Russell Stover Candies, Inc.

National Labor Relations Board - Board Decisions

Apr 2, 1976

223 N.L.R.B. 592 (N.L.R.B. 1976)

592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Russell Stover Candies, Inc. and Henry R. Johnson.
Case 27-CA-4526
April 2, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On December 24, 1975, Administrative Law Judge
James T. Barker issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief and cross-exceptions concerning
which Respondent subsequently 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 2 and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
1 On the same day that it filed its answering brief, Respondent also filed
a "Motion for Special Leave To File Supplemental Brief' to which it at-
tached its supplemental brief. For the purposes of our decision , we have
treated Respondent's supplemental brief as part of its answering brief and
have fully considered the contentions made therein . Accordingly, the Gen-
eral Counsel 's motion to strike Respondent 's supplemental brief from the
record is hereby denied.
2 We hereby grant Respondent 's motion to amend the record by adding
as Resp . Exh. I I the sworn statement of Neil Rollf. Respondent 's vice presi-
dent of manufacturing , which was given to a Board agent during the investi-
gatory stage of this proceeding . Respondent seeks to introduce this state-
ment in support of its contention that the Administrative Law Judge erred
in stating in In. 4 of his Decision that during Rollf's testimony at the hearing
he "recanted" a portion of his statement concerning his December conver-
sation with the Charging Party, Henry R. Johnson. Respondent further con-
tends that this alleged error impairs the Administrative Law Judge's finding
crediting the testimony of Johnson concerning this dialogue with Rollf and
discrediting the testimony of Rollf to the extent to which it was inconsistent
with Johnson 's. While we agree with Respondent that the Administrative
Law Judge mischaracterized the record in stating that there was a disparity
between Rollf s testimony at the hearing and his sworn statement , we never-
theless find a sufficient basis for relying on Johnson 's testimony in this
respect. See In . 3. par. 2, infra. The General Counsel's motion to strike Resp.
Exh. II from the record is hereby denied.
3 Respondent contends that the Administrative Law Judge's finding in
sec. III , B,2,b of his Decision that Personnel Manager Setzer conversed with
Johnson in December 1974 concerning the subject of the Union is inconsis-
tent with a subsequent finding in see. I1I,B,2,h,(l) that there was no discus-
sion of union activities in the meetings held between Setzer and Johnson
during the week following Setzer 's return from vacation on December 2.
1974. We find no merit in this contention , as it is clear from his Decision
and the record as a whole that the Administrative Law Judge was referring
to different time periods . Thus, the Administrative Law Judge found that
the conversation concerning the Union occurred a "short time" after
Johnson 's initial meeting with Rollf which , according to the credited testi-
mony of Johnson , took place at least 2 weeks after his employment on
November 25 , 1974, i.e ., no earlier than December 9, 1974. In contrast, the
Administrative Law Judge found that the meetings with Setzer in which
"(t)here was no discussion of union activities " occurred "[d]uring the course
of the week following [Setzer's) return" from vacation , i.e., December 2-6.
1974.
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.'
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 modified
below and hereby orders that the Respondent, Rus-
sell Stover Candies, Inc., Montrose, Colorado, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 1(c):
"(c) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
their rights guaranteed under Section 7 of the Act."
2. Substitute the following for paragraph 2(a):
"(a) Offer Henry R. Johnson immediate and full
reinstatement to his former job or, if such job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole for his lost earnings
in the manner set forth in the section of this Decision
entitled "The Remedy."
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
IT IS HEREBY FURTHER ORDERED that the complaint
be, and it hereby is, dismissed insofar as it alleges
violations not found herein.
Both the General Counsel and Respondent have excepted to certain cred-
ibility findings made by the Administrative Law Judge, particularly those
concerning the testimony of Johnson . The Administrative Law Judge found
Johnson to be a basically credible and reliable witness despite rejection of
some portions of his testimony . It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty 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). Furthermore, as Judge
Learned Hand observed in N.L.R.B. v. Universal Camera Corporation, 179
F.2d 749, 754 (C.A. 2, 1950), "nothing is more common in all kinds of
judicial decisions than to believe some and not all " of a witness' testimony.
We have carefully examined the record and find no basis for reversing his
findings.
We note that in the conclusions section of his Decision , the Administra-
tive Law Judge states that Johnson had separate telephone conversations
with Polage and Setzer on the evening of April 29, 1975, whereas the record
reveals, and the Administrative Law Judge himself previously found, that
Johnson had a telephone conversation only with Polage on the night in
question . This apparently inadvertent error, however, does not affect our
decision herein.
In par. 1(c) of his recommended Order, the Administrative Law Judge
provides that Respondent shall cease and desist from "in any unlawful man-
ner" infringing upon employee rights guaranteed in Sec . 7 of the Act. How-
ever, in cases of this kind , involving unlawful discharges , it is the Board's
established policy to use the injunctive language "in any other manner." See
N. L. R. B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941); Skrl Die
Casting, Inc., 222 NLRB No. 22 (1976). Similarly, in par. 2(a) of his recom-
mended Order , the Administrative Law Judge failed to conform his rein-
statement order to that customarily used by the Board in omitting the
phrase "or if such job no longer exists." Accordingly, we shall modify the
recommended Order and notice in these respects.
223 NLRB No. 84
RUSSELL STOVER CANDIES, INC.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT terminate the employment of
Henry R. Johnson because he failed or refused
to engage in surveillance of the union activities
of employees.
WE WILL NOT instruct supervisors to observe
and report the union activities of employees; ad-
monish supervisors to eat lunch and take breaks
with employees under their supervision and,
during those periods of time, be attentive to
their comments regarding union, including Bak-
ery and Confectionery Workers of America, Lo-
cal Union No. 72, AFL-CIO-CLC; repeatedly
question supervisors about what they had ob-
served and learned concerning employee union
activities; instruct supervisors to keep prounion
employees out of work areas of the plant; or set
in motion any chain of events which would rea-
sonably tend to motivate supervisors to verbally
inform employees that they were engaging in
surveillance of their union activities.
WE WILL NOT in any other manner instruct our
supervisors to engage in conduct which would
interfere with employee rights to engage in pro-
tected concerted activity, including activity on
behalf of Bakery and Confectionery Workers of
America, Local Union No. 72, AFL-CIO-CLC.
WE WILL NOT in any other manner interfere
with , restrain , or coerce our employees in the
exercise of their rights guaranteed employees
under the National Labor Relations Act, as
amended.
WE WILL offer Henry R. Johnson immediate
and full reinstatement to his former job or, if
such job no longer exists, to a substantially
equivalent position without prejudice to his se-
niority or other rights and privileges, and make
him whole for his lost earnings plus interest.
RUSSELL STOVER CANDIES, INC.
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Administrative Law Judge: This case
was heard at Montrose, Colorado, on October 21, 1975,
pursuant to a complaint and notice of hearing issued on
July 31, 1975, by the Regional Director of the National
Labor Relations Board for Region 27; and an amendment
593
to complaint, issued by the Acting Regional Director on
August 5, 1975.1 The complaint was further amended at the
hearing without objection of Respondent, and the amend-
ed complaint alleges violations of Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended, hereinafter
called the Act. The charge giving rise to the complaint was
filed on May 19 by Henry R. Johnson, an individual. Re-
spondent denies the commission of any unfair labor prac-
tices. The parties timely filed briefs with me.
Upon the entire record in this case, and based upon my
observation of the witnesses and briefs of the parties, I
hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and at all times material herein, has been,
a Missouri corporation maintaining its principal office and
place of business at Kansas City, Missouri, and a place of
business at Montrose, Colorado. At the Montrose facility,
Respondent is, and has been at all material times, engaged
in the manufacture and sale of candy.
In the course and conduct of its business operations
within the State of Colorado, Respondent annually sells
and ships goods and materials valued in excess of $50,000,
directly to points and places outside the State of Colorado.
Upon these admitted facts, it is hereby found that, at all
times material herein, Respondent has been an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Bakery and Confectionery Workers International Union
of America, Local Union No. 72, AFL-CIO-CLC, is ad-
mitted by Respondent to be a labor organization within the
meaning of Section 2(5) of the Act, and I so find.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The issues in this proceeding are:
1. Whether Respondent violated Section 8(a)(1) and (3)
of the Act by virtue of its agents' instructions and direc-
tions to Supervisor Henry (Eric) Johnson 2 to inform them
of any information he learned concerning the Union; to
identify certain prounion employees; to remain vigilant for
information concerning the Union; to take lunch and
breaks with employees under his supervision so as to ob-
tain information from them concerning the Union.
2. Whether Respondent violated Section 8(a)(1) and (3)
of the Act by questioning Johnson, both on a single occa-
sion and later on a recurring basis, as to what he had found
out about the Union and/or the union sympathies of em-
ployees.
1 Unless otherwise specified, all dates refer to the calendar year 1975.
2 it is conceded by all parties that Johnson is a supervisor within the
meaning of Section 2(11) of the Act.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Whether Respondent violated Section 8(axl) and (3)
of the Act by virtue of Johnson 's conduct in advising em-
ployees in his department that he had been acting as an
informer with respect to their union activities ; by stating he
would no longer do so; and by apologizing for these ac-
tions.
4. Whether Respondent violated Section 8(a)(1) of the
Act by discharging Johnson because of his failure or refus-
al to continue in his directed activities of spying on em-
ployees' union activities.
5. Whether Respondent violated Section 8(axl) and/or
Section 8(a)(3) of the Act by instructing Johnson not to
schedule a prounion employee to perform certain specified
work.
Respondent denies the commission of any unfair labor
practices and affirmatively contends that , as a supervisor,
Eric Johnson is not entitled to the protection of the Act. It
is Respondent's further contention, in substance , that its
instructions to Johnson to remain alert to the union activi-
ties and propensities of employees was a valid directive
from management to the supervisory personnel and did not
exceed permissible statutory limits . It is Respondent's fur-
ther averral that the conduct of Johnson in inaccurately
characterizing for the benefit of employees under his super-
vision the nature of the union-related oversight conduct
which he had been legitimately instructed by management
to perform did not violate the provisions of the statute.
In a similar vein , Respondent contends that the termina-
tion of Johnson was solely for cause and was unrelated to
the character or quality of Johnson 's compliance with
union-related instructions ; and that-in any event, any or
all employee insight into the alleged improper termination
of Johnson emanated solely from the voluntary statement
of Johnson and not from any disclosure by management or
other supervisory personnel or agents of Respondent.
B. Pertinent Facts
1. Background facts
Respondent operates five candy producing facilities.
One of these facilities is situated in Montrose , Colorado,
where operations commenced in July 1973. Neil Rollf is
Respondent's vice president of manufacturing headquar-
tered in Kansas City, Missouri, with direct oversight au-
thority with respect to the Montrose facility. Allen McKie
is Montrose plant manager and Virgil Setzer is plant per-
sonnel manager . Ronald Polage has served at pertinent
times as plant purchasing manager and reports directly to
Setzer . Vernon Charron is Montrose plant superintendent.
At the Montrose facility in the spring of 1975 were em-
ployed approximately 405 employees. A supervisory staff
of 17 individuals was retained and there were seven sepa-
rate departments, including the receiving department over
which Polage has supervisory authority . From November
25, 1974, until April 30, Eric Johnson served as warehouse
receiving supervisor reporting directly to Polage. The re-
ceiving department is one of the smallest of the seven de-
partments and at pertinent times the rank-and-file comple-
ment was comprised of three or four employees . It was the
responsibility, inter alia, of Johnson to direct the work of
these employees. Johnson was employed on November 25,
1974, following an interview conducted by Rollf who was
filling in for Selzer who was on vacation. The actual hiring
of Johnson was done by Polage. At the time of his hire,
Johnson was instructed to eat lunch and take breaks with
the employees under his supervision.
The function of the receiving department was to receive
incoming materials and supplies shipped to Montrose by
rail and motor truck, and to warehouse and dispatch these
materials to operating departments pursuant to requisi-
tions. In addition to his normal supervisory responsibilities
to direct and oversee the rank-and-file employees compris-
ing the receiving department, Johnson had certain record-
keeping duties. An important facet of these duties was the
maintenance of receiving forms verifying the receipt of
merchandise from suppliers. Additionally, Johnson was ex-
pected to maintain in good order the written departmental
requisitions and to insure the prompt and accurate dis-
patch of materials and supplies pursuant to the requisi-
tions. Further responsibility attending Johnson's assign-
ment was participation in the monthly inventory of
materials and supplies maintained in the warehouse.
In the summer of 1974, a Board election was conducted
at the Montrose facility. This election had been preceded
by an organizing campaign conducted by the Union. The
Company prevailed in the election and the Union filed ob-
jections which were pending at the time of the hearing
herein.
At a point in late 1974 or early 1975, the Union renewed
its organizational efforts among the employees at the
Montrose facility. Respondent's management and supervi-
sion became aware of this renewed effort in early March
1975, and a meeting of supervisory personnel was held on
March 21. A comprehensive list of instructions, including
the "Do's and Don'ts" of permissible union activity by
management and supervision was read to the supervisors in
attendance. These instructions conformed to a uniform
policy of Respondent distilled from and applied to previ-
ous organizational campaigns conducted at its various
plants, including that at Montrose. During the course of
the March 21 meeting, which was conducted by McKie,
the supervisors were specifically instructed not to interro-
gate employees concerning union activities and to refrain
from initiating conversations concerning the Union. They
were instructed to be "good listeners" and to keep their
eyes open concerning union activity in the plant.
Eric Johnson attended the March 21 meeting but arrived
late during the verbatim reading of the document contain-
ing the "Do's and Don'ts." He was present for the question
and answer period which followed the discussion of the
document. After the meeting and before Johnson left the
meeting room, McKie asked Johnson to remain and to
read the document. He did stay and McKie remained in
the meeting room while Johnson studied the document.
McKie asked him if he had any questions and Johnson
answered in the negative .3
3 The foregoing is based upon a composite of record testimony which in
salient parts is not disputed . The testimony of Allen McKie is at variance
with the recollection of Eric Johnson with respect to whether the "Do's and
Don'ts" document was made available to Johnson for study after the meet-
RUSSELL STOVER CANDIES, INC. 595
2. The alleged unlawful conduct
a. Rollf speaks with Johnson
In early December 1974, Neil Rollf visited the Montrose
plant and there met with Johnson for the first time. Rollf
had had reports concerning unsatisfactory conditions in
the receiving department, specifically, and in the ware-
house generally, and made a point of meeting with John-
son. Rollf spoke to Johnson concerning problems that had
existed in the warehouse and receiving department prior to
Johnson's tenure and expressed the hope that the problems
could be "straightened up" under Johnson's supervision.
The conversation then turned to the topic of the Union
and Rollf informed Johnson that the Union had endeav-
ored to organize the employees, but, in an election held the
previous June, had been unsuccessful. He noted that the
outcome of the election was being "appealed." Thereupon,
Rollf stated that, if Johnson should hear anything about
the Union, he should bring the information to the attention
of McKie or Setzer. As the discussion continued, Rollf
stated that Lupe Abeyta, an employee in the receiving de-
partment, was prounion, and inquired if Johnson was
aware of this fact. Johnson commented that he had a
"good idea" from conversations that he had overheard that
this was so. Rollf added that Lawrence Barrientos was also
prounion. Johnson noted that Barrientos did not work in
his department but that he had observed him conversing
with Abeyta in the warehouse. Johnson added that Bar-
rientos and Abeyta were "pretty close." Rollf instructed
Johnson to keep Barrientos out of the warehouse and to
call his immediate supervisor if he observed Barrientos in
the warehouse. Rollf further observed that all of the Chica-
no employees in the plant were prounion. He closed the
conversation with Johnson by asserting that Johnson had a
"good future" at the plant and by complimenting Johnson
for the job he was doing in the warehouse. He added that
Johnson should "clue him in" to anything that was said
about the Union."
ing. The record testimony , considered as a whole , supports the testimony of
McKie and I credit McKie in this regard.
I have carefully considered the testimony of Eric Johnson and Neil
Rollf with respect to this incident and predicate the findings upon a com-
posite of their testimony. To the extent that Rollf's testimony is at variance
with the above findings , I reject it . Specifically , I find , contrary to the testi-
mony of Rollf, that a discussion of union matters transpired during this
initial meeting between Rollf and Johnson and that, despite Rollf's denial,
the content and tenor of the discussion were as described by Johnson. As I
observed Johnson testify during the course of the hearing , he impressed me
by his demeanor and his manner of testifying as a generally credible witness
wholly disinclined to make unfair attributions against his former employer
or their agents. Indeed , as I observed him testify , Johnson impressed me as
lacking in sophistication and his responses to questions impressed me as
open and not devious . I am unable to conclude that he would rationalize the
content of his conversation with Rollf.
On the other hand , on cross-examination , Rollf conceded that in the
investigatory stages of this proceeding he had discussed with Johnson at the
December meeting the general approach of supervision to the organiza-
tional efforts of employees . While during his appearance at the instant hear-
ing he recanted and denied having conversed with Johnson on this subject
in December , this disparity raises a doubt with respect to the accuracy of his
witness stand testimony . While the renewed organizational effort had not
been undertaken at the time of the December meeting , the appeal from the
prior election process was still viable and it is totally reasonable that the
b. Setzer speaks with Johnson
A short time thereafter , Setzer called Johnson into his
office and spoke with Johnson . Initially , Setzer commented
favorably upon the quality of work which Johnson was
doing and then inquired if Johnson had found out any-
thing about the Union . Johnson responded that he knew
only what he had overheard from conversations during
breaktime .s Thereupon , Selzer inquired whether Lee Ma-
daris was for the Union . Johnson responded that Madaris
was influenced by Abeyta, but added that Madaris was a
very good worker. Johnson also asserted that sooner or
later, Madaris would favor the Union , but at the particular
point in time , he, Johnson , could not say whether Madaris
was for the Union or not . Setzer then inquired if Johnson
had heard whether or not Louise , a female employee work-
ing in the packaging area , was in favor of the Union . Selzer
observed in this connection that while Louise was "push-
ing" for the Union , Johnson should keep his eyes and ears
open and bring anything that he might learn concerning
the Union to his attention or convey it to McKie . Setzer
cautioned Johnson to be careful and not to interrogate em-
ployees because this might result in the filing of an unfair
labor practice charge against the Company .6
c. Setzer and Johnson again converse
During the month of January, Johnson had occasion to
speak with Setzer in Setzer's office. Only Setzer and John-
son were present. The prefatory element of their conversa-
tion related to an alleged derogatory statement by Keith
Dowell, an employee, regarding Setzer. From this discus-
sion emerged a statement by Johnson to the effect that he
had heard Dowell speaking with one of the female employ-
ees concerning the general subject of a union. Johnson
stated that, by the time he got close enough to hear the
content of the conversation, Dowell had returned to his
work. Setzer instructed Johnson to "write up" a discipli-
nary report on Dowell and instructed Johnson to bring
Dowell to the office.
Company would be vigilant with respect to indicia of new organizational
attempts. Also, as a corollary, it is entirely plausible that in his first meeting
with Johnson-a departmental supervisor-Rollf would discuss with him
matters relating to the past union effort and would instruct him with respect
to future conduct in this regard. Additionally, Abeyta, a known union advo-
cate, was a member of the crew which Johnson supervised, and the logic of
Rollrs discourse with Johnson concerning Abeyta's activities is even more
cogent . On this rationale , and considering the generally persuasive testimo-
ny of Johnson with respect to this conversation, and despite Rollf's specific
and general denials of the union-related aspects of the meeting in question,
I credit Johnson concerning those elements of the dialogue which are at
variance with Rollf's testimony.
5 The testimony of record , including that of Johnson himself, suggests
that at this point in time, Johnson was taking his breaks and lunch periods
with supervisory , office, and clerical employees. Abeyta's testimony suggests
Johnson was not in fact taking breaks with employees under his supervision
at this juncture . I conclude that Johnson was being evasive and less than
candid with Setzer.
6 The foregoing is based upon the credited testimony of Eric Johnson. I
have also considered the testimony of Virgil Setzer wherein he denied con-
versing with Johnson concerning the subject of the Union . On the record
before me, I find Johnson 's testimony credible and reliable and I am unable
to credit Sewer's denials with respect to this incident.
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
d. Subsequent discussions between Johnson and Selzer
(1) The inquiry concerning Boots
In late January or early February, Richard Boots was
hired as a replacement employee under Johnson's supervi-
sion . Thereafter, Johnson had several conversations with
Selzer concerning Boots . The initial one transpired shortly
after Boots started to work, and Selzer inquired if Johnson
knew Boots' feelings concerning the Union . Johnson re-
sponded that Boots' father was a union man who had
worked in a union shop and added that , in his opinion,
Boots' "ideas about the Union" were "either way." John-
son also expressed the belief that Boots would evaluate the
Union and reach his own decision.
(2) The instruction concerning breaktime
In mid-April Selzer informed Johnson that he was re-
quired to take his breaks with the employees under his
supervision and instructed Johnson to do so . He also ad-
monished Johnson to keep his ears and eyes open and to
gather whatever information he could concerning the
Union . Soon thereafter, Johnson started to take lunch
breaks with the rank -and-file employees in his department
and, in point of fact, informed Abeyta that he had been
instructed by his superiors to do so.
After Selzer gave Johnson the instructions to join em-
ployees on their breaks, Selzer frequently inquired of John-
son what information , if any, had been imparted to him.
(3) Employee suspicion of Johnson
Subsequently, on or about April 22, Johnson was taking
a break with employees in the receiving department. Pre-
sent were Abeyta , Madaris , and one or two other employ-
ees. The subject of the Union came up and Abeyta made a
comment to the effect that there was "a rat" among them.
He added that caution should be taken in anything that
was said because it appeared that the comments of the
employees were going back to the front office . In making
this statement, Abeyta looked directly at Johnson. Upon
hearing Abeyta's statement, Johnson got up and left imme-
diately . He went to Setzer's office and reported to Selzer
what had transpired . This incident occurred after Johnson
had taken only a few breaks with the rank-and-file employ-
ees.
In making his report to Selzer on the occasion in ques-
tion, Johnson observed that he felt that since he had been
making reports to management concerning the union activ-
ities of the employees , he had been getting less cooperation
from them . He stated to Selzer that he would prefer to do
less informing.'
e. The April 25 meeting
On April 25 Selzer called a meeting and requested Abey-
ta and Johnson to attend . Also in attendance were Polage
' The findings with respect to the April 22 incidents are based upon the
credited testimony of Eric Johnson, Lupe Abeyta, and Lee Madaris.
and Charron. The meeting was called to discuss a dispute
over a work instruction which Johnson had issued to Abey-
ta. During the course of the meeting, Abeyta was asked
why he had not responded to the instructions of his super-
visor, and Abeyta responded, in effect, that he had re-
ceived conflicting instructions from Charron. During the
course of the meeting, Johnson stated that Abeyta had
called him a liar in the cafeteria, and, in context with that
assertion , Johnson asked Abeyta, "What's this about this
rat?" In response Abeyta said, "Everytime we say some-
thing around here, it gets to the front office." 8
f. The events of April 29
(1) Employees test Johnson
In the days that followed, the employees became con-
vinced that Johnson was serving as an informer and was
reporting their discussions and activities to the front office.
Accordingly, the employees devised a plan to test their
theory. They agreed to start a false rumor concerning the
purported pendency of Abeyta's termination. Thus, at a
break on April 29, in Johnson's presence, they discussed
Abeyta's "pending termination." After hearing the discus-
sion, Johnson left and thereafter approached Abeyta and
told him that the rumor was not true. Johnson asserted that
Abeyta was not going to be fired. Subsequently, Abeyta
reported this occurrence to Madaris and they concluded
that their suspicions concerning Johnson had been veri-
fied.'
(2) Johnson visits his attorney
On the evening of April 29, Johnson and his wife paid a
visit to the office of their attorney. The visit was motivated
by reasons unrelated to Johnson's work activities. Howev-
er, at the end of the meeting, Johnson informed his attor-
ney that he had been spying on the union activities of the
employees under his supervision and informing manage-
ment what he had observed and learned. Johnson stated
that he was doing these things at the direction of his superi-
ors. His attorney told Johnson, in substance, that what he
was doing was unlawful and advised Johnson to cease
these activities immediately.
(3) Telephone conversations with and between
management
The Johnsons left the office of the attorney and together
had a cup of coffee. Immediately thereafter, Johnson
placed a telephone call to Polage at Polage's residence.
Johnson informed Polage that he had spoken with his at-
torney concerning his activities in serving as a "spy" and
"informer" for the Company. Johnson stated that he did
not desire to serve in this capacity any longer. Polage ex-
claimed, "You got in contact with your lawyer?" Johnson
answered in the affirmative and quickly asked Polage
r The foregoing is based upon a composite of the testimony of Eric John-
son, Lupe Abeyta, Virgil Setzer , and Vernon Charron.
9 The foregoing is based upon a composite of the credited testimony of
Lupe Abeyta and Lee Madaris.
RUSSELL STOVER CANDIES, INC.
whether his wife still worked at the hospital. Polage gave
an affirmative answer and Johnson stated , in substance,
that this explained the reason he was having difficulties
with the hospital. Johnson added, without amplification,
that the "two weeks" the Company had given him was the
equivalent of a termination notice . 10 Polage responded by
informing Johnson that he would speak to him in the
morning. Johnson terminated the conversation without the
usual amenities.
The following day, Polage prepared a memorandum of
the conversation which he had had with Johnson.I I
Upon concluding his telephone conversation with John-
son, Polage contacted Selzer by telephone and informed
him of Johnson's call. Polage asserted that , in conversing
with him, Johnson had seemed upset and was "accusatory"
and "insubordinate." Polage explained that Johnson had
made some accusations concerning Polage 's wife . Polage
informed Selzer that Johnson had stated that he was no
longer going to be an informer and had hung up rather
abruptly. Setzer instructed Polage to contact McKie. Po-
lage did so.
In speaking with McKie, Polage summarized the essence
of his version of the conversation with Johnson. -McKie
observed that if he had been in Polage's position he would
have terminated Johnson on the spot.12
g. The events of April 30
(1) Setzer and Johnson converse
The following morning, shortly after 7 a.m., Selzer came
to Johnson's office in the warehouse. Only Johnson and
Selzer were present and the subject of Johnson's telephone
conversation with Polage the previous evening was
broached. Johnson informed Setzer, in this regard, that he
was no longer going to inform the Company with respect
to the union activities of the employees and that he had
been advised to cease doing so by his attorney. Johnson
10 This related to statements by Polage and Setzer at a conference earlier
in the day , as fully discussed below , urging Johnson to devote the ensuing 2
weeks to improving his work performance.
11 The foregoing is based upon a consideration of the testimony of Eric
Johnson , Ronald Polage , and documentary evidence of record . I have also
considered the testimony of Virgil Setzer to the extent that it casts light
upon the substantive aspects of the conversation which Johnson and Polage
had. While I am unable to give full credence to the evaluation of Polage to
the effect that Johnson was "very emotional" in his utterances , I am con-
vinced , contrary to the thrust of the testimony of Johnson , that Johnson
spoke out of frustration and disenchantment and was as essentially terse,
direct, and disjointed in his comments as the testimony of Polage suggests.
I reject the testimony of Johnson to the effect that he approached the Polage
telephone conversation in a totally dispassionate manner . It is to be remem-
bered , as found below , that, earlier in the day, Johnson had engaged in a
conference with management concerning the quality of his supervisory per-
formance , and his supervisory relationship with his men had been a topic of
discussion . Moreover, the testimony of Leonard Campbell, Johnson's attor-
ney, as well as Johnson 's own testimony , reveals that during the course of
the conference in Campbell 's office , Johnson seemed to be preoccupied and
concerned.
12 The foregoing is based upon a consideration of the unrefuted testimony
of Ronald Polage , Virgil Setzer , and Allen McKie . Although neither McKie
nor Polage testified in detail concerning all substantive aspects of the report
which Polage made to McKie , the entire record leads to the compelled
conclusion that Polage did give a full accounting to McKie of his own
version of the Johnson conversation.
597
added that he had been in touch with Ed Rettman,
Johnson's predecessor, who had informed him that he had
been placed in a similar situation when he was in the em-
ploy of the Company. Setzer asked Johnson if he were ac-
quainted with Rettman and Johnson was evasive. Johnson
stated that he had become acquainted with Rettman's
neighbor and had made his contact with Rettman through
that acquaintanceship. Selzer stated that Johnson was lis-
tening to too many wrong people. The conversation ended
on this note.13
(2) Johnson meets with employees
Shortly thereafter, Johnson called a meeting of employ-
ees in his own office. Abeyta, Madaris, and Greg Pavlich
were present. Johnson told the employees that he had been
acting as an informer or a spy against them and stated that
he would no longer do this. He also asserted that his attor-
ney had advised him not to serve as an informer against his
employees or anyone else. Johnson apologized to the em-
ployees and stated that if they wanted the Union, it would
be their decision to make. He added that it would not be
up to him to change their minds. Johnson apologized to the
employees for what he had done.14
(3) The termination of Johnson
Approximately 2 hours later, Johnson was called to
Polage's office and Polage, McKie, and Johnson conferred.
At the outset of the meeting, McKie invited Johnson to sit
down and then stated that he had been informed that
Johnson had called Polage the previous evening and had
stated that he was going to refuse to serve as an informer
with respect to the union activities of the employees. Mc-
13 The foregoing is based upon a consideration of the testimony of Eric
Johnson and Virgil Setzer. I have also considered the testimony of Anna
Johnson which gives some dimension to the matter at hand. In evaluating
the witness stand testimony of Setzer , I find it less credible than the more
direct and complete description which Johnson gave of the discussion in
question . Sewer's testimony seriously fragmented the conversation and
pointed up only one aspect of a discussion which, I am convinced, was
much broader than the testimony of Setzer would indicate . I conclude that
Johnson's testimony gives an accurate insight into the dialogue which tran-
spired on the occasion in question between Setzer and Johnson , and I base
the findings primarily upon Johnson's testimony. I am unable to conclude,
however, that , as Johnson testified he did, during the conversation , Setzer
commented in a favorable manner concerning Johnson 's capacity to do a
good job. This would be out of keeping with the frame of mind which, I am
convinced, Setzer had formulated at this point in time with respect to John-
son.
On the other hand, I am unable to fully credit Setzer's testimony to the
effect that Johnson equivocated with respect to his contact with Rettman, to
the extent indicated by Setzer. While I conclude and find that, in speaking
with Setzer, Johnson was ambivalent and evasive with respect to this topic,
I do not find , as Setzer 's testimony suggests , that the details of his contact
with Rettman emerged only gradually during the course of two separate
conversations . In this regard, I credit the testimony of Anna Johnson to the
effect that Johnson was motivated to speak with Rettman by conversations
which the Johnsons had had with Rettman's neighbor at church concerning
the circumstances of Rettman's termination from the Company's employ. I
further find that as the Johnsons testified they did, they visited Rettman.
Thereafter, in speaking with Setzer concerning this visit, Johnson was reluc-
tant to discuss the incident candidly with Setzer and was undoubtedly eva-
sive and halting in his disclosure of pertinent details.
14 The foregoing is based on a consideration of the testimony of Eric
Johnson , Lupe Abeyta, and Lee Madaris.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kie asserted that Johnson had not been requested to per-
form this function. He also stated that he understood from
Polage that Johnson had made some accusations concern-
ing the tie-in between Polage's wife and the problems that
the Johnson were experiencing with the hospital. McKie
also took note of Johnson's reference during the course of
his conversation with Polage to the effect that the 2 weeks'
trial period that had been granted him to improve his per-
formance was the equivalent of a notice of termination.
McKie again stated that management had never asked
Johnson to serve as an informer , and McKie asserted that
he and another of Johnson's superiors had tried to work
with him and had given him every opportunity to improve.
McKie stated that Johnson had not improved, and that,
based on his accusations made to Polage the previous eve-
ning, and his poor work performance, he had authorized
Polage to give Johnson his final paycheck. Johnson did not
respond directly but as he stood up he said, "Well, there's
more to it than that." In Johnson's presence, McKie in-
structed Polage to follow Johnson and make certain that he
cleared his locker.'5
From Polage's office Johnson went to his own office and
picked up his belongings and prepared to leave the plant.
He had a chance meeting with Abeyta and Madaris in the
warehouse and informed them that he had been terminat-
ed. Johnson stated that his termination had resulted be-
cause he had changed his mind about spying on the em-
ployees.16
The credited evidence of record reveals that no represen-
tative of management or company supervision at any time
has engaged in any dialogue with any employee in the re-
ceiving department concerning the reason for Johnson's
termination.
h. The work performance of Johnson
(1) Johnson's early training
As found, Johnson was interviewed and hired while Set-
zer was on vacation . Selzer first met Johnson on December
2, 1974, after he had returned from vacation. During the
course of the week following his return , Selzer met with
Johnson and discussed with him a wide range of topics
relating to his supervisory duties. In the course of the dis-
cussion, Selzer covered matters pertaining to Johnson's
working relationship with employees under his supervision,
15 The foregoing is based primarily upon the credited testimony of Allen
McKie . I have also considered the testimony of Ronald Polage which is
essentially supportive of the testimony of McKie . I am unable to credit the
testimony of Eric Johnson to the extent that it is at odds with the foregoing
findings . Based on the testimony of McKie and Polage I find that McKie
was the sole and exclusive spokesman on behalf of the Company at the brief
conference in question and that Johnson made no detailed response to the
comments which McKie directed to him . I am convinced in evaluating
Johnson's testimony that he inaccurately attributed to Polage and to himself
dialogue and responses which, in fact, did not transpire at the conference in
question . Thus, I find that Johnson inaccurately ascribed , to the instant
conference , statements and exchanges which , in point of fact, related to the
more extended meeting which , as fully considered below, transpired the
previous day and which related to corrective action which Johnson was
requested to make in his own supervisory performance.
6 The credited testimony of Eric Johnson , Lupe Abeyta, and Lee Madar-
is supports the foregoing finding.
the affirmative action plan in effect with respect to compa-
ny employees, Johnson's recordkeeping duties and respon-
sibilities, and other topics. There was no discussion of
union activities.
In the meantime, Polage, Johnson's immediate superior,
assisted in training Johnson to fulfill his duties as receiving
department supervisor. In carrying out these responsibili-
ties, Polage followed the outlines of an established 4-week
training program. Each week Polage trained Johnson in
phases of his job responsibilities.
(2) The monthly inventory
One of the responsibilities of Johnson's position was to
take monthly inventory of supplies and materials stored in
the warehouse in contiguous areas separated by seven
aisles . The inventory is taken near the end of the month,
and in November, Polage took the inventory. In the month
of December, Polage explained to Johnson the method for
entering the inventory count on the inventory sheets. In the
normal inventory-taking process, two individuals work as a
team . One "calls out" the inventory count while the other
makes the appropriate entry on the inventory sheet. In De-
cember, Johnson assisted Polage for a time and then left,
stating that he had other duties requiring his attention. Po-
lage informed Johnson that it was essential for him to learn
to take inventory, but Johnson responded that he had too
many other pending duties. Nevertheless, Polage stated
that Johnson would have to learn to take the inventory.
Thereafter, Polage spoke with McKie and informed Mc-
Kie that Johnson was unwilling to take the inventory with
him. McKie conversed with Johnson and informed him
that he was going to have to learn to take the inventory. In
January Polage worked with Johnson on aisle 5 which was
the least difficult of the seven aisles to master.'7
Thereafter, in the month of February, Johnson took the
inventory on aisle 5 and part of aisle 6. Polage took the
balance of the inventory.
Subsequently, in late February or early March, Polage
had occasion to speak with Rollf at the Montrose plant. In
speaking with Rollf, Polage stated that Johnson was having
difficulty in properly taking inventory. Polage asserted that
Johnson's inventory sheets contained many errors, and Po-
lage stated that he did not have confidence in Johnson's
ability to count. Rollf counseled Polage to give Johnson a
further chance, noting that the quarterly inventory was up-
coming . Rollf observed that this would give Polage a fur-
ther opportunity to observe Johnson's capabilities with re-
spect to the inventory. He added that if Johnson could not
be relied upon in this regard, Polage should "get rid of
him" because the Montrose plant was a multimillion dollar
operation and, in substance, the Company could not coun-
tenance the retention of a receiving department supervisor
who could not properly take physical inventory.'s
17 The credited testimony of Ronald Polage establishes that certain judg-
ment and discretionary factors entered into the inventory routine and tech-
nique and it was essential that Johnson work with him in order to properly
learn the inventory procedure. Thus, in January Johnson took inventory on
aisle 5.
19 The foregoing is based upon a consideration of the testimony of Ron-
ald Polage , Allen McKie, Leo Rollf, and Eric Johnson. I am unable to
credit the testimony of Johnson to the effect that he had no instructions
RUSSELL STOVER CANDIES, INC. 599
(3) The conference of March 21
On the morning of March 21, Johnson was called to a
conference with Setzer and Polage . The conference was for
the purpose of reviewing with Johnson several areas of
Johnson's supervisory responsibility as well as other topics
relating to Johnson's job performance . In practice, man-
agement conducts periodic conferences with supervisory
personnel , and, on this score , the conference was not atypi-
cal.
In substantive terms , Polage pointed out to Johnson the
need for him to better schedule and organize his work in
order to maximize the productivity of his crew. Johnson
was instructed to improve the flow of supplies to the pro-
duction departments in order to resolve complaints ema-
nating from some of those departments . The need for im-
proving the processing and preparation of inventory
records was also emphasized . Additionally, Johnson was
admonished concerning his propensity to report late to su-
pervisory meetings, and he was urged to enhance the ap-
pearance of his office and to maintain his desk in an or-
derly and tidy manner. Further, Johnson was instructed to
improve his cooperation with other office personnel. In re-
sponse , Johnson indicated his strong desire to do a good
job and stated his intention to expend his efforts to im-
prove his performance . However , Johnson pleaded extenu-
ating circumstances with respect to the difficulties being
experienced with the purchase orders and receiving re-
ports.19
(4) Johnson's inventory efforts
The March inventory was taken primarily by Polage,
working in cooperation with Pavlich. However, Johnson
and Pavlich worked together in taking inventory for aisle 5
and part of aisle 6. The inventory sheets completed by
Johnson contain numerous errors.
The April inventory was taken exclusively by Polage and
Pavlich and Johnson did not participate.20
from Setzer concerning his supervisory duties during the early phases of his
employment. Setzer 's testimony is convincingly to the contrary and, indeed,
Johnson concedes that, at a point in time , he did receive direct instructions
from Selzer relating to certain aspects of his supervisory duties. I am con-
vinced that these instructions emanated from Selzer during the week of
December 2. Further, I do not credit Johnson 's testimony to the effect that
during the first 2 months of his employment he was given no directive to
participate in the taking of inventory . I am unable to conclude that
Johnson's involvement in this important aspect of his departmental duties
would have been postponed for so long a period of time . Rather, as Polage
testified , I find it more likely that, as part of Johnson's training, Polage
would have endeavored , at an early time , to have acquainted Johnson with
at least the rudimentary procedural aspects of this job task.
19 The foregoing is based upon a composite of the credited testimony of
Ronald Polage, Virgil Selzer, and Eric Johnson . I also rely upon documen-
tarA evidence of record.
The foregoing is based upon the credited testimony of Ronald Polage
and documentary evidence of record . I have also considered the testimony
of Eric Johnson and credit it only to the extent that it is consistent with the
foregoing . Specifically, I do not credit Johnson to the effect that he partici-
pated in the April inventory . His explanation with respect to the manner of
his participation and cooperation with Pavlich in taking the inventory for
aisles 5 and 6 in March and April , respectively , appears strained and I am
unable to accept Johnson's explanation with respect thereto.
(5) The April 29 conference
In the early afternoon of April 29, Polage and Setzer
held a further conference with Johnson relating to his work
performance. The principal items which had formed the
basis for the March 21 meeting were again reviewed and, in
substance, deficiencies in the level of Johnson's job perfor-
mance were pointed out and discussed with him in a crit-
ical but constructive manner. Johnson was provided op-
portunity to respond and make observations with respect
to each of the items discussed. Johnson again stated his
desire to perform at an acceptable level and promised to
make an effort to improve. At the conclusion of the confer-
ence, Johnson was informed that he would be given a 2-
week period in which to achieve improvements. He was
also informed that his job performance would again be
evaluated at the end of the 2-week period 21
i. The alleged instruction concerning Abeyta
In late February and for a period of several weeks there-
after, a portion of the plant worked a 4-day week. The
balance of the plant continued to work on a 5-day basis.
The receiving department was one of the departments
placed on a reduced workweek. To facilitate this arrange-
ment, one of the crew members on a rotation basis worked
a 5-day week in the receiving department.
Approximately 1 week prior to his termination on April
30, Johnson conversed with Charron, Montrose plant su-
perintendent. Johnson approached Charron in Charron's
office and noted that he had Abeyta scheduled to work the
next day. He inquired if he should adhere to the schedule.
Charron responded that if it was Abeyta's turn he should
be permitted to work, that Abeyta should be given no
greater opportunity than any other member of the crew. In
speaking with Charron, Johnson noted that Abeyta was
favorably disposed toward the Union and made known to
Charron that this was the reason he was raising the issue of
Abeyta's work schedule with Charron. Charron did not
modify his instructions to Johnson to the effect that Abey-
ta should be permitted to work if it was his turn to do so 22
Johnson assigned Abeyta to work the next day.
21 The foregoing is based upon a composite of the credited testimony of
Ronald Polage , Virgil Selzer, and Eric Johnson. I have also considered doc-
umentary evidence of record..
22 1 have considered the testimony of Eric Johnson and Vernon Charron
and base the foregoing findings on a consideration of their testimony in
relation to the total context of the record, and the time frame in which the
conversation in question , arose. Specifically, I find that the conversation
transpired at a time when management was maximizing its encouragement
of Johnson to keep it informed with respect to the union activities of the
employees under his supervision . I conclude that Johnson approached
Charron on the subject of his work schedule because he entertained a genu-
ine doubt as to management 's wishes in this regard and was seeking guid-
ance from Charron. I find, based upon the undisputed testimony of Char-
ron, that the extra day of work was being made available to receiving
department employees on a rotation basis and that this routine had been in
effect for the period of several weeks. I am unable to conclude that, under
the then prevailing circumstances , Charon would have in so clumsy a man-
ner sought to deprive an active union proponent of a work opportunity and
to have thus provided grounds for charges of antiunion conduct. While I am
convinced that the topic of Abeyta' s union affinity did become the topic of
discussion between Johnson and Charron on the occasion in question I am
Continued
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
In agreement with the General Counsel, I find that Re-
spondent violated Section 8(axl) of the Act by instructing
Supervisor Johnson to observe and report the union activi-
ties of the employees under his supervision; by admonish-
ing Johnson to eat lunch and take breaks with the employ-
ees under his supervision and be attentive to their
comments regarding the Union; by repeatedly questioning
Johnson about what he had observed and learned concern-
ing employee union activities; by instructing Johnson to
keep Barrientos, a prounion employee , out of the ware-
house; and by setting in motion a chain of events which
motivated Johnson to verbally inform employees that he
was engaging in surveillance of their union activities 23 I
further find that Respondent violated Section 8(axl) of the
Act by terminating Johnson because he refused to continue
his surveillance of employee activities . In so finding, I re-
ject Respondent's contention that Johnson was terminated
solely because of his deficiencies as a supervisor; and I
make the corollary finding that Johnson's surveillance was
undertaken, and his termination accomplished, in a man-
ner and circumstance reasonably conducive to employee
awareness both of the fact of Johnson's surveillance and
the cause of his termination . I find no merit in the allega-
tion that Charron sought to deprive Abeyta of a work op-
portunity by reason of Abeyta's known affinity towards
the Union.
A threshold finding essential to the proper resolution of
the legal issues involved herein is the determination here
reached that Respondent embarked Johnson upon his
course of spying and informing with awareness , either ac-
tual or chargeable, that Johnson was not an individual gift-
ed with sophistication and unusual mental agility, but,
rather, was open and guileless and not given to sophistry.
The record developed by Respondent in the course of the
instant hearing in justification of Johnson 's termination de-
fines rather indelibly the open candor of Johnson's nature.
In settling into his supervisory position, so the record sug-
gests, Johnson gave management and supervision ample
reason to know that he lacked rapid grasp of subtleties and
he possessed a plodding, unimaginative personality. The
characteristic that comes through in the nature and charac-
ter of Johnson, as I observed him at the hearing, is an
unfeigned, overriding quality of decency and civility. In
instructing this individual to engage in surveillance of the
union activities of individuals closely associated with him
in his work , Respondent set in motion a chain of events
reasonably foreseeable in their consequences , and for
which Respondent must be held legally accountable.
In this analytical context, I find that Johnson set about
his surveillance tasks with consummate transparency. At-
tributable partially to the insistence of his superiors, in or-
der to carry out his surveillance he departed from his es-
tablished routine of taking lunch and breaks with
unable to credit the testimony of Johnson to the effect that Charron direct-
ed him to seek to find a means of modifying his planned work schedule.
zt 1 find it unnecessary to decide whether this conduct also violated Sec.
8(aX3) of the Act, as alleged by the General Counsel . The remedy for these
actions would not be materially affected by a finding of an 8 (aX3) violation.
supervisory, clerical, and office personnel, and began join-
ing the rank-and-file group. This departure from Johnson's
established practice coincided in close time-proximity to
the instructions which he had received from management
to observe and report the union activities of the employees
under his direction. In keeping with these instructions,
Johnson listened and observed but he quickly raised the
suspicions of the small rank-and-file complement by rea-
son of his goings and comings and the emergence of an
apparent intelligence pipeline to the "front office." In a
word, Johnson's surveillance activities were poorly dis-
guised and clumsily conducted. He possessed none of the
requisite characteristics of an effective informer.
To his superiors on the scene, these deficiencies were, or
should have been, reasonably foreseeable. But the emer-
gence and existence of employee suspicions with respect to
Johnson's activities did not rest solely on management sur-
mise, for Johnson was obliquely identified as an informer
by Abeyta during the course of the April 25 meeting with
management personnel. Following this incident, only cal-
lous indifference to employee suspicions, or complete
abandon, would have warranted further exposure or use of
Johnson in surveillance activities. Despite the clear import
and implication of Abeyta's observations, known to man-
agement , Johnson's instructions were not countermanded
and he continued under obligation to observe and report.
Acting out of virtual certitude as to Johnson's role, the
employees baited a trap and Johnson accommodated in a
manner which removed any lingering doubt. Thus, upon
the record before me, the finding is required that the em-
ployees possessed actual knowledge of Johnson's surveil-
lance activities with the consequential result that Respon-
dent must be held to have given rise to the chain of events
which led to this employee certitude.
Board and court precedent establish the proposition that
"a disclosure to employees that management has set in mo-
tion a chain of events to ascertain union adherence can
clearly restrain their freedom in expressing their sentiments
regarding organization." Cannon Electric Company, 151
NLRB 1465, 1468 (1965); Daniel Construction Co. v.
N.LR.B., 341 F.2d 805 (C.A. 5, 1965). The existence of
knowledge on the part of employees with respect to
Johnson's surveillance obviates the need to resort to infer-
ence, or to premise a finding of an 8(a)(1) violation upon
imputations to be derived from the totality of existing cir-
cumstances . See Elder-Beerman Stores Corp., 173 NLRB
566 (1968); GTE Lenkurt, Incorporated, 204 NLRB 921,
927 (1973). Sufficient, in my opinion, is the finding, which
I make, that Respondent not only requested Johnson to
engage in surveillance of employee union activities, but fol-
lowed up on this instruction by frequently and recurringly
interrogating Johnson concerning the information which
he had garnered , and implicitly encouraged him to contin-
ue in his activities. Thus, both in the practical and legal
sense, the effect of supervisory inquiries and interrogation
was to reinforce and reinstitute the initial surveillance in-
structions. The restraining effects, both of the instructions
and the conduct of Johnson in implementing these direc-
tions, are clear. A finding of a violation of Section 8(a)(1) is
accordingly mandated. Elder-Beerman Stores Corp., supra.
This finding is not vitiated by the absence of evidence sug-
RUSSELL STOVER CANDIES, INC.
gesting the existence of no coordinated or unlawful cam-
paign designed or calculated to undercut the renewed orga-
nizational effort. Similarly deficient as a defense to the
complaint's 8(a)(1) allegation is the evidence of record es-
tablishing that, at convened meetings of supervisors, Re-
spondent issued instructions governing employee union ac-
tivity which were fully consonant with the statute. This is
so because Johnson's conduct went beyond that permitted
by the statute and Respondent both directed and ratified
Johnson's activities.
Integral to the 8(a)(1) violations arising as a consequence
of Johnson's own conduct in carrying out his surveillance
instructions is the further unlawful conduct of Respondent,
as found, in ordering Johnson to take lunch and breaks
with employees. It is manifest that in the circumstances
pertaining in April when Johnson was commanded to fol-
low company policy with respect to breaks and lunch peri-
od associations with employees, that Johnson was being
told to listen, observe, and report to management regard-
ing employee union sentiment and affinity. In the total
circumstances this instruction was designed to inhibit em-
ployees in the exercise of their Section 7 rights and violated
Section 8 (a)(1) of the Act. Elano Corporation, 216 NLRB
691 (1975); Hawthorn Company, 166 NLRB 251 (1967),
enfd. in pertinent part, 404 F.2d 1205, 1208-09 (C.A. 10,
1969). Moreover, Respondent must also be held legally re-
sponsible for Johnson's conduct in informing employees
under his supervision that he had engaged in surveillance
activities. As previously discussed, Respondent created the
circumstances which compelled Johnson to confess his ac-
tivities and thereby played a vital role in Johnson's disclo-
sures which had the clear effect of interfering with and
restraining employees in their freedom to engage in pro-
tected concerted or union activity.
Similarly inhibitive of employee rights was Rollf's in-
struction to Johnson to keep prounion employee Barrien-
tos out of the warehouse for the avowed purpose of limit-
ing his dialogue and communication with other employees.
GTE Automatic Electric, Inc., 204 NLRB 716, 719 (1973).
The companion element to the violations of Section
8(a)(1) of the Act which I find were perpetrated by
Respondent's conduct rests, as found, upon a determina-
tion that Johnson's discharge resulted from his decision,
conveyed to management, that he would no longer serve in
a surveillance capacity. The just cause defense which Re-
spondent interposes must be found, upon the present rec-
ord, to be pretextual. As is frequently the situation in cases
involving unlawful terminations, the record discloses am-
ple basis for Respondent lawfully to have divested itself of
Johnson's services. The issue here is not whether good
cause existed which would have warranted the termination
of Johnson, but whether these lawful grounds were the
only considerations upon which Respondent acted. It is
well established under the Act that an employer may termi-
nate an employee for any reason at all so long as that
reason does not relate to his involvement in union or pro-
tected concerted activities. On the instant record, I am
compelled to find that discriminating considerations gave
rise to Johnson's termination. This termination, as noted,
transpired in a circumstance wherein employees were
aware that Johnson had been engaging in those surveil-
601
lance activities and wherein employees would readily infer
that the cessation of Johnson' s willingness to serve as an
informer motivated management in effectuating his termi-
nation. Notwithstanding the ample evidence revealing
Johnson's shortcomings as a supervisor, the finding is
nonetheless required that these deficiencies were not the
moving cause of his separation which occurred in an abrupt
manner and prior to the expiration of a time period which
management had granted to Johnson for the purpose of
improving his skills and overcoming his work-related short-
comings . Significant in this regard is the occurrence of a
meeting I day prior to his termination which had as its
avowed purpose both a constructive and an instructive ap-
praisal objective. It is noteworthy in this regard that the
memorandum memorializing the meeting contains the pas-
sage:
I informed Eric that during the next two-week period
that I hoped he would make an extra effort to make an
improvement and at the end of this period of time (in
approximately two weeks) that Ron [Polage] and I
[Setzer] would again meet with him and review his
progress and if at that time if he had not made a sig-
nificant improvement in all the areas that we would
probably have to ask for his resignation.
The salient and significant events which had transpired be-
tween the time of the April 29 meeting and his termination
on April 30 was a conference between his attorney wherein
Johnson reached the decision to cease his surveillance ac-
tivities; and followup conversation on the evening of April
29 and the morning of April 30 wherein Johnson conveyed
his decision to members of management. Obviously, noth-
ing had transpired in the interim period which would have
given justification to management for separating Johnson
based on the qualitative character of his work perfor-
mance . What did motivate management, I conclude and
find, was Johnson's decision to cease his surveillance cou-
pled with the related and resultant resentment which man-
agement vented against Johnson upon learning that John-
son had made his surveillance activities a topic of
conversation with individuals not in any manner associat-
ed with the Company. Unconvincing is the contention
which Respondent makes that Johnson's statements, com-
ments, or observations during the course of his separate
telephone conversations with Polage and Setzer on the eve-
ning of April 29 constituted insubordination of a character
or gradation reasonably justifying his abrupt termination.
Neither do I find that his statements or conduct during the
meetings on the morning of April 30 accorded reasonable
justification.
In sum, I find that Johnson was not terminated because
of his deficiencies as a supervisor. Rather I find that his
refusal to continue his surveillance activities was the mov-
ing and proximate cause of his termination , and his "indis-
cretion" on disclosing his surveillance activities to third
parties was an additional adverse consideration influencing
management. I further find that the totality of the circum-
stances which existed at the plant involving the supervisory
and rank-and-file complement of the numerically small re-
ceiving department was such as to reasonably convey to
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the rank-and-file employees in that department the knowl-
edge , awareness, and certitude that Johnson 's refusal to
continue his surveillance activities was an integral and
causative factor in his termination . Elder-Beerman Stores
Corp., supra. In this circumstance , it is not decisionally ma-
terial that only Johnson among Respondent 's supervisory
or managerial hierarchy supplied direct information to re-
ceiving department employees concerning the fact and
avowed reason for Johnson 's separation.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON
COMMERCE
The activities of Respondent set forth in section III,
above , occurring in connection with the operations of Re-
spondent described in section I, above , have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States , and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a)(l) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent unlawfully terminated
the employment of Henry R. Johnson, a supervisor, in vio-
lation of Section 8(aXl) of the Act, I shall order that Re-
spondent offer Johnson immediate and full reinstatement
to his former or substantially equivalent position of em-
ployment, without prejudice to his seniority or rights and
privileges, and make him whole for any loss of earnings he
may have suffered by reason of his termination . Backpay
shall be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), together with
interest in accordance with the policy of the Board as set
forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Upon the foregoing findings of fact, and upon the entire
record in this case , I make the following:
CONCLUSIONS OF LAW
1. Russell Stover Candies, Inc., is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Bakery and Confectionery Workers International
Union of America, Local Union No. 72, AFL-CIO-CLC,
is a labor organization within the meaning of Section 2(5)
of the Act.
3. By terminating the employment of Henry R. Johnson,
thereby interfering with the rights of employees to engage
in union and other protected , concerted activity, Respon-
dent engaged in and is engaging in unfair labor practices
within the meaning of Section 8(aXl) of the Act.
4. By instructing Henry R. Johnson to observe and re-
port the union activities of employees under his supervi-
sion; by admonishing Johnson to eat lunch and take
breaks with the employees under his supervision and to be
attentive during those periods of time to employee com-
ments regarding the Union; by repeatedly questioning
Johnson about what he had observed and learned concern-
ing employee union activities; by instructing Johnson to
keep a prounion employee out of the warehouse; and by
setting in motion a chain of events which motivated John-
son to verbally inform employees that he was engaging in
surveillance of their union activities , Respondent engaged
in conduct in violation of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. Except to the extent set forth above, Respondent en-
gaged in no other conduct in violation of the Act.
Upon the foregoing findings of fact , conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER24
Respondent, Russell Stover Candies , Inc., Montrose,
Colorado, its officers, agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Instructing its supervisors to observe and report the
union activities of employees under their supervision; ad-
monishing supervisors to eat lunch and take breaks with
employees under their supervision and to be attentive dur-
ing those periods of time to the comments of employees
regarding their union activities , repeatedly questioning su-
pervisors about what they had observed and learned con-
cerning employee union activities ; instructing its supervi-
sors to keep prounion employees out of work areas and
setting in motion a chain of events which would reasonably
motivate a supervisor to verbally inform employees that he
was engaging in surveillance of the union activities; or in
any other unlawful manner discouraging membership in
Bakery and Confectionery Workers International Union of
America, Local Union No. 72, AFL-CIO-CLC, or any
other labor organization of their choice.
(b) Discharging any supervisor because he failed or re-
fused to engage in surveillance of the union activities of
employees, or because he failed or refused in any other
manner to interfere with , restrain , or coerce employees in
the exercise of their rights guaranteed in Section 7 of the
Act.
(c) In any unlawful manner interfering with , restraining,
or coercing employees in the exercise of their rights as
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Henry R. Johnson immediate and full rein-
statement to his former or substantially equivalent position
of employment, and make him whole for any loss of wages
24 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, 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.
RUSSELL STOVER CANDIES, INC.
which he may have suffered by reason of the discrimina-
tion against him, in the manner set forth above in the sec-
tion 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 analysis the amount of backpay due under the
terms of this Order.
(c) Post at its Montrose, Colorado, plant or facility cop-
ies of the attached Notice marked, "Appendix." 25 Copies
25 In the event the Board 's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
603
of said notice provided by the Regional Director for Re-
gion 27, after being duly signed by a representative of Re-
spondent, shall be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60 consec-
utive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 27, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
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."