Cargill Poultry Co.

National Labor Relations Board - Board Decisions

Jan 31, 1989

292 N.L.R.B. 738 (N.L.R.B. 1989)

738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cargill Poultry Company and Industrial Union De-
partment and Retail , Wholesale , and Depart-
ment Store Union , AFL-CIO-CLC, Party in
Interest . Case 10-CA-22292
January 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On September 17, 1987, Administrative Law
Judge Philip P. McLeod issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
On the morning of December 31, 1986, 24 em-
ployees working in the cut-up department at the
Respondent's Buena Vista, Georgia facility concer-
tedly stopped work because the temperature in
their work area was too low. The employees dis-
cussed the work stoppage that morning in a meet-
ing with General Manager Bill Tracey, Personnel
Director David Black, and one Tim Erslinger.l
Tracey offered to discuss the problem with the em-
ployees after their shift, but asked them to go back
to work. None of the employees returned to work,
however. Tracey informed the employees that if
they did not return to work they would be re-
placed, and he also told them that if they did not
return to their work stations in 5 minutes they
would be "clocked out." Tracey and Black left the
meeting at that point. When Black returned to the
meeting 10 minutes later, 22 of the employees said
they were not going.back to work.2 Erslinger then
informed the employees that they were clocked out
and that they should leave the premises.
Erslinger and Black accompanied the employees
to the gate of the plant. At the gate, the employees
asked Personnel Director Black to explain their
employment status. Black admits that he "advised
them that they were suspended pending investiga-
tion." On being asked if the employees were fired,
Black reiterated that they were suspended pending
investigation, and that the employees would be no-
tified by telephone or by mail.3 That same day,
1 Erslinger's position with the Respondent is not revealed in the
record. In its brief, however, the Respondent characterizes Erslinger as a
"supervisor."
2 The other two employees returned to their work stations.
I In his affidavit, introduced by counsel for the General Counsel as the
major part of his case-in-chief, Black referred several times to "the cut-
Black sought and obtained commitments for re-
placements for 16 of the 22 employees involved in
the work stoppage.
Between December 31 and January 14, 1987,4
Black spoke by telephone with four of the employ-
ees who had refused to return to work. Three of
the employees asked for their jobs back, and the
fourth asked, "what about her job." Black ex-
plained to all four that they had been replaced. On
January 2, Black again met at.the plant gate with
approximately 12 of the 22 employees and in-
formed them that they had been replaced.5 On Jan-
uary 8, an article appeared in the Columbus, Geor-
gia, Enquirer, containing a statement by Tracey
that new employees had been hired to replace the
22 women after they had left the plant, but that the
latter employees were subject to recall if jobs
became available within the plant. On January 14,
the Respondent sent letters to each of the 22 em-
ployees, explaining their status with the Respond-
ent. The letters informed the employees that they
had been replaced, but that they would be placed
on a hiring list and considered for any job openings
for which they were qualified if they made an un-
conditional offer to return to work. On February 5,
the Respondent mailed an almost identical letter to
the 19 employees who at that time had not made
offers to return to work. Black testified that at the
time of the hearing all but 4 of the 22 employees
had returned to work.
Unbeknownst to the 22 employees, the Respond-
ent did not place records of suspension in their per-
sonnel files, but instead carried them on its records
in a leave-of-absence status. The Respondent also
continued the employees' insurance coverage
through February 1; that action, however, was dis-
closed to the employees for the first time in the
January 14 letters.
1. The judge found, and we agree, that the 22
employees were suspended for participating in
ters" as a group, and said nothing to indicate that fewer than all the 22
employees were at the gate during this colloquy. At the hearing, howev-
er, on direct examination by the Respondent's counsel, Black testified
that although a "great majority" of the employees were present, "to the
best of [his] knowledge" not all were there.
4 Except for December 31, 1986, all dates are in 1987.
6 Black testified that the employees asked if they had been fired, and
that he answered that they had been replaced. The employees also asked
how they could receive money from their "401K" retirement accounts,
and Black indicated that they could not get money out of those accounts
because, inter alia, they had not been terminated. The record does not
reflect whether the 12 employees asked for their jobs back.
6 The Respondent contends that there is no proof that all 22 of the em-
ployees heard Black's suspension statements, and points to Black's testi-
mony that, to the best of his knowledge, not all the employees were
present when he made those statements. See fn. 3, supra. We disagree. In
his affidavit, which was received in evidence, Black repeatedly referred
to "the cutters" in a context in which that term clearly was meant to
apply to all the affected employees, and he used the term again in de..
Continued
292 NLRB No. 72
CARGILL POULTRY CO 739
protected concerted activity, in violation of Section
8(a)(1) of the Act' Viewing the Respondent's ac
tions , as we must , through the eyes of the employ
ees,8 we agree with the judge that the employees,
having heard Personnel Director Black's unequivo-
cal statements that they were "suspended pending
investigation," reasonably would have concluded
that they were, in fact, suspended because they re-
fused collectively to return to work By making
statements that would lead the employees reason
ably to believe that they had been suspended be-
cause of their concerted protected activities, the
Respondent violated Section 8(a)(1) of the Act 9
The Respondent nevertheless contends that the
totality of its actions belie the conclusion that
Black actually suspended the 22 employees The
Respondent analogizes to a series of decisions in
which the Board found that employers had not dis-
charged striking employees, even though they had
made statements indicating that the strikers either
had been or would be fired, because the employers
later had taken actions that were inconsistent with
actual terminations 10 The Respondent contends
that , apart from Black ' s unfortunate statements, its
actions toward the 22 employees were entirely con-
sistent with the lawful treatment of economic strik-
ers 11 According to this argument, Black's state-
scribing the scene at the plant gate Given Black s later equivocal tests
mony ( To the best of my knowledge they were not all there ) and his
admission that the great majority were present at the gate we believe
there was sufficient evidence in the record to support the judge s implicit
finding that all 22 affected employees were present when Black an
pounced the suspensions
' It is clear that the employees group walkout in protest over working
conditions was protected concerted activity See NLRB v Washington
Aluminum Co 370 U S 9 (1962)
8 Pennypower Shopping News 253 NLRB 85 (1980) enfd 726 F 2d 626
(10th Cir 1984)
8 Id at 85 We decline the Respondents invitation to draw an adverse
inference from counsel for the General Counsel s failure to offer testimo
ny by any of the affected employees concerning their understanding of
the Respondents statements and conduct The test for determining
whether the employees were suspended is an objective one i e whether
a reasonable employee would conclude from the employer s actions that
he had been suspended Cf Famous Supply Co 254 NLRB 768 770
(1981) (discharge) It is not a subjective inquiry into the employees state
of mind Roncas Exxon Service 268 NLRB 1157 1161 ( 1984) Here
Black has admitted informing the employees explicitly that they were
suspended and we think that a reasonable employee would have con
cluded that he meant what he said Accordingly it was not counsel for
the General Counsels burden to show what the employees subjective
understanding was and no adverse inference can be drawn from his fail
ure to do so
io Kerrigan Iron Works 108 NLRB 933 (1954) enfd sub nom Iron
Workers Local 733 v NLRB 219 F 2d 874 (6th Cir 1955) cert denied
350 U S 835 (1955) Crookston Times Printing Co 125 NLRB 304 317-
318 (1959) Floyd Fuel Co 126 NLRB 453 461-463 (1960) Maxville
Stone Co 166 NLRB 888 (1967) Hanley Dawson Chevrolet 168 NLRB
944 (1967) Matlock Truck Body 217 NLRB 346 (1975) Woodlawn Hospi
tal 233 NLRB 782 788 (1977) enf denied 596 F 2d 1330 (7th Cir 1979)
Brunswick Hospital Center 265 NLRB 803 (1982)
"WeWe agree with the Respondents oblique suggestion that Blacks co
ercive statements would have violated Sec 8(a)(1) even if we were to
find that they had not actually effected the suspension of the 22 employ
ees
ments should be regarded as having done nothing
more than create an ambiguity concerning the em-
ployees' status-an ambiguity that was clarified no
later than January 14, when the first letters were
sent to the employees explaining their status as re-
placed strikers
The Respondent' s arguments are misplaced,
however, because its actions with respect to the
employees who engaged in the work Stoppage
were not, so far as the employees knew, incompati
ble with their suspensions 12 Thus, the Respondent
never retracted or disavowed Black's suspension
statements , and there is no evidence that it told the
employees that they were being carried on its
records as on leave-of-absence status instead of as
suspended The Respondent's decision to continue
insurance coverage for the 22 employees until Feb-
ruary 1 would appear at least as consistent with
their being temporarily suspended as with their
having been permanently replaced The Respond-
ent's informing the employees that they would be,
and later that they had been, replaced was not in-
consistent with the statements that they had been
suspended, if anything, the Respondent' s statements
concerning replacements may well have caused the
employees to believe, reasonably, that their suspen-
sions actually were indefinite
The Respondent excepts to the judge's exclusion
from evidence of unemployment compensation
forms completed on January 12 by a number of the
employees In the documents, according to the Re
spondent, the employees stated as the reason they
were unemployed, not that they had been terminat
ed or suspended but that they had left the plant be-
cause of working conditions there 13 The Respond
ent contends that the employees' failure to claim
that they had been suspended or terminated indi
cates that they did not reasonably believe that such
actions had taken place, and therefore that the doc
uments were probative of the employees' state of
mind and should not have been excluded
We find no merit in the Respondent's evidentiary
exception In the first place, as we have noted,
whether the employees here were unlawfully sus-
pended is to be determined by an objective assess-
ment of the Company's actions, not by how the
employees (or some of them) may have perceived
12 In this regard this case differs from those relied on by the Respond
ent (see fn 10 supra) in which employers reinstated strikers who had
previously been told they were discharged Reinstatement of dis
charged employees is inconsistent with their actually having been dis
charged whereas reinstatement of suspended employees is not inconsist
ent with actual suspensions
12 Because the documents in question were neither received in evi
dence nor placed in a rejected exhibits file our description of their con
tents is based on representations made by the Respondents counsel at the
hearing
740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
those actions 14 In any event, as the judge recog
razed , it is risky to speculate about a person's be
liefs or state of mind on the basis of something he
or she does not say Here, moreover, such specula-
tion would be especially unwarranted Between
December 31 and January 12, when the employees
filled out the unemployment compensation claim
forms, the Columbus, Georgia newspaper carried
an article on January 8, quoting General Manager
Tracey as stating that "while those employees have
been replaced, they are subject to recall if jobs
become available within the plant " It would have
been reasonable for any employee who read that
article to conclude from it that the December 31
suspensions had been lifted as of January 8 Ac-
cordingly, it would be understandable that any
such employees would not have mentioned suspen-
sion as a reason for their unemployment as of Janu-
ary 12 However, the fact that the suspension had
been lifted is in no way inconsistent with its having
earlier taken place, or with the employees' reasona-
ble belief, prior to January 8, that they had been
suspended Thus, even if the proffered documents
had been received in evidence, we would not draw
the conclusion urged by the Respondent 15 Conse
quently, the Respondent was not prejudiced by the
judge' s ruling 16
2 Having determined that the December 31 sus
pensions were unlawful, the judge ordered the Re-
spondent to offer to reinstate the suspended em
ployees to their former jobs, discharging if neces-
sary any replacements hired during the period of
the suspension, and to pay them backpay from the
date of the suspension, consistent with Abilities &
Goodwill, 241 NLRB 27 (1979) The Respondent
excepts to the judge's recommended backpay
remedy, contending that if any backpay is due, it
should be assessed only from the dates the suspend-
ed employees offered to return to work 17 We find
no merit in the Respondent's exception
14 See fn 9 supra
15 Brunswick Hospital Center 265 NLRB 803 813 (1982) does not
contrary to the Respondent require a different result Although docu
ments similar to those excluded in this case were admitted into evidence
in Brunswick the Board apparently did not rely on that evidence in its
analysis Id at 813-814 Moreover in Brunswick the union steward was
informed that the employer had changed its previously stated position
that the strikers would be fired Id at 811 814
16 Indeed there appear to have been ample grounds for the judge to
exclude the unemployment compensation forms for reasons unrelated to
their asserted relevance At the hearing the judge characterized certain
of the documents as illegible or as not obviously related to specific em
ployees The Respondent did not take issue with that characterization at
the hearing and does not do so before the Board Nor did the Respond
ent offer to produce any of the employees to authenticate those docu
ments
17 In fact the Respondent excepts to the judge s entire recommended
remedy including the portion calling for reinstatement In its brief how
ever the Respondent does not argue against reinstatement instead its
contentions concerning the remedy are addressed only to the backpay
issue We conclude that the Respondents exception to the entire remedy
In Abilities & Goodwill, the Board held that dis-
charged strikers are entitled to backpay from the
date of their discharge until they are offered rein
statement 18 The Board first reiterated the settled
principles that (1) unlawfully terminated (nonstrik
ing) employees are entitled to backpay from the
date of their terminations , because their loss of
earnings is unequivocally the result of the employ
er's unlawful act, whereas (2) striking (but not ter-
minated) employees are not entitled to backpay
until they request reinstatement, because their loss
of earnings is voluntary 19 However, the Board
continued, the situation of unlawfully terminated
strikers is ambiguous because it cannot be deter-
mined for certain whether they continue to with
hold their services because of the strike or because
the employer, by discharging them, has demon-
strated to them the futility of applying for rein
statement 20 In such situations, the Board held, it is
more equitable to resolve the ambiguity against the
wrongdoer and to presume that the discharged
strikers would have applied for reinstatement had
the fact of their discharges not made the act of ap-
plication seem futile 21
The judge rejected the Respondent's argument
that the suspended employees in this case had no
basis for believing that an offer to go back to work
would be futile, because several employees who
did attempt to go back to work before January 14
were informed that they had been replaced Ac
cordingly, the judge concluded that the suspended
employees should receive backpay as set forth in
Abilities & Goodwill
We agree At the beginning of the strike, Person-
nel Director Black reiterated that the employees
were suspended pending investigation and that they
would be notified by telephone or mail Black
thereby informed the employees that the Respond
ent no longer desired their services Consequently,
the employees had no reason to notify the Re-
spondent that they were ready to resume work at a
later date In these circumstances, [a]n application
for reinstatement would have been a completely
useless ritualistic act "22 Accordingly, it was
is based on its contention that no violation of the Act occurred In any
event no citation of authority is required to support the proposition that
employees who have been unlawfully ousted from their jobs are entitled
to reinstatement to those jobs forthwith even if their replacements must
be discharged to make room for them
18 241 NLRB at 27
19 Id at 28
20 Id
21 Id
22 NLRB v Southern Greyhound Lines 426 F 2d 1299 1303 (5th Cir
1970) In this respect unlike our dissenting colleague we find no substan
tive distinction between these unlawfully suspended employees and the
unlawfully discharged employees in Abilities & Goodwill This is especial
ly so where as here the Respondent put no time limit on the suspensions
Continued
CARGILL POULTRY CO 741
proper for the judge to assess backpay from the
date the employees were suspended to the date on
which they are unconditionally offered reinstate
ment 2 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Cargill
Poultry Company, Buena Vista, Georgia, its offi
cers, agents , successors, and assigns , shall take the
action set forth in the Order
CHAIRMAN STEPHENS , dissenting in part
I join my colleagues in finding that the Respond-
ent unlawfully suspended the employees on De-
cember 31, 1986, and that the judge properly or-
dered the employees' reinstatement Unlike the ma-
jority, however, I find that it was inappropriate for
the judge, citing Abilities & Goodwill,' to order the
Respondent to pay backpay to the employees be-
ginning on the date of their suspensions
I reach this result because , in my view , the logic
of Abilities & Goodwill, as set forth in the majority
opinion, is far less appropriate to suspended strikers
than to discharged strikers I see no basis for assum-
ing that, by suspending an employee, an employer
impresses on him the futility of seeking to return to
work A suspension, in contrast with a discharge,
simply cannot be reasonably construed as meaning
that the affected employee is never to return to
work again 2 Thus, because there is no reason to
and left the clear impression the suspensions would remain in effect at its
discretion an impression that was reinforced by the Respondents hire of
replacements and its subsequent letters offering the suspended employees
only the opportunity of being put on a preferential hiring list (see fn 23
below)
23 We do not of course view the Respondents January 14 letters as
unconditional offers of reinstatement inasmuch as the only offer con
tamed in those letters was the opportunity to be placed on a hiring list
and to be considered for any job openings that might apse on the em
ployee s unconditional offer to return to work
Personnel Director Black testified at the hearing that the Respondent
eliminated its cut up department after the affected employees were sus
pended (The elimination of the cut up department is not alleged to be
unlawful ) He also testified that all but four of the suspended employees
had been rehired although in some cases apparently at lower pay rates in
a different part of the plant and that the four who had not returned had
been offered available jobs We cannot discern from this record whether
the Respondent has actually taken all the steps that the Act requires to
effect the reinstatement of the suspended employees Therefore we order
the reinstatement of all 22 Any questions concerning the details of their
reinstatement will be left to the compliance stage of this proceeding
i 241 NLRB 27 (1979)
2 NLRB v Southern Greyhound Lines 426 F 2d 1299 (5th Cir 1970)
cited by the majority lends scant support to its position In the first
place that case concerned an employee who was fired -not suspended-
at the outset of a strike for refusing to cross a picket line Moreover in
Southern Greyhound (which preceded Abilities & Goodwill) the Board as
sessed backpay only from the end of the strike not from the date of the
discrimination
think that suspended employees normally would
view seeking reinstatement as futile,3 I would pre
sume, absent contrary evidence, that the failure of
suspended strikers to seek reinstatement is the
result of their continued voluntary withholding of
their services
In this case, however, such contrary evidence
does exist On January 2, approximately 12 of the
22 striking employees appeared at the plant gate
and were informed by Personnel Director Black
that they had been replaced In my view, a reason-
able striker (including those who did not go to the
plant on January 2) would have concluded at that
point, from the fact that more than half of the
strikers had been replaced, that it would be futile
to apply for reinstatement Accordingly, and con-
sistently with the rationale of Abilities & Goodwill, I
would assess backpay for all the strikers beginning
on January 2 4
3 Indeed where (as here ) employees are suspended indefinitely because
they have refused to return to work there is every reason to assume that
(again as here) employees who are ready to return to work will make
appropriate inquiries
4 If before January 2 any strikers requested reinstatement and/or were
informed that they had been replaced they should receive backpay from
the earlier date
Richard P Prowell Esq, for the General Counsel
Robert 0 Sands Esq (Ogletree Deakins Nash Smoak &
Stewart) of Atlanta, Georgia, for the Respondent
Donna Musil, of Riverdale Georgia, for the Charging
Party
DECISION
STATEMENT OF THE CASE
PHILIP P MCLEOD, Administrative Law Judge I
heard this case on 4 June 1987 in Buena Vista Georgia
The charge that gave rise to this case was filed on 4
February 1987 by Industrial Union Department, AFL-
CIO (the Union) against Cargill Poultry Company (Re
spondent) On 20 March 1987, a complaint and notice of
hearing issued , which alleges inter alia, that Respondent
violated Section 8(a)(1) of the National Labor Relations
Act (the Act) by suspending 22 named employees be
cause they concertedly engaged in a work stoppage to
protest working conditions
In its answer to the complaint, Respondent admitted
certain allegations including the filing and serving of the
charge its status as an employer within the meaning of
the Act, the status of the Union as a labor organization
within the meaning of the Act, and the status of Person
nel Director David Black as a supervisor and agent of
Respondent within the meaning of Section 2(11) of the
Act Respondent also admitted that the named individ
uals ceased work concertedly and engaged in a work
stoppage Respondent denied that it suspended these in
dividuals and denied having engaged in any conduct that
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would constitute an unfair labor practice within the
meaning of the Act
At the trial here all parties were represented and of
forded full opportunity to be heard , to examine and
cross examine witnesses , and to introduce evidence Fol
lowing the close of the trial , counsel for the General
Counsel and Respondent both filed timely briefs with me
that have been considered
On the entire record in this case and from my observa
tion of the witnesses , I make the following
FINDINGS OF FACT
I JURISDICTION
Cargill Poultry Company is , and has been at all times
material , a Delaware corporation with an office and
place of business at Buena Vista Georgia , where it is en
gaged in the processing of poultry During the past cal
endar year , which period is representative of all times
matenal Respondent sold and shipped from its Georgia
facility products valued in excess of $50 000 directly to
customers located outside the State of Georgia
Respondent is, and has been at all times material, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
II THE UNFAIR LABOR PRACTICES
During the morning of 31 December 1986, employees
working in Respondents cut up department, where
whole chickens are cut into appropnate parts concerted
ly stopped work because the temperature was too cold in
their work area General Manager Bill Tracey Personnel
Director David Black , and Tim Erslinger , whose posi
tion with Respondent is not identified in the record, held
a meeting with employees of the cut up department in
the employee breakroom in order to discuss the problem
that led to this work stoppage Employees explained that
they were bothered by a fan blowing cold air from the
outside in on them Tracey told employees the fan was
an exhaust fan that blows air out not in Tracey told em
ployees it was the middle of the production day and
asked them several times to return to work Tracey told
the employees that if they wanted to he would discuss
their problems further after the shift was over but that
they needed to go back to work None of the employees
responded or returned to work One employee whose
identity is unknown , asked Tracey if the employees were
going to be fired Tracey replied No one is going to be
fired Tracey told the employees that Respondent had
customer orders to fill and told them how many chickens
had to be processed Tracey then told the employees that
if they did not return to work , they would be 're
placed It was then approximately 10 30 am Tracey
told employees that he expected them to return to their
work stations by 10 35 am or that they would be
clocked out Tracey and Black left the employee
breakroom , while Erslinger stayed with the employees
Black returned to the breakroom approximately 10
minutes later As Black admits , Collectively the cutters
said they were not going back to work ' Erslinger in
formed the employees that they were clocked out and
that they should leave the premises Erslinger and Black
accompanied the employees to Respondents entrance
gate
When they arrived at the entrance gate employees
asked Black what their present status was with Respond
ent As Black admits , I advised them that they were
suspended pending investigation Employees asked if
they were fired , and Black again told employees they
were suspended pending investigation ' Black then tes
tified , I informed them that we would notify them by
phone or through the mail After these employees left
Respondents facility on 31 December Black immediate
ly telephoned contacted and obtained employment com
mitments from replacements for all the employees who
participated in this work stoppage
Black testified that on 1 January 1987 employee
Fannie Pugh , who Black referred to as a former
cutter , telephoned Black and stated that she wanted to
return to work Black told Pugh that she had been re
placed and her job was not available
Many of the employees who engaged in the work
stoppage on 31 December returned to pick up their pay
checks on Friday , 2 January When they did so, they
gathered at Respondents entrance gate and were met by
Black After Black distributed the paychecks to the em
ployees, someone in the group asked Black if they had
been fired Black, who was not able to identify particular
individuals who were in the group at that time , testified
that he told the group they had been replaced
Between 31 December and 14 January Black received
telephone calls from at least three employees including
Annie West Gwenda Crawford , and Annette Wood
ward , asking if they could return to work Black testa
fled I explained to them all that they had been re
placed Black does not claim that he told any of these
individuals about any prospect of returning to work with
Respondent
In an effort to show that employees were neither dis
charged nor suspended , but were simply replaced in the
same manner that economic strikers may be replaced,
Respondent offered into evidence two newspaper articles
from the Columbus, Georgia Enquirer" dated 3 and 8
January 1987 The article dated 3 January contains the
following relevant paragraphs
Twenty one employees of Cargill Poultry s proc
essing plant here claim they re being replaced after
seeking better working conditions
[Employee Zelma Ghant] said workers were told
they had 3 minutes to go back to work or clock
out They refused and were told they were suspend
ed and ordered to leave , she said
They [employees] said they later heard from
other employees that they had been fired
The article that appeared on 8 January contains the
followingrelevant paragraphs
A group of workers who were fired by Cargill
Inc last week are picketing the poultry processing
company 's Buena Vista , Georgia, plant until they
get justice,' a spokeswoman said Wednesday
CARGILL POULTRY CO 743
New workers were hired to replace the 22
women the day after they left the plant General
Manager William Tracey said in a prepared state
ment
While those employees have been replaced, they
are subject to recall if jobs become available within
the plant," Tracey said He refused to answer spe
cific questions about the walkout
The article dated 8 January does not contain any state
ment by Tracey that would indicate he specifically
denied or attempted to respond to the statements con
tained in the article dated 3 January that employees had
been "suspended or had been fired'
On 14 January 1987, Respondent mailed letters to each
of the employees setting forth their status with Respond
ent The letter first referred to the fact that ' replace
ments" had been hired in their place The letter then in
formed them of their status as follows
In order to be considered for any job vacancy
occurring in the plant you must make an uncondi
tional offer to return to work If you wish to make
an unconditional offer to return to work, you
should personally contact David Black, the person
nel manager
You will be placed on a hire list
You will then be eligible for any plant openings
for which you are qualified unless you have in the
meantime obtained regular and substantially equiva
lent employment Your life, dental and health insur
ance benefits will continue through February 1
1987 You may continue these benefits by paying
the cost yourself If you wish to continue coverage,
you will have to contact David Black before Janu
ary 23, 1987
On 5 February 1987, Respondent mailed another,
almost identical letter to employees After these letters
were sent to employees, five employees responded by
contacting Black At some later date, all five of these
employees were offered positions with Respondent and
four of the five have returned to work
Analysis and Conclusions
The position of counsel for the General Counsel is
simple and straightforward He points out Respondent
admits that the employees action in ceasing work on 31
December was concerted The work stoppage resulted
from employee complaints concerning it being too cold
in their work area and therefore related to their working
conditions Accordingly, the employees conduct was
both concerted and protected activity The General
Counsel argues that based on the admissions of Personnel
Director Black it is clear that employees were suspend
ed Citing Conair Corp, 261 NLRB 1189 1190 (1982)
and Pennypower Shopping News, 253 NLRB 85 (1980) the
General Counsel argues that Respondents conduct con
stitutes a clear violation of Section 8(a)(1) of the Act
Respondents position is more convoluted In its post
trial brief, Respondent argues, The cases establish that
the General Counsel has the burden of proving that the
employer engaged in a course of conduct which would
have led reasonably prudent striking employees to con
clude that they had been discharged (Emphasis sup
plied) Respondent argues at length why it should be
found that the employees involved in this work stoppage
were not discharged Respondent discusses numerous
cases and, in conclusion, argues that its own conduct is
inconsistent with a finding that its employees were dis
charged This entire line of argument is misplaced for the
simple reason that the complaint does not allege, and the
General Counsel does not argue that the employees
were discharged Rather, the complaint alleges that the
employees who engaged in the work stoppage on 31 De
cember were suspended
Reduced to its simplest form, Respondents primary ar
gument is that the employees were not actually suspend
ed for engaging in the work stoppage on 31 December
Personnel Director Black admits he told the employees
who engaged in the work stoppage on 31 December that
they were suspended pending investigation ' In its post
trial brief, Respondent acknowledges Counsel for Gen
eral Counsel will argue that the use of the word suspen
sion is disciplinary in nature The brief continues, The
company concedes that this is the usual connotation of
the term Nevertheless, Respondent argues that the
Act of suspension never took place Respondents argu
ment that employees were not actually suspended is
based on the fact that no record of a suspension was ever
made on employee personnel files the employees were
carried on company records in a leave of absence status
and Respondent continued insurance coverage of the em
ployees and eventually informed them in writing that
they had the right to continue insurance coverage by
paying the premiums themselves In essence Respondent
argues it should not be found to have suspended the em
ployees because the Company treated the employees
consistent with their status as strikers I reject Respond
ent s argument that these facts may be relied on to find
that the employees were not suspended To rely on these
facts is to analyze the situation from Respondents own
perspective
In its posttnal brief Respondent acknowledges that
the appropriate standard necessarily requires the Board
to view the communications made by the employer
through the eyes of the employees Respondent, like
counsel for the General Counsel, cites Pennypower Shop
ping News supra I conclude that through the eyes of the
employees, they had every reason to believe they were
in fact, suspended by Respondent for the engaging in the
protected concerted work stoppage on 31 December
While employees were told on 31 December that no one
was going to be fired for engaging in the work stoppage,
they were also told that if they did not return to work in
5 minutes they would be clocked out After being
clocked out Personnel Director Black accompanied the
employees to Respondents entrance gate At that point
Black informed the employees not once but twice that
they were suspended pending investigation Black also
told the employees that Respondent would inform them
of their status by telephone or through the mail The em
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees were in no position to know that Respondent
carried them on company records in a leave-of-absence
status. Nor did they have anyway of knowing prior to 14
January that Respondent was continuing insurance cov-
erage for their benefit. Black admits that between 1 Janu-
ary and Respondent's letter on 14 January, at least four
employees telephoned Black asking about their job status
and/or seeking to be reinstated. Black simply told them
that they had been replaced, a fact not inconsistent with
a disciplinary suspension. Black does not claim to have
told any of these employees that they had not actually
been suspended, that he misspoke when he told them
they had been suspended, or that Respondent was treat-
ing them as "strikers." As Respondent's own evidence
indicates, the employees were quoted in a newspaper ar-
ticle on 3 January as having been told by Respondent
that "they were suspended and ordered to leave." Al-
though General Manager Tracey released a prepared
statement to the news media on 7 January, which was
quoted in part in an article on 8 January, Tracey simply
stated, "While those employees have been replaced, they
are subject to recall if jobs become available within the
plant." Tracey said nothing in his statement to counter
or correct Black having told employees that they had
been suspended or the statements reported in the prior
news article of 3 January that employees had been "sus-
pended and ordered to leave." Through the eyes of the
employees, they had every reason to believe they had
been suspended, as they had been told, not by a supervi-
sor, but by Respondent's own personnel director. Based
on the above, I also find that the employees who en-
gaged in the protected concerted work stoppage on 31
December were in fact suspended for doing so, and Re-
spondent thereby violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent Cargill Poultry Company is, and has
been at all times material , an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The employees of Respondent , named below, who
worked in Respondent 's cut-up department , engaged in a
concerted work stoppage to protest working conditions
at Respondent 's facility , and that work stoppage was
protected concerted activity within the meaning of the
Act.
3. Respondent suspended the employees named below
because they engaged in a protected concerted work
stoppage , and Respondent thereby violated Section
8(a)(1) of the Act:
Brenda Porter
Ernestine Chinn
Elnora Taylor
Annette Woodward
Bernice Richardson
Loretta Hudson
Beverly Riggins
Patsy Carter
Mary Banks
Virginia Hubbard
Teresa Thornton
Zelma Ghant
Emma Street
Gail Denmark
Sylvia Wilson
Gloria Smith
Barbara Hall
Shirley Sistrunck
Ellin.e Johnson
Gwen Crawford
Fannie Pugh
Annie West
4. The unfair labor practices that Respondent has been
found to have engaged in, as described above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) of
the Act, 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.
Counsel for the General Counsel argues that because
employees were discriminated against while engaged in a
protected work stoppage, i.e., a strike, the appropriate
remedy should include backpay from the date they were
suspended to the date when Respondent should offer
them reinstatement, and not from the date of any uncon-
ditional offer by them to return to work. The General
Counsel relies on Abilities & Goodwill, 241 NLRB 27
(1979), cited with approval by the Board in GSM, Inc.,
284 NLRB 174 fn. 4 (1987); and Goodie Brand Packing
Corp., 283 NLRB 673 (1987).
Respondent argues that the type of remedy set forth in
Abilities & Goodwill, supra, is not appropriate. Respond-
ent argues, "Abilities & Goodwill applies only in the case
of the discharge of strikers, which in theory generally
makes an offer to return to work by the strikers a futile
effort." Alternatively, Respondent argues that if backpay
is appropriate, "It is apparent that the amount of back-
pay should not exceed the period of suspension," which
Respondent argues ended by its letter to employees on
14 January. At first blush, Respondent's argument that
the suspension of the employees ended with its letter to
them on 14 January carries considerable appeal. There is
no question that Respondent's letter of 14 January put
the employees in the same position they would have
been in had they gone out on strike on 31 December and
remained on strike throughout that period. As of 14 Jan-
uary, Respondent acknowledged to the employees that it
would accord them rights due economic strikers as re-
quired by Laidlaw Corp., 171 NLRB 1366 (1968), enfd.
414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920
(1970). The flaw in Respondent's argument, however,
and the reason I reject it, is that Respondent's letter to
employees on 14 January did not in fact remedy the
unfair labor practice. Replacements were hired not while
the employees were on strike but while they were sus-
pended. While Respondent argues that the type of
remedy in Abilities and Goodwill, supra, is not appropriate
because it applies only when an offer to return to work
by the strikers would be a futile effort, and according to
Respondent the strikers in this case had no basis for be-
lieving that an offer to return to work would be futile.
The facts here show that at least four employees who
did attempt to return to work between 31 December and
14 January were told they could not do so because they
had been replaced. Thus, while the unfair labor practice
had not been remedied, the efforts of the employees to
CARGILL POULTRY CO
return to work were flatly rejected by Respondent Re
spondent should not be allowed to benefit from its unfair
labor practice by securing replacements for the discri
manatees while they were on suspension I fmd that Re-
spondent s unfair labor practice cannot be fully remedied
until it offers to reinstate the suspended employees to the
job positions they held prior to being suspended, even if
it means discharging, if necessary, the replacements that
were hired during the period of the suspension For this
reason, I conclude that the backpay remedy set forth in
Abilities & Goodwill, supra, is the appropriate remedy to
use in this case
Counsel for the General Counsel has requested that
the remedy include a visitatonal clause giving the Gener
al Counsel certain specific discovery powers during the
compliance stage of this proceeding The Board has
granted such a request only on a case by case basis when
it has felt such a clause is warranted Counsel for the
General Counsel points to no specific facts and no spe
cial circumstances that would warrant such a clause in
this case and the request is denied
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
edi
ORDER
The Respondent Cargill Poultry Company, Buena
Vista Georgia its officers, agents , successors, and as
signs, shall
1 Cease and desist from
(a) Suspending or otherwise discriminating against em
ployees for engaging in a protected concerted work stop
page called to protest working conditions
(b) In any like or related manner interfering with, re
straining or coercing employees in the exercise of their
rights guaranteed them in Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Brenda Porter, Ernestine Chinn, Elnora
Taylor Annette Woodward Bernice Richardson Loret
to Hudson, Beverly Riggins Pasty Carter Mary Banks,
Virginia Hubbard, Teresa Thornton Zelma Ghant,
Emma Street, Gail Denmark Sylvia Wilson Gloria
Smith Barbara Hall Shirley Sistrunck Elline Johnson,
Gwen Crawford, Fannie Pugh and Annie West immedi
ate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights or
privileges, discharging if necessary any replacements for
these employees
(b) Make whole the employees named above for any
loss of earnings or benefits they may have suffered by
reason of the discrimination against them by paying them
a sum of money equal to the amount they normally
would have earned from the date of the discrimination to
the date of Respondent's offer of reinstatement less net
' If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
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 pur
poses
745
interim earnings , with backpay to be computed in the
manner described in F W Woolworth Co, 90 NLRB 289
(1950), with interest to be computed in the manner pre
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987)
(c) Remove from its files any reference to the suspen
sion of the employees named above and notify them in
writing that this has been done and that evidence of the
unlawful suspensions will not be used as a basis for
future personnel actions against them
(d) Preserve and on 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 nec
essary to analyze the amount of backpay due under the
terms of this Order
(e) Post at its Buena Vista, Georgia facility copies of
the attached notice marked Appendix 2 Copies of the
notice, on forms provided by the Regional Director for
Region 10, after being signed by the Respondents au
thorized representative, shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
2 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 Nation
al 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
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
violated the National Labor Relations Act and has or
dered 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 protec
tion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT suspend or otherwise discriminate
against employees for engaging in a protected concerted
work stoppage called to protest working conditions
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere
with , restrain or coerce employees in the exercise of the
rights guaranteed them in Section 7 of the Act
WE WILL offer Brenda Porter , Ernestine Chinn,
Elnora Taylor , Annette Woodward , Bernice Richardson
Loretta Hudson , Beverly Riggins , Pasty Carter Mary
Banks, Virginia Hubbard , Teresa Thornton, Zelma
Ghant, Emma Street , Gail Denmark , Sylvia Wilson,
Gloria Smith , Barbara Hall, Shirley Sistrunck , Elllne
Johnson , Gwen Crawford , Fannie Pugh , and Annie West
immediate and full reinstatement to their former jobs or,
if those jobs no longer exist , to substantially equivalent
positions without prejudice to their seniority and other
rights and privileges
WE WILL make whole the individuals named in the
preceding paragraph for any loss of earnings or benefits
they may have suffered by reason of the discrimination
against them and pay to them a sum of money equal to
the amount they normally would have earned from the
date of the discrimination to the date of our offer of rein
statement , less net interim earnings, with appropriate in
terest
WE WILL remove from our files any reference to the
suspension of the individuals named above and notify
them in writing that this has been done and that evi
dence of the unlawful terminations will not be used as a
basis for future personnel actions against them
CARGILL POULTRY COMPANY