region 20 issued a complaint and notice of hearing on September 8, 1987 1 The substantive portions of the complaint allege that a majority of Re spondent's employees, in an appropriate unit, designated the Union as their exclusive representative for purposes of collective bargaining on August 10 That by means of an in person request on August 11 and by a written request on August 17 representatives of the Union sought recognition from Respondent as the exclusive bargaining representative of the unit employees and that Respondent unlawfully refused to recognize and bargain with the Union as such representative In addition, the complaint alleges Respondent unlawfully threatened to and did, discharge eight unit employees on August 11 be cause the employees engaged in union and/or protected concerted activities The complaint alleges that by this conduct Respondent has violated Section 8(a)(1) (3), and (5) of the National Labor Relations Act (Act), 29 U S C § 151 et seq Respondent filed an answer in which it ad mitted certain allegations of the complaint, denied others, and specifically denied engaging in conduct which vio lated the Act ' All dates refer to 1987 unless otherwise indicated A hearing was held on this matter in Honolulu, Hawaii, on October 21, 22, and 23, 1987 All parties were represented by counsel and afforded full opportune ty to examine and cross examine witnesses and to present material and relevant evidence on the issues raised here Briefs were submitted by the General Counsel and Re spondent and they have been considered On the entire record in this matter, and from my ob nervation of the witnesses while testifying I make the following FINDINGS OF FACT I JURISDICTION The pleadings admit, and I find, that Respondent, Pa cific Isle Packaging, Inc is a Hawaii corporation en gaged in the business of manufacturing corrugated pack aging and that Respondent maintains its primary place of business and facility in Pearl City, Oahu Hawaii 2 During the calendar year 1986, in the course of its bust ness operations, Respondent purchased and received at its Pearl City facility, goods and products valued in excess of $50,000 directly from points located outside the State of Hawaii Based on the foregoing, I find Respond ent is, and has been at all times material, an employer en gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The pleadings further admit and I find , that Hotel Employees & Restaurant Employees, Local 5, AFL- CIO, affiliated with Hotel Employees and Restaurant Employees International Union , AFL-CIO, is a labor or ganization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Background Facts Respondents president and general manager is Phyllis Lawrence She is also Respondents principal shareholder with a 60 percent ownership interest Roy Takemoto is Respondents accountant and the sole other shareholder with a 40 percent ownership interest At the time Law rence and Takemoto purchased the business from Re spondent s predecessor, six of the current unit employees were employed by the predecessor and continued to work for Respondent At the hearing the parties entered into a joint stipula tion regarding the scope of the bargaining unit but were in dispute as to the number of employees contained in the unit 3 The stipulation provided that the following was an appropriate unit for purposes of collective bar gaining within the meaning of Section 9(b) of the Act All full time and regular part time production and maintenance employees of Pacific Isle Packaging, Inc at its Pearl City, Hawaii facility, including 2 Respondent also has facilities on the Island of Maw and in Hilo on the big island of Hawau These facilities however are not the subject of concern in this proceeding 8 The stipulation is entered into evidence as Jt Exh I 1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD trucker shippers truckers, die cutters, slitters, oper ators, flexo assistants, taper apprentices, stackers and die mounters excluding office clerical employ ees, sales persons , guards and supervisors as defined in the Act The parties further agreed in the stipulation that nine employees were in the bargaining unit but disagreed about whether an additional employee, Brian Pacheco, was to be included in the unit Thus, the unit would con sist of 10 employees if Pacheco were included (as con tended by Respondent), and 9 employees if he were ex cluded (as contended by the General Counsel and the Charging Party) B The Employees Seek Representation by the Union The unrefuted testimony indicates Respondents em ployees became dissatisfied with their working conditions sometime during the late spring or early summer of 1987 They met after work one evening in Blaisdell Park in Pearl City and decided to seek representation by a union 4 The employees authorized employee Robert Lawrence to contact a union and arrange for a meeting 5 Robert Lawrence contacted Anson (Slim) Ilae, director of organizing for the Union, and eventually a meeting between the employees and representatives of the Union was arranged for August 5 in Blaisdell Park On August 5, eight of the unit employees met Ilae and another organizer from the Union, Clarence Baijo Walter Masaki, a diecutter and Meihle machine operator for Respondent, was on vacation at the time and did not attend this meeting According to Ilae and Baijo, the em ployees expressed a number of complaints ranging from the failure to receive sick leave benefits, favoritism being shown in the plant and the fact that they worked for a `witch of a boss " Ilae informed the employees about the advantages of union representation and explained the various ways the Union could attempt to seek recogni tion from the Respondent Ilae and Baijo testified they discussed with the employees the possibility of engaging in a strike to achieve recognition of the Union Accord ing to Baijo however this possibility was presented to the employees as a final option Ilae gave the employees authorization cards and told them to take the cards home and think the matter over before signing On various dates following the August 5 meeting six employees signed the authorization cards and gave them to Robert Lawrence to be turned over to the union rep resentative A second meeting was held in Blaisdell Park between Ilae and the employees on August 10 Francis Tisalona, who attended the earlier meeting, was the only unit employee not present at this meeting Masaki how ever, attended and signed an authorization card while there He gave this card to Lawrence at the meeting Lawrence in turn gave Ilae the seven signed cards in ad dition to his own signed card Ilae told the employees he intended to go to Respondents facility the following * Blaisdell Park is a location approximately 5 to 10 minutes away from Respondent s facility 6 Robert Lawrence was employed as a die mounter and machine me chanic by Respondent He is also a brother in law of Respondents press dent Phyllis Lawrence morning to request recognition of the Union from the Respondent The testimony differs to some degree about what Ilae told the employees at this meeetmg According to Ilae, he showed the employees a letter signed by Anthony Rutledge, the Union s financial secre tary treasurer to Respondent requesting recognition of the Union as the exclusive bargaining representative of the employees (G C Exh 2a) and a recognition agree ment (G C Exh 2b) to be signed if Respondent granted the recognition request Ilae further testified he told the employees that because a majority had signed cards, they could picket if recognition were refused or they could go to the Board and file a petition for an election 6 Ilae stated he recommended going to the Board as the alter nate procedure if recognition were refused Robert Lawrence recalled that Ilae stated he would request recognition from Respondent and, if refused, he would have to go to the NLRB Lawrence also testified that Ilae told the employees that if Respondent refused to recognize the Union, he would come into the plant and explain to the employees how long it would take to pursue the next step in achieving recognition Employee Nicholas Jale recalled that Ilae stated he would come into the plant after requesting recognition from Respondent and inform the employees about the position Respondent took regarding the request Jale was unable to recall any conversation occurring at the meet ing about employees going on strike for recognition or Ilae filing a petition with the Board Lester Omura Respondents flexo operator testified Ilae told the employees he was going to seek recognition based on the authorization cards If the recognition were refused by Respondent then according to Omura Ilae stated he was going to go to the Board Although he tes tified on direct examination that Ilae stated it would not be necessary to go to an election because the Union had a card majority, on cross examination Omura stated he meant to indicate that Ilae told the employees it would not be necessary to go on strike for recognition because the Union had a card majority Finally, employees Masaki and Rudolph Samson testi feed that Ilae stated he was going to seek recognition based on the authorization cards Samson stated he did not recall any mention of a strike or any plan for the em ployees to walk off the job, if Respondent refused to rec ognize the Union Masaki testified that Ilae said he would go to the Board if this occurred Masaki also testi feed that Ilae asked the employees if they were willing once the Union gained recognition to walk out in sup port of the Union s contract demands He stated the em ployees indicated they were willing to do so It is undisputed that the employees efforts to become represented by the Union became known by Respond ent s management The subject was one of open discus sion among the employees in the plant TakemOto testi feed that during the latter part of the week of August 5, Robert Lawrence told him the employees were seeking union representation and all were signing authorization 6 Although Ilae testified he also had a representation petition prepared at this time he did not show this document to the employees nor was such a petition filed with the Board PACIFIC ISLE PACKAGING 1053 cards Takemoto notified Phyllis Lawrence but learned that she already knew this was occurring ' Phyllis Law rence sought advice from her attorney who referred her to Michael McGuire, a labor consultant A meeting be tween McGuire and Respondents owners was arranged for the morning of August 11 at Respondent s facility C The Events on August 11 On August 11, McGuire arrived at Respondent s facile ty sometime between 7 30 and 8 a in After a tour of the working area of the warehouse like facility s McGuire met with Respondent s owners in Lawrence s private office to discuss the unionization effort on the part of the employees Among other things, McGuire informed Lawrence and Takemoto about their rights and the rights of the employees during a union organizing cam paign He advised Lawrence that she did not have to sign any documents for the Union but was free to direct the union representatives to the Regional Office of the National Labor Relations Board While discussing the matter, Lawrence was informed by the receptionist that union representatives were in the reception area waiting to see her The testimony is in sharp conflict about what occurred thereafter in the reception room and in the working area of the warehouse Ilae testified he arrived at the plant shortly after 9 a in He was accompanied by Baijo and another union repre sentative, Dean Masai The latter, a communications as sistant for the Union had been asked by Ilae to accom pany the union representatives in order to photograph the unit employees cheering in the event Respondent granted the Union recognition According to Ilae after the receptionist informed Phyllis Lawrence of the pres ence of the union representatives, they had to wait sever al minutes for Lawrence to come out of her office When Lawrence appeared, Ilae stated he told her they were there about her men in the warehouse' Lawrence replied she did not want to hear anything about the Union and ordered the union representatives off her premises Then, according to Ilae he told Lawrence this was a serious matter and advised her to seek legal assist ance Ilae also testified he attempted to show Lawrence the recognition request and agreement Ilae stated Law rence continued to order the union representatives off her property and told them to go to the Board 9 Accord ing to Ilae, he thanked Lawrence for her time and left the office with the other two union representatives Ilae further testified that the union representatives then went directly into the plant area of the facility to find Robert Lawrence He said their purpose was to inform the em ployee about what occurred in the office and the course 7 Robin Transfiguracion Respondents production manager testified Tisalona informed him prior to August 11 that the employees had se cured cards from Local 5 and were trying to organize a union Tisalona identified Robert Lawrence as the leader in the unionization effort 8 A rough hand-drawn sketch of the facility including the office area was put into evidence as G C Exh 4 This sketch depicted various types of machinery in different locations on the warehouse floor as well as large stacks of corrugated paper stock located throughout the warehouse Photographs of the reception area and various locations throughout the warehouse itself were placed into evidence as Resp Exhs 4 through 12 8 Baijo and Masai likewise testified that Lawrence ordered the union representatives off the property and directed them to the Board the Union would now follow in order to achieve recog nition Ilae acknowledged that he did not tell Lawrence that he intended to go into the warehouse to speak with the employees and, of course, did not request permission to do so Annette Maunupau, the receptionist and Phyllis Law rence gave a different version of the statements made in the reception area Maunupau, who first began employ ment with Respondent on the previous day, recalled that Ilae told Lawrence he wanted to talk about the employ ees and Lawrence replied that the union representatives should go to the Board According to the testimony of Maunupau and Lawrence, Ilae asked if that was what Lawrence wanted and when Lawrence confirmed this Ilae replied Fine, you had better call the police because I am going to walk the boys Lawrence testified Ilae left mumbling something that she was unable to under stand Maunupau, however, stated that when Ilae left he said, It's nice doing business with dummies like you io According to Phyllis Lawrence, she returned to her office and informed McGuire and Takemoto that Ilae said she should call the police because the union repre sentatives were going to pull the employees Lawrence stated she told McGuire she was going into the plant and ask Ilae to leave, because he s trespassing into my ware house' Lawrence stated McGuire agreed she should order the union representatives out because they were trespassing She testified she then went into the ware house and Takemoto followed her McGuire, on the other hand, testified that when Lawrence returned to the office she said Ilae wanted her to sign some docu ments and she told Ilae 'to go to the NLRB Accord ing to McGuire, Lawrence reported that Ilae then said, Okay, then you'd better call the police because I in going to pull the men out' McGuire stated he then sug Bested Lawrence go back to make sure the employees were still at work The testimony regarding the events in the warehouse is as conflicting as the testimony regarding the state ments made in the reception area Ilae stated that be cause he had never been in Respondents warehouse, he did not know where the employees were normally locat ed when working He testified he saw employee Elroy Kaniho and asked where Bobby was referring to Robert Lawrence Kaniho indicated Lawrence was at the back end of the warehouse area and Ilae proceeded down the aisle calling out the name Bobby He was followed by Baijo and Masai who were walking several feet behind him According to Ilae Phyllis Lawrence came down the aisle yelling and screaming at him He stated Phyllis Lawrence said he had no business there and to get off her premises Ilae testified he told Phyllis Lawrence that he had to inform the employees that Lawrence did not want to talk with the union represent atives and they would have to go to the Labor Board and file a petition When Lawrence continued to scream at him Ilae told her to get out of [his] face Finally Ilae told Lawrence to kiss my ass She retorted, You 10 All the union representatives denied that Ilae told Lawrence to call the police because the Union was going to pull the employees or that he made the parting comments attributed to him by Maunupau 1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD kiss my ass and Ilae replied, Move your nose Ilae stated all the employees were standing around them at this time and Lawrence looked at everybody and said, You guys want the Union? I want you all off my prem ises Your jobs are in jeopardy Take your cars, get off of my premises Ilae stated that Phyllis Lawrence then called out to her production manager, Robin Transfigur scion He stated she told Transfiguracion to shut the machine down and close the doors At this point ac cording to Ilae he stated to the employees, Well, I guess she wants us out ' and they all proceeded to walk toward the door located at the north end of the ware house 11 Ilae further testified that while the employees and the union representatives were walking toward the door, Phyllis Lawrence kept yelling to the employees that their jobs were in jeopardy and that she wanted them off of her premises The testimony of the other union representatives while not as detailed as that of Ilae, was substantially in agreement with the statements given by Ilae Baijo testi fled he was following several feet behind Ilae when the union representatives entered the warehouse area 12 Baijo stated he had never been in that type of facility before and he was occupied with looking around to ob serve the kind of machinery and equipment being used He further stated he did not hear all the comments that passed between Ilae and Phyllis Lawrence except when their voices were loud According to Baijo, as the union representatives were walking down the aisle in search of Robert Lawrence, Phyllis Lawrence came down the aisle "screaming' for the union representatives to get off her property She was followed by a Japanese man whom Baijo did not know but later learned was Take moto Baijo's testimony indicated that the employees began to gather around Phyllis Lawrence and Ilae when the profane exchange took place between them He stated Phyllis Lawrence then told the employees, You want a union? You all get off my property and move your cars from my property Your jobs are in jeopardy At this point according to Baijo, the employees were just standing around and Ilae said Let s go Although on direct examination Baijo did not state that he ever heard Phyllis Lawrence order Transfiguracion to close the warehouse doors, when pointed out on cross exami nation that his affidavit indicated he heard this order Baijo testified he did not hear such an order given by Lawrence On redirect examination however, Baijo re called that he heard Lawrence tell Transfiguracion to close the warehouse doors He stated he left the ware house by a smaller side door leading to the parking lot because Transfiguracion was closing the large rollup door at the time Masai s testimony was essentially similar to that of Baijo Masai stated that as the union representatives were walking into the warehouse Ilae was asking employees where Robert Lawrence was working According to Masai, as the union representatives walked further down the aisle Robert Lawrence appeared and Ilae told the employee, She [Phyllis Lawrence] doesn't want to talk Masai recalled that Phyllis Lawrence came up at that point screaming for the union representatives to get off her premises He further stated that Ilae told Lawrence that he wanted to tell the employees what was going on and it was at this juncture that Ilae and Phyllis Lawrence engaged in the swearing exchange It was then according to Masai that Lawrence told all the em ployees that if they wanted the Union, their jobs were in jeopardy and to get their cars off her property Masai denied that Phyllis Lawrence told the employees to return to work as they were leaving The unit employees who testified also substantially tracked the testimony of the union representatives Robert Lawrence testified he was working on the press at the time Ilae came into the warehouse Although the power to the equipment was on, the press was not in op eration at the time because Lawrence was changing the printing dies for the next job order Wade Kahele13 and Brian Pacheco were working on the press with Law rence Robert Lawrence testified he heard his name being called and he walked out from behind the press into the aisle where he noticed Rae He stated Phyllis Lawrence was there ordering Ilae off the premises and Ilae was explaining that he wanted to talk with Robert Lawrence Robert Lawrence further testified that as he approached Ilae Phyllis Lawrence was blocking them and continued to order the union representatives off the property Because of this, he and Ilae proceeded up the aisle in the direction of the office area While doing so Ilae told Phyllis Lawrence to get out of his face and Phyllis Lawrence replied, No just get off my god damned premises a Robert Lawrence testified that it was at this point the profane exchange took place between Ilae and Phyllis Lawrence After the exchange, Phyllis Lawrence then turned to the employees, who had gath ered around, and told them if they wanted the Union their jobs were in jeopardy and to get their cars off her property Robert Lawrence further testified that Ilae then stated, Well I guess she doesn t want you guys so lets go According to Robert Lawrence it was then that the employees and the union representatives began to leave the premises Robert Lawrence testified he had forgotten his truck keys and he returned to the area of the die room to get them He stated that when he went to exit through the door normally used by the employ ees, it had been closed by Transfiguracion Phyllis Law rence then instructed Transfiguracion to open a small side door and Robert Lawrence and Kaniho left the warehouse 14 Omura, who operated the flexo machine, testified that that piece of equipment was down at the time the union representatives came into the plant because he and Transfiguracion were changing the dies and ink for a new job order 15 To do so they had to go inside the ma 11 This door is a large rollup door leading to the parking area It is normally used by employees when entering or leaving the warehouse 12 According to Baijo Ilae had informed him and Masai prior to coming to Respondent s facility that Ijae had promised the employees he would come into the plant and tell them about the outcome of the meet mg with Phyllis Lawrence 1 s Kahele was not called as a witness in this proceeding 14 Kaniho also did not testify in this proceeding 15 The layout of the warehouse indicates the flexo and press machines were in the same general area Large drums of ink were located between Continued PACIFIC ISLE PACKAGING chine and work approximately a foot or so apart Gor salves and Jale, the helpers on the flexo, were standing outside the machine near the front cleaning up for the next order Omura further testified he first became aware of the commotion in the warehouse when he heard Phyllis Lawrence call out to Transfiguracion saying, Oh Robin, the man is here Let the boys go Omura stated he then heard either Gonsalves or Jale call out, Bobby, Slim s here " Omura testified he continued working in the flexo for several minutes and while there observed Ilae and Phyllis Lawrence arguing in the vicinity of the press Omura left the flexo and went to a desk in the area and took his cap and automobile keys He further stated he then followed Ilae and Phyllis Lawrence down the aisle where he heard them exchange profanities It was then according to Omura that Phyllis Lawrence turned to the employees who had gathered around and ordered them out saying their jobs were in jeopardy According to Omura, he left by the rear rollup door before it was closed by Transfiguracion He denied that either Robert Lawrence or Ilae instructed the employees to walk off their jobs He also denied that Phyllis Lawrence ever told the employees to return to their jobs because work was available Jale s testimony indicates he heard Ilae and Phyllis Lawrence yelling at each other as the union representa tives came into the vicinity of the press and flexo ma chines According to this witness, Phyllis Lawrence came near the front of the flexo and told Transfigura cion, The union guys are here Turn off the machines He stated he observed Robert Lawrence coming from the press toward Ilae and Phyllis Lawrence standing be tween them yelling at Ilae as he attempted to speak with Robert Lawrence Jale confirmed that Ilae and Phyllis Lawrence exchanged insults and then, according to Jale, Phyllis Lawrence told the employees that if they wanted the Union their jobs were in jeopardy and to take their vehicles and leave the property He, too, denied Ilae or Robert Lawrence ever instructed the employees to leave their jobs or that Phyllis Lawrence ever told the em ployees work was available to be done and to return to their machines Gonsalves also testified he heard Phyllis Lawrence and Ilae arguing as they approached the area of the flexo machine He further testified that when he saw Ilae and Baijo approaching, he called to Robert Lawrence to let him know that the union representatives were there Gonsalves stated Phyllis Lawrence came toward the flexo and told Transfiguracion to turn the machines off' He stated that when Robert Lawrence came from the press and attempted to talk with Ilae, he was unable to do so because Phyllis Lawrence was screaming for Ilae to leave the premises According to Gonsalves, the employees began to leave their machines and follow Phyllis Lawrence and Ilae back up the aisle It was during this time that he heard the exchange of profanities between Ilae and Phyllis Lawrence Gonsalves further testified that Phyllis Lawrence then said to the employ the two machines with a passageway on either side (See G C Exh 4 and R Exhs 6 and 8 ) 1055 ees, You guys want a union? Do you know your jobs are in ,jeopardy? And you guys still want a union? Get off my premises Move all your cars from the parking lot Gonsalves stated the employees then began to leave the warehouse Masaki and Samson were working on the rotary at the time of the events in the plant Masaki stated the ma chine was down due to a jam of the material when Ilae and the union representatives came by followed by Phyl lis Lawrence and headed toward the flexo and press area He and Samson were working to clear the jam in the machine Masaki and Samson stated they could not hear all the conversation that took place between Phyllis Lawrence and the union representative Samson asserted the large stacks of corrugated stock tended to absorb all but the loudest sounds Masaki testified he heard a slight commotion' and then someone asked, Where s Walter, referring to Masaki At that point the group came back up the aisle headed in the area of the rotary Masakt stated he then heard the insulting exchange be tween Ilae and Phyllis Lawrence A few seconds later, according to Masaki, he heard Phyllis Lawrence say Get your cars off my premises " Masaki testified he thought Phyllis Lawrence was saying `Get out, ' and he left by the door normally used by Respondents custom ers Samson s testimony was only slightly more detailed than that of Masaki He stated he heard the yelling when Ilae and Phyllis Lawrence were in the press and flexo area, but could not distinguish what was being said by the parties As the group came nearer to the rotary he heard Phyllis Lawrence say, Get out of here if you want the Union Your jobs are in jeopardy Get your stuff out of here' According to Samson, he then went to the slitter to get his car keys and left along with the other employees The testimony of Respondents witnesses concerning the events in the warehouse is in sharp conflict with that of the testimony given by the employees and the union representatives Takemoto stated that when he followed Phyllis Lawrence into the plant he observed Ilae talking to Robert Lawrence in the area of the press machine According to Takemoto, he then heard Robert Law rence say in a loud voice Turn off the machines, we re walking out '16 Takemoto further testified that Ilae also told the employees to turn off their machines because they were walking out He stated he followed the union representatives Phyllis Lawrence and the group of em ployees as they headed up the aisle toward the exit During all this time according to Takemoto, Phyllis Lawrence was asking the union representatives to please leave the premises ' He stated Ilae told Phyllis Lawrence to shut up and when she continued to ask them to leave Ilae swore at her Phyllis Lawrence re plied in kind and the group continued walking Take moto also stated that as the employees were moving toward the exit, Phyllis Lawrence told them to please get back to your jobs, because you re jeopardizing your 16 Takemoto also testified he thought he heard Robert Lawrence call out the name Walter Masaki and state Turn off the machine be cause we re walking out 1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD jobs" He stated the employees left nonetheless, and Phyllis Lawrence directed Transfiguracion to close the rollup door leading to the parking area because Respond ent had flammables stored in containers by the open door 17 Pacheco testified he was helping Robert Lawrence and Kahele on the press on August 11 when he heard Robert Lawrence s name being called and observed three individuals (later identified as the union representa tives) approaching the area He told Robert Lawrence someone was calling him and Lawrence came out of the press and walked in their direction toward the stacker 18 According to Pacheco, Ilae said to Robert Lawrence, She [Phyllis] doesn t want to talk, lets go Pacheco testified Robert Lawrence then went over to the flexo machine and told the employees there Lets go Pa checo stated that while this was occurring, Phyllis Law rence was asking the union representatives to please leave the premises Pacheco further testified he did not want to get involved and he walked to the back of the press and remained there He stated that he did not hear Phyllis Lawrence tell the departing employees to return to their jobs because work was available Pacheco acknowledged on the witness stand that counsel for the General Counsel had spoken to him at his home about the events on August 11 the day before the hearing began in this matter He also acknowledged that while she made notes of his statements that he re fused to sign, he reviewed the notes and agreed that they correctly set forth his comments He admitted that he had not divulged to counsel for the General Counsel that Ilae told Robert Lawrence that Phyllis Lawrence did not want to talk and to let s go Pacheco further admitted expressing concern about where he stood if the employ ees who were now picketing were reinstated He testi fled that after the employees left the warehouse Re spondent promoted him from his utility position to that of an assistant flexo operator His wages were increased with the promotion from $4 an hour to $7 21 an hour Transfiguracion testified he was working in the flexo with Omura changing the dies when he heard someone calling for Bobby He observed Ilae approaching the stacker He stated that as he continued to work on the dies Phyllis Lawrence came over to the flexo and said Robin come and help me because the Union is here and they re going to pull the boys out According to Trans figuracion, he then went to the restroom to clean the ink from his hands When he came out, he heard voices by the side door-referring to the rear rollup door-and he proceeded through the passageway between the rotary and taper machines and large stack of stock toward the main aisle in the plant Transfiguracion further testified that as he walked up the aisle he observed several em ployees leaving by the main customer door and getting 11 The outline of the warehouse reveals there was another large door on the east side of the building facing the main driveway leading to Re spondent s property This door was also apparently a rollup door and was used by Respondents customers for picking up materials and prod ucts The testimony indicates this door remained open and only the door leading to the parking lot area was closed by Transfiguracion 18 The stacker apparently is a piece of equipment located directly in front of the press into their vehicles He stated as he approached the rear door he saw Phyllis Lawrence and heard her say, Boys get back to work or your jobs will be jeopardized He further stated that Robert Lawrence and Kaniho were the last of the employees to leave, and he then closed the rollup door because Phyllis Lawrence was fearful some one would toss a cigarette butt in the area of the flamma bles 19 Respondents final witness regarding the events on August 11 was Phyllis Lawrence She testified that she followed the union representatives into the plant from the office area after Ilae stated he was going to pull the employees According to Phyllis Lawrence she heard Ilae calling out the name Bobby as the representatives proceeded down the aisle to the flexo and press area She stated she caught up with them in front of the stack er and observed Robert Lawrence there at the time She stated she told the union representatives to please leave the premises Ilae at this point according to Phyllis Lawrence told her to shut up He then directed Robert Lawrence to get the boys, saying She does not want to listen Phyllis Lawrence further testified she then went to the flexo machine to get assistance from Transfigure cion She stated she told Transfiguracion, The Union was there to walk the boys, to come and help me She testified that Omura, who was inside the flexo machine with Transfiguracion, then walked forward away from her She further testified that she caught up with Ilae in the vicinity of the taper machine 2O and again ordered the union representatives off her premises Phyllis Law rence stated that as the union representatives and the em ployees who were now gathering around proceeded down the aisle toward the rear rollup door she continued to tell the union representatives to get off the premises Lawrence denied that she was screaming or yelling at the representatives but stated she told them to leave at least eight or nine times during the confrontation in the warehouse According to Phyllis Lawrence she ob served employees Jale and Kahele walking out of the rear door She stated they were in front of her and the union representatives As she approached the rear rollup door, she called to Kahele and Jale and other employees who were leaving to come back to work because there was work available She testified she made this statement to the employees twice as they were leaving When her comments were not acknowledged she called to the em ployees stating they were jeopardizing their jobs if they did not return to work Lawrence further testified that after the employees exited the warehouse, she instructed Transfiguracion to lower the rear rollup door because drums of flammables were stored next to the door D The Subsequent Events After the employees left the premises, they drove their vehicles off Respondents property and gathered outside i0 The record indicates the area where flammables were located was also used by the employees during their break or rest periods It con tamed chairs for sitting and empty coffee cans in which smoking material was disposed 20 The sketch of the working area of the warehouse indicates the taper and rotary machines were in the same general vicinity PACIFIC ISLE PACKAGING 1057 on the public space fronting the entrance to Respond ent s property Masaki testified that when he got outside on the public space he was informed that Phyllis Law rence had kicked the employees out because the Union had requested recognition Ilae and the union representa tives stated they went to the trunk of their automobiles and took out make shift picket signs which Masai let tered for the employees Ilae testified that all the union representatives had blank picket signs in their cars be cause the Union had an on going dispute with the Ilikai Hotel and were required to serve on picket line duty during the week The make shift picket signs, lettered at the site by Masai, contained the following PACIFIC ISLE PACKAGING WE WANT LOCAL 5 employees were ordered to leave the premises by Re spondent for supporting the Union and thereby withdrew their labor In this letter the Union asserted the eight em ployees were unfair labor practice strikers (See G C Exh 5) Respondent replied to the Unions August 18 letter on August 24 There, Respondent rejected the Union s characterization of the employees as unfair labor practice strikers and maintained its position that they were engaging in a recognitional strike on behalf of the Union (See R Exh 17 ) The record also reveals that on October 1, Walter Masaki was reinstated by Respondent According to Re spondent, a vacancy occurred and Masaki was offered reinstatement which he accepted At the time of the hearing, however, all the other employees remained un reinstated Later that same day, after unfair labor practice charges were filed with the Regional Office of the Board, the word unfair' was added to the legend of the picket signs On August 17, the Union sent a letter, over the signa ture of Anthony Rutledge, making an unconditional offer on behalf of the picketing employees to return to their jobs 21 Among other things, the letter stated The following eight (8) employees, citing the names of the employees who withdrew their labor at 9 a m, August 11, 1987 in support of their demand that you recognize and bargain in good faith with their representative, Hotel Employees & Restaurant Employees, Local 5, hereby unconditionally offer and demand to return to work effective immediate ly 22 Rutledge testified the letter was dictated by the Union's attorney over the telephone from San Francisco Respondent replied to the Union s offer on behalf of the employees by letter on the same date In its letter, Respondent reiterated that the employees withdrew their services in support of the Union s demand for recogni tion and stated that Respondent had hired permanent re placements to fill the positions vacated by the employ ees 23 Respondent offered in its letter to put the picket mg employees on a preferential rehire list for vacancies as they occurred (See R Exh 14) The Union replied the following day with a letter again over the signature of Rutledge stating that Respondent had misconstrued the initial letter In this letter the Union stated that the 21 The eight picketing employees were Nicholas Jale Rudolph Samson Christopher Gonsalves Lester Omura, Robert Lawrence Elroy Kaniho Walter Masaki and Wade Kahele 22 It should be noted at this point that the complaint in this case al leged in par 9(a) that the Union requested recognition in person on August 11 and on August 17 by letter The General Counsel concluded her case without introducing the Union s letter of August 17 Before Re spondent presented its case it moved to have this portion of the allege tion in par 9(a) dismissed for failure of proof The General Counsel at that point offered no explanation and the motion was granted The letter however was introduced into evidence by Respondent through the wit ness Phyllis Lawrence as Resp Exh 13 23 The husband of Maunupau (the receptionist) was hired on August 13 as one of the replacements He was hired as an apprentice flexo opera tor Concluding Findings Although this case raises several issues, the central issue to be decided is whether the employees left their jobs in support of the Union s request for recognition or whether they were unlawfully discharged by Phyllis Lawrence because they were seeking to be represented by the Union As the lengthy recital of the testimony dis closes, the ultimate resolution of this issue rests almost exclusively on the credibility that is accorded the testi mony of the various witnesses Although this Solomonic search for the truth is difficult at best it is one which nevertheless must be made no matter how harsh the re sults In arriving at my credibility determinations I am not unmindful that rarely do witnesses perceive or hear the same events in the same fashion Also, that testimony purported to be truthful and accurate is often influenced by the interest the witness has in the outcome of the pro ceeding in which the testimony is given Bearing this in mind, and having closely observed the demeanor of all the witnesses while testifying, I find the truthful account of what occurred on August 11 does not completely conform with the versions given by the wit nesses for either side Rather I find the truth lies some where in between Thus while I find portions of the tes timony given here to be reliable and trustworthy, I find other portions of the testimony of the same witnesses to be unworthy of belief NLRB v Universal Camera Corp 179 F 2d 749 754 (2d Cir 1950) Herrick & Smith 275 NLRB 398 (1985) Enterprise Products Co, 265 NLRB 544 (1982) First, as noted there is no real contention that the Union did not possess eight validly executed authonza tion cards when the union representatives came to Re spondent s facility on August 11 Therefore, whether the unit consisted of 9 or 10 employees is of no consequence because the Union clearly represented a majority of the employees in the unit I reject Respondents contention that Ilae failed to make a proper demand for recognition in an appropriate unit I credit the testimony of the union representatives that Ilae told Lawrence he wanted to talk about [her] men in the warehouse ' and mentioned the recognition agreement that he wanted her to sign Lawrence cut off 1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD all other conversation regarding the recognition request by refusing to discuss the matter with Ilae referring him to the Board, and ordering the union representatives off the premises I do not credit the testimony of Lawrence or Maunupau that Ilae s statements about the purpose of his visit was as limited as they indicated My finding in this regard is further reinforced by the testimony of McGuire that Lawrence reported Ilae had documents he wanted her to sign and she referred him to the Board In addition, it is undisputed that Lawrence was aware, prior to Ilae's arrival, that the employees in the ware house were seeking union representation and signing au thorization cards This fact had been reported to her by Takemoto and had also been made known to Transfigur acion by Tisalona Indeed, the prospect of the unioniza tion of the employees was the sole reason why Lawrence was consulting with McGuire at the time the union rep resentatives appeared on the premises In these circumstances, I find the record fully estab lishes that the Union made a valid request for recogni tion for an appropriate unit of Respondents employees The fact that Lawrence foreclosed any further discussion regarding the Union s request for recognition in no way vitiates the adequacy of the demand Cf Medical Inves tors Assn, 260 NLRB 941, 948 (1982) This finding, however does not conclude the analysis of the events that occurred in the reception office Con trary to the testimony of the union representatives, I find that Ilae did, in fact, tell Lawrence he was going to walk the employees and she had better notify the police In arriving at this conclusion, I do not accept the Respondent's contention that the union representatives and the employees had agreed on a prearranged plan to walk out if the recognition demand was rejected I find their testimony to be candid and forthright in that all op tions were discussed during the predemand meetings but that the prospect of walking out was presented as the least desirable approach 24 Whether Ilae subsequently changed his plans without notifying the employees or whether he became angered by the manner in which Lawrence summarily rejected the Union's request for recognition I am unable to state Nonetheless, I am per suaded Ilae made the statement attributed to him by Lawrence and Maunupau when he turned to leave the reception area In the absence of such a statement, there was no reason for Lawrence to first go back into her office to speak to McGuire and Takemoto before going into the plant If, at this point, she entertained any fear that the union representatives would not leave the prem ises, she would have merely had to follow them from the reception area to make certain they were departing Once in the plant, it is apparent that the level of ten sion and emotion between Lawrence and the union rep resentatives rose to a heightened pitch I do not credit Phyllis Lawrence s testimony that she was as calm or composed as she attempted to portray on the witness stand Nor do I credit her testimony, or that of Take moto or Pacheco that Lawrence was simply asking the union representatives to please leave the premises Rather I find from the credited testimony that as Ilae and the union representatives were walking further into the warehouse in a determined search for Robert Law rence, Phyllis Lawrence following closely, was equally as determined and adamant in demanding that they leave her premises The more her demands were being ig nored the more strident they became By the time the group reached the vicinity of the stacker she and Ilae were shouting at each other I credit the testimony of Phyllis Lawrence and only to this limited extent that of Pacheco'25 in that when Robert Lawrence appeared from the press Ilae said, `She doesn t want to listen, let s go It was then that Phyllis Lawrence went toward the flexo and called for Transfiguracion to assist her because the Union was going to pull the employees I do not, however, credit the testimony of Pacheco that Robert Lawrence told the employees on the flexo to let's go, ' or the testimony of Takemoto that Robert Lawrence called out for the em ployees to turn off their machines and walk Similarly I do not credit the statements of Omura or Jale that Phyl lis Lawrence ordered Transfiguracion to turn off the ma chines and let the employees go I find these statements by each of these witnesses to be nothing more than unre liable embellishments of the events that occurred in the plant It is unrefuted that as Robert Lawrence walked with Ilae and the union representatives toward the rotary and taper machines, employees were beginning to move with them toward the exits and Phyllis was still loudly insist ing the union representatives leave her premises It was then that the profane exchange, initiated by Ilae, took place Despite the uniformity of the testimony of the em ployees and the union representatives, I do not find that Phyllis Lawrence at this point ordered the employees to leave the premises and remove their vehicles from her property Having observed the witnesses carefully I am firmly convinced this portion of their testimony was con trived to support the claim that they were ordered out of the warehouse by Lawrence I particularly note that Masaki who left at the same time the other employees departed testified the employees were told, once they were outside, that they had been kicked out" when Ilae asked for recognition Therefore, I find that the employ ees having heard the highly charged confrontation be tween Phyllis Lawrence and Ilae and observing Robert Lawrence walking away with the union representatives, interpreted this, rightly or wrongly, as a signal to leave their employment in support of the Union s demand for recognition I further find that as the employees were heading toward the open doors on the side and at the rear of the warehouse, Phyllis Lawrence was following, calling out that they were jeopardizing their jobs By her own admission she made this statement several times and 25 I find Pacheco to be the most Lnreliable of the witnesses in this pro 24 Although the fact that a representation petition was never shown to ceedmg His evasiveness on the stand and his obvious concern about the employees during the meeting on August 10 or filed with the Board maintaining his current position with Respondent at a substantial wage is probative of whether Ilae intended to file a petition at all I do not increase persuades me to disregard his testimony where it is not corrobo deem it conclusive evidence that he had no such intention rated by other credited testimony PACIFIC ISLE PACKAGING 1059 I am persuaded that the final statement regarding the jeopardy of their jobs was made as she approached the rear door from which most of the employees were de parting I attach no significance to the fact that Phyllis Lawrence ordered the rear door closed after her con frontation with Ilae It is undisputed that the main door used by Respondent's customers remained open through out the day Therefore, I do not find the closing of the rear door to indicate anything other than Respondent s efforts to ensure the safety of its premises after the heated confrontation with the union representatives Finally, if any lingering doubts existed as to the basis for the reason the employees left the premises on August 11, they were fully dispelled by the Union's letter on August 17 There, the Union, in making an unconditional offer and demand for the employees to be returned to their jobs, stated the employees withdrew their labor in support of the Union's demand for recognition Although Rutledge testified this letter was dictated long distance by the Union's attorney in San Francisco, there is a clear presumption that the wording of the letter was based on facts supplied by the Union Thus, I deem this letter to be an admission that reinforces the finding that the em ployees voluntarily left their jobs to support the Union's request for recognition Nor does the Union's subsequent letter soften the impact of this revealing admission I find the second letter to be nothing more than an ineffectual attempt to nullify the admission by belatedly asserting the employees withdrew their labor because they were ordered to leave the warehouse Common experience dictates that had the employees been unlawfully terms nated by Phyllis Lawrence, as now asserted, a seasoned union official such as Rutledge would have noted that claim in his initial letter and made it the focal point for the assertion that the employees were entitled to immedi ate reinstatement to their jobs Based on all the above findings, I conclude that the General Counsel has failed to establish by a preponder ance of the credible evidence in the record that Re spondent has committed violations of the Act Thus, I find Respondent did not discharge the employees on August 11 because they sought to be represented by the Union I further find that Respondent in the circum stances presented here, did not threaten the employees with loss of their jobs because they were seeking repre sentation by the Union There is no requirement that an employer recite, in haec verba, all the rights of economic strikers to employees who are voluntarily leaving their jobs in support of a unions demand for recognition 26 Therefore, when Phyllis Lawrence told the employees they were jeopardizing their jobs by leaving, she was telling them, in an imprecise fashion, that their current job status could be affected Finally, having found that Respondent did not commit any unfair labor practices prior to, during, or after the Union's demand for recogni tion, Respondent was privileged to refuse the request to recognize the Union and refer the union representatives to the Board Summer & Co v NLRB, 419 US 301 (1974) In sum, the General Counsel has failed to establish that Respondent has violated Section 8(a)(1), (3), or (5) of the Act Therefore, I find the complaint in this case must be dismissed in its entirety CONCLUSIONS OF LAW 1 Respondent, Pacific Isle Packaging, Inc, is an em ployer engaged in commerce within the meaning of Sec tion 2(2), (6), and (7) of the Act 2 Hotel Employees & Restaurant Employees, Local 5, AFL-CIO affiliated with Hotel Employees and Restau rant Employees International Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act 3 Respondent did not threaten employees with loss of their jobs because they engaged in union or other con certed activities 4 Respondent did not discharge employees because they sought to be represented by the Union 5 Respondent did not unlawfully refuse to bargain in good faith with the Union when it sought recognition as the collective bargaining representative of the employees in an appropriate unit [Recommended Order omitted from publication ] 28 See NLRB v Fleetwood Trailer Co 389 U S 375 (1967) Laidlaw Corp 171 NLRB 1366 (1968) enfd 414 F 2d 99 (7th Cir 1969) cert denied 397 U S 920 ( 1970) (setting forth the rights of economic sinkers)