Eggo Frozen Foods

National Labor Relations Board - Board Decisions

Jan 23, 1980

247 N.L.R.B. 510 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eggo Frozen Foods and American Federation of
Grain Millers, Local 361, AFL-CIO and Rosemary
Pinkston. Cases 10-CA-13837 and 10-CA-14264
January 23, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On September 25, 1979, Administrative Law Judge
Norman Zankel issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a memorandum in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,' findings,2 and
conclusions 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
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is,
dismissed in its entirety.
' The General Counsel at fn. I of her brief has specifically not excepted to
credibility findings made by the Administrative Law Judge, instead undertak-
ing to show that findings adverse to the General Counsel should be reversed
based on credited testimony and documentary evidence. We find it unneces-
sary to rely upon certain of the Administrative Law Judge's findings, as set
forth below. Otherwise we find no basis for reversing his findings.
We correct the following inadvertent error in sec. 11. B(2) of the
Administrative Law Judge's Decision referring to a written warning for taking
excessive time on breaks addressed to F. Prince, dated August 29, 1977. The
record indicates that the name is Prance and the date August 24.
Although we adopt the Administrative Law Judge's finding with respect
to the July 20 discipline that Pinkston was absent from her work area for 12
minutes, not 6 minutes as she claimed, we find it unnecessary to rely upon h;s
further extraneous comments that her responses to questions from the bench
on this issue as set out in the Decision demonstrated her "effort to abuse the
benefits of the Act." Nor do we rely on the Administrative Law Judge's
comments at sec. 1, B. 1, par. 3, and sec. II, B,2, par. 8, wherein he indicated
what his view of the evidence would have been had he fully credited Pinkston.
As the Administrative Law Judge did not, in fact, credit Pinkston's testimony,
his comments to the contrary are unnecessary and speculative.
'In affirming the Administrative Law Judge's findings and conclusions that
the remarks made to Pinkston by Supervisors Harris and Quick in December
1978 were prompted by her poor work record rather than by union animus,
we note the following testimony, in addition to the evidence cited by the
Administrative Law Judge.
Johnson, Pinkston's supervisor from 1976, testified uncontrovertedly that
he "couldn't keep her on the job. I had to hunt her all day long ... The other
employees complained why she wouldn't [sic] do her work, why she stayed in
247 NLRB No. 52
the bathroom. I had to page her constantly all day long." Brazell, her
supervisor from March through June 1978, gave credited testimony that he
had a counseling session with her on June 14, 1978, because she was abusing
the excused absence rule, thereby requiring other employees to pick up her
slack. He testified that he received complaints about three or four times a
week from other employees about her being off the job.
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge: These
cases were heard before me in Atlanta, Georgia, on June 25
and 26, 1979.
The charge in Case 10-CA-13837 was filed by American
Federation of Grain Millers, Local 361, AFL-CIO (herein-
after the Union), on July 21, 1978.1 That charge was
amended on August 28. The charge in Case 10-CA-14264
was filed by Rosemary Pinkston on December 26.
On February 5, 1979, the Regional Director for Region 10
of the National Labor Relations Board (hereinafter the
Board) issued a complaint in Case 10-CA-13837 against the
Employer. Also, on that date, said Regional Director issued
a separate complaint in Case 10-CA-14264, together with
an order consolidating the two cases for hearing.
The complaint in Case 10-CA-13837 alleges that, on or
about June 1, the Employer threatened employees with
reprisals for engaging in activities on behalf of the Union;
and on March 7 and July 20 discriminatorily issued written
reprimands to Pinkston.
The additional allegations appearing in the complaint in
Case 10-CA-14264 allege in substance (1) that the Employ-
er's former personnel manager, King Quick, unlawfully
threatened employees with discharge on or about December
I 11; (2) that Supervisor Dennis Harris on or about December
I I threatened employees with discharge because of their
union activities and because a charge was filed at the Board;
(3) and that the employer discriminatorily withheld holiday
pay from Pinkston, suspended her, issued written and oral
reprimands, and prohibited her from wearing a hat and
gloves while working in the Employer's freezer compart-
ment. The alleged discriminatory treatment toward Pinkston
is alleged to have occurred in violation of Section 8(a)(3),
(4), and (1) of the National Labor Relations Act, as
amended (hereinafter the Act), because she engaged in union
activities, and because she filed charges with the Board.
The Employer filed a timely answer which admitted
certain allegations, but denied the substantive allegations of
the complaints and also that it had committed any unfair
labor practices.
All issues were fully litigated at the hearing; all parties
were represented by counsel and were afforded full opportu-
nity to examine and cross-examine witnesses,2 to introduce
evidence pertinent to the issues, and to engage in oral
arguments. The Board's counsel for the General Counsel
argued orally near the conclusion of the hearing. No post-
hearing written brief has been received from her. The
Employer's counsel timely submitted a post-hearing brief.
' All dates hereinafter are 1978 unless otherwise stated.
' All witnesses, except Pinkston, a Charging Party and alleged discrimina-
tee, were sequestered throughout the hearing.
510
EGGO FROZEN FOODS
The contents of all arguments oral and written, made by
counsel, have been carefully considered.
Upon the entire record, and from my observation of the
witnesses, and their demeanor in the witness chair, and upon
substantial, reliable evidence, "considered along with the
consistency and inherent probability of testimony" (Univer-
sal Camera Corp. v. N.L.R.B.. 340 U.S. 474, 496 (1951)), 1
make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
The Employer, a Delaware corporation, maintains an
office and place of business at Atlanta, Georgia, where it is
engaged in the manufacture and sale of food products.
During the calendar year immediately prior to the
issuance of the instant complaints, a representative period,
the Employer sold and shipped finished products valued in
excess of $50,000 directly to customers located outside
Georgia.
The parties agree, and I find, that the Employer is
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
The parties agree, the record reflects, and I find that the
Union is and has been at all material times a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Scenario of Events '
Since October 1973 the Union has been the exclusive
collective-bargaining representative for the Employer's pro-
duction and maintenance employees including laboratory
and warehouse employees.
The Union and Employer negotiated three successive
collective-bargaining agreements, the most recent of which
contains an expiration date of October 1, 1979. The Union's
sole strike preceded culmination of the very first contract
between the parties.
In the years 1978 and 1979 up to the date of the instant
hearing, 147 grievances had been filed. Yet, throughout the
entire 6-year period of the collective-bargaining relationship,
only four grievances required arbitration for resolution. In
general, the matters submitted to arbitration involved
altercations among employees thus requiring an assessment
of personal misconduct. Of the 147 grievances filed as
indicated above, 97 had been in calendar year 1978 during
Pinkston's presidency. The remaining 50 grievances were
filed during the first 7 months of 1979 when Pinkston was no
longer union president.
The record contains ample unrefuted oral and documenta-
ry evidence to show that time off was frequently granted to
union officials to enable them to conduct union business
during working hours.
Substantially all the essential facts are not disputed. Thus, the facts recited
in this section are a composite of the credited testimony of witnesses of the
General Counsel and the Employer where they agreed or which otherwise
appears uncontradicted. Where variations exist which are deemed material,
Upon the foregoing I find that the Employer and the
Union have enjoyed generally amiable relations.
Pinkston was union president from November 1977 to
November 1978. In addition, she has been active as a
negotiating committee member and serves on the Union's
safety committee. She testified that she actively solicited
employees to join the Union. During her direct examination,
Pinkston testified she "handled arbitrations." During cross-
examination, Pinkston agreed that only one grievance had
been arbitrated during her presidential tenure.
The underlying theme of the alleged discriminatory
conduct is predicated upon the General Counsel's assertion
that the Employer acted unlawfully toward Pinkston be-
cause of her enthusiastic pursuit of her duties and responsi-
bilities as a union official.
At the time of the events pertinent to these proceedings,
Pinkston was classified as a utility worker. This type of
employee provides relief for a variety of job positions. Thus,
Pinkston was supervised by several supervisors during times
material herein. Specifically, Billy Joe Johnson, warehouse
and traffic manager, was Pinkston's supervisor from the end
of 1976 through at least March 18, 1978. John Brazell, a
production supervisor, was Pinkston's supervisor from
March 18 through June 15, 1978. Alfred W. Plott supervised
Pinkston in December. Also, Larry Beisel had been Pink-
ston's supervisor at least during July.
Throughout all relevant times, Howard E. Hale was plant
manager. Each of the above undisputed supervisors testified
at the hearing. King Quick had been industrial relations
director at the time some of the alleged unlawful activity
took place. Quick's employment had been terminated several
months before the hearing. He did not appear as a witness.
In early spring, Pinkston requested an educational pro-
gram to foster improved relationships between union repre-
sentatives and the Employer's line supervisors. The Employ-
er complied with that request by arranging for the Federal
Mediation and Conciliation Service to conduct a series of
seminars. The first session was scheduled for March 6 at 3
p.m. The seminar was attended by the Employer's first-line
supervisors, members of the Union's executive committee,
and all union shop stewards. In addition, Don Watts, a vice
president of the International union, was a participant in the
seminar. With one exception, all employees, including the
union officials, were paid for their attendance at these
seminar sessions. Pinkston is the exception. She was not paid
for her attendance on March 6, but did receive remuneration
for subsequent sessions.
It is undisputed that the Employer maintained a rule
which requires employees who seek an excused absence from
work to call their supervisor at least I hour before the start
of a work shift. On March 7 Supervisor Johnson issued a
written warning to Pinkston for failing to comply with this
rule.
In fact, Pinkston did not report to work as scheduled on
March 6. She met Watts at the Atlanta airport when he
arrived at approximately noon that date. Earlier that day (at
approximately 9 a.m.) Pinkston telephoned the plant and
they are discussed and resolved. Although only the facts considered relevant
to the issues are recited, I have considered all matters litigated and arguments
of counsel thereon. Accordingly, omitted matter is deemed not credible,
irrelevant, or superfluous.
511
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spoke with employee Glenda Byrd, a former union presi-
dent.
Before Johnson issued Pinkston the March 7 warning he
asked her why she had not come to work as scheduled at 8
a.m., March 6. Pinkston told him it was due to union
business. Johnson testified credibly and without contradic-
tion that he commonly excused any union official who
advised him in advance of an absence for union business.
Johnson supervised Union Vice President Dwight Harris at
that time. There is no evidence that Harris ever was denied
time off for union business if properly requested. Johnson
had granted excused absences for union business to Pinkston
on January 20 and 23.
When Pinkston told Johnson her absence was for union
business she said that Hale or Plott were supposed to have
advised him (Johnson) of her absence. Before issuing the
March 7 warning, Johnson checked the accuracy of Pink-
ston's assertion with Hale and Plott. They denied she
arranged with them to be excused.
Hale did acknowledge discussing the March 7 seminar
with Pinkston the preceding week. During that discussion,
Pinkston told Hale she "might have to pick up Don Watts."
Hale, whose testimony I adopt for reasons to be stated
below, testified that he told Pinkston "to be sure and advise
her immediate supervisor if in fact she was going to be
absent or going to pick up the representative [Watts] .... "
Pinkston testified she called on March 3 to remind
Johnson she would not report to work on March 6 because
of the seminar. Johnson unequivocally denied he had any
such telephone conversation with Pinkston. I credit John-
son.
In general, I found Pinkston unreliable in her narration of
events. She was imprecise, except where her testimony
would enhance the validity of the General Counsel's
allegations. For example, Pinkston testified that she had
never been reprimanded until March 1978. However, docu-
ments in evidence reflect that in 1975 she had been given
three written warning notices and a 3-day layoff for
absenteeism. Moreover, on January 20, 1975, the Employer's
records show that Pinkston received an unexcused absence
for being away from work without having fulfilled the call-in
requirement. Additionally, the record reveals that her
supervisor had earlier counseled Pinkston concerning her
delinquency in this connection. A fair review of the
documentary evidence relative to Pinkston's absentee and
warning record makes the description of events by Hale and
Johnson more plausible than Pinkston's narration.
Indeed, in each instance where witnesses offered by the
Employer testified on subjects on which Pinkston also
presented evidence, I credit the Employer's witnesses. 4 I find
Pinkston revealed herself to be generalized, coy, and evasive
during her cross-examination. Clearly, she exaggerated her
role in union activities when (as already noted) she created a
false impression that she had been involved in numerous
arbitration proceedings. While ostensibly Pinston testified in
a forth-right manner during direct examination, her cross-
examination reflected a different testimonial character.
I In addition to the factors explicitly noted used to evaluate credibility, I
have relied on my observation of the demeanor of each witness, the weight of
the respective evidence each provided, established or admitted facts, and
inherent probabilities and reasonable inferences which may be drawn from the
Thus, Pinkston testified she could not recall that she had
been granted excused absences twice subsequent to March 6
to attend to union business. Later, during the Employer's
presentation of its defense, unrebutted evidence was adduced
to show that Brazell excused her on April 19 and 20 and
part of April 28 for union business. Similarly, Pinkston
asserted she could not recall whether she had been excused
for union business on January 20 and 23. The records reflect
that Supervisor Johnson had so excused her on those dates.
Demonstrative of the lengths to which Pinkston pursued her
efforts to place herself in a light most favorable to the
General Counsel's cause are her responses to questions by
the Employer's counsel which required her to recall whether
she had been granted excused absences for union business by
named supervisors rather than by dates. Thus, Pinkston was
asked whether Brazell or Supervisor Beisel had excused her
for union business. Pinkston answered she could not recall
such excused absences. The records in evidence reflect those
supervisors did, in fact, provide her with such absences.
The General Counsel argues "Pinkston credibly testified
that she did in fact call in before worktime" sufficiently to
induce the excuse of her March 6 absence. The General
Counsel's argument is based on a distortion of fact. Even the
Employer's witnesses conceded that Pinkston did telephone
the plant on March 6. Uniformly, they claimed the call was
to Glenda Byrd-not to Johnson. I simply cannot credit
Pinkston's testimony that she called Johnson on March 3.
Pinkston's account of the circumstances surrounding the
March 7 reprimand was extremely brief and not detailed. In
contrast, the testimony of both Hale and Johnson was
comprehensive and explicit. Their versions are consistent
with Pinkston's past attendance record. Also, I note that
Pinkston, though called as a rebuttal witness, did not seek to
refute Johnson's testimony that she advised him Hale or
Plott were to have told Johnson Pinkston's absence was for
union business. Accordingly, to believe Pinkston made the
March 3 telephone call to Johnson defies logic. If Pinkston
believed that Hale or Plott accepted the responsibility for
informing Johnson of the absence that would have obviated
the need for her to call Johnson personally on March 3.
Upon all the foregoing, I find that Pinkston had a history
of failure to comply with the Employer's call-in require-
ments; she did not fulfill her obligation in that connection
prior to her absence on March 6; and on March 7 the
Employer issued Pinkston a written warning for that
dereliction.
The next incident involved Pinkston and Supervisor
Brazell. Pinkston's extremely brief account of this incident,
during direct testimony, in toto, follows:
A. It was in June '78 he [Brazell] and I had a
conversation about his discussing my work record with
another employee; and he pointed out to me that he
wished I would quit because I had too much union
business, that he couldn't spare me from the line."
[Emphasis supplied.]
Brazell was direct, forthright, and inherently consistent
and was corroborated in his account of what occurred
record as a whole. Northridge Knitting Mills, Inc., 223 NLRB 230 (1976);
Warren L. Rose Castings. Inc. d/b/a V & W Castings, 231 NLRB 912, 913
(1977): Gold Standard Enterprises. Inc., 234 NLRB 618 (1978).
512
EGGO FROZEN FOODS
between him and Pinkston in June. Brazell testified that
"around June 1" he was disturbed by Pinkston having taken
excessive time from work. He acknowledged telling her that
situation must end. Brazell claimed that Pinkston commonly
asked for "5 minutes and would take 35 minutes" to conduct
her union business.
On the day in question, Pinkston asked Brazell for time
off to attend to union business. He granted it. Shortly
thereafter, Brazell admitted that he said, "I just wish you
would quit." He claimed this statement was made in a
normal tone of voice, but that he was not speaking to
anyone. Rather, Brazell testified he made this comment to
himself because of the frustration caused by what he
considered to have been Pinkston taking advantage of her
official union position.
Pinkston's testimony quoted above implies Brazell made
his remark directly to her. Brazell, however, recounted that
another employee (not Pinkston) was in the vicinity when he
made the "quit" comment. Brazell surmised that other
employee reported what she heard to Pinkston.
In any event, Brazell was uncontradicted in his testimony
that the following day Pinkston accused him of telling other
employees that he wanted her to quit.
The General Counsel urges that the remark was made
directly to Pinkston. I do not so find. Concededly, Pink-
ston's narration strongly implies she personally heard
Brazell tell her he wished she would quit. However, I have
already indicated that Brazell's recollection of facts and
direct presentation of them, coupled with his general
testimonial demeanor, make him a more credible witness
than Pinkston. It is reasonable to presume, as I do, that
Pinkston would not have waited a day before expressing her
dismay at hearing the "quit" remark. Because Brazell was
uncontradicted that he was not taken to account by Pinkston
until the day following that on which she made the
comment, I credit Brazell's claim that he made the remark
to himself. Additionally, I find the quit remark was not
made by Brazell directly to Pinkston.
On July 20 Supervisor Beisel issued a written warning to
Pinkston "for being off the job from 10:22 to 10:34." The
warning noted that additional infractions of that nature
would result in further disciplinary action. Pinkston had
requested and received authority to leave work briefly to
check her automobile in the Employer's parking lot. A
number of employees had been victims of thefts of property
from their cars.
Pinkston testified that she absented herself for only 6
minutes. Beisel did not appear as a witness at the hearing.
He was then no longer employed by this Employer. The
warning notice reflects a 12-minute absence. The counsel for
the General Counsel argues that Pinkston is unrebutted.
This assertion literally is true. However, I am not bound to
believe Pinkston's claim concerning the length of time she
was away from work. A trier of fact may, based on
credibility resolution, find facts contrary to those presented
by an uncontradicted witness. N.L.R.B. v. Walton Manufac-
turing Company, & Loganville Pants Co., 369 U.S. 404
(1962).
' The official transcript is hereby corrected to change the name "Brazell"
appearing on p. 59, . 10, and p. 60, 1. I, to "Beisel."
I have already noted my conclusion that Pinkston
generally was an unreliable witness. Pinkston's various
descriptions of the July 20 incident present confirmation of
her unreliability. Thus, she claimed that she had been away
from work for no more than "about 6 minutes." During her
cross-examination, Pinkston agreed that the trip each way
between her work station and automobile would take about
3 minutes. This concession, then, reduces the chances that
her claim to have been absent for no more than 6 minutes is
accurate. To adopt Pinkston's original version would leave
her no time to make an examination of her vehicle.
Most illuminating was Pinkston's responses when ques-
tioned from the bench. She was asked to describe fully what
occurred between her and Beisel upon her return from the
parking lot. She repeated her earlier testimony that Beisel
advised her he would issue the warning because she spent 12
minutes off the job. Nowhere in Pinkston's responses did she
indicate she argued with Beisel concerning the length of time
he believed she was out. Instead, Pinkston testified she
"asked him [Beisel] what did he mean because he had gave
me permission to go out into the parking lot. It's not like I
didn't have permission to go. I had permission to go and he
did not stipulate how long to stay...." (Emphasis sup-
plied.) In my view, the italicized words are tantamount to a
self-contradiction. As observed, her initial testimony was
that she was gone for no more than 6 minutes. The italicized
language reflects a withdrawal from the earlier 6-minute
claim. That language concedes Beisel might have been
accurate in his observation that Pinkston was absent for 12
minutes. Moreover, the entire quoted response shows what I
consider to be Pinkston's effort to abuse the benefits of the
Act.
Based upon all the foregoing, I accept the accuracy of the
warning notice rather than the uncertain character of
Pinkston's estimates.
In sum, I find that, on July 20, the Employer, through
Supervisor Beisel,' issued a written warning to Pinkston for
being away from work for 12 minutes.
Relevant to this July 20 warning are certain background
events. There is considerable record evidence which I
conclude demonstrates that the Employer was plagued by
employees taking excessive time away from their work since
late 1977. The Employer was concerned about this. Hale met
with Pinkston as union president and International Vice
President Watts in December 1977 to discuss these excesses,
among other job-related matters.
Both Johnson and Brazell credibly testified that Pinkston
had been a chronic offender in connection with taking
excessive time off. Johnson indicated other employees
complained to him about this. Brazell testified, without
contradiction, that on June 14 he counseled Pinkston
regarding those indiscretions.
On July 21 Pinkston filed the original charge in Case 10-
CA-13837. That charge asserted that the Employer discrim-
inated against Pinkston, together with three named shop
stewards. On August 28, the charge in Case 10-CA-13827
was amended. The amendment deleted reference to the three
513
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop stewards. Apparently, the issues of that charge had
been settled on November 15.'
On November 16, Pinkston discovered her paycheck was
short approximately S50. She discussed this matter with the
personnel assistant, Bronnie McKenney. McKenney exam-
ined Pinkston's timecard. The card revealed that Pinkston
neglected to punch out I day when she left work. Thus,
Pinkston was paid only for working that morning. McKen-
ney called to Pinkston's attention the omission to punch out.
Pinkston insisted upon being paid immediately. McKenney
told Pinkston to obtain her supervisor's approval and
verification, after which she (McKenney) would make the
necessary adjustments on Pinkston's pay the following week.
Pinkston testified, albeit in an inarticulate manner, that
payroll discrepancies had been corrected in the past.
Specifically, Pinkston testified McKenney told her she could
not be paid immediately "which it had been done in the past
that I [Pinkston] got my money." The General Counsel
urges the quoted testimony forms the basis of a finding that
Pinkston had been treated in a disparate manner immediate-
ly after the original charges herein had been settled. I
disagree. The General Counsel's formulation takes the
circumstances of the short paycheck out of context.
McKenney, a particularly impressive witness by virtue of
her demeanor and inherently plausible testimony, candidly
acknowledged that payroll errors had been corrected in the
past. But, in each such instance, proper authorization was a
prerequisite. Accordingly, I consider Pinkston's testimony
on this issue a further example of the generalized nature of
her testimony and an effort to distort the facts in order to
present testimony in a light most favorable to the General
Counsel's cause.
In sum, I find that, on November 16, Pinkston's paycheck
was short because she had not properly punched out I day
and that McKenney failed to comply with Pinkston's
request for immediate corrective action.
Next, Pinkston testified that in December Supervisor
Dennis Harris spoke with her in the production office.
Pinkston did not specify when this conversation allegedly
took place. The complaint asserts the incident happened on
December 11. According to Pinkston the subject matter
under discussion was the discharge of another supervisor.
Pinkston claims Harris told her "to be careful"; that the
employer had a meeting about her work; that he and Plott
reported Pinkston worked well; but that there were other
supervisors who would like to get rid of her "because I
caused a lot of trouble for them."
Pinkston testified further that on the same day she visited
Industrial Relations Manager Quick's office to discuss some
union business. According to Pinkston, Quick commented
the employer "got rid of one of... (her] buddies." Pinkston
testified she asked who it was and Quick gave her the
employee's name and said, "There are others to follow.
We're going to get rid of more."
Neither Harris nor Quick testified at the hearing. Both
were no longer employed by Eggo Foods. However, Supervi-
sor Johnson testified that the employer conducted weekly
supervisory meetings. Johnson attended them regularly. He
' Presumably that settlement agreement had been set aside in order to allow
for the issuance of the instant complaint in Case 10-CA-13837.
testified that he had never heard Pinkston being the subject
of duscussion at such meetings.
I credit Pinkston's version of the Harris and Quick
conversations in December. To the extent this action is
contrary to my earlier conclusions that Pinkston generally is
an unreliable witness, it is permissible, for "nothing is more
common than to believe some and not all of what a witness
says." Edwards Transportation Company, 187 NLRB 3
(1970), enfd. per curiam 437 F.2d 502 (5th Cir. 1971). It is
entirely plausible that personnel problems are commonly
discussed among management officials at such conferences
conducted by the Employer. Moreover, it is logical the
various supervisors' views concerning Pinkston were aired at
such meetings. The Employer's defense to the various
allegations of violation in the instant cases is pervaded with
the assertion that Pinkston was inattentive to her work
obligations. It is difficult to believe that the supervisors
would not have shared their experiences with Pinkston in
this regard.
Similarly, I find it probable that Quick made the remark
attributed to him. Without delineating each bit of evidence
in the instant record to support my conclusion, it suffices to
say that the totality of the instant record shows Quick was a
stringent manager. Clearly, he vigorously promoted the
employer's position, sometimes to a fault. The record
generally portrays Quick as an autocratic manager. In this
setting, I consider it reasonable that Quick would have made
the comment as described by Pinkston.
Upon the foregoing, I find that sometime in December
Harris and Quick made the comments to Pinkston as
described by her.
At all relevant times, the Employer maintained a policy
requiring employees to wear certain protective clothing. In
relevant part, the policy dictated that production workers
who handle frozen products were to wear special blue gloves.
This was to conform to Federal Food and Drug Administra-
tion mandates. It was the Employer's policy that the blue
gloves are not to be worn in the plant other than the
production line where product handling is necessary. The
protective clothing policy also required that employees wear
a uniform hat. Personal hats were not permitted.
In early 1978 Pinkston was issued protective clothing
which included a refrigerator coat, pants, and gloves. No hat
had been issued at that time.
Pinkston testified that in December Supervisor Tom
Carter told her to remove her hat and gloves. Pinkston did
not specify a date, but the complaint alleges this to have
occurred on December 15. Pinkston was then assigned to
operating a forklift making deliveries into the Employer's
freezer compartment. The gloves Pinkston wore that day
were the blue product gloves issued to her earlier that year.
The hat was her own. Pinkston asked if she could continue
to wear those items until making her delivery into the
freezer. Carter insisted she remove them immediately. She
made the delivery and then went to the front office "to
inquire about a pair of gloves." Quick issued her a
refrigerator hat. So-called freezer gloves are beige in color
and are leather. As noted, the product handling gloves are
blue and they are not leather.
514
EGGO FROZEN FOODS
It appears Pinkston had been assigned considerable
forklift duties in December. One of the regular functions of
forklift drivers was to fill out pallet tickets. The pallet tickets
are part of the Employer's inventory control system.
Uncontroverted evidence shows the Employer experienced
shortages of several thousand dollars per month in its
finished product inventory. As a result the Employer
installed its pallet ticket system. That control system also is
an integral part of the Employer's product recall program to
conform to food and drug regulations.
It is.undisputed that the primary obligation for accuracy
of the pallet tickets reposes in the forklift drivers. When the
pallet ticket system was installed the Employer experienced
difficulties in its implementation. Since March 30 memoran-
da were circulated to production supervisors to correct
errors in the system. The most recent of such memoranda is
dated November 28.
On December 17 Plott who was Pinkston's supervisor in
December issued her an oral warning for having committed
a pallet ticket error. He offered to work with her to help
correct the errors. Plott's unrefuted testimony shows that he
reviewed several tickets with her. A couple of days later,
Pinkston committed another pallet ticket error. This led to
Plott issuing Pinkston a written warning on December 20.
On December 21, Pinkston discovered yet another error
which she made on a pallet ticket. She reported her
discovery to Plott. Pinkston and Plott then conferred with
Quick, Plant Superintendent Hobson, and Union Steward
Dodie Roberson.' Quick authorized the imposition of a 3-
day suspension.
Pinkston testified she asked why she was being suspended
"while no other employees on the lift have been given a 3-
day suspension...." According to Pinkston, Quick "said
he had to start somewhere; why not start with you
[Pinkston]." Further, Pinkston testified no other forklift
drivers had been disciplined or suspended for such pallet
ticket errors. I consider Pinkston's narration of her question
and Quick's answer a witting embellishment of the facts. Her
testimony is clearly inaccurate. It is contradictory to
documentary evidence. Thus, Employer's Exhibit 9 shows
employee S. Jordan received an oral warning on September
20 and a written warning on September 25 for defective
work. Hale credibly explained that those warnings were for
failure to fill out the pallet tickets properly. The September
25 warning advises Jordan that the next infraction would
result in a 3-day layoff. Accordingly, I find (contrary to
Pinkston's assertions) that the discipline imposed on her for
the pallet ticket errors was not inconsistent with the then-
existing policy implemented by Quick.
Pinkston filed a grievance protesting the suspension. Hale
became involved in the grievance disposition in January. The
Union advised him that it was Pinkston herself who brought
the most recent pallet ticket error to the Employer's
attention. Hale investigated and confirmed the Union's
information. Hale considered Pinkston's report a mitigating
factor. He offered to expunge the suspension notice from
Pinkston's file, reimburse her for lost wages, and downgrade
the warnings.
It is alleged in complaint paragraph 7, Case 14264, that
the Employer unlawfully withheld holiday pay from Pink-
ston since on or about December 21, 1978, until on or about
January 13, 1979. I can find no evidence in the record to
support this allegation. Moreover, the counsel for the
General Counsel made no reference to this allegation during
her oral arguments at the close of the hearing.
B. Analysis
i. Interference, restraint, and coercion
As previously noted, the complaints allege that the
Employer committed certain so-called independent viola-
tions of Section 8(a)(l) of the Act.
Each such allegation is disposed of as follows:
(a) Allegation that Brazell threatened employees with
reprisal on or about June 1: The credited evidence does not
prove this allegation. I have found Brazell did not tell
Pinkston or any other employee that he hoped Pinkston
would quit. It simply stretches credulity to imagine Pinkston
would have waited overnight to confront Brazell had the
remark actually been made to her, as she testified.
Regarding this allegation, counsel for the General Counsel
argues that Brazell's remark "could only be interpreted and
calculated to tell employees" that working for the Union
"places their jobs in jeopardy." Assuming arguendo, I were
to have credited Pinkston's testimony I nonetheless would
disagree with the General Counsel. The test of whether
certain conduct of employers is violative of Section 8(a)(1) is
whether or not it reasonably tends to have an interfering
effect upon employees. Impact Die Casting Corp., 199 NLRB
268, 271 (1972). The General Counsel has cited Markle
Manufacturing Company of San Antonio, 239 NLRB 1353
(1979), in support of this allegation. I find that case wholly
distinguishable from the instant matter. In Markle, the
atmosphere in which a company vice president made a
"quit" remark to a union president was charged with
antiunion sentiment. Moreover, the comment was unques-
tionably made to an assembled group of employees. It
occurred during an impromptu debate between the employ-
er's vice president and union president over the company's
bargaining proposals. When the "quit" remark was made in
Markle, the union president simultaneously had been en-
gaged in notoriously promoting the Union's cause. Accord-
ingly, the Board concluded that the company's vice presi-
dent's remarks "constitute a veiled threat designed to convey
the impression that management considers continued em-
ployment incompatible with engaging in union activities."
I cannot find that any employee could have obtained a
similar impression in the instant case. As previously noted,
Brazell's remark had been overheard by another employee
who apparently reported it to Pinkston. There is no evidence
to show that the other employee was aware that Pinkston
' Neither Hobson nor Roberson testified at the hearing.
515
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been seeking to engage in any union activity at the time
she overheard Brazell's comment. Thus I find there is absent
any nexus between Brazell's words and Pinkston's protected
activity such as would warrant drawing application of the
Markle rationale herein. I find the statement legally harm-
less.
Upon all the foregoing, I conclude the record does not
contain a preponderance of evidence to show that the
Employer illegally threatened employees with economic
reprisal on or about June 1.
(b) The allegation that Quick and Harris threatened
Pinkston with discharge on December 11: Despite my
findings that Quick told Pinkston there were other employ-
ees he intended to terminate and that Harris told her some
supervisors had discussed her work, I cannot conclude that
either of these revelations assumes the sinister significance
imparted to it by the General Counsel.
The record shows there existed a generally amiable labor-
management relationship between the Employer and the
Union. The record reflects, of course, that each party
promoted its position in a noncoercive atmosphere. It was in
this framework that Quick and Harris made their remarks.
The General Counsel argues that the statements attrib-
uted to Quick and Harris demonstrate the Employer's union
animus. I disagree. I find both remarks ambiguous. There is
no evidence to the effect that the employee to whom Quick
referred had been terminated for any activity protected by
the Act. The General Counsel's theory requires I infer that
when Quick said he intended to rid himself of Pinkston's
"buddies" he meant to decimate active union protagonists.
On the state of this record, I consider it reckless to make
such an inference. This remark is equally susceptible to the
interpretation that Quick was issuing a warning to Pinkston
that substandard work performance would result in disci-
plinary action. There is overwhelming evidence in the record
to show Pinkston was less than attentive to her work
obligations for at least 2 years before the incident alleged to
be unlawful herein. In my opinion, there simply exists no
predicate evidence upon which the requested unlawful
inference may be made.
As to Harris' alleged unlawful threat, I have earlier found
Pinkston's work record reasonably would have been the
subject of discussion among managerial personnel. There is
no evidence that any such discussion included references or
alluded to Pinkston's union activities. Absent direct evidence
linking the supervisory discussions to Pinkston's protected
activities I am unable and unwilling to conclude Harris'
comment to Pinkston is unlawful. To so hold in all the
circumstances of the instant proceedings infringes upon
managerial rights to appraise the value of its employees.
Upon all the foregoing I conclude the General Counsel
has not sustained his burden of proving any of the
independent violations of Section 8(a)(1).
2. Discrimination
I find the record does not reflect the requisite element of
discriminatory motivation to support any of the alleged
violations of Section 8(a)(3) and (4) of the Act.
It is the General Counsel's burden to establish a particular
motivation on the part of an employer-a discriminatory
motivation-in order to prove the instant allegations. Sup-
port for a finding of unlawful motivation "is augmented
[when] the explanation of the [employer's conduct] offered
by the Respondent [does] not stand up under scrutiny."
N.L.R.B. v. Bird Machine Company. 161 F.2d 589, 592 (Ist
Cir. 1947).
A fair assessment of all the record evidence persuades me
the Employer's defense does withstand scrutiny. I have
considered all the relevant evidence and arguments thereon.
Though each of these is not mentioned below none has been
discarded from consideration.
The General Counsel's case rests upon inferences and
suspicion of unlawful motivation. Ordinarily, the bases of
such inferences may be, inter alia, expressions of, or conduct
amounting to, interference, restraint, and coercion in viola-
tion of Section 8(a)(1); adverse personnel action imposed
upon employees which, by their timing, reasonably can be
laid to an employer's knowledge of union activity in general
or those of employees in particular; or more stringent and
disparate treatment imposed upon active union proponents
in contrast to other employees.
I find the General Counsel's prima facie case is only
superficially appealing. The theory of violation rests largely
on the assumption Pinkston would have been found to be
fully credible. Instead, I have found her to be unreliable in
her factual presentation.
I am not unmindful that intent and motive are subjective
elements of a case. Frequently, it is only by circumstantial
evidence that wrongdoers may be brought to bay. The test
for appraisal of motivation has been aptly described as
follows:
Illegal motive has been held supported by a combina-
tion of factors, such as "coincidence in union activity
and discharge" . . . "general bias or hostility toward
the union" ... variance from the employer's "normal
employment routine" ... and an implausible explana-
tion by the employer for its action.... [McGraw-
Edison Co. v. N.L.R.B., 419 F.2d 67, 75 (8th Cir.
1969).]
Mere suspicion of discriminatory motive is not sufficient
to support complaint allegations. Lyn-Flex Industries, Inc.,
157 NLRB 598, 599 (1966).
Assuming arguendo Pinkston had been fully credited, I
nonetheless would find the record as a whole is permeated
with a series of suspicious situations for which the Employer
has provided plausible responses. Thus, regarding Pinkston's
reprimand for having failed to comply with the call-in rule
on March 6, the General Counsel argues "Pinkston credibly
testified that she [Pinkston] did in fact call in before work
time." As previously noted this argument is a distortion,
giving rise to mere suspicion. Pinkston did not call to speak
with her supervisor. Rather, the purpose of the call was to
speak with Glenda Byrd. Additionally, as to that reprimand,
the-e is no direct evidence of disparate treatment against
Pinkston. Indeed, the documentary evidence shows that
another employee, Farrell Wall, received a first written
516
EGGO FROZEN FOODS
warning notice on July 5, 1977, for failure to call in, and
Melvin Tanks was given a first notice as a written warning
immediately prior to, and on the same day, as Pinkston.
The General Counsel argues that Pinkston's July 20
reprimand presents another example of disparate treatment
because no other employee received written warnings for
commission of first offenses. The documentary evidence
patently refutes this theory. In evidence are at least two
written notices imposed upon employees for first offenses in
connection with taking excessive time on breaks, This was
the offense for which Pinkston received a written warning
notice on July 20. Both such first-offense written notices are
imposed long before Pinkston received hers. Thus, employee
F. Prince and employee R. Smith received such notices on
August 29, 1977 and January 9, 1978, respectively.
I find the General Counsel's cited case of Swift Textiles.
Inc., 242 NLRB 691 (1979), distinguishable and inapposite.
First, in Swift there was considerable evidence of union
hostility. This condition does not prevail in the instant case.
Second, in Swift there was an ambiguity of comprehending
the employees' obligations under the Swift call-in rule. In
contrast, I find Pinkston could not possibly have misunder-
stood her obligations. Thus, in Swift the Board found a
discriminatory warning imposed upon the observer in a
Board-conducted election who did not report to work on
election day, nor on the following day, a Saturday. Saturday
was not a regular workday. The usual procedure would have
been for the employee's supervisor it notify him of the
scheduled Saturday work. It is clear that Swift took
advantage of the employee's protected activity to penalize
him for failing to take the initiative in determining whether
or not he had been scheduled for Saturday work. No such
instructions had earlier been given to that employee.
Accordingly, the Board concluded that the written warning
"was intended to discipline" the employee for engaging in
his protected activities. Pinkston, on the other hand, was
fully aware of her obligations under the call-in rule. She had
been explicitly instructed by Hale to advise her supervisor if
she needed to be absent on March 6. In the case at bar, the
evidence shows Pinkston received no discipline not also
imposed upon other employees. I find no basis exists herein
to apply the rationale of the Swift Decision.
Likewise, I find the record does not support the allega-
tions that Pinkston had been discriminated against by having
had her holiday pay withheld, having been suspended, issued
written and oral reprimands in November and December,
and prohibited from wearing a hat and gloves in the freezer
compartment.
It is ironic that allegations of violation should emanate
from the hat and glove incident. In the backdrop of having
earlier been issued appropriate equipment designed to
protect her, I consider Pinkston's effort to claim unlawful
discrimination a glaring example of the tenuous nature of
the General Counsel's theory. The incident was totally
unattended by recriminatory speech or action by any of the
supervisors involved. I can find no evidence to connect the
hat and glove incident to any of Pinkston's protected
activities. Instead, I find Pinkston simply had been asked to
comply with the established procedures by wearing the
regulation garb.
As to the December 17 and 20 reprimands, and the
December 21 suspension, the General Counsel urges they
were imposed because Pinkston "was active on behalf of the
Union and filed a lot of grievances." I disagree. The record
contains persuasive evidence that the progressive discipline
imposed in December upon Pinkston for pallet ticket errors
was not inconsistent with the treatment accorded other
employees who made similar mistakes. Thus, the record
contains two warnings in September given to employee S.
Jordan for pallet ticket errors. As noted, the second of these
notices warned Jordan the next such work error would result
in a 3-day layoff. This evidence vastly diminishes the
General Counsel's claim of disparate treatment.
In addition to the above discussion contained in this
section, I find the following factors militate against my
finding that the employer was discriminatorily motivated in
its treatment of Pinkston:
(a) The parties maintained a generally amiable collective-
bargaining history.
(b) I have found there is no evidence the Employer
engaged in any of the alleged independent violations of
Section 8(a)(1) of the Act.
(c) Statistically, the projected number of grievances filed
during the tenure of Glenda Byrd as union president in 1979
would equal the number of grievances filed during Pink-
ston's presidential tenure. There is no evidence that Byrd
had been disciplined by the employer in any way.
In conclusion, and with due respect to the General
Counsel, I find that the various actions alleged as discrimi-
nation against Pinkston were motivated by an animus
derived from Pinkston's inattention and somewhat cavalier
attitude toward her work. I conclude the record does not
contain the requisite preponderance of evidence that the
various activities alleged to be violative of the Act were
discriminatorily motivated. Accordingly, I find there is no
merit to any of the discriminatory allegations contained in
both complaints herein.
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
I. Eggo Frozen Foods is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. American Federation of Grain Millers, Local 361,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Employer has not committed any of the unfair
labor practices alleged in the complaints in Cases 10-CA-
13837 and 10-CA-14264.
517
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
I In the event no exceptions are filed as provided by Sec. 102.46 of the Rules
and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
ORDER'
The complaints herein are dismissed in their entirety.
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.
518