Agrigeneral Co.

National Labor Relations Board - Board Decisions

Mar 15, 1996

320 N.L.R.B. 943 (N.L.R.B. 1996)

943
320 NLRB No. 112
AGRIGENERAL CO., L.P.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the judge’s findings.
1 All dates are in 1994 unless otherwise indicated.
2 The four employees were Levetta Henson, Ellen Thompson, Bar-
bara Goodpaster, and Kenneth Holland. A fifth employee, Clyde
Stiltner, was discharged at the same time and under the same cir-
cumstances. However, he opted not to be a party to this case and
is not named in the complaint as an alleged discriminatee.
Agrigeneral Company, L.P. and Levetta Henson.
Case 9–CA–31678
March 15, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On November 9, 1995, Administrative Law Judge
Robert T. Wallace issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Agrigeneral Company,
L.P., Kenova, West Virginia, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Virone Alex Cravanas, Esq., for the General Counsel.
Fred B. Westfall Jr., Esq. (Huddleston, Bolen, Beatty, Porter
& Cohen), of Huntington, West Virginia, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge. This
case was tried in Huntington, West Virginia, on October 25
and 26, 1994. The charge was filed on March 14, 1994,1 the
complaint issued on April 26, and briefs were submitted by
the General Counsel and Respondent on December 5.
At issue is whether Respondent gave its employees a wage
increase in violation of Section 8(a)(1) of the National Labor
Relations Act and whether in discharging four employees it
violated Section 8(a)(3).2
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, operates a facility in Kenova,
West Virginia, where it sorts and packages eggs. It annually
ships eggs valued in excess of $50,000 from there directly
to points outside the State of West Virginia. Respondent ad-
mits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act
and that Teamsters Local 505, affiliated with the Inter-
national Brotherhood of Teamsters, AFL–CIO (the Union) is
a labor organization within the meaning of Section 2(5) of
the Act.
II. BACKGROUND
On November 4, 1992, a representation election was held
among Respondent’s production and maintenance employees
following an organizing campaign by the Union. The vote
count was 29 to 12 against the Union. During the campaign
Henson and Thompson both wore union T-shirts as did a
number of other employees including Wanda Gibson and
maintenance man Stiltner. Goodpaster supported unionization
and attended at least one union meeting.
In January 1994, Respondent eliminated its night shift. By
February 21 it had 15 hourly employees engaged in process-
ing eggs, including the 4 alleged discriminatees. Processors
often worked 10 hours a day and sometimes on Saturdays
sorting and packing at least 54,000 eggs an hour. The eggs
moved in 18 lanes on conveyor belts through a series of
sprayers, a ‘‘candling booth where 2 employees removed
cracked or stained eggs, a weighing station where they were
sorted by size and finally to a station where 3 employees
packed the eggs in cases each holding 360 eggs. Packers
were expected to weed out misgraded or defective eggs
missed by candlers. An USDA inspector waited at the end
of the line and typically inspected 1 out of 50 cases. They
would ‘‘retain’’ for reprocessing cases containing misgraded-
graded, cracked, or stained eggs.
As of February 23, Henson had worked for Respondent for
3-1/2 years primarily as a packer; and Goodpaster and
Thompson and had been employees for over 6 years as a
candler and an all-purpose worker, respectively. Maintenance
man Stiltner had more than 5 years and Holland, although
employed by Respondent for less than 6 months, had been
retained when all other night-shift employees were laid off.
He was given various jobs on the day shift but worked pri-
marily as a packer.
III. ALLEGED UNFAIR LABOR PRACTICES
While riding to the plant together on Monday, February
21, Holland and Henson discussed working conditions and
agreed that union representation was needed. Later in the day
Holland talked to another employee (Donna Yost) about or-
ganizing and, at her suggestion, he called a representative of
the Union after work and arranged to get brochures and a
supply of authorization cards on the following day.
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 All of the statements and actions thus far attributed to manage-
ment officials are not disputed.
4 I decline to credit Respondent’s claim that the program and as
well as all written rules of conduct for employees were inoperative
after a corporate takeover in November 1993, particularly since no
reason for revocation is given and employees admittedly were never
informed.
5 Plant Manager Bellomy, who spent most of her time in the office
(80 percent), claims she had occasion (at unspecified times) to orally
warn some of the dischargees about derelictions. She did not give
an example of any substantial failure. Indeed I find bizarre one cited
deficiency. She claims she knew candler Goodpaster threw away
good as well as bad eggs because Bellomy fished into the discard
barrel and retrieved a good egg.
Sometime during the workday on February 23, Henson
asked employee Charlie Wallace to sign an authorization
card and at the same time admonished him not to sign and
then back out as he had done in the prior campaign; and
after work she solicited Thompson and obtained her signa-
ture on a card. Holland told Yost he had obtained a supply
of cards; and he tested the sentiments of another employee
(Pete Rigsby) by getting him to talk about the prior unioniza-
tion drive.
At noon nearly all processing room employees were
present in the lunchroom. Continuing to test sentiments, Hol-
land spoke to the group stating: ‘‘I can’t believe the Union
didn’t get in 1992 . . . you should have been smarter.’’ A
discussion ensued (sometimes loud and accompanied by
laughter) during the course of which Goodpaster spoke up
saying, ‘‘I wish whoever voted the Union down had my
[sore] feet’’; and Stiltner volunteered that her union member
sons were making more than she ($8 an hour vs. $5). Driver
Philip ‘‘Tiger’’ White opined: ‘‘Keep talking and you’ll find
out who the rats [‘snitchers’] were.’’ The dialogue ended
after Holland said: ‘‘Well I’ve got some union cards here in
my lunchbox,’’ laughed, and ostentatiously opened it produc-
ing a sandwich. Throughout the breaktime Plant Manager
Norma Jean Bellomy was seated at a receptionist desk just
around the corner from the open door of the lunchroom.
As Holland went out the door at the end of the workday,
BELLOMY’s son William, a dock employee who had not
been present in the lunchroom, asked him if anyone was
starting another union organizing drive. When Holland an-
swered, ‘‘No,’’ William rejoined: ‘‘They start that bullshit
every time longer hours are required . . . you ain’t going to
tell be the truth either way.’’
That evening Holland left three authorization cards at the
union office. One was signed by him and the others by
Henson and Thompson.
At the end of the workday on Friday, February 25,
Thompson, Henson, Holland, and Stiltner were told, succes-
sively by Foreman Osborne, to report to the office. When
Henson asked, ‘‘Is this over that shit that was said in the
breakroom the other day?’’ Osborne replied: ‘‘I don’t know,
but you’re probably right.’’
General Manager Bruce Burrows and Bellomy were wait-
ing in the office. Burrows told them to turn in their uniforms
and access keys and, without giving any reason, stated:
‘‘Your services are no longer required.’’ As they left,
Bellomy handed them a slip stating they were discharged for
‘‘lack of work.’’ As Osborne escorted them off the premises,
Holland asked: ‘‘Why are they getting rid of us?’’ According
to credited testimony of Holland, Osborne made no oral re-
sponse, ‘‘[He] just hung his head and wouldn’t give us no
reason.’’
Goodpaster was out sick on February 25. When she re-
ported to work at 6:30 a.m., on Monday, February 28, she
was called to the office where Bellomy greeted her stating:
‘‘Give me your card, your services are no longer needed.’’
She did not reply to either of Goodpaster’s two questions:
‘‘Norma, what have I done? . . . is it about that union
shit?’’ Instead she twice asked Goodpaster to leave. Osborne
put his hands on her shoulders and showed her the way out.
Like the others, Goodpaster received a slip stating she ‘‘is
no longer working due to lack of work.’’ On arriving at her
home, she called Osborne and asked: ‘‘[W]as it over that
union shit?’’ Osborne told her he could not say why she was
fired.
Later in the day President Marcus Pohlman arrived at the
plant from company headquarters in Croton, Ohio, and an-
nounced that all hourly workers would get a 35-cent hourly
wage increase effective immediately and at Christmastime
would be paid for unused sick leave. Employees had been
given no reason to expect upward wage adjustments.
Shortly after February 28, Bellomy, in the course of a con-
versation with USDA inspector Janet Hammond, told her
‘‘There are some people that are no longer working here, the
least you know about it the better off you will be.’’3 And
in contesting the employees’ claims for unemployment com-
pensation, the Company told state authorities that they were
discharged for performing poorly on the job.
Analysis
Respondent contends that the discharges and wage in-
creases had nothing to do with any protected union activity
and, indeed, that it had no knowledge of any such activity.
I am persuaded otherwise.
I find that management officials were well aware of the
‘‘union talk’’ occurring in the lunchroom on February 23,
and this wholly apart from a permissible inference under the
‘‘small plant doctrine’’ cited in Health Care Logistics, 273
NLRB 822 (1984). Here, more compelling indicias of knowl-
edge are Plant Manager Bellomy’s extended presence just
outside the lunchroom door while the talk continued and her
son’s apparent awareness of a possible incipient union drive
evinced in his questioning of Holland a few hours later.
Also, I find pretextual Respondent’s claim that the em-
ployees were discharged for substandard work. That claim is
at odds with the written reason (‘‘lack of work’’) given them
contemporaneously with their termination. It is further belied
by the fact that the employees were not contemporaneously
told why they were being terminated, were never given a
written warning under Respondent’s progressive discipline
program,4 and their immediate supervisor (Foreman Osborne)
apparently did not tell them of any specific deficiencies.5 Its
attempt to bolster the poor performance claim by data show-
ing a sharp decline in USDA required case reruns after Feb-
ruary 28 is not persuasive. The reports relied on were highly
selective and therefore do not adequately portray representa-
tive ‘‘before and after’’ periods and, in any event, the data
fails to establish that the discharged employees were respon-
sible.
In these circumstances, and in light of the close proximity
of the discharges and surprise pay raise to the protected ac-
945AGRIGENERAL CO., L.P.
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
tivity, I conclude that the real reason for both actions was
management’s acute concern that Holland, a young, bright,
relatively new employee who admittedly had performed well
on the night shift and 1 month earlier had been the sole
retainee from that shift, harbored prounion sentiments. Aware
that with a substantially reduced work force it might well
lose a new election, they decided to abort that possibility by
firing Holland and four other employees (including Stiltner)
who had openly supported the Union in 1992. Through the
discharges other employees were made aware that union sup-
port entailed penalties (‘‘sticks’’), and the pay raises patently
were intended to show them that benefits (‘‘carrots’’) were
forthcoming without union involvement.
CONCLUSION OF LAW
Respondent violated Section 8(a)(1) and (3) of the Act in
the particulars and for the reasons stated above, and its viola-
tions have affected, and unless permanently enjoined will
continue to affect, commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Among other things, it must offer the unlawfully dis-
charged employees reinstatement and make them whole for
any loss of earnings and other benefits, computed on a quar-
terly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
Disposition
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Agrigeneral Company, L.P., Kenova,
West Virginia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against em-
ployees for supporting Chauffeurs, Teamsters, Warehouse-
men and Helpers, Local Union 505 or any other union.
(b) Granting wage increases or other benefits in order to
undermine employee support for Chauffeurs, Teamsters,
Warehousemen and Helpers, Local Union 505 or any other
union.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Levetta Henson, Ellen Thompson, Barbara
Goodpaster, and Kenneth Holland immediate and full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges previously
enjoyed, and make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy section
of this decision.
(b) Remove from all files any reference to their unlawful
discharges and notify them in writing that this has been done
and that the discharges will not be used against them in any
way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Kenova, West Virginia facility, copies of the
attached notice marked ‘‘Appendix.’’7 Copies of the notice,
on forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting Chauffeurs, Teamsters, Ware-
housemen and Helpers, Local Union 505 or any other union.
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT grant wage increases or other benefits in
order to undermine your support for Chauffeurs, Teamsters,
Warehousemen and Helpers, Local Union 505 or any other
union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Levetta Henson, Ellen Thompson, Barbara
Goodpaster, and Kenneth Holland immediate and full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges previously
enjoyed and WE WILL make them whole for any loss of earn-
ings and other benefits resulting from their discharge, less
any net interim earnings, plus interest.
WE WILL notify them that we have removed from our files
any reference to their discharge and that the discharge will
not be used against them in any way.
AGRIGENERAL COMPANY, L.P.