Corn Brothers, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1982

262 N.L.R.B. 320 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corn Brothers, Inc. and Randy A. Whitten and
Retail, Wholesale and Department Store Union
AFL-CIO. Cases 10-CA-16763 and 10-RC-
12296
June 21, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On October 19, 1981, Administrative Law Judge
Lawrence W. Cullen issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed an answering brief to Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act. as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Corn Brothers,
Inc., Birmingham, Alabama, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
IT IS FURTHER ORDERED that the proceeding in
Case 10-RC-12296 be, and it hereby is, remanded
to the Regional Director for Region 10 to open
and count the ballots of Cecil Montgomery, Forbus
Lee Russell, Jr., and Randy A. Whitten and to pre-
pare a revised tally of ballots, including therein the
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951) We have
carefully examined the record and find no basis for reversing his findings.
2 We disagree with the Administrative Law Judge's conclusion that
"knowledge of the union activities of all three discnminatees may be in-
ferred and imputed to Respondent on the basis of the snall plant rule."
There is no evidence that any in plant organizing took place. To the con-
trary there is evidence that an effort was made to conceal organizing ac-
tivitiets from Respondent by making all contacts away from work.
However, we find that Respondent became aware of the organizing ac-
tivity through a conversation between Supervisor Billy Gilliam and em-
ployees Russell and Whitten on December 1, 1980. Although Russell
raised the issue of unionization with Gilliam in only general terms, it is
clear from the force with which Gilliam reacted to his remark that it
conveyed to him that a union campaign at Corn Brothers was in progress
or imminent.
262 NL.RB No. 41
count of such ballots, upon the basis of which he
shall issue the appropriate certification.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CUILLEN, Administrative Law Judge:
This case was heard before me on July 13, 1981, in Bir-
mingham, Alabama. I The hearing was held pursuant to a
complaint issued and consolidated with an election chal-
lenge proceeding by the Regional Director for Region
10 of the National Labor Relations Board on April 14,
1981. The complaint is based on charges filed by Randy
A. Whitten, an individual, on behalf of himself and Cecil
Montgomery, and Forbus Lee Russell, Jr., individuals.
The complaint alleges violations of Section 8(a)(3) and
(1) of the Act by Corn Brothers, Inc. (hereinafter re-
ferred to as Respondent), and was joined by the answer
of Respondent wherein it denied the commission of the
alleged unfair labor practices.
The election proceeding involved in this hearing arises
from the challenges of the ballots of the three alleged
discriminatees (Whitten, Montgomery, and Russell) at a
consent election involving Retail, Wholesale and Depart-
ment Store Union, AFL-CIO (hereinafter referred to as
the Union), conducted on February 25, 1981. The three
ballots were challenged by the Board agent because their
names did not appear on the voter eligibility list. Since
the layoffs of Whitten, Montgomery, and Russell are the
subject of the above alleged unfair labor practices, the
cases were consolidated on the ground that they have
substantial and material factual issues which may appro-
priately be resolved by record testimony at a hearing.
Upon the entire record in this proceeding, including
my observations of the witnesses who testified herein,
and after due consideration of the briefs filed by counsels
for the General Counsel and Respondent, I make the fol-
lowing:
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondent admits. and I find, that it is a Delaware
corporation engaged in !he operation of a distribution fa-
cility for automotive oil and related products and has an
office and place of business located in Birmingham, Ala-
bama. Respondent admits, and I find, that during the past
calendar year, which period is representative of all times
material herein, it sold and shipped from its Birmingham,
Alabama, facility products valued in excess of $50,000 di-
rectly to customers located outside the State of Alabama.
Respondent admits, and I find, that it is, and has been at
all times material herein. an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
I All dates are in 1980, unless otherwise stated.
320
CORN BROTHERS, INC.
II1. THE STATUS OF THE LABOR ORGANIZATION
Respondent admits, and I find, that the Union is, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
11I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a wholly owned subsidiary of Quaker
State Oil Refining Corporation. Respondent has its head-
quarters in Atlanta, Georgia, and operates several divi-
sions including one in Birmingham, Alabama. Respond-
ent's chief operating officer is Homer Ellenburg who
was its president at the time of the hearing and an execu-
tive vice president in 1980. Marshall Snow is the branch
manager of the Birmingham division and has overall re-
sponsibility for the Birmingham facility with primary em-
phasis on sales. Mike Canning is the Birmingham division
operations manager and has responsibility for warehouse
operations and counter sales. Billy Gilliam was described
by Snow as the "dock foreman or loading clerk" and by
discriminatees as warehouse manager.
I find that Ellenburg, Snow, and Canning were super-
visors within the meaning of Section 2(11) of the Act at
all relevant times herein as demonstrated by the undis-
puted evidence at the hearing of their ability to hire and
fire and overall responsibility for the management and
supervision of employees. Moreover, Respondent stipu-
lated to the supervisory status of Canning at the hearing.
Respondent denies the allegation in the complaint that
Gilliam was a supervisor within the meaning of Section
2(11) of the Act. However, it is undisputed that Gilliam
is a salaried (as opposed to hourly paid employee) and
does not punch a timeclock as other employees do. Dis-
criminatee Whitten testified that Snow referred to Gil-
liam as the warehouse manager on Whitten's first day of
employment. Employees Montgomery, Russell, and
Whitten testified concerning Gilliam's authority (and ex-
ercise thereof) to grant time off, to direct the employees,
and to assign work. Whitten and Montgomery testified
that Gilliam reported to them that he had discharged an
employee on one occasion. Whitten testified that, on one
occasion Gilliam told an employee to punch the clock
and go home if he did not want to work. Whitten and
Montgomery testified that, on one occasion when they
were late returning from a break, Gilliam told them that
if they were late returning from a break again, they
could punch out and go home. Canning and Snow testi-
fied to the effect that Gilliam had no authority to recom-
mend disciplinary action but that his comments would be
listened to. Gilliam did not testify. I credit the testimony
of Montgomery, Russell, and Whitten concerning the in-
dicia of supervisory authority by Gilliam as outlined
above, which is largely unrebutted. Accordingly, I find
that Gilliam was a supervisor within the meaning of
Section 2(11) of the Act at all relevant times herein. See
Dennis C. Ehrhardt d/b/a Americraft Manufacturing
Company, 242 NLRB 1312 (1979).
It is undisputed that Montgomery, Russell, and Whit-
ten were hired by Canning on September 15, 1980. Whit-
ten was hired to work in the parts department. Mont-
gomery and Russell were hired as truckdrivers. All three
employees were hired as probationary employees and
were scheduled to become permanent employees upon
successful completion of a 90-day probationary period.
They testified that they were told by Canning at their
time of hire that the Birmingham division had never had
a layoff for lack of work and were assured of steady em-
ployment if they were willing to work.
In late November and early December, Respondent
conducted its annual evaluation of all of its employees in-
cluding the three discriminatees. All three employees
were told by Canning that Respondent was pleased with
their performance and were either given raises or told
they would be given raises the first of January. Whitten
testified he was given his probationary evaluation by
Canning and was told he had successfully completed his
probation in early December prior to the December 15
official end of his probationary period. He testified that
uniforms were ordered for him (which were reserved for
permanent employees) and he was placed under Re-
spondent's health insurance program.
Montgomery, Russell, and Whitten testified that there
was no shortage of work. Montgomery testified that he
asked Canning for overtime about the first week of De-
cember and was told he would be assigned overtime to
enable him to increase his earnings prior to the holiday
season. Snow testified that Canning was new in the job
and would not have been familiar with whether there
had been prior layoffs. Canning testified that he did not
recall discussing layoffs with Montgomery, Russell, and
Whitten. Respondent's records show that there had been
no prior layoffs of drivers at the Birmingham facility in
the past 9 years. Snow and Canning also testified that on
occasion employees were given health insurance cover-
age prior to the completion of their probationary periods
as an extra incentive in lieu of a raise to retain them and
also on the basis of need. Canning testified that he did
not recall a discussion with Whitten concerning the com-
pletion of his probationaay period.
I credit the specific testimony of Montgomery, Rus-
sell, and Whitten over the testimony of Canning con-
cerning Canning's representations to them that there
would be no layoffs. I credit Whitten's testimony over
Canning's testimony and I find that Canning had told
Whitten in early December that he had successfully
completed his probationary period. Whitten's testimony
is supported in part by the assignment of uniforms which
were normally reserved for permanent employees and by
his enrollment in the insurance program. I credit the un-
rebutted testimony of Montgomery, Russell, and Whitten
concerning positive evaluations they had received from
Canning in early December and the raises given to
Montgomery and Russell. I also credit the unrebutted
testimony of Montgomery, Russell, and Whitten that
there was no shortage of work. I found Montgomery,
Russell, and Whitten to be credible witnesses who had
specific recall of the events.
Russell and Whitten testified that approximately the
first of December they were commencing work after a
break and were discussing the fact that Quaker State Oil
Refineries (the parent company) was unionized whereas
321
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent was not. They were approaching Gilliam,
and Russell asked him why Quaker State Oil Refineries
was unionized whereas Respondent was not. Whitten tes-
tified that Gilliam told them that there had been a prior
attempt to unionize Respondent by the truckdrivers who
had struck I day and that "Jack Corn came over here
from Atlanta and gave them a little bit more money.
And then he (Gilliam) told me he (Corn) picked them off
one by one until he had got rid of all of them." Whitten
testified that Gilliam then said, "Don't try to get a union
in or they'll fire you." Russell testified concerning this
conversation that Gilliam said, "Jack Corn will close the
doors if there is a union brought in." Gilliam did not tes-
tify and the testimony of Russell and Whitten was not re-
butted by Respondent. I credit the testimony of both
Russell and Whitten concerning Gilliam's statements to
them. Although they each recalled different statements
having been made by Gilliam, I find their recall of sepa-
rate statements by Gilliam as parts of the overall discus-
sion to be mutually corroborative concerning Respond-
ent's union animus as expressed by Gilliam. I credit their
testimony that Gilliam made each of the statements at-
tributed to him. Corn is Respondent's general manager.
Whitten also testified that Gilliam offered him a ride
home that day and on the way home Gilliam told him,
"About what you were talking about earlier in the day
about the union, I'm serious, Jack Corn will close the
plant down and you'll lose your job." I credit the unre-
butted testimony of Whitten concerning Gilliam's state-
ment on this occasion.
Whitten testified that he contacted the National Labor
Relations Board office and was informed by a Board rep-
resentative of "our rights; that we could either join an
existing union or start our own independent union."
Whitten "decided it would be better to join an existing
union . . ." and contacted Henry Jenkins, International
representative for the Union, on December 9. Jenkins set
a meeting for December 13, the following Saturday, with
the employees of Respondent to discuss union organiza-
tion of Respondent. The meeting was attended by 9 or
10 employees (warehouse employees and truckdrivers)
including Montgomery, Russell, and Whitten. Respond-
ent then employed approximately 10 or 11 warehouse
employees and truckdrivers. According to Jenkins, all
the employees at the meeting signed union authorization
cards. Jenkins testified that prior to obtaining the cards
at the meeting he related an incident concerning a prior
attempt by the Union to organize Respondent wherein
Respondent had allegedly terminated the employees
shortly thereafter. Concern was expressed about the ad-
visability of the Union contacting Respondent prior to
the completion of the probationary periods of Montgom-
ery, Russell, and Whitten, although Whitten was certain
he had successfully completed his probation. It was de-
cided at the meeting that Jenkins would wait until Tues-
day, December 16, to request recognition of the Union in
order that the employees could be certain their proba-
tionary period had been completed. Montgomery, Rus-
sell, and Whitten testified they discussed the Union with
other employees and participated in union meetings.
Montgomery testified he distributed union cards to two
employees who did not attend the meeting. I credit the
above unrebutted testimony of Jenkins, Montgomery,
Russell, and Whitten.
Jenkins testified that he called Respondent on Tues-
day, December 16, between 9:30 and 11 and left his
office at 11 a.m. to go to a meeting out of town. Jenkins
testified that he asked to talk to Snow and identified him-
self and told Snow he represented the Union and that a
majority of Respondent's employees (at the Birmingham
division) "had joined the Union," and Jenkins requested
that Respondent commence bargaining at that time and
that Snow told him, "You are talking to the wrong one."
Jenkins asked whom he should talk to, "and he (Snow)
said he didn't know, and he hung up, and that was the
extent of the conversation." Jenkins was questioned on
cross-examination concerning the Union's petition for
certification, which indicates a request for recognition
was made on December 16. Jenkins testified that he
filled out the petition December 16. The petition was
mailed and bears a filing date of "12-29-80" (the date of
receipt). Respondent contends that the late receipt of the
petition is evidence that Jenkins did not call Snow on
December 16.
Montgomery and Whitten testified that on Tuesday,
December 16, at approximately 2:30 p.m., they were
called into Snow's office and Snow told them he hated
to do it so close to Christmas but would have to lay
them off. Montgomery testified that he inquired why
only he and Whitten were affected and that Snow stated
Russell was gone for the day but would also be laid off
when he returned to work. Montgomery also testified
that he inquired whether they were laid off or fired and
Snow told them they were laid off but could not tell
them whether they would be recalled. Russell testified
that the next morning he reported to work and was told
by Gilliam to report to Snow. Russell testified that Snow
told him "he hated to lay me off so near Christmas but
because of lack of work he was going to have to lay me
off." Russell testified that he replied, "Mr. Snow, you
can't tell me there's a lack of business when out of the
past ten days, I've worked three or four days over-
time,"2 and that Snow then said, "This is not from me,
this is from the home office." Russell testified that, in re-
sponse to his question, Snow told him he was laid off
rather than fired and would be reemployed the end of
February or the first of March. Snow testified that he
did not mention recall or reemployment in his conversa-
tion with Montgomery, Russell, and Whitten and did not
recall whether Russell had brought up the subject but
did not otherwise rebut the testimony of Montgomery,
Russell, and Whitten concerning what took place at the
time of their terminations. I credit the testimony of
Montgomery, Russell, and Whitten as set out in this
paragraph. I found their testimony specific and convinc-
ing, and largely unrebutted by Snow.
Respondent contends that it had no knowledge of a
union organizational campaign at the time of the layoffs
of Montgomery, Russell, and Whitten. Respondent as-
serts an economic defense. Initially, Snow denies that he
2 It was developed through cross-examination that Russell was refer-
ring to overtime on specific days for which he was given compensating
time off but did not refer to more than a 40-hour week.
322
CORN BROTHERS, INC.
was called by Jenkins on Tuesday, December 16, but
rather contends he received this call on Friday, Decem-
ber 19. Snow testified he was called by Ellenburg on
Monday, December 15, and that Ellenburg "mentioned
the reports that he had, showed that we were in a de-
clining business profit situation and that we needed to
take some action" and that Ellenburg "suggested that we
lay off some people, and he suggested the last three
people that were hired should naturally be the ones that
we should let go." (Emphasis supplied.) Snow testified
that Canning was on vacation that week and that his
own workload was heavier as a result. He testified that
he did not take the action recommended by Ellenburg
immediately as, "Well, I was pretty pressed for time, I
mean, a matter of a day or two wouldn't make any dif-
ference, I didn't think." Snow testified he then left the
office at 9 or 10 a.m. that day (Monday, December 15)
and went to Gadsden, Alabama, to pick up a new sales-
man (Nelson Wright). He testified that they "ate lunch,
and made a call, and drove back to Birmingham. I got
back sometime in the early afternoon." Snow testified
that he left the office at 7 a.m. on Tuesday and met
Wright in Gadsden again to work in Gadsden. As "I
meant to work the entire day in Gadsden with Nelson
Wright .... " He testified that he met Wright at Beaver
Chemical Company, a subsidiary of Respondent, and that
General Manager Jack Corn was present and they en-
gaged in discussions until 11 a.m., when they went to
lunch. Snow testified that he returned to his office in
Birmingham at 3 or 3:30 p.m. that day and then talked to
Montgomery and Whitten. Snow identified his expense
account (Resp. Exh. 5) and that of Corn (Resp. Exh. 6)
for the workweek of December 15 through 19. As point-
ed out by the General Counsel, a review of Snow's ex-
pense account shows that the dates were marked over
and changed from the workweek of December 22
through 26 to the workweek of December 15 through
19. Snow's expense account purports to show trips to
Gadsden on December 15, 16, and 18. Corn's expense ac-
count shows a trip to Gadsden on December 16. Howev-
er, neither expense account makes any reference to the
time spent by Snow in Gadsden or whether he was in
Birmingham for any length of time on December 15 or
16.
Snow testified that he did not receive a telephone call
from Jenkins until Friday, December 19. He testified that
he heard a rumor of a union organizational campaign on
Wednesday morning (December 17) but prior to that he
had no knowledge of union organizational activities.
Snow testified that after he heard this rumor, "I called
Mr. Ellenburg and told him it looked like we were
having a little problem" and, "Well, any time it looks
like you're going to be organized, it's a problem." He
testified that it was Respondent's policy to be opposed to
union organization of its employees. He testified that he
received a telephone call from Jenkins on Friday, De-
cember 19, and immediately called Ellenburg and told
him that he had been contacted by a labor organization.
Jack Corn did not testify. Salesman Nelson Wright tes-
tified that he recalled meeting with Snow in Gadsden
(where Wright resides) on Monday, December 15, at the
Beaver subsidiary location at midmorning, which was his
first day of employment with Corn Brothers; that he met
with Snow in Gadsden on Tuesday, December 16, at the
same location between 8:30 and 9 a.m.; and that he and
Snow spent the morning talking with Jack Shields (the
manager of the Beaver subsidiary in Gadsden) and Jack
Corn, and then they went to lunch and later made a call
on a customer until about 2:30 p.m. Snow then left for
Birmingham to return to Corn Brothers and he (Wright)
stayed in Gadsden. Wright's expense account for the
workweek of December 15 through 19 was not intro-
duced by Respondent at the hearing. Wright was unable
to recall whether Snow was in Gadsden any other times
during the workweek of December 15 through 19 or the
following week.
Respondent's president, Ellenburg, testified that Re-
spondent had experienced growth during the 1970's but
as a result of economic conditions (the inflation rate on
petroleum products, declines in mileage driven by the
average motorist, and improved technology which de-
creased the amount of oil used) the market in 1980
became "flat" and "we see no change in the forseeable
future." Ellenburg sent a letter to the branch managers in
January 1980 (Resp. Exh. 11) outlining the need to con-
trol operating costs and that no new employees should
"be added without approval from the Executive Com-
mittee." Ellenburg testified that "by June our overall
corporate figures were showing that we were operating
with less people and we were making a profit" but that
the consolidated report did not show what the individual
divisions were doing. Ellenburg testified that consequent-
ly, "I asked our payroll department to give me, at the
end of each month, beginning in June, a spread sheet
showing each division, each job classification, the
number of people for '79 versus the number of people in
'80, plus the dollars paid out" in order that I could
"monitor how many people we had versus last year and
whether they were working overtime by dollars paid
out."
Ellenburg identified (Resp. Exh. 12) a series of 1979
and 1980 reports comparing gallons sold of oil and oil re-
lated products and the gross sales dollars generated by
those sales by division. These reports show a substantial
decrease in the gallons sold in 1980 from those sold in
1979 but a higher sales volume. Respondent's Exhibit 13
is the profit and loss statement for the Birmingham
division and shows a comparison of the monthly and ac-
cumulated year to date results for 1980 and 1979. This
exhibit shows that in April 1980 the Birmingham division
incurred a loss of $6,369 in the category "Net Profit
From Operations" and, after an adjustment for depreci-
ation, a loss of $10,185 in the category "Net Profit
Before Other Income" and that in November 1980 the
Birmingham division incurred a loss of $7,653 in the cat-
egory "Net Profit From Operations" and after an adjust-
ment for depreciation a loss of $10,860 in "Net Profit
Before Other Income." Ellenburg testified that he re-
ceived the "preliminary profit figures on Friday (Decem-
ber 12)" for Birmingham which indicated an $11,000 loss
and a decrease of $30,000 to $40,000 in profits from the
323
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preceding year.3 Ellenburg testified that he reviewed the
"spread sheet" on personnel and reviewed the informa-
tion over the weekend but was unable to determine the
reason and that on Monday morning (December 15) he
went to the personnel department and determined that
there were three probationary employees subject for
review who should not have been hired. Ellenburg testi-
fied that he had not made the decision to terminate the
employees earlier as, "Well, I was not aware that we had
these three individuals and when he had the drastic' loss
there after the trend, I dug further, and I could see the
reason immediately; that our operating expenses were up,
volume down, and we couldn't make a profit in the for-
seeable future if we didn't reduce overhead." Ellenburg
testified that he telephoned Snow on Monday morning
and, "I told him that we'd lost $10,000 or $11,000 in No-
vember; that I was concerned that the trend had contin-
ued with declining profits. And furthermore, I have
found that we got three people that are probationary em-
ployees that we just hired that we don't need. And I said
you need to immediately terminate them .... " (Empha-
sis supplied.) Ellenburg placed the time of his call at 9 or
9:30 a.m. (Atlanta time) to Snow (which would be 8 to
8:30 a.m. in Birmingham). Ellenburg testified that it was
his decision to lay off the three probationary employees
and that he confirmed his decision by memo to Snow
(G.C. Exh. 3) because he felt it was important. Ellenburg
testified that he initially became aware of union activity
at the Birmingham division on Wednesday or Thursday
(December 17 or 18) when Snow told him "the rumor-
mill was that some people were mentioning union," and
he (Ellenburg) considered it to be a reaction to the layoff
of the three employees and "discounted" the rumor. El-
lenburg testified that on Friday morning he received a
telephone call from Snow who told him that a union or-
ganizer had called and stated that a majority of the "em-
ployees had signed union cards and he wanted to come
over and negotiate a contract." Ellenburg testified that
he immediately placed a call to Don Smith, the manager
of industrial relations for Quaker State Oil Refineries
Corporation (the parent company), and sought his guid-
ance. Ellenburg testified on cross-examination that he
told Snow that "on the 15th [the date of his call to
Snow] their 90-day probationary period was up and we
should go ahead and do this without delay." Ellenburg
testified he did not discuss with Snow whether other em-
ployees should be laid off at the Birmingham facility. In-
dustrial Relations Manager Don Smith testified that he
received a call from Ellenburg on Friday, December 19,
and he noted the call on his calendar as "Corn Union
Call" (Resp. Exh. 18).
The General Counsel recalled Whitten as a rebuttal
witness who testified that on Tuesday, December 16, at
11 a.m. he saw Snow leave his office and that Snow
stated he was going to lunch. Whitten did not mention
s The SI1,000 loss apparently refers to the "Net Profit Before Other
Income" loss of $10,860. There were several months during 1980 when
"Net Profit Before Other Income" decreased from the preceding year in
the Birmingham division (March 1980-a decrease of $19,938 from
March 1979; April 1980-a decrease of $28,069; May 1980-a decrease of
S2,543; June 1980-a decrease of $17,257; August 1980-a decrease of
$5,452; October 1980--a decrease of S1,640; and November 1980-a de-
crease of $33,270.)
this in his affidavit nor was he questioned concerning
this during his prior testimony at the hearing.
B. Analysis
1. The statements by Gilliam to Montgomery and
Whitten
As set out in the statement of facts, I have credited the
unrebutted testimony of Montgomery and Whitten con-
cerning the statements made by Gilliam to them.
Gilliam's statements to Montgomery and Whitten (that
if they attempted to "get a Union in" they would be dis-
charged and that "Jack Corn will close the doors if there
is a union brought in," and later in the day to Whitten
that Jack Corn would "close the plant down" and Whit-
ten would lose his job) clearly constituted unlawful
threats that economic sanctions would be imposed on
employees who engaged in union activity at Respond-
ent's facility and were violative of Section 8(a)(l) of the
Act. See Firmat Manufacturing Corp., 255 NLRB 1213
(1981).
2. The layoffs of Montgomery, Russell, and Whitten
Much of the evidence in this case is undisputed. Mont-
gomery, Russell, and Whitten were hired on September
15, 1980, and were scheduled to become permanent em-
ployees on the successful completion of a 90-day proba-
tionary period. It is undisputed that all three employees
received positive evaluations in late November or early
December from Canning, that Whitten was enrolled in
Respondent's health insurance program, and that uni-
forms were ordered for him although insurance benefits
and uniforms were normally furnished only to permanent
employees. The small size of the plant (approximately 18
employees) is also not in dispute.
The unrebutted credited testimony of the discrimina-
tees demonstrated that all three were active union adher-
ents with Whitten initially contacting the Union and ar-
ranging for the first meeting of the employees; and that
all three discriminatees engaged in discussions with other
employees and actively promoted the Union. The unre-
butted credited testimony of Jenkins, Montgomery, Rus-
sell, and Whitten showed that a decision was made at the
initial union meeting that Jenkins would call Respondent
on Tuesday and request recognition. I credit Jenkins' tes-
timony that he contacted Snow by telephone between
9:30 and 11 a.m. on Tuesday, December 16, and request-
ed recognition. The late receipt of the petition filed with
the Board does not convince me that Jenkins was incor-
rect. Jenkins' testimony is consistent with the determina-
tion at the union meeting of December 13 to call Re-
spondent on Tuesday, December 16. I credit Whitten's
testimony concerning Snow's presence at the office at 11
a.m. There was no evidence that the phone call was in
issue at the time of Whitten's affidavit. I do not credit
the testimony of Snow or Wright that Snow was in
Gadsden on Tuesday morning, at the time Jenkins testi-
fied he placed the call. I find Respondent had direct
knowledge of union activities at its Birmingham facility
by at least Tuesday morning on December 16. I also find
that Respondent's knowledge of Russell's and Whitten's
324
CORN BROTHERS, INC.
interest in the Union may be inferred by reason of their
discussion with Respondent's agent, Gilliam, who voiced
Respondent's union animus on December 1. I also find
that knowledge of the union activities of all three discri-
minatees may be inferred and imputed to Respondent on
the basis of the small plant rule. See Haynes Industries,
Inc., 232 NLRB 1092 (1977); Wiese Plow Welding Co.,
Inc., 123 NLRB 616 (1959). The evidence clearly estab-
lishes Respondent's union animus as reflected by Gil-
liam's threats to Montgomery and Whitten, and Snow's
testimony concerning Respondent's opposition to union-
ization of its Birmingham facility as borne out by Ellen-
burg's testimony concerning his reaction to union organi-
zation of the Birmingham facility.
I find that Montgomery, Russell, and Whitten were
engaged in concerted activities protected under Section 7
of the National Labor Relations Act, as amended, when
they participated in the Union's organizational campaign.
I find that Respondent had knowledge of their activities
which knowledge is imputed to Respondent by reason of
the discussion of Russell and Whitten with Respondent's
agent, Gilliam, and which knowledge concerning the
union activities of Montgomery, Russell, and Whitten is
inferred to Respondent by the application of the "small
plant" rule. I find that Respondent's union animus has
been demonstrated. In view of Respondent's knowledge
of the union activities engaged in by Montgomery, Rus-
sell, and Whitten, and Respondent's union animus and in
view of the timing of their discharges by Respondent
which occurred without prior warning less than a week
after the first union organizational meeting of December
13, I find that the General Counsel has made a prima
facie case that the discharges were motivated by an un-
lawful purpose to discourage union activity giving rise to
a violation of Section 8(a)(3) of the Act.
Respondent asserts an economic defense and contends
that the discharges were the result of a cost reduction
effort in response to losses incurred by the Birmingham
division in November and an overall policy introduced
in early 1980 in order to reduce payroll costs. I find Re-
spondent's economic defense to be inconsistent in several
respects. Initially, the evidence clearly shows that Re-
spondent's Birmingham division incurred significant eco-
nomic losses early in 1980 and continued to hire employ-
ees throughout the year including the discriminatees who
were hired in September 1980. The Birmingham division
hired 17 new employees in 1980, including the discrimin-
atees, following the January letter from Ellenburg con-
cerning the need to clear the replacement of employees
with him. Nine of the employees hired were listed as
drivers, one as a warehouse-driver employee and two as
warehousemen. At least three of these employees were
probationary drivers at the time of the occurrence of the
substantial loss incurred in April. Yet these employees
were not discharged. Rather, Respondent continued to
hire additional employees during the months of May,
June, July, and September 1980. Ellenburg's focus of at-
tention on Montgomery, Russell, and Whitten on the
ground that they were probationary employees appears
overemphasized as Ellenburg and Snow both testified
that under Respondent's policy employees (permanent,
probationary, or temporary) who have been laid off for
lack of work have no recall rights. Respondent's actions
in granting substantial wage increases to its employees,
including the discriminatees within a week or two prior
to the layoff of the discriminatees and in January 1981,
are inconsistent with reducing payroll costs. Ellenburg's
focus on the three discriminatees (whose combined
monthly gross earnings as derived from Resp. Exh. 15
did not exceed $2,500) as the cause or cure for a S10,000
deficit without any other evidence of cost reduction ef-
forts by Respondent gives rise to the inference that Re-
spondent's actions in terminating Montgomery, Russell,
and Whitten were motivated by their union activities
rather than a drive to reduce costs. I also find a glaring
inconsistency between Ellenburg's stated urgency in his
alleged call to Snow on Monday, December 15, that
Montgomery, Russell, and Whitten be terminated imme-
diately on their final day of probation and Snow's testi-
mony that he did not commence the layoffs until Tues-
day afternoon because lie was pressed for time and did
not think the matter of -i day or two would make any
difference. I do not credit Ellenburg's or Snow's testimo-
ny concerning the alleged economic reasons for the lay-
offs.
I find that Respondent's asserted defense that the lay-
offs were motivated by economic considerations is pre-
textual. See Limestone Apparel Corp., 255 NLRB 722
(1981); Eccomunity Farms. Inc., d/b/a Mountain Meats,
236 NLRB 1481 (1978). However, assuming, arguendo,
that Respondent was motivated in part by economic con-
siderations in discharging the discriminatees, I find that
Respondent has not demonstrated that the discharges
would have occurred in the absence of the discrimina-
tees' protected activities. I find that the General Counsel
has made a prima facie case that Respondent has violated
Section 8(a)(3) and (1) of the Act in discharging Cecil
Montgomery, Forbus Lee Russell, Jr., and Randy A.
Whitten and that Respondent has failed to rebut the
prima facie case.4
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of Respondent, as found
herein in connection with Respondent's operations, as
found in section I, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burden-
ing and obstructing the flow of commerce.
V. THE CHALLENGED BALLOTS
The stipulated appropriate unit is "All employees em-
ployed by the Employer at its Birmingham, Alabama, fa-
cility; but excluding all office clerical employees, sales-
persons, guards and supervisors as defined in the Act."
The challenged ballots of Montgomery, Russell, and
Whitten are sufficient in number to affect the results of
the election held on February 25, 1981. 5
4 See Wright Line, a Division of Wright Line Inc., 251 NLRB 1083
(1980).
5 The tally of ballots showed that, of 13 eligible voters, 5 cast valid
votes for and 5 cast valid votes against the Petitioner Union and the 3
ballots cast by the discriminatees were challenged. No objections to the
election were filed.
325
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As I have found, Montgomery, Russell, and Whitten
were discriminatorily discharged in violation of Section
8(a)(3) and (1) of the Act. I find they were eligible to
vote in the election on February 25, 1981. Accordingly, I
shall recommend the challenges to their ballots be over-
ruled. See Gossen Company, a Division of the United
States Gypsum Company, 254 NLRB 339 (1981); PRS
Limited, d/b/a F & M. Importing Co., 237 NLRB 628,
632 (1978); and Firmat Manufacturing Corp., supra.
In accordance with the foregoing findings and recom-
mendation, I shall further recommend that the represen-
tation proceeding be remanded to the Regional Director
with the direction to open and count the ballots of Mont-
gomery, Russell, and Whitten, to prepare a revised tally
and to issue the appropriate certification.
CONCLUSIONS OF LAW
1. Respondent Corn Brothers, Inc., is an employer en-
gaged in commerce within the ileaning of Section 2(6)
and (7) of the Act.
2. Retail, Wholesale and Department Store Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By threatening its employees with discharge or loss
of jobs or a shutdown of its operations and facilities at its
Birmingham, Alabama, division if they engaged in union
activities, Respondent has violated Section 8(a)(1) of the
Act.
4. By discharging and thereafter failing and refusing to
reinstate its employees Cecil Montgomery, Forbus Lee
Russell, Jr., and Randy A. Whitten, Respondent has vio-
lated Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Cecil Montgomery, Forbus Lee Russell, Jr., and
Randy A. Whitten were eligible voters at the time of the
consent election held on February 25, 1981, and their
ballots should be counted in determining the outcome of
the election.
THE REMEDY
Having found that Respondent has committed acts in
violation of Section 8(a)(1) and (3) of the Act, it shall be
ordered to cease and desist therefrom and from any
other unlawful activity and to take certain affirmative
action designed to effectuate the policies of the Act. Ac-
cordingly, I recommend that Respondent be required to
post the appropriate informational notice to employees in
appropriate places at its Birmingham, Alabama, facility,
and I recommend the reinstatement of Cecil Montgom-
ery, Forbus Lee Russell, Jr., and Randy A. Whitten and
that Respondent make them whole for losses due to dis-
crimination against them and cease and desist from any
other unfair labor practices. All loss of earnings and
other benefits due under this order shall be computed
with interest in the manner prescribed in F W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977). See, generally, Isis
Plumbing & Heating, Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of
law, upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 6
The Respondent, Corn Brothers, Inc., Birmingham,
Alabama, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening its employees with discharge or loss of
jobs or a shutdown of its operations and facilities at its
Birmingham, Alabama, division in order to discourage
their support of Retail, Wholesale and Department Store
Union, AFL-CIO, or any other labor organization.
(b) Discouraging membership in a labor organization
by discharging or refusing to reinstate or otherwise dis-
criminating against employees in their hire and tenure.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights guaran-
teed them under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Offer to Cecil Montgomery, Forbus Lee Russell,
Jr., and Randy A. Whitten immediate and full reinstate-
ment to their former positions or, if those positions are
no longer available, to substantially equivalent positions
without prejudice to their seniority and other rights and
privileges previously enjoyed.
(b) Make the employees named above in section (a)
whole for any loss of pay or any other benefits they
have sustained by reason of the discrimination practiced
against them in the manner set forth in this Decision en-
titled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents. for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post on all bulletin boards at the Birmingham, Ala-
bama, division of Corn Brothers, Inc., copies of the at-
tached notice marked "Appendix" 7 on forms provided
by the Regional Director for Region 10, after being duly
signed by Respondent representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
? In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
326
CORN BROTHERS, INC.
(e) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of the Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that Case 10-RC-12296 be
remanded to the Regional Director with a direction to
overrule the challenges to the ballots of Cecil Montgom-
ery, Forbus Lee Russell, Jr., and Randy A. Whitten and
to open and count their ballots and to prepare a revised
tally of ballots and issue the appropriate certification.
327