Free-Flow Packaging Corp.

National Labor Relations Board - Board Decisions

Aug 1, 1975

219 N.L.R.B. 925 (N.L.R.B. 1975)

FREE-FLOW PACKAGING CORPORATION
Free-Flow Packaging Corporation and Leather, Plas-
tics and Novelty Workers Union, Local 31. Case
20-CA-8746
August 1, 1975
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On October 30, 1974, Administrative Law Judge
Maurice M. Miller issued the attached Decision in
this proceeding. Both Respondent and General
Counsel filed exceptions to the Administrative Law
Judge's Decision and supporting briefs. The General
Counsel also filed an answering brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent they are consistent herewith.
The complaint alleged (1) violation of Section
8(a)(1) by withholding a scheduled wage increase in
order to discourage unionization, (2) violation of Sec-
tion 8(a)(3) by the discharge of five employees be-
cause of their union support, and (3) violation of Sec-
tion 8(a)(5) and (1) by refusing to bargain with the
Union as exclusive representative of the South San
Francisco plant employees. Also, in a companion
representation case , issues were raised with respect to
the results and validity of a Board-conducted elec-
tion held on November 2, 1973. The representation
and complaint proceedings were consolidated for
hearing before the Administrative Law Judge. A
highly contested issue relevant to both the complaint
and representation cases was whether Thomas Lara,
Jr., was a "supervisor" within the meaning of the
Act. Interrelated with this issue was Respondent's
claim, for reasons discussed more fully later, that
Lara's testimony should be excluded. The Adminis-
trative Law Judge received Lara's testimony and
found him to be plant manager of the South San
Francisco facility, and a supervisor within the mean-
ing of the Act.2 After Lara testified, the General
Counsel moved to amend the complaint to allege ad-
ditional 8(a)(1) violations based upon coercive inter-
1 Respondent's motion to strike certain portions of the General Counsel's
answering brief is hereby denied.
2 After the Administrative Law Judge 's Decision , the representation case
was severed and remanded to the Regional Director.
925
rogation concerning union activities, promises of
benefits to discourage unionization, and threats of
retaliation for union support. The motion was denied
by the Administrative Law Judge, and the General
Counsel has excepted.
Relying upon Lara's supervisory status and testi-
mony, as well as the testimony of others, the Admin-
istrative Law Judge found that Respondent violated
Section 8(a)(1) of the Act by withholding the sched-
uled October 1 wage increase from production and
maintenance workers within its South San Francisco
facility for the purpose of discouraging support for
the Union, but found no unfair labor practice viola-
tions in the discharge of five employees. Also, as pre-
viously mentioned, the Administrative Law Judge re-
fused to permit the General Counsel to amend the
complaint to allege further violations of Section
8(a)(1). Finally, the Administrative Law Judge found
that a bargaining order was not warranted in the cir-
cumstances of this case. We agree with the Adminis-
trative Law Judge's ruling on the admission of Lara's
testimony, his finding and recommendations with re-
spect to the supervisory status of Lara and
Respondent's violation of Section 8(a)(1) by with-
holding scheduled pay increases, and his conclusion
that a bargaining order is not warranted because the
Union has won the election and is entitled to a certi-
fication of bargaining representative. We disagree,
however, with his denial of the General Counsel's
motion to amend the complaint to allege additional
8(a)(1) violations and with his failure to find that the
discharge of five employees was motivated by union
animus in violation of Section 8(a)(3).
A. Testimony of Thomas Lara, Jr.
Respondent excepted to the Administrative Law
Judge's admission of Lara's testimony which was sig-
nificant with respect to every issue in the unfair labor
practice proceeding, because (1) he was permitted to
testify after the General Counsel had represented
that his case was completed except for the testimony
of one other witness, which undisputedly was not
Lara, (2) he appeared pursuant to a subpena which
was invalid because it was issued by the Regional
Director rather than by the Administrative Law
Judge, (3) he was interviewed by the Board's agent
without Respondent's counsel having been afforded
an opportunity to be present in violation of the
Board's rules relating to the interviewing of supervi-
sors, and (4) Respondent's counsel had been denied
by General Counsel an opportunity to confer with
Lara during a luncheon recess to prepare for cross-
examination.
It is apparent that Respondent's argument for the
219 NLRB No. 119
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusion of Lara's testimony rests upon a series of
procedural objections which do not touch upon its
relevance or reliability. There is no demonstration
that the alleged procedural violations prejudiced
Respondent's ability to defend itself against the
charges in the complaint or to deal with any of the
issues in the case . The Administrative Law Judge
made clear that he considered Lara's testimony sig-
nificant and was anxious to hear it notwithstanding
Respondent's procedural objections . Since the sport-
ing theory of justice has long been in discard and the
hearing is essentially a search for truth, the Adminis-
trative Law Judge was clearly correct in refusing to
exclude the evidence solely on the basis of claimed
technical breaches . The prejudicial effect from the
procedural digressions which is necessary for its ex-
clusion has not been shown.
1. Respondent's complaint that Lara's testimony
was received after the General Counsel indicated
that he had completed his case except for the testi-
mony of one witness arose out of the fact that the
witness had difficulty on both Thursday and Friday
in finding the hearing room . As a result , Respondent
began putting on its case , and the General Counsel's
case was kept open until the following Monday to
await the witness' appearance . After the hearing
closed on Friday, the General Counsel' s representa-
tive learned that Lara, who had previously indicated
to the Board investigator his unavailability as a wit-
ness, was now willing to testify. When the hearing
resumed on Monday, the General Counsel's repre-
sentative advised the Administrative Law Judge of
the additional testimony he wished to introduce. Af-
ter being advised of the nature of the testimony, the
Administrative Law Judge observed that it appeared
to be relevant and material and ruled that he would
hear it. This ruling cannot be deemed erroneous.
Certainly, no rule of law or considerations of policy
require the exclusion of relevant evidence which was
not available , through no fault of the party offering
it, when he stated he intended to close his case.
2. Respondent urged the exclusion of Lara's testi-
mony for the additional reason that he appeared in
response to a subpena improperly issued by the Re-
gional Director after the commencement of the hear-
ing. Section 102.31(a) of the Board's Rules and Reg-
ulations provides that on the written application of
any party any member of the Board shall "forthwith
issue a subpoena requiring the attendance and testi-
mony of witnesses." It further provides that prior to
the hearing applications shall be filed with the Re-
gional Director and during the hearing with the Ad-
ministrative Law Judge, and that either "shall grant
the application on behalf of any member of the
Board." It seems clear that issuance of a subpena is
virtually a ministerial act and involves no exercise of
discretion . The provision for its issuance by the Re-
gional Director in one circumstance and by the Ad-
ministrative Law Judge in another is clearly designed
for administrative convenience and involves no sub-
stantive rights . We need not decide whether a subpe-
na issued over a weekend when the hearing is in re-
cess is issued "during the hearing" and , therefore,
appropriate for action by the Administrative Law
Judge . The issuance of the subpena by the Regional
Director here because of the unavailability of the
Administrative Law Judge over the weekend im-
paired no rights of Respondent and, apart from the
contents of the witness' testimony , resulted in no
prejudice . The Administrative Law Judge' s refusal to
exclude the testimony because of the alleged invalidi-
ty of the subpena was clearly correct.
3. Respondent's objection to Lara's testimony on
the ground that the General Counsel violated Section
10056.5 of its "Internal Instructions and Guidelines,
Unfair Labor Practices" is similarly without merit.
This section provides that a charged party shall be
afforded an opportunity to have counsel or a repre-
sentative present during the interview of a supervisor
by a Board agent . At the outset, assuming that these
internal guidelines create rights in outside parties, it
should be remembered that Respondent claimed
throughout the proceeding that Lara was not a super-
visor . It is doubtful that the provision applies to the
interview of an employee who the employer contends
is not a supervisor.
In any event , the record does not support
Respondent's contention that it had no notice or op-
portunity to be present at Lara's initial interview by
the Board's agent . It is clear that Respondent had
advance notice of the interview from Vice President
McCandless' instructions to Lara prior to the inter-
view as to what he should tell the Board agent. Lara
was interviewed by the Board agent at a somewhat
public place, the lunchroom in the South San Fran-
cisco plant . There is no suggestion anywhere that
Respondent's representative was excluded from this
interview . While the interview was taking place, peo-
ple were walking in and out of the lunchroom. Pre-
sumably , a representative did not attend because of
Respondent's contention that Lara was not a super-
visor . Lara's statements to the Board agent were re-
duced to typewritten form and presented to him for
review . Thereafter, at the suggestion of Lara's super-
visor, Lara deleted several items from his statement.
Nevertheless , Lara never signed the statement and
indicated to the Board agent his unwillingness to tes-
tify in the proceeding . There can hardly be any trans-
gression of Respondent 's rights in this episode.
4. The events surrounding Lara's interview and
FREE-FLOW PACKAGING CORPORATION 927
testimony at the hearing likewise provide no valid
ground for objection. When Lara became available
as a witness, the General Counsel obviously had a
right to interview him concerning his prospective tes-
timony. Respondent also wanted to interview him to
prepare for the cross-examination of him and anoth-
er witness. To permit .this preparation the Adminis-
trative Law Judge directed an extended luncheon re-
cess. The General Counsel, however, spent this
period with Lara to prepare for his direct testimony.
The unavailability of Lara to Respondent during this
recess is the source of its complaint . But Respondent
was not thereby deprived of an opportunity to inter-
view him. Lara concluded his direct testimony at the
end of the day. Respondent's counsel therefore had
until the following morning to conduct any interview
he may have wanted and obviously was not preju-
diced by the delay in Lara's availability.
5. The Administrative Law Judge strongly indi-
cated his view that Lara's testimony was important
to resolve the issues in the case and that he wanted to
hear it. He made clear on the record, however, that
he did not want any prejudice to Respondent to flow
from the fact that Lara's testimony, as well as the
additional testimony of other witnesses, was present-
ed after Respondent had begun the presentation of
its case upon the General Counsel's representation
that he would call only one other witness. Conse-
quently, the Administrative Law Judge announced
that he would give Respondent every opportunity to
correct any possible prejudice flowing from the de-
parture from normal trial procedure. The record does
not disclose any request by Respondent in this con-
nection which was refused . In the circumstances, it
appears that Respondent suffered no procedural
prejudice from the manner and timing of the intro-
duction of Lara's testimony and that the search for
truth would be seriously impeded if it were excluded.
The Administrative Law Judge's rulings in refusing
to exclude it are therefore affirmed.
B. General Counsel's Motions To Amend Complaint
In support of his allegations that Respondent had
discharged five employees shortly before the election
in violation of Section 8(a)(3) of the Act, the General
Counsel introduced, as probative of Respondent's
union animus, evidence of coercive interrogation of
employees by Plant Manager Lara concerning their
union activities and threats of retaliation against em-
ployees by job termination and deprivation of bene-
fits for supporting the Union. The General Counsel
claimed that he had not alleged this conduct in his
complaint as independent violations of Section
8(a)(1) because the evidence in his possession prior to
the hearing was not sufficiently strong. When Lara
testified, however, he corroborated the testimony of
other employees with respect to the coercive threats
to and interrogation of employees. With the evidence
of Respondent's unlawful conduct thus strengthened,
the General Counsel moved during the hearing and
in his brief to the Administrative Law Judge to
amend his complaint to allege the interrogations and
threats as additional violations of Section 8(a)(1).
These motions were denied by the Administrative
Law Judge. In denying the motions to amend, the
Administrative Law Judge stated that the evidence
with respect to the additional 8(a)(1) violations was
available during the investigation of the unfair labor
practice charges, that the General Counsel's failure
to allege separate 8(a)(1) violations was based upon
the exercise of prosecutorial discretion, and that he
would not acquiesce in the reversal of this position
because granting the motion would substantially en-
large the questions presented for disposition, would
subject the Respondent to legal surprise, and would
not justify a significantly stronger remedy.
There can be no question that the testimony of
Lara with respect to his interrogation of employees
and his and Vice President McCandless' threats of
reprisals and discharge measurably strengthened the
proof of additional 8(a)(1) violations. But, even if the
motion to amend were based solely on a change in
prosecutorial discretion, we do not believe denial of
the motion was warranted in the circumstances. All
the evidence probative of additional 8(a)(1) viola-
tions was introduced to establish Respondent's union
animus in connection with the claimed unlawful dis-
charges. The evidence was exposed to complete
cross-examination and opportunity for rebuttal. It
does not appear that either the cross-examination or
the rebuttal testimony would have been any different
if the evidence of interrogation and threats had been
directed to proof of 8(a)(1) violations as well as
union animus . The factual issues with respect to the
8(a)(1) violations were therefore fully litigated. Ac-
cordingly, there is no due process obstacle to permit-
ting the amendment.
The testimony of Lara disclosed flagrant violations
of Section 8(a)(1) of the Act corroborative of the
piecemeal testimony of other employees. According
to Lara's testimony, Respondent's vice president,
McCandless, was very unhappy about the Union's
organizational campaign, and was anxious to ascer-
tain the employees involved in these activities, and
directed Lara to find out what was going on "and
help quell the situation." Following this request, Lara
engaged in intensive questioning of plant employees
regarding their union sympathies and voting inten-
tions, indicated that the general raises would not bd
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
given because the Union had filed a representation
petition, repeatedly urged employees to vote against
the union, asserted that various fringe benefits would
be lost and the employees would be worse off if the
Union won the election, and stated that Vice Presi-
dent McCandless wanted to discharge all employees
with union sympathies. Lara advised one employee
that he was sure raises would be granted if the Union
were rejected and that Respondent would retaliate
against employees working for the Union by discon-
tinuing contributions toward one employee 's college
tuition course and by other means. One employee
active in the union campaign had his hours of work
changed to conflict with his attendance at college.
After the request for union recognition, Respondent
initiated a program of closely monitoring and prepar-
ing written reports concerning absences , tardiness,
and premature departures from work.
Since the factual issues concerning the additional
8(a)(1) violations are the same as those involved in
proving union animus in connection with the alleged
violations of Section 8(a)(3), and since the Adminis-
trative Law Judge's findings with respect to them es-
tablish 8(a)(1) violations, we overrule the Adminis-
trative Law Judge's denial of the General Counsel's
motion to amend the complaint, allow the amend-
ment, and find that Respondent violated Section
8(a)(1) by its coercive interrogation of employees, its
promises of benefits for rejection of the Union, and
its threats of retaliation, and its actual retaliation, for
union support.
C. The Preelection Discharges
With respect to the termination of five employees
less than 2 weeks before the election, the Administra-
tive Law Judge found that the General Counsel had
"presented a plausible , prima facie, case" of discrimi-
natory discharge based upon the union animus mani-
fested by the unlawful withholding of scheduled
wage increases, the questioning of employees con-
cerning their union attitudes, and the threats of dis-
charge for union support. He concluded, however,
that the General Counsel's evidence did not prepon-
derate over Respondent's business necessity defense
to establish unlawful discharges.
Respondent's business necessity defense consisted
of an attempt to show that the discharges were the
result of an anticipated raw material shortage and
reduced production requirements as the result of the
anticipated cancellation of orders under a Govern-
ment (GSA) contract. Our review and analysis of the
pertinent evidence persuade us that the business ne-
cessity defense was pretextual and that the dis-
charges were made to defeat the Union's organiza-
tion campaign in violation of Section 8(a)(3) of the
Act.
The General Counsel contended that on October
22 Respondent discharged five employees, who it
had been advised by Lara were all supporters of the
Union , in order to influence the results of the elec-
tion on November 2. Respondent 's plan, according
to the General Counsel , was not only to eliminate
votes favorable to the Union by the discharges, but
also to increase the votes against the Union by add-
ing ineligible employees to the voting list. Thus, ac-
cording to Lara's testimony , Vice President McCand-
less urged him to vote because "we had to have the
vote in order to win the election ." Another profes-
sional employee , based principally at Redwood City,
testified that he did not feel he was a part of the
bargaining unit but voted to avoid "getting in bad
graces with anyone that might affect his possible fu-
ture for promotions." The election resulted in a vote
of seven for the Union , four against , and four chal-
lenges by the Union of voters claimed to be supervi-
sors or professionals , or employed at Redwood City
and not at the South San Francisco plant .' The Ad-
ministrative Law Judge sustained the Union 's chal-
lenges. It is apparent that if Respondent 's plan to
include the votes of these four employees had suc-
ceeded the five discharges on October 22 would have
produced an 8-to-7 vote against the Union.
We have previously adverted to Respondent's
strong opposition to the Union, its determination to
get rid of employees supporting the Union, its active
efforts to ascertain who were supporting the Union,
and the unfair labor practices which resulted from its
virulent union animus . These circumstances render
highly suspect the discharge on the eve of the elec-
tion of five employees who Respondent believed
would vote for the Union. This imposes a heavy bur-
den on Respondent to establish that the discharges
were unrelated to the election and the union attitudes
of the employees . Respondent put forth its business
necessity defense to meet this burden. We believe it
has failed to do so because a preponderance of the
evidence supports the General Counsel's contention
and is inconsistent with Respondent 's business ne-
cessity explanation.
Respondent's belief that it could win the election
with a reduced work force was evidenced by its re-
quest at the representation hearing on September 17,
which was refused, that the election be postponed
until December when its seasonally expanded work
force would be reduced to its normal size . The dis-
charges shortly prior to the election, notwithstanding
3 In addition, the ballots of two of the discharged employees were chal-
lenged , one because he was not on the list of eligible voters and the other
because he was not on the payroll on the date of the election.
FREE-FLOW PACKAGING CORPORATION
Respondent's seasonal needs, achieved the more fa-
vorable voting situation which Respondent sought to
accomplish by postponement of the election to mid-
December.
The business necessity defense based on raw mate-
rial shortages and cancellation of the GSA contract
appears pretextual because there does not appear to
have been a raw material shortage and the GSA con-
tract was not canceled until considerably after the
discharges. As to the claimed raw material shortage,
Respondent's Vice President McCandless acknowl-
edged that-when he directed the discharges the sup-
ply of usable raw material on hand was sufficient to
permit production for some 2 to 4 months for a
three-shift, 5-day, weekly operation. The plant's 7-
day, four-shift operation at the time of the discharges
would reduce somewhat the period for which the cur-
rent supply of raw material would support produc-
tion, but it is apparent that no immediate shortage
was in prospect. Moreover, Respondent received two
carloads of usable raw material within 5 days after
the discharges. Also, shortly thereafter, a complex
piece of equipment, known as a densifier, was in-
stalled in the plant. This enabled Respondent to re-
claim and utilize in its production process substantial
quantities of scrap material which it had on hand
and which was also readily available in the market
because no other manufacturer had the ability to use
it.
Respondent's attempt to discount the effect of the
carload deliveries and the installation of the densifier
on its raw material supply by the explanation that
they were not anticipated at the time of the termina-
tions is not persuasive . It is inconceivable that car-
load deliveries of raw material and the installation of
complex machinery could occur almost immediately
after the terminations without prior knowledge by
Respondent . Cf. McLoughlin Manufacturing Corpora-
tion, et al., 164 NLRB 140 (1967), 182 NLRB 958
(1970), affd . sub nom. International Ladies' Garment
Workers Union, AFL-CIO v. N.L.R. B., 463 F.2d 907
(C.A.D.C., 1972).
Respondent's explanation of the terminations as
attributable in part to a reduction in its production
requirements resulting from cancellation of demands
under the GSA contract seems similarly disingenu-
ous. Although cancellation did not occur until more
than a month after the October 22 terminations, Re-
spondent claimed that early in October it became
aware that the Government could not properly insist
upon further deliveries . However, by letter dated Oc-
tober 23, the day following the five discharges,
Respondent's president advised GSA that "While it
may ultimately be necessary to suggest cancellation
'in the best interests of the Government ' of this un-
929
shipped portion of this contract, we are not suggest-
ing this at the present time." Moreover, it was not
until November 21, immediately after receiving a
second "notice of default" with respect to unshipped
orders, that Respondent requested cancellation. On
November 23, GSA advised Respondent of its agree-
ment to cancel and on December 7 sent a formal
cancellation notice. Respondent's president testified
that he did not regard the cancellation as effective
until he received this written notification.
Respondent's business necessity defense is also
discredited by its pattern of hiring and firing. In the
summer it began hiring employees to train them for
the customary busy fall and winter seasons . Because
of its anticipated seasonal demands Respondent
went on a 7-day week, four-shift operation early in
September. At the representation hearing in Septem-
ber, its officials testified that it expected its increased
employment to continue into December. Approxi-
mately I month later, less than 2 weeks before the
election, it precipitately terminated five employees
expected to vote for the Union. Shortly after the elec-
tion it began using employees furnished by a tempo-
rary employment service, hired additional employ-
ees, and went on a mandatory 6-day week. This
conduct does not seem compatible with a normal
employment policy and finds its most rational expla-
nation in a desire to reduce the number of prounion
employees at election time.
In light of Respondent's manifest union animus,
its untenable business necessity explanation, its
awareness that a no-union vote was more likely with
a smaller work force, its inclusion of obviously ineli-
gible managerial and supervisory employees in the
voters' list, and the seemingly irrational manipulation
of its work force and work hours, we conclude that
Respondent terminated employees Cerventes, Gar-
rett, Stewart, Evert, and Luvisotti on October 22 in
order to prevent them from voting for the Union in
the election on November 2 and thereby violated
Section. 8(a)(3) of the Act.
Amended Conclusions of Law
Delete paragraphs 4 and 5 of the Administrative
Law Judge's Conclusions of Law and insert the fol-
lowing:
"4. When Respondent's management representa-
tives interrogated employees with respect to their
union attitudes, maintained a close watch with - re-
spect to `employees favorable to the Union, and
threatened to discharge union supporters, Respon-
dent interfered with, restrained, and coerced those
employees in violation of Section 8(a)(1) of the Act,
as amended.
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"5. Respondent terminated employees Luvisotti,
Stewart, Evert, Garrett, and Cerventes in order to
prevent their favorable votes for the Union and
thereby violated Section 8(a)(3) of the Act, as
amended.
"6. Although Respondent's unfair labor practices
are sufficiently flagrant and pervasive to justify an
order requiring it to bargain collectively with the
complaining Union as the exclusive representative of
the appropriate unit, a bargaining order is unneces-
sary in the present circumstances since the outcome
of the election was favorable to the Union."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent Free-
Flow Packaging Corporation, South San Francisco,
California , its officers, agents, successors , and as-
signs, shall:
1. Cease and desist from:
(a) Withholding or discounting the payment of
previously promised or previously scheduled wage
increases for employees within its South San Francis-
co facility, for the purpose of discouraging such em-
ployees from supporting Leather, Plastics and Novel-
ty Workers Union, Local 31, or any other labor
organization.
(b) Interrogating employees concerning their atti-
tudes toward the Union, and maintaining a close
watch with respect to and threatening to discharge
union supporters.
(c) Discharging or otherwise discriminating
against employees for engaging in union or other
protected activities.
(d) Interfering with, restraining, or coercing em-
ployees, in any like or related manner, with respect to
the exercise of their rights to self -organization, to
form , join, or assist the above-named labor organiza-
tion, or any other labor organization, to bargain col-
lectively through representatives of their own free
choice, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid
or protection, as guaranteed by Section 7 of the Act,
or to refrain from any or all such activities.
2. Take the following affirmative action which will
effectuate the policies of the Act, as amended:
(a) Make whole all production and maintenance
workers employed within its South San Francisco fa-
cility on October 1, 1973, and thereafter, by paying
each of them sums of money sufficient to cover the
total wage raises which they would have received be-
tween that date and the dates of their subsequent
separations from employment, or the date of this Or-
der, should they still be in Respondent's employ, but
for Respondent's decision to withhold or discontinue
the payment of such raises, together with 6 percent
per annum interest on whatever amounts may be
payable, computed in the manner set forth within the
"Remedy" section of the Decision of the Administra-
tive Law Judge.
(b) Offer to the following named employees im-
mediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or other rights and privileges, and make them
whole for any loss of pay that they may have suffered
by reason of the discrimination against them, with
interest at the rate of 6 percent per annum, and in the
manner set forth in the Board's decisions in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962):
Mauro Luvisotti, Donald Evert, James Stewart, Wil-
liam Garrett, and Richard Cerventes.
(c) 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 amounts due
under the terms of this Order.
(d) Post at its place of business in South San Fran-
cisco, California, copies of the attached notice
marked "Appendix." a Copies of said notice, on
forms provided by the Regional Director for Region
20, after being duly signed by Respondent's repre-
sentative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by Respondent for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted . Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered , defaced, or covered by any other materi-
al.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
4In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
FREE-FLOW PACKAGING CORPORATION 931
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing, during which all parties were given
an opportunity to present evidence and argument, it
has been determined that we violated the law by
committing unfair labor practices. In order to reme-
dy such conduct, we are being required to post this
notice . We intend to comply with this requirement,
and to abide by the following commitments:
The National Labor Relations Act gives all em-
ployees rights to engage in self-organization; to form,
join, or help a union; to bargain collectively through
representatives of their own free choice; to act to-
gether for collective bargaining or other mutual aid
or protection; and to refrain from doing any or all of
these things. We will not do anything which intere-
feres with these rights.
WE WILL NOT withhold or discontinue the pay-
ment of previously promised or previously
scheduled wage increases for employees working
at our South San Francisco facility, in order to
discourage such employees from supporting
Leather, Plastics and Novelty Workers Union,
Local 31, or any other labor organization.
WE WILL make whole all production and
maintenance workers employed within our
South San Francisco facility on October 1, 1973,
and thereafter by payment to them of the wage
rate increments which they would have received
on that date and thereafter, but for our decision
to withhold or discontinue the payment of such
raises . The payments will cover the sum such
persons would have received between October 1,
1973, and the present date, during their re-
spective periods of service within our South San
Francisco facility, together with interest thereon
at the rate of 6 percent per year.
WE WILL NOT interrogate employees concern-
ing their attitudes toward the Union, or main-
tain a watch with respect to or threaten to dis-
charge union supporters.
WE WILL NOT discharge employees for their
support of the Union or for engaging in other
protected concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights under the Act.
WE WILL reinstate the following named em-
ployees to their former jobs or, if those jobs no
longer exist, to substantially equivalent posi-
tions, and make them whole for earnings lost
since their discharges:
Mauro Luvisotti William Garrett
Donald Evert Richard Cerventes
James Stewart
FREE-FLOW PACKAGING CORPORATION
DECISION
STATEMENT OF THE CASE
The Representation Case
MAURICE M. MILLER, Administrative Law Judge: On Au-
gust 27, 1973, Leather, Plastics and Novelty Workers
Union, Local 31 (variously designated as Local 31, Peti-
tioner, or Complainant Union herein), filed a petition for
certification as the representative of certain production
and maintenance workers employed by Free-Flow Packag-
ing Corporation (designated as Respondent or Company
herein), within its South San Francisco facility. Thereafter,
following a formal hearing conducted on September 17, the
Regional Director issued his October 3 Decision and Di-
rection of Election. The directed election was conducted
on November 2; however, because 6 of the 17 ballots then
cast were challenged, the vote therein was not determina-
tive. On November 9, 1973, Petitioner Local 31 filed cer-
tain timely objections regarding the election.
The Complaint Case
On November 14, Local 31 likewise filed unfair labor
practice charges against Respondent herein; Respondent
was charged with violations of Section 8(a)(1), (3), and (5)
of the statute. These charges were subsequently amended
on January 22, 1974. All charges were duly served.
The Consolidated Cases
On January 25, 1974, the General Counsel of the Na-
tional Labor Relations Board , through the Regional Direc-
tor for Region 20, caused a complaint and notice of hear-
ing, with respect to Case 20-CA-8746, to be issued and
served on Respondent herein . Respondent was charged
with unfair labor practices affecting commerce , within the
meaning of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended . (61 Stat . 136, 73 Stat.
519.) Concurrently , the Regional Director issued a supple-
mental decision , order consolidating cases, and notice of
hearing, dealing with various questions raised in connec-
tion with Local 31's representation proceeding . Therein,
the Regional Director noted that , within General Counsel's
complaint . Respondent was being charged with unfair la-
bor practices involving certain conduct covered by two of
Local 31's objections . Petitioner's further objections having
been previously withdrawn . Upon the Regional Director's
determination that these several matters, concerning the
unfair labor practices charged , the designated objections,
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and various challenged ballots, constituted a single overall
controversy, Local 31 's representation proceeding was con-
solidated with the complaint case herein , with a formal
hearing set before a designated Administrative Law Judge,
to resolve the various issues raised with respect to Local
31's remaining objections , together with the six challenged
ballots . The Administrative Law Judge was requested to
prepare and cause to be served on the parties , thereafter, a
report containing resolutions with respect to credibility,
findings of fact , and recommendations to the Regional Di-
rector regarding the disposition of said objections and
challenged ballots.
With respect to General Counsel's complaint,
Respondent's answer was subsequently duly filed ; therein
certain factual statements within General Counsel's com-
plaint were conceded . Respondent , however, denied the
commission of any unfair labor practices.
Subsequent Proceedings
Pursuant to notice , a hearing with respect to these con-
solidated matters was held at San Francisco , California, on
various dates between March 26 and April 4, 1974, both
dates inclusive , before me . The General Counsel , Respon-
dent, and Complainant Union were represented by coun-
sel. Each party was afforded a full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce
evidence pertinent to the issues . Before the hearing con-
cluded, Complainant Union 's counsel presented a motion
which was, substantially , a motion for severance, confined
to that portion of the consolidated representation case
which would require a recommended disposition with re-
spect to six challenged ballots; through a subsequently pro-
mulgated order , that motion was denied. Since the
hearing's close , comprehensive briefs have been received
from General Counsel's representative , Complainant
Union , and Respondent's counsel; these briefs have been
duly considered.
FINDINGS OF FACT
Upon the entire testimonial record , documentary evi-
dence received, and my observation of the witnesses, I
make the following findings of fact:
1. JURISDICTION
Respondent raises no question herein with respect to
General Counsel's jurisdictional claim . On the complaint's
relevant factual declarations-specifically , those set forth
in detail within the second paragraph thereof-which are
conceded to be correct , and on which I rely, I find that
Respondent herein was , throughout the period with which
this case is concerned , and remains , an employer within the
meaning of Section 2(2) of the Act, engaged in commerce
and business operations which affect commerce within the
meaning of Section 2 (6) and (7) of the statute . Further,
with due regard for presently applicable jurisdictional stan-
dards, I find assertion of the Board 's jurisdiction in this
case warranted and necessary to effectuate statutory objec-
tives.
4I. COMPLAINANT UNION
Leather, Plastics and Novelty Workers Union, Local 31,
is a labor organization within the meaning of Section 2(5)
of the Act, which admits certain employees of Respondent
to membership.
A. Issues
This case presents several substantive questions. General
Counsel contends that Respondent's management, when
confronted with Complainant Union's representation peti-
tion , withheld certain previously promised and scheduled
wage raises to discourage Complainant Union's supporters.
Secondly, General Counsel charges that five workers laid
off during October 1973 were terminated for statutorily
proscribed reasons . Finally, so General Counsel's com-
plaint alleges , Respondent's refusal to recognize Complain-
ant Union and bargain collectively with it-despite that
organization's possession of signed designation cards from
a majority of Respondent 's South San Francisco produc-
tion and maintenance workers-violated the statute.
Respondent's total course of conduct-so General Counsel
contends-warrants a bargaining directive. Respondent,
herein , challenges General Counsel's claimed factual justi-
fication for his contention that management's failure to
grant certain raises violated the law; contends that five
questioned October 1973 terminations derived from busi-
ness considerations solely; and suggests that no sufficient
warrant can be found, within the present record, for the
bargaining directive which General Counsel seeks. With
respect to Respondent 's October layoffs, by way of rebut-
tal, General Counsel challenges management 's proffered
business justifications, characterizing them as pretextual.
B. Facts
1. Background
a. Respondent's business history
Respondent, though a Delaware corporation , maintains
its company headquarters within a Redwood City, Califor-
nia, facility. Its Redwood City premises are shared with
Safe-T Pacific Company, a previously formed California
corporation, which Respondent's president and sole share-
holder-together with one other person-likewise owns.
Safe-T Pacific Company, within the facility designated,
presently manufactures and distributes edible ice cream
cones . Respondent maintains separately located manufac-
turing facilities in South San Francisco , California ; Chica-
go, Illinois; Newark , Delaware; and Paris , France . Within
its South San Francisco plant-with which this case is con-
cerned-the firm produces a so-called styrofoam plastic
package cushioning material . This material-which has
been named Flo-Pak for trade purposes-derives from po-
lystyrene plastic.
Respondent was first formed and commenced opera-
tions during December 1967. For some 3 years thereafter,
the firm 's South San Francisco facility produced paper
package cushioning materials . However, sometime during
FREE-FLOW PACKAGING CORPORATION 933
1969's later months , Respondent commenced plastic Flo-
Pak production . The firm's paper operations were phased
out gradually; by 1971, the facility's conversion to plastics
was complete . With plastic Flo-Pak production in full
swing, within Respondent 's South San Francisco facility,
the firm initially maintained a four- or five -man crew com-
plement ; that crew consisted of Thomas Lara, Jr., then
designated as Respondent 's working foreman , plus three or
four production workers . By March 1974, however-when
this case was heard-the South San Francisco plant's total
complement included a plant manager , newly hired in De-
cember 1973 following a somewhat lengthy search, plus a
production control clerk , Lara, and some 13-14 regular
production workers.
b. Respondent's production methods
Respondent's South San Francisco plant-compassed
within a single structure containing 15,000 square feet of
floor space-presently produces "Flo-Pak" solely. The
firm's raw material supply-during the period with which
this case is concerned-consisted of polystyrene plastic,
purchased in three distinct forms : (1) virgin polystyrene,
consisting of clear crystalline chips, granules , and pellets;
(2) polystyrene sheet flakes , consisting of variously sized
trimmings from flat-rolled clear polystyrene sheets ; and (3)
repelletized polystyrene, consisting of plastic sheet flakes
which have been melted down and reprocessed into pellet
form . Respondent 's two Flo-Pak extrusion systems-which
produce the firm's final product-process virgin polystyr-
ene and repelletized polystyrene directly. Polystyrene sheet
flakes, however, must first be repelletized within a machine
which Respondent has developed and installed for that
purpose; plastic materials thus repelletized can then be
processed through Respondent's extruders . During the pe-
riod with which this case is concerned, Respondent devel-
oped a so-called densification machine which can repro-
cess scrap polystyrene foam, the white sponge-like material
popularly known as styrofoam . Such scrap materials, when
processed initially through Respondent's newly developed
machine , can then be repelletized . And, thereafter, the ma-
terial can be further processed through the firms two Flo-
Pak production machines . The record, however, warrants a
determination, which I make, that Respondent 's first ex-
perimental model densification machine became opera-
tional, within the firm's South San Francisco plant, some-
time during November 1973, following the developments
which General Counsel herein challenges . Before Novem-
ber, Respondent 's supply of scrap polystyrene foam, so I
find, could not be utilized , readily, for normal Flo-Pak pro-
duction. Currently, Respondent's maximum productive ca-
pacity-within its South San Francisco plant-approxi-
mates 560 bags (with each bag holding 15 cubic feet of
expanded plastic packaging material), per 24 hours, when
virgin polystyrene is being processed ; when required to
process reclaimed and repelletized polystyrene, however,
Respondent's plant can produce 425 comparable bags,
merely, per 24-hour period.
c. Respondent's management
(1) Corporate officers
Since Respondent 's formation, Arthur Graham, the
firm's sole shareholder, has functioned as its president and
chief executive officer. Warren McCandless has been-for
some 6-1 /2 or 7 years-the firm's vice president. Both
maintain regular offices within Respondent's Redwood
City headquarters location . Previously, within this deci-
sion, reference has been made to the fact that
Respondent's Redwood City premises are shared with
Safe-T Pacific Company. Graham, the designated firm's
majority stockholder , likewise heads that corporation. The
Redwood City facility, likewise , contains a machine shop,
within which maintenance work for both firms may be per-
formed , and within which much of Respondent 's clearly
innovative recycling machinery, presently being used with-
in the South San Francisco plant , was fabricated . McCand-
less, like certain other management representatives and
technically qualified people in Respondent 's hire , frequent-
ly visits Respondent 's distant production facilities , previ-
ously noted . When their services are required, McCandless
and Respondent 's technical personnel may, likewise, com-
mute from their Redwood City home base to Respondent's
South San Francisco plant; Respondent's vice president,
during 1973's summer months, frequently spent between 8
and 20 hours weekly, visiting the South San Francisco fa-
cility. Throughout the period with which we are concerned,
however , Thomas Lara, Jr., previously mentioned herein,
functioned-so I find-as Respondent 's local or resident
"man in charge" there.
(2) Tom Lara
Respondent , herein , disputes General Counsel's conten-
tion that Lara should be considered a supervisor, for pre-
sent purposes , within the recognized meaning of that term,
as statutorily defined. The present record, considered in
totality , persuades me, however, that General Counsel's
contention with respect to Lara 's status merits Board con-
currence.
Lara's transfer to Respondent's South San Francisco
plant from Redwood City, where he had been performing
Safe-T Pacific's machinery maintenance work for some 2
years , directly followed the new facility 's activation. His
testimony, which I credit in this connection, warrants a
determination that, concurrently with his transfer, he was
"offered . . . a . . . position" as the facility's supervisor.
As previously noted , Respondent's South San Francisco
plant , when it first became operational , produced paper
packaging materials. There were around 12 to 15 women
workers, divided between several shifts , with a leadman,
plus a paper-slitter , for each shift. These manufacturing
operations were subsequently terminated; by 1971, so I
have found , the facility 's changeover to plastics production
was complete. When transferred , Lara was salaried , rather
than hourly rated; he was not required to punch a time-
clock . During the plant's transitional period-while the
production of paper packaging materials was being phased
out with plastics production beginning-Lara worked, so
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his credible uncontradicted testimony shows, between 50
and 70 hours per week.
The present record-within my view-will not sustain a
determination that Lara was ever vested , formally, with his
claimed plant manager title . Nevertheless , I find determi-
nations fully warranted that he described himself thusly-
and that Respondent 's South San Francisco leadmen and
production workers did, indeed , consider him their plant's
designated manager . Further, Lara's reiterated pronounce-
ments , with respect to his managerial status, were-so I
find-noticed without protest by Graham and McCand-
less; they never questioned ; challenged , contradicted, or
sought to proscribe , his claims.
For some time, following Lara's South San Francisco
transfer, so his credible testimony shows, he hired produc-
tion workers; during 1973 's summer and fall-within the
period with which we are primarily concerned herein-he
was still huring workers, or, at the very least, making effec-
tive recommendations with respect to new hires. During
1969, Lara hired Mark Faraola; the latter worked for
slightly more than a year , then left , but returned in late
February 1973. Lara hired him again for his second period
of service ; Faraola was hired , on both occasions , without
being interviewed by other management representatives.
Respondent's management , sometime during November
1972, had retained Kenneth Larsen as the firm's personnel
manager, with his office located within Respondent's Red-
wood City headquarters , Lara, however, still interviewed
job applicants ; generally, those who passed muster would
be referred to Larson , who would check their previous em-
ployment references . Those applicants whose references
proved satisfactory would be referred back to Lara; the
latter would then communicate Respondent's hiring deci-
sion.
When job applicants were hired, Lara designated their
shift hours. When they reported for work, he designated
the tasks which they would be required to perform, or di-
rected them to their shift leadman.
Further, during the period with which we are concerned,
Lara recommended pay raises for several workers; these
raises were granted. During August 1973, when he recom-
mended a pay raise for employee David Jordan , McCand-
less concurred , reluctantly, with a comment that raises
should be recommended sparingly , since Respondent's
South San Francisco workers were scheduled for further
raises later during the year.
The record warrants a determination , likewise, that Lara
has, when he deemed it necessary or proper, discharged
workers. Credible testimony which Respondent 's manage-
ment representatives did not , within my view, persuasively
controvert , reveals that Lara once discharged a workman
who reported for work while under the influence of liquor;
more recently , with McCandless' concurrence , he dis-
charged a workman , Juan Lavitt, when the worker's lead-
man reported that his job performance was below
Respondent's minimal standards.
Respondent's South San Francisco facility-so the rec-
ord shows-contains a single private office ; therein various
general files and plant personnel files are maintained. Dur-
ing the period with which we are concerned , Lara, together
with David Walls, Respondent's production control clerk,
shared the right to use this office. Respondent 's president
could , presumably , use it ; however, he rarely spent time
within the firm's South San Francisco plant . McCandless,
however, used it when visiting the facility . The record war-
rants a determination , which I make , that none of
Respondent's South San Francisco workers, other than
those noted, were similarly privileged . Lara, further, res-
ponsibly directed the work of Respondent 's South San
Francisco production crew . He assigned work tasks; fre-
quently, during 1973 's spring, summer , and fall months, he
told employees to cease work on particular job assignments
and to commence work on something else. Without hin-
drance or question he has, within his discretion, given
workers requesting time off permission to leave work early.
While present within Respondent 's plant, Lara has re-
ceived telephone calls from workmen reporting their pro-
spective absences or tardiness . Throughout the period
with which we are concerned , further, Lara reviewed
Respondent's timecards; he was required to personally ini-
tial timecard entries which reflected deviations from nor-
mal work schedules . More particularly, he could thus ap-
prove reported overtime work.
The record will support a determination-which I
make-that Lara frequently inspected work done, to see
whether it had been done properly. When necessary, he
could direct workers to redo jobs which had been incor-
rectly performed.
The record, finally, fully warrants a determination that
Lara was recognized by Respondent's top management
representatives as their South San Francisco plant surro-
gate . One worker, Charles Moore, testified credibly and
without contradiction that, during a conversation shortly
before the November 2 representation vote , McCandless
told him, "[If] you have any problems, you can come and
see Tom [Lara] or me" Previously , within a September 17
memorandum directed to Respondent 's South San Fran-
cisco plant workers, generally, McCandless had detailed a
so-called "revision of responsibilities" within the facility.
In that connection , however, the South San Francisco
plant workers had been specifically told that Lara would
"still retain responsibility for the production operation"
while the firm's production control clerk would be directly
responsible for production control reports.
With matters in this posture , I conclude-consistently
with General Counsel's contention-that , whatever his for-
mal job title may have been , Lara functioned as
Respondent's South San Francisco plant manager; that,
throughout the period with which this case is concerned, he
possessed the authority , inter alia, to hire, transfer, dis-
charge , and responsibly direct Respondent 's workers, or,
minimally, effectively to recommend new hires, transfers,
and discharges ; and that-contrary to Respondent's con-
tention-his authority with respect to such matters, when
exercised , was not routine , merely, but required the use of
independent judgment . Clearly, therefore, Lara held super-
visory status, within the meaning of the statute, at
Respondent's South San Francisco facility; I so find.
FREE-FLOW PACKAGING CORPORATION
2. General Counsel's presentation
a. Complainant Union's recognition demand
(1) The Union receives designation cards from a majority
of Respondent's workers
On Saturday, August 25, pursuant to employee Mark
Faraola's suggestion, several of Respondent's workers met
within a South San Francisco restaurant. Then they drove
to Complainant Union's San Francisco headquarters.
There, Business Representatives Charles Bruno and Rich-
ard Claire detailed the benefits which Respondent's work-
ers might expect from unionization, and distributed Com-
plainant Union's designation cards. Seven cards were,
thereupon, signed and submitted directly to Complainant
Union's representatives; Faroala took a number of cards
for signature later, by workers who were not then present.
Ultimately, Complainant Union's business representative,
Claire, received 11 signed cards. Two were dated August
26, while two bore August 27 dates. The record will not
warrant definitive determinations with respect to whether
these last four cards were really signed on Saturday, Au-
gust 25, and predated, or whether they were signed later. A
determination seems clearly warranted, however, that by
Monday morning, August 27, Complainant Union's busi-
ness representative held 11 signed designation cards. I so
find. When Complainant Union's card sign-up took place,
Respondent's South San Francisco production crew-with
Thomas Lara, Jr., not counted-consisted of two shift
leadmen, David Phoenix and Oliver Hawthorn; one work-
er, Mark Faraola, then designated a mere production help-
er on Respondent's payroll, though he was serving as the
firm's graveyard shift leadman; and three workers desig-
nated as machine operators , plus eight workers designated
as production helpers. Respondent's regular South San
Francisco production and maintenance crew, therefore,
numbered 14 workers. Only three-production helpers
John O'Shaughnessy and Michael Taylor, plus David
Phoenix, then Respondent 's swing shift leadman-failed or
refused to sign Complainant Union's designation cards.
(2) The recognition demand and subsequent
developments
On Monday morning , August 27, Complainant Union's
business representative, Richard Claire, filed a petition for
certification (Case 20-RC-11588) with the Board's Region-
al Office , claiming representative status with respect to
Respondent's South San Francisco production workers,
shipping clerks, maintenance men, and janitorial workers.
The document bore a notation indicating that by this peti-
tion the Complainant Union was requesting recognition as
their bargaining representative.
Later that day, however, Bruno and Claire visited
Respondent's Redwood City facility. There they were seen
briefly by Respondent' s president . I find-consistently
with Claire's testimony, which I credit in this connection-
that President Graham was told Complainant Union repre-
sented a majority of Respondent' s South San Francisco
plant employees; recognition was requested. Graham,
935
however, rejected Complainant Union's request, refused to
consider a card-check verification of Complainant Union's
claimed majority representative status, and referred Com-
plainant Union's spokesmen to Mr. Sam Beard, his firm's
labor relations consultant. Subsequently, Complainant
Union's Secretary-Treasurer-Manager Charles Bruno tele-
phoned Beard ; the Union's request for recognition was re-
peated. The record is silent with respect to Beard's precise
response; determination seems warranted, however, that,
since a representation case hearing and representation
vote, bottomed upon Complainant Union's petition, were
subsequently held, the labor organization's initial request
for recognition, based upon a card-check, was presumably
rejected.
b. Respondent's policy with respect to raises
(1) The history of Respondent's policy
During 1971, following the conversion of Respondent's
South San Francisco facility to manufacture plastic pack-
aging material, the Machinists Union had filed a Board
petition for certification. On May 18, 1971, a representa-
tion vote, bottomed upon that petition, had been conduct-
ed; the Machinists Union, however, failed to achieve a ma-
jority designation. The record warrants a determination,
which I make that there were then no more than five South
San Francisco plant workers within the group considered
eligible to vote. These were: Lara, James Roybal, Robert
Atkinson, David Phoenix, and Oliver Hawthorn. Shortly
thereafter, Respondent's president and McCandless con-
vened a meeting of South San Francisco workers;
Respondent's proposed personnel policies, so I find, were
generally summarized. Those present were told, inter alia,
that prevailing wage levels for generally comparable work,
within South San Francisco's industrial community, would
be surveyed; that future wage rates for Respondent's South
San Francisco workers would be based thereon; and that
some comprehensive wage payment policies would be for-
mulated . Some 30 days later, McCandless convened a sec-
ond meeting; Lara, Phoenix, and Hawthorn were, however,
the sole South San Francisco plant workers present. With
respect to this meeting, Hawthorn testified that:
... [They] brought down a paper, giving us a general
outline of what our wages were and what our general
wage increases would be as far as merit increases in
the future, and Warren McCandless, at that time, stat-
ed that whatever the union got at the Redwood City
plant, that is the ILWU contract , in terms_of the year-
ly raise in October, we could also get that.
The record shows that during this period certain Safe-T
Pacific workers, within that firm's Redwood City facility,
were represented by International Longshoremen's and
Warehousemen's Union (ILWU), which had negotiated a
collective-bargaining contract. That document provided,
then, for successive yearly across-the-board wage increases,
payable following the contract's successive October 1 an-
niversary dates throughout its designated term. During the
second South San Francisco plant meeting now under con-
sideration , McCandless substantially told Respondent's
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
workers-so Hawthorn testified-that, from that time for-
ward, they would receive the same yearly across-the-board
raises which Safe -T Pacific employees would be receiving,
pursuant to their ILWU contract 's provision, noted.
Subsequently, during both calendar year 1971 and calen-
dar year 1972 , wage increases which matched those re-
ceived by Safe-T Pacific's Redwood City Workers, pur-
suant to ILWU 's contract , were , indeed, granted within
Respondent's South San Francisco plant . The record, with
respect thereto , cannot be considered complete ; neverthe-
less, determinations are clearly warranted , within my view,
that Phoenix and Hawthorn received two such raises and
that O'Shaughnessy received one raise.
Documentary material proffered for the record in this
case lists persons employed within Respondent 's South San
Francisco plant , during calendar year 1973 merely. Of
those listed, no more than four-Phoenix , Hawthorn, Far-
aola, and O 'Shaughnessy-show hire dates which preceded
May 18 , 1971, when the Machinists Union representation
vote, previously noted , was conducted . Faraola , first hired
on March 18 , 1969, had , however, left Respondent's em-
ploy during July 1970 ; he performed no work for Respon-
dent during the next 2 calendar years . February 27, 1973,
marks his second hire date . Thus, he could not have quali-
fied for the October 1 raises during previous years. While
witnesses , McCandless and Leadman Phoenix called
O'Shaughnessy , with a June 4, 1969 , hire date , merely a
college student friend of some nonspecified company
worker, hired for part-time, temporary , summer work;
though Respondent's personnel records show that he did
receive a $.35 raise on July 8, 1971, the present record pro-
vides no indication with respect to whether he was in
Respondent's employ during October of that year. With
respect to Phoenix and Hawthorn , however, Respondent's
payroll records show $ .25 rate increases granted effective
November 15, 1971; these matched the October 1 raises
which Safe-T Pacific 's comparable day shift and swing
shift leadmen had previously received. I take official no-
tice , in this connection, that a presidentially directed na-
tional wage freeze had been declared August 15, 1971, ef-
fective for a 90-day period . That period expired November
15; Phoenix and Hawthorn received their matching raises
effective the very day when President Nixon 's declared
wage freeze terminated . The President's directive-which
permitted raises during the so-called freeze , when such
raises were bottomed upon previously negotiated con-
tracts-had proscribed raises which lacked a contractual
sanction . Thus, Phoenix and Hawthorn , who could not
have been granted October 1 raises-since they could not
claim the benefit of contractual commitments-received
their matching wage increases promptly when presidential
restrictions , with respect thereto, were lifted.
Hawthorn , so the record reveals, concurrently received a
supplementary $. 15 raise . No reason for this supplementa-
ry increase can be found within the present record;
Hawthorn 's company personnel card shows, however, that
it was granted separately from his $.25 matching raise pre-
viously noted . With respect to calendar year 1972,
Respondent's personnel records clearly show $.20 October
I raises , for Phoenix and Hawthorn , which matched those
concurrently received by Safe -T Pacific's day-shift and
swing-shift leadmen . And this time-so Respondent's per-
sonnel records show-production helper O'Shaughnessy,
likewise received a $.20 October 1 raise.
For some time, not clearly specified within the present
record, Respondent's management has regularly provided
newly hired South San Francisco workers with a so-called
"Employee Benefit Summary" which has , likewise, been
posted . Since March 13, 1973 , that summary has contained
the following statement, regarding Respondent 's wage rate
policy:
Starting wages are determined, in general , by individu-
al capabilities and the level of wages in this area.
Wage adjustments depend mainly on how well you are
doing your job, the relative value of your work and
your length of service with the company.
Consistent with this policy, Respondent's management
granted a number of raises during 1973's first 8 months,
bottomed upon meritorious service or job classification
changes . The firm 's personnel records thus reveal that op-
erator Michael Tybuec received a February 26 rate in-
crease ; that employee David Jordan received a March 19
raise , concurrently with his "Machine Operator" reclassifi-
cation; that Mark Faraola received a May 1 raise when
similarly reclassified ; that Leadman Phoenix and Haw-
thorn, together with operator Tybuec , received June 4 rate
increases ; that operator Oscar Bolanos received a July 16
raise , concurrently with his "Plant Operator" reclassifica-
tion ; and that machine operator Jordan was granted a rate
increase August 27, which matched Tybuec's previous June
4 raise . (This last-mentioned rate increase was the pay
raise, previously noted herein , which Lara had earlier rec-
ommended, and which McCandless had reluctantly agreed
to grant while commenting that Respondent's South San
Francisco workers were scheduled for October raises.) Of
those listed , Tybuec , Jordan , and Bolanos were November-
December 1972 new hires; Faraola was a February 27,
1973, rehire ; while Phoenix and Hawthorn were the sole
1973 wage increase recipients who had received prior Octo-
ber 1, 1972, raises.
(2) Developments after Complainant Union's
representation petition
Despite Respondent's failure to state, within its regularly
distributed and posted "Employee Benefit Summary," pre-
viously noted , that South San Francisco plant workers
would be granted yearly across -the-board raises, matching
those which Safe-T Pacific 's Redwood City workers were
scheduled to receive, credible testimony herein warrants a
determination , which I make , that many plant workers who
had not yet received such raises were cognizant with re-
spect to Respondent 's previously declared policy. (Lara
testified-credibly, I find-that various workers had re-
ported during conversations with him, statements by Mc-
Candless that they would receive October raises . With re-
spect to whether McCandless really made such statements,
Lara 's testimony clearly constitutes hearsay ; nevertheless,
the plant manager's recital may be considered competent
evidence that Respondent 's South San Francisco workers
were aware with regard to McCandless' previously de-
FREE-FLOW PACKAGING CORPORATION 937
Glared raise commitment . Several employees , while wit-
nesses herein , confirmed Lara's testimony that
Respondent's policy with respect to yearly across-the-
board raises, payable in October, had been discussed with-
in their group. I so find.) Further, Leadman Oliver
Hawthorn's testimony, which I credit in this connection,
warrants a determination that, during a casual 1973 con-
versation , with respect to which Hawthorn could recall no
specific date , the firm 's vice president was asked whether
that year's October 1 raise would be $.20 or $.25 per hour;
McCandless, so Hawthorn recalled, declared that he could
not remember the precise sum which Safe-T Pacific's work-
ers would receive, but that whatever it was would be grant-
ed South San Francisco workers , likewise.
Despite his prior reaffirmation, with respect to
Respondent's previously declared matching-raise policy,
McCandless had a conversation with Lara-sometime dur-
ing September 1973 shortly after the filing of Complainant
Union's representation petition-regarding Respondent's
pay raise commitment . Lara's credible testimony with re-
spect thereto-which McCandless has not, herein, persua-
sively denied-reads as follows:
He [McCandless] told me to tell the people that they
will not get their raise , because the Union would file
unfair labor practice charges . . . I was told to tell the
people, at South San Francisco , that there would be
no [October 1st] increases , because they [Respondent's
management representatives ] were afraid the Union
would file an unfair labor practice charge.
The record warrants a determination , which I make, that
Lara complied with his superior's directive . No general
across-the-board raises, calculated to match those which
Safe-T Pacific 's workers received were , thereafter, granted.
Through September and October, however,
Respondent's management continued to grant wage in-
creases related to job classification changes . Richard Curtis
and Charles Moore received such raises , when reclassified
from production helpers to plant operators, on September
24 and October 8, respectively.
e. Respondent 's further reaction to Complainant Union's
representation claim
(1) The reaction of Respondent 's vice president
Respondent's first reaction when confronted with Com-
plainant Union's representation petition , however, predat-
ed McCandless ' determination that no general October 1
raises would be given , because of the petition's pendency.
Within a few days, following Business Representative
Claire's August 27 visit to Respondent's Redwood City
headquarters-most likely on Wednesday, August 29th,
specifically-the firm's vice president received a late eve-
ning telephone call from South San Francisco Leadman
Phoenix , regarding a technical problem. During their con-
versation , McCandless commented that Respondent's
management had received some office visitors ; Phoenix
was then asked whether he knew who the visitors had been.
When Respondent's leadman disclaimed such knowledge,
McCandless declared that they had come from Complain-
ant Union; he told Phoenix that they had tried to present
Respondent with designation cards signed by South San
Francisco plantworkers. A discussion followed, with Mc-
Candless , so I find , asking several questions . Respondent's
leadman declared that he had signed no Union designation
card. He did, however, specify several workers-Faraola
and Hawthorn-who, he thought, had signed cards. Phoe-
nix speculated, further, that plant changes would be made;
McCandless, so Respondent's leadman testified, concur-
red. Their conversation concluded, so I find, with
Phoenix's speculative comment that "there [would] be a lot
of game playing" within Respondent's production crew;
Respondent's vice president replied with a laugh.
Subsequently, during a plant conversation with Phoenix,
Respondent's vice president, responding to a question, re-
affirmed his policy declaration, previously noted herein,
that Respondent could not grant South San Francisco per-
sonnel across-the-board raises calculated to match those
contractually mandated for Safe-T Pacific's workers. He
declared that, should such raises be granted, Complainant
Union would press unfair labor practice charges. (While a
witness, Phoenix could not definitely recall when this con-
versation took place. First, he testified that it took place
shortly following the September 17 representation case
hearing, with respect to Complainant Union's petition.
Later, he testified that it took place some time following
the November 2 representation vote. Despite his lack of
certainty, regarding their conversation's chronological
placement, Phoenix's testimonial declarations-detailing
the substance of McCandless' comments-merit credence.
Respondent's leadman, particularly during his second wit-
ness-chair session , volunteered testimony forthrightly,
within my view, consistent with his best recollection. With
due regard for logical probability, I conclude that
Phoenix's conversation with McCandless, now in question,
took place after September 17, but before the scheduled
election.) Respondent's leadman, 4qW@ver, proffered a ri-
poste. McCandless was told that he (Phoenix) had contact-
ed a Board Regional Office representative; that he had
summarized Respondent's previously declared policy and
past practice regarding October 1 raises; and that this
Board's Regional Office representative had declared raises
could legally be granted-despite a representation
petition's pendency-when bottomed upon a previously
declared wage increase policy which the concerned em-
ployer had consistently followed during prior years. De-
spite this, McCandless repeated his prior declaration that
no across-the-board raises could then be granted.
Further, during this conversation, so I find, the firm's
leadman commented that-should Respondent 's manage-
ment maintain its determination to withhold recognition
from Complainant Union herein-their current controver-
sy would remain viable for some time . Respondent's vice
president replied, so Phoenix testified , that Respondent
would never bargain with Complainant Union herein.
(2) The reaction of Respondent's plant manager
During the latter part of August 1973, Respondent's
South San Francisco plant manager , Lara , had commenced
a 3-week vacation . His testimony warrants a determination
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he left the San Francisco Bay Area for some 2 weeks.
On Saturday, September 1, however, he returned , since he
was planning "some [personal] work" pertaining to his resi-
dence . While visiting Respondent 's plant , he learned from
a plant worker that various "people" there had signed
Complainant Union's designation cards . During a tele-
phone conversation with Respondent 's vice president
which followed-though Lara could not remember who in-
itiated the call-McCandless requested the latter to spend
some time within Respondent 's plant . When queried re-
garding this request, Lara testified , credibly, I find, that:
Well, he [McCandless] wanted me to find out what
was going on, and who was involved . And if they real-
ly wanted a union in the plant . And to see who was
involved in this situation-because he wanted to find
out who the people were , that started it . . . He was
very unhappy about it-and made it a point that the
pressure was on me to find out what was going on,
and help quell the situation ... I told him that I
would try to do that.
Thereafter, pursuant to McCandless' request, Lara cut his
scheduled vacation short; he spent most of this third vaca-
tion week within the plant . While there, I find , he spoke
with several workers . Regarding these conversations, Lara
testified as follows:
I asked them how they felt-and why they wanted to
join the union . And whether they really felt all that
strong towards it. And other angles came in-like,
they were worried about their job. And then, the per-
son who had started it volunteered to say that he had
started the whole proceedings . . . There were two of
them : Mark Faraola , and Ollie Hawthorn.
The plant manager, I find, solicited statements from
Respondent's workers with respect to why they felt they
needed union representation ; primarily, so Lara testified,
they reported that they felt they needed help to secure bet-
ter wages and fringe benefits.
During the weeks which followed, preceding the repre-
sentation vote which this Board's Regional Director sched-
uled for November 2, Respondent 's plant manager-so
General Counsel's presentation shows-continued to ques-
tion South San Francisco plant workers regarding their
union sympathies , coupling his queries with declarations
reasonably suggestive of Respondent 's determination to re-
sist Complainant Union's campaign . Of the 13 production
workers (summoned as General Counsel's witnesses) who
testified herein, 8 recalled various discussions with
Respondent's plant manager . Most of these could not re-
call specific dates , places , or whether other persons were
present . Nevertheless , their composite testimony, which
Lara, when he subsequently took the witness stand , gener-
ally corroborated , would support determinations:
1. That Respondent 's plant manager spoke with many
plant workers , questioned them regarding their union sym-
pathies, and their voting intentions-while soliciting their
reports or speculative guesses with regard to how their fel-
low employees might vote;
2. That Lara told employee Mark Faraola that
Respondent's workers should have given him "more of a
chance to work with the Company" for better wages and
working conditions , and that they should not have gone
"over his head" or "behind his back" seeking union repre-
sentation;
3. That Respondent 's plant manager told most South
San Francisco plant workers-consistent with McCand-
less' directive previously noted-that, since Complainant
Union had filed a representation petition , no general Octo-
ber I raises could be given;
4. That Lara told Employee Michael Tybuec he (Lara)
was "going to find out" which plant worker had started the
card sign-up process which generated Complainant
Union 's representation claim ; that he considered Mark
Faraola responsible; that Faraola was the worker who had
enlisted Leadman Hawthorn 's cooperation ; that Faraola
was "trying to screw" him, (Lara), and that because of
Faraola specifically he (Lara ) might lose his job;
5. That Respondent 's plant manager, during conversa-
tions with employee Richard Cervantes and various other
workers , repeatedly urged them to vote against Complain-
ant Union , in connection with the forthcoming election;
6. That Lara told employee Charles Moore (sometimes
designated as Robert Gay within the transcript) various
fringe benefits which Respondent 's workers were currently
receiving would "go out the window" should Complainant
Union win representative status; that collective bargaining
"[would] not mean" their continuation , and that
Respondent 's South San Francisco workers were "going to
be stuck" with nothing;
7. That Respondent 's plant manager, following a lunch-
eon conversation with Respondent 's vice president, re-
peated to Leadman Phoenix, while employee David Jordan
was present, the vice president's purported declaration that
he (McCandless) wanted to discharge "everybody" within
the San Francisco plant who had been there "before the
union business started ," because of their union sympa-
thies;
8. That Lara told employee William Greene he was sure
he could persuade President Graham to grant raises,
should Respondent's employees reject Complainant
Union's representation bid;
9. That Respondent 's plant manager , during a conversa-
tion with Leadman Phoenix within the period now under
consideration, declared his regret over Leadman
Hawthorn 's involvement in Complainant Union's cam-
paign , commenting that Respondent's management would
discontinue company contributions which were currently
being made toward Hawthorn 's college tuition costs, and
would take further retaliatory measures;
10. That Lara, during a different conversation with
Phoenix, queried the latter regarding his "speculations"
with respect to how various plant workers would vote, after
which both of them canvassed Respondent 's timecards,
man by man, declaring their respective beliefs with regard
to how named workers would vote; (According to Phoenix,
Respondent's plant manager, during their timecard review,
specifically asked him which workers he thought would,
and which workers he thought would not , vote for Com-
plainant Union herein; Lara, so Phoenix testified , likewise
volunteered his thoughts with respect thereto.) While a wit-
ness, Phoenix testified regarding certain conversational
FREE-FLOW PACKAGING CORPORATION 939
comments by Respondent's plant manager, with a signifi-
cantly different tenor. Respondent's leadman declared
that, sometime shortly after Complainant Union's designa-
tion cards were signed, he (Phoenix) had told employee
Mauro Luvisotti that Respondent would retaliate against
South San Francisco workers who were union supporters,
and that the labor organization's active protagonists would
be discharged. Shortly thereafter, so Phoenix testified, he
was summoned to Respondent's South San Francisco plant
office; there Lara told him, purportedly following a tele-
phoned directive from Respondent's vice president, that he
would be required to tell Luvisotti he had not "really .. .
meant" what he said, and that his prior statements were
being retracted. Further, Phoenix was told, so his testimo-
nial recital shows, that he should be careful about what he
said to Respondent's workers.
3. Further conduct purportedly revelatory of
Respondent's union animus
General Counsel's extensive testimonial and documenta-
ry presentation, herein, refers to several additional matters
which, he contends, persuasively reveal Respondent's per-
sistent harassment of Complainant Union's supporters,
bottomed upon management's desire to discourage or fore-
stall the South San Francisco plant's unionization. In this
connection, the record, inter alia, contains:
1. Testimony by employee David Jordan that, when he
sought to thank Lara for recommending his August 27
raise previously noted herein, shortly following the plant
manager's return from vacation, the latter responded, rath-
er gruffly, that if he had known Respondent's workers were
"trying to get a union" Jordan would never have received
his raise;
2. Testimony that Respondent's vice president, within 4
days following Leadman Hawthorn's testimony, given dur-
ing the September 17 representation case hearing previous-
ly noted, transferred the latter from Respondent's day-shift
to swing-shift work; (Hawthorn, while working regular 40-
hour weeks on Respondent's day shift, had concurrently
been attending a nearby state university's evening classes;
his swing-shift transfer, therefore, created a conflict which
could have required him to suspend his college studies.
When he protested, McCandless commented that "he had
already set things up the way he felt the people at the plant
wanted" them, but that Respondent's leadman was free to
seek a voluntary schedule switch with someone on South
San Francisco's graveyard shift. Such a mutual switch,
with Faraola taking the swing-shift assignment , was subse-
quently concluded.)
3. Testimony, with respect to which Respondent's rec-
ords provide documentary support, that, during the Sep-
tember and October period with which we are now con-
cerned, Faraola's work attendance record was closely
monitored, with five written reports being prepared to re-
cord his absences, tardiness, and premature departures
from work; (Such written absence reports, so the record
shows, had not been prepared, or kept in Respondent's
files, routinely, before Complainant Union's August 27
representation bid.)
General Counsel suggests , further, that Employee
Charles Moore's October 8 raise, previously noted herein,
was really granted for the purpose of persuading him to
vote against union representation. The record with respect
thereto, however, reveals, merely, that shortly before
Moore had been reclassified or promoted to a so-called
extruder operator position, and that his wage increase fol-
lowed, when he had learned how to run Respondent's ex-
trusion machinery.
d. The October layoffs
(1) Respondent's expanded production crew
On July 19, 1972, Respondent had been awarded a so-
called "Requirements Contract" for "Cushioning Material,
Polystyrene, Expanded, Flowable" by the Federal
Government's General Services Administration; the award
had, specifically, called for 8,750 cases, which GSA would
thereafter requisition. Respondent's management was giv-
en to understand, however, that despite the document's
"estimated quantity" specification the contractor receiving
the award would be obligated to fill all orders submitted
within the 12-month period which the contract covered.
During the contract's first 11 months, GSA placed or-
ders for 20,640 cases; during June 1973, however, 8,815
more cases were ordered. By June 22, 1973, Respondent's
deliveries, with respect to orders previously placed, were
significantly behind schedule; 3,225 cases due by June 18
had not yet been delivered. Thereupon, GSA sent Respon-
dent a form notice that, because of these delayed deliver-
ies, the termination of Respondent's contract for default
was being considered; further, Respondent was invited to
consider "the penalties which [might] be invoked in the
event the decision [should be] made to terminate" the
firm's right to proceed. Confronted with GSA's delivery
demand, Respondent's management decided to hire more
production workers, sufficient to form a so-called fourth
shift crew, so that South San Francisco plant production
could be maintained 7 days per week.
When this decision was made, Respondent's South San
Francisco production and maintenance crew consisted of
Lara and three shift leadmen, plus six production workers.
Four men worked days, while three men worked
Respondent's swing and graveyard shifts, respectively.
(They were working a 5-day, Monday through Friday,
week, with occasional Saturday shifts, dependent upon
Respondent's production requirements. When occasional
Saturday shifts were scheduled, so the record shows, partic-
ular workers could freely decide, for themselves, whether
to perform such overtime work.) Between June 27 and Au-
gust 25, however, Respondent hired five more production
workers; they were scheduled for job training with respect
to Respondent's machinery and productive processes, pre-
paratory to the projected fourth shift's formation. (While a
witness , McCandless testified that Respondent's manage-
ment considered the projected 4-shift schedule, with a 7-
day workweek, merely a temporary expedient, required to
satisfy GSA's contractual delivery demands. The record,
however, warrants a determination, which I make, that
none of Respondent's five newly hired workers were car-
ried on the firm's payroll as temporary employees; further,
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
none of them were told, when hired , that they would mere-
ly be temporary workers.) Thus, shortly thereafter, when
various South San Francisco workers decided to seek
union representation , Respondent 's plant production crew,
with Lara not counted , numbered 14. Four of these-Phoe-
nix, Hawthorn, Faraola , and O'Shaughnessy-had 1968 or
1969 first-hire dates . Respondent 's three workers with op-
erator classifications-Tybuec, Bolanos, and Jordan-
could merely claim November-December 1972 seniority
dates. Two production helpers, Wright and Curtis, had
spring 1973 hire dates . Respondent's five additional pro-
duction helpers-Taylor, Luvisotti, Greene, Evert, and
Moore-constituted the newly hired group.
During the September 8-9 weekend , Respondent's man-
agement instituted the four-shift, 7-day weekly schedule.
The plant's regular day -shift and swing-shift workers con-
tinued their 40-hour, Monday through Friday, workweek.
Two graveyard shift crews were, however, formed. The
workers who were given graveyard "A" shift assignments
worked 12 hours Saturday and 12 hours Sunday, plus two
regular 8-hour Monday and Tuesday shifts; then, they
were off for 3 days. Those designated for graveyard "B"
shift assignments were, likewise, required to work 12 hours
daily, both on Saturdays and Sundays, with their Mondays
and Tuesdays free ; then, they worked regular 8-hour shifts
for the 3 following weekdays. (Graveyard "A" shift work-
ers, therefore , worked a 40-hour week ; since their Satur-
day-Sunday services , however , compassed 8 "overtime"
hours-for which they received statutorily mandated pre-
mium pay-their weekly compensation covered 44 hours,
computed at straight -time rates . Graveyard "B" shift per-
sonnel worked a 48-hour week ; since their weekend sched-
ule, likewise, required them to work 8 "overtime" hours,
their weekly pay covered 52 hours, computed at straight-
time rates . No South San Francisco plant employee was
required to work a sixth day weekly.) Concurrently with
this schedule's implementation , Respondent continued to
hire plant personnel . Three production helpers-James
Stewart, William Garrett, and Richard Cervantes-were
hired , successively, during September 's first 3 calendar
weeks.
When this Board 's Regional Director issued his October
3 Decision and Direction of Election , with respect to Com-
plainant Union's representation petition , Respondent's
regular South San Francisco plant personnel-within the
group designated appropriate for collective-bargaining
purposes-numbered 17; this group, with Lara excluded
because of his supervisory status , compassed 14 South San
Francisco plant production employees hired before August
27, plus September's newly hired workers.
(2) The decision to reduce staff
Sometime after October 10, President Graham decided,
so the record shows, that Respondent 's fourth shift should
be discontinued , with South San Francisco plant opera-
tions resuming a normal 5-day weekly schedule . He con-
veyed this decision to Respondent's vice president. (The
record , herein, reflects a substantial controversy with re-
spect to President Graham 's motivation . General Counsel
contends , substantially, that Respondent 's president termi-
nated his firm 's four-shift , 7-day production schedule, and
directed South San Francisco 's consequent reduction in
force, while pursuing a program calculated to counter
Complainant Union 's prospective representation bid. Re-
spondent contends , contrariwise , that Graham's decision
derived from business considerations , solely . The testimo-
nial and documentary record, proffered in connection with
these conflicting contentions , will be reviewed hereinafter.
For the present , I note, merely , that a reduction -in-force
decision was made.) On Saturday, October 20, McCandless
visited Respondent 's South San Francisco plant . There,
Lara was told that the fourth graveyard shift was being
discontinued , and that there would be no more Saturday-
Sunday work. Respondent's plant manager was told, fur-
ther, that South San Francisco's Saturday crew, then at
work, should be directed to "shut down . . . and clean up"
their work place; that they should be told not to report for
work the following day; and that they should be told they
would be advised, later, when to report. When queried re-
garding McCandless' stated reason for these directives,
Lara testified, credibly, so I find, that:
He said , "We are cancelling the Government Con-
tracts. And, we are short of plastics-we have no plas-
tics to fulfill the Government Contracts. And so I
want you to tell the people that . . . He told me to tell
them that there was a shortage of plastics, and that the
Government Contracts were cancelled, and we won't
be making any more material for the Government-
so, therefore, we won't need the seven days a week.
Respondent 's plant manager , who had not been consult-
ed previously, manifested his reluctance to carry through
Respondent 's reduction in force program . First , he suggest-
ed that Respondent's graveyard shift personnel should be
permitted to complete their Saturday and Sunday shifts,
before being told that South San Francisco's four-shift, 7-
day production schedule would be discontinued; McCand-
less rejected the suggestion . Then, so Lara testified,
Respondent's vice president was told that he (Lara)
thought terminations would seriously disturb Respondent's
workers; that they would "put the people on the defen-
sive," while generating possible repercussions during the
forthcoming representation vote ; and that Respondent
would have a better chance to forestall Complainant
Union 's certification , should it refrain from a production
curtailment . McCandless , however, persisted.
During their discussion, Respondent's vice president,
while referring to Respondent's shortage of plastic raw ma-
terials, mentioned that "with production schedules limited
to three shifts per day, five days per week, there were suffi-
cient raw material supplies currently on hand to last two to
four" months . Thereupon, Lara commented , so he recalled,
that with so much plastic, Respondent would not have to
let everybody go. McCandless declared, however, that Re-
spondent would be required to retrench nevertheless; he
declared that he would discuss the matter with Lara, fur-
ther, some other time.
(3) The layoffs
On Monday, October 22, Respondent's vice president,
FREE-FLOW PACKAGING CORPORATION
following a discussion with his South San Francisco subor-
dinate , gave Lara a list of five workers scheduled for termi-
nation . Those listed were Richard Cervantes , William Gar-
rett, James Stewart , Donald Evert , and Mauro Luvisotti.
Substantially , this list reflected selections bottomed upon
plant seniority . (Cervantes , Garrett , and Stewart were
Respondent's junior workers ; they were all September 1973
new hires . Evert , with a July 23 hire date , did have greater
seniority than Charles Moore , whom Respondent had de-
cided to retain ; within this decision , however, Moore's re-
classification from production helper to plant operator-
with a concomitant October 8 raise-has previously been
noted . Luvisotti , with a July 2 hire date , had greater senior-
ity than Greene ; the record , however , shows without dis-
pute that Luvisotti had some time previously told
Respondent's plant manager he would be leaving
Respondent 's employ during January 1974, when his
college's baseball team was scheduled to begin spring prac-
tice .) Cervantes , Garrett , and Evert-together with Stew-
art, presumably-were given the same reason for their ter-
minations , i.e., Respondent's shortage of raw materials for
Flo-Pak manufacture . Luvisotti was told , however, that
since Respondent 's management knew he was planning to
resign in any event when his college team 's baseball prac-
tice sessions began , and since there was a plastic shortage,
he was being terminated forthwith.
Respondent 's five workers thus terminated had not all
been members of their employer's graveyard "A" or "B"
shift crews . Thus, they were not notified with regard to
their terminations simultaneously . Respondent 's payroll
records show that Stewart worked last on Thursday, Octo-
ber 18 ; that Cervantes worked last on Saturday , October
20; that Garrett and Evert worked their regular Monday,
October 22 shift ; while Wednesday, October 24, marked
Luvisotti's last working day.
e. Subsequent developments
Following the terminations noted , Respondent's man-
agement reestablished a conventional three-shift , 5-day,
work schedule. Some workers received new shift assign-
ments ; since several of Respondent 's terminated employees
had worked day-shift or swing-shift schedules , vacancies
created by their layoffs were filled by transfer, within
Respondent's reduced crew complement.
On October 31, 2 days before the scheduled November 2
representation vote, Vice President McCandless conducted
several plant meetings with South San Francisco personnel.
Substantially, Respondent 's vice president , relying upon
certain previously prepared materials which the firm's
counsel had provided, first noted certain questions which
concerned workers frequently asked before representation
elections ; then, he proffered Respondent 's statements of
position , with respect thereto . (General Counsel has not,
herein, challenged the propriety, under the statute, of Mc-
Candless' remarks , during these general plant -conferences.
Their substance , therefore, need not be detailed .) The fol-
lowing day , however , Respondent 's vice president con-
ferred personally with Charles Moore, who had not been
present during any scheduled October 31 meeting. Regard-
ing their conversation , Moore testified : That McCandless
941
had asked, first, whether he had ever belonged to Com-
plainant Union ; that he (Moore) had replied negatively;
that Respondent's vice president had then proceeded to
describe the benefits which Respondent 's workers current-
ly enjoyed ; that he (Moore) had declared his belief
Respondent's workers would get more money with a col-
lective-bargaining representative's help ; and that
Respondent's vice president had, substantially , replied:
Well, you know, we are not goint [sic] to negotiate
with the Union, and you will go out on strike. And if
you do go out on strike , you will be replaced by Man-
power people.
Inter alia, McCandless declared , so Moore testified, that
Respondent's management felt South San Francisco work-
ers were getting all they should get. Upon this note, their
personal conversation terminated.
On November 2, 1973, the scheduled election was con-
ducted , pursuant to the Regional Director's October 3 De-
cision and Direction with respect thereto . The ballot tally,
furnished when the election was concluded , notes that
there had been 18 claimed eligible voters . (The record,
herein , raises some questions-which have not been set-
tled-regarding the precise composition of the group which
Respondent's management or Complainant Union consid-
ered eligible to vote . The final election eligibility list, which
Respondent had been directed to provide before the sched-
uled vote, has not been made available for this
proceeding's record ; we merely have Respondent's pur-
ported South San Francisco payroll list , prepared with a
September 5 date, which covers the August 27-September 2
payroll period during which Complainant Union first de-
manded recognition. That list did contain 18 names. The
eligibility list required for election purposes , however, pre-
sumably designated Respondent 's South San Francisco
production and maintenance personnel employed during
the September 24-30 payroll period which directly preceded
the Regional Director's October 3 decision , including those
who did not work during the payroll period specified be-
cause they were ill, on vacation , or laid off temporarily, but
excluding workers who had resigned , or been discharged
for cause , between the designated payroll period's close
and the scheduled election date . That list's precise compo-
sition, however, cannot presently be determined. The rec-
ord suggests that Respondent's August 27-September 2 pay-
roll list, previously noted, may have been used for some
reason never specified to determine the election's eligible
voters . We know, however, that employee Michael Taylor's
name had been stricken from that list some time before the
election was held by agreement of the parties, for some
reason never detailed while the present case was being
heard . Further, we know that the list in question never
contained the names of employees Stewart , Garrett, and
Cervantes , who were hired sometime after September 2,
and were thereafter terminated before the election. Howev-
er, the names of employees Luvisotti and Evert , who had
likewise been terminated , do not appear to have been
stricken before the representation vote was conducted.)
There were 17 voters who cast ballots . Of those counted,
seven were cast for Complainant Union herein ; four votes
were cast against union representation . There were , howev-
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er, six challenged ballots. Complainant Union challenged
four voters; these challenges will be discussed further, here-
inafter . Two ballots were challenged , however, because
they were cast by workers terminated during the October
layoff. The ballot of William Garrett, who had been hired
during the payroll period which ended Sunday, September
16, and terminated Monday, October 22, was challenged
by the Board's representative because his name did not
appear on the list of eligible voters. The ballot of Donald
Evert, who had been hired July 23 and likewise terminated
October 22, was challenged by Respondent's representa-
tive, who claimed that he had been terminated for cause.
These challenges will be resolved, and recommendations
will be made regarding their disposition , hereinafter.
Respondent 's so-called densification machine designed
to reclaim and reprocess polystyrene foam scrap, previous-
ly mentioned within this decision, had been physically in-
stalled within the firm's South San Francisco plant 2 days
before the representation vote. By mid-November this new
machine was operational; with a new "grinder" machine,
likewise installed shortly thereafter, Respondent was thus
enabled to process polystyrene scrap.
The record warrants a determination , which I make, that
during the weeks which followed, Respondent's manage-
ment gradually supplemented South San Francisco's pro-
duction crew.
Meanwhile , however, Respondent's product deliveries,
pursuant to GSA's requirements contract previously noted,
had been falling further behind schedule. Between June 4
and September 7, 1973, so Respondent's records show,
GSA had ordered 10,750 cases, each with 20 cubic feet
capacity. By October 23, 3,870 such cases, produced to ful-
fill these latter-day requisitions, had been shipped from
Respondent's South San Francisco plant; production with
respect to the remaining 6,880 cases was behind schedule.
Since October 1, however, Respondent's management
had been seeking a release or cancellation from the Federal
Government with respect to these "outstanding unfilled or-
ders" which GSA had previously placed. Within a letter
dated November 23, 1973, Respondent finally received
written notice that-so far as GSA was concerned-the
firm had fulfilled its contractual obligations; pursuant to
agreements previously reached, the government's outstand-
ing orders , not yet shipped, were therefore cancelled. (The
situation which had generated Respondent 's request for
cancellation, followed by GSA's ultimate concurrence with
respect thereto, will be discussed further within this deci-
sion . For the present , I note merely that GSA's currently
outstanding delivery demands, pursuant to Respondent's
prior 1972-1973 requirements contract, were withdrawn.)
With matters in this posture , Respondent then confronted
its regular autumnal and winter busy season ; numerous
commercial orders for plastic package cushioning materials
which various business establishments , particularly depart-
ment stores, would need when packaging their prospective
Christmas deliveries remained to be filled . On Monday,
November 26, Respondent 's workers were therefor notified
that, effective immediately , the South San Francisco plant
would maintain continuous 6-day weekly operations, with
Saturdays being considered regularly scheduled working
days.
Shortly thereafter, so I find, Respondent began hiring
temporary casual laborers , procured through Manpower,
Inc., a temporary worker referral service . Likewise, the
firm hired a new full-time worker , Roy Hanson , whom Mc-
Candless considered particularly well qualified . Vice Presi-
dent McCandless, further, requested Kenneth Larsen, the
firm's personnel manager , to get in touch with some of
Respondent's workers laid off during the previous month,
looking toward their possible rehire . (The record warrants
a determination , which I make , that McCandless directed
Larsen not to communicate with Luvisotti , since he would
be going back to school shortly . Respondent's vice presi-
dent conferred with Lara regarding several other workers
previously terminated. Lara, so McCandless testified, de-
murred with respect to Evert's possible rehire; he [Lara]
declared that Evert had really worked for a relatively short
time , that he had been injured while working, and that
some rumored drinking before he reported for work could
have contributed to whatever injury he sustained . Lara, so
Respondent 's vice president recalled , particularly recom-
mended Cervantes for rehire. Consistently with Lara's rec-
ommendation , McCandless directed Larsen to refrain from
contacting Evert , but to give Cervantes rehire priority.)
The record suggests that Respondent's personnel manager
tried , inter alia, to communicate with Garrett and Stewart,
but without success ; Larsen so testified . Shortly thereafter,
so I find , Respondent's personnel manager learned that
someone within the firm 's managerial hierarchy had suc-
cessfully communicated with Cervantes , who was being re-
hired. (At this particular time , so Larsen testified, Respon-
dent had merely one vacancy; thus, when he learned that
Cervantes would return , he suspended his efforts to com-
municate with Garrett and Stewart .) Following his recall,
Cervantes resumed work on December 4th; he was em-
ployed until December 21, 1973, when he was once more
terminated . General Counsel has not , however, challenged
the propriety of this last termination. Luvisotti , Garrett,
Stewart, and Evert were never recalled following their Oc-
tober 1973 separations.
4. Respondent's defense
a. Respondent 's reaction to Complainant Union 's petition
Respondent's management representatives have general-
ly denied any company sponsored campaign calculated to
counter , subvert, or forestall Complainant Union 's repre-
sentation claim.
(1) McCandless
More particularly , Respondent's vice president has de-
nied corporate responsibility, bottomed upon respondeat
superior principles , for whatever course of conduct Lara
may have pursued ; the contention is made that Lara
should not be considered a statutorily defined supervisor
whose statements or conduct bound the firm . Further, Mc-
Candless has denied Lara's testimony that he (Lara) had
been directed to determine Complainant Union 's support-
ers within Respondent 's South San Francisco plant. With
respect thereto, Respondent's vice president testified that,
FREE-FLOW PACKAGING CORPORATION
together with President Graham, he had conferred with
Sam Beard , Respondent 's labor consultant , following
Complainant Union's representation claim. Regarding his
subsequent discussion with Lara, McCandless' composite
testimony, during direct and cross-examination, reads as
follows:
When we first learned of the union's activity, by the
visit of Mr. Claire and Mr. Bruno at Redwood City,
Tom Lara was on vacation. When he returned from
vacation, he called me, and I had already talked with
Sam Beard, at some length . And I told Tom Lara not
to discuss the union activity at all. I told him that his
job was to keep the plant and the machines running
efficiently, and to concentrate on that and say nothing
about the union activity.
• n i
. his [Lara's] testimony indicates . . . that it was
Dave Jordan who was the first person to inform him
[regarding Complainant Union' s organizational effort]
by Tom's own statement and he called me and said,
"What is going on?" . . . "Is the Union really here
trying to organize?" Then, I explained , I gave him the
name of the Union and I told him that I believe it was
Mr. Claire and Mr. Bruno who had been there to visit
us and that Sam Beard was handling the matter. That
is the extent of it. At that time we had production
difficulties and I just said , "Tom, look , don't get excit-
ed. Your job is to run the machinery and run the
equipment." At that time we were still under quite a
bit of production pressure [because of] the GSA or-
ders. If I might add without too much emphasis, Tom
was a little bit of an excitable person. I said, "Tom,
don't worry about that. Your job is to run the equip-
ment and keep the operation going efficiently. Just
concentrate on that and we will take care of the other
things."
When questioned directly with respect to whether he had
told Lara to try and find out who was behind Complainant
Union's representation bid, McCandless enigmatically re-
plied, "No, not the way you state it." However,
Respondent 's vice president categorically denied telling
Lara that he wanted to "get rid of all the employees" who
had been involved with Complainant Union' s effort.
McCandless did concede that Lara had once, at least,
commented generally regarding the union sympathies of
South San Francisco plant workers, considered as a group.
He was, then, queried with respect to whether he had ever
told Lara to be "very careful in his relationship" with vari-
ous plant employees, since, if he were not careful, he would
risk a National Labor Relations Act violation. Re-
spondent's vice president replied:
Yes, except you phrased it specific employees. I didn't
say specific employees; I just said to be quiet and I
believe Tom Lara is generally unfamiliar with the
provisions of the Act . . . I did not try to break down
the Act to him. I just told him to be quiet about it and
not to become excited or emotional or take any overt
position. I just said, " Be quiet, keep your mouth shut."
943
When questioned with respect to whether Lara had ever
been told that interrogating employees regarding their
union sympathies might constitute a statutory violation,
McCandless declared that he was merely advised, "Tom, is
it prohibited to ask people how they are going to vote."
Lara was told, so Respondent's vice president recalled, that
when people volunteered information, he could listen; Mc-
Candless denied, however, that Lara was asked to report
whatever information workers might volunteer. Finally,
when asked whether Lara had actually reported " certain
information about certain people" from time to time, Mc-
Candless testified that if he did, such information was not
specific. Respondent's vice president made no categorical
claim, however, that he had discouraged Lara's reports.
When queried, during cross-examination, with respect to
whether he had ever instructed Leadman Phoenix to apolo-
gize for statements made to fellow workers which might
discourage them from supporting Complainant Union's
representation bid, the vice president could not recall any
such directive; however, he had, so he testified, told
Respondent's leadman not to make statements to fellow
workers regarding what he (Phoenix) thought Re-
spondent's attitude was relative to their unionization.
0
(2) Lara
With respect to Lara's course of conduct-detailed for
the present record through testimony proffered by various
plant workers, which Respondent's plant manager, while a
witness, substantially corroborated-the firm's defensive
presentation, herein, reflects several alternative conten-
tions:
First: Respondent contends, presently, that Lara's duties
and responsibilities made him indistinguishable from
Respondent's various South San Francisco plant leadmen;
that his purported authority with respect to managing
Respondent's personnel did not reach the level required for
him to be considered a supervisor; and that he had never
been authorized to speak in Respondent's behalf. In this
connection, Respondent's counsel has referred to record
testimony with regard to Lara's particular responsibility for
machinery maintenance and repair, within the firm's South
San Francisco plant. Further, he- cites testimony which,
taken at face value, would seemingly suggest that Lara's
purported responsibilities, with respect to managing pro-
duction and handling personnel, were merely routine and
did not require his independent judgment.
Second: Respondent's counsel, generally, challenges
General Counsel's right to rely upon Lara's testimony here-
in. He contends that General Counsel's course of conduct
dehors the record-with particular reference to Lara's ulti-
mate testimonial role-generally lacked fairness and preju-
diced Respondent's defense. In this connection, counsel
notes that while this Board's Regional Office representa-
tives concedely considered Lara a supervisor, whose state-
ments or conduct would bind Respondent herein, neither
Respondent's counsel nor top-level management represen-
tatives were given a chance to be present when he (Lara)
was interviewed; this, despite the N.L.R.B. Field Manual
directive that when supervisors are contacted such oppor-
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tunities should be given . Further, Respondent 's counsel ar-
gues : That General Counsel 's representative had, pro for-
ma, rested his case on Thursday , March 28 , 1974, merely
reserving his right subsequently to summon one last wit-
ness previously subpenaed , who was not then present; that
Respondent had, thereupon , been directed to proceed with
its defensive presentation ; that General Counsel's repre-
sentative had, subsequently, drafted and served Lara with a
subpena, dated Friday, March 29, though he (General
Counsel) had rested, pro forma, previously ; and that Gen-
eral Counsel's representative had, thereafter , been permit-
ted to reopen or continue his case , inter alia, for the pur-
pose of proffering further testimony by Leadman Phoenix
and employee Jordan, plus Lara 's testimony, while
Respondent's defensive presentation was suspended . Final-
ly, Respondent's defensive counsel cites the fact that, fol-
lowing Leadman Phoenix's direct testimony when recalled,
I declared a luncheon recess , during which Respondent's
counsel could , presumably, confer with Lara , while prepar-
ing for his cross-examination of Respondent 's leadman; he
(Respondent's counsel) notes that he was, however , denied
a chance to confer with Lara by General Counsel's repre-
sentative , who preempted the plant manager's time, while
he was , himself, preparing to summon the latter for testi-
mony.
Third.- Respondent 's counsel has generally characterized
Lara's testimonial recollections , with respect to
Respondent 's purported antiunion posture and motivation,
as vague , lacking in specificity , self-contradictory , shaded
by his personal bitterness , currently , toward Respondent's
management and therefore not worthy of credence.
These contentions , clearly calculated to challenge the
persuasiveness and probative worth of General Counsel's
total presentation with respect to Lara's purportedly an-
tiunion statements and conduct, will be considered, fur-
ther, within this decision.
b. The failure to grant raises
With respect to General Counsel 's 8(a)(1) contention
that previously promised and scheduled October 1 raises
were improperly withheld , testimony plus documentary
material has been proffered , calculated to support a deter-
mination that Respondent 's management maintained no
formal wage plan for South San Francisco workers, be-
yond certain predetermined starting rates , with periodic
merit reviews. Such reviews are routinely conducted, so
Respondent's present personnel manager testified, when
particular workers complete their 90 -day probationary pe-
riod, and yearly thereafter , based on their particular hire
dates . Vice President McCandless declared categorically
that Respondent's management had no prepared "docu-
mentation" regarding October 1 raises for South San Fran-
cisco workers ; that no such raises had been discussed,
prospectively , within Respondent 's managerial heirarchy;
and that Respondent had no stated policy reflecting a cor-
porate purpose to maintain wage parity between South San
Francisco plant workers and Safe-T Pacific 's Redwood
City personnel.
Further, Respondent contends that company payroll
records considered dispassionately reveal no consistent
"parity" maintained between various wage increases which
Phoenix and Hawthorne received , and those granted to
Safe-T Pacific employees with comparable positions. With-
in his brief, Respondent 's counsel suggests that:
While there is some indication that in 1971 and 1972
employees at each location received increases in the
fall of the year , the dates of these increases vary, as do
the amounts . . . [In] June of 1973 , Hawthorne and
Phoenix each received increases , one of 15 cents per
hour and the other of 19 cents per hour . Employees of
Safe-T Pacific received no such increases , thereby
breaking any "fall increase" pattern which might have
appeared established.
The present record, so counsel contends , will fully support
a determination that South San Francisco rank-and-file
workers were never told October 1 plant-wide raises might
be granted , save, possibly, by some fellow worker . Finally,
Respondent 's counsel cites McCandless ' categorical testi-
monial declaration that neither he nor any Company repre-
sentative had, during the 1971 plant meetings previously
noted, committed Respondent to grant South San Francis-
co employees yearly raises , calculated to match those
which Safe-T Pacific 's workers might be contractually
scheduled to receive . Respondent's vice president , likewise,
denied telling Hawthorne , during a plant conversation,
that matching October 1, 1973, raises would be granted
Respondent's employees.
McCandless, while a witness , declared that possible Oc-
tober 1 raises for Respondent 's South San Francisco work-
ers were not even considered until Complainant Union's
campaign began. Various employees , so Respondent's vice
president testified , then began raising questions ; confront-
ed with such queries , McCandless had, so he recalled,
sought legal counsel . He was told, so his testimony shows,
that , since Respondent's past practice , with respect to
South San Francisco plant raises , reflected no consistent
pattern of yearly , across-the-board , wage increases calcu-
lated to match those contractually mandated for Redwood
City workers , granting such raises shortly before a sched-
uled representation election would constitute a National
Labor Relations Act violation.
c. The October layoffs
(1) Respondent's government contracts
Previously , within this decision, we have noted
Respondent's July, 1972, GSA contract, whereby the firm
was committed to satisfy military requirements for poly-
styrene package cushioning materials throughout the
Government's 1972-1973 fiscal year. GSA's belated June,
1973, requisitions for 8,815 cases have likewise been noted.
Respondent's management representatives have testified
herein that June's requisition surge generated significant
problems.
Respondent's president testified that with virgin poly-
styrene in restricted supply world wide, developing petro-
leum shortages , and with sharply escalating prices conse-
quently quoted for Respondent's prime raw material, the
firm's GSA commitment , with a low contract price bot-
FREE-FLOW PACKAGING CORPORATION 945
tomed upon May 1972 business conditions , had become a
losing proposition . Thus, Flo-Pak production and deliver-
ies, calculated to satisfy GSA's June 1973 requisitions
would, Respondent's president believed , significantly re-
duce and could conceivably wipe out whatever profit Re-
spondent might have derived from prior deliveries through-
out the contract's life. Consequently , GSA's demand for
prompt deliveries , buttressed with a June 22, 1973, notice
that delays in compliance might persuade the government
to terminate Respondent 's contract with consequent penal-
ties, had created a dilemna for Respondent 's management.
President Graham testified without challenge or contradic-
tion , that despite certain foreseeable financial burdens, Re-
spondent wished to forestall default:
... because of two things : First, it might well have
disqualified us from continuing to bid on a future or-
ders or requirements of the GSA. And, secondly, the
penalty for default is quite severe . And it might well
have involved a much more serious economic loss to
us, to have been found in default , than was involved in
continuing to fill the orders.
Mindful of these countervailing considerations,
Respondent's management , so Graham testified, de-
termined to forestall a possible contractual default, despite
the financial problems which might result , by hiring pro-
duction workers , forming an extra shift , and scheduling
operations throughout a full 7-day week, thus generating
greater production calculated to satisfy GSA's delivery de-
mands.
(2) The decision to produce with four shifts
Substantially, Respondent contends that its four-shift, 7-
day-week production schedule represented a temporary ex-
pedient, reluctantly undertaken to forestall possibly strin-
gent penalties which Respondent feared the Federal Gov-
ernment might levy, should it fail to fulfill, in timely
fashion , commitments with respect to which the firm con-
sidered itself bound under GSA's requirements contract.
As previously noted, this decision necessitated the hiring
of five additional South San Francisco plant workers, be-
tween June 27 and August 15; these workers were trained
before Respondent commenced four-shift operations,
thereafter , during September 's first full calendar week.
When Respondent initiated these operations , the firm's
return to a 5-day weekly schedule , within a relatively short
time , was allegedly anticipated . Respondent's vice presi-
dent, while testifying during this Board 's September 17 rep-
resentation case hearing previously noted, declared that:
If the plant were to operate just as efficiently on a
seven-day week, as it had on a 5-day week , the reduc-
tion would probably occur in December of this year.
However, McCandless, testifying herein, declared that
Respondent's continuous 7-day production schedule had
not really proven practical . First: There was no free time
during which machinery maintenance and repair work
could be done . Previously, when a 5-day schedule was
being worked, Saturday and Sunday hours could be used
to perform maintenance and repairs . With no machinery
time free for weekend preventive maintenance , Respon-
dent experienced costly breakdowns , with consequent
down time . Second: The firm's payroll costs were signifi-
cantly higher. New workers had been hired; they had to be
carried on the payroll during their relatively nonproductive
training periods . Further , Respondent's commitment to
pay graveyard shift workers premium overtime rates for
part of their Saturday and Sunday work generated costs
which contributed to make the 7-day week economically
burdensome . While a witness , McCandless declared flatly
that Respondent's management, if they had not been told
GSA could hold them in default with respect to their re-
quirements contract , and thereby render them liable for
heavy penalties, would not have shifted from a 5-day to a
7-day week.
(3) Respondent's raw material supply problems
During this September-October period, with which we
are presently concerned , Respondent began suffering raw
material supply problems caused by the world-wide short-
age of polystyrene, a petrochemical product. John Howe,
President Graham 's assistant , who had been given respon-
sibility for polystyrene raw materials , testified that since
there was a critical shortage of petroleum products re-
quired to produce virgin polystyrene this material could no
longer be procured from primary "price controlled" mar-
ket sources after June 1973, particularly. (During the peri-
od with which we are, now concerned, virgin polystyrene,
when procurable from primary petrochemical producers,
carried a purportedly controlled price of 15.5 cents per
pound.) Various secondary suppliers, brokers and dealers,
were , however, developing a so-called gray market for vir-
gin material ; their prices varied between $.60 and $.90 per
pound . Since Respondent's GSA contract price, for poly-
styrene expanded package cushioning material, yielded ap-
proximately $.50 per pound of raw materials required, F.O.
B. South San Francisco , the firm , so various witnesses testi-
fied, could not profitably purchase virgin polystyrene from
such gray market suppliers.
Concurrently, however, prices for previously repelletized
polystyrene were likewise rising. Plastic materials thus
treated , like virgin materials, could be processed directly
through Respondent 's production machinery , without
prior preparation . Market prices for repelletized polysty-
rene , however , closely trailed the so-called "gray market"
prices for virgin material . (For the record , Respondent has
proffered a secondary supplier's letter, dated October 9,
wherein repelletized polystyrene was reported purchasable
for $.40 per pound. Eighteen months previously, during
May 1972, when Respondent had placed its bid for GSA's
requirements contract , both virgin and repelletized materi-
al could be purchased at prices which ranged between $.09
and $.12 per pound.)
Since Respondent's continued full-scale utilization of
virgin or repelletized polystyrene , during 1973's summer
months , was therefore considered no longer economically
justified , the firm was , primarily, processing oriented poly-
styrene sheet flakes, purchased from various plastic-goods
manufacturers throughout the country , whose products de-
rived from flat-rolled polystyrene sheet materials . Respon-
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent first passed this material through a newly installed
repelletizer machine ; material thus treated could then be
processed with Respondent 's regular production machin-
ery.
During September 1973, Howe visited some of
Respondent's sheet flake suppliers . He learned - so he testi-
fied - that many would soon stop selling their scrap materi-
al, because of the plastic shortage . (Some firms had decid-
ed to retain and stockpile their polystyrene sheet scrap
because they anticipated future supply difficulties . Others
had been requested by their primary suppliers of clear
polystyrene sheet materials to return their scrap flakes for
possible refabrication or barter.) Howe concluded, so he
testified , that Respondent could no longer realistically con-
sider oriented polystyrene sheet flakes a principal supply
source . When President Graham received his report, Howe
was delegated to spend most of his time , thereafter , procur-
ing raw materials.
Certain U.S. Defense Department procurement regula-
tions, so the record shows, provide a procedure whereby
military contractors can claim purchase priorities by send-
ing their suppliers so-called "DOK rated" requisitions.
Firms which receive such orders are considered legally
committed to fill them , charging no more than the current-
ly controlled price-namely, in this case , 15.5¢ per pound
for virgin polystyrene. Howe, so the record shows, tried
this requisitioning procedure , but met with little success.
(Respondent's GSA requirements contract called for the
shipment of package cushioning materials to various mili-
tary bases. The firm was , therefore, considered a military
contractor, privileged to submit "DOK rated" purchase or-
ders to raw material suppliers .) Between September 19 and
October 22, Respondent dispatched three "DOK-1 rated"
purchase orders, for a total of 760,000 pounds of virgin
polystyrene, to Monsanto Polymers & Petrochemicals
Company. Monsanto , however, reported , within a letter
dated October 18 specifically , that it could not "obtain the
necessary petrochemical feedstocks " required to fulfill
Respondent 's September 19 order; subsequently,
Respondent's first September 19 requisition , together with
its two October 22 orders, were rejected and returned.
(While a witness , McCandless did testify that, to the best of
his recollection some 40 ,000 pounds , out of 760,000 pounds
requested , were shipped and received ; the record, however,
provides no documentary support for McCandless ' belief
that Monsanto was their supplier.)
In the meantime , however, Respondent had dispatched
five similar priority requisitions , calling for substantial
quantities of virgin polystyrene, with October 22, 1973, req-
uisition dates, to four different suppliers . One such pur-
chase order was , so the record suggests , ignored ; two were
specifically refused . One supplier, Sinclair-Koppers Com-
pany, thereafter made some small partial shipments; these
were divided, however , between Respondent's Newark,
Delaware, and South San Francisco facilities.
By October 1, so Respondent's witnesses testified, their
firm's raw material supply had been significantly reduced.
Virgin and previously repelletized material could not be
purchased within a price range which Respondent's man-
agement considered reasonable and polystyrene scrap flake
suppliers were becoming scarce . Respondent's counsel,
within his brief, suggests that:
There was no indication as to whether additional sup-
plies of virgin , repelletized , or scrap material [save for
form scrap which the firm 's prototype "densifier" ma-
chine was not yet ready to process ] would be available
According to Howe , Respondent's October 1 raw material
supply compassed no more than 180,000 pounds of so-
called "runnable" polystyrene. This supply, though located
in Redwood City storage, was not, so he claimed, particu-
larly slated for South San Francisco processing ; some large
portion was destined for Respondent 's Newark, Delaware,
plant . Further, Respondent's management was then plan-
ning to dispatch some polystyrene to Chicago, Illinois,
where its newly established plant was scheduled to go into
production.
With matters in this posture , Respondent suggests that
had management chosen to bypass the requirements of
both the Chicago and Newark plants , and to preserve
Respondent 's October 1 raw material supplies for South
San Francisco processing exclusively to continue a 7-day
weekly production schedule , the firm would have run
through its complete inventory within slightly more than
one month . The South San Francisco plant, while previous-
ly maintaining a 5-day weekly production schedule, had
processed slightly less than 100,000 pounds of polystyrene
per month. While a witness , Howe declared that with a
7-day weekly schedule, representing a presumptive 40 per-
cent increase in production time , the plant could, presum-
ably, process slightly less than 140,000 pounds per month.)
President Graham's assistant testified that, "based on the
information we had available" during October, the firm
would have run through its complete raw material supply
during November 's first week and would have had to close
down completely thereafter.
Respondent contends , therefore, that a continuance of
South San Francisco 's four-shift, 7-day production sched-
ule could no longer be justified economically , even when
possible penalties for a prospective GSA contract default
were considered . During October 1973, however,
Respondent's president fortuitously learned , so he testified,
that GSA's threatened default penalties could not legally
be levied , so far as his firm was concerned.
(4) The termination of the fourth shift
On September 26, 1973 , Respondent had submitted a
new GSA contract bid; this contract, however, designated
a definite quantity which various military bases would re-
quire , namely, 3,010 boxes . On October 1, when bids re-
ceived for this contract were opened , President Graham
visited GSA's San Francisco headquarters. (Respondent's
new bid for "Expended Polystyrene Cushioning Material,
Type I" was, I note, 47.4 cents higher per box, than the bid
price which it had designated some 15 months previously,
for a comparable product under GSA's requirements con-
tract . The firm subsequently received the contract award,
nevertheless , with a December 3, 1973 , contract date.)
While at GSA's headquarters , Graham learned from a pro-
curement officer that his firm might not be obligated to
FREE-FLOW PACKAGING CORPORATION 947
satisfy orders still outstanding, despite their placement,
previously , before GSA 's requirements contract had termi-
nated , consistent with its provisions . Graham was told that,
pursuant to a long-standing U. S. Comptroller General's
decision, contractors on requirements contracts could not
be required to fill requisitions placed close to their
contract's set termination date , which were not calculated
to satisfy the bona fide requirements of some concerned
governmental body, when the contractor had already deliv-
ered more than the particular estimated quantity specified
within GSA's contract documents.
Shortly following his October 1 conversation with GSA's
procurement officer, Graham visited a local law library;
there he located the relevant Comptroller General's deci-
sion . That decision , so he testified , substantially provides
that where a contractor has provided more than a designat-
ed estimated quantity set forth within a requirements con-
tract, the contractor may consider that contract discharged
and completed.
Some time during October, shortly after reading the
Comptroller General's decision noted, Respondent's presi-
dent directed McCandless to terminate the South San
Francisco plant's fourth shift and resume a normal 5-day
weekly production schedule . While a witness , Graham tes-
tified that his decision , had been discussed , before Mc-
Candless was directed to proceed , with his firm's labor re-
lations consultant , since he (Graham) was mindful of the
fact that there were potential problems present . However,
he finally determined:
... that we should operate our business in a fashion
which was prudent for the economic health of the
company-and that any expedient consideration
should not be involved.
When this decision was made , some 30 or 40 percent of
South San Francisco's weekly or monthly *production was
being devoted to satisfying GSA requirements; conversely,
some 60 or 70 percent of Respondent 's production was
then bottomed upon purchase orders received from com-
mercial buyers.
Respondent, however, did not, promptly following
Graham 's decision noted , seek GSA's concurrence regard-
ing a contract cancellation . Rather, within a letter dated
October 23 , Respondent 's president notified GSA's direc-
tor of procurement that:
Pursuant to our telephone conversations of last week
and prior correspondence with [GSA] personnel .. .
we, unfortunately , must advise you that shipments
against the purchase orders received [pursuant to
GSA's requirements contract] must be sharply re-
duced . . . Shipment of the balance . . . remaining in
the purchase orders . - .. will be substantially delayed
... The reasons for the sharp reduction in shipping
schedule is that on October 11 [Monsanto Chemical
Company's sales manager] advised that Monsanto re-
fused to honor any further DOK-1 rated purchase or-
ders! Obviously, we cannot fill our commitments if we
cannot get our raw material . We are taking immediate
steps to issue DOK rated orders to virtually all other
polystyrene manufacturers in the United States ... .
We will process orders for the unshipped balance
.... as raw material becomes available. While it may
ultimately be necessary to suggest cancellation "in the
best interest of the Government" of this unshipped
portion of this contract , we are not suggesting this at
the present time... .
In fact, despite President Graham's determination that
Respondent's management could presumably demand the
withdrawal or cancellation of GSA's outstanding orders,
not yet filled, the firm continued production with respect
to such orders. Several weeks were permitted to pass before
a specific cancellation demand was made.
On November 20, however, GSA sent Respondent a sec-
ond "notice of default" letter. Discussions, with respect
thereto, followed that very day. President Graham was giv-
en verbal assurances that his contractual commitments
pursuant to GSA's requirements contract would be can-
celled, without charges or penalties. On November 21,
therefore, Respondent's president dispatched a letter to
GSA's San Francisco headquarters. Therein, he declared,
inter alia, that:
We understand, in response to our formal request, that
the outstanding unfilled orders against the now ex-
pired contract will be withdrawn or cancelled without
penalty or sanction to Free Flow Packaging Corpora-
tion. This was relayed to us by telephone this date.
Within a November 23 written reply, GSA's procurement
division director notifed President Graham that since Re-
spondent has fulfilled its contractual obligations , and since
GSA had agreed to cancel all outstanding orders without
penalty, further action with respect thereto would not be
required. On December 7, GSA sent Respondent a formal
cancellation notice with respect to requisitions covering
6,450 boxes of package cushioning materials, which had
not been previously shipped.
(5) The layoffs
With the fourth shift's cancellation, so Respondent con-
tends , five plant workers were scheduled for termination.
Respondent's counsel suggests that those finally separated
were selected pursuant to "traditional and generally ac-
cepted" seniority principles. More particularly,
Respondent's counsel, within his brief, notes that:
Cervantes, Stewart and Garrett were all hired after the
company was presented with the union 's petition and
were the least senior employees. While Evert had an
earlier hire date than [Charles Moore], who was re-
tained, Evert had been off sick for all but three weeks
of this period and was not qualified as an operator.
Luvisotti was selected for layoff, as opposed to Green,
because he was due to return to school in a few
months anyway.
And, while countering General=-Counsel's complaint con-
tention, that these five employees were particularly selected
for termination "because of their membership in or activi-
ties on behalf of" the Complainant Union herein, Respon-
dent suggests that none of them were particularly strong
union supporters . In this connection, Respondent's counsel
notes that Hawthorn and Faraola were the sole openly pro-
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union protagonists , but that neither was terminated.
Moore, so counsel further contends had numerous discus-
sions with Lara, during which he made no effort to hide his
prounion sentiments ; nevertheless , he was retained despite
his lack of seniority, since Evert, though hired previously,-
had not yet qualified for reclassification to so-called opera-
tor status . With matters in this posture, Respondent's
counsel argues within his brief, that:
[Since] accepted seniority principles were applied in
the selection of employees, and since there can be no
claim that seniority was merely a pretext to get rid of
the aggressive union advocates, there clearly can be no
claim that employees were unlawfully selected for ter-
mination because of their membership in or activities
on behalf of the union.
Further, counsel points out General Counsel' s claimed
failure to demonstrate , persuasively, that Respondent's
management representatives had knowledge regarding the
union sympathies of various workers terminated . In this
connection , Respondent 's counsel suggests a lack of relia-
ble, probative, or substantial evidence that Stewart, Gar-
rett, or Cervantes were union supporters; seemingly they
participated in no union activity whatsoever. (General
Counsel has proffered no designation cards which these
three workers might have signed . Cervantes testified that,
when Lara discussed Complainant Union with him, he
(Cervantes) merely concurred pro forma, with Lara's com-
ments . Garrett testified that-when he was hired-he told
Lara he had lost a previous position because of some union
difficulty, and that he did not consider a labor organiza-
tion, within Respondent's South San Francisco plant, nec-
essary. With respect to Stewart's Union sympathies, we
have nothing more than hearsay testimony.) Further, Luvi-
sotti and Evert had merely signed union designation cards,
which were never shown to Respondent 's management rep-
resentatives . Neither Lara, nor Respondent's vice presi-
dent, so Luvisotti testified, had ever discussed the Com-
plainant Union with him. And, with respect to Evert, the
record, so Respondent 's counsel contends , provides no
probative evidence that management representatives had a
chance to learn about his union sympathies. Save for 3-1/2
days spent working on Respondent's graveyard shift dur-
ing mid-September , Evert had performed no work, follow-
ing an August 17 job injury, before his October 22 return,
when he learned that he was being terminated . While a
witness , Lara claimed to have spoken with Evert regarding
his union sympathies, but could provide no particulars re-
garding their conversation 's date or precise time. Upon
such a record, Respondent's counsel suggests that it would
be patently ridiculous to draw inferences with regard to
management's knowledge of Evert's union sympathies or
to conclude that his union activities had motivated
Respondent's termination decision.
Finally, Respondent 's counsel notes that some 5 or 6
weeks later, during December 's first week, when a South
San Francisco crew vacancy was being filled, Respondent's
management did consider the possibility of rehiring one of
the five workers who had been previously terminated. Lu-
visotti and Evert were , so Respondent contends , passed for
valid, nondiscriminatory reasons , while Garrett could not
for the moment be reached. Cervantes was rehired, pur-
suant to Lara's recommendation . Stewart was never con-
tacted, so the record suggests , merely because Cervantes'
rehire filled Respondent 's sole production crew vacancy.
Upon this record , Respondent's counsel suggests that,
"with the recall as well as the terminations " management
representatives never considered the union sympathies of
particular workers.
d. Subsequent developments
Respondent's various witnesses have proffered compara-
tively limited testimony with regard to relevant devel-
opments following the terminations challenged herein. For
example: Respondent 's vice president , when questioned re-
garding his November 1 conversation with employee
Moore , never denied making the statement, which Moore
testified he made, that Respondent would not negotiate
with Complainant Union, and that Respondent's workers,
should they then proceed to strike, would be replaced. Mc-
Candless declared , merely, that , during the conversation in
question , his statements substantially recapitulated those
within a previously prepared document, supplied by
Respondent 's counsel, which he consulted ; that document,
so the record shows , contained no threats that Respondent
would refuse to bargain or that striking workers would be
replaced . Further: When queried regarding Respondent's
decision to hire several more workers , during November
and December particularly, various company witnesses de-
clared that their firm 's fall and winter busy season was
then developing, and that Respondent 's new densification
machine , together with certain related machinery, required
some personnel increase . In this connection, President
Grahamltestified as follows:
Why did we then, immediately after the layoffs, begin
to rehire? The rehiring was done then, because of an
additional fairly complex piece of equipment that was
installed in our plant [the densifier], which was not
anticipated at the time of the five terminations. So, in
the context of the supply situation, and the machinery
situation . . . the employment did go from ten to fif-
teen-and then back down to ten. And then it began
to rise, because of the additional equipment that was
installed in our plant . . . The Densifiers , Grinders
... [There] are Grinders, Loaders, Hoppers, and all
kinds of additional processing equipment which we
have installed since the terminations.
The record shows that, during this presumptive expansion
period Respondent 's vice president did hire a new worker,
Roy Hansen , whose qualifications were considered superi-
or; and that Cervantes, who had previously been terminat-
ed, was rehired . His rehire, so Respondent contends,
should be considered a persuasive refutation of General
Counsel's contention that his prior layoff had been moti-
vated by statutorily proscribed considerations.
C. Conclusions
1. Interference , restraint, and coercion
The record, within my view, fully warrants a determina-
FREE-FLOW PACKAGING CORPORATION 949
tion , consistent with General Counsel 's contention, that
Respondent's management withheld general wage increas-
es previously promised , with a scheduled October 1, 1973,
effective date , from production and maintenance workers
at Respondent's South San Francisco facility.
Respondent 's decision to withhold such raises was, so I
find, reasonably calculated to discourage the firm's South
San Francisco workers from pursuing their quest for col-
lective-bargaining representation.
While a witness, Vice President McCandless did declare,
categorically, that Respondent had no "stated policy or
written document" which reflected a wage policy pursuant
to which South San Francisco workers would be granted
raises concurrently with , and commensurate with, those
granted Safe-T Pacific's represented personnel . However,
Leadman Hawthorn's credible testimony, which Phoenix
and Lara tangentially confirmed, warrants a determination
that Respondent 's vice president did promise such match-
ing raises when he defined Respondent's prospective wage
payment policy during a late Spring, 1971, conference with
concerned South San Franciso workers, previously noted
herein . Thereafter , raises were granted , consistent with Mc-
Candless' commitment , later during the designated year
and likewise during the year which followed. Hawthorn's
further testimony, which I credit despite McCandless' wit-
ness chair denial, persuades me, too, that Respondent's
vice president subsequently confirmed his company's com-
mitment regarding general plantwide, October 1 raises,
during several 1973 conversations . (His conversation with
Hawthorn sometime during the calendar year designated,
which I have noted previously within this decision, clearly
reflects Respondent's commitment to grant South San
Francisco workers "matching" raises, concurrently with
those which Safe-T Pacific 's employees were contractually
scheduled to receive . In this connection , further, I note
Lara's corroborative testimony . Respondent's plant man-
ager recalled that, during a conversation with McCandless
shortly before his August, 1973, vacation began, he was
told, "You have to bear in mind , Tom, that you can't give
too many raises , too close, because in October they'll be
getting an increase , too." Lara's proffered recollections-
which I credit in this connection-persuasively negate
Respondent 's contention that various 1973 merit raises and
classification change raises, granted to particular South
San Francisco workers, broke any putative "fall increase"
pattern, which might have been established previously.)
True, Respondent's stated policy and practice regarding
plantwide fall raises had been followed for 2 years, merely.
Nevertheless, the policy's 2-year history, under the circum-
stances , sufficed to set a pattern; raises calculated to match
those contractually mandated for Safe-T Pacific's repre-
sented workers became , thereby , part of Respondent's
South San Francisco compensation structure. Vega Indus-
tries, Inc., 207 NLRB 14 (1973). Compare, Nello Pistoresi &
Son, Inc., 203 NLRB 905 (1973), enforcement denied 500
F.2d 399 (C.A. 9); Wonder State Manufacturing Company,
147 NLRB 179 (1964), enforcement denied 344 F.2d 210,
212-214 (C.A. 8, 1965), in this connection . Yearly raises,
pegged to Safe-T Pacific 's contractually mandated October
1 changes , were , so I find , paid for a length of time suffi-
cient to generate reasonable expectations , within
Respondent's South San Francisco production and mainte-
nance crew that plantwide wage increments, calculated to
match Safe-T Pacific's rate changes, would continue.
With matters in this posture, McCandless' professed be-
lief that general, plantwide raises could not be granted law-
fully, during the pendency of Complainant Union's peti-
tion, though bottomed upon legal counsel, can provide no
exculpation for his decision that such raises should be
withheld.
When Respondent's vice president told various South
San Francisco workers, both directly and through his
firm's plant manager, that their anticipated October 1 rais-
es would be withheld because Respondent might otherwise
be confronted with unfair labor practice charges, those em-
ployees were being told essentially that, but for their sup-
port of Complainant Union herein, Respondent would not
fear possible unfair labor practice charges, and hence they
would be receiving their raises. Further, when Re-
spondent's management representatives proffered the
rationale noted, purportedly to justify their decision, they
misrepresented relevant decisional doctrine. It is well es-
tablished that during a representation petition's pendency,
concerned employers must proceed as they would have
proceeded had the union not been on the scene; more par-
ticularly, they must decide whether or not to grant im-
proved wages or fringe benefits just as they would have
decided such questions absent the union's presence. Dia-
mond Motors, Inc., 212 NLRB 820 (1974); Stumpf Motor
Company, Inc., 208 NLRB 431 (1974); The Gates Rubber
Company, 182 NLRB 95 (1970); McCormick Longmeadow
Stone Co., Inc., 158 NLRB 1237, 1242 (1966). Consistently
with these precedents, I conclude that when Respondent's
management representatives withheld the previously prom-
ised and scheduled plantwide raises with which we are now
concerned, while attributing their discontinuance to pro-
fessed fears that Respondent might be confronted, other-
wise, with unfair labor practice charges, they interfered
with, restrained, and coerced their South San Francisco
plant workers, with respect to the exercise of statutorily
guaranteed rights.
Previously within this Decision, credible testimony, with
respect to statements and conduct by Respondent's man-
agement representatives which numerous employee wit-
nesses proffered, has been detailed. That testimony re-
flects: First, Plant Manager Lara's repetitive questioning of
various prospective South San Francisco workers, relative
to their union sympathies, their prospective voting inten-
tions, and their beliefs or personal knowledge regarding
their fellow workers' prounion views; Second, threats,
chargeable to both Vice President McCandless and Lara,
that Respondent's management would retaliate against
known union supporters, and might terminate workers who
were considered participants in Complainant Union's rep-
resentation campaign ; Third further statements and con-
duct, chargeable to management representatives, whereby
various South San Francisco workers, presumptively union
supporters, were arguably harassed or threatened with
prospective harassment. This testimony was received, how-
ever, for a limited purpose; namely, for the purpose of de-
monstrating Respondent's claimed determination to frus=
trate or forestall Complainant Union's campaign for
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative status . Proof in that connection , sufficient to
warrant a factual determination with regard to
Respondent 's antiunion purpose , would necessarily be re-
quired before General Counsel could sustain his basic con-
tention , herein, that Respondent's October layoffs, previ-
ously detailed , were really effectuated for statutorily
proscribed reasons.
Within General Counsel's complaint, however,
Respondent's management representatives were not origi-
nally charged separately with statutorily proscribed inter-
ference , restraint, or coercion , bottomed upon their state-
ments and course of conduct, previously noted. While the
hearing with respect to this case was in progress , General
Counsel's representative moved twice to modify his
complaint's paragraph VI, so that Lara's questioning, and
various threats chargeable to management representatives,
could be litigated as separate, statutorily defined , unfair
labor practices . General Counsel's representative declared,
finally, that these presumptive violations had not been des-
ignated or specified , originally, because supportive evi-
dence , with respect thereto, had not "materialized" before
the hearing herein commenced . General Counsel' s motion
was ultimately denied.
Within his brief, General Counsel has renewed his mo-
tion ; he requests my reconsideration. Further, I have been
requested to find various queries related to Complainant
Union's campaign threats and Respondent's harassment of
various South San Francisco workers, separately, violative
of law.
Pursuant to General Counsel's request, I have reviewed
the record ; in that connection , I have reconsidered my pre-
vious refusal to grant his motion . My prior disposition,
however, will be reaffirmed.
Considerable testimony , regarding Plant Manager Lara's
conduct particularly, was provided by Respondent 's rank-
and-file workers ; some were no longer in the firm's em-
ploy. I am persuaded from my record review, coupled with
my hearing room observations of General Counsel's repre-
sentative and his various employee witnesses , that their
proffered evidence would , most logically, have materi-
alized during discussions with Regional Office representa-
tives which must have taken place well before the hearing,
while Complainant Union's charges were being investigat-
ed and before General Counsel 's complaint was drafted.
Thus, General Counsel's failure to charge Respondent, ini-
tially, with separate Section 8 (a)(l) violations , bottomed
upon statements and conduct chargeable to Lara and
Respondent's vice president , would necessarily have de-
rived from a conscious decision, within his (General
Counsel's) prosecutorial discretion. His representative's
current motion , consequently, reflects a reversal of posi-
tion , rather than a desire to charge Respondent with newly
discovered violations . Granting the motion would substan-
tially enlarge the questions presented for disposition here-
in; would subject Respondent to legal surprise ; and would
not, within my view, justify any significantly stronger
remedial directives , should this Board find General
Counsel's further charges proven.
General Counsel's belated discovery, following his first
decision to rest his case , that Plant Manager Lara and
Leadman Phoenix would substantially corroborate his var-
ious employee witnesses, when summoned for testimony
thereafter, created no new situation. Though his renewed
motion seeking to amend his complaint, with respect to
further Section 8(a)(1) charges, cannot be considered time-
barred, my decision granting that motion would, within my
view, merely confirm the legal acceptability of General
Counsel's procedural ploy; it would not, however, provide
any justification for Board directives whereby workers'
rights would be better protected, or whereby public inter-
ests would be better served.
2. The October layoffs
Within his complaint, General Counsel has charged that
Respondent's management representatives laid off five
workers because of their membership in or activities on
behalf of Complainant Union, or because they had en-
gaged in some other concerted activity, statutorily protect-
ed. Nevertheless , he proffers no contention, presently, that
conspicuous union protagonists were terminated ; nor does
he suggest that Respondent 's management representatives
deliberately selected particular workers for termination be-
cause of their union membership or prounion proclivities.
His theory of violation, set forth fully for the first time
within his brief, reflects a relatively novel concept . Specifi-
cally, General Counsel declares that:
It will be shown how Respondent conceived and im-
plemented a plan intended to gerrymander the elec-
tion unit ... Respondent knew all the employees,
with the exception of David Phoenix, were pro-union
... In Respondent's plan to gerrymander it did not
matter which of the Union supporters Respondent rid
itself of as long as it lowered the number of Union
supporters to the level where the ineligible persons in-
duced by Respondent to vote for Respondent could
affect the results of the election in Respondent 's favor
... Respondent's plan to gerrymander was two-fold.
First, the number of Union supporters would be de-
creased by terminations. Second , four employees who
were clearly ineligible would be induced to vote in
favor of Respondent ... [The] Respondent's illegal
plan to counter the Union effort was more than mere
retaliation against certain employees who were pro-
union . . . McCandless desired , as he stated, to rid
Respondent of all of them because of their allegiance
to the Union. However, the specific "surgery" Mc-
Candless had in mind in order to beat back the
Union's organizational effort was to affect the out-
come of the election in Respondent's favor in a more
subtle, yet illegal manner. The plan was to first lower
the number of voters in the voting unit enough so that
the second step of the plan could affect the election
outcome . The second step was to induce employees
Respondent knew to be ineligible to vote as "ringers"
against the Union . . . . Four ringers were available
.... Respondent intended to affect the results of the
impending Union election by inducing ineligible em-
ployees to vote for Respondent, i.e. against the Union,
and lowering the number of pro-Union employees to
the point where the number of "ringers" could swing
FREE-FLOW PACKAGING CORPORATION 951
the election vote in Respondent's favor. The termina-
tions were subtly planned to appear "objective". How
else would a shrewd Respondent, desiring to illegally
affect the Union majority, do it?
No contention is made, however, that Respondent's pur-
ported plan was ever confessed, described verbally, or dis-
cussed within Respondent' s managerial heirarchy. General
Counsel suggests , merely, that Plant Manager Lara's vari-
ous coercive statements and course of conduct, purported-
ly bottomed upon directives which he received from
Respondent's vice president, provide a predicate from
which requisite inferences may be drawn, that all five lay-
offs challenged herein were effectuated pursuant to
Respondent's above-described plan.
The contention, though well briefed, fails to persuade.
First: General Counsel's suggestion that Respondent's
October layoffs were effectuated consistently with some
plan to gerrymander whereby the prospective representa-
tion vote's "numerical dynamics" would be favorably mod-
ified, derives from his deductive inference merely; neither
direct testimony, nor documentary proof, can be found
within the present record, sufficient to warrant a factual
determination that Respondent' s management specifically
considered, formulated, or consummated such a plan. Sub-
stantially, General Counsel's representative, reasoning
from a premise that Free-Flow Packaging Corporation's
pervasive union animus should be considered proven,
merely raises a rhetorical question, ("How else would a
shrewd Respondent, desiring to illegally affect the Union
majority, do it?") with respect to which he solicits concur-
rence. No direct proof, sufficient to justify such concur-
rence, has - however- been produced.
Second: If Respondent' s management was, really, pursu-
ing a so-called plan to gerrymander whereby Complainant
Union's bid for representative status could be forestalled,
five October layoffs would not have been sufficient to
guarantee such a plan's successful consummation. During
the firm's September 24-30 payroll period, which directly
preceded the Regional Director's October 3 Decision and
Direction of Election, the South San Francisco plant's reg-
ular production and maintenance work force compassed 18
persons. These included: One plant manager (Lara), whom
Respondent considered a working foreman; 14 production
workers (with Leadmen Phoenix and Hawthorn counted),
hired before Respondent's August 27-September 2 payroll
period; plus 3 production workers hired after September 3.
Further, two men whose primary work stations were locat-
ed at Respondent's Redwood City facility (Atkinson and
Bolding), were working part-time within the South San
Francisco plant, installing machinery and making major
repairs, while a third Redwood City transferee (Jackson),
monitored machinery newly installed and trained produc-
tion workers. Thus, with no intervening layoffs or dis-
charges and with Respondent contending that Lara, plus
the firm's three Redwood City employees, should be con-
sidered eligible to vote, the prospective voter's list for this
Board's November 2 election would have contained 21
names . And, within the group, Respondent' s management
would presumably have been counting on five probably
"No" votes; specifically, those which Lara, Atkinson,
Bolding, Jackson, and Leadman Phoenix would cast. (The
record, so General Counsel contends, will warrant a deter-
mination that Respondent's management believed 13 pro-
union votes would be cast, with every production worker
hired before the August 27-September 2 payroll period,
save for Leadman Phoenix solely, casting "Yes" ballots.
Regarding Stewart, Garrett, and Cervantes, there may have
been some doubt; Lara testified, however, that he consid-
ered them prounion workers.)
Thus, confronted with a possibility that 16 votes might
be cast favoring union representation, Respondent's man-
agement would have been required to terminate 12 work-
ers, before it could confidently consider South San
Francisco's prounion crew members sufficiently reduced in
number so that Lara's vote, plus those of the three desig-
nated by General Counsel as Redwood City "ringers",
could swing the vote consistently with Respondent's desire.
Further, assuming, arguendo, that Stewart, Garrett, and
Cervantes might conceivably cast negative ballots, six ter-
minations, confined to Respondent's production workers
with greater seniority, would still have been required be-
fore Respondent's management could consider a desirable
election result guaranteed. Five workers, however, were
terminated. Respondent's reduction in force, therefore, was
clearly too limited in scope; the specific objective which
General Counsel now claims Respondent sought, namely,
a successful gerrymander, could not have been realized
thereby. (Whether Respondent's October layoffs com-
passed five genuine union supporters, or merely garnered a
mixed bag, consisting of two presumed union sympathiz-
ers-Luvisotti and Evert-plus three workers-Stewart,
Garrett, and Cervantes-with doubtful leanings,
Respondent's management could not, reasonably, have
considered a negative election result assured. The group of
workers which Respondent's management presumably
considered qualified to vote-set during the firm's Septem-
ber 24-30 payroll period-would have been reduced from
21 to 16 persons. With 5 probable "No" votes foreseen,
Respondent would have been confronted, still, with 11
qualified voters presumably disposed favorably with re-
spect to union representation.)- If Respondent' s manage-
ment really had, consistent with General Counsel's conten-
tion, conceived a plan to gerrymander South San
Francisco's qualified voting constituency, McCandless and
Lara could hardly have been persuaded to cut their reduc-
tion-in-force program short, before their plan's prospective
"numerical dynamics" had been rendered certain. With
five October layoffs, merely, directed by McCandless,
General Counsel's representative leaves me unconvinced
that Respondent's reduction-in-force program was really a
calculatedly "subtle, yet illegal" ploy, specifically devel-
oped to guarantee Complainant Union's defeat.
Third: Without direct evidence that Respondent's so-
called true purpose ox real motive for laying off five work-
ers derived from management 's desire to discourage union
activity, General Counsel's representative relies upon
proofs which purportedly reveal the company
management's union animus , to provide what
Respondent's counsel calls "the essential nexus" for a de-
termination that these challenged layoffs were discrimina-
torily motivated. However, proven union animus, when
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing alone, will not support unfair practice determina-
tions, particularly where some prima facie showing of busi-
ness justification has been made . N.L.R.B. v. Billen Shoe
Co., Inc., 397 F.2d 801 (C.A. 1, 1968); N.LR.B. v. Rapid
Bindery & Frontier Binder Corp., 293 F.2d 170 (C.A. 2,
1961). Mere animosity , which may concededly have been
demonstrated by a concerned employer , furnishes no suffi-
cient basis for a Board deduction that discharges were pre-
ponderantly motivated thereby, when convincing evidence
has been proffered , demonstrating business necessity.
Compare Famet, Inc., 409 F.2d 293 (C.A. 9, 1973). Therein,
the eourt of appeals decision notes the concluding lan-
guage of Judge Aldrich in Billen Shoe, supra, which fol-
lows:
When good cause for . . . discharge appears, the bur-
den which is on the Board is not simply to discover
some evidence of improper motive , but to find an af-
firmative and persuasive reason why the employer re-
jected the good cause and chose a bad one. The mere
existence of anti-union animus is not enough . The fact
that the employer may be pleased to effectuate the
discharge does not mean that this was his primary mo-
tive. [Emphasis supplied.]
In short, Lara's coercive statements and conduct, which
may be considered proven , arguendo, for present purposes,
though undertaken presumably pursuant to McCandless'
directive , form no sufficient predicate themselves warrant-
ing General Counsel's suggested "inference" that
Respondent's October layoffs were motivated by consider-
ations statutorily proscribed.
General Counsel 's representative , therefore, challenges
Respondent's proffered rationale that when the layoffs
were made the firm lacked sufficient raw material to sus-
tain plant operations . In support of this contention that
Respondent's claim should be considered spurious, howev-
er, General Counsel 's representative proffers nothing more
than several casual observations , made by various South
San Francisco plant workers, that some virgin polystyrene
shipments were received during the period with which we
are concerned . Such generalized testimony , since it pro-
vides no reliable basis for a determination with respect to
whether Respondent 's production requirements were really
being fully satisfied , will not support a conclusion that
Respondent's laid-off workers were given "specious and
pretextual" reasons for their termination . In this connec-
tion , however, President Graham's assistant , John Howe,
testified , credibly and without persuasive contradiction,
that Respondent 's October 1 raw material supply com-
passed no more than 180 ,000 pounds of so -called "runna-
ble" polystyrene . This supply, had Respondent decided to
hold it for South San Francisco processing solely, would
merely have permitted Respondent to continue a four-
shift, 7-day weekly production schedule for little more than
a month , thereafter. (In this connection , General Counsel
points to record testimony that Respondent 's vice presi-
dent, when he directed the layoffs, told Lara their current
plastic supply would support productive operations for
some "two to four" months . The record shows, however,
that McCandless was not looking toward a continuation of
Respondent's four-shift , 7-day schedule; he was then fore-
casting a presumptive sufficiency of supplies for three-
shift, 5-day weekly operations , with a reduced crew, mere-
ly.) With some future material deliveries presumably fore-
seeable , but less than certain , Respondent's determination
that its raw material supply shortage dictated a prompt
retrenchment and reduction in force-before a complete
shutdown would become necessary-can hardly be de-
nounced as devoid of rational justification . "The pedestri-
an need not wait to be struck before leaping for the curb."
Betts Cadillac Olds, Inc., 96 NLRB 268, 286 (1951). Gener-
al Counsel's contention that Respondent 's proffered "sup-
ply shortage" defense merits rejection as fabricated cannot
be considered sustained.
Within his brief , General Counsel's representative, next,
cites various testimonial references which, so he contends,
demonstrate fatal flaws in Respondent 's so-called "busi-
ness necessity" defense . These record references have been
reviewed ; they do not, within my view, seriously prejudice
Respondent's defensive presentation:
(1) Respondent 's testimonial proffers, so General Coun-
sel contends , provide no real proof that supply shortages
had materially curtailed , or would prospectively curtail,
South San Francisco 's productive capacity. The record,
however, fully warrants determinations , which I have
made, that virgin and repelletized polystyrene were not
procurable , save at prohibitive prices; that polystyrene
sheet scrap supplies were progressively becoming scarcer;
and that miscellaneous polystyrene foam scrap , before
Respondent 's newly developed "densifier" proved work-
able, could not be commercially processed . Prior to
Respondent 's October 20 layoff decision , truly, the firm
may not have been experiencing serious supply difficulties;
nevertheless, President Graham's point , that potentially
crippling supply shortages within a relatively short time
could reasonably be foreseen , has been , within my view,
persuasively made . Though Respondent's South San Fran-
cisco facility may have received two carloads of presump-
tively "runnable" polystyrene, within 5 days directly fol-
lowing the fourth shift 's cancellation , the firm 's contention
that prospective supply shortages had dictated Graham's
layoff decision cannot reasonably be considered negated
thereby . Nothing within the present record suggests that
Respondent's president , when he made his layoff decision,
could have foreseen the shipment 's receipt within a few
days thereafter; further, no determination would be war-
ranted that two carloads would really have been sufficient
to warrant a continuation of Respondent 's four-shift, 7-day
weekly schedule.
(2) General Counsel cites Respondent's three workers,
newly hired during September purportedly to help fill
GSA's June requisitions; since they were hired shortly be-
fore the Resional Office 's representation case hearing, de-
spite a presumptively worsening raw material supply situa-
tion, General Counsel would have this Board consider their
hire indicative that no critical supply shortage was really
expected . Fourth-shift schedule had just started ; since Re-
spondent felt constrained to satisfy GSA's requisitions,
workers were needed . However, one worker previously
hired, Donald Evert , had been disabled ; presumably, his
replacement was required. Respondent 's fears, with regard
to prospective supplies were not yet acute . And nothing
FREE-FLOW PACKAGING CORPORATION 953
within the record would warrant a determination that
Stewart , Garrett, and Cervantes were hired needlessly,
merely to consummate the firm 's purported gerrymander
plan.
(3) General Counsel suggests that Respondent 's postlay-
off November directive making Saturday work mandatory,
coupled with the firm 's subsequent recruitment of tempo-
rary workers , McCandless ' decision to hire Hanson, and
Cervantes' reemployment , belie its claim that business ne-
cessity dictated the five October terminations with which
we are concerned . I note, however, Respondent 's testimo-
nial proffers , none of which have been contested , that dur-
ing November , Respondent's fall and winter busy commer-
cial season was beginning ; that South San Francisco's new
machinery , which had just become operational , required
more production time , plus a slightly larger production
crew ; and that Respondent 's mandatory overtime require-
ment comported with a seasonal pattern which had previ-
ously been followed . These testimonial proffers , within my
view, suffice to justify Respondent's postlayoff production
schedule and personnel changes; those changes , I find,
provide no persuasive support , retrospectively , for General
Counsel's contention that Respondent 's management rep-
resentative would not have terminated five workers, more
than a month before, but for their desire to scotch Com-
plainant Union 's representation bid.
General Counsel contends that President Graham's Oc-
tober hopes , concerning his firm 's possible release from
GSA's contract, could not have motivated his decision to
cut back production and reduce personnel , since Respon-
dent had no commitment, then, that GSA would cancel its
contractually based requisitions previously placed. The
contention carries some persuasive thrust; Respondent's
president really had no such commitment . Indeed, within
his October 23 letter to GSA's director of procurement,
Graham had declared that:
While it may ultimately be necessary to suggest can-
cellation "in the best interests of the government" of
this unshipped portion of the contract, we are not sug-
gesting this at the present time.
I am satisfied , however , that Graham had previously been
told GSA could not, legally , require further Flo-Pak deliv-
eries, pursuant to Respondent's defunct requirements con-
tract ; that he had , subsequently , verified the correctness of
this information which he had received ; and that, before
October 20 particularly , both McCandless and
Respondent's president believed , with substantial justifica-
tion , they could cut back production and reduce personnel
within their South San Francisco facility, without fear that
Respondent would be burdened with GSA default penal-
ties . President Graham 's belief, with respect to Re-
spondent's prospect for eventual contractual relief, may
not have motivated his production cutbacks and reduction-
in-force decisions; clearly, however , his conviction that
GSA could ultimately be required to cancel requisitions
not yet filled freed him to consummate a retrenchment pro-
gram which, so the record shows, he considered necessary
to preserve Respondent 's economic health.
Within his brief, General Counsel's representative,
standing on his contention that Respondent 's proffered
business justification for these challenged layoffs should be
disregarded as pretextual , has summarized his position
thus:
Considering the background of . . . many threats,
numerous interrogations of employees and the
Respondent's refusal to grant a pre -scheduled across-
the-board annual pay increase as had been done rou-
tinely in years past , coupled with the most direct and
probative type of candid evidence from the testimony
of Lara as to his statements to employees threatening
that Warren McCandless intended to fire everybody
who was involved with the Union activity , and the
timing of the discharges so soon before the scheduled
election , no other rational conclusion may be drawn
but that Respondent terminated the employees for dis-
criminatory reasons.
And with respect thereto , General Counsel 's representative
has, indeed, presented a plausible prima facie case . His tes-
timonial and documentary proffers , however, have not,
within my view , convincingly overborne Respondent's
business necessity defense . Thus, despite my willingness to
conclude arguendo, that Respondent's vice president did
desire Complainant Union's defeat , that he did manifest
his desire freely during conversations with Plant Manager
Lara particularly , and that Lara did reflect his superior's
animus during his (Lara's) subsequent conversations with
South San Francisco's leadmen and production workers, I
find no determination preponderantly warranted , herein,
that Luvisotti , Evert, Stewart, Garrett, and Cervantes were
terminated for statutorily forbidden reasons.
3. Respondent's bargaining duty
General Counsel, herein, charged initially that
Respondent's management representatives , though re-
quested , refused , and have continued to refuse , to bargain
collectively with Complainant Union as the exclusive rep-
resentative of Respondent's South San Francisco produc-
tion and maintenance workers . Further , General Counsel
contended that Respondent's total course of conduct, since
it violated Section 8(1), (3), and (5) of the statute, presently
mandates a remedial directive which would require Re-
spondent to bargain with Complainant Union herein.
Within a posthearing communication, however, following a
recent Board decision, Steel-Fab Inc., 212 NLRB 363
(1974), General Counsel's representative has proffered a
modified statement of position:
Although the General Counsel contends that a Section
8(a)(5) violation is clearly made out by the evidence
... attention is directed to the holding of the Board
in Steel-Fab Inc., supra, to the effect that, even assum-
ing, arguendo that a Section 8(a)(5) violation were not
found ,- a bargaining order is necessary and appropri-
ate to remedy the employer's massive and pervasive
unfair labor practices . Put another way, a violation of
Section 8(a)(5) is clearly found in the instant -case.
However, an order to bargain , clearly necessary to
remedy the violations of the Act , has been held not to
be dependent upon such a finding.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This Board, within its cited Steel-Fab decision, held that
questions with respect to whether bargaining orders should
issue in particular cases will, henceforth, be determined fol-
lowing a review of the concerned employer's Section
8(axl) conduct, with a view to assessing that conduct's
probable impact upon the holding of a fair election. Here-
in, my review with respect to Respondent's course of con-
duct, following Complainant Union's petition, persuades
me that, while Section 8(aXl) may have been violated, the
conduct in question was not such pervasive conduct and
did not constitute such egregious misconduct as to have
dissipated Complainant Union's majority status; it did not,
within my view, prevent the holding of a fair election. In-
deed, Complainant Union won a majority of the valid
votes counted, despite Respondent's misconduct. With
matters in this posture, I find General Counsel's present
request for a bargaining directive, herein, not warranted.
Compare White Pine Inc., 213 NLRB 566 (1974), in this
connection.
IV. THE OBJECTIONS AND CHALLENGES
A. The Objections
On November 9, 1973, Petitioner, Local 31, filed timely
objections with respect to the November 2 representation
vote. However, shortly before General Counsel's Com-
plaint with respect to Case 20-CA-8746, was issued and
served, five of Petitioner's seven objections were with-
drawn. My recommendations, regarding the disposition of
Petitioner's second and sixth objections, will be set forth
below.
Previously, within this decision, determinations have
been made : That company management representatives,
during a spring 1971 conference, promised South San
Francisco plant workers they would, thereafter, receive
yearly across-the-board wage increases, matching those
which Safe-T Pacific's workers would be receiving pur-
suant to contract; that the Company's workers were, there-
after, granted such raises , during calendar years 1971 and
1972 particularly; but that, following Local 31's represen-
tation petition, the Company's workers were told no com-
parable matching raises, with October 1, 1973, effective
dates, would be granted. Further, I have found, consistent
with Petitioner's contention, that the Company 's manage-
ment did, subsequently, withhold these previously prom-
ised and scheduled raises . Though the Company's decision
to withhold wage increases may have been bottomed upon
legal counsel, the firm cannot , legitimately, claim exculpa-
tion thereunder; such counsel, so I have found, derived
from a less-than-sufficient factual premise . By 1973, gener-
al yearly raises, calculated to match those which Safe-T
Pacific's workers were receiving, had become part of the
Company's South San Francisco compensation structure;
their discontinuance during the critical preelection period,
therefore, constituted a substantial change in working con-
ditions, reasonably calculated to interfere with, restrain,
and coerce South San Francisco plant workers, with re-
spect to their exercise of statutorily guaranteed rights. On
merit, therefore, Petitioner's second objection could be sus-
tained . See, however, my final recommendations set forth
hereinafter . Since I have found that five of the Company's
workers were terminated , shortly before the Regional
Office's scheduled November 2 vote , for business reasons
rather than for reasons statutorily proscribed, the laborato-
ry conditions prerequisite for a fairly conducted represen-
tation election, within my view, could not have been preju-
diced thereby. On merit, Petitioner's sixth objection,
therefore, should be overruled completely.
B. The Challenges
1. Atkinson, Bolding, and Jackson
Robert B. Atkinson: Petitioner claims that, when the No-
vember 2 representation election was held, Atkinson was a
supervisor, with his primary place of work located within
the Company's Redwood City facility. With respect there-
to, I find, the record warrants determinations: That Atkin-
son presently holds a salaried position; that he performs
services for both the Company and Safe-T Pacific Compa-
ny; that he functions as their "Manager of Manufacturing
Services" while charged with general supervisory responsi-
bility for their shared facility's machine shop, which serv-
ices both firms; that, while functioning in that capacity, he
directs the work done there, particularly by Safe-T Pacific's
machine shop personnel; and that he can recommend their
hire or discharge. Concededly, during the period with
which we are concerned, he spent the majority of his time
within the Company's and Safe-T Pacific's shared Red-
wood City facility; no more than 10 or 20 percent of his
time was spent working within the Company's South San
Francisco plant. His South San Francisco, services, when
performed, were concerned primarily with setting up new
machines and making major machinery repairs. The record
warrants a determination, further, that he made, and still
makes, managerial recommendations with respect to
equipment purchases. Si Fe Atkinson, concededly spends
most of his working time in Redwood City, holds a super-
visory position there, and performs no regular production
or routine maintenance work within the Company's South
San Francisco plant, he cannot, legitimately, be considered
a South San Francisco production or maintenance worker.
Jesse Bolding: Petitioner contends, herein, that Bolding
was, during the period with which we are concerned, the
Company's Redwood City machine shop supervisor. The
record warrants determinations, which I make, that he was
the Company's formally designated machine shop fore-
man; that he functioned as Manager Atkinson's direct sub-
ordinate; that within that facility's machine shop, he was
authorized to discipline workers when they failed to per-
form their assigned tasks properly; and that most of his
working time was spent within the Company's Redwood
City facility. Bolding 's services were rarely required within
the Company's South San Francisco plant; Hawthorn's
credible testimony, which stands without contradiction,
will support a conclusion that, on the average, the machine
shop foreman spent no more than 4 hours per week there
"installing new machinery or making some sort of repair"
with respect to existing machinery. He provided no regular
lubrication service or routine maintenance. Upon this rec-
FREE-FLOW PACKAGING CORPORATION
ord, Bolding cannot properly be considered a South San
Francisco production or maintenance worker, within my
view.
Robert Jackson: When hired, sometime during April
1972, Jackson was designated a junior engineer ; subse-
quently, however, he received a promotional reclassifica-
tion during the period with which we are herein concerned.
His job title was "Manufacturing Engineer ." His position
was salaried. Within the Company's Redwood City facility,
where his regular office was located , Jackson performed
drafting work, plus various small engineering tasks; fur-
ther, he helped Vice President McCandless, Manager At-
kinson and Gunther Foss, the Company's design engineer,
with various projects. Jackson's work did require him to
visit the firm's South San Francisco facility sporadically;
normally , however, when such visits were required, his
stays were limited. Nevertheless, between July and October
1973, he did spend some 3 or 4 weeks-full time-within
the South San Francisco plant, while the Company's new
repelletizer machine was being installed ; further, he was
given responsibility for training production workers who
would be required to operate the machine thereafter. The
record, however, warrants a determination, which I make,
that, during this same period, Jackson was likewise twice
dispatched to the Company's Newark, Delaware, plant,
where he conducted similar training sessions while a new
repelletizer was being installed there. (The Company's vice
president did testify that Jackson, during August and Sep-
tember particularly, save for those periods during which he
made two trips to the Company's Newark, Delaware,
plant, worked regularly at South San Francisco, where he
was both operating the firm's repelletizer , and training
prospective operators. However, the present record, con-
sidered in totality, will not, within my view, support Mc-
Candless' testimonial suggestion that Jackson 's formal as-
signment required him to perform regular production work
for 50 percent of his time. Within the firm's South San
Francisco plant, he may have worked full 8-hour days, and
he may have operated production line machinery some-
times, when the Company 's regular operators were not
present; I am satisfied, however, that production line oper-
ations were not considered his principal job function.)
While discharging his training responsibilities , I find, Jack-
son checked the new repelletizer 's performance, recorded
production data with respect thereto , and made recom-
mendations regarding desirable operational policies and
design changes, calculated to promote better production
with Respondent's machinery . The engineer , so his testi-
mony shows, shared no real community of interest with the
Company's South San Francisco production and mainte-
nance workers; though he cast a November 2 ballot, which
was challenged , he did not really consider himself part of
the bargaining unit which Complainant Union was seeking
to represent . He voted, so he declared, merely because he
did not wish to "make waves," which might get him into
someone's bad graces , or get him on someone's "black-ball
list" since that might affect his future potentialities for pro-
motion . With matters in this posture , the Company's man-
agement engineer , within my view , cannot, legitimately, be
considered a South San Francisco production or mainte-
nance worker.
2. Thomas Lara, Jr.
955
Previously, within this decision, I have found that,
throughout the period with which this case is concerned,
Lara functioned as Respondent's South San Francisco
plant manager. When the Regional Office's November 2
representation vote was conducted, Lara was clearly a su-
pervisor, within the meaning of that term as statutorily de-
fined; thus, he could not, properly, have been considered
qualified to vote. Compare White Pine, Inc., 213 NLRB 566
(1974), in this connection.
3. Garrett and Evert
The ballots cast by William Garrett and Donald Evert
were challenged, during the November 2 representation
vote, because of their prior terminations. Since I have
found previously within this _ decision that Garrett and
Evert were, together with three more production workers,
terminated for business reasons rather than for statutorily
proscribed reasons, before the scheduled election date,
they could not properly have been considered qualified to
cast valid votes.
C. Recommendations
With matters in this posture, my recommendation will
be that Petitioner's four challenges-concerned with bal-
lots cast by Robert B. Atkinson, Jesse Bolding, Robert
Jackson, and Thomas Lara, Jr., particularly-should be
sustained . With respect to both William Garrett and Don-
ald Evert, whose voting rights were challenged by the Re-
gional Office's representative and the Company's election
representative , respectively, my recommendation will be
that pending challenges concerned with their ballots
should be likewise sustained.
Since my recommendations regarding these challenged
ballots, should the Regional Director concur, would dis-
pose of whatever questions the representation case record
may present, with respect to Petitioner, Local 31's designa-
tion by a majority of company workers who cast valid bal-
lots, my further recommendation will be that the Regional
Director should certify the election results, concededly
based upon valid votes counted, and grant petitioner certi-
fication as the designated representative of the Company's
South San Francisco plant workers, for collective-bargain-
ing purposes.
With petitioner, Local 31, certified as exclusive bargain-
ing representative for the Company's employees, within a
bargaining unit properly designated, no formal disposition
with respect to petitioner's single meritorious objection,
previously discussed herein, will be required. White Pine,
Inc., supra. Consistent with my previously stated findings
of fact and legal conclusions relative to Free-Flow Packag-
ing Corporation's October layoffs, however, I shall recom-
mend that Petitioner's sixth objection be overruled com-
pletely.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondent 's course of conduct set forth in section III,
above, since it occurred in connection with Respondent's
business operations described in General Counsel's com-
plaint and concedely described correctly therein , has had,
and continues to have, a close , intimate , and substantial
relation to trade , traffic , and commerce among the several
States ; absent correction such conduct would tend to lead
to labor disputes burdening and obstructing commerce,
and the free flow of commerce.
In view of these findings of fact, and upon the entire
record in this case , I make the following:
CONCLUSIONS OF LAW
1. Respondent , Free-Flow Packaging Corporation, is an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce and business activities which affect
commerce within the meaning of Section 2(6) and (7) of
the Act, as amended.
2. Leather, Plastics & Novelty Workers Union, Local
No. 31, International Leather Goods , Plastics and Novelty
Workers Union , AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act, as amended, which
admits certain employees of Free-Flow Packaging Corpo-
ration to membership.
3. When Respondent 's management withheld a previ-
ously promised and scheduled wage increase from produc-
tion and maintenance workers within its South San Fran-
cisco facility, for the purpose of discouraging them from
engaging in union activity, or from otherwise manifesting
their support for Complainant Union herein , Respondent
interfered with, restrained , and coerced those employees
with respect to their exercise of rights statutorily guaran-
teed. Thereby, Respondent engaged , and continues to en-
gage , in an unfair labor practice affecting commerce within
the meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act, as amended.
4. General Counsel has not , herein , produced reliable,
probative , or substantial evidence , sufficient to justify a
determination that Respondent corporation-when its
management representatives terminated or laid off Mauro
Luvisotti , Donald Evert , James Stewart , William Garrett,
and Richard Cervantes-did engage , or continues to en-
gage, in unfair labor practices affecting commerce , within
the meaning of Section 8(a)(1) and (3) and Section 2(6) and
(7) of the Act , as amended.
5. General Counsel has not , herein, produced reliable,
probative , or substantial evidence , sufficient to warrant a
Board directive , promulgated without regard for a previ-
ously conducted representation election's result , whereby
Respondent 's management representatives would be re-
quired to bargain collectively with Complainant Union as
the exclusive representative of Respondent 's workers, with-
in a defined South San Francisco plant unit considered
appropriate for collective -bargaining purposes.
THE REMEDY
Since I have found that Respondent has committed, and
has thus far failed to remedy , a specific unfair labor prac-
tice which affects commerce , I shall recommend that it be
ordered to cease and desist therefrom , and to take certain
affirmative action , including the posting of appropriate no-
tices , designed to effectuate the policies of the Act, as
amended.
More particularly, I have found that Section 8 (a)(1) of
the statute was violated when Respondent 's vice president
determined that general across-the-board raises , previously
promised and scheduled for South San Francisco 's produc-
tion and maintenance workers , should not be granted, be-
cause Complainant Union 's representation petition was
pending . I shall , therefore , recommend that Respondent be
required to make whole those South San Francisco produc-
tion and maintenance workers who were in Respondent's
hire on October 1, 1973, and thereafter , for any pay losses
which they may have suffered because of Respondent's
statutorily proscribed decision , by paying them sums of
money sufficient to cover the total wage increments which
they would have received-between October 1, 1973, and
the dates of their subsequent separations from
Respondent's employ , or the date of this order, should they
still be in Respondent's employ-but for Respondent's de-
cision to withhold or discontinue the payment of such rais-
es. The sums due should be computed by calendar quar-
ters, pursuant to the formula which the Board now uses.
F. W. Woolworth Company, 90 NLRB 289, 291-294 (1950).
Interest thereon should likewise be paid , computed at 6
percent per year . See Isis Plumbing & Heating Co., 138
NLRB 716 (1962), in this connection.
I have , however , found that Respondent 's management
representatives-when they terminated Luvisotti , Evert,
Stewart , Garrett , and Cervantes , particularly-committed
no unfair labor practice . Further , I have found General
Counsel's evidentiary presentation, herein, less than suffi-
cient to warrant a Board directive whereby Respondent
would be required , forthwith to bargain collectively with
Complainant Union herein , as the exclusive representative
of Respondent 's employees, within a defined South San
Francisco plant unit considered appropriate for collective-
bargaining purposes . I shall , therefore , recommend that
General Counsel's complaint herein-save for paragraphs
VI and XII thereof , with respect to which I have found
Respondent 's management representatives guilty of com-
mitting a statutorily defined unfair labor practice-be dis-
missed.
[Recommended Order omitted from publication.]