Allied Foods, Inc.

National Labor Relations Board - Board Decisions

Dec 4, 1970

186 N.L.R.B. 1094 (N.L.R.B. 1970)

1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allied Foods , Inc. and General Teamsters Local Union
No. 528, affiliated with the International Brother-
hood of Teamsters , Chauffeurs , Warehousemen &
Helpers of America. Cases 10-CA-8118 and
10-CA-8169
December 4, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On July 28, 1970, Trial Examiner John G. Gregg
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that Respondent had not engaged in
certain other unfair labor practices and recommended
that such allegations be dismissed. Thereafter, the
Charging Party filed exceptions to the Trial Examin-
er's Decision, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommen-
ded Order of the Trial Examiner and hereby orders
that the Respondent, Allied Foods, Inc., Atlanta,
Georgia, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.
I The findings and conclusions of the Trial Examiner are based in part
upon his credibility determinations to which Respondent excepted After a
careful review of the record herein, we conclude that the Trial Examiner's
credibility resolutions are not contrary to the clear preponderance of all the
relevant evidence and, accordingly, find no basis for disturbing them
Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A
3)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN G. GREGG, Trial Examiner: This is an action
charging the Respondent with violations of Section 8(a)(1)
and (3) of the National Labor Relations Act, herein
referred to as the Act. The complaint in Case 10-CA-8118
was issued March 5, 1970, based on a charge filed with the
Board by the Charging Party herein, on January 5, 1970.
Following this, and a subsequent charge filed on February
13, 1970, by the Charging Party in Case 10-CA-8169, the
Regional Director for Region 10 issued Order Consolidat-
ing Cases, Complaint and Notice of Hearing on March 24,
1970.
The questions raised by the consolidated complaints and
by the Respondent's duly filed answers denying any
violations, are whether the Respondent, in violation of
Section 8(a)(1) and (3) of the Act, discharged employees
Fannie M. Harris and William R. Towe because they
engaged in union or other protected concerted activity and
whether the Respondent interfered with, restrained, and
coerced its employees in violation of Section 8(a)(1), by
threatening to discharge employees if they joined or
engaged in union activity and by instructing a supervisor to
find a pretext to discharge Employee Fannie Harris.
The trial was conducted on April 28 and 29, 1970, at
Atlanta, Georgia. Briefs were filed by counsel for the
Respondent and counsel for the General Counsel
Based on the entire record of the case, my observation of
the witnesses as they testified, and after due consideration
of the arguments and briefs herein I make the following:
FINDINGS OF FACT
I. JURISDICTION
Allied Foods, Inc., hereinafter referred to as the
Respondent, is and has been at all times material herein a
Georgia corporation with its principal office and place of
business at Atlanta, Georgia, where it is engaged in the
manufacture and sale of food and products. The Respon-
dent during the past calendar year, which period is
representative of all times material herein, sold and shipped
finished products valued in excess of $50,000 directly to
customers located outside the State of Georgia.
The Respondent is and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
General Teamsters Local Union No. 528, affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, hereinafter referred
to as the Union, is and has been at all times material herein
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The consolidated complaints herein involve allegations
that the Respondent, by its supervisor and agent, Charles
186 NLRB No. 150
ALLIED FOODS, INC 1095
Ross, on or about October 27 and December 1, 1969,
threatened employees of the Respondent with discharge if
they joined or engaged in activities on behalf of the Union;
that the Respondent, by its supervisor and agent, General
Manager Curtis Polley, Jr, on or about October 27, 1969,
instructed a supervisor to find a pretext to discharge its
employee, Fannie M. Harris because of her activities on
behalf of the Union all in violation of Section 8(a)(1) of the
Act; and that the Respondent, on or about December 11,
1969, discharged and thereafter failed and refused to
reinstate its employee, Fannie M. Harris, and on or about
January 14, 1970, discharged and thereafter failed and
refused to reinstate its employee, William R. Towe, because
of their membership in and activities on behalf of the
Union and because they engaged in concerted activities
with other employees for the purposes of collective
bargaining and other mutual aid and protection and that by
the foregoing acts the Respondent violated Section 8(a)(3)
and (1) of the Act.
The Respondent in its duly filed answers denies the
commission of any unfair labor practices and by way of
defense , admitted that it discharged William R. Towe on
January 14, 1970, in part because of his activities on behalf
of the Union but that the said Towe was a supervisor at the
time of his union activity and at the time of his discharge
and that therefore such discharge was not a violation of the
Act. The Respondent was permitted to amend its answer at
the hearing to include the further defense that the said
William R. Towe after his discharge, rendered himself unfit
for further employment with the Respondent by physically
attacking and beating on three occasions the person who
replaced him as a supervisor in the Respondent's employ in
an effort to cause such supervisor to stop or slow down
production in the department in which the said William R.
Towe formerly supervised Additionally, in its answer the
Respondent denies that Charles W. Ross was a supervisor
within the meaning of Section 2(11) of the Act. The
Respondent admits that it discharged and thereafter failed
and refused to reinstate its employee, Fannie M. Harris, on
or about December 11, 1969, but denies that such discharge
was unlawful.
supposed to know anything about it, but was to give it to
Harris and "tell her she knows what it's all about." Ross
stated that Polley told him that it was because of Harris'
union activities, trying to get another union into the plant.
Ross testified that he gave the pink slip to Harass as
instructed and that he told Harris that Polley had told him
that Oxman wanted to get rid of Harris because she was
trying ILO get another union in the plant. Ross also told
Harris that they were going to get anything that they could
on her before the first of the year and let her go. Ross
testified that he then told Harris that if she told Polley of
the conversation Ross would deny it and say it was a lie.
Ross testified that at the time Polley gave him the pink slip
which was signed by Polley, the practice in the plant was
that each department head or supervisor would take care of
his own personnel.
Fannie Harris testified that she was employed by the
Respondent from September 16, 1968, to December 11,
1969, as quality control inspector and that her supervisor
was Charles Ross, Jr. Mrs. Harris testified that in
September 1969, while she was in the process of passing out
Teamster cards to employees, Ross came up to her and told
her that if Polley knew about it he would fire her. Harris
testified further that on October 27, 1969, Charles Ross
gave her a pink slip reprimanding her for allowing a seamer
to run without the proper code on her shift and warning her
that if it occurred again she would be terminated. This
reprimand was signed by C. R. Polley, Jr. According to
Harris, Ross at this time told her that Polley had instructed
him not to say anything to Harris about it, but that Ross
had told her that "Buster" did not want Teamsters in his
plant and that he would not have it and that eventually he
would fire her for it According to Harris, Ross told her that
she was being given the pink slip because of union activity.
Subsequently, on cross-examination Mrs. Harris stated
that after receiving the pink warning slip from Ross she
later informed Polley that he had the wrong inspector.
Harris stated that the Respondent never did inform her that
the pink slip was withdrawn.
In her testimony, Nancy Graham who was secretary to
A. The Alleged Interference, Restraint, and Curtis Polley, Jr., during the period in question, and who
Coercion
Charles W. Ross, Jr., testified that he was employed by
the Respondent from November 5, 1967, to December 1,
1969, as quality control supervisor. Ross stated that in
September 1969, while he was Fannie Harris' supervisor, he
told her while in the plant that "... she'd better watch how
she was handing out these teamster cards, organization
cards. That if she was caught with them by Bud Polley, or
any other foreman and it was turned into the head office,
that she could be fired over it." According to Ross, the next
time he discussed union activity with Harris was in October
in the office of Curtis Polley, Jr. Earlier that day Polley had
advised Ross in substance that the word had come from
Buster Oxman to try to get anything on Harris before the
first of the year so that she could be discharged. At that
time Polley handed Ross a pink slip reprimand for Harris,
signed by Polley, and asked Ross to give it to Harris.
According to Ross, Polley told Ross that he, Ross, was not
worked in the same office at an adjoining desk to Polley s,
stated that for her part she did not hear any conversation
between Polley and Ross during the period in question
concerning a desire by Buster Oxman to get rid of Fannie
Harris In addition Graham testified that she saw Polley
give a warning slip to Charles Ross pertaining to Fannie
Harris on several occasions and that on none of these
occasions did she hear Polley tell Ross not to read a
warning slip pertaining to Fannie Harris.
In his testimony Curtis R. Polley, Jr., denied ever having
a discussion with Ross in which he talked about discharging
Fannie Harris in relation to her union activity. Concerning
Ross' testimony, Curtis Polley, Jr., stated that he did not
mention the Union or Fannie Harris' union activity in his
discussion with Ross but that he had asked Ross if he had
given the pink slip to Harris, "not to say anything about it
but give it back before he did give it to her, but that Ross
said he had already given the pink slip to Harris." Polley
denied ever telling Ross about receiving instructions from
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Buster Oxman to get something on Harris as the basis for
discharging her.
Based on my observation of the demeanor of the
witnesses as they testified I credit the testimony of Charles
Ross and Fannie Harris and I do not accept the denial
advanced by Curtis Polley, Jr., nor do I credit the
testimony of Nancy Graham whose testimony regarding
her omnipresence in the office of Curtis Polley, Jr.,
strained my credulity
As for the status of Charles W. Ross, Jr., on the basis of
the testimony of record, I am convinced and I find that
Ross was a supervisor of the Respondent at the times
material herein and that his statements made to Harris were
made while he functioned in the capacity of a supervisor.
There is ample testimony of record by Ross, whom I credit,
to establish the fact that he exercised some of the functions
described in Section 2(11) of the Act as indicia of
supervisory capacity or authority. He was clothed with the
title of quality control supervisor, supervised six employees
encompassing two on each shift, had authority to grant and
exercised authority to grant them time off, had authority
and exercised authority to reprimand through issuance of
pink slips which he signed, such as reprimands for
absenteeism and tardiness. He had authority and exercised
authority to effectively recommend the hiring of personnel
in his department. After he would interview applicants
brought to him by the personnel director he would write on
the application the pay to be received, shift bonus, and
indicate the shift to be worked. He had and exercised
authority to change the hours of shift employment and
when timecards were mispunched, exercised authority to
change the card, repunch it, and initial it. There was ample
credited testimony of record to establish the fact that Ross
was a supervisor within the meaning of Section 2(11) of the
Act at the times material herein. Accordingly, I find that
the Respondent, through its supervisor, Ross, on or about
October 27, threatened employees with discharge if they
joined or engaged in activities on behalf of the Union, and
by its supervisor, Curtis Polley, Jr , on or about October 27,
instructed a supervisor to find a pretext to discharge an
employee because of union activities, the foregoing acts
constituting interference, restraint, and coercion by the
Respondent with the activities of its employees protected
by the Act, in violation of Section 8(a)(1) of the Act as
charged in the complaint.
B The Discharge of Fannie Harris
The complaint alleges that the Respondent on or about
December 11, 1969, discharged and thereafter failed and
refused to reinstate its employee, Fannie M. Harris,
because of her membership in, activities on behalf of, the
Union and because she engaged in concerted activities with
other employees for the purposes of collective bargaining
and other mutual aid and protection.
Harris testified that she worked at the Respondent's plant
from September 16, 1968, to December 11, 1969, as a
quality control inspector under the supervision of Charles
Ross, Jr. Her duties consisted of visual inspection and
inspection with instruments, the checking of cans with
instruments, plus tending and operating the machines.
Harris stated that six cans would be taken off the line at one
time while the line was running. These cans were empty and
had one end only. The testing was done in a laboratory in
the area of the line in an enclosed room. Harris testified
that it would take an hour to an hour and 15 minutes to
inspect the six cans, and that the lines would manufacture
from 25 to 28,000 cans per hour. The lines continued to run
while Harris inspected the cans.
Harris testified that she was discharged on December 11,
and she was under the impression that she had been
discharged by Bud Polley. Harris stated that when she
began her shift at 4 o'clock she found her punchcard
missing and at that time she went to Calvin Christopher
and inquired about it. According to Harris, Calvin
Christopher, the quality control supervisor, told her that she
had been fired. When Harris asked why, Christopher told
her that he had a slip of paper noting that Harris had
allowed 56,000 or more cans to go out on November 17,
with open seams. Harris stated that one of her functions
was to check for open seams, that she inspected cans
everyday and that she had been inspecting on November
17, the date in question. She stated that if she had found
cans with bad seams that day, she would have written it
down on the inspection report but she did not. Harris stated
that cans were being produced that day on all three shifts
and that there are inspectors on each shift. According to
Harris, Thelma Jean Odom and Dorothy Smith were
inspectors on the first shift, and on the third shift Betty
Turner did the inspecting. According to Harris, an
employee by the name of Casey did the visual inspecting in
the dog food department, checking the cans in the
laboratory the same as Harris did. According to Harris, the
paper given to her by Christopher indicated that the cans
which presumably had bad seams contained a product
called Twin Pet, a dog food
Harris testified that after the discussion with Christopher
and the receipt of the paper noting the bad cans, she then
talked to Walter Pruitt, manager of the can plant, and
according to Harris, she told him that she did not believe
that many cans had gone out and Pruitt told her that the
cans may have gone out after inspection, that some empty
cans had been sent to the Athens plant at Athens, Georgia,
to be filled with dog food. According to Harris, she was
never shown any of the bad cans.
Concerning her union activity, Mrs. Harris testified that
while she was working at the plant, District 50 was the
Union in the plant and she was secretary of that Local.
Harris testified that sometime in August and September
1969, she became active in trying to get the Teamsters
Union into the plant, that she contacted the Alliance for
Labor Action but that except for a few meetings nothing
materialized because they were waiting for the contract
with District 50 of the United Mine Workers to terminate.
According to Harris, Chuck Ross, her supervisor, spoke
to her as early as September in the lab. Harris stated that
while she was passing out Teamster cards to employees and
was in the process of handing one to Thelma Jean Odom,
Chuck Ross came up and told her that if Curt Polley knew
it he would fire her. On several more occasions, according
to Harris, Ross made comments about her union activity.
As more fully discussed above, Ross also, on October 27,
gave her a warning notice signed by Curt Polley and
ALLIED FOODS, INC, 1097
indicated to her that it was given to her because of her
union activity. Harris testified that she had received other
warning notices including one for lateness.
According to Harris, it would take about 2 hours for the
line to run 56,000 empty cans. These cans would go
automatically into the pet food department where they
would be filled with pet food and sealed. At times these
cans are detained before they are run into the pet food
department. They might be assembled as empty cans for
shipment to another plant or for temporary storage.
According to Harris, on the lid of each can is an impressed
code number showing the date when the cans were run and
Harris testified that while she inspected all cans for open
cans, the pet food inspector also inspected the cans for open
cans. According to Harris, after Christopher handed her the
paper and told her she was discharged, she asked
Christopher to see the cans At this point Pruitt came in and
Harris talked with Pruitt It was at this point that Pruitt told
Harris that it was possible that the cans had been run in
Athens, but he did not know, that he had not seen the cans
and he did not know anything about it. In connection with
her union duties, Harris testified that as secretary she also
handled grievances. Harris also testified that she was not
qualified to repair operating machines, that this was done
by the mechanic or foreman
Harris testified that her inspection of cans in the lab took
place normally in the first part of the shift, but that the
remainder of her duties kept her in the plant where the cans
are being run. The laboratory is an enclosed room
separated from the running lines or from the machines
running off the cans Based on my observation of the
demeanor of the witness, Harris, as she testified, I was
impressed by her sincerity and straightforward testimony
and I credit her testimony
Calvin Christopher testified that he was foreman of
quality control for the Respondent and had held that
position since December 1, 1969. Prior to that time he had
been on the can line as a can line mechanic. Christopher
testified that Harris worked under his supervision. In his
testimony Christopher stated that he discharged Harris.
Christopher stated that Amar, the warehouse manager, had
brought to his attention the fact that some bad products
were in the warehouse. Christopher then took some cans up
to Bud Polley and showed him the cans, noting that the
cans the product was packed in were run on the shift that
Fannie Harris was working on According to Christopher
he had gone to the warehouse to examine the product,
opened a couple of cartons and found swells and leaks. He
estimated the number of bad cans as a good hours' run,
which would be about 45,000 cans. Christopher stated that
he personally inspected about four or five cases containing
48 cans to a case and found that some were leakers and
some were good. Christopher described a leaker as a can in
which the product is oozing through the seam or at the lap.
According to Christopher, there were also some swells
which occurs when the two ends swell up due to the fact
there is a leakage in the can itself. According to
Christopher, when he went to Bud Polley and showed him
the cans he told Polley that if it was the inspector's fault, he
was going to have to discharge her. According to
Christopher, Polley then said, "that's your department,
that's what you're here for. If you can't run it I don't need
you" Christopher testified that the cans in question
contained a code on the top end and that he determined the
cans had been run on Fannie Harris' shift by the code.
Christopher provided the following significant testimony:
Q. Do you remember now the exact date on which
the cans were run according to the code on them.
A, Off hand I do not. I made no note of that
whatsoever
Christopher stated that he then checked the seamer reports
for the date in question and found a report which had been
made out by Fannie Harris. After his discussion with Bud
Polley, Christopher pulled Fannie Harris' card from the
time rack. Christopher testified that the only entry he
recalled on the paper that he had given to Harris to copy
was the number of cans, 57,600 which he described as an
hour and a half, possibly 2 hours', run According to
Christopher, this was the number of cans found defective in
the warehouse With respect to the notation of the date,
November 17, 1969, on Harris' paper, Christopher stated
that that entry was not on the paper he handed to Harris to
look at Nor was the name E. R. Casey on Christopher's
note, nor was the entry I2000 Twin Pet on the Christopher
paper The only item that Christopher could recall on his
paper which was on Harris' paper was the notation of
57,600 cans. According to Christopher, the rest of the
information was written by Harris.
Christopher testified that he personally told Harris that
she was fired, "I said she was being discharged for letting
bad cans go through." According to Christopher, he felt
that Harris had let the bad cans run for an hour or 2 hours,
evidently without checking the cans. Christopher stated
that union membership or sympathies on the part of Fannie
Harris had nothing to do with her discharge.
On cross-examination Christopher stated that the time
the cans presumably were run in November, he was not in
quality control but was a can line mechanic. Christopher
stated that as a can line mechanic he could sight cans that
were coming out bad and that machinery was also available
which would do so. He stated that in addition to the quality
control inspectors, the mechanics also observed or watched
for cans coming off the line. Christopher stated that Casey
at that time was in quality control and could have possibly
been on that shift. On cross-examination Christopher stated
that he could not make a sworn statement as to the exact
date the cans were run, but he would say it was near the
date of November 17, 1969. The way in which Christopher
estimated this, according to his testimony, was that it takes
anywhere from a week to 10 days to detect the spoilage in a
can, unless the seam is wide open like a door. Christopher
also testified that swells are sometimes caused by the
product swelling because of oversealing or overcooking. He
stated that if the food contained in the can was improperly
prepared it possibly could cause a chemical reaction. He
testified that no test was run to determine whether or not
the food product in the cans in question might have been
organically unsound although this could have been a reason
for the bad cans Christopher testified that when he
checked Fannie Harris' seamer report for that date, it
showed that there was nothing wrong with the cans, that
they met specifications. He then testified that if there was
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nothing wrong with the cans, it would be possible that those
cans had contained food which might have been prepared
incorrectly. He stated that it would also be possible that the
testing equipment or the tester was not working properly. In
both of these possibilities the employee or the quality
control inspector would not be at fault. Christopher
testified as follows:
Q. Does that happen ever-did that ever happen
before that you had a sporadic run with good cans and
bad cans?
A. Yes, sir we have that occasionally.
Q. In fact you have a considerable amount of
trouble with these machines don't you, it's short of a,
shall we say, temperamental machine?
A. Yes, sir, when you are running machinery 24
hours a day there 6 days a week.
Q. There will be some down time, right?
A. There has to be, yes.
In connection with Christopher's testimony, it is
interesting to note that he recalled that since the occasion of
the discharge of Fannie Harris in December, there was a
trailer load of cans turned back after going out of the
warehouse onto the trailer. When questioned as to whether
or not he had ascertained who was responsible for shipping
them out, Christopher stated that that was the warehouse
manager's responsibility. He did not know whether anyone
had been discharged over that incident. Based on my
observation of the demeanor of Christopher as he testified,
I am convinced that he was somewhat contrived and not
thoroughly straightforward. I am not convinced that
Christopher was in fact convinced that Harris was clearly
responsible for the defective run.
C. R. Polley, Jr., testified that he was general manager
in charge of pet food and can manufacturing for the
Respondent for approximately 1 year of the 4 years he had
been with the Respondent Company. Polley testified that a
good inspector would take about an hour and a half
spending time on inspection in the lab. According to Polley,
some inspectors would take 2 or 3 hours to do the job.
Polley testified that on the morning of the day that Harris
was discharged, Cal Christopher reported to him about the
defective cans. Polley stated that Christopher brought him
a couple of can samples and said he had cans blowing in the
warehouse. He and Christopher went to the warehouse and
did a random sampling of cans of the roughly 57,600 cans
involved. Polley and Christopher then determined from the
code what date they were run in the cannery. They found
the problem was fractures at the bead juncture of the
soldered side seam. According to Polley, this indicated that
the line was allowed to run with excess solder on the outside
of the can body. According to Polley, concerning
undercooked products which develop bacteria, the product
expands in the can and blows the lids off at either end or
blows the side wall wide open first. Polley stated that from
his inspection of the cans the defect was caused by excess
solder on the side seam area and that the responsibility for
this was with the quality control inspector. Polley testified
further that when Christopher came to him Christopher
stated that Fannie Harris was the inspector on the shift and
he felt that he should discharge her. Polley stated that
Christopher told him that he had checked through the
quality control sheets and with the payroll department to
make sure that Harris had worked on that shift. Polley
stated he told Christopher that Christopher was running the
department and that if he felt that Harris should be
discharged, Polley agreed with him. Polley stated he had
not discussed the discharge with Fannie Harris either
before or at the time of her discharge, but he did discuss it
with her after her discharge. Polley testified that the cans in
question were run within a very few days of the time that
the pack was found in the warehouse, the day that Harris
was terminated. Placing the date of Fannie Harris'
termination at December 11, Polley stated that the cans
were run within a couple of days, 5 or 6 days, prior to that
time. That would place the date of the run at approximately
December 5 or 6. Polley, Jr., in his testimony then stated
that the date on which the cans were mismanufactured was
November 17, 1969. There was also some variance between
Polley's testimony and his statement given in his affidavit
to the Board. Polley testified that the decision to discharge
Fannie Harris was made by Cal Christopher. In his
affidavit to the Board, Polley stated that he discharged
Fannie Harris. In his testimony Polley stated that
Christopher discharged Harris and he corroborated
Christopher's statement that he had discharged Harris.
However, in a prior representation proceeding before the
Board on March 18, 1970, Polley testified that Cal
Christopher was a leadman and he did not have authority
to hire and fire. In his testimony in the current proceeding,
Polley stated "I was wrong about Cal Christopher. He was a
foreman." Polley added that when he found out that he was
wrong about Cal Christopher, he called it to the attention of
counsel for the Respondent. While the record indicates that
Polley did indeed bring this to the attention of his counsel,
based on my observation of the demeanor of C. R. Polley,
Jr., as he testified, and the variances in his testimony, I
found him to be contrived and less than straightforward
and I do not credit his testimony.
Bearing in mind my credibility findings as explicated
hereinabove, and based on my careful consideration of the
record as a whole, I am convinced and I find that the
Respondent would not have discharged Fannie Harris but
for her union activity and that accordingly the Respondent
violated Section 8(a)(1) and (3) of the Act as alleged in the
complaint. In so finding I have taken into account the fact
that the Respondent, while advancing as the cause for
Harris' discharge the ground that she failed to inspect
properly, thereby causing a defective run of 57,600 cans,
did not on this record investigate the alleged incident with
sufficient deliberation and thoroughness to assure me that
it was reasonably certain that the defect was the result of
Harris' failure to perform her duties. The record indicates
that many of the cans run in the defective lot were in fact
good cans. The lot was approximately a 1-hour run or more,
a period of time generally coinciding with a normal period
for a supervisor to be checking cans in the laboratory which
is physically separated from the machine operating area
and during which time it is quite reasonable to expect that a
sight check might not be made. There was considerable
variance in the testimony of both witnesses, Calvin
Christopher and Bud Polley, Jr., concerning the exact date
on which the defective lot was run. The record does not
ALLIED FOODS, INC 1099
clearly establish that the lot was actually run on November
11, 1969. If that date is not correct there is no assurance on
this record that Harris was responsible. Even if the date is
correct the Respondent displayed what I consider to be an
unreasonable haste in discharging Harris when in the
testimony of its own supervisors and management the
defects could have been the result of causes extraneous to
Harris. This accelerated disposition of Harris, based at best
on a thin foundation, coupled with the facts found on the
record herein of threats made to Harris concerning the
possibility of her discharge because of her union activity,
lead me to the conclusion that the Respondent seized on the
existence of a defective lot, linked by a tenuous thread to
Harris, and acted precipitously to discharge her, all
amounting to a sham and a pretext to obscure its true
motivation to discharge her because of her union activity
which had become a source of irritation to the Respondent.
I find therefore that the Respondent discharged Harris
because of her union activity, thereby discriminated against
her in violation of Section 8(a)(3) of the Act, and thereby
interfered with, restrained, and coerced its employees in the
exercise of protected activities in violation of Section
8(a)(1) of the Act
C. The Discharge of Towe
The Respondent admits that it discharged Towe on
January 14, 1970, in part because of Towe's protected
activities, but by way of defense raises a threshold question
of whether or not Towe was in fact a supervisor. The
General Counsel contends that Towe was not a supervisor
but merely a highly skilled employee and that the
Respondent's admission that Towe's discharge was motiva-
ted in part by his protected activities clearly establishes a
violation of Section 8(a)(3) and (1) of the Act
William R Towe testified that he was employed by the
Respondent eight times, his most recent employment
commencing on June 30, 1969. He described his job as
press mechanic and his function ". . mainly to keep the
machines running " According to Towe, he was induced to
return to employment with the Respondent when Curtis R.
Polley, Sr, asked him, "What would it take to get you
back," and Towe replied, "It will take $4 50 an hour and me
be completely in charge of the presses, to work on them and
fix them the way that I know how and the way that I can
run them."
According to Towe, he started at $4.50 per hour and
when he was discharged he was receiving $5 per hour Towe
explained the raise as due to the Respondent's hiring of two
new employees at $5 per hour which prompted Towe and
Foster to complain and to discuss the matter with Curtis
Polley, Sr., culminating in a raise to $5 per hour plus an
insurance policy which they ultimately received in Septem-
ber 1969
According to Towe, from the time he received the raise
and the insurance coverage in September 1969, to the time
of his discharge in January 1970, he continued to function
in the same capacity as previously, that is as a press
mechanic. In this regard Towe testified that he punched a
timeclock, worked with his hands 99 percent of the time,
never attended supervisory meetings, was never offered a
supervisor's job, and was never told he was a supervisor
Towe stated that he took orders from Walt Pruitt, the plant
manager, and that he did not have authority to transfer
anyone or move people around or to assign employees to
work overtime, never adjusted grievances for employees,
never granted employees time off, never excused anyone
from work.
Towe testified that on one occasion he went to Pruitt and
requested a trainee helper. He was given a helper by the
name of Hardy. Towe did not want Hardy, whom he
described as not capable of being a mechanic. Another
individual was then provided who worked just I week.
Towe stated that he never hired anyone, never interviewed
anyone for employment and never discharged anyone,
never gave out reprimands, nor laid off anyone.
Towe stated that when he was signed up for the insurance
coverage he was not told that he was a supervisor or had
been made a supervisor. He did state that on one occasion
he recommended a wage increase for an employee, Paul,
who "was my operator" According to Towe, Paul finally
got a raise but was soon after discharged.
In his testimony Towe stated that the first time he knew
the Company considered him to be a supervisor was the
day before his discharge. On cross-examination, however,
Towe stated that in October 1969, after he had complained
to C. R Polley, Sr, that Whitehead had been put in charge
of the presses over him, Towe's timecard was changed to
show Towe as a working foreman. Additionally, Towe on
cross-examination, testified that an employee, Willie Mae
Walker, had been moved in to work with him because he
needed another employee to run the line. According to
Towe, Walker was sent to him by Pruitt and Towe told her
what to do. Towe testified that Walker had difficulty doing
the job and complained that her back was hurting and she
could not do the work. Towe reported this to Pruitt and
Pruitt substituted Gladys Bailey for Walker. About an hour
later Walker returned, stating that her back felt better, and
wanted to return to her job. Towe then said. "I got
somebody else on it now. I don't need you." According to
Towe, Bailey worked 2 days, was out sick 2 days, and did
not come back to work for Towe. Towe stated that he had
criticized Bailey's work frequently, but had not reprimand-
ed her He denied threatening to fire Bailey if her machine
jammed up again.
Also on cross-examination Towe testified that many
employees were hired and sent to him by Pruitt but Towe
did not make the decision as to whether or not to use them
However, he stated that probably 150 or 200 of these
employees "didn't work out." Towe stated, "I didn't do
nothing with them, they quit."
Towe testified that late in July 1969, he was offered a
salary by Ray Evans. The term working foreman was used
about October 6, 1969, and it was in November 1969, that
Towe signed papers in connection with the insurance
program
Curtis R Polley, Sr., testified that he rehired Towe in
June 1969, at $4.50 an hour, an increase in pay over the
$4 25 Towe had received in an earlier employment. Polley
told Towe that if he ran the plant efficiently and corrected
his personal problems, Polley would put him in charge of
the press department with another increase. Polley stated
that later in August, Towe complained that Polley had
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
promised him a foreman's job and Evans, the new plant
manager, had put Whitehead in his place and Towe was
unhappy about it. Polley promised to do something about
it. Later, according to Polley, in October or November,
after Evans left the Respondent 's employ. Towe got his
supervisory job and increase in pay. At this time, according
to Polley, he authorized insurance coverage for Towe which
was provided for supervisors . In his testimony , C. R. Polley,
Jr., stated that 3 weeks after Towe received his paycheck
with the increase , he talked to Towe and told him that now
that he had the raise , he was working foreman of the press
department , that he would be held responsible for
maintenance and upkeep of the equipment as he was before
but now he had the problem also of production and quality
in his department and he had the right to move the people
in his department to any shift he wished to move them to
and he had the right to hire and fire. At the same time,
according to C. R Polley, Jr., he and Towe discussed the
option which was available to Towe to either stay on at the
hourly rate or go to a salary basis. Polley stated that he
offered Towe a salary of $1,000 a month, but that Towe
took the hourly rate. At this time, according to Polley,
nothing was said about insurance because the insurance
matter had already been cleared . According to C. R . Polley,
Jr., referring to the Gladys Bailey incident , Polley stated
that Bailey had come in to tell him that Towe had put her
out of the press department , had discharged her Since she
was on loan to that department , she went back to her
former work.
Walter Pruitt, division manager of the can plant
operation and prior to that time plant manager in the
canning plant, testified that after he became plant manager,
Towe was under his supervision until Towe was terminated.
Pruitt testified that shortly after Pruitt took over the plant
manager's job, Towe became foreman of the press
department . Pruitt testified that he informed Towe of this,
and Towe was given an increase in pay plus the benefits of
the insurance that went with the job . Pruitt testified that
after Towe became press foreman , he had a discussion with
Towe concerning an employee by the name of Larry
Solvers. Pruitt suggested that Solvers would make a good
trainee in the press department, but Towe indicated that he
had been watching Solvers on the can line and he did not
want him in the press department . According to Pruitt,
Pruitt told him, "If you don 't want him, you don't have to
have him. You 're the foreman of the department." Pruitt
testified that when Towe became foreman he left the first
shift and went to the third shift, where he replaced his
brother, Elbert Towe, who was foreman on the third shift,
and who then went to the first shift. According to Pruitt,
Pruitt did not direct this change and Pruitt did not direct
Towe as to the shift he should work after he became
foreman . Concerning Willie Mae Walker , Pruitt testified
that Walker came to him and said , "He [Towe] has fired me
because I can 't run the job , but the reason I can't run the
job is because I hurt my back . Pruitt told her to go see the
nurse. Pruitt said that Walker later came back and talked
with Towe . Towe then informed Pruitt that when Walker
went back upstairs and found she did not have a job up
there , she came back and wanted her job back , but Towe
did not put her to work . According to Pruitt , that was the
last time he saw Walker.
According to Pruitt , Towe had responsibility to bring the
necessary manpower in to do the overtime maintenance
work and clean up the department when maintenance and
cleanup was required on Saturday . According to Pruitt,
Towe was not instructed as to whom he should bring in on
Saturday or on the weekend and Towe made these
decisions himself . According to Pruitt , just before Towe
was terminated he had the authority to assign people to
shifts, to move people from shift to shift, to discharge
employees who did not perform their work, to requisition
new employees from the personnel manager or through
Pruitt , and had authority to work employees overtime, and
that Towe did direct the employees in their work in his
department.
According to Pruitt , shortly before Towe was discharged,
Pruitt had a conversation with him at a time when Towe
was wearing one or more union buttons . According to
Pruitt, he advised Towe that being a supervisor Towe
should not be active in the Union trying to organize it, to
which Towe replied he was doing it for his employees and
for Pruitt , stating that Pruitt worked too hard. Pruitt was a
straightforward witness and I credit his testimony.
Willie Mae Walker testified that in September 1969, she
went to work for the Respondent in the frozen food
department and was transferred to work on the dog food
can line. She testified she was instructed in her work by
Towe but had difficulty doing the job . The second day on
the line she injured her back and asked Towe's permission
to go to the clinic where she took aspirin. When she
reported back to Towe he told her that "... as far as he
was concerned I was through " That terminated Walker's
employment with the Respondent.
There was also testimony by Gladys Bailey who was
assigned temporarily from her department to work in the
press department for 3 weeks. According to Bailey, she only
worked there 2 weeks, and during this time Towe criticized
her work and threatened to discharge her. Bailey testified
that she had been informed by another employee that Towe
was a boss, a foreman.
Based on my observation of the demeanor of the witness,
Towe, as he testified , noting the facile and bland manner in
which he conveniently provided testimony on cross-exami-
nation , inconsistent with his direct testimony , I simply do
not believe that Towe testified truthfully . I do not credit his
testimony that he was unaware he was a supervisor , that the
first time he knew the Respondent considered him to be a
supervisor wasjust prior to his discharge, a statement which
was negated by his subsequent testimony on the record. I
do not credit his breezy testimony concerning his alleged
insulation from the selection , supervision , and control of
the 150 to 200 employees who, by his own testimony, went
in and out of the machine operation . On the other hand in
this regard , I credit the testimony of Walker, Pruitt, and C.
R. Polley, Jr., and Sr ., all of which established the
promotion of Towe to a supervisory capacity , his awareness
of his status , and established the effective control exercised
by Towe over employees in the press department.
It is clear from this record , and I find , that at the time
material herein William Towe was in charge of the
ALLIED FOODS, INC
operations of the press department, was listed as working
foreman on the Respondent's payroll, was included in the
insurance coverage for supervisors, was paid more than the
mechanics in his department and the same as Foster, the
foreman of the other shift. He assigned work to employees
in his department, assigned overtime maintenance work,
instructed employees in the performance of their duties,
evaluated their job performance, effectively recommended
raises, reprimanded employees for unsatisfactory perfor-
mance, and in fact discharged Walker from employment in
the department. Weighing all these factors, and crediting
the testimony of Pruitt, and not crediting the testimony of
Towe that he was not told he was a supervisor, I am
convinced and I find that at the times material herein Towe
was a supervisor possessing and exercising several of the
indicia of a supervisor enumerated in Section 2(11) of the
Act, and that his discharge by the Respondent does not
violate Section 8(a)(3) and (1) of the Act, as alleged in the
complaint. I will accordingly recommend dismissal of that
portion of the complaint
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of the Respondent set forth in
section 111, above, occurring in connection with the
operations of the Respondent described in section 1, above,
have a close, intimate, and substantial relation 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.
CONCLUSIONS OF LAW
1. Allied Foods, Inc., a Georgia corporation, is, and has
been at all times material to this proceeding, an employer
within the meaning of Section 2(2) of the Act.
2 General Teamsters Local Union No. 528, affiliated
with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, is, and has
been at all times material to this proceeding, a labor
organization within the meaning of Section 2(5) of the Act.
3 By discriminatorily discharging Fannie M. Harris the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
4. By threatening employees with discharge if they
joined or engaged in activities on behalf of the Union and
by instructing a supervisor to find a pretext to discharge an
employee, the Respondent interfered with, restrained, and
coerced its employees in their exercise of rights guaranteed
by Section 7 of the Act and thereby engaged in unfair labor
practices within the meaning of Section 8(a)(l) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. William R Towe was at the time material hereto a
supervisor within the meaning of Section 2(11) of the Act
The discharge of Towe by the Respondent does not
constitute a violation of Section 8(a)(3) and (I) of the Act.
THE REMEDY
1101
Having found that the Respondent has engaged in
various unfair labor practices affecting commerce, I shall
recommend that it be ordered to cease and desist therefrom
and to take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent unlawfully discharged
Fannie M. Harris on December II, 1969, 1 shall
recommend that it be ordered to offer her immediate and
full reinstatement to her former or to a substantially
equivalent position, without prejudice to her seniority or
other rights and privileges, and make her whole for any loss
of earnings she may have suffered by reason of the
discrimination against her, by payment to her of a sum of
money equal to that which she normally would have earned
from the aforesaid date of discharge to the date of
Respondent's offer of reinstatement, less her net earnings
during such period The backpay provided herein shall be
computed on the basis of calendar quarters, in accordance
with the method prescribed in F W Woolworth Company,
90 NLRB 289. Interest at the rate of 6 percent per annum
shall be added to such net backpay and shall be computed
in the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716
Because of the Respondent's coercive threats and its
discriminatory discharge of employee Harris, it is reasona-
ble to conclude that the Respondent in the future, unless
specifically enjoined, may deny its employees their
statutory rights not only in these, but in other ways as well
Therefore, I shall also recommend that the Respondent be
ordered to cease and desist from in any other manner
interfering with, restraining, or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act
Having found that William R. Towe was at the time
material herein a supervisor within the meaning of Section
2(l 1) of the Act, that portion of the complaint alleging the
unlawl ul discharge of Towe is hereby dismissed.
RECOMMENDED ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Allied Foods,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from-
(a) Discouraging membership of any of their employees
in General Teamsters Local Union No 528, affiliated with
the international Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any other labor
organization, by discharging or in any other manner
discriminating against any employee in regard to hire,
tenure, or employment, or any other term or condition of
employment because of union or other protected concerted
activity
(b) Coercively threatening employees thereby interfering
with, restraining, and coercing its employees in the conduct
of activities protected by the Act.
(c) In any other manner, interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization,
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to bargain collectively with representatives of their own
choosing , to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer to Fannie M Harris immediate and full
reinstatement to her former or substantially equivalent
position , without prejudice to her seniority or other rights
and privileges , and make her whole in the manner set forth
in the section of this Decision entitled "The Remedy."
(b) Notify the above -named employee if presently serving
in the Armed Forces of the United States of her right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended , after discharge from the
Armed Forces.
(c) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records , timecards,
personnel records, and reports, and all other records
necessary to analyze the amounts of backpay due to Fannie
M. Harris.
(d) Post at its plant in Atlanta , Georgia , copies of the
attached notice marked "Appendix " i Copies of said
notice, on forms to be provided by the Regional Director
for Region 10, after being duly signed by the Company's
representative, shall be posted immediately upon receipt
thereof , and be maintained by it for 60 consecutive days
thereafter , in conspicuous places, including all places where
notices to employees are customarily posted Reasonable
steps shall be taken to ensure that such notices are not
altered , defaced, or covered by any other material.
(e) Notify the Regional Director for Region 10, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply herewith.2
' In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 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 In the event
that 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 OF
THE NATIONAL LABOR RELATIONS BOARD" shall be changed to
read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD"
2 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 10 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give
evidence , it has been decided that we, Allied Foods, Inc.,
have violated the National Labor Relations Act, and we
have been ordered to post this notice.
The National Labor relations Act gives you, as
employees , certain rights , including the right to self-
organization ; to form , join or help unions; and to bargain
collectively through a representative of your own choosing.
Accordingly, we give you these assurances:
WE WILL NOT try to discourage you from becoming
or being a member of General Teamsters Local Union
No. 528, affiliated with the International Brotherhood
of Teamsters , Chauffeurs , Warehousemen & Helpers of
America, or any other union by discharging any
employee, or in any other manner discriminating
against our employees in regard to hire or tenure of
employment or any other term or condition of
employment because of their union membership or
activities.
WE WILL NOT threaten any of our employees with
discharge because of their union membership or
activity.
WE WILL offer Fannie M. Harris her formerjob with
all of her rights , without prejudice to her seniority, and
make her whole for any loss of pay she may have
suffered as a result of our discrimination against her.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of any labor
organization.
ALLIED FOODS, INC.
(Employer)
Dated By
(Representative) (Title)
Note' We will notify Fanny M. Harris if presently serving
in the Armed Forces of the United States of her right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
THIS IS AN OFFICIAL NOTICE AND MUST NOT
BE DEFACED BY ANYONE
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions , may be directed to the Board's Office, Room
701, Peachtree Building, 730 Peachtree Street, N.E.,
Atlanta, Georgia 30308, Telephone 404-526-5760.