Krispy Kreme Doughnut Corp.

National Labor Relations Board - Board Decisions

Sep 29, 1979

245 N.L.R.B. 1053 (N.L.R.B. 1979)

KRISPY KREME DOUGHNUT COW. 1053
Krispy Kreme Doughnut Corp. and Bakery, Confec-
tionery and Tobacco Workers International Union,
AFL-CIO, CLC. Case 1 1 -CA-7792
September 29, 1979
DECISION AND ORDER
On April 17, 1979, Administrative Law Judge Joel
A. Harmatz issued the attached Decision in this pro-
ceeding. Thereafter, Respondent and the General
Counsel filed exceptions and supporting briefs, the
Charging Party filed an answering brief to Respon-
dent's exceptions, and Respondent filed an answering
brief to the General Counsel's exceptions.
The National Labor Relations Board has consid-
ered the record and the attached Decision in light of
the exceptions and briefs and has decided to affirm
the rulings, findings,' and conclusions2 of the Admin-
istrative Law Judge and to adopt his recommended
Order, as modified herein.3
The Administrative Law Judge concluded that Re-
spondent violated Section 8(a)(l) of the Act by dis-
charging Terry Boggs because of his expressed inten-
' Respondent has excepted to the Administrative Law Judge's crediting of
employee Terry Boggs' version of the events leading up to his discharge. In
this regard Respondent points to the Administrative Law Judge's dirredit-
ing of some of Boggs' testimony and his characterization of some of Boggs'
testimony as unreliable and logically inconsistent. However. an administra-
tive law judge is not required to discount all of a witness' testimony because
he is not persuaded by some of it. Nothing is more common than to believe
some and not all of what a witness says. N. LR.B. v. Universal Camera Cor-
poration. 179 F.2d 749 (Zd Cu. 1950). See also Maximum Precision Metal
Products. Inc., R e ~ u h Stamping Ltd, 236 NLRB 1417 (1978). We have
carefully examined the record in this case and conclude that the Administra-
tive Law Judge's credibility hndings are not contrary to the clear preponder-
ance of all the relevant evidence. Accordingly, we find no basis for reversing
those findings. StMdord Dry Wall Products, Inc., 91 NLRB 544 (1950). enid.
188 F.2d 362 (3d Cir. 1951).
Respondent excepts to the Administrative Law Judge's conclusion that
Respondent violated Sec. 8(a)(1) of the Act by discharging Terry Boggs
because of his expressed intention to file a workmen's compensation claim on
the ground, inter alia, that the General Counsel neither alleged a violation on
this theory nor argued such a theory to the Administrative Law Judge. Al-
though the complaint does not specifically allege that B o w was discharged
because of his intention to file a worlmen's compensation claim, this allega-
tion was generally encompassed in the complaint, the issue was fully litigated
at the hearing. and the m r d fully supports the Administrative Law Judge's
conclusion. Accordingly, we adopt the Administrative Law Judge's finding
of this violation. See Gerald G. Gogin d / b / a Gogin Trucking, 229 NLRB 529
m 7 n . . ,
In view of our decision herein we find it unnecessary to pass on the issue
of whether Respondent's discharge of Boggs was also unlawful because it
was allegedly predicated on Boggs' threat to contact the Occupational Safety
and Health Administration and have Respondent investigated.
Respondent has excepted to the Administrative Law Judge's use of the
broad --anddesist language, "in any other manner," in par. I(c) of his
rooommended Order. We have considered this case in hght of the standards
set forth in Hickmort Foadr, lnc.. 242 NLRB 1357 (1979). and have con-
cluded that a broad remedial order is inappropriate inasmuch as it has not
been shown that Respondent has a proclivity to violate the Act or has en-
gaged in such egregious or widespread misconduct as to demonstrate a gen-
eral disregard for employees' fundamental statutory rights. Accordmgly, we
shall modify the recommended Order and notice so as to use the narrow
injunctive language. "in any like or related manner." We shall also modify
pars. I@) and 2(a) of the Administrative Law Judge's recommended Order
to d o r m to his Conclusions of Law, 3.
tion to file a workmen's compensation claim. In so
concluding the Administrative Law Judge rejected
Respondent's argument that the Boggs discharge was
controlled by Hunt Tool Company, 192 NLRB 145
(197 I), which held that the respondent did not violate
Section 8(a)(l) by discharging an employee solely be-
cause the employee filed a lawsuit seeking damages
under the Jones Act and/or the Longshoremen's and
Harbour Workers Compensation Act for an alleged
on-the-job injury. Instead, the Administrative Law
Judge found, and we agree, that the Board's recent
decision in Self Cycle & Marine Distributor Co., Inc.,
237 NLRB 75 (1978), is controlling herein.
In Self Cycle, the Board found that respondent vio-
lated Section 8(a)(l) by discharging an employee for
pursuing an unemployment compensation claim. In
so finding the Board observed that the matter of un-
employment compensation benefits arises out of the
employment relationship and is of common interest
to other employees. Thus, by refusing to withdraw an
unemployment compensation claim an employee re-
fuses to allow the employer to deny that employee,
and by way of example other employees, access to the
State's unemployment compensation appeals proce-
dure. The same rationale applies to the matter of
workmen's compensation benefits. Such benefits also
arise out of the employment relationship and are of
common interest to other employees. Similarly,
Boggs' refusal to forebear from filing a claim opposes
Respondent's attempt to deny him and other employ-
ees access to workmen's compensation benefits. Ac-
cordingly, for the reasons set forth more fully in Self
Cycle, we hereby overrule Hunt Tool Company.
ORDER
Pursuant to Section 1qc) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Krispy
Kreme Doughnut Corp., Winston-Salem, North
Carolina, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Substitute the following for paragraphs I(b) and
(c):
"(b) Discharging employees because of their ex-
pressed intention to file workmen's compensation
claims under the laws of the State of North Carolina.
"(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed them under Section 7 of the
Act."
2. Substitute the following for paragraph 2(a):
"(a) Offer Terry Boggs immediate and full rein-
245 NLRB No. 135
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed, and make him whole for
any loss of earnings he may have suffered as a result
of his unlawful discharge, with interest."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL ABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties were represented
by their attorneys and afforded the opportunity to
present evidence in support of their respective posi-
tions, it has been found that we have violated the
National Labor Relations Act in certain respect and
we have been ordered to post this notice and to carry
out its terms.
The National Labor Relations Act, gives you, as
employees, certain rights, including the right:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a represent-
ative of your own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
Accordingly, we give you these assurances.
WE WILL NOT discharge employees because of
their expressed intention to file workmen's com-
pensation claims under the laws of the State of
North Carolina.
WE WILL NOT tell our employees, or other wise
create the impression, that the union activity of
our employees is subject to surveillance.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL oger Terry Boggs immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any
other rights or privileges previously enjoyed, and
WE WILL make him whole for any loss of earning
he may have suffered by reason of his unlawful
discharge, plus interest.
DECISION
JOEL A. HARMATZ, Administrative Law Judge: This pro-
ceeding was heard by me on January 23, 1979, in Winston-
Salem, North Carolina, upon an initial unfair labor practice
charge filed on August 8, 1978, and a complaint issued on
September 26, 1978. which, as amended, alleges that Re-
spondent independently violated Section 8(a)(l) of the Act
by a threat of discharge in reprisal for union activity. by
creating the impression that union activity was subject to
surveillance, and by coercively interrogating employees
concerning union activity. The complaint further alleges
that Respondent violated Section 8(a)(3) and ( I ) of the Act
by discharging Terry Boggs on July 3 1, 1978, and thereafter
failing to reinstate him because of his union or other pro-
tected concerted activity. In its duly filed answer Respon-
dent denies that any unfair labor practices were committed.
After close of the hearing briefs were filed on behalf of the
General Counsel, the Charging Party, and Respondent.
Upon the entire record in this proceeding, including my
opportunity to observe directly the witnesses while testify-
ing and their demeanor, and upon consideration of the
post-hearing briefs it is hereby found as follows:
I . JURISDICTION
Respondent is a Delaware corporation with a plant lo-
cated in Winston-Salem, North Carolina, the sole facility
involved herein, from which it is engaged in the manufac-
ture and sale of bakery food products. During the 12-month
period preceding issuance of the complaint, a representative
period, Respondent shipped materials valued in excess of
$50,000 to points located outside the State of North Caro-
lina and received materials valued in excess of $50,000 from
points located outside the State of North Carolina.
The complaint alleges, the answer admits, and I tind that
Respondent is now and has been at all times material
herein an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Bakery and Confectionary Workers' International Union of
America, AFL-CIO, CLC, is and has been a t all times ma-
terial herein a labor organization within the meaning of
Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement
Credibility resolutions stand at the threshold of consider-
ation of the issues raised in this proceeding. My ultimate
conclusions are made in the face of testimony by Terry
Boggs, the alleged discriminatee, and a key witness for the
General Counsel in connection with all allegations of the
complaint, which is deemed unreliable in many critical
KRlSPY KREME DOUGHNUT CORP. 1055
areas, as well as my disbelief of the testimony offered by
Respondent which is prominent to the defense.
Of primary concern is the alleged illegality in Respon-
dent's discharge of Boggs on July 3 1, 1978.' My findings as
to what actually occurred in that connection, after analysis
of the contlicting and for the most part unbelievable testi-
mony offered on all sides, gives vent to a somewhat narrow
legal issue; i.e., whether the Act protects employees against
reprisal for their having filed or expressed an intention to
file claims under state laws providing for workmen's com-
pensation benefits.
B. Concluding Findings
1. The union motivation issue and statements allegedly
violative of Section 8(a)(1)
Terry Boggs was initially employed by Respondent on
August 10, 1976. In May 1977, as a result of injuries sus-
tained in an automobile accident involving a transit bus,
Boggs was out of work until rehired in September 1977. He
was discharged on July 3 I, 1978, by Thomas Boyd, Respon-
dent's personnel director.
In view of the General Counsel's claim that the discharge
was at least partially motivated by Bogg's union activity it
is necessary to point out that apparently in early 1978 the
Union initiated an organizational campaign at Respon-
dent's Winston-Salem facility. On February 28 an RC peti-
tion was filed seeking an election among certain employees
at that location. Said election was conducted on May 5,
with the Union failing to receive majority designation by a
vote of I5 for and 16 against. The validity of the election
was not challenged, and on May 15 a "certification of re-
sults" was issued by the Regional Director.
The General Counsel's claim that the discharge was
rooted in union activity or partially motivated thereby, t e
gether with certain independent 8(a)(1) allegations, rests es-
sentially upon the uncorroborated testimony of Boggs.
Boggs does not claim to have been a proponent of the
Union during the early stages of the campaign. Although
the voting group was relatively small, he at no time signed a
union authorization card or membership application, ex-
plaining he was not aware that a union campaign was in
progress until after the petition was filed.
There is no dispute that in early February, after the
Company received notification of the Union's claim of ma-
jority support, Respondent opened a series of meetings at
which it propagandized against union representation.' Fol-
lowing the first such meeting Henry Matthews, who was the
immediate supervisor of Boggs, expressed to Boggs his sur-
prise that there had been enough cards signed to hold an
election. Boggs testified that he joined Matthews in express-
' AU &tea refer to 1978 unleg otherwise indicated. ' testified that at the h a t meeting Boyd informed employees that if
t h y rvirbed to discug the Union, the Company. or anything they should feel
liec to come to his &ce. This comment involved no direct questioning of
employees, nor did it placz them in r position in which they were encouraged
to rapond. The mere indication that management is available to discuss
mua, including thoce pertaining to the campaign. dow not rise to the level
o f a m i v e interrogation, the solieitation of grievances, or any other conduct
impeding employees in their right to engage in activities protected by Section
7 of the Act.
ing his own surprise, acknowledging that this was his first
knowledge of union activity. Matthews expressed the opin-
ion that a union had nothing to offer the employees, that
promises made could not be enforced against the Company,
and that employees would pay dues simply to have a third
party speak for them. Boggs voiced no opinion with respect
to the union issue.'
Boggs testified that his personal involvement with the
Union began on March 3. He claimed that he on that date
talked to nonemployee union organizers Percy and Saun-
ders, meeting twice with them. "to find out more or less
what they had to offer us versus what we had in the way of
a pay scale; insurance benefits; what they could do in the
line of safety;' working condition of the employees, their
experience and all. . . ." Boggs related that he was quite
satisfied with what Saunders and Percy had to say. Boggs
claims that after his conversations with the union officials
he discussed the Union with fellow employees attempting to
persuade some of them to support it.l
Boggs went on to testify that in late March he availed
himself of Boyd's suggestion at the first employee meeting
concerning the Union that employees wishing to discuss the
Union or other matters feel free to approach Boyd. In doing
so Boggs explained to Boyd that from discussions with
other employees Boggs had learned that if the Union were
voted in employees would not come to work out of fear that
their cars would be "messed up," and that it would not be
wise to cross a picket line. Boggs initially testified that he
expressed to Boyd that he held the same concern. John
Curtain: who was also present according to Boggs, stated:
'This is the extent of Boggs' testimony as to what transpired with Mat-
thews. At the hearing the General Counscl amended the complaint to allege
an instance of E(aX1) interrogation, attributable to Matthews in this time
frame. Apart from this incident there is no evidence that reasonably relates
to that allegation. Accordingly. as MatLhews' expressions of opinion and
legitimate argumentation involved neither a direct nor indirect effort to elicit
information from Boggs. 1 fmd that the allegation of intermgation is not
substantiated and it shall k dismissed. For this reason the assertion by
Respondent that said allegation is time barred under Sec. Iqb) of the Act
need not bc resolved.
'Testimony was adduce3 fmm Boggs as to his complaints wncrming
safety violations in four areas in support of the General Counsel's contention
that his activity in this a m also contributed to the discharge decision. It is
cluu from his testimony. however, that Matthews, his supervisor, shared
Boggs' wnccm with respect to each of thew items, and that Matthews rather
than Boggs communicated the complaints to higber management. No evi-
dence exists that any member of management other than Matthews, who in
this regard was allied in interest with Boggg was alerted to the fact that
Boggs had initiated or supported any such safety wmplaints. In the circum-
stances safety issues related by Boggs to his immediate supervisor are
darned too remote to warrant a conclusion that they were to any degree
among the considerations underlying his discharge.
'The foregoing testimony was related by Boggs only after an effort by me
to clarify the purposc of these alleged conversations with fellow employees,
which he previously had described as follows:
I wanted to fmd out how the employees felt about concerning the union,
and what the union had to offer versus what we had to try to establish
what chance the union had, and everything.
The foregoing plainly reveals that these conversations were a further attempt
by Boggs to obtain information to enable Boegs to make up his mind. Al-
though such a purposc was subuquently disavowed by Boggs. this was not
the only instance in which Boggs fell upon "turnabout" testimony out of a
design to p a s off plainly neutral conduct as indicative of union support. 1
d i d t his testimony that he enwuraged others to support the Union.
being of the view that the clear implication arising fmm that quoted above to
bc more mealing of truth.
6 John Curtain was Respondent's vice president in charge of production.
His operating responsibility included the mix depart men^
1056 DECISIONS O F NATIONAL LABOR RELATIONS BOARD
"Boggs, the best way to keep that from happening would be
to vote the Union out or to see that the Union doesn't get
in." Curtain also informed Boggs that if it became neces-
sary the Company would beef up its security to watch the
cars while the employees were at work. Boggs claims that
the meeting closed with an expression that Respondent was
counting on his support in voting the Union out.
As the testimony of Boggs continued with respect to this
incident he indicated that his purpose in going to Boyd's
office on that occasion was to notify Respondent that "if
the Union was voted in, I was not going to come in because
I supported the Union and I wanted that understood."
Boggs, somewhat haltingly, claimed to have communicated
this to Boyd and Curtain on that occasion. In this latter
respect I discredit him. This testimony, considered in the
context of Boggs' own account of Curtain's remarks on that
occasion, was logically inconsistent, improbable, and im-
pressed yet another attempt by Boggs to alter the facts in a
fashion which would enhance his cause.7
In another incident developed by the General Counsel
along this same line Boggs testified to a conversation with
Bob Templeton, Respondent's manager of the mix depart-
ment, in mid-April. It is noted that the organizational drive
was conducted in that department. According to Boggs,
Templeton approached him at his work station, indicating
that he wished to advise Boggs as to his own feelings con-
cerning the Union. In the course thereof Boggs was in-
formed that the Union could make a lot of promises which
they could not necessarily fulfill and went on to remind
Boggs of how good the Company had been to him in con-
nection with his reinstatement after his accident the prior
spring, noting also the wage increases Boggs had received.
Boggs, apparently in a corrective fashion, expressed that he
had earned the raises and the Company had not simply
acted for no reason at all. The conversation was concluded
with Templeton indicating that the Company would like
the support of Boggs in the matter of voting the Union out,
a statement Templeton subsequently repeated to Boggs on
another occasion in late April. Here again, the circum-
stances as described by Boggs would not necessarily convey
that he was a union sympathi~er.~
In furtherance of the effort to portray Boggs as a known
or suspected union sympathizer the General Counsel elic-
ited testimony from Boggs as to events transpiring during a
question and answer period at the third or fourth antiunion
meeting conducted by Respondent. On that occasion Boyd
discussed the virtues of the Company's insurance program.
Boggs challenged this, expressing that he was aware of a
Blue Cross-Blue Shield policy which provided additional
coverage for only a few dollars more in cost. Boyd ex-
' Boyd testified that when'he initially hired Boggs, during the employment
interview, Boggs explained that he lefl his prior job because of harassmenr
including tampering with his automobile, which he sustained after a union
was voted in at that location. This together with the failure of that firm to
provide adequate security was mentioned by Boggs as his reason for leaving
that job. This testimony was not rebutted. It is credited. I find that In late
March Boggs approached Boyd and Curtain to reiterate the very concerns
which provoked his separation from his former job, a stance which was likely
to convey antiunion sentiment.
%e testimony of Boggs that he felt that Templeton was mindful of the
fact that Boggs was for the Union is regarded as incompetent and in any
event is discredited.
pressed disbelief and requested Boggs to bring in the policy.
Boggs did so the following day, and at the next meeting
with employees Boyd informed the group that the points
previously made by Boggs were accurate?
In another incident, at the fifth such meeting, Curtain
was addressing the employees with antiunion propaganda,
observing that the Company had fulfilled all promises i t
had made to the employees. Boggs claims that at that point
he raised his hand. Curtain recognized him stating, in what
Boggs described as a disgusted tone of voice, "Boggs, now
what do you want?" Boggs asked, "Mr. Curtain, what is the
difference in the Union making its promises that they can't
keep, as you say, and the Company making its promises
that they have not kept?" Curtain, according to Boggs, then
approached Boggs, leaned over the table at which Boggs
was seated, and with a red face said, "Boggs . . . I will have
you know one thing.. . I am not a liar. . . . If you have any
differences to settle, you can settle them in the office."
Boggs then advised Curtain that he was not accusing Cur-
tain of lying but had simply stated that promises had not
been kept. Curtain repeated, "Well, of you have any differ-
ences, settle them in the office."
The final and perhaps strongest prop to the General
Counsel's claim that union activity was a consideration
leading to the discharge of Boggs is an incident occurring
on May 3. 2 days before the election. At that time union
organizers Percy and Saunders were across the street from
the plant. At their bidding employees Howle and Boggs
crossed the street and participated in discussion with them.
In the course thereof Percy indicated that Howle was to be
the union observer for one shift, and that Boggs was sup-
posed to be the union observer for the other shift, but since
the voting periods had been consolidated into a single poll-
ing period only Howle would be the observer. Boggs indi-
cated that he did not mind. Percy then referred Boggs to
people in the plant, who apparently were observing them,
asking Boggs who they were. Boggs claims that he saw
Templeton, Matthews, Curtain, Boyd, and an individual
named Clarence Curry observing them from a windowfi0.
The foregoing is linked by the General Counsel to an-
other incident involving a conversation between Temple-
ton, Curtain, and Boggs which occurred during the second
week in July, several months after the election. By way of
background i t is noted in this connection that from the time
of his hire until the end of May or first of June Boggs was
employed as a bulk room operator. During that latter pe-
riod he commenced training as a control panel operator, in
1 credit the testimony of Boyd that he explained to the employees on the
latter occasion that the cost coverage features of the policy to which Boggs
referred were more advantageous because i t covered a group involving a risk
factor less than that to which Respondent's employees belonged.
'OThe complaint alleges an 8(a)(l) violation which Boggs attributes to his
supervisor. Matthews. The conversation allegedly occurred in June 2; ac-
cording to Boggs. Matthews told him that company officials had asked him
to terminate employee Howle, who had acted as union observer during the
election, because he openly identified himself as a union representative. Mat-
thews went on to indicate that if they wanted him fired they would have to
do it themselves. Matthews denied making such a statement, and though I
did not regard him as entirely credible my distrust of Boggs runs sufficiently
deep to render unreliable his uncorroborated testimony, unless, as shall be
disclosed below, supported by convincing probability on the record as a
whole. As I credit the denial by Matthews. the 8(a)(I) allegation based on
the foregoing shall be dismissed.
KRISPY KREME DOUGHNUT COW. 1057
which he apparently monitored and controlled the auto-
mated equipment by which mixes are prepared. Boggs ap-
parently had been placed in that position as a result of the
termination by the previous control panel operator, David
Pawhall. Having heard that Paschall was returning to work
with Respondent Boggs, as his testimony runs, questioned
Templeton as to whether this was the case. Templeton indi-
cated that it was, and that Paschall would be the control
panel operator. Boggs expressed the opinion that he did not
think this was fair, to which Templeton responded that
Curtain, not himself, had made the decision. Boggs was
afforded the opportunity to discuss the matter with Curtain.
When he did so Curtain, in Templeton's presence, advised
Boggs that Paschall would be a third floor operator. Boggs
characterized this as unfair, explaining that he had worked
hard, that he felt like he had done a good job, and that the
production records would indicate that this was the case.
Curtain advised Boggs that this was his prerogative, and if
Boggs did not like it he could "hit the clock." When Boggs
indicated that he was not questioning Curtain's authority or
his ability but just wanted an explanation as to why he was
being replaced, Curtain advised that he wanted Paschall in
the control panel operator job and Boggs in the bulk room
operator job. Curtain, according to Boggs, repeated that if
he did not like it he could hit the clock. At some point in
this conversation Boggs, though initially denying that this
was said, informed Curtain and Templeton. "I had not
voted for the Union."ll
According to the more credible account of Templeton,I1
the issue in question did not actually involve Paschall's re-
placement of Boggs but a third employee, Myers, who was
to be trained to operate the third floor. According to Tem-
pletoq Boggs inquired as to who would be training Myers,
whom he understood was going to be the third floor opera-
tor. Templeton indicated that Dave Paschall would do so.
Boggs inquired as to why Dave Paschall rather than he was
to do the training. Boggs was informed that Templeton and
Curtain both felt that Paschall, having trained Boggs, was
more experienced. Within the next day or 2, at Boggs' re-
quest, a meeting was arranged with Curtain. When Curtain
indicated that it was necessary for the employees to "work
as a ball team," that he had made the decision to have
Paschall do the training, and that they had to work together
as a ball team since the election was behind them. Boggs
intejected that he had voted for the Company. To this
Templeton indicated, 'Teny I believe you 100 percent . . .
but when you are seen with certain people, that other peo-
ple may get the wrong impression." Boggs indicated that he
was free to talk to whoever he pleased, to which Templeton
a g r d that this was his privilege. Templeton admitted that
his reference to Boggs' associations related to his observa-
tion prior to the election of Boggs' participation in the con-
versation with union people. His only explanation for mak-
ing the remark was that it was just something that "came in
my head."
While it is apparent from the record that Respondent
waged a campaign in opposition to the Union, this factor is
not equated with a degree of animus revealing a propensity
to engage in discrimination on the basis of union consider-
ations. Although it is possible that Templeton suspected
that Boggs voted for union iepresentation and that his sus-
picions would stem from evidence acquired prior to the
election, the import thereof is diminished by Boggs' subse-
quent placement in the preferred position of control panel
operator. The argument that union activity contributed in
any degree to the discharge is viewed as remote, specula-
tive, and in no event is aided by rational inference.
2. The workmen's compensation issue
a. 7'he facts
The discharge, in the final analysis, was triggered by
events beginning on July 27. That evening Boggs was em-
ployed on his customary 3:30 p.m. to 12:30 a.m. shift. The
bulk room, to which Boggs was assigned, is a storage area
where various baking ingredients such as flour, sugar, dex-
trose, salt, and wheat are stored. Periodically the entire bulk
room is subject to inspection. On the evening of July 27
Boggs was engaged in cleaning the area in preparation
therefor. This work required considerable exertion at high
temperature levels and included the blowing down with a
hose of overhead pipes, the catwalk, and the top of bulk
bins, as well as all walls and ledges. Boggs was so engaged
for 2-3 hours that evening. He completed his shift without
incident. In route to his home thereafter, however, he devel-
oped what he described as severe chest pains. When he
amved at his home the pain continued, ultimately a rescue
squad was called, and Boggs was removed by ambulance to
the emergency room at the Forsyth Memorial Hospital in
Winston-Salem.
Dr. Dennis D. Pruett attended Boggs on his amval,
which was logged at 2:42 a.m., July 28. He testified that
Boggs complained of chest pains and expressed fear that he
was in the midst of a heart attack. Dr. Pruett also related
that Boggs informed him that during the past few days he
had been working in a fairly dusty atmosphere on a plat-
form where he had to reach over his head to do his work for
several hours at a time. Pruett, after the testing and analy-
sis, concluded that although Boggs had not suffered a heart
attack and had suffered no lung impairment, Boggs 'experi-
enced a real chest pain" of an origin which could not be
isolated. In consequence thereof it was his view that Boggs
sustained an "anxiety type reaction." as evidenced by his
" 6ogp had teatifid that he had never told the Company that he sup-
frightened demeanoi &d a fast pulse and respiration. - tbc Gmpmy in the or that he votd for the Company. When Based upon the information received from Boggs, Pruett
d n n ~ ,i& his d h , , i t he condd that during the above conversation concluded that it was quite possible that the work that
h told Curtain and Templeton that he had not voted for the Union. Boggs described to him contributed to the condition. Boggs
"ofd Rcrpoadent'a etn- R o b Templeton was the only one that was told not to work on July 28, to rest that day, and to
imprrprd as entirc'y He that he personally Obscrvd again call Pruett that evening if his chest pain returned.
Bogp vith the union ohm in this instance, but contrary to B o w he
drimcd chat he the only one in his offia at the time. I him. Before departing from the hospital a question developed
Noaabcku, the atament made to Boges by Templeton creatd the impreg as to the means by which the emergency room services
lion of lurvei~ance and violated Sec. 8(aMI) of the A C ~ . would be paid. Boggs, having received information from
1058 DECISIONS O F NATIONAL LABOR RELATIONS BOARD
Dr. Pmett that his condition may have been work related,
asked the latter if he should file for reimbursement under
Blue Cross-Blue Shield or whether a workmen's compensa-
tion claim would be more appropriate. Dr. Pruett credibly
testified, "my opinion was that it would be workmen's com-
pensation."
Thereafter. Boggs did not return to work until Monday
afternoon, July 3 1. Boggs testified that after he commenced
working he had several conversations with Robert Temple-
ton and Scott Livengood, Respondent's manager of em-
ployment and training, in which both, according to Boggs,
impressed him with the Company's position that any claim
filed in consequence of the above should be under group
insurance and not workmen's compensation. Boggs resisted,
pointing out the opinion of Dr. Pruett that his condition
was work related and ultimately suggesting to Livengood
that the Company await the return of Dr. Pruett, who had
left on vacation. Boggs indicated that it made no difference
as to how he filed, and that if Dr. Pruett signified that group
insurance was the proper vehicle, he would do as the Com-
pany wished.
Thereafter, only about 10 minutes after Boggs' conversa-
tion with Livengood, Personnel Director Boyd went to the
bulk room to inform Boggs that he was wanted in the per-
sonnel office. At the ensuing meeting attended by Boggs, his
immediate supervisor, Matthews, and Livengood, Boyd in-
formed Boggs that he would be discharged."
The reason assigned for the termination was entered on a
personnel status form, dated July 31, 1978, which, as indi-
cated, was not shown to Boggs during the discharge inter-
view. From the testimony of Livengood it is obvious that
preparation of the document followed the discharge. In rel-
evant part the document states:
Due to employee's past accident rate of two this year
plus his alleged seizure which he related to work con-
nected environment on 7/27/78 that was investigated
and found not to be work connected, there appears a
preoccupation with injuries to gain compensation with
alleged injuries. Determined for safety reasons to ter-
minate employment.
The foregoing is not deemed a candid expression of what
actually prompted the discharge. Just as Boggs strained to
create an impression that union activity played a role in the
discharge, critical testimonies of Boyd and Livengood per-
taining to the events leading to the discharge struck as
equally incredible and borne of a design to cast manage-
ment's action against Boggs in a more sympathetic light.
Thus, Personnel Director Thomas Boyd, whose responsi-
bility consisted not only of Respondent's Winston-Salem
facility but of all manufacturing plants scattered through-
out the Southeast, testified that he alone made the decision
to effect the termination. Boyd claimed that he was mindful
of what he considered to be Boggs' mental attitude toward
filing claims for workmen's compensation, and that upon
learning of Boggs circumstances of the previous evening he
personally conducted an investigation on Friday evening
July 28. He claims that the information he received con-
cerning the events of the prior evening were reported to him
by Livengood, who assertedly had received a telephone call
that afternoon from Boggs. With respect to the investiga-
tion allegedly conducted by Boyd, Boyd asserted that on
that same Friday he interviewed Supervisor Matthews, who
related that working conditions the previous evening were
normal and David Taylor, Respondent's safety manager,
who had been in Boggs' work area that evening. Matthews
also reported that Boggs appeared normal both during the
shift and upon departing at the end of his shift. Boyd
claimed to have then contacted Taylor.14 Taylor reported
that he had seen Boggs Thursday evening, had talked to
him, and that Boggs had told him that conditions were not
"too bad . . . it had been dusty at times but not too bad
tonight." Taylor15 indicated that he saw nothing unusual in
the plant that night, that the temperature was not unusual,
that the amount of dust in the air was not unusual, and that
it was a normal worknight. Boyd claims that he then spoke
to Dr. Nelson, who concurred that conditions seemed nor-
mal and there was no unusual dust problem that night.
Finally, Boyd allegedly talked to Bob Templeton that same
Friday afternoon,I6 who indicated that when he had seen
Boggs early in his shift he noticed no physical problems and
seemed to be normal, pointing out that there were no com-
plaints to either Templeton or Matthews during the shift
concerning Boggs' physical condition. Boyd then claimed to
have requested that Taylor pull OSHA records revealing
the accident history of employees in order that he might
refresh his memory about other claims that Boggs had filed.
This log confirmed that Boggs had filed workmen's com-
pensation claims on three occasions in the past, two of
which were in 1978. In view of the report received from
Livengood that Boggs intended to file a fourth workmen's
compensation claim, considered in the light of two prior
claims that had been filed by Boggs during 1978, Boyd,
being of the opinion that those latter claims were "frivo-
lous" and involved injuries caused by Boggs' own negli-
gence, made the decision to terminate Boggs since his inves-
tigation revealed that the July 28 incident was not work
related. Boyd testified that he made the decision late on
Friday, July 28. It is his testimony that his decision was not
communicated to others when made because his investiga-
tion was not completed until late evening at a time when, as
he could recall, no one else was in the office.
Boyd testified that on the following Monday, July 31, he
did not arrive at the plant until 4 p.m. Boyd summoned
"A conflict exis& as to the specficity with which Boyd described the
~ ~ v r a r for the discharge. B o w testified that he was simply told that the
discharge was baaed on his "bad attitude." without further explication. In
this instance I credit Boggs over Respondent's witness. In doing so I note
that my rejection of Rcspondcnt's testimony concerning the circumstanecs
leadirg to the discbarge lea& to the conclusion that it was a precipitate,
spontaneous act. n i s factor, together with the somewhat guarded position
of Rapondent as is evident from its practice of refusing to furnish termi-
nated employees with written expressions of the reason for their discharge,
convinces me that in this respect Bow was truthful.
"Taylor on Thursday, July 27, and Dr. Gary Nelson, a private consul-
tant, retained by Respondent to examine Respondent's storage methods,
were in the bulk room examining it for any risk of explosion similar to the
grain explosions in Louisiana and Texas earlier in 1978. Testimony does not
disclose the duration of their presence in the bulk room.
'' Taylor acknowledged that he "observed that Mr. Boggs was very active.
he was a very busy man cleaning, blowing down the pipes."
l6 Templeton, who impressed me as an entirely credible witness, testified
that according to his belief the conversation with Boyd did not occur until
the following Monday or Tuesday.
KRlSPY KREME DOUGHNUT CORP. 1059
Boggs to his office, advising, "Terry, I have reviewed your
safety record, and the number of accidents that you have
had this year, and in line to what you alleged happend on
Thursday and Friday, I have made a decision to terminate
you for safety reasons . . . because I feel that you are preoc-
cupied with filing workmens' compensation claims and
dealing with a~cidents."'~
Although his stated reasons for the termination reveal
that the discharge, in critical part, derived from an employ-
ee's declared intent to invoke remedies under the North
Carolina state workmen's compensation laws, the circum-
stances were far more aggravated than Respondent would
have me believe.
First, in this connection I did not believe Boyd's testi-
mony that an investigation was conducted on Friday or for
that matter that a decision to effect the termination was
made at that time. Boyd testified that on Friday he learned
of Boggs' medical treatment through a conversation with
Livengood. The latter, as Boyd averred, testified that Boggs
had telephoned him on Friday afternoon and related the
events of the previous evening. He claimed that Boggs had
at that time inquired as to the procedure for filing a work-
men's compensation claim. In corroboration of Boyd,
Livengood claimed to have called Boyd, advising of what
he had learned from Boggs, thus furnishing the groundwork
for the alleged investigation.
In my opinion, a more accurate view of what transpired
is evident from the more believable testimony of Boggs.
Boggs testified that his only contacts with Respondent's
representatives on Friday, July 28, involved telephone calls
to Templeton and Matthews. Boggs credibly testified that
he first called Templeton, explaining what happened the
previous evening and advising that the doctor told him to
do nothing for 24 hours; Templeton instructed Boggs to call
Matthews. At about 3 p.m. Boggs called Matthews, again
explaining the events of the previous evening and advising
that he would probably report for work the following Mon-
day."
Boggs went on to testify that on Monday. July 31, he
reported to work at 2:45 p.m. Shortly thereafter, he en-
gaged in a brief conversation with Templeton, the content
of which appears limited to an exchange of amenities.
Boggs then delivered his billings for ambulance, oxygen,
and hospital services to Templeton's secretary. About 10
minutes later Templeton approached Boggs at his work sta-
tion telling him, "Boggs, we want you to file this on your
group insurance." Boggs responded it don't really matter to
me how it is filed. . . my insurance will more than take care
of it but Doctor Pruett said that in his opinion, he felt it was
work related." Templeton inquired as to whether Boggs
would like to talk to someone else, and when Boggs indi-
cated that he would like to straighten out the matter Tem-
pleton left but returned, advising Boggs to see Scott Liven-
good."
17 I tuvchcretofore discredited Boyd in this respect. See fn. 13, sypm
1' Templeton and Matthews did not deny that these telephone wnversa-
tions occurred, nor does it appear that they suggested that Boggs call Liven-
good that Friday.
I* Tempkton did not untruIict the Pccount of Boggs as to this wnversa-
tion. The circumstance prompting Templeton to demand that Boggs file
under group insurance is len unexplained.
Boggs testified that he had not previously met or talked
to Livengood. In meeting with Livengood. Boggs was told
that since Boyd was not present Livengood would handle
the matter. Livengood, like Templeton, stated that the
Company wanted Boggs to file his claim under group insur-
ance. Boggs responded that the main issue was not how it
was going to be paid and inquired if Livengood had talked
to Dr. Pruett. Livengood answered that he had tried, but
that Pruett was unavailable until August 14. Boggs then
suggested that the Company wait until his return, where-
upon the Company could check with him and the claim
would be filed as Pruett indicated. Livengood then repeated
that he wanted Boggs to file on group insurance, where-
upon Boggs asked why the Company could not wait for
information from Dr. Pruett. Livengood said, "no . . . we
want you to file this on group insurance . . . ." Boggs then
indicated to Livengood that "maybe I ought to call
O.S.H.A. and let them come and investigate the circum-
stances and see whether they feel like it is, you know, legiti-
mate or not; in other words, if you don't want to wait and
talk with the Doctor. I will call O.S.H.A. and let them come
in and make their own investigation; and also let them
check into some other safety things while they're here." To
this Livengood made no respon~e.~
In accepting Boggs' testimony in the above respects I do
so in the face of misgivings previously expressed as to his
veracity. Yet disbelief of Livengood and Boyd was so strong
as to enhance Boggs' credulity in this regard. Weighed
against the total circumstances, his account was convincing.
Thus, the testimony of Boyd as to the circumstances lead-
ing to the discharge did not ring true, an impression hardly
weakened by a critical breakdown in the testimony of
Livengood which enforced the probability of key testimony
by Boggs that he had no communication with Livengood
until Monday, July 31. Thus, Boyd testified that on Friday,
July 27, following his investigation, he concluded that
Boggs' adverse reaction was not work related and to dis-
charge him, but that he communicated this to no one. On
the other hand, Livengood testified that in his conversation
with Boggs on Monday, July 31, though having no inter-
vening contact with Boyd, he told Boggs "that we had in-
vestigated the claim and determined that it was not work
related." A question immediately arose as to how Liven-
good knew of Boyd's conclusion as to nonwork related de-
termination when Boyd and Livengood had implicitly de-
nied that such matters had been communicated. When
confronted with this incongruity Livengood attempted to
explain that he was present during Boyd's investigation.
This explanation was not confirmed by any other testimony
afforded by Respondent and seemingly stands in wntradic-
tion of Boyd's own testimony that he alone conducted the
investigation and that he made his final decision to termi-
nate Boggs on late Friday afternoon upon completion of
the investigation and at a time when he did not believe that
anyone else was in the office. The unbelievable testimony of
Livengood contributed to my reservations as to the reliabil-
According to Boggs, he was summoned to the discharge interview only
10 minutes aner the Livengood conversation.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ity of Respondent's evidence as a whole concerning Boyd's
action preliminary to the discharge."
Contrary to Boyd and consistent with implications aris-
ing from Boggs' testimony in this regard, I find that neither
Livengood nor Boyd became involved in the Boggs matter
until Monday, July 31, and that prior thereto there was
neither an investigation nor a decision2' to effect his dis-
charge. Instead, the record convinces me that Boggs, who
had been rated as a satisfactory worker by his supervisors in
all areas, would not have been terminated had he complied
with the directives of Templeton and Livengood that he
abandon his interest in workmen's compensation and agree
to seek reimbursement under group insurance. I find that
this was the sole basis for a spontaneous determination that
he be discharged."
b. The applicable precedent
A close question remains as to whether, under Board pol-
icy, a discharge so grounded constitutes proscribed dis-
crimination. Section 7 of the Act protects the right of em-
ployees, inter alio, "to engage in other wncerted activities
for the purpose of collective bargaining or other mutual aid
or protection." As to the scope of this guarantee, it has been
said, "Employee effort to seek the aid of governmental or-
ganizations or agencies to protect or improve working con-
ditions of the employees generally, or as a group, is pro-
tected activity under Section 7 of the Act . . . ."24 Where
such remedies are invoked or condoned by two or more
employees in an area of group concern, the conduct is
within the ambit of statutory pr~tection.'~ On the other
hand, individual action in quest of individual rights has a
less certain status. Although the Board has upheld, as pro-
tected, the action of a single employee in taking steps to
assure an employer's compliance with a collective-bargain-
ing a ~ e e m e n t , ~ the precedent discloses a reluctance to ex-
" Other supervisors or membm of management involved in the alleged
investigation did not testify convincingly that they were contacted by Boyd
on tbe evening of Friday, July 28. It will be recalled that Templeton testified
that be was not approached by Boyd until the following Monday or Tues-
day. As for Matthews and Taylor, the only suggestion as to when their
interviews were conducted derives from leading questions propounded to
each by Respondent's counsel. 'he nature of their examination was regarded
as prejudicial, and the resulting responses were too unreliable to warrant
credence.
a Altbougb not necessarily controlling to the resolutions of credibility in
this rr~pec4 it is not witbout significance that Boyd, during his 5-year tenure
as p c r s o ~ e l director, never before had discharged an employee of Respon-
dent because of a history of work related injuries attributable to carelessness
or job conditions or a combination thereof. Further, David Taylor, Respon-
dent's manager of safety, indicated that Respondent maintained a formal
system whereby written reprimands are issued to employees for safety infrac-
tions or injuries due to am employee's own carelessness; the record does not
disclose that Boggs bad ever received discipline in that form. " Altbougb one could easily surmise that Boggs' threatening overtures
concerning O.S.H.A. contributed to the termination, any such conclusion
would be at odds witb my own feel for the record and what actually tran-
ppircd.
"See Afm-Urban Tratqortation, Inc., 220 NLRB 1371, 1376 (1975); Levi-
ton Manufacturing Company, Im., 203 NLRB 309 (1973); Detroit Formmng,
Inc., 204 NLRB 205 (1973).
G. V.R. Im., 201 NLRB 147 (1973).
16 Merbn and CIarence Bunmy, Partners, d /b /a Bunnq Brm. Conr~mction
Conlpany, 139 NLRB 1516 (1962); Interboro Contractors, Inc., 157 NLRB
1295 (I%@, enfd 388 F.2d 495 (2d Cir. 1967).
tend like protection to employees who, as in the case of
Boggs, act alone, in proceeding before state or Federal
agencies which function under protective labor legislation.
Thus Respondent, in arguing that Boggs was fair game
for discharge, points to Hunt Tool Company, 192 NLRB
145, 146 (1971), in which a Board Panelz7 reached a conclu-
sion which, at least on the face of that decision, seems dis-
positive. There an employee filed a lawsuit in a Federal
district court seeking damages from his employer under the
provisions of the Jones Act and/or the Longshoremen's and
Harbour Workers' Compensation Act for an alleged on-
the-job injury, from which the dischargee claimed that he
suffered a permanent and total disability. The employee
was discharged solely because of his institution of such legal
action. In holding the discharge lawful the panel stated:
The General Counsel argues that, since both the
Jones Act and the Longshoremen's and Harbour
Workers' Compensation Act resulted, at least in part,
from the concerted efforts of employees acting through
their labor organizations in lobbying for the enactment
of the two laws, bringing the lawsuit would be analo-
gous to an individual employee's assertion of a claim
under a collective-bargaining agreement, which is
clearly protected. The General Counsel cites Bunnqv
Bros. Construction Company where an individual em-
ployee was discharged for submitting a contract pay
claim, and the Board held that the discharge violated
Section 8(a)(l) of the Act, since the employee sought to
implement the collective-bargaining agreement and the
implementation of such an agreement by an employee
is but an extension of the concerted activity that pro-
duced the agreement.
However, the filing by a single employee of a purely
personal claim under the Jones Act and/or the Long-
shoremen's and Harbour Workmen's Compensation
Act is far different from his filing a claim under a col-
lective-bargaining agreement and it is not the Board's
position that all activities, no matter how remote, ris-
ing out of protected activity are protected.
Accordingly, we cannot agree with the General
Counsel's contentions.
An apparent reminder of the caution to be heeded in this
area appeared subsequently in G. V.R., Inc., supra, where
though finding a discharge unlawful a Board panel repudi-
ated the broad view of the administrative law judge that,
"Public policy would be frustrated if employees . . . could
not, with full protection of the Act make complaints to pub-
lic agencies about wages, hours, etc., without fear of repri-
s a l ~ . " ~ ~
Despite the foregoing, the Charging Party argues that
under more recent precedent the Board has in effect re-
moved all vitality from the result in Hunt Tool, supra, and
deemed conduct akin to that of Boggs to constitute pro-
tected wncerted activity. It is argued that the first break-
through appeared in Alleluio Cushion Co.. Inc., 221 NLRB
999, 1000 (1975), where the administrative law judge cited
Hunt Tool in dismissing allegations that an employee was
l7 Members Fanning, Jenkins, and Kennedy.
201 NLRB at 147, fn. 2 (Chairman Miller and Members Fanning :m1
Jenkins).
KRISPY KREME DOUGHNUT CORP. 106 1
discharged in violation of Section 8(a)(l) of the Act. A
Board panels reversed, finding that the employee in ques-
tion "was engaged in protected concerted activity when he
filed the complaint with the California OSHA office." This,
despite the fact that there was "no evidence that at any time
prior to complaining to Respondent or sending this letter
. . . [the employee] . . . discussed the safety problem with
other employees, solicited their support in remedying the
problems, or requested assistance in the preparation of the
letter." In finding the violation the panel reasoned as fol-
lows:
Section 7 provides that employees have the right to
engage in concerted activities for the purpose of mu-
tual aid and protection. . . . [The] . . . filing of the
complaint with the California OSHA office was an ac-
tion taken in furtherance of guaranteeing Respondent's
employees their rights under the California Occupa-
tional Safety and Health Act. It would be incongruous
with the public policy enunciated in such occupational
safety legislation (i.e., to provide safe and healthful
working wnditions and to preserve the nation's human
resources) to presume that, absent an outward mani-
festation of support . . . fellow employees did not agree
with . . . efforts to secure compliance with the statutory
obligations imposed on Respondent for their benefit.
Rather, since minimum safe and healthful employment
wnditions for the protection and well-being of employ-
ees have been legislatively declared to be in the overall
public interest, the consent and concert of action ema-
nates from the mere assertion of such statutory rights.
Accordingly, where an employee speaks up and seeks
to enforce statutory provisions relating to occupational
safety designed for the benefit of all employees, in the
absence of any evidence that fellow employees disavow
such representation, we will find an implied consent
thereto and deem such activity to be concerted.
Later the holding in Alleluia Cushion was broadened to
cover a situation in which an employee individually took
steps beneficial to employees generally, even though the re-
lief sought was not under the aegis of Federal or state legis-
lation. Thus, in Air Surrey Corporation, 229 NLRB 1064,
(1977). a panel majorityM found protected an individual
employee's inquiry to a bank as to whether his employer
held sufficient funds on deposit to meet its upcoming pay-
roll. Relying upon Alleluia Cusion, the panel concluded that
the employee's action was within "the premise that an indi-
vidual's actions may be considered to be concerted in na-
ture if they relate to conditions of employment that are
matters of mutual concern to all the affected employees."
True, neither Alleluia nor Air Surrey constitutes a square
repudiation of Hunt Tool, for both include a common ele-
ment not necessarily present in either a quest for benefits
under the Jones Act or workmen's compensation laws. For
successful maintenance of a claim under the latter is to the
immediate benefit of the claimant only. Nonetheless, this
element of difference appears to have been discounted in
" C l u h a n Murphy and Members Jenkins and PeneUo.
P C b i m a n Fanning and Member PeneUo with Member Walther dissent-
ing.
the Board's subsequent decision in Self-Cycle & Marine
Distributor Co., Inc., 237 NLRB 75 (1978).
In Self-Cycle an employee was discharged because she
pursued an unemployment compensation claim contesting
the nature of a layoff. The Administrative Law Judge, rely-
ing upon Hunt Tool, supra, concluded that such action by
an employee acting individually was not protected under
Section 7 of the Act. The Board reversed, concluding that
the motive for the discharge was mixed, predicated upon
both the employee's union activity and her pursuit of the
unemployment compensation claim. As in Hunt Tool and
the instant case, favorable action on the individual's claim
for unemployment compensation claim would not necessar-
ily redound to the benefit of coworkers. Nonetheless, a
unanimous Board panel3' found this conduct to constitute
protected concerted activity, stating as follows (237 NLRB
at 75-76):
It has long been recognized that this Board is required
to administer the Act with careful accomodation to the
statutory scheme as a whole. It is equally well settled
that the matter of unemployment compensation bene-
fits arises out of the employment relationship. . . and is
one aspect of the national labor policy. Clearly . . . [the
employee's] . . . dispute with Respondent over her enti-
tlement to unemployment benefits would be a matter
of common interest to other employees, since they
might find themselves faced with a situation similar to
hers in the future. Thus, by refusing to withdraw her
claim, despite. . . [a] . . . threat that she do so "or else,"
. . . [the employee] . . . refused to allow . . . [the em-
ployer] . . . to deny her and, by way of example, the
other employees access to the State's unemployment
compensation appeals procedure. We therefore find
that by discharging . . . [the employee] . . . in part for
her pursuit of her unemployment claim, Respondent
violated Section 8(a)(l).
The full sweep of Self-Cycle might be measured by the fact
that the panel had no quarrel with the accuracy of the dis-
cussion by the Administrative Law Judge concerning the
individual nature of the unemployment insurance claim, as
set forth below:
The employee is, at bottom, engaging in a litigation
contesting the basis for her own, individual layoff. . .
alleging . . . that she was not laid off for "continuous
misconduct." She is thus contesting a matter relating
to her own, personal actions, not associated with the
actions of coemployees or the effect on coemployees of
the decision of the State agency.]'
No perceptible distinction exists between unemployment
and workmen's compensation in terms of the impact of
such claims upon employees generally, the desirability of
maintaining open access to such job oriented benefits, or
the integrated role each system plays within the protective
penumbra of labor standard legislation. Indeed, to exalt un-
Chairman Fanning and Members Jenkins and Murphy. Although it was
not necessary for the panel to consider the question, it elected to treat with
this issue specifically. " 237 NLRB 95. Not lacking in significance is the fact that, notwithstand-
ing the Administrative Law Judge's reliance upon Hunt Tool, the Board
panel in Self-cycle omitted reference thereto.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment compensation over workmen's compensation,
in considering the degree to which the National Labor Re-
lations Act affords protection against reprisals to individual
claimants, would be to ignore that phase of national policy
which strives for ultimate safety in the place of work. Def-
erence to such considerations was afforded in Alleluia Cush-
ion Co., Inc., supra, wherein it was stated at page 1000:
Safe working conditions are matters of great and con-
tinuing concern for all within the work force. Indeed,
occupational safety is one of the most important condi-
tions of employment. Recent years have witnessed the
recognition of this vital interest by Congress through
enactment of the Occupational Safety and Health Act,
and by state and local governments through the pas-
sage of similar legislation.
The above comment is underscored by Congressional
Policy which acknowledges that workmen's compensation
procedures constitute an integral part of the effort to
achieve job safety. Thus, in the Occupational and Health
Act of 1970,29 U.S.C. §27(a)(I)(A), the following appears:
The Congress hereby finds that the vast majority of
American workers, and their families, are dependent
on workmen's compensation for their basic economic
security in the event such workers suffer disabling in-
jury or death in the course of their employment; and
that the full protection of the American workers from
job related injury or death requires a n adequate,
prompt, equitable system of workmen's compensation
as well as an effective program of occupational health
and safety regulation . . . .
To further the goals evident in the above finding, a na-
tional commission on state workmen's compensation laws
was established. As observed by counsel for the Charging
Party, the first report of that commission, published in
1972, acknowledged the somewhat obvious fact that "work-
men's compensation laws contribute to the ultimate goal of
job safety, as a result o f . . . the financial stimulants inherent
in the insurance rate making procedures used in every State
. . . . ' 9 3
Viewed in the light of the above, there can be little ques-
tion that the discharge of Boggs because he manifested an
intention to file a workmen's compensation claim, if con-
doned, would recognize a right in employers to create a
coercive aura with respect to this remedial procedure and
thereby to dampen the salutary impact of workmen's com-
pensation laws on job safety generally. Indeed, the Board
may be the last remedial arsenal in which such restraints
upon employees might be rectified for, from independent
examination of the North Carolina Workmen's Compensa-
tion Act, no provision was found tending to protect claim-
ants from the type of discrimination evident on this record.
For the above reasons I find that the motive on which
Respondent acted in discharging Boggs was substantively
indistinguishable from that considered by the Board in Self-
Cycle, supra, discussed above. That case, as the most recent
JJ The rcpor~ of Tk National Commission on Stare Workmen's Cornpew-
tion lows (1972). pp. 93-94.
pronouncement of the B0ard.3~ bearing upon the instant
subject matter, is deemed controlling. Based thereon it is
concluded that Boggs' refusal to forbear from filing a claim
for workmen's compensation falls within the protected
ambit of Section 7. and that his discharge for that reason
violated Section 8(a)(l) of the Act.
I . Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(l) of the Act by dis-
charging Terry Boggs on July 31, 1978, because of his ex-
pressed intention to file a workmen's compensation claim
under the laws of the State of North Carolina.
4. Respondent violated Section 8(a)(l) of the Act by cre-
ating the impression that the union activity of its employees
was subject to surveillance.
5. The above unfair labor practices have an affect upon
commerce as defined in the Act.
6. Respondent did not violate the Act in any respect
other than as found above.
Having found that Respondent has engaged in and is
engaging in unfair labor practices, it shall be recommended
that it cease and desist therefrom. Since the unfair labor
practices include a n act of discrimination which strikes at
the heart of the Act a broad order shall be recommended
requiring Respondent to cease and desist from "in any
other manner" interfering with, restraining, or coercing em-
ployees in the exercise of their rights guaranteed by Section
7 of the Act.
Having found that Terry Boggs was unlawfully termi-
nated, it shall be recommended that he be offered immedi-
ate reinstatement to his former position, displacing if neces-
sary any replacement or, if not available, to a substantially
equivalent position without loss of seniority and other privi-
leges. It shall be further recommended that Terry Boggs be
made whole for lost earnings resulting from the discrimina-
tion against him by payment of a sum of money equal to
that he would have earned from the date of his discharge to
the date a bona fide offer of reinstatement, less net interim
earnings during that period. Backpay shall be computed in
the manner prescribed by F. W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 65 1 (1 977).'5
On the basis of the foregoing findings of fact, conclusion\
of law, and the entire record and pursuant to Section 10(c)
of the Act I hereby issue the following recommended:
Since issuance of Hunr Tool in 1971 the Board has not once declined 1 . 1
remedy alleged discrimination on authority of that case.
" See. generally. lsis Plumbing & Hearing Co., 138 NLRB 716 (1962) l 11,
General Counsel argues that the remedial interest rate be increased I,, , J
percent. Consideration of that issue at this level would involve a nectllr,:.
administrative delay with respect to an area of remedial policy k s ~ ICII I.,
the Board itself.
KRISPY KREME DOUGHNUT COW. 1063
The Respondent, Krispy Kreme Doughnut Corp., Win-
ston-Salem, North Carolina, its officers, agents, successors,
and assigns, shall:
I . Cease and desist from:
(a) Creating the impression that the union activity of em-
ployees is subject to surveillance.
(b) Discouraging employees from filing claims under the
North Carolina workmen's compensation laws by discharg-
ing, refusing to reinstate, or in any other manner discrimi-
nating with respect to their wages, hours, or terms and con-
ditions or tenure of employment.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following action designed to effectuate the
purposes of the Act:
(a) Offer Terry Boggs immediate reinstatement to his
former position or, if not available, to a substantially equiv-
alent position without loss of seniority or other benefits,
discharging any replacement if necessary, and make him
whole for any loss of wages he may have suffered as a result
of the discrimination against him as provided in the section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
National Labor Relations Board, for examination and
copying, all records necessary to determine the amount of
backpay due under the terms of this Order.
(c) Post at its plant in Winston-Salem, North Carolina,
copies of the attached notice marked "Appendix."" Copies
of said notice, on forms provided by the Regional Director
for Region 11, after being duly signed by Respondent, shall
be posted by Respondent immediately upon receipt thereof
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 1 I, in writ-
ing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith.
In Ibe event no exceptions are Ned as provided by Soc. 102.46 of the
Rules and Regulations of Ibe National Labor Relations Board. the findings.
conclusions, and recommended Order berein shall, as provided in Sec. 102.48
of Ibe Rules and Regulations, be adopted by the Board and become its
tinclings, conclusions, and Order, and all objections thereto shall be decmed
waived for all purposes.
"In the event that this Order is enforced by a Judgment of a United
States Coun of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read Posted Pursuant to a Judg-
ment of the United States Coun of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."