Propak Corp.

National Labor Relations Board - Board Decisions

Aug 30, 1976

225 N.L.R.B. 1058 (N.L.R.B. 1976)

1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Propak Corporation and John ,Ganues. Case 10-CA-
11446
August 30, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
Charging Party or Ganues, a complaint against Propak
Corporation, referred to herein as the Respondent, Compa-
ny, or Propak, was issued on November 4 alleging violation
of Section 8(a)(3) and (1) of the National Labor Relations
Act, as amended. Respondent filed an answer to the com-
plaint denying it had engaged in the alleged unfair labor
practices. A hearing in this proceeding was held before me,
and both General Counsel and Respondent filed briefs.
Upon the entire record in this case, and from my obser-
vation of the witnesses and their demeanor,' I make the
following:
On May 5, 1976, Administrative Law Judge Phil
Saunders issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the 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 brief
and has decided to affirm the rulings,' findingS,3 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
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 and hereby
orders that the Respondent, Propak Corporation, At-
lanta, Georgia, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order.
' Respondent's request for oral argument is hereby denied, as the record
and briefs adequately present the issues and positions of the parties
2
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
3 Respondent has excepted to the Administrative Law Judge's crediting of
Nathaniel Green's testimony that Larry Dover was a supervisor, an excep-
tion to which we find merit The record reveals that Nathaniel Green was
confused as to the meaning of the word "supervisor" and we accordingly
hereby disclaim reliance on Green's testimony concerning Dover's supervi-
sory status However, since ample other testimony in the record supports the
Administrative Law Judge's finding that Dover was a supervisor, we find
that Respondent was not prejudiced by the Administrative Law Judge's
error
DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS , Administrative Judge: Based on a charge
filed on August 25, 1975,' by John Ganues, herein the
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent is, and has been at all times material herein,
a corporation with an office and place of business located
in Atlanta, Georgia, where it is engaged in the production
of plastic containers and the filling thereof with contents
provided by other manufacturers. During the past calendar
year the Respondent sold and shipped finished products
valued in excess of $50,000 directly to customers located
outside the State of Georgia.
The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The International Association of Machinists and Aero-
space Workers, District Lodge No. 46, herein referred to as
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
It is alleged in the complaint that, during certain dates in
August, supervisors and agents of the Respondent unlaw-
fully interrogated employees, threatened discharges and
that the plant would be closed because of union activities,
and informed employees that the Company has terminated
another employee because of his union activities. It is also
alleged that the Respondent interrogated an employee as
to which employees would be his witnesses against the
Company, and that in October and December manage-
ment interrogated employees on information they had giv-
en to an agent of the Board. It is further alleged that on
August 18 John Ganues was discriminatorily discharged.
The parties stipulated that the following people are
Respondent's supervisors within the meaning of the Act:
1 All dates are 1975 unless stated otherwise
2
The facts found herein are based on the record as a whole upon my
observation of the witnesses The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits with due
regard for the logic of probability, the demeanor of the witnesses, and the
teaching of N L R B v Walton Manufacturing Company & Loganville Pants
Company, 369 U S 404, 408 (1962) As to those witnesses testifying in con-
tradiction to the findings herein, their testimony has been discredited, either
as having been in conflict with the testimony of credible witnesses or be-
cause it was in and of itself incredible and unworthy of belief All testimony
has been reviewed and weighed in the light of the entire record
225 NLRB No. 160
PROPAK CORPORATION 1059
Drew Bitler-vice president & general manager; Mitchell
C. Eller-plant manager (general manager as of October
1975); Clyde Spears-foreman; and Allen W. Cater-ma-
chine operator.
The General Counsel alleges and maintains that Larry
Dover and Walt West are also supervisors and agents, but
the Respondent contends that, during the critical times
material to this case, they were not supervisors.
Larry Dover was hired by the Respondent in 1973 as a
maintenance man and testified that he worked in mainte-
nance for about 1 year and then was promoted to foreman
on the second shift, but after approximately 8 months or so
as foreman, he then went back on the day shift in the main-
tenance department. He testified that on August 11 he was
performing maintenance work and did so until on or about
October 13, when he once again became a supervisor or
foreman. Thus, the Respondent maintains that in the crit-
ical time period involved herein, August, Larry Dover left
his position as foreman on the second shift to go to the day
shift and assist Walt West in performing maintenance work
in preparation for the installation of a new machine.
Employee Nathaniel Green testified that, in August,
Larry Dover was a supervisor of the blow mold department
and which department was comprised of 21 employees.
Green stated that Supervisor Clyde Spears had worked as
foreman of the first shift in 1975, but that Spears and Do-
ver switched jobs, with Spears taking the second shift and
Dover taking the first shift, and this changeover took place
in August. Employee James Wallace testified that he was
working first shift at the time of Ganues' discharge, and at
that time Larry Dover was foreman or supervisor of the
first shift, and assigning jobs and overtime in the blow
mold area. He also testified that, in August, Spears and
Dover merely switched shifts. Employee Shirley Mullins
also testified that, in August, Spears and Dover switched
shifts so that Dover, at the time of Ganues' discharge, was
supervisor on the first shift. Mullins further stated that,
when she arrived at work on August 18, she was told by
Larry Dover that he had no work that day and asked her to
go home. She added that Dover was also her supervisor on
the second shift, and told her what to do, where to work,
and that he signed timecards Dover did not deny that on
August 18 he told Mullins there was no work for her, nor
did he specifically deny other portions of Mullins' testimo-
ny regarding his supervisory status. Ganues testified that,
when he came back from his vacation on August 11, Dover
was in charge of the first shift. He then asked General
Manager Mitchell Eller what Dover was doing on the first
shift, and Eller replied that Spears and Dover had switched
shifts because Dover knew more about mechanical work.
Dover admits that he was foreman on the second shift
until August 11, but testified that subsequent thereto he
worked with Walt West until at least October, as aforestat-
ed. However, on cross-examination, he admitted that even
after August 11 he could still schedule work assignments in
requesting and getting help on jobs he and West were
working at, and also admitted that when employees needed
to know how to do a particular job or ran into a problem
he or West would assist them. Moreover, Dover also ad-
mitted that the employees at the plant knew him as fore-
man. Also revealing is Dover's version of his August 18
conversation with Shirley Mullins. According to Dover, af-
ter Mullins had told him about the union activities in the
plant, Dover laughed and told Mullins to forget about it,
"there was nothing to it." Thus, as pointed out, Dover even
talked like a supervisor on the day of Ganues' discharge.
Walter West testified that he also was hired in 1973 as a
maintenance worker and did not become a supervisor until
late September. However, this record shows that West,
aside from being the brother-in-law of General Manager
Eller, and also another of Drew Bitler's "key maintenance
men," was, in fact, the Respondent's "head maintenance
mechanic" during most of his time Vice President Biller
was at Propak. As further pointed out, Bitler also stated
that Respondent had a number of maintenance people
over the years including an employee by the name of Mar-
ion McClure, as well as Respondent's lead operators, who
have always functioned as shift mechanics and performed
maintenance. Bitler admitted that West always ordered the
employees about, assisted them in operating machines, that
his ability was very highly thought of, and when the em-
ployees complained about West giving them orders, he
would tell the employees to do whatever West asked them
to do. As further detailed, West even admitted in his own
testimony that he maintains very high standards for em-
ployees. Moreover, West did not deny that he had fired an
employee in either July or August as testified to by Na-
thaniel Green, nor did he deny that Green had worked
under his supervision. It is further noted that at the present
time West has also been placed in charge of the entire
plant during the absence of General Manager Eller.
It is apparent from this record that both Larry Dover
and Walt West were held out as supervisors to other em-
ployees, were thought of as supervisors by the employees,
could both order employees about, and were both so
aligned and identified with management that Respondent
is now estopped from denying their management status.
Certainly, if they were not in fact vested with actual super-
visory authority at the critical times material hereto, they
were frequently placed in positions by the Respondent
whereby employees could reasonably assume or believe
that they were acting as agents on its behalf. Consequently,
I find that inasmuch as Dover and West were invested by
the Respondent with at least apparent authority to act on
its behalf, their statements made to employees, as hereinaf-
ter set forth, are attributable to the Respondent.
It appears from this record that, on or about August 14,
John Ganues made a visit to the Union's office located in
Marietta, Georgia. There he was informed as to the proce-
dures to follow in order to have a union represent the em-
ployees at Propak. Ganues was told to determine the per-
centage of employees who desired union representation
and that the proper union would then get in touch with
him. In the next few days Ganues talked to employees
throughout the plant asking them if they would be in favor
of union representation, and then wrote down the names of
those employees favoring union representation on a piece
of paper. On the morning of August 18, Ganues was dis-
charged.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. 8(a)(1) Conduct
Employee Nathaniel Green testified that sometime in
the middle of August , in the blow mold area of the plant,
Supervisor or Agent Walt West asked him if he "knew
about anyone for or against the union .. ." and then West
added that "if anyone tried to get a union in , they would be
fired ." Employee James Wallace testified that on the day
of John Ganues ' discharge , August 18, West spoke to him
at the bottle labeling area , saying, "I guess you know they
let John go for pushing a union." a
Green further testified that on the day of Ganues' dis-
charge Supervisor Allen Cater asked him if he knew that
Ganues had been fired , and Cater also then told Green
that Eller had talked to him the day before and had asked
if he (Cater) knew of anyone trying to get a union into
Propak .° I agree that Cater's remark and statements to
Green did not miss the marks of letting Green know that
Ganues had been discharged for engaging in union activi-
ty.
Employee James Wallace testified that on August 18 he
too had inquired of Respondent's general manager, Mit-
chell Eller , as to why Ganues had been fired , and in reply
Eller told him that Ganues did not do sufficient work, and
then Eller asked him if he (Wallace) had heard of any
union in the plant.5
Employee Shirley Mullins testified that, during the week
prior to August 18, Ganues had asked her if she would like
to have a union at Propak , and she had replied in the affir-
mative. Mullins said that on Saturday , August 16 , she then
learned from another employee that her name was on a list
which John Ganues had in his possession , and that Mullins
had better get her name off the list or she would be fired.
On Monday , August 18, when she reported to work, Fore-
man Larry Dover told Mullins he had no work for her and
asked her to go home , but she was then afraid of being
fired , and as a result told Foreman Dover about her prior
union conversation with Ganues and also told him that
Ganues had put her name on a piece of paper . Dover then
asked if she had the paper, but Millins replied that Ganues
still had it and Dover then informed Mullins she "had bet-
ter" get it, but then added that they should go to the office
and see about it, and also stating to Mullins, "they 'd close
Propak if they got a union down there." 6
3 In the testimony given by West , he denied saying anything to Wallace,
and also denied threatening anyone that the plant would close
° Supervisor Cater testified that he did not tell any employee they would
be terminated for union activity , but Cater did not deny that Eller had
asked him if he knew of anyone trying to get in a union , or of relaying this
information to Green
5 Eller testified he did not recall making any comments against any union,
specific or general , to any of the employees , either in the week before,
during , or after Ganues' discharge
6 Dover basically corroborated the testimony of Mullins He testified that
Mullins on this occasion came up to him and said, "Larry , John [Ganues]
came up to me with a petition and wanted me to sign it and said he was
going to try to get a union in at Propak and I wouldn ' t sign it , and he
signed my name to it . " However , Dover denied saying anything con-
cerning the closing of the plant or threatening Mullins with loss of herjob
Dover stated he took the entire matter as a joke and "just laughed," but
does admit reporting the matter to Walt West From the events herein, and
based on the demeanor of Mullins , it was quite obvious that she did not
consider the matter to be a joke
Employee Shirley Mullins further testified that she had
given a statement to a Board agent during the investigation
of this case , but that thereafter she was victim of fob -relat-
ed injury, and as a result was required to be away from her
job at the plant for a period of time . On October 28, she
was released to return to work and took her release to
Manager Eller , but Eller told her someone had been hired
in her place . Mullins, again fearful for her job , then in-
formed Eller that a man had come to her house and had
discussed Ganues with her. Thereupon Eller asked Mullins
if the man had asked about the discharge . Mullins replied
in the affirmative and then Eller next inquired if she had
given a statement . Mullins then told him that she had done
so, and Eller asked her if she had a copy of the statement,
but when Mullins told him she did not , Eller told her to let
him know when she did get a copy , and that she had a right
to it . Between the 1975 Christmas and New Year holidays,
Manager Eller came to where Mullins was working, and
asked if she had received a copy of her statement . Mullins
replied in the negative , but again Eller told her she had a
right to a copy of the statement and to let him know when
she received rt.7
The credited evidence in this record , as aforestated,
clearly substantiates the fact that agents and supervisors of
the Respondent repeatedly engaged in conduct amounting
to interference and coercion within the meaning of Section
8(a)(1) of the Act. If I were to credit the denials , I would
have to conclude that all the statements and remarks attri-
buted to the Company were merely made up by the em-
ployees who testified , or were merely the figment of their
imaginations , because no one in management ever said
such things to them . Based on the events in this record, the
demeanor of the witnesses, and for all the reasons given
herein , I am not prepared to make such conclusions and I
have found otherwise.
The foregoing testimony which has been credibly attri-
buted to the Respondent includes instances of interroga-
tions as to union activities , who would be witnesses against
the Company , and inquiring as to information given to the
Board ; threatening discharges of employees and plant clos-
ing in event of a union or continuing union activities; and
informing employees that the Company had terminated
another employee because of his union activities . These are
types of employer conduct which are clearly prohibited by
Section 8 (a)(1) and consistently held violative of the Act. It
is also well established by the Board and the courts that the
illegality of such inquiries or remarks are not cured by the
casual nature of the conversation or the personal relation-
ship of the parties thereto , nor by the employee rejection of
such questions or statements.
7 Manager Eller admits that Mullins told him she had spoken to an attor-
ney and that this attorney had written down what she said , and that she had
signed it He then testified he told Mullins that if she had a subpena to come
to court as he was trying to figure out which employees were coming to the
hearing so that he could schedule employees However , Eller did not specifi-
cally deny asking Mullins if she had given a statement or if she had a copy
Nor did he deny telling Mullins to let him know when she did get a copy of
her statement
PROPAK CORPORATION 1061
B. The Discharge of John Ganues
The Respondent first employed Ganues in July 1972 as a
forklift operator at $3.50 per hour. By September 1972,
Ganues received an increase to $3.65 an hour, and by
December in the same year he was promoted to operator at
$3.90 per hour. In February 1973, Respondent sent Ganues
to a school at Respondent's expense to learn the operation
of a labeling machine, and by July 1973, Respondent
raised Ganues' wage to $4.15 per hour. It appears that,
sometime during the latter part of 1973 or the early part of
1974, Ganues engaged in some union activity along with
employee Eddie Dunn and at the time Respondent had
knowledge of this union activity.8
Ganues was promoted to third-shift foreman, a supervi-
sory position, in March 1974, and in the latter part of April
1974 his wage rate was raised to $4.75 per hour. In May
1974, he received another increase to $4.95 per hour. In
August 1974, Ganues suffered a "nervous breakdown" but
received 1 week of sick pay in the amount of $190. In
September 1974, Ganues returned to work as third-shift
foreman, but was unable to handle the responsibilities. Re-
spondent then moved Ganues to the first or day shift on a
more simple job involving blending, but apparently again
he was unable to perform these duties adequately, and, by
the middle of September 1974, he was put on medical
leave. Ganues' psychiatrist indicated by letter that Ganues
might be able to return to work as of September 23, 1974.
However, it was determined that he was still unfit for work,
and additional sick pay was authorized. Respondent again
returned Ganues to work in October 1974, but he had fur-
ther difficulty and was put on medical leave. In December
1974, Ganues returned to work on a part-time basis as a
blender, and his pay remained at $4.75 per hour, but he no
longer received the 20-cent-an-hour shift premium as he
was on the day shift. In April 1975, Ganues was moved to
the position of forklift driver, and in June 1975, his wage
was raised to $5 per hour.
The Respondent maintains that in July 1975 Ganues be-
gan to show increased nervousness and an inability to
work with his coworkers, and in the latter part of July was
taken off the forklift The Respondent contends that by
this time Ganues had failed to perform to the satisfaction
of his supervisor on various odd jobs he had been assigned
to and in late July 1975 he was told to take a vacation.
After taking a period of leave, he returned to work in Au-
gust and was assigned to receive antifreeze.
The Respondent also maintains and argues that during
the period of August 11 through 15, 1975, Ganues' perfor-
mance was unsatisfactory, and points out that Ganues was
8 Eddie Dunn testified that some time ago, in 1973, 1974, or 1975, he had
a conversation with Ganues about a union, and at the time Ganues gave
him a sheet of paper along with instructions that if he wanted to get a union
to go around and have employees sign the paper Dunn testified that he got
15 names on the list and then went to Manager Eller and asked what a
union was, but after talking with Eller he decided not to get involved Gan-
ues also testified as to this incident and stated that in 1974 Dunn had asked
him how to go about getting a union, and that he then told Dunn what little
he knew about it Subsequently, Dunn informed Ganues that Biller and
Eller had told him they would close the plant down if anybody tried to get
a union in Thus, after his discharge, Ganues went to Dunn and reminded
him of the above thinking that Dunn might testify on his behalf
responsible for an antifreeze overflow without precedent in
Respondent's history, resulting in at least several thousand
dollars of loss. The Respondent argues that filling the anti-
freeze tanks is a relatively simple job, which management
had assigned because he failed to perform adequately in
more complex positions, but, on August 14, Ganues left his
post in clear violation of longstanding custom and practice
and in direct violation of Respondent' s rule , resulting in
the overflow, and that no other employee had ever allowed
an overflow of antifreeze to the extent caused by Ganues.
Accordingly, as further argued by the Respondent, when
Vice President Bitler returned from vacation on August 18,
he was apprised of the most recent examples of Ganues'
poor performance and, thereupon, Ganues was released
from employment on August 18.
The Respondent also points out and argues that the
General Counsel has failed to prove a background of any
company union animus, but, on the contrary, the evidence
in this record shows that both Manager Eller and Foreman
Dover were formerly active union members themselves; El-
ler knew of Ganues' union membership at another plant
prior to hiring him; management knew of Ganues' initial
union activity over a year prior to his termination; Ganues
received promotions, pay advancements, and additional
training after his first purported union activity; Eller and
Bitler attempted to utilize Ganues in almost every conceiv-
able position in attempting to keep him employed despite
his severe medical problems; Ganues himself felt the Com-
pany had treated him fairly throughout most of his em-
ployment; Ganues progressed as an employee until his ner-
vous breakdown and then his performance at various jobs
deteriorated appreciably; during August 1975 Ganues was
not a member of any union, nor was he engaged in activity
on behalf of any particular union; this record reveals a
failure on the part of Ganues to complete various odd jobs
for Rick Stanger; and the Respondent had terminated
numerous employees, and yet there is no support for any
claim that union advocacy was ever a cause for discharge.
First of all it is noted that in mid-August Ganues made a
visit to the Union's office, and in the next few days fol-
lowed it up by talking with numerous other employees in
the plant and also recorded on paper the names of employ-
ees who had responded favorably to his inquiries about
union representation, as aforestated. It further appears that
on the morning of August 18, when Shirley Mullins report-
ed for work on the first shift at 8 a.m., she was told by
Foreman Larry Dover that they had no work for her and
asked her to go home. At this time Mullins then told Fore-
man Dover that Ganues had asked her if she wanted a
union and that Ganues had also put her name down on
paper as an employee who favored a union . Foreman Do-
ver then asked Mullins if she had the paper, and, when
Mullins informed him that Ganues still had possession of
it, he immediately suggested that they "go to the office and
see about it." From these events and circumstances it is
obvious that agents and supervisors of the Respondent had
prior knowledge of the most recent union activity on the
part of Ganues, and within a short time thereafter, Ganues
was called to the front office and discharged by Biller and
Eller.
The nervous breakdown in 1974 was admitted by Gan-
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ues, and it is also recognized that Respondent eased him
back into his work on several occasions . However, it is
unlikely they would not have done so without a good prior
work record and his five pay increases is readily indicative
thereof. Ganues also received another pay increase as late
as June 1975, and which again reflects that his health prob-
lems were not unduly restrictive, and that he was making
adequate progress in his new assignments.
The Respondent produced testimony through several of
its witnesses to the effect that it was more or less common
knowledge of Ganues' union activities for the past 1-1/2 to
2 years, and that management had heard constant rumors
that Ganues was attempting to get a union into the Com-
pany. Foreman Walt West testified he had heard rumors
for some time that Ganues was trying to get a union in, but
then admitted that nobody had ever talked to him about it.
Drew Biller testified he heard a rumor in January 1974 that
Ganues had a conversation with Eddie Dunn concerning
the possibility of bringing in a union , as aforestated. Fore-
man Larry Dover testified he also had heard rumors about
Ganues' union activities . However , Dover could not name
or recall any employees from whom he had heard such
rumors. Eller testified that he also had been hearing these
union rumors about Ganues for the last 2 or 3 years, but
then admitted he heard such rumors every day. However,
employees Mullins and Wallace gave credited testimony
that they had not heard any rumors about the union activi-
ties of Ganues until he talked to them during the week
before his discharge.
Rick Stanger, in charge of quality control for Respon-
dent, testified that about 2 or 3 weeks before the discharge
here in question Biller issued a list of odd jobs which were
to be performed by Ganues and which Stanger was to over-
see. Stanger testified that he then gave the list to Ganues
and at which time Ganues stated, "I'll do this and I won't
to this, I will not do that, I won't do that." According to
Stanger there were 7 out of the 10 jobs that Ganues said he
would not do.
This record does show that on July 21, 1975, Ganues was
taken off the forklift and given a list of odd jobs to do
under the direction of Stanger However, the credited evi-
dence shows that , in accordance therewith , Ganues elevat-
ed certain fans in the plant , painted pipes, and also assisted
Supervisor Walt West in the moving of a sprinkler system.
Ganues admitted that he did not clean off the top of the
maintenance shop because he couldn ' t remove the material
on top of it, and that he did not clean out the boilerroom 9
I agree with the General Counsel that this incident involv-
ing odd fobs for Ganues adds only further fuel and confu-
sion to the pretextual reasons for the discharge.
Ganues testified that, on or about August 15, he left the
plant and ran an errand for Eller to Drew Bitler's home,
and that this errand took him 1-1/2 to 1-3/4 hours. He
stated that 30 minutes of the time involved was for lunch
v When shown G C Exh 6, Stanger was then able to identify this docu-
ment as the list of odd jobs which Bitler had issued , and admitted there were
only 6 items on the list, not 10, as he had previously testified, and readily
changed his testimony stating that Ganues refused to do 4 items out of the
6 Moreover , it is further noted there are several other inconsistencies in
testimony given by management witnesses as to this situation
which employees normally take from 12 to 12:30 p.m.10
There is no testimony that speed was of the essence in
running this errand , and, as pointed out, there appears to
be no reason for Ganues to believe that he was not entitled
to take his normal lunchbreak
Eller testified that, in late July or early August, employee
Ray Cheek told him he could not get anything out of Gan-
ues, and that Cheek quit his employment after telling Eller,
"either you move John or I am not coming back." Cheek
presently works for Respondent on the third shift, but
Cheek was not called as a witness . It would appear to me
that had this incident actually reached the serious propor-
tions assigned to it by Eller , and that Cheek was so essen-
tial or vital in their plant operations , as he also contends,
then some immediate action would have been taken right
there and then against Ganues. Possibly, Cheek could have
elaborated and clarified had he testified . Another one of
Ganues' problems alleges that he broke a refractometer
costing $125 to repair . Yet, both Eller and Bitler admitted
that they did not know who broke the refractometer, ex-
cept that Ganues was the one who reported it broken.
Moreover, Eller finally admitted that the refractometer had
very little or nothing to do with the discharge. The Respon-
dent also maintains that shortly prior to his discharge Gan-
ues made a batch of Sta-Puf that was out of specification in
color and PH 11 Ganues admits his mistake in this regard.
However, this incident apparently did not cost the Compa-
ny any money or cause any actual damages. Moreover,
Biller admitted that such a mistake had happened in the
past and that an operator can change the PH in Sta-Puf by
adding more acid. Furthermore, there appears to have
been no investigation of this incident even though Biller
testified that anytime a batch of Sta-Puf is out of specifica-
tion there is an investigation , and there would also have
been a written report to be followed up by Allen Cater.
However, it is noted that Cater, who also appeared as a
witness , did not testify regarding any investigation or writ-
ten report which was made on Ganues regarding this batch
of Sta-Puf.
This record shows that on or about August 14, when
Ganues was assigned to receive antifreeze , there was a
spillover or overflow on one of the antifreeze tanks, but the
General Counsel argues that by this incident the Respon-
dent proved only one thing-that there was an overflow,
which Ganues readily admitted, but that the Respondent
did not show "the severity" of the overflow.
Respondent 's witnesses, in particular Eller and Biller, es-
timated the spillage at or about 1,500 gallons and with a
financial loss of between $2,500 and $3,000 . This was
based on estimation that the truck was pumping about 300
gallons per minute and that the overflow was of approxi-
mately 5 minutes ' duration . Ganues, however, estimated
that the tank overflowed for not more than a minute or
two. Moreover, none of Respondent 's witnesses knew for
sure when the overflow began, or for that matter, when it
ended. Ganues, of course, knew when the overflow ended
and approximately how long he was away from the tanks.
10 Eller said that the errand took Ganues about 3 hours , but then admit-
ted the times involved were "kind of vague"
11 PH is the negative logarithm of hydrogen-iron concentration-a mea-
sure of acidity
PROPAK CORPORATION 1063
As further pointed out, this antifreeze incident was in no
way concealed from any of the officials at the plant. People
in management all observed the aftermath of this incident
immediately after it happened, yet, nothing was done. Eller
testified that they watched their losses "real close" and,
according to Bitler, a loss of this size is investigated "very
thoroughly," but admittedly no written report of this inci-
dent was made. Furthermore, Respondent's Exhibit B, the
receiving report for that particular load of antifreeze, had
no remarks entered into the remarks section. The General
Counsel argues that if an incident of this proportion is
thoroughly investigated, as suggested by Bitler, then it is
strange that there is not one piece of documentary evi-
dence showing that the incident ever occurred, and also
raises the argument that if this incident was of the nature
which Respondent's witnesses portray, why wasn't Ganues
fired on the spot, and further points out that the fact Bitler
was on vacation is of no consequence since Eller ran the
plant and made all the necessary changes in Bitter's ab-
sence. The General Counsel concludes, as more fully de-
tailed in his brief, that the antifreeze loss was of such minor
proportions that it had no direct effect on Ganues' dis-
charge, similar to the Respondent's other defenses, as
aforestated.
The General Counsel further suggests that the testimony
of Eller and Bitler regarding their actions of August 18
borders on the ridiculous. Eller testified that on the morn-
ing of August 18 he sat down with Bitler and discussed the
idea of discharging Ganues, but this was the first time he
could remember discussing the possibility of discharging
Ganues with Bitler. The General Counsel also points to the
testimony of Bitler who stated that on the morning of Au-
gust 18, when he returned from his vacation, he investigat-
ed all of the above "problems" which allegedly played a
role in the discharge, and that his investigation consisted of
talking to Eller and Bishop, but Bishop did not corroborate
Bitler on this point, and, finally, Bitler admitted that he
had made an "analysis" of the investigation which Eller
had previously conducted."
In the final analysis, it would appear to me that, during
the last several months and up to August 15, the Respon-
dent might well have had adequate grounds to discharge
Ganues for cause on at least two or three different occa-
sions. Certainly, had the antifreeze overflow reached the
staggering amounts as suggested by witnesses for the Com-
pany, he most likely would have been discharged right on
the spot, but it was not until 4 days later, when his union
activity became known to the Company on the morning of
August 18, that this incident and several of his other deeds
suddenly surfaced. I can assign no particular significance
or importance to the fact that both Eller and Dover were
former union members and officials as argued by the Re-
spondent. It might well be that with such a background of
experience they were better able to ascertain union activi-
12 Biller testified that, even after he and Eller had discussed what to do
with Ganues on August 18, he was still reluctant to let him go because
Ganues had been a "real good employee" before his illness, and as a result
he and Eller got out his payroll records and made a chronology list of his
exact work history, but the last part of this list was offdated by about I week
as he was not used to looking at the payroll summaries See G C Exh 5
ties and by so doing keep unions out of their business.
Moreover, the fact that management had some knowledge
of Ganues' initial union activity in 1974, as aforestated,
likewise warrants very little consideration. It appears that
at that time Eddie Dunn was the employee more directly
involved as he was the one who spoke to Eller about a
union, but after so doing decided not to get involved.13 If
there was any further indications that Ganues again
pushed for a union up until his inquiry and activity mid-
August 1975, it is not apparent in this record, and it is
obvious that the Respondent assigned very little if any sig-
nificance to whatever part Ganues played in the 1974 ac-
tivity.
In summary, it is quite apparent that on the morning of
August 18, after Shirley Mullins had informed Foreman
Larry Dover of the fact that Ganues had recently asked her
if she wanted a union at Propak, Dover then mentioned
this conversation to Supervisor Walt West, and as a
result both Eller and Bitler were then immediately in-
formed of Ganues' union activities. I agree with the Gener-
al Counsel that management was then so enraged with the
disloyalty on the part of Ganues, as they saw it, that there
was no concern about going through the files and checking
his work record, but the ultimate action to take was ob-
vious and Ganues was then discharged immediately. More-
over, I doubt very much if Bitler had the time on the morn-
ing of August 18 to make any independent survey as to
Ganues' work record.14 From this record I must conclude
that the real and actual motivation for the termination was
union activity, and the timing of events, in particular, is
such that any other conclusions would be entirely specula-
tive. For purposes here, the last specific message received
by management on the morning of August 18 was to the
effect that Ganues was making inquiries among employees
in the plant as to whether they wanted a union, and it is
readily apparent that this is the event or incident that trig-
gered his discharge
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. A broad cease-
and-desist order is warranted in view of Respondent's dis-
criminatory conduct.
It has been found that Respondent discriminatorily dis-
charged John Ganues on August 18, 1975. In accordance
therewith, it will be recommended that Respondent offer
him immediate and full reinstatement to his formerjob or,
if that job no longer exist, to a substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of earn-
ings he may have suffered by payment to him of the
13 Dunn was transferred to the third shift at the Respondent's plant, but
he did not like this arrangement and as a result accepted employment with
Sexton Tire Company Dunn then returned as an employee with the Re-
spondent after Ganues was discharged
14 The General Counsel maintains that in preparation for its defense, Bit-
ler had G C Exh 5 typed, but in his haste to do so did not even check over
the dates on the exhibit, and thus it shows all the incidents which were
attributed to Ganues as having occurred during the week after his discharge
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amount he normally would have earned as wages from the
date of the termination to the date of an offer of reinstate-
ment. Backpay shall be computed on a quarterly basis in
the manner established by the Board in F W. Woolworth
Company, 90 NLRB 289, 291-294 (1950), and shall include
the payment of interest at the rate of 6 percent per annum
to be computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). It will be further rec-
oinmended that Respondent preserve and upon request,
make available to the Board, all payroll records, social se-
curity payment records, timecards, personnel records and
reports, and all other records necessary and useful to de-
termine the amount of backpay and the right to reinstate-
ment under the terms of these recommendations.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. By discharging John Ganues, the Respondent has en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
3. By interfering with, restraining , and coercing its
employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, as detailed herein , the Respondent has
also engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a)(l) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact , conclu-
sions of law , and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
and make him whole for any loss of earnings he may have
suffered as a result of the unlawful action taken against
him in the manner set forth in the section of this Decision
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board, or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at its place of business copies of the attached
notice marked "Appendix." 16 Copies of said notice, on
forms provided by the Regional Director for Region 10,
after being duly signed by Respondent's representative,
shall be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 10, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
15 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided by 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
16 In the event that this Order is enforced by a Judgment of the 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 "
ORDER 15
The Respondent, Propak Corporation, Atlanta, Georgia,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees about their union member-
ships and activities and the union activities of other em-
ployees.
(b) Threatening to close the plant and threatening dis-
charge of employees in event of a union or if union activi-
ties continued.
(c) Informing employees that another employee has
been terminated because of union activities.
(d) Interrogating employees as to who would be witness-
es against the Company, and interrogating employees as to
information given to agents of the Board.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
them in Section 7 of the Act, as amended.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to John Ganues immediate and full reinstate-
ment to his former position or, if such position is no longer
available, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, dis-
charging, if necessary, any employees hired to replace him,
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties were represented by
their attorney and presented evidence in support of their
respective positions, it has been found that we have violat-
ed the National Labor Relations Act in certain respects
and we have been ordered to post this notice and to carry
out its terms.
WE WILL NOT interrogate employees as to their union
memberships and activities, nor the union activities of
other employees.
WE WILL NOT threaten to close the plant, nor will we
threaten the discharge of employees in event of a
union, or if union activities continue.
WE WILL NOT inform or tell employees that others
have been discharged because of union activities.
WE WILL NOT interrogate employees as to who would
be witnesses against the Company, nor will we interro-
gate employees as to information given to agents of
the Board.
PROPAK CORPORATION 1065
WE WILL NOT in any other manner interfere with, WE WILL make John Ganues whole for any loss of
restrain , or coerce our employees in the exercise of earnings he may have suffered as a result of our un-
rights guaranteed them by Section 7 of the National lawful action against him.
Labor Relations Act, as amended.
PROPAK CORPORATION