Flav-O-Rich, Inc.

National Labor Relations Board - Board Decisions

Feb 21, 1978

234 N.L.R.B. 1011 (N.L.R.B. 1978)

FLAV-O-RICH, INC.,
Flav-O-Rich, Inc. and Teamsters Local Union 783,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America. Cases 9-CA-10980-1, 9-CA-
10980-2, and 9-CA-11259
February 21, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On October 14, 1977, Administrative Law Judge
Robert E. Mullin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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 brief
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order as modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Flav-O-Rich,
Inc., London, Kentucky,'its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, except that the attached
notice is substituted for that of the Administrative
Law Judge.
In the first paragraph of sec. Ill, E. 2, the Administrative Law Judge
inadvertently stated that Respondent had terminated six unit members
although he previously and correctly had found that Respondent had
unlawfull) terminated five unit employees and Rita Napier, a nonunit
employee.
2 In accordance with his opinion in Beasley Energy, Inc.. d/b/a Peaker
Run Coal Company, Ohio Division #1, 228 NLRB 93 (1977), Chairman
Fanning would issue a bargaining order effective as of the date of this
Decision and Order.
Although the Administrative Law Judge found that Respondent violated
Sec. 8(aHI) by conduct beginning in August 1976 and that the Union
represented a majority of employees in an appropriate unit as of January I 1,
1977, he concluded that the Union had been the exclusive bargaining
representative "(a)t all times material herein..W.. we correct his inadver-
tent error and modify Conclusion of Law 6 accordingl .
The Respondent moves that the Board accept its proposal for a
settlement of this proceeding. We deny Respondent's motion for the reasons
stated in the Administrative Law Judge's Decision.
3 In the section of his Decision entitled "The Remedy," the Administra-
tive Law Judge recommends that the notice contain language which advises
employees of their right to a decertification election, "since the Respondent
is being directed to bargain collectively with the Union, although no
designation of representative has been made in accordance with the
procedures of Section 9 of the Act." Since the purpose of the notice is to
234 NLRB No. 150
reassure employees of statutory rghts which have been abridged, in the
circumstances of this case we consider the last paragraph of the Administra-
tive Law Judge's notice, which advises employees of their right to file a
decertification petition. to be unnecessary. Accordingly. we shall eliminate
that provision from the notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Team-
sters Local 783, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other
union, by discharging, or otherwise discriminat-
ing against our employees because of their union
or concerted activities.
WE WILL NOT interrogate any employee con-
cerning that individual's union activity, or that of
any other employees, in a manner constituting a
violation of Section 8(a)( ) of the Act.
WE WILL NOT threaten our employees with loss
of jobs if they become members of, or assist, a
labor organization.
WE WILL NOT give our employees the impres-
sion that we are engaging in surveillance of their
activities with respect to union organization.
WE WILL NOT prohibit our employees from
engaging in union conversations or solicitations
on working time and/or in working areas for the
purpose of interfering with self-organizational
activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their right to self-organization, to form, join, or
assist the above-named Union, or any other labor
organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage
in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
WE WILL offer Vogal Asher, Roy Burns, Clif-
ford Durham, Tilmond Durham, Rita Napier,
William Napier, and Charles Harris immediate
and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority
or other rights and privileges, and make them
whole for any loss of pay suffered as a result of
the discrimination against them.
WE WILL recognize and, upon request, bargain
collectively with the aforesaid Union as the
exclusive representative of the employees found
herein to constitute an appropriate unit, and, if an
understanding is reached, embody such agree-
1011
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment in a written, signed contract. The bargaining
unit is:
All transport drivers employed at our Lon-
don, Kentucky, plant, but excluding all
driver-salesmen, garage mechanics, produc-
tion and maintenance employees, office cler-
icals, professionals, guards and supervisors
as defined in the Act.
FLAV-O-RICH, INC.
DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Administrative Law Judge: These
cases were heard on June 7, 1977, at London, Kentucky,
pursuant to charges duly filed and served,' a consolidated
complaint in Cases 9-CA-10980-1 and 10980-2 issued on
February 28, 1977, and a complaint in Case 9-CA-11259
issued on May 31, 1977. The complaints present questions
as to whether the Respondent, Flav-O-Rich, Inc., violated
Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act, as amended. In its answers, duly filed, the
Respondent conceded certain facts with respect to its
business operations, but denied all allegations that it had
committed any unfair labor practices.
At the hearing, both the General Counsel and the
Respondent were represented. All parties were afforded
full opportunity to be heard, to examine and cross-examine
witnesses, to introduce relevant evidence, and to file briefs.
The parties waived oral argument. On July 20, 1977, briefs
were received from the General Counsel and the Respon-
dent.2
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Kentucky corporation, is engaged in
the processing, sale, and distribution of milk and related
dairy products throughout several States of the United
States, with processing and distribution facilities located in
the States of West Virginia and Kentucky. The processing
and distribution plant in London, Kentucky, known as the
Chappell's Dairy Division, is the only facility of the
Respondent involved in this case. During the period from
on or about June 1, 1976, when the Respondent com-
menced operations in London, and until the issuance of the
I The original charge in Case 9-CA-10980 was filed on January 17, 1977.
The original charge in Case 9-CA-10980-2 was filed on January 31, 1977.
An amended charge, numbered Case 9-CA-10980-1 was filed on February
10, 1977, and the original charge in Case 9-CA-I 1259 was filed on April 7,
1977.
2 Simultaneously with the submission of its brief, the Respondent
submitted a motion for settlement of the case. On October 3, 1977, the
General Counsel filed an opposition to this motion. After consideration of
this motion it is found to be without merit, primarily because it would
require that the Administrative Law Judge revamp the unit found appropri-
ate by the Regional Director in a decision and direction of election issued
on May 20, 1977, in Flav-O-Rich, Inc., Case 9-RC-12008, a decision that
was subsequently sustained by the Board upon a request for review which
the Respondent made in that case. Accordingly, for that reason, and for
complaint on February 28, 1977, a representative period,
the Respondent purchased and received raw milk valued in
excess of $50,000, which was shipped to its London plant
directly from points outside the State of Kentucky. Upon
the foregoing facts, the Respondent concedes, and it is now
found, that the Respondent is engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Local Union 783, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein Union, or Teamsters,
is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Onset of Organizational
Activities
William Napier, a transport driver, was hired in June
1976. At the time of his initial interview, Carl D. O'Dell,
the branch manager, 3 questioned him as to how he felt
about a union and the applicant told him that he had no
plans to join one. O'Dell then told him that the Respondent
was going to close its plant at Campbellsville, Kentucky,
where the employees were represented by a union, but that
none of the Campbellsville drivers would be hired at
London "because [the Company] didn't want a union at
London." Napier talked thereafter with Edward Chappell,
Jr., then the assistant general manager, to express his
concern about the permanency of his job if the Campbells-
ville drivers were transferred to London. Napier testified
that Chappel reassured him with the comment that the
Company would not rehire any of those drivers "partly
because of the union down. there [in Campbellsville]. " 4
The following August, one of the Campbellsville drivers
was at the London plant and sought out Chappell in an
effort to get his job back. Napier, who talked with this
individual before the latter had an interview with the
assistant manager, later questioned O'Dell about the job
prospects at the London plant of the unemployed driver.
O'Dell answered in the negative and then added the
observation "You can see what a union can do for you,
can't you?" 5
Vogal Asher, a driver who was employed by the
Respondent in August 1976, testified that he was hired by
O'Dell and that during the course of the employment
interview he was questioned about his union sympathies.
others which will appear hereinafter in this decision, the Respondent's
motion is denied. Along with his brief, the General Counsel filed a motion
to correct certain stenographic errors in the transcript. The Respondent
having voiced no opposition to this motion, and the motion appearing to
have merit, it is now granted and the transcript is hereby corrected in
accordance therewith. The General Counsel's motion has been designated
G.C. Exh. 5 and has been placed in the exhibit file.
I O'Dell was known throughout the record as "Pete" O'Dell.
4 Chappell denied that he made this remark to Napier. The latter,
however, was the more credible witness as to this incident.
s The quotations in this paragraph are from the credible testimony of
William Napier. O'Dell was never called to the stand by the Respondent
and no explanation was offered for his absence from the hearing.
1012
FLAV-O-RICH, INC.,
According to Asher, when O'Dell asked him how he felt
about a union he gave a noncommital response. O'Dell
thereupon told him "If you want a union, you guys want
another job because we don't want it that way." Clifford
Durham, another driver, who came with the Company in
November, gave similar testimony as to his interview with
the branch manager at the time O'Dell hired him. Accord-
ing to Durham, O'Dell told him that the company rules
assured the drivers that before anyone was terminated he
would receive at least two warnings, the first orally and the
second in writing. Thereafter O'Dell questioned Durham as
to his feelings toward a union. Durham told him that it was
a matter of indifference to him, and that he could work
with, or without a union. According to Durham, O'Dell
immediately responded with the comment "we don't aim to
have a union here. .... If you got any ideas about a union,
you might as well get up out of your seat and go on down
the road." 6
In December, 1976, several of the Respondent's trans-
port drivers became interested in organizing a union to
represent them. Employees Tilmond Durham, Vogal Ash-
er, and Joseph Caldwell discussed the desirability of
securing help from the Teamsters. Late in December they
contacted Howard Feese, an organizer for that union. On
or about January 6, 1977, Durham secured a supply of
authorization cards from Feese and began to solicit his
coworkers to sign them. That very week, Caldwell was
promoted to the position of supervisor over the transport
drivers. An announcement as to this promotion, which
appeared on the plant bulletin board, stated that effective
immediately Caldwell would have the position of foreman
over the transport drivers with the power to recommend
hiring and firing. 7 Up until the very day that this notice
appeared, Caldwell had been actively involved with Asher
and Durham in organizational discussions with the drivers
and with their union representatives
On January 11, 1977, 9 the Respondent's drivers held an
organizational meeting at which Feese spoke to them about
the objectives of the Union. Eleven drivers were present.
Only two of the drivers then on the payroll failed to
attend.' 0 The entire group of I I who were at the meeting
signed authorization cards that day. Tilmond Durham
collected the cards from his coworkers and turned them
over to Feese before the meeting was concluded."
On January 12, the day after the union meeting, Branch
Manager O'Dell questioned employee Donnie Wolfe about
the organizational activities of the drivers. According to
Wolfe's credible, undenied, and uncontradicted testimony,
O'Dell asked him whether he knew if "there was any ring
6 The quotations in the above paragraph are from the credible testimony
of Asher and Clifford Durham. Their testimony was neither denied nor
contradicted, for, as noted earlier, O'Dell was never called as a witness for
the Respondent.
I This finding is based on the credible, undenied and uncontradicted
testimony of Vogal Asher.
8 In its answer, the Respondent denied that Caldwell was a supervisor.
However, it offered no testimony or evidence of any kind to rebut the
credible testimony of Asher as to the terms of the notice to employees which
announced Caldwell's promotion. Moreover, Asher also testified that it was
Caldwell who, subsequent to the posting of this notice, assigned the trucks
and runs to the drivers, told them where to unload, granted time off, and
gave them all their other orders dunng the course of their work. Conse-
quently, it is now found that during the week of January 3, Caldwell was
promoted to the post of foreman over the transport dnvers and that in this
leaders in the branch [that was] trying to get a union
together." After Wolfe answered this question in the
negative, O'Dell then asked if Tilmond Durham had a list
of the transport drivers who would sign up for the Union
and the names of those who would not. When Wolfe gave
another negative response to this question, O'Dell then
questioned him as to why the drivers were interested in a
union, and Wolfe told him that the primary reason was
that the employees felt that they should be getting as much
as the wages the drivers at Southern Bell (another dairy)
were being paid.
B. The Discharges; Findings and Conclusions With
Respect Thereto
1. The terminations on January 15
On January 15, Branch Manager O'Dell told Clifford
and Tilmond Durham, who were brothers, and Roy Burns
and William Napier, the latter being related as uncle and
nephew, respectively, that they were being discharged,
effective at once, for unsatisfactory work. O'Dell did not
specify in any instance the manner in which their work had
been unsatisfactory, nor did he specify who had com-
plained about the work. As to Tilmond Durham and
Napier, O'Dell told them that there had been complaints
about them from "higher up," "2 but he never specified
anyone by name who actually had registered dissatisfac-
tion with their work. All four of them testified that they
had never been reprimanded for any dereliction of duty
and that neither O'Dell nor any management representa-
tive had ever complained about their work performance.
Burns credibly testified that when he questioned O'Dell as
to the identity of anyone in management who had
complained about his work, O'Dell acknowledged that
although he knew of no one who had done so, the
termination had to be effectuated because "I've got a boss
to go by." O'Dell then concluded the discussion with the
comment "Roy, I hate it and there ain't nothing I can do
about it." 13
Employee Randall Tabor testified that late on the
afternoon of January 15 he returned to the dock office to
leave some papers on O'Dell's desk. While in the office,
Tabor found that the Respondent had just hired four new
drivers whose names were posted on the schedule for the
next week.'4 At that point Tabor knew that Tilmond
Durham, Burns, and Napier had been discharged, but he
knew of no others. He then asked O'Dell the identity of the
fourth driver who, he presumed, had been dismissed. The
position Caldwell exercised supervisory authority within the meaning of the
Act.
D All dates hereinafter are for the year 1977, unless specifically noted
otherwise.
'O The latter two were employees Donald Beatty and James Blair.
tI The drivers who signed cards at this meeting were: Vogal Asher, Roy
Burns, Walter Corn, Clifford Durham, Tilmond Durham, Harold Miller, Jr.,
William Napier, Randall Tabor, Donnie Wolfe, William Vernon, and Earl
Westerfield.
12 The quotation is from the testimony of Tilmond Durham and Napier.
1L The quotations in this paragraph are from the credible and undenied
testimony of Roy Burns.
'4 These new drivers who reported for work on January 16 were Paul
Bowling, Carl Kupp, Kent Ramsey, and John Walker.
1013
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
branch manager informed him that it was Clifford Dur-
ham. On hearing that name, Tabor then asked O'Dell the
reason for the discharge and O'Dell answered "The union."
Although the Respondent denied in its answer that it had
discriminatorily terminated Burns, Napier, and the two
Durhams, at the hearing it did not call any supervisory
personnel, such as O'Dell or Caldwell, to offer any
testimony which would tend to rebut that which the
General Counsel offered on the issue of discrimination as
to these four employees. In its brief the Respondent did not
contest the allegations as to Burns, Napier, and the
Durhams.
In view of the findings set forth above, it is now found
that the Respondent had knowledge of the employees'
organizational plans from at least the time that Caldwell
was promoted during the week of January 3 and became a
member of management. Even apart from the fact that
until his promotion Caldwell was privy to all the employ-
ees' organizational plans, and certainly carried them with
him to his new position on the supervisory force, it is
evident from Branch Manager O'Dell's interrogation of
Wolfe on January 12 that the management had learned of
the Teamsters' meeting with the employees, that O'Dell
wanted to know who the "ringleaders" were, and that
Tilmond Durham was one of those whom he suspected to
be in that role. The union animus which O'Dell displayed
in earlier conversations with the employees during their
hiring interviews in the summer of 1976 made it manifest
that the Respondent would not lightly accept the arrival of
any employee organization. With this background, the
swift termination of Tilmond Durham, Burns, Napier, and
Clifford Durham with no explanation other than that
O'Dell had received the order for their dismissal from
"higher up" in the corporate structure would, in itself, be
sufficient evidence on which to conclude that these dis-
charges were discriminatorily motivated. In this record,
however, there is more, for on the afternoon of January 15,
when employer Randall Tabor questioned Branch Manag-
er O'Dell as to the Respondent's hurried employment of
four new drivers, coupled with the precipitate discharge of
his four coworkers, and specifically that of Clifford
Durham, O'Dell candidly told him that the termination of
the latter resulted from his identification with the Union. It
is my conclusion that the summary discharge of all four of
the employees, and not just Clifford Durham, resulted from
the Respondent's antipathy to a union, its discovery that
they were involved in the organizational campaign, and its
desire to rid itself of the "ringleaders" in that movement.
By such conduct the Respondent engaged in violations of
Section 8(a)(3) of the Act.
2. Vogal Asher
Asher was one of the original group which joined with
the Durhams in signing union cards at the meeting with the
Teamsters' organizer on January 11. Ten days later, on the
morning of January 21, and before leaving for the run
which he was assigned to take that shift, Asher had a
conversation with John Caldwell. The latter had been
15 The quotations in this and the preceding paragraph are from Asher's
credible, undenied, and uncontradicted testimony.
'6 It is significant that on February 1, 1977. the Kentucky Division of
associated with Asher and the other employees who were
interested in a union prior to his promotion to the post of
supervisor over the transport drivers. On this occasion,
Asher questioned his onetime associate as to why he had
accepted the promotion rather than staying with the men.
Caldwell replied that because opportunities were so limited
in that area, he was determined to take what he could.
Caldwell then continued with an admonition to Asher
wherein he stated "My. . . advice to you is ... to watch
who you're talking to because things are real tight. . .just
do your job and whatever you do, keep your mouth shut
about the union."
Later that day and when Asher returned from his run,
Branch Manager O'Dell came up to him and announced
that Asher was being discharged. O'Dell told him that his
"boss" was "kind of mad over them tires that you blew out
and I'm going to have to let you go." This was a reference
to an occasion 2 days earlier when two old, recapped tires
on Asher's trailer had blown out. At the time, Asher had
called the terminal and Caldwell himself had brought
replacement tires to the scene where he and an assistant
had put them on Asher's trailer without criticizing Asher or
in any way attributing responsibility to the employee for
the loss of the old tires. When O'Dell gave this incident as
the cause of Asher's discharge on January 21, Asher boldly
disputed his superior with the statement "Pete, that ain't
the reason and you know it." O'Dell offered no response to
the employee other than to say "I hate this but the man
over top of me ... told me to do it." That concluded their
conversation and Asher left the terminal.'5
Neither Caldwell nor O'Dell was called to the stand and
the Respondent offered no evidence with respect to Asher's
discharge. The Respondent's knowledge of Asher's associa-
tion with those involved in the attempt to organize the
drivers was implicit in Caldwell's admonition to Asher as a
onetime colleague that the latter should "keep [his] mouth
shut about the union." O'Dell's initial explanation to Asher
that he was being discharged for the tire incident was
patently groundless. Caldwell, his immediate supervisor,
had never criticized Asher for carelessness on that occasion
and when Asher challenged O'Dell as to the unfairness of
such a charge, O'Dell's only response was the lame
explanation that "the man over top of" him had ordered
that Asher be terminated. Upon a consideration of the
foregoing facts,' 6 it is now found that Asher was discrimi-
natorily terminated and that by this action the Respondent
violated Section 8(a)(3) of the Act.
3. Rita Napier
Napier was the wife of William Napier and was an
accounts payable clerk in the office of David Goll, the
comptroller. She was terminated on January 20, 5 days
after her husband, as found earlier, was discriminatorily
discharged. She did not testify at the hearing, having given
birth to a baby only 2 days earlier. However, the parties
stipulated that an affidavit which had been taken from her,
be received in evidence and that if Napier were to testify
Unemployment Insurance, after a hearing, awarded Asher unemployment
insurance upon finding that Asher had not been discharged for misconduct
or any disqualifying act.
1014
FLAV-O-RICH, INC.,
her testimony would be in conformity with her prehearing
affidavit.
Napier had been employed by the Respondent and its
predecessor, Chappell's Dairy Division, since September
1975. For a long while she was the only clerk working on
accounts payable. In October 1976 she learned that she was
pregnant and notified Goll of this fact. The latter asked her
how long she planned to work and she answered that she
would work as long as she could. She also told him that
after the baby was born she might want to resume working
for the Company.
In mid-October, Napier complained to Goll about the
backlog of work and the need for more help in her section.
When Goll was reluctant to promise any assistance she told
him that unless she received assistance she would quit. The
following day Goll informed her that he had hired another
girl to work with her and that the latter would start the
following Monday. At this time Napier reassured Goll that
she would then stay as long as her health permitted and
would only leave when compelled to do so by her
pregnancy.
Early in January, Napier telephoned Goll to ask him for
a 2-week leave of absence because of illness associated with
her pregnancy. Goll told her to take as long as was needed
to recover and she, in turn, promised that she would return
to work as soon as she was able. Thereafter, she was
hospitalized, but, on January 18, when she was released
from the hospital she sent word to Goll, via a coworker,
that she would be returning soon. On January 20, however,
Jerry Pickett, assistant to Goll, telephoned Napier and told
her that she would not be needed at the plant anymore.
Napier protested this message and asked to speak to Goll.
When the latter came to the telephone he told Napier that
they did not need her any longer because the other clerk in
the section (who had been hired to help Napier) could
handle the job and that he assumed that Napier would be
quitting anyway. Napier then asked why Goll had neglect-
ed to tell her of this 2 weeks earlier when she had requested
the leave of absence. Goll's only response was that it had
not occurred to him to do so then.
Goll initially testified that he became dissatisfied with
Napier's work in the summer of 1976 but he conceded that
he had never voiced any complaint to Napier directly. Goll
testified that in October she turned in what he character-
ized as a "verbal resignation," but that he asked her to stay
on until her replacement was trained and that when this
was accomplished Napier was informed that there was no
need for her to return.
On cross-examination, Goll conceded that he had never
informed the employee of any objections to the quality of
her on the job performance at any time while she was at
work. He further acknowledged that although Napier was
told on January 20, that there was no longer any need for
her services in accounts payable, that on the following day
he hired another part-time employee for that very section.
Goll's testimony had many contradictions. At one point he
testified that Napier had quit. Earlier, he testified that in
January he merely accepted a "verbal resignation" which
she had tendered in October. Then, rather obviously, to
17 Goll feigned surprise when told, on cross-examination, that Napier did
not give birth to her child until June 5, 1977, which would have been over I I
months later than any time in July 1976.
separate the latter incident from her pregnancy, Goll
testified that it was in July that Napier first told him that
she was pregnant.17 Goll's testimony was inconsistent even
as to Napier's purported resignation. Thus, Goll testified
that in October, and at the time that Napier complained of
having too much work, she had told him "I'd like to turn in
my resignation now." Even from his own testimony there is
no evidence that at any point Napier told him that she was
turning in her resignation.
Goll was not a persuasive or convincing witness. It is
now found that after Napier became pregnant she com-
plained about the work load in her section and threatened
to quit unless Goll secured some assistance for her. Goll
promptly secured additional help and Napier continued on
the job with every expectation of remaining at it as long as
her health permitted. On January 15, however, and after
the Respondent discovered that the drivers were organizing
a union, four drivers, including Napier's husband, were
discriminatorily terminated. On January 21, Vogal Asher,
another driver, was similarly dismissed. It is now found, in
view of this background, that on January 20, the Respon-
dent did not terminate Napier because it thought she had
quit, or wanted to quit, or because it no longer needed her.
It is now found that these purported reasons for her
dismissal were pretexts and that the real reason was her
husband's known union activities. Consequently, it is now
found that her termination was discriminatory and in
violation of Section 8(aX3). The Dalton Company, Inc., 109
NLRB 1228, 1229-32 (1954) (Maybelle Jolissaint); Fuchs
Baking Co., 102 NLRB 1350, 1351-52 (1953) (Gilda
Galvin).
C. The Respondent's No-Solicitation Rule and the
Discharge of Charles Harris
At some time during the spring of 1977 the Respondent
began enforcing a no-solicitation rule. Employee Charles
Harris signed an authorization card on March 22, and
thereafter became active in the union campaign among the
nondriver personnel in the plant. Not long thereafter,
Charles Searcey, the assistant plant superintendent, called
Harris to his office, where he admonished Harris about
soliciting the other employees on company time or compa-
ny premises. A short while thereafter Murphy Martin,
foreman of the night shift, repeated this same admonition
and told Harris that he must not discuss union matters with
his fellow employees on company time or company
property.
On March 26, Searcey summoned Harris to his office
again where he accused the employee of having violated
the plant rule on solicitation and alleged that Harris had
attempted to secure a union card from another employee
on company time and premises. Harris denied that he had
done so and asked the identity of any employee whom he
allegedly solicited in violation of the rule. Searcey told him
that the incident had occurred in the warehouse when
Harris had given an authorization card to another employ-
ee and that after the latter had signed the card, Harris had
taken it from the fellow worker. Searcey, however, refused
1015
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to further identify the other employee and thereupon
discharged Harris.
Harris testified that all of his solicitation on behalf of the
Union was conducted either while he was on a break or
outside the company building and on his own time. Each
employee had two break periods on each shift. Searcey
testified that these were approximately 10 to 15 minutes
each and that an employee was "on the clock" during such
periods. According to Searcey, the employees on Harris'
shift were "off the clock" only during supper hour in the
late afternoon.
Searcey testified that he discharged Harris for soliciting
during company hours while Harris was on the clock and
for harassment of employees about signing cards. He gave
the names of two employees whom Harris allegedly
solicited in violation of the plant rule. These were,
according to Searcey, employees Nelson Combes and Ken
Murray. On rebuttal, Harris testified that he had given
each of these employees an authorization card as he
(Harris) was coming off his break period, and that he had
done so because, in each instance, the employee asked him
for a card. Harris was credible in this connection and his
testimony was never denied or contradicted, for the
Respondent never called either Combes or Murray in
rebuttal.
Searcey acknowledged that the Respondent's rule on
solicitation did not appear in an employee booklet and that
it had not appeared in a notice on the bulletin board nor
had it been promulgated in any other way in written form.
Edward Chappell, currently the general manager of the
Respondent,ts testified as to the company rule on solicita-
tion, but it was evident while he was on the stand that most
of his testimony was a statement of what he understood to
be the law on solicitation and not, in fact, what Superinten-
dent Searcey and the management had been enforcing. He
did acknowledge that the Respondent's policy on solicita-
tion had never been reduced to writing.
It is well settled that a plant rule which prohibits
solicitation on company time and premises is invalid if it
does not distinguish between the time that is actually spent
on the job and those times when the employees are on
breaks, lunch, or "not actively at work." Essex Internation-
al, Inc., 211 NLRB 749, 750 (1974); McBride's of Naylor
Road, 229 NLRB 795 (1977); The Ohio Masonic Home, 205
NLRB 357 (1973); Florida Steel Corporation, 215 NLRB
97, 99 (1974). Here, the Respondent made no attempt to
offer any justification for so broad a prohibition on the
employees' exercise of Section 7 rights. Consequently, on
the basis of the Board's holding in the cases cited, it is now
found that the Respondent's rule against solicitation was
unduly broad, ambiguous, and unlawful. From Searcey's
own testimony, it is clear that the rule applied to the time
when an employee was on his break, a period during which
the employee was admittedly "on the clock." Consequent-
ly, it is now found that the Respondent's rule against
solicitation violated Section 8(a)(1).
Finally, since Harris was discharged for violating an
invalid no-solicitation rule, the discharge was per se
is At the times material to this case, Chappell was the assistant general
manager.
s1 An allegation that Assistant General Manager Chappell violated the
unlawful. Summit Nursing and Convalescent Home, Inc., 196
NLRB 769, 770 (1972). Accordingly, by terminating Harris
for this reason, the Respondent violated Section 8(aX3).
The complaint in Case 9-CA-11259 also alleged that on
March 21, 1977, the Respondent discriminatorily terminat-
ed employee Judd McCowan. The latter did not appear at
the hearing. The General Counsel stated that McCowan
had been subpenaed, but had never honored the summons.
No testimony in support of the allegation as to McCowan
was offered by the General Counsel. Assistant General
Manager Chappell, on the other hand, testified that
McCowan had been discharged for excessive absenteeism
and for drawing obscene pictures on the walls of the plant.
In this state of the record, the allegation as to McCowan
must be dismissed.
D. Findings and Conclusions With Respect to the
Alleged Violations of Section 8(a)(1)
On the basis of the foregoing findings, it is now found
that the Respondent engaged in violations of Section
8(aXl1) of the Act by the following actions and comments
of Branch Manager Carl O'Dell: (1) In August 1976, when
Vogal Asher applied for a job, by coercively questioning
the applicant about his union sympathies and telling him
"If you want a union you ... want another job because we
don't want it that way." (2) In August 1976, by telling
employee William Napier that a driver from the Camp-
bellsville plant would not be hired at the London facility
and implying that this was because the drivers at Camp-
bellsville had been represented by a union. (3) In Novem-
ber 1976, by questioning job applicant Clifford Durham as
to his feelings toward a union and then telling him that if
he had any interest in a union he would not be hired by the
Respondent. (4) On January 12, 1977, by coercively
interrogating employee Donnie Wolfe about his union
activities and those of his coworkers. (5) On that same date
and in that same conversation with Wolfe, by questioning
the latter as to the type of records that employee Tilmond
Durham kept as to which drivers would and which would
not support the Union, thereby creating the impression
that the Respondent was keeping its employees' union
activities under surveillance. (6) On January 15, 1977, by
telling employee Randall Tabor that Clifford Durham had
been discharged because of "The Union."
The Respondent further violated Section 8(aX)() by the
conduct of Transport Supervisor John D. Caldwell on
January 21, 1977, in advising employee Vogal Asher "to
watch who you're talking to . . . and whatever you do,
keep your mouth shut about the union," thereby impliedly
threatening Asher that if he did discuss the Union he might
be discharged. 19
Act by comments to employee Napier is barred by Sec. 10(b) since Napier's
testimony indicates that this conversation occurred in June 1976 and the
onginal charge was not filed until January 1977.
1016
FLAV-O-RICH, INC.,
E. The Alleged Violation of Section 8(a)(5);
Findings and Conclusions With Respect Thereto
1. The appropriate unit
The General Counsel alleged that all transport drivers
employed by the Respondent at its London plant, exclud-
ing all driver-salesmen, garage mechanics, production and
maintenance employees, office clericals, professionals,
guards and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act. On January
19, 1977, the Union filed a petition for representation
wherein it sought to represent the employees in the unit
described as above. (Case 9-RC-11072). This position is
opposed by the Respondent, according to whom, only a
plantwide unit is appropriate.
In a related representation case (9-RC-12008), the
Teamsters filed a petition wherein it sought a unit made up
of all the production and maintenance employees at the
London plant, but from which all transport drivers, and
various other categories, would be excluded. On May 20,
1977, the Regional Director issued a Decision and Direc-
tion of Election in that matter wherein he found that the
unit sought by the petitioner in that case was appropriate.
This decision was subsequently sustained when the Board
denied the Employer's request that it be reviewed. 20
The transport drivers deliver milk to the different branch
facilities of the Respondent located in Kentucky and
various other States. Occasionally, they assist in the
loading and unloading of their trucks, but most of their
time is spent in making deliveries, and away from the plant.
They have little contact with the other employees. They are
not even allowed in the cooler at the plant and, upon return
from their runs, the unloading of their trucks is customarily
done by other employees. In his Decision and Direction of
Election in Case 9-RC-12008, the Regional Director found
that the transport drivers have no interchange with any of
the production and maintenance employees. Upon the
basis of the foregoing facts, it is apparent that the
Respondent's transport drivers have a sufficient communi-
ty of interest, apart from the other employees, to constitute
a separate and appropriate unit for the purposes of
collective bargaining. Accordingly, that is the finding
here.2
2. The issue as to a bargaining order
It was undenied that on January 11, 1977, and at a time
when there were 13 transport drivers in the appropriate
unit, 11 of them signed authorization cards in the Team-
sters.22 Only two members of the unit did not sign cards.
Consequently, it must be, and is now, found that as of
January 11, 1977, the Union represented a majority. As
20 On September 2, 1977, the Respondent submitted a motion to the
Administrative Law Judge in the instant case wherein it requested that the
latter instruct the Regional Director to discontinue all preparations for a
secret ballot election in Case 9 RC-12008. On September 22, 1977, 1 denied
the motion on the ground that, irregardless of the merits of the aforesaid
motion, the Administrative Law Judge lacked authonty to take any such
action.
ai The Respondent would include the garage mechanics in the same unit
with the drivers. The record indicates that there are two mechanics who
found earlier, the very next day, the Respondent engaged
in the coercive interrogation of employee Donnie Wolfe
and created the impression of unlawful surveillance of its
employees' organizational activities. Thereafter, on Janu-
ary 15, the Respondent discriminatorily terminated four of
its employees and on January 20 and 21 it unlawfully
terminated two more members of the unit. The Respondent
has presented no evidence that would tend to show that it
had independent knowledge that the Union lacked a
majority status either before or after the commission of the
egregious unfair labor practices which it committed during
the month of January.
In view of the above findings, the undersigned concludes
that the unlawful conduct of the Respondent was aimed at
nothing less than the swift destruction of the incipient
union movement at the plant. It is further found that these
unfair labor practices were so substantial and pervasive as
to be totally disruptive of the Board's election processes. It
is manifest that they would prevent a free election and
cause the rapid dissipation of the Union's majority.
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618-620
(1969).
On January 19, the Union filed a petition seeking an
election in the appropriate unit found above. However, the
Union never made a formal demand for recognition and
bargaining either before or after the filing of this petition.
This, however, is not a condition precedent to a bargaining
order where, as in this case, the Respondent has so
seriously flouted the provisions of the Act. Beasley Energy,
Inc., d/b/a Peaker Run Coal Company, Ohio Division #1,
228 NLRB 93 (1977). Accordingly, it is now found that
because of the background present here, the likelihood of
eliminating the effects of the Respondent's unfair labor
practices and insuring a fair election by the use of the
conventional remedy of a cease-and-desist order is minimal
and that the employee sentiment expressed through the
authorization cards obtained by the Union would be better
protected by a bargaining order. Therefore, it will be
recommended that such an order issue. The Great Atlantic
& Pacific Tea Company, Inc., 230 NLRB 766 (1977);
Amalgamated Clothing Workers, v. N.LR.B., 527 F.2d 803,
807-808 (C.A.D.C., 1975); Automated Business Systems, a
Division of Litton Business Systems, Inc., a Subsidiary of
Litton Industries, Inc., 205 NLRB 532, 536 (1973).
Earlier herein it was found that on January 12, the
Respondent coercively interrogated employee Donnie
Wolfe and engaged in various other violations of Section
8(aXl) which were followed within less than 10 days by the
discriminatory termination of six employees. Consequent-
ly, it is now found that the bargaining order should be
dated as of January 12, 1977, the date on which the
Respondent "embarked on a clear course of unlawful
conduct . . . to undermine the Union's majority status."
work on not only the tractors and trailers, but also the trucks of the dnver-
salesmen and the cars driven by supervisory personnel. All of their work is
done at the repair shop and they do not interchange with the dnvers. In
accord with established Board practice they should be excluded from the
unit of transport dnvers. Walker-Roemer Dairies, Inc., 186 NLRB 430, 431
(1970); Mc-Mor-Han Trucking Co., Inc., 166 NLRB 700, 701-702 (1967);
Diamond Standard Fuel Corp., 179 NLRB 702, 704-705 (1969); Archie's
Motor Freight, Inc., 130NLRB 1627, 1629(1961).
22 The names of the card signers appear in fn. I , supra.
1017
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trading Port, Inc., 219 NLRB 298, 301 (1975); The Great
Atlantic & Pacific Tea Company, Inc., supra; The Kroger
Co., 228 NLRB 149, 151 (1977).
3. Concluding findings
The General Counsel also alleged that the Respondent
violated Section 8(a)(5). While conceding that the Union
never made a demand for recognition and bargaining, it is
the contention of the General Counsel that the Union's
filing of a representation petition was tantamount to such a
request. There is no merit to this position. The Board has
found that the filing of a representation petition does not,
per se, constitute an appropriate demand. The Great
Atlantic & Pacific Tea Company, Inc., 230 NLRB 176, fn. I
(1977); Eagle Material Handling of New Jersey, 224 NLRB
1529 (1976); cf, Beasley Energy, Inc., supra at 96. Accord-
ingly, since the Union never made a formal request for
recognition and bargaining, the allegation that the Respon-
dent violated Section 8(a)(5) must be dismissed.
CONCLUSIONS OF LAW
I. The Respondent is an employer engaged in com-
merce and the Union is a labor organization, all within the
meaning of the Act.
2. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
3. By discriminating in regard to the hire and tenure of
Vogal Asher, Roy Burns, Clifford Durham, Tilmond
Durham, Rita Napier, William Napier, and Charles Harris,
thereby discouraging membership in the Union, the Re-
spondent has engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
4. By maintaining a rule prohibiting employees from
engaging in union solicitations on company time and
property, thereby forbidding the employees from engaging
in protected concerted activity at those times when em-
ployees are on breaks, lunch, or not actively at work, the
Respondent has violated Section 8(a)(1) of the Act.
5. All transport drivers employed by the Respondent at
its London, Kentucky, plant, excluding all driver-salesmen,
garage mechanics, production and maintenance employ-
ees, office clericals, professionals, guards and supervisors
as defined in the Act, constitute a unit appropriate for
collective bargaining within the meaning of Section 9(b) of
the Act.
6. At all times material herein the Union has been the
exclusive collective-bargaining representative of the Re-
spondent's employees in the aforesaid unit within the
meaning of Section 9(a) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
8. The Respondent has not engaged in violations of the
Act other than as herein specifically found.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices warranting a remedial order, it will be
recommended that it be ordered to cease and desist
therefrom and that it take certain affirmative action to
effectuate the policies of the Act.
Having found that the Respondent discriminatorily
terminated Vogal Asher, Roy Burns, Clifford Durham,
Tilmond Durham, Rita Napier, William Napier, and
Charles Harris, it will be recommended that the Respon-
dent be ordered to offer them immediate and full reinstate-
ment, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of
earnings they may have suffered from the time of their
discharge to the date of the Respondent's offer of reinstate-
ment. The backpay for the foregoing employees shall be
computed as prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), plus interest as set forth in Isis Plumbing
& Heating Co., 138 NLRB 716 (1962), and Florida Steel
Corporation, 231 NLRB 651 (1977). It will also be recom-
mended that the Respondent be required to preserve and
make available to the Board, or its agents, on request,
payroll and other records to facilitate the computation of
backpay due.
Having found that the Respondent engaged in extensive
unfair labor practices in derogation of its employees'
statutory rights and that such unlawful conduct by the
Respondent prevents the carrying out of a free election and
is likely to dissipate the Union's majority status, it will be
recommended that the Respondent cease and desist from
such unlawful conduct and that it bargain with the
Teamsters as its employees' designated bargaining repre-
sentative.
Since "a discriminatory discharge of an employee . . .
goes to the very heart of the Act" (N.LRB. v. Entwistle
Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941), it will be
recommended that the Respondent be ordered to cease
and desist from infringing in any manner upon the rights
guaranteed in Section 7.
Finally, since the Respondent is being directed to
bargain collectively with the Union, although no designa-
tion of representative has been made in accordance with
the procedures of Section 9 of the Act, it will be recom-
mended further that the notice herein contain language
advising the employees of their right to a decertification
election. See: N.L.R.B. v. Triangle Plastics, Inc., 406 F.2d
1100 (C.A. 6, 1969); N.L.R.B. v. Montgomery Ward & Co.,
554 F.2d 996, 1003 (C.A. 10, 1977); N.LR.B. v. Drives,
Incorporated 440 F.2d 354, 367 (C.A. 7, 1971), cert. denied
404 U.S. 912 (1971); Morse's Foodmart of New Bedford,
Inc., 230 NLRB 1092, 1101 (1977).
Upon the foregoing findings of fact, conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, there is issued the following recommended:
1018
FLAV-O-RICH, INC.,
ORDER 23
Flav-O-Rich, Inc., London, Kentucky, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, or otherwise discriminating against any
employee because of activity on behalf of, or membership
in, Teamsters Local 783, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization.
(b) Interrogating any employee concerning that individu-
al's union activity, or that of other employees, in a manner
constituting a violation of Section 8(a)(1) of the Act.
(c) Giving the impression of engaging in surveillance of
employee activity with respect to union organization.
(d) Threatening its employees with loss of jobs if they
become members of, or assist, a labor organization.
(e) Promulgating, announcing, and/or maintaining a rule
prohibiting employees from engaging in union related
conversations or solicitations for the purpose of interfering
with the employees' self-organizational activities.
(t) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization,
to bargain collectively through representatives of their own
choosing, or engage in concerted activities for the purpose
of collective bargaining or other mutual aid, or to refrain
from any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Vogal Asher, Roy Burns, Clifford Durham,
Tilmond Durham, Rita Napier, William Napier, and
Charles Harris immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
23 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 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.
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board, or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and other records necessary,
or appropriate, to analyze the amount of backpay due
under the terms of this Order.
(c) Recognize and, upon request, bargain collectively
with Teamsters Local 783, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America as the exclusive representative of
the employees found herein to constitute an appropriate
unit, and, if an understanding is reached, embody such
agreement in a written, signed contract.
(d) Post at the Respondent's plant in London, Kentucky,
copies of the attached notice marked "Appendix." 24
Copies of said notice, on forms provided by the Regional
Director for Region 9, after being duly signed by the
Respondent's representatives, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by the
Respondent for 60 consecutive days thereafter, in conspic-
uous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not found herein.
24 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1019