Perlman-Rocque Company

National Labor Relations Board - Board Decisions

Jul 21, 1981

257 N.L.R.B. 13 (N.L.R.B. 1981)

THE PERLMAN-ROCQUE COMPANY
The Perlman-Rocque Company (North)' and Rich-
ard A. Williams, Jr., Attorney for and on behalf
of Warehouse, Drivers and Helpers Union Local
No. 359, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America and Warehouse, Driv-
ers and Helpers Union Local No. 359, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Cases 18-CA-6541 and 18-CA-6611
July 21, 1981
DECISION AND ORDER
On March 6, 1981, Administrative Law Judge
George Norman issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
The National Labor Relations Board has consid-
ered the record and the attached Decision in light
of the exceptions and brief and has decided to
affirm the rulings, findings, 2 and conclusions of the
Administrative Law Judge and to adopt his recom-
mended Order, as modified herein.
We agree with the Administrative Law Judge
that Respondent violated Section 8(a)(3) and (1) of
the National Labor Relations Act, as amended, by
discharging employee Kerry Kjeseth3 because of
his union activities. However, we do not agree
with the Administrative Law Judge's conclusion
that Respondent violated Section 8(a)(1) of the Act
by entering into a contract with and attempting to
force its employees to join Local Union No. 710,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, herein Local 710, although Local 710 did
not represent a majority of Respondent's employ-
ees in the appropriate unit.
Review of the record herein indicates that on
January 29, 1980, Warehouse, Drivers and Helpers
Union Local No. 359, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein Local 359,
filed charges with the Board in Case 18-CA-6541
alleging that Respondent, by the above-mentioned
conduct, violated Section 8(a)(2) and (1) of the Na-
On April 6, 1981, Respondent filed with the Board a motion to cor-
rect the caption of the case and all other references herein to reflect the
proper spelling of the name of Respondent. We hereby grant this motion
and make the requested corrections.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
3 Member Jenkins would compute interest on Kjeseth's backpay in the
manner set forth in his partial dissent in Olympic Medical Corporation, 250
NLRB 146 (1980).
257 NLRB No. 2
tional Labor Relations Act, as amended. 4 On or
about March 18, 1980, by stipulation and agree-
ment with Respondent, Local 359 withdrew these
charges. Neither Local 359 nor the General Coun-
sel has, at any time since this withdrawal, request-
ed that we find these violations.
Accordingly, inasmuch as the charges have been
withdrawn, we find that Respondent did not vio-
late Section 8(a)(1) of the Act as found by the Ad-
ministrative Law Judge. Additionally, we disavow
the Administrative Law Judge's statement in his
"Discussion and Conclusions" that Respondent's
conduct would have been found to violate Section
8(a)(2) of the Act but for Local 359's withdrawal
of the charge. 5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
The Perlman-Rocque Company (North), Fridley,
Minnesota, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Substitute the following for paragraph l(a):
"(a) Discouraging membership in any labor orga-
nization by discharging its employees or in any
other manner discriminating against them with
regard to their hire or tenure of employment or
any other term or condition of employment."
2. Substitute the attached notice for that of the
Administative Law Judge.
4 On February 11, 1980, Local 359 amended these charges to include
allegations that Respondent violated Sec. 8(a)3) and (1) of the Act by
discharging Kjeseth.
On March 20, 1980, Local 359 filed a charge against Respondent in
Case 18-CA-661 1, alleging that Respondent committed violations of Sec.
8(aXl) of the Act by threatening employees with a loss of pension bene-
fits if they voted in favor of the Union. On April 25, 1980, the Regional
Director for Region 18 consolidated this charge with the charges in Case
18-CA-6541. In his Decision, the Administrative Law Judge dismissed
the allegations of Case 18-CA-6611. The General Counsel did not file
exceptions to this dismissal.
I Respondent excepts to the Administrative Law Judge's ruling at the
hearing admitting evidence offered by the General Counsel which tends
to show that Respondent actively supported Local 710, contending that
such evidence is irrelevant in light of Local 359's withdrawal of the
8(aX2) and (I) charges against it. The Administrative Law Judge, howev-
er, found this evidence to be relevant to the issue of Respondent's moti-
vation for discharging Kjeseth. We agree with the Administrative Law
Judge's reasoning and his ruling based thereon. Accordingly, we find Re-
spondent's exception to be without merit
13
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT terminate an employee be-
cause of his union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by the National Labor Relations Act, as
amended.
WE WILL offer Kerry Kjeseth immediate
and full reinstatement to his former position of
employment or, if that job no longer exists, to
a substantially equivalent position of employ-
ment without the loss of his seniority or any
other rights and privileges.
WE WILL make whole Kerry Kjeseth for his
losses, with appropriate interest thereon,
which have resulted from his termination.
THE PERLMAN-ROCQUE COMPANY
(NORTH)
DECISION
STATEMENT OF THE CASE
GEORGE NORMAN, Administrative Law Judge: The
hearing in this case was held in Minneapolis, Minnesota,
on September 29 and 30, 1980.1 The order consolidating
cases and consolidating complaint and notice of hearing
was issued by the Regional Director for Region 18 of
the National Labor Relations Board (herein the Board),
on behalf of the General Counsel of the Board, pursuant
to Section 10(b) of the National Labor Relations Act, as
amended (herein the Act), and Section 102.15 of the
Board's Rules and Regulations, Series 8, as amended.
The order is based on a charge filed by Warehouse,
Drivers and Helpers Union Local No. 359, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (herein Local
359 or the Union).
The charge in Case 8-CA-6541 was filed by the Union
on January 29, the amended charge in Case 18-CA-6541
was filed by the Union on February 11, and the charge
in Case 18-CA-6611 was filed by the Union on March
20. The charge in Case 18-CA-6541 alleges that The
Perlman-Rocque Company (North) (herein Respondent
or the Company) committed certain unfair labor prac-
tices in violation of Section 8(a)(1) and (2) of the Act.
The amended charge in Case 18-CA-6541 further alleges
that Respondent committed violations of Section 8(a)(3)
of the Act. 2 The charge in Case 18-CA-6611 alleges
I All events herein occurred in 1980 unless otherwise indicated.
2 On or about March 18, the Union withdrew that portion of its unfair
labor practice charge in Case 18-CA-6541 alleging violations of Sec.
8(aXI) and (2).
that Respondent committed violations of Section 8(a)(l)
of the Act.
In effect, what remains to be decided herein is wheth-
er Respondent discharged employee Kerry Kjeseth in
violation of Section 8(a)(1) and (3) of the Act, and
whether Respondent interfered with, restrained, and co-
erced employees in the exercise of their rights guaran-
teed in Section 7 of the Act by threatening employees
with loss of benefits if they voted to be represented by
the Union.
Respondent denied the substantive allegations of the
complaint.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, and to argue orally. The General Coun-
sel and Respondent filed post-hearing briefs.
Upon the entire record, including my consideration of
the briefs and careful observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Minnesota corporation with an office
and place of business in Fridley, Minnesota, has been en-
gaged in the wholesale distribution of restaurant supplies,
including food. During the 12-month period ending Sep-
tember 31, 1979, Respondent purchased and received at
its Fridley, Minnesota, facility products, goods, and ma-
terials valued in excess of $50,000 directly from points
outside the State of Minnesota. Respondent is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Warehouse, Drivers and Helpers Union Local No.
359, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, is a labor organization within the meaning of Section
2(5) of the Act.
ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Respondent, a subsidiary of Havi Corporation, is en-
gaged exclusively in the distribution of food, paper, and
other products to McDonald's restaurants. It started its
operations in 1977, and its present location is in Fridley,
Minnesota.
The Company's primary functions are carried out by
its transportation and distribution center departments.
The transportation department handles the trucking op-
erations for delivery of the Company's products, and em-
ploys its own drivers. The distribution center department
performs the functions of receiving, order selecting, and
trailer loading the products in and about that depart-
ment's facility in Fridley. The Company first opened its
own distribution center department in Fridley for full
operation on December 29, 1979. Shortly before opening
that facility Respondent hired the distribution center em-
ployees to operate it. Kerry Kjeseth, the allegedly discri-
14
THE PERLMAN-ROCQUE COMPANY
minatorily discharged employee, was among the first
group of 12 distribution center employees hired effective
December 12, 1979.
Walter Wheaton was the Company's general manager
and directed its overall daily operations. Thomas Pagois
was the distribution center manager, and was immediate-
ly responsible to Wheaton for its operation and the per-
formance of its employees. Two supervisors, Norman
Peterson and Richard Bechum, performed firstline super-
visory responsibilities under Pagois' direction. Andrew
Bourke, the director of operations for the parent Havi
Corporation, performed advisory assistance and services
to management. However, he was not a direct line super-
visor of the Company's operations.
At the time the Company started hiring it entered into
a collective-bargaining agreement covering newly hired
employees with Teamsters Local 710 (herein Local 710).
Local 710 represented the Company's drivers in Fridley
and the drivers and center employees of its sister corpo-
ration, The Perlman-Rocque Company in Lemont, Illi-
nois. Employees were given copies of the contract be-
tween Respondent and Local 710 during January 1980
and were asked to sign Local 710 authorization and in-
surance cards.
On January 14, Supervisor Norman Peterson called
Kjeseth into the office and asked him to sign for a Local
710 contract. Kjeseth signed, but wrote next to his signa-
ture, "Signature not binding to any contract." That con-
tract was between Respondent and Teamsters Local 710
In it Respondent recognized Local 710 as its employees'
bargaining agent, and the contract contained wage rates,
benefits, and conditions of employment. Former employ-
ee David Hunt affirmed that he, too, was given a copy
of the Local 710 contract and that he signed for it upon
receiving it from Andrew Bourke, the director of oper-
ations of Havi Corporation. Kjeseth testified that he be-
lieved that Peterson distributed the Local 710 contract to
all the employees and that all had to sign. Moreover,
Kjeseth testified that he had never met with, spoken to,
or been in any form of contact with any representative
of Teamsters Local 710 prior to receiving the contract
from Peterson. Bourke conceded that Respondent had
signed the Local 710 contract before the operations
opened.
On or about January 12, a few days before Kjeseth re-
ceived the Local 710 contract, he was called into the
office. Upon arriving, General Manager Wheaton and
Distribution Center Manager Pagois handed him enroll-
ment and insurance cards for Local 710. They asked him
to sign both cards but Kjeseth refused. Hunt testified
that he signed both cards at Bourke's request at the same
time that Bourke handed him the Local 710 contract. In
addition, employee Timothy Roppe was also asked to
sign a Teamsters Local 710 authorization card by Whea-
ton in early January. Roppe testified that he filled out
and signed the card as requested. Employee David An-
derson testified that he was asked to sign an authoriza-
tion card by Bourke and Wheaton in January. Anderson
declined, saying that he had not had time to look at the
contract, but when his 30-day review conference oc-
curred he did sign an authorization card fearing that he
would lose his job if he did not. Anderson testified that
on another occasion, after Wheaton asked him to sign an
authorization card and before his 30-day review, Bourke
told him to sign a card or Bourke would make it difficult
for him or fire him. In his testimony Bourke acknowl-
edged discussing with Anderson the signing of a Local
710 authorization card, but denied telling Anderson he
had to sign such a card. He further testified that he
pointed out the union-security clause in the contract to
Anderson, but did not explain to him what it meant.
B. The Organizational Campaign on Behalf of
Teamsters Local 359
While Respondent was organizing on behalf of Team-
sters Local 710, its employees were organizing on behalf
of Teamsters Local 359. Employee Bob Varhol initiated
the effort on behalf of Local 359. He asked Kjeseth and
Roppe to sign cards authorizing Local 359 as their bar-
gaining agent. Employee Frank Atkins denied any active
involvement in the Local 359 organizing effort but stated
that Varhol was distributing Local 359 authorization
cards. Kjeseth testified that both Atkins and Varhol
asked him not to sign Local 710 cards.3 On January 17,
upon learning that both Varhol and Atkins were promot-
ed to leadpersons, Kjeseth asked to meet with Pagois
and Wheaton. Kjeseth also requested that Pagois and
Wheaton have available at the meeting his employment
application. The meeting occurred in Wheaton's office.
Kjeseth accused Pagois and Wheaton of appointing
Varhol and Atkins leadmen so that both would quit
trying to encourage employee support of Local 359. Kje-
seth asked why Varhol and Atkins had been selected
when he had written on the back of his application that
he wished to be rewarded for hard work. Pagois re-
sponded that Kjeseth could not be leadman because of
his student status and "too-emotional" reactions to situa-
tions. Pagois denied Kjeseth's accusations, testifying that
his impression was that Kjeseth emphasized too vehe-
mently his personal ambitions. Bourke and Pagois testi-
fied concerning Atkins' and Varhol's qualifications for
the job but made no reference to the timing of the pro-
motions.
After Varhol and Atkins became leadpersons, Kjeseth
took up and continued Local 359's organizational drive.
He distributed authorization cards for Local 359, and on
January 19 held a meeting at his home, at which several
employees and two Local 359 agents were in attendance.
Neither Frank Atkins nor Varhol attended that meeting.
Employee Roppe's testimony confirmed Kjeseth's activi-
ties on behalf of Local 359.
Pagois testified that he was not aware of Local 359's
interest until Respondent received the petition on Janu-
ary 16 and that the Company was not aware of which
employees had signed Local 359 cards or were active in
its support. With respect to the latter, I do not credit
3 On January 15, Local 359 filed a petition for representation of the
Company's distribution center employees. An election pursuant to that
petition was scheduled for April 3. Local 359, however, voluntarily with-
drew its petition on April 2 for reasons unrelated to the instant charges.
Local 710 withdrew from its representation of the distribution center em-
ployees in the first part of February as a result of an internal Teamsters
resolution of the competing jurisdictional interests of the two Unions in
favor of Local 359.
15
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pagois' testimony. I find it difficult to believe that in a
unit of only eight employees Respondent was not aware
of the organizational drive on behalf of Local 359 or
which employees were active or signed cards. Florida
Cities Water Company, 247 NLRB 755 (1980); Syracuse
Dy-Dee Diaper Service, 251 NLRB 963 (1980).
C. The Events Leading to Kjeseth 's Discharge
On January 28, Peterson and Pagois met with Kjeseth
to review his job performance. The meeting began with
a very critical review by Peterson and Pagois of Kje-
seth's work. They told Kjeseth that he had a bad attitude
and it was affecting his job performance. Kjeseth re-
sponded that, if the union "garbage" cleared up, his atti-
tude "couldn't help but get better." Peterson asked Kje-
seth what he did not like about the Local 710 contract.
Kjeseth responded that he did not like certain manage-
ment-rights provisions and the low pay scale. Kjeseth
testified that Peterson's reply was, "Would you give
somebody $50 to mow your lawn?" Peterson denied stat-
ing the latter. Kjeseth then suggested that they let the
Local 710 matter remain between him and Local 710 and
that it not be allowed to affect the relationship between
him, Pagois, and Wheaton. Kjeseth also said that he
liked working for Respondent and that he did not be-
lieve his relationship with Local 359 or Local 710 was
affecting his work performance. Kjeseth then stated that
if he was being given a choice of whether to sign for
Local 710 or be fired, he might as well be fired. 4 Peter-
son and Pagois testified concerning the meeting that at
the beginning of it Pagois explained the purpose of the
review and Peterson went through the categories of the
written review and the ratings. Peterson said that he told
Kjeseth that he had a personality problem but that he
did not give Kjeseth any specific examples, except one,
during the meeting.
On January 29, at or about 11:20 p.m., 10 minutes
before the end of the shift, leadman Atkins told Kjeseth
that he would have to work beyond his normal 8 hours
and assigned him a truck to load. Kjeseth went out to
load the truck but was unable to find Anderson, who
was supposed to assist him in the loading. Kjeseth then
went to the office where he found Atkins and Anderson,
and he asked Anderson whether he was going to help
load the truck. Atkins responded, stating, "Forget it, go
help John McQuade clean up pallets until 11:30 p.m."
Anderson confirmed that part of Kjeseth's testimony,
stating that Kjeseth walked into the office on January 29,
shortly after 11:30 p.m., and asked Anderson whether he
was going to help him load the truck and, just as Atkins
and Kjeseth were walking out the door, Atkins said,
"Forget it, pick up the pallets until 11:30 p.m. and go
home!"
Leadman Atkins testified that he told Kjeseth to pick
up the pallets, check with Peterson, and go home.
Atkins' testimony corroborated that of Kjeseth and An-
derson in that they were just outside the doorway to the
4 Pagois conceded that Kjeseth may have made such a statement, but
denied threatening him, as he felt that was between Local 710 and Kje-
seth.
office when he gave Kjeseth those instructions. 5 Kjeseth
picked up the pallets and left without checking with Pe-
terson or signing out that night.
Supervisor Peterson recommended that Kjeseth be dis-
charged based on his observation of Kjeseth leaving at
11:45 p.m. on January 29 after he had told Kjeseth that
he would have to work overtime. Peterson testified that
at or about 11:30 p.m. he instructed Kjeseth to work
overtime. Kjeseth denied receiving any such instructions
from Peterson and Respondent's own internal memoran-
dum and its letter of discharge to Kjeseth appeared to
contradict Peterson's testimony. According to those doc-
uments, Kjeseth was discharged because (1) leadman
Atkins instructed Kjeseth to work overtime but at 11:45
p.m. Peterson observed Kjeseth leaving the facility; (2)
Kjeseth did not inform the leadman that he was leaving;
and (3) Kjeseth failed to sign out before leaving. Neither
document indicates that Kjeseth failed to work overtime
as instructed by Peterson. 6 There is also much testimony
in the record indicating that employees frequently either
forgot to sign out, signed out for one another, or were
signed out by their supervisors. Kjeseth testified that he
occasionally forgot to sign out and that he was never
reprimanded for his failure to sign out prior to January
29. Nor does the record contain any disciplinary action
taken against any employee for such neglect. Roppe tes-
tified that he had forgotten to sign in or out and that he
assumed the supervisor corrected his omission; and that
he has never been reprimanded for his failure to sign in
or out. Supervisor Pagois admitted that employees had
failed to sign out on occasion without repercussions.
I find that on January 29 when Kjeseth left at about
11:45 p.m. he did so with the permission of leadperson
Atkins, as Atkins himself admitted, and that Kjeseth rea-
sonably relied upon Atkins' instructions to leave without
the necessity of checking with Peterson before doing so.
Inasmuch as Respondent's stated reasons for discharg-
ing Kjeseth did not include his poor work and attitude,
and in view of the paucity of testimony concerning any
efforts by Respondent to attempt to improve Kjeseth's
performance and attitude except on one occasion when
he was told to rearrange the materials on a truck that he
had loaded improperly, I do not consider Kjeseth's atti-
tude or performance relevant to Respondent's reasons for
discharging him.
5 Employee Timothy Roppe's testimony varies with that of Atkins,
Anderson, and Kjeseth with respect to where Atkins gave Kjeseth the
instructions. Roppe's testimony places the location of that conversation a
good distance from the office area. Moreover, his testimony regarding
checking with Peterson before leaving corroborates the testimony of
Atkins. I credit Kjeseth and Anderson and not Atkins and Roppe. Ac-
cordingly, I find that Atkins did not tell Kjeseth to check with Peterson
before going home. Moreover, there is testimony in the record indicating
that leadpersons at times released employees, who leave without any fur-
ther checking with Peterson or, indeed, signing out upon departure.
6 Peterson authored the internal memorandum recommending dis-
charge. I agree with the General Counsel that, if Kjeseth in fact failed to
follow Peterson's instructions, Peterson would have included that in the
memorandum. Peterson testified in a hesitant, confused, and contradic-
tory manner. I do not credit him.
16
THE PERLMAN-ROCQUE COMPANY
D. The Alleged Threat of Loss of Benefits
In the middle of March, Douglas Polscek, director of
finance of the Havi Corporation, met with distribution
center employees in the employees' break room. At that
meeting, Polscek gave a prepared speech which in part
reads as follows:
Who is in the plan now? All non-union employ-
ees, including you and Mr. Perlman and Mr.
Rocque. Together we are all members of the Havi
Corporation Profit Sharing Plan. You are not re-
quired to contribute any amount of your salary.
This is a fully paid company benefit. Under the 710
contract you had pension benefits. When the Team-
sters walked away, they took their pension with
them. The Company went to work on this exposure
to you and, as soon as it was able, included you in
profit sharing, not as of the date the Teamsters
walked away, but back to your individual start date.
After delivery of the prepared speech the meeting was
opened to questions from the employees. Employee Hunt
asked whether the employees would still have profit
sharing if employees voted the Union in. Polscek replied
that it was only for nonunion employees and, as stated
further in his testimony, "As best as I can recall, what I
responded was that I did not know, but at this time [the]
profit sharing plan was for non-union employees of the
Havi Corporation and its subsidiaries and that the Union
had their own pension plan." Later Polscek changed his
response and stated that at the meeting he said he did not
know at that time, but the plan covered all nonunion em-
ployees of the Havi Corporation.
Pagois testified that he told the employees that the In-
ternal Revenue Service allowed either a union benefit
plan or a company benefit plan but not both. Employee
Roppe testified that he recalled Hunt's question and that
Polscek responded by stating that the plan was only for
nonunion employees. On cross-examination, however,
Roppe acknowledged that Polscek gave a lengthier
answer to Hunt's question but asserted that he did not
recall what else Polscek said. Employee Sylvester testi-
fied that his general understanding from all the discus-
sions between management and the employees was that,
if he came under a union pension plan, he no longer
would be in the Company's profit-sharing plan.
On April 2, the Company held a voluntary meeting for
all of its employees covered by the profit-sharing plan.
Polscek testified that he distributed the individual profit-
sharing statements and a summary description of the
profit-sharing plan to the employees at that meeting. The
definition of eligible employees stated in the summary
description is as follows:
All employees of the Company are eligible for par-
ticipation provided they are not [covered by] a col-
lective bargaining agreement, under the terms of
which the Company is required to contribute to a
pension benefit plan for the benefit of those employ-
ees.
According to Pagois, employee Hunt again asked
whether or not employees would keep the profit-sharing
plan if they voted for the Union. Pagois testified that
Polscek responded that he was not sure, but he knew
that the Union had its own pension plan. Pagois testified
that he again explained that the Internal Revenue Serv-
ice allowed only a union or a company benefit plan but
not both.
The question to be decided is whether Respondent,
through Polscek on March 13, threatened its employees
with a loss of benefits if they voted in favor of union
representation. I conclude, in all the circumstances, that
Polscek's answer constituted an objective statement of
fact and thus was protected speech. His statement that
the plan was only for nonunion employees was an accu-
rate statement concerning what employees the plan cov-
ered at that time. N.L.R.B. v. Gissel Packing Co., Inc.,
395 U.S. 575, 618 (1969). I conclude that the statement in
the prepared text, taken in its context, was a factual and
lawful presentation. Domino of California, Inc., 205
NLRB 1083 (1973); The Orchard Corporation of America,
170 NLRB 1297 (1968).
E. Discussion and Conclusions
The General Counsel has proven by a preponderance
of the evidence that Respondent discharged employee
Kerry Kjeseth because he joined, supported, or assisted
Local 359 and engaged in concerted activity for the pur-
pose of collective bargaining or other mutual aid or pro-
tection and in order to discourage employees from en-
gaging in such activities or other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection as alleged in the complaint.
As previously indicated Respondent was aware of Kje-
seth's activities on behalf of Local 359 and that he was
strongly opposed to Local 710, favored and aided by Re-
spondent. Respondent's conduct with respect to entering
into the contract with Local 710 without its future em-
ployees' knowledge or consent and indeed even before it
had a full complement of employees at the facility in
question, and its attempt to force Kjeseth and other em-
ployees to join Local 710, would have been found to be
a violation of Section 8(a)(2) of the Act but for the with-
drawal of that charge with the approval of the Regional
Director. However, that conduct also constitutes inter-
ference with and restraint and coercion of employees in
the exercise of their rights guaranteed in Section 7 of the
Act and is a violation of Section 8(a)(l) as alleged in the
complaint. Respondent, through its supervisors, had
openly demonstrated displeasure with Kjeseth because of
his opposition to Local 710 and support of Local 359.
Moreover, I suspect, as Kjeseth charged, that Respond-
ent promoted Varhol and Atkins to the positions of lead-
persons in order to remove the leader and a supporter,
respectfully, from the organizational drive on behalf of
Local 359 and thus hoped to kill that drive.
I am convinced that the reasons given by Respondent
for the termination of Kjeseth are pretextual. There is no
evidence that Respondent, in the past, held any employ-
ee to account for not checking with Peterson before
leaving a work shift or signing out. On the other hand,
17
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there is much evidence that many employees left the
plant after being released only by their leadmen without
checking with Peterson. Others who failed to sign in or
out were not reprimanded or otherwise punished. Kje-
seth's discharge, without any previous warning for the
violation he was accused of, is an example of an employ-
er's singling out an employee for discharge at a time
when that employee was active in soliciting support for a
union (Local 359) in an obvious attempt to kill a union
organizational drive.
By its acts and conduct described above Respondent
has interfered with, restrained, and coerced, and is inter-
fering with, restraining, and coercing, Kjeseth and other
employees in the exercise of their rights guaranteed in
Section 7 of the Act and thereby has engaged in unfair
labor practices within the meaning of Section 8(a)(l) of
the Act. In addition, by discharging Kjeseth, Respondent
has discriminated, and is discriminating, in regard to the
hire or tenure or terms and conditions of employment of
its employees, thereby discouraging membership in a
labor organization. Respondent thereby has been engag-
ing in unfair labor practices within the meaning of Sec-
tion 8(a)(3) of the Act.
The unfair labor practices of Respondent described
above affect commerce within the meaning of Section
2(6) and (7) of the Act.
IV. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act, I shall recommend to the Board that Re-
spondent be ordered to cease and desist therefrom and to
take certain affirmative action to effectuate the policies
of the Act. Such affirmative action will include an offer
of immediate reinstatement of Kerry Kjeseth, to his
former or, if his former job no longer exists, to a substan-
tially equivalent job, without loss of his seniority or
other rights and privileges. I shall also recommend that
Respondent make him whole for his losses which have
resulted from Respondent's termination of him. Backpay,
together with interest on such backpay amounts, will be
computed in accordance with the Board's decision in F
W. Woolworth Company, 90 NLRB 289 (1950); Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), and
Florida Steel Corporation, 231 NLRB 651 (1977).
On the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER 7
The Respondent, The Perlman-Rocque Company
(North), Fridley, Minnesota, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed them in
Section 7 of the Act.
(b) In any like or related manner interfering with, re-
straining, and coercing its employees in the exercise of
the rights guaranteed them by the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Kerry Kjeseth immediate and full reinstate-
ment to his former position of employment or, if that job
no longer exists, to a substantially equivalent position of
employment, without the loss of his seniority or any
other rights and privileges.
(b) Make whole Kerry Kjeseth for his losses, with ap-
propriate interest thereon, which have resulted from his
termination by Respondent. Such backpay and interest
are to be computed as set forth in "The Remedy" section
of this Decision.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its Fridley, Minnesota, facility copies of the
attached notice marked "Appendix." 8 Copies of said
notice, on forms provided by the Regional Director for
Region 18, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Responent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that all allegations of the
complaint not specifically found to be violations herein
are hereby dismissed.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
a In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
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