Kellogg

National Labor Relations Board - Board Decisions

Mar 13, 1974

209 N.L.R.B. 647 (N.L.R.B. 1974)

EGGO FROZEN FOODS 647
Eggo Frozen Foods, Division of Fearn International,
Inc., A Subsidiary of Kellogg and Lamar Griffin.
Case 10-CA-10048
March 13, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On September 28, 1973, Administrative Law Judge
Ivar H. Peterson 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 and findings'
of the Administrative Law Judge but, for the reasons
set forth below, has decided to dismiss the complaint
in its entirety.
We do not agree with the Administrative Law
Judge's conclusion that the discharges of Lamar
Griffin, Lillie Foster, Barbara Daniel, Dodie Rober-
son, and Barbara Cox on January 18, 1973, violated
Section 8(a)(1) of the Act. We are not satisfied that
the General Counsel has met the burden of establish-
ing that these five employees were engaged in
protected concerted activity at the time they were
discharged.
Prior to January 18, the date of the discharges,
representatives of two civil rights groups, the South-
ern Christian Leadership Conference (herein SCLC)
and the Metropolitan Atlanta Summit Leadership
Congress, Inc. (herein the Congress) sent a telegram
to Respondent's vice president, Wells, accusing
Respondent of maintaining racially discriminatory
hiring and classification policies, and complaining
about Respondent's contemplated institution of a 12-
hour workday. The telegram also contained a
demand for a meeting to resolve these matters. On
January 10, 1973, Wells sent a reply to the Congress
vigorously denying the existence of any discriminato-
ry personnel practices. Although the proposed 12-
hour workday was never implemented, Respondent
instituted a Sunday work schedule, effective January
14. Sometime prior to that date an announcement
printed on stationery with the Congress' letterhead
was posted on a plant bulletin board by Martha
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board 's established policy not to
overrule an Administrative Law Judge' s resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
209 NLRB No. 103
Price, an employee and member of the Congress. The
announcement read as follows:
To All Eggo Employees That It may Concern:
To Whom It May Concern:
The members of the Metro Summit Chapter of
Eggo Employees will work the old schudle [sic]:
We refuse to work the new schudle [sic] until such
time that we hear from the first letter that was
sent to Eggo Foods.
Also we will observe the state holiday of Rev.
Dr. Martin Luther King Birthday on Monday,
January 15, 1973.
On Sunday, January 14, a number of Black
employees stayed at home in protest over the new
Sunday work schedule. On the following day,
January 15, several Black employees again failed to
report to work in observance of the birthday of
Martin Luther King, Jr. On Tuesday, January 16,
Respondent's assistant plant manager, Alfred Plott,
issued formal warnings to these employees for their
unauthorized absences. On the mornings of January
17 and 18, various employees picketed Respondent's
premises on their nonworking hours protesting the
introduction of Sunday work.
The discharge of the five employees in question on
January 18 was triggered by Plott's discharge of a
Black employee, Julliette Poole, for failing to obey
the order of Production Supervisor Darryl Ash to
sweep a certain area of the plant floor. As Plott led
her to the timeclock and punched out her timecard, a
number of Black employees, including the five
employees whose discharges are in issue, approached
the timeclock to see what was happening. It was then
that Plott suddenly turned around to these people
and told them that they were fired and to get out of
the plant.
In order for employee activity to come within the
protection of the Act, it must be. among other things,
concerted. This crucial element appears to be missing
from the conduct of the five dischargees. The record
shows that each of these five employees separately
left the work area and approached the timeclock to
see what was happening with regard to the firing of
Julliette Poole. There is no evidence that the
employees protested in any way the discharge of
Poole or made any gesture to Plott of their support
for Poole.
In finding the conduct of the five dischargees
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protected, the Administrative Law Judge reasoned
that, in view of the picketing that had already been
taking place at the plant, Plott "would naturally be
aware that these employees, by walking off their jobs
and going to the timeclock where the discharge of
one of their fellow employees was taking place,
would be engaging in concerted activities as a protest
over the discharge of their fellow employee." 2 But,
even were Plott's state of mind relevant, this is no
more than speculation by the Administrative Law
Judge. In the absence of any evidence of a coordinat-
ed effort on their part to express their concern with
or protest of Poole's firing, we cannot accept such a
speculation as a substitute for proof.
We conclude that the five dischargees, in leaving
their work stations and standing silently by the
timeclock as Poole was being fired, were not engaged
in protected concerted activity. Therefore, their
discharges by Respondent did not violate Section
8(a)(1) of the Act.
It also follows that the subsequent strike by
employees in support of the dischargees was not an
unfair labor practice strike, and, therefore, Respon-
dent did not violate Section 8(a)(1) when it refused,
on March 27, 1973, to reinstate the dischargees and
strikers after they made unconditional offers to
return to work.3 Accordingly, we shall dismiss the
complaint in its entirety.
ORDER
Pursuant to Section .10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint be,
and it hereby is, dismissed in its entirety.
2 See Administrative Law Judge 's Decision penultimate paragraph of
sec iI
3 Respondent replied that it would reinstate the strikers and dischargees
only as vacancies occurred
strike which, allegedly, was caused and prolonged by
unfair labor practices of the Respondent. According to the
complaint, on March 22 the striking employees of the
Respondent, including, among others, the five allegedly
discriminatorily discharged employees and six other
named strikers, unconditionally offered to return to work.
The complaint further alleged that on or about March 27,
and thereafter, the Respondent refused to reinstate the
named employees because they had engaged in concerted
activities with other employees for the purpose of collective
bargaining and other mutual aid and protection, all in
violation of Section 8(a)(1) and Section 2(6) and (7) of the
Act.
On or about June 21, the Respondent filed its answer to
the complaint, denying the commission of any unfair labor
practices. On or about July 31, Mary Joyce Johnson,
attorney for the employees, moved that the hearing be
continued due to personal inconvenience. In response to
this request, the Regional Director rescheduled the hearing
from July 19 to August 1. On or about September 5 and 13,
respectively, counsel for the General Counsel and counsel
for the Respondent filed briefs with me which have been
carefully considered.
Upon the entire record i in the case and my observation
of the witnesses as they testified, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , a Delaware corporation , has at all
times material herein engaged in the manufacture and sale
of frozen food products , with its office and place of
business located in Atlanta, Georgia. During the past 12
months the Respondent purchased and received goods
valued in excess of $50,000 directly from suppliers located
outside the State of Georgia . The Respondent, which
employs about 135 employees, admits and I find that it has
been at all times material herein engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
DECISION
STATEMENT OF THE CASE
IvAR H. PETERSON, Administrative Law Judge: I heard
this case in Atlanta, Georgia, on August I and 2, 1973,
upon the complaint issued on June 8 by the Regional
Director for Region 10, based on a charge and amended
charge filed by Lamar Griffin, an individual, on March 21
and June 5. Briefly stated, the complaint alleged that, on or
about January 18, the Respondent discharged five named
employees and thereafter failed and refused to reinstate
them because they engaged in concerted activities with
other employees for the purpose of collective bargaining
and other mutual aid and protection. The complaint
further alleged that, on or about January 18, employees of
the Respondent ceased work concertedly and engaged in a
A. The Events
Under date of March 22, 11 named employees addressed
a letter to J. L. Wells, vice president and general manager
denominating themselves "The Black Employees of Eggo
Food Div., for Better Working Conditions and Equal
Opportunity in Employment." The letter, in pertinent part
stated: "We, the Black Employees of Eggo Food Division
for Better Working Conditions and Equal Opportunity in
Employment, still seek reinstatement to our jobs with Eggo
Food Division " The letter continued by stating that in
"seeking re-employment to the positions that we previously
held with Eggo Food, we are demanding that all person
[sic ] involved in trying to bring about equal and adequate
job opportunities and promotional opportunities for all
Eggo Food employees regardless [sic] of race, creed, or
color by participating in the boycotting and picketing of
I The unopposed motion of counsel for the Respondent to correct the
transcript in one respect is hereby granted.
EGGO FROZEN FOODS 649
Eggo Food Division, be immediately reinstated to their
previous positions unconditional [sic]." Finally, the letter
stated that the signatories "sincerely feel that the supervi-
sors and managerial personnel should not be allowed to
harass, intimidate, or punish any of us in any way
whatsoever due our participation in the racial labor
dispute." Under date of March 27, Wells acknowledged
receipt of the letter and stated that the signatories "will be
offered positions for which you are qualified as such
openings occur."
By way of background, the present dispute apparently
had its origin in early January. Under date of January 4,
the Rev. Joseph E. Boone, executive director Metro
Summit Congress, the Rev. Carl Dorsey, Cochairman
Operation Bread Basket of the Southern Christian Leader-
ship Conference, and the Rev. Hosea Williams, president
of the Atlanta Chapter of the Southern Christian Leader-
ship Conference, sent a telegram to Vice President Wells
stating: "After careful investigation of resent [sic] com-
plants [sic] from the Black work force of Eggo Foods Inc.
relative to discriminatory practices in hiring and upgrading
based upon race," they found that the complaints were
valid and called for an immediate conference in relation to
them. They alleged that "the deliberate discriminatory
practice of hiring Whites over Black by a 7 to 1 rattio [sic]
be stopped."
Vice President Wells replied to the Rev. Boone by letter
dated January 10. With respect to the allegations made,
Wells stated:
In response to your recent telegram concerning our
Company's treatment of minority employees, we feel
that there is some misunderstanding as to our Compa-
ny's policies and its efforts to treat all of our people in a
fair and equitable manner.
At the present time our hourly production and
maintenance employee work force is in excess of 33
percent black, which is a considerably higher percent-
age than the recent 21% figure given by the Georgia
Department of Labor, as the percentage of minority
employees in the total labor force for our employment
area . Also, of our recently hired employees, approxi-
mately 33% of those hired are minority persons. The 7
to 1 ratio stated in your telegram simply is not accurate.
In addition, the company cancelled the proposed
twelve hour shift agreement a short time ago and
instead, plans to initiate an eight hour, five day per
week schedule.
You may also be interested in knowing that approxi-
mately one third of our plant supervisory force is black
and that the company has and will continue to make
available higher paying jobs as well as supervisory
positions to all qualified employees. As we have stated
to our employees many times, all available jobs are
open to all employees without restriction as to race or
sex.
We feel that our Atlanta plant has a fine record in up-
grading employee benefits and pay and due to our
continuing efforts , has accomplished considerably
more than other area employers.
Under date, of February 12, the Rev. Ralph David
Abernathy, president of the Southern Christian Leadership
Conference, wrote to Vice President Wells with regard to a
conference the parties had held in which he stated he
would make the Conference's demands in writing. He
made the following three requests:
1. That Black persons be employed in the office,
mechanical and all departments of Eggo Foods;
2. That the seventeen (17) persons who are presently
out of the plant be restored to their previous positions,
with their present seniority, and without any reprisals;
and
3. That retro-active salary be paid them for the period
they have been out of the plant.
He also requested that the Respondent "advertise in the
Black news media and make deposits with Black lending
institutions in the Metro Atlanta area." He further stated
that he was in agreement with the Respondent's proposal
that "Sundays will be considered a work day with double
pay through the month of April. Should it become
necessary to continue this practice beyond April you will
evaluate this practice and make your findings known to all
persons concerned ." Wells replied in a letter dated
February 15, in which, among other things, he stated:
At that [February 12] meeting you refused our offer
which included reinstatement , without back pay, for
the 17 employees who walked off the job and
Affirmative Action in the areas of hiring and minority
participation. We feel , that under the circumstances,
the terms of this offer were more than fair, and we have
patiently awaited a further reply from you regarding
the offer.
We have a moral obligation which is owed our Eggo
employees who have remained at work during this
difficult situation. It is unfair and improper to ask these
Eggo employees to faithfully perform their work in a
continual state of uncertainty over the status of their
job. Accordingly, to provide our work force the
certainty and .tability it needs in these difficult times,
we are compelled to withdraw our offer as stated at the
2/12/73 meeting.
We wish to make clear that the withdrawal of Eggo's
2/12/73 offer will not affect Eggo's plan for continuing
Affirmative Action in the areas of hiring and minority
participation. Further, those employees who walked off
the job and desire reinstatement will be offered
reinstatement as job openings occur at the Eggo
Atlanta Plant.
Under date of February 15, a memorandum was submitted
to Respondent's management by 58 signatories, stating
they were employees, which advised Respondent
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that if the seventeen employees are returned to their
jobs with seniority rights, We, the Undersigned WILL
walk out.
We feel that it would be impossible for us to work with
these people under the conditions that now exist.
Under the same date, the Respondent was sent a
memorandum from employees, which, in substance, stated
that they, being new employees recently hired to replace
the strikers, protested the offer of the strikers to return,
viewing that offer, if accepted, as "an unfair labor practice
act to the new employees to release them . . . and reinstate
the former employees... .
Amplifying the circumstances surrounding the work
stoppage that began on January 18, Juliette Poole, who had
worked for the Respondent for about 1 year and had the
job of picking waffles, testified that about 7 a.m. on that
day the employees started picketing and continued to do so
for an hour. At 8 o'clock they went to work and, in
accordance with customary practice, rotated Jobs at 9 a.m.
She explained that early morning picketing was occasioned
by the scheduling of Sunday work and the proposed 12-
hour workday. She related that at 9 o'clock the assistant
supervisor assigned her to sweep and, as she was sweeping,
Darryl Ash, a supervisor, assigned her to go in the back of
the warehouse and sweep. She related that none of the
other girls had ever been given such an assignment, and
she refused. Ash left briefly and then came back and
shoved her on her shoulder and said "didn't I tell you to go
back in the warehouse and sweep." Thereupon Supervisor
Al Plott came to her and, according to Poole, "told me that
if I couldn't do the job that was assigned for me to do to hit
my card, and I told him to hit it, and when he hit my card
all of the other girls gathered around by the timeclock and
then he told all of them to just get out." Thereupon the
employees left and resumed picketing.
Martha Collins Price, who had been employed since
September 1970 on production work, corroborated Poole's
testimony as related above. She testified that she picketed
for 2 or 3 months beginning January 18. Mrs. Price
acknowledged that she was scheduled to work on Monday,
January 15, but that she called the Company and advised
that she was taking the day off because it was the Rev.
Martin Luther King's birthday. She also acknowledged
that she had posted on the bulletin board the announce-
ment refusing to work the new schedule and intending to
observe January 15 as the birthday of the Rev. Martin
Luther King.
In December 1972 the Respondent announced a new 12-
hour workday schedule which required Sunday work.
Some of the strikers were dissatisfied and contacted the
Rev. Boone, and he sent a telegram on January 4 to the
Respondent protesting the alleged discriminatory practices
as to hiring, upgrading, and new work schedule. The
Respondent answered Rev. Boone's letter on January 10,
stating, among other things, that the proposed 12-hour
shift had been rescinded prior to the commencement of the
strike on January 18. Employees had been picketing the
Respondent's premises during their off hours and off days,
protesting working hours. On January 18, Poole was
discharged by Supervisor Plott because she refused to
sweep a certain area of the plant. Thereupon a number of
employees, including the alleged discriminatees, stopped
work, and left their duty stations and went to the area of
the timeclock to determine the reason for Poole's discharge
and to protest it. Witnesses presented by counsel for the
General Counsel corroborate each other in stating that
once Poole had been discharged by Plott, the latter turned
around at the timeclock, put his hands in the air, waved at
the alleged discrim,natees, and told them all to "get out."
On the other hand, Supervisor Plott denied that at the time
Poole was discharged some employees were grouped
around the timeclock, as they testified. In resolving this
issue , it should be pointed out that most of the alleged
discriminatees had already been offered reemployment and
their apparent credibility would be greater than that of
employees who are "out in the cold." Moreover, it should
be observed that the Respondent and its supervisors were
under a substantial amount of pressure from the other
employees who presented petitions threatening to walk out
if,lhe striking employees were reemployed.
Upon all the evidence, I come to the conclusion that the
Respondent was aware that certain employees were
engaged in picketing activities at the Respondent's facility,
and that Supervisor Plott, accordingly, would naturally be
aware that these employees, by walking off their jobs and
going to the timeclock where the discharge of one of their
fellow employees was taking place, would be engaging in
concerted activities as a protest over the discharge of their
fellow employee. I further conclude that Plott did tell the
employees to get out of the plant and that this instruction
is equivalent to a discharge. It was this occurrence that
precipitated the strike and, accordingly, I conclude that the
strike was an unfair labor practice strike, and, in
consequence, the strikers are entitled to reinstatement to
their former or substantially equivalent positions immedi-
ately upon unconditional application to return to work. I
further find that the Respondent's failure to reinstate the
strikers, after their March 22 offer to return to work,
constitutes a further violation of Section 8(a)(1) of the Act.
On cross-examination, Plant Manager Macko testified
that it was his feeling that the employees, prior to staying
out on Sunday and Monday, had planned to do so. Macko
further admitted that employees had been given discipli-
nary warnings for their refusal to work on Sunday and
Monday which, in my view, indicates that the Respondent
entertained some animus toward the employees who were
engaged in concerted activities. Such animus, considered in
the context of the later events, persuades me that the
Respondent did in fact discharge the employees for
walking off their jobs and going over to the timeclock to
protest the discharge of Poole.
CONCLUSIONS OF LAW
1. The Respondent, Eggo Frozen Foods, Division of
Fearn International, Inc., A Subsidiary of Kellogg, is an
employer within the meaning of Section 2(2), (6), and (7) of
the Act.
2. By unlawfully discharging Lamar Griffin, Lillie
Foster, Barbara Daniel, Dodie Roberson, and Barbara
Cox, on January 18, 1973, the Respondent violated Section
8(a)(1) of the Act.
EGGO FROZEN FOODS 651
3. By refusing on March 27, 1973, to reinstate the said
employees the Respondent further violated Section 8(a)(1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices burdening and affecting commerce within the
meaning of Section 2 (6) and (7) of the Act.
THE REMEDY
I find that it is necessary that the Respondent be ordered
to cease and desist from the unfair lanor practices found
and to take certain affirmative action, including reinstating
all strikers , to their former jobs or, if those jobs no longer
exist , to substantially equivalent jobs, in accordance with
their unconditional offer to return to work. If necessary to
provide jobs for strikers , the Respondent shall discharge
any replacement employees and, in addition , pay the
strikers backpay from 5 days after their application to
return to work until they are in fact employed.
[Recommended Order omitted from publication.]