Lumbee Farms Cooperative, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1987

285 N.L.R.B. 497 (N.L.R.B. 1987)

LUMBEE FARMS COOPERATIVE
Lumbee Farms Cooperative, Inc. and Industrial
Union Department , AFL-CIO. Cases 11-CA-
11773 and 11-CA-11841
31 August 1987
DECISION AND ORDER
B'Y CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 27 May 1986 Administrative Law Judge
Hutton S. Brandon issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a cross-excep-
tion and answering brief. The Respondent also filed
a motion for oral argument before the Board, to
which the Charging Party filed an opposition, and
the Respondent filed a motion to strike evidence
from the Charging Party's opposition to the Re-
spondent's motion for oral argument.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions, to modify the remedy, 3 and to adopt
the recommended Order as modified.
We agree with the judge that the Respondent
violated Section 8(a)(1) by discharging employees
Clark, Townsend, and Williams because of their
protected activities. The dissent argues that these
employees were lawfully discharged for soliciting a
strike based on the Respondent's hiring of Koreans
and foreigners.
The dissent relies on the suspect testimony of
employee Isiah Jackson,4 whom the judge found to
i The Respondent's motion for oral argument before the Board is
denied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties. Accordingly we find it unnecessary to
pass on the Respondent's motion to strike portions of the Charging
Party's opposition to the Respondent's motion for oral argument.
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir- 1951)
We have carefully examined the record and find no basis for reversing
the findings The General Counsel excepts, contending that the name of
Maggie Shaw was inadvertently omitted from the list of unfair labor
practice strikers We find merit in this exception and shall amend the
Order and notice accordingly
8 Interest will be computed in accoidance with our decision in New
Horizons for the Retarded, 283 NLRB 1173 (1987) Interest on amounts
accrued' prior to 1 January 1987 (the effective date of the 1986 amend-
ment to' 26 U S C. § 6621) shall be computed in accordance with Florida
Steel Corp., 231 NLRB 651 (1977).
' The dissent also relies on the testimony of employee Maynor. The
statement Maynor testified to was uttered in a nonstrike context several
weeks before the walkout
497
be "in no way a model witness," one whose testi-
mony "was notable for its lack of detail," and who
"testified in vague, generalized and conclusionary
terms." Jackson allegedly told Processing Manager
Frank Watts that the employees were walking out
because the Respondent had "kind of slipped too
many Orientals and Koreans in." This same state-
ment was then repeated to General Manager
Walter Geiger, who then supposedly responded, to
the effect that "no one was going to tell him he
couldn't hire Korean nationals."
Although the judge credited Jackson's testimony
to the limited extent that it showed that one or an-
other of the discriminatees alluded to Respondent's
hiring of Koreans when they discussed the feasibili-
ty of a strike with him, our dissenting colleague's
reliance on the particular statements related by
Jackson and Geiger5 is faulty for several reasons.
First, we note the,. inconsistent quality of employee
Jackson's overall testimony. For example, as admit-
ted by Jackson on cross-examination, when he tes-
tified at an unemployment compensation hearing he
only testified that employee Clark asked him
whether he was going to walk out with them.
Jackson made no reference at the compensation
hearing to Koreans being mentioned as a reason for
the walkout-a glaring omission in view of our col-
league's reliance on the "Korean issue" to justify
dismissing the entire complaint. As to Geiger's tes-
timony, the judge found Geiger's statement that
"no one was going to tell him he couldn't hire Ko-
reans" "smacked" of afterthought. We agree. Addi-
tionally, Geiger's testimony differs from his pre-
hearing statement, in which he asserted Jackson
told him the employees were walking out because
the Respondent "was hiring too many foreigners
and they would work for anything." This state-
ment, having been recorded closer in time to the
event, better reflects what was said, to Geiger and
very clearly shows what the employees were con-
cerned about-economics.
The employees had indicated to management an
ongoing concern with the fact they had not re-
ceived a wage increase for a number of years and
even went so far as to form a committee, the,ECC,
to deal with the problem. As late as 3 days before
Townsend, Clark, and Williams were discharged,
ECC spokeswoman Margaret Johnson had spoken
with Geiger about the employees' desire for a
wage increase. Thus, at the time of the walkout,
the wage issue was very much on the minds of the
employees. It is undisputed that there were two
prewalkout meetings held 19 and 22 August at
s The dissent relates Geiger's testimony though finally conceding that
it was discredited.
285 NLRB No. 51
498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
which there was no mention of Koreans as a
reason for the proposed tentative walkout. After
all, practically speaking, there were only 6 Koreans
in a work force of 450, hardly a number that
would rouse employees to take to the picket line.
There was also no showing that the employees in
any way sought to coerce the Respondent not to
hire foreigners or to discharge those foreigners al-
ready employed. It is clear to us that the employ-
ees' concerns were economically, not racially,
based and our dissenting colleague's attempt to
frame them as racially motivated lacks substantia-
tion. It is also clear that the strikers' goals were
compatible with lawful and protected aims. As
noted by the judge, "it is reasonable to conclude
that the discharged employees' remarks were re-
flective of an economic concern rather than one
based on race, national origin, or other irrelevant
considerations."
That the Respondent was concerned with the
fact certain employees were soliciting a strike and
seized on the "Korean issue" as a rationale to justi-
fy its unlawful actions is quite apparent. This is
supported by the Respondent's failure to inform the
discharged employees that they were fired for
mentioning Koreans; its failure to allow the dis-
charged employees any rebuttal of the charges
against them; its hasty dismissal of the employees;
and the': fact the Respondent never showed that the
rule relied on to discharge the employees had any
application to their actions. The employees were
terminated for "restricting output" and yet there
was no showing that they were, in fact, restricting
any output.
For all the above reasons we believe the judge
was correct in determining that the discharged em-
ployees did not engage in misconduct that deprived
them of the protection of the Act and that the Re-
spondent's motivation for its action was not any
reference by the discharged employees to Koreans
or foreign nationals but rather their efforts in solic-
iting Jackson to strike. Accordingly we adopt the
judge's conclusions that the Respondent violated
Section 8(a)(1) by discharging Clark, Townsend,
and Williams for engaging in protected activities,
and that their terminations provided the final impe-
tus for the strike, thus making it an unfair labor
practice strike.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and orders that the Respondent,
Lumbee Farms Cooperative, Inc., Lumber Bridge,
North Carolina, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Add the name of Maggie Shaw to paragraph
2(a) of the Order.
2. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN DOTSON, dissenting.
Contrary to the judge and my colleagues, I find
that the Respondent did not violate Section 8(a)(1)
by discharging employees Patsy Clark, Jeanette
Townsend, and Diane Williams on 26 August 1985.
Rather, I find that these employees were lawfully
discharged for soliciting an employee to strike to
protest the Respondent's hiring of Korean employ-
ees.
In the fall of 1984 the Respondent's employees,
who were not represented by a union, formed the
employees concerns council and had a series of
meetings with the Respondent in an attempt to re-
solve employee concerns. Although the Respond-
ent agreed to certain changes requested by the
Council, no agreement was reached concerning a
wage raise for employees.
On 19 and 22 August 19851 the officers of the
council met with some employees and decided to
strike on 27 August if they could persuade enough
employees to join them.
Employees Jeanette Townsend, Patsy Clark,
Diane Williams, and Brenda Smith met with em-
ployee Isiah Jackson and solicited his support for
the strike. According to Jackson, whom the judge
credited, these employees stated that the purpose
of the strike was to protest the Respondent's hiring
of Koreans instead of local people. Around 4 p.m.
on 26 August Jackson informed Frank Watts, the
Respondent's processing manager, that there would
be a strike the next morning. When Watts asked
the reason for the strike, Jackson replied, "because
they [the Respondent] have kind of slipped too
many orientals or Koreans in."
Jackson repeated this information to Walter
Geiger, the Respondent's general manager, and to
Supervisor Pauline Locklear, who also had heard
employees talk of a strike set for the next day.
Geiger told Watts to fire Townsend, Clark, Wil-
liams, and Smith, and Watts did so.2 The employ-
ees struck as scheduled at 8 a.m., on 27 August.
The judge found that the Respondent's discharge
of Clark, Townsend, and Williams violated Section
8(a)(1). He rejected the Respondent's contention
All dates are in 1985 unless otherwise noted
8 Smith subsequently informed Geiger that, although she had been
present with the other three employees when they talked to Jackson, she
had said nothing When Jackson confirmed Smith's contention, Geiger
reinstated Smith with backpay on 28 August
LUMBEE FARMS COOPERATIVE 499
that the discharges were motivated by the employ-
ees' attempt to have the Respondent discriminate
against Koreans, an act which the judge, in agree-
ment with the Respondent, conceded would be un-
protected. The judge concluded that the employ-
ees' objection to the hiring, of foreigners was not
premised on the foreigners' nationality, but rather
"their depression of the wage rates," thereby
making their remarks to Jackson reflective of an
economic concern. The judge concluded alterna-
tively that even if the employees' remarks to Jack-
son had been unprotected, the discharges were
based not on the substance of their remarks to
Jackson but simply on the fact that they had solic-
ited Jackson to support a strike.
The judge's anaysis is seriously flawed. Most sig-
nificantly, it does not comport with his credibility
resolutions. As noted above, the judge credited
Jackson's testimony that he informed Watts and
Geiger that the employees were planning to strike
in protest of the Respondent's hiring of Koreans.3
In fact, the judge noted that employee Yvonne
Mayor testified that she had heard Clark, Town-
send, and Williams complaining about "Koreans
being hired, taking jobs they thought Americans
should have."
Given this credibility finding,4 the judge should
have logically dismissed the complaint since the
clear import of Jackson's testimony was that Clark,
Townsend, and Williams were seeking by means of
a strike to pressure the Respondent to unlawfully
discriminate against Koreans. Because such a strike,
as the judge concedes, constitutes unprotected ac-
tivity, the Respondent was privileged to discharge
those employees engaging in such unprotected ac-
tivity. See Southern S.S. Co„ v. NLRB, 316 U.S. 31
(1942).
The judge, however, circumvents this credibility
finding by ascribing to the employees' anti-Korean
remarks an incredible meaning. The judge con-
cludes that the remarks were "reflective of an eco-
nomic concern rather than one based on race, na-
tional origin, or other irrelevant consideration" be-
cause the employees' objection to Koreans "was
premised not on their nationality but upon their de-
pression of the wage rates." Not only does this
conclusion strain credulity, but it is totally depend-
ent on assumptions that are not supportable by the
a The judge specifically discredited the testimony of Clark, Townsend,
and Williams, who denied they solicited Jackson or other employees to
strike.
4 My colleagues attempt to undermine this credibility finding by refer-
ring to Jackson's testimony as "suspect" and to the judge's various char-
acterizations of Jackson's testimony. The fact remains that, despite his
reservations about Jackson's testimony, the judge credited Jackson.
Unless my colleagues wish to reverse the judge's credibility findings,
they cannot choose to ignore Jackson's credited testimony simply be-
cause it does not fit within their desired view of the case.
record testimony. Clark, Townsend, and Williams
did not testify that their anti-Korean remarks were
economically based. Rather, as noted above, they
denied ever making such remarks. Nor did any
other employee give any testimony on which the
judge could base this conclusion. The judge relied
solely on the prehearing affidavits of Geiger, in
which Geiger stated that Jackson told him that
Clark, Townsend, and Williams stated that the
strike was called because Geiger "was hiring too
many foreigners and they would work for any-
thing." The latter part of this statement, which is
on its face ambiguous, is totally insufficient to es-
tablish an economic basis for the employees' hostil-
ity toward the Korean employees. Nor can it serve
to erase the clear and unambiguous testimony of
Jackson, Watts, and Geiger, each of whom credi-
bly testified that Jackson reported to Watts and
Geiger that the sole purpose of the -'strike was to
protest the Respondent's hiring of Koreans-
period.
Under these circumstances, I find that the re-
marks of Clark, Townsend, and Williams constitut-
ed unprotected activity.
The judge's alternative conclusion that the Re-
spondent did not discharge Clark, Townsend, and
Williams for uttering these remarks is similarly dis-
ingenuous. According to the judge, the Respond-
ent's discharge of these employees was motivated
not by the substance of these remarks but rather by
the fact that the employees solicited Jackson to
strike. Implicit in this finding of the judge is that
the act of soliciting Jackson to strike by Clark,
Townsend, and Williams in and of itself constituted
protected activity. This premise, however, is erro-
neous.
A solicitation of an employee to another employ-
ee to join an unprotected strike itself constitutes
unprotected activity. See, e.g., General Electric Co.,
155 NLRB 208, 218-220 (1965). Thus, the distinc-
tion created by the judge between the acts of
Clark, Townsend, and Williams in soliciting Jack-
son and the substance of their remarks to Jackson
is of no legal consequence.
In any event, even if the judge's distinction had a
valid basis, the factors relied on by the judge to
support his finding that the discharges were moti-
vated by the solicitation of Jackson are equally un-
sound. The judge relied on the Respondent's failure
to investigate whether or not Clark, Townsend,
and Williams in fact uttered the remarks attributed
to them by Jackson; its haste in effectuating the
The affidavit was not offered into evidence.
500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
discharge; its reliance on rule D-166 to support the
discharge decision; and its failure to inform em-
ployees that they were discharged because of their
anti-Korean remarks. All these factors merely serve
to establish that the judge, substituting his own
business judgment for that of the Respondent,
would have acted differently than the Respondent
on learning of the impending unprotected strike.
They do not establish that the Respondent differen-
tiated in any way between the act of solicitation
and the substance of the anti-Korean remarks, nor
that its immediate decision to discharge Clark,
Townsend, and Williams on learning of their re-
marks to Jackson was based on such a differentia-
tion.7
In sum, I find that the Respondent lawfully dis-
charged Clark, Townsend, and Williams for their
unprotected remarks to Jackson. Accordingly, I
find that the subsequent strike, even if, as found by
the judge, it was caused at least in part by the dis-
charge of these three employees, was not an unfair
labor practice strike and the employees were not
entitled to immediate reinstatement on their uncon-
ditional offer to return to work. For these reasons,
I would dismiss the complaint in its entirety.
6 While the rule was not placed into evidence, Watts testified that it
"prohibited restriction of output and intimidating others to try to stop
output "
Y The judge discredited Geiger's testimony that he told Watts, at the
time he instructed him to discharge Clark, Townsend, and Williams, "no
one was going to tell me that I could not hire Korean nationals , that it
was against the law to discriminate against any former race as long as
they were citizens in this country , .. " Such testimony would, of
course, belie the judge's finding that the discharges were violative of Sec
8(a)(1) While the correctness of this credibility finding is not free from
doubt, I have, for purposes of this decision, assumed its validity There is
thus no validity to my colleagues' assertion that I relied on Geiger's dis-
credited testimony as support for my dissent
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge or otherwise discrimi-
nate against employees for engaging in protected
concerted activities under the Act for mutual aid
or protection.
WE WILL NOT fail or refuse to reinstate, either in
a timely manner or at all, unfair labor practice
strikers on their unconditional application to return
to work.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of rights guaranteed them by Section 7 of
the Act.
WE WILL offer Patsy Clark, Jeanette Townsend,
and Diane Williams and, to the extent we have not
already done so, the unfair labor practice strikers
listed below, immediate and full reinstatement to
their former positions or, if such positions no
longer exist to substantially equivalent positions
and make them whole for any earnings they have
lost as a result of our discrimination against them,
plus interest:
Diane Bell
Leacher Bilbo
Sarah Brooks
Barbara Bullard
Rosie L. Campbell
Vanessa Campbell
Christine Chavis
Vickie Chavis
Barbara Collins
Delphine' Edwards
Vivian Godwin
Margaret Johnson
Vernice Johnson
Sandra Judd
Annette Locklear
Geneva Locklear
Gloria A. Locklear
Ruby A. Locklear
Shirely Locklear
Gloria Mainor
Helen McAllister
Johnnie McAllister
Martha McArn
Brenda McBryde
Dazza McBryde
Ola McBryde
Gladys McDonald
Barbara McDougald
Jonathan McEachin
Shirley McEachin
Johnny McGougan
Judy McNeill
Joann Miller
Charles Pearson
Teresa Ray
Eddie Shaw
Maggie Shaw
Mary Shaw
Mildred Shaw
William Shaw
Carrie Simpson
Barbara Smith
TeWanda Spearman
Kunehona Visessing
Eva Watkins
Gloria Williams
Mary Willis
WE WILL notify Patsy Clark, Jeanette Town-
send, and Diane Williams that we have removed
from our files any reference to their discharges and
that the discharges will not be used against them in
any way.
LUMBEE FARMS COOPERATIVE, INC.
LUMBEE FARMS COOPERATIVE
Ann B. Wall, Esq., for the General Counsel.
Allen L. Shackelford and Michael A. Gilles, Esqs. (Smith,
Helms, Mullis & Moore), of Greensboro, North Caroli-
na, for the Respondent.
Michael Black, of Charlotte, North Carolina, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge.
This case was tried at Lumberton, North Carolina, on
10-12 February 1986. The charge in Case 11-CA-11773
was filed by Industrial Union Department, AFL-CIO
(IUD), on 4 September 1985,1 and amended on 11 Sep-
tember and 21 October. The charge in Case 11-CA-
11841 was filed by the IUD on 13 November and
amended 23 December. The complaint in Case 11-CA-
11773 issued on 18 October and an order consolidating
cases, complaint, and notice of hearing consolidating
Case 11-CA-11773 with Case 11-CA-11841 issued on 30
December. The issues framed by the complaint and the
answer filed by Lumbee Farms Cooperative, Inc. (Re-
spondent) are whether (a) Respondent violated Section
8(a)(1) of the National Labor Relations Act (the Act) in
discharging three employees on 26 August because of
their activities protected under the Act, (b) a strike that
occurred at Respondent's plant on 27 August was caused
or prolonged by the discharge of the three employees on
26 August, (c) the strikers made an unconditional offer to
return to work on 29 and/or 30 August, (d) Respondent
unlawfully refused to reinstate the strikers on 30 August,
and, (e) following their , reinstatement Respondent dis-
charged Margaret Johnson and Vivian Godwin on 14
and 16 October, respectively, because of their involve-
ment in activities protected under the Act.
On the entire record and my observation of the de-
meanor of the witnesses, and after giving due consider-
i All dates are in 1985 unless otherwise stated
2 On 14 April 1986 Respondent filed a reply brief to the General
Counsel's brief, with attachments , and containing alternative motions to
either strike an argument from the General Counsel's brief or to reopen
the hearing On 18 April 1986 the General Counsel filed a motion to
strike Respondent's reply brief and an opposition to Respondent's alterna-
tive motions Respondent's alternative motions and the General Counsel's
opposition thereto are entered in the record as ALJ Exhs I and 2, re-
spectively The Board 's Rules and Regulations make no provision for the
filing of reply briefs to administrative law judges No party requested,
and no provision was made for, the filing of reply briefs prior to the con-
clusion of the hearing Respondent made no posthearing request for per-
mission to file a reply brief before filing the instant one Accordingly, and
also because Respondent 's reply brief refers to , and attaches, evidence
outside the official transcript in this proceeding, the General Counsel's
motion to strike Respondent's reply brief is granted Respondent 's alter-
native motion to strike arguments in the General Counsel's brief or to
reopen the hearing is based on a dispute that arose at the hearing be-
tween a General Counsel witness and a prehearing statement submitted
by that witness to a Board agent To resolve the dispute created by the
witness' contention the prehearing statement was incorrect , Respondent
at hearing proposed to call as a witness the Board agent who took the
statement The General Counsel opposed by taking the positron ' essential-
ly that the statement was not inaccurately taken by the Board agent The
Board agent thus did not testify. In her brief, however, the General
Counsel argued that variations and omissions from statements of wit-
nesses as compared with their testimony at hearing often reflects "the
skills and aims of the investigator and are not necessarily of impeachable
501
ation of the briefs filed by the General Counsel and Re-
spondent ,2 I make the following3
FINDINGS OF FACT
1. JURISDICTION
Respondent has been at all times material a North
Carolina corporation with a facility located at Lumber
Bridge, North Carolina, where it is engaged in the proc-
essing of raw poultry. During the 12 months preceding
issuance of the complaint, Respondent received at its
Lumber Bridge facility goods and raw materials valued
in excess of $50,000 directly from points located outside
the State of North Carolina, and during the same period
of time, shipped from its Lumber Bridge 'facility prod-
ucts valued in excess of $50,000 directly to points outside
the State of North Carolina. The complaint alleges, Re-
spondent in its answer admits, and I find that Respond-
ent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. STATUS OF THE CHARGING PARTY
The consolidated complaint alleges that the IUD is a
labor organization within the meaning of Section 2(5) of
the Act. Respondent in its answer denied the allegation.
Based on the credible testimony of Michael Black, coor-
dinator for the IUD, the IUD is a department of the
AFL-CIO and is funded by the membership of AFL-
CIO affiliates. The IUD has a constitution and bylaws
and is actively engaged in coordinating -bargaining be-
tween its member AFL-CIO affiliates and employers of
employees whom the affiliates represent. Further, the
IUD is actively engaged in organizing efforts among em-
ployees on behalf of its member affiliates. While involved
in such organizational activities on behalf of affiliates, it
is the affiliate rather than the IUD that seeks to achieve
collective-bargaining representative status. See, e.g., Bur-
lington Industries, 257 NLRB 712 (1981).
I find, as the General Counsel at the hearing admitted,
that the labor organization status of the IUD under the
character." Philips Medical Systems, 243 NLRB 944, 956 (1979). Respond-
ent asserts that that contention by the General Counsel contradicts her
position at the hearing and justifies Respondent's motion to strike the
General Counsel's argument or to reopen the hearing to secure the testi-
mony of the Board agent who took the prehearing statement. Where
minor, the variations and omissions between a witness' testimony and a
prior statement may well reflect , as the General Counsel argues; the aims
and skills of an investigator The same may not be said, however, of
major variations or omissions and substantial contradictions between testi-
mony and preheating statements The determination of what is a major or
minor variation , omission, or contradiction and the weight to be accord-
ed the same are matters to be determined by the administrative law
judge. Accordingly, because I view the General Counsel's argument in
her brief to be applicable only to minor variations, omissions, and insub-
stantial contradictions, I do not deem such argument to be a reversal of
her position at hearing Respondent 's alternative motions are denied
3 On 17 April 1986 Respondent filed a motion to correct the transcript
in certain respects On 21 April 1986 the General Counsel filed an oppo-
sition Having duly considered the matter , and because the correction
proffered by Respondent comports with my recollection and is contextu-
ally consistent with the record, Respondent's motion to correct the tran-
script is granted Rogers Mfg Co Y NLRB, 486 F 2d 644 (6th Car 1973),
cent denied 416 U S 937 (1974) Respondent's motion and the General
Counsel's opposition thereto are entered into the record as ALJ Exhs 3
and 4, respectively
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Act is irrelevant to the resolution of the issues in this
case. There is no contention in this case that the employ-
ees discharged were engaged in activities on behalf of
the IUD. I therefore find it unnecessary to decide wheth-
er the IUD is a labor organization under the Act.
Respondent argues that because the IUD has not been
established as a labor organization the record does not
establish that it is qualified as a "person" within the
meaning of Section 2(1) of the Act and therefore was not
entitled to file a charge. Because the IUD is not a proper
charging party the complaint, Respondent asserts, must
be dismissed. I find the argument to be without merit.
Section 2(1) of the Act states the term "person" in-
cludes one or more individuals, labor organizations, part-
nerships, associations, corporations, legal representatives,
trustees, trustees in bankruptcy, or receivers. The word
"includes" in Section 2(1) has been construed as a term
of enlargement rather than limitation. Television & Radio
Artists v. NLRB, 462 F.2d 887 (D.C. Cir. '1972). Section
102.1 of the Board's Rules and Regulations adopts the
2(1) definition of "person," and Section 102.9 of the
Rules and Regulations provides that a charge may be
made with the Board by "any person." In the instant
case, the charges were filed by Jeffrey P. Sweetland, an
attorney for IUD. As an attorney he falls within the stat-
utory definition of a person in Section 2(1) by virtue of
his status as "legal representative" of IUD regardless of
the IUD's status as a labor organization or any other
type of organization. Maritime Union, 245 NLRB 149 fn.
1 (1979). I therefore find the charges properly filed.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent employs approximately 450 employees in
its Lumber Bridge facility. In the fall of 1984, the em-
ployees, becoming discontent with their working condi-
tions, formed a group called the Employees Concerns
Council. This group sought the assistance of another
group called the Roberson County Clergy and Laity
Concerned in Lumberton, North Carolina. A number of
meetings were held between the Employee Concerns
Council and Respondent. A number of matters were re-
solved, but a number of matters were left unresolved as
reflected by a letter from the Council to Respondent on
27 June. According to the testimony of former employee
Margaret Johnson, an alleged discriminatee here, the
Concerns Council also contacted the Wage and Hour Di-
vision of the Department of Labor in July concerning
Respondent's use of line cards.4 An investigation by that
agency resulted in the conclusion that employees had
been underpaid, and Respondent was required to issue
backpay to a number of employees.
One of the employees' concerns, their desire for a
wage increase,5 was never resolved. Margaret Johnson
4 There was no evidence here that Respondent was aware that the
Council was responsible for the Department of Labor investigation
5 As of August, Respondent's employees had not received a wage in-
crease for a period of approximately 3-1/2 years
testified, without contradiction, that she was an elected
spokesman of the Concerns Council and added that she
as an employee had met with Walter Geiger, Respond-
ent's general manager, on 23 August at his request to dis-
cuss a safety problem. During the same discussion, John-
son testified she again raised the subject of a raise for
employees asking Geiger if he could not at least promise
employees a raise in the future if Respondent started
making more money. Geiger rejected the suggestion
saying he did not want to raise false hopes, and alluded
to the fact previously revealed to employees generally
that one of Respondent's primary owners was involved
in bankruptcy proceedings.
'B. Strike Discussions
It is undisputed that a number of officers of the Em-
ployees Concerns Council and rank-and-file employees
met on 19 August at the home of Margaret Johnson.
These included, inter alia, Johnson, Vivian Godwin,
president of the Council, and employees Patsy Clark,
Jeanette Townsend, and Mildred Shaw. The meeting was
also attended by Jasper Oxendine, a supervisor of Re-
spondent who apparently was sympathetic to the em-
ployees. According to Johnson, employee concerns were
discussed and the subject of a walkout or sitdown was
raised. Oxendine, still according to Johnson, suggested
that the employees wait before taking any such action in
order to allow him to determine which time or day such
action would be most effective.
A subsequent meeting of employees was held on 22
August at a place referred to as the Oakridge School.
The meeting was attended by generally the same em-
ployees who attended the meeting on 19 August. It was
also attended by Thomas Jones and Johnny Jacobs, local
clergymen who were formerly associated with the Con-
cerned Laity in Lumberton. Employees again discussed 'a
walkout. Oxendine did not attend this meeting, but John-
son told the approximately 25 employees at the meeting
that she had been told that the following Tuesday would
be a large volume day for Respondent and that would be
a good day for the sitdown or walkout. Johnson testified,
however, that there was no final decision reached re-
garding a walkout or strike. Rather, according to John-
son, a walkout or strike on 27 August was to be depend-
ent on securing support of such action from other em-
ployees. Thus, the employees at the meeting were to go
back and solicit the support of other employees so that
any strike action would be more effective.6
C. The Discharges
It is undisputed that around 4 p.m. on 26 August, four
employees of Respondent, Jeanette Townsend, Patsy
Clark, Diane Williams, and Brenda Smith,7 were called
5 Johnson, while at times confused, appeared to be the most knowl-
edgeable of the General Counsel's witnesses She had reasonably good
recall, and was a more articulate witness Most importantly, and although
she was occasionally equivocal, she impressed me as candid and honest.
Accordingly, Johnson is credited wherever she contradicts the testimony
of the other General Counsel witnesses regarding what took place at the
19 and 22 August meetings and regarding whether a strike had been ten-
tatively scheduled at the 22 August meeting
7 Also referred to in the record as Gwendolyn Smith
LUMBEE FARMS COOPERATIVE
into the office of Frank Watts, Respondent's processing
manager, where, based on the testimony of Townsend,
Clark, and Williams they were told they were discharged
for "soliciting a strike up and down the line." Shortly
thereafter on the same day, Townsend reported the
matter telephonically to Johnson, who told Townsend
that the other employees were "behind" the dischargees.
Respondent disputes the basis for the discharge as re-
lated by Townsend, Clark, and Williams. Thus, Watts
testified that around 4 p.m. on 26 August, employee Isiah
Jackson told him that there was going to be a walkout
the following morning. Watts asked who and Jackson
named Townsend, Clark, Williams, and Smith. Watts
asked why they were walking; out, and Jackson replied
that it was "because they have kind of slipped too many
orientals or Koreans in." Watts asked about the time the
walkout would take place and was told by Jackson that
it would take place at 8 a.m. when "the chickens will be
throughout the plant." Jackson repeated his allegations
to Geiger in Geiger's office in the presence of Supervisor
Pauline Locklear who had just reported to Geiger the
fact that she too had heard talk among employees of a
strike to take place the next day.
Watts testified that Geiger told him to discharge the
four employees named by Jackson, and Watts called
them in and did so. In doing so, Watts said he only told
them they were discharged for breaking plant policy D-
16 and read that policy to them. Although the specific
language of D-16 was never put in evidence, Watts relat-
ed that it prohibited "restriction of ouput and intimidat-
ing others to try to stop output." Only 'Townsend had
responded and said , "Do you want the boys?" Watts did
not reply and instead told therm to leave the premises and
escorted them to the plant gate. Of the four, still accord-
ing to Watts, only Smith asked to talk to Geiger, and
Watts reported the request to Geiger.
Respondent's witness Isiah Jackson corroborated
Watts' testimony regarding what he told Watts except he
denied he told Watts the hour the strike was to begin.
With respect to the conduct of the discharged employ-
ees, Jackson testified generally that he had been involved
in a discussion with the four at the "clean-up" station in'
the plant. He further testified in general and conclusion-
ary terms without specifying individual speakers that
"they" talked about the hiring of the Koreans and
Townsend, Williams, and Clark asked if Jackson was
going to participate in the walkout. Further, "they" dis-
cussed a strike at a turkey plant in Raeford, North Caro-
lina, where employees had walked out for more money
and because of the hiring of Koreans instead of local
people.
Geiger testified that when Jackson was brought to his
office, Jackson related the four had wanted him to walk
out with them because of Respondent hiring too many
Koreans. It was at that point that Geiger directed Watts
to fire the four under rule D-16, adding that no one was
going to tell Geiger that he could not hire Korean na-
s The record reflects that Respondent had employed six Koreans, rela-
tives of army personnel at Fort Bragg near Fayetteville , North Carolina
While the record suggests these hires were made during the summer, it
does not reflect the exact dates of hire
503
tionals. It was only after the discharges were effectuated
that Jackson also revealed to Geiger that Jackson "men-
tioned" that the four also wanted "more money" in addi-
tion to being angry because Respondent was hiring Ko-
reans.
On being advised by Watts that Smith had wanted to
talk to him, Geiger arranged to meet with her on the
afternoon of 27 August. He testified she reported that
she had been present with the other three discharged em-
ployees in the discussion with Jackson but had said noth-
ing. Geiger told her he would check out her statement.
Having confirmed with Jackson that Smith had said
nothing about walking out over the hiring of Koreans,
Geiger, on 28 August, reinstated Smith and gave her
backpay.
Smith did not testify in this case. Clark, Townsend,
and Williams all denied asking any employees on 26
August to strike and specifically denied talking to Jack-
son about a possible walkout. All three testified they
asked to see Geiger about their being fired, but their re-
quest was denied. Williams persisted in her efforts to see
Geiger in the days immediately following the discharges
and was finally successful on 31 August when she met
with Geiger at the plant. According to Williams, Geiger
stated he had three witnesses who told him she was
going down the line "soliciting", but Geiger refused to
name them. He refused to reinstate Williams and told her
if she got another job, "Don't be a baby cryer." Williams
asked why he had hired Smith back, and Geiger replied
that he had needed her.
Geiger denied ever talking to Williams after 26
August.
D. The Strike
The morning of 27 August, news of the discharges
spread among the employees. Johnson testified that she
talked to employees concerning the discharges and told
several to spread the word that they were walking out at
8 a.m. That time was chosen because by that time all em-
ployees would have reported to work and Respondent
would be in full operation with its largest number of
chickens on the line. At 8 a.m., approximately 100 em-
ployees walked out of the plant and milled around out-
side in the parking area. After a few minutes, General
Manager Geiger came out to the group and told them
that they had only a few minutes to return to work or
they would be replaced-' Approximately 50 employees
did return to work while the remaining employees went
outside the facility gate and met Townsend, Clark, and
Williams. They made picket signs and began to picket.
Margaret Johnson testified without contradiction that the
picket signs used various legends including, "Support
Us," "Support Us On Our Strike," "Support' Our
s Margaret Johnson testified with some equivocation that Geiger said
if the employees did not return to work, they would be "fired " The
other General Counsel witnesses consistently testified that Geiger said
they would be "replaced" and the complaint does not allege that the
strikers were fired on 27 August. I find Johnson was in error in her testi-
mony on this point and find that Geiger used the word "replaced" rather
than "fired" in talking to the strikers
C
504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cause," "Unfair Labor Practices," and "More Money
For Me and My Family."
The strikers were at some point during 27 August
joined by Jacobs and Jones on the picket line . However,
neither Jones nor Jacobs testified herein . It was Jones,
according to the uncontradicted testimony of IUD Rep-
resentative Michael Black , who contacted Black on 28
August regarding the strike and asked Black if he would
meet with the strikers and give them some assistance.
Black did meet with the strikers before noon on August
28. After talking to the employees and learning of the
discharge of the four employees for "soliciting a strike,"
Black told the employees that he believed they were en-
gaged in an unfair labor practice strike. He further told
them , however, that they did not have enough people
supporting their strike to win it, and that it was in their
best interest to make an unconditional offer to return to
work. He told those strikers present to try to get all their
supporters there the next day and he would explain to
them what to do. The following day, 29 August, Black
returned to the picket line and explained to the employee
strikers the same thing he had said before and asked
them if they wanted him to make an offer on their behalf
to return to work . According to Black,10 employees au-
thorized him to make an offer to return to work on their
behalf. To this end, by mailgram dated 29 August, Black
advised Respondent:
I am coordinator of the Industrial Union Depart-
ment, AFL-CIO . I have been designated as spokes-
man for the workers involved in an unfair" labor
practice strike at your facility. On behalf of the
striking employees , I am making an unconditional
offer to return to work on August 30, 1985 at 6
o'clock a.m
Geiger responded by telegram on 29 August stating:
The employees referenced in your telegram have
been permanently replaced. I will respond in great-
er detail upon receipt of your written communica-
tion.
Further, by letter to Black dated 30 August, Geiger
stated:
I am in receipt of the confirmation copy of your
mailgram of August 29, 1985. Your organization is
neither certified by the National Labor Relations
Board nor recognized by this company as the repre-
10 Black impressed me as credible and straightforward. That he was
orally or by show of hands given authorization to make the offer to
return to work was supported by several of the General Counsel wit-
nesses including Margaret Johnson, Christine Chavis, Mildred Shaw,
Mary Shaw, Vernice Johnson, and Ola McBryde The testimony of
Teresa Ray and Rosie Campbell, strikers called by Respondent who testi-
fied they were not aware of any such authorization given to Black, is not
viewed as specifically contradicting Black and the other witnesses Ray's
testimony does not preclude the possibility that Blackwell was at the
picket line when Ray was not there Moreover, she conceded that on 29
August she was told the strike was over because there was not enough
employee support Campbell, contrary to Ray, related that she had seen a
person at the picket line who was identified as a union man Campbell
also conceded that she had heard that a telegram was going to be sent to
Respondent and admitted she had been told to go back to work
sentative of any group of employees associated with
this facility. Additionally, we have no actual or
constructive notice of your "designation as spokes-
man" for any such group. Therefore, pursuant to
the National Labor Relations Act and the laws of
the State of North Carolina, we consider the-offer
set forth in the above referenced mailgram to be in-
valid.
Also, please note that there is no unfair labor
practice strike occurring at this plant.
Consistent with the offer in his telegram, Black told
employees to report back to work on the morning of 30
August. In accordance with Black's instructions, the
strikers assembled in an autocaravan and attempted to
report for work on the morning of 30 August. It is undis-
puted, however, that Respondent's guard, Ronald
Chance, pursuant to instructions from General Manager
Geiger, told the lead car of the returning strikers, driven
by Vivian Godwin, that no strikers could come back on
plant property and if they did they would be arrested.
After the strikers were turned away at the plant, they
went to the home of Margaret Johnson where a list of
the strikers was prepared Ii and arrangements were tele-
phonically made with the plant for the employees to re-
ceive their pay due them for work prior to the strike.
The General Counsel does not contend nor does the
complaint specifically allege either that the strikers were
discharged or that they were not in fact replaced prior
to the time of Black's telegram of 29 August.
E. The Poststrike Discharges of Margaret Johnson and
Vivian Godwin
The complaint alleges that Margaret Johnson and
Vivian Godwin were discharged in violation of Section
8(a)(1) of the Act following their reinstatement after the
strike. The General Counsel's evidence shows that subse-
quent to the conclusion of the strike, Respondent wrote
the former strikers advising them that they would be re-
called when a job was available if they so desired.12
When Margaret Johnson received such a letter, she indi-
cated to Respondent that she desired to be recalled to an
available job. On 11 October, she was called to the plant
and was offered a job stacking boxes after being given an
opportunity to see the job in operation. Johnson was told
to report for work on 14 October. After a few minutes
on the job, Johnson discovered that it was beyond her
physical capabilities. Accordingly, she complained to her
supervisor, Pauline Locklear, who then took Johnson
back to the personnel department where she talked to
Jackie Pate, personnel supervisor. There Johnson was of-
fered a position in the ice house, and she accepted it. She
was thereupon taken to the ice house where she worked
until noontime with a male employee shoveling ice onto
a conveyor, or auger, which distributed the ice to points
i t it appears that the names of the strikers set forth in par 13 of the
complaint as being denied reinstatement was taken from this list.
12 The complaint alleged, and Respondent admitted, that of 48 strikers
named in the complaint, 15 including Johnson were reinstated at various
dates subsequent to the conclusion of the strike.
LUMBEE FARMS COOPERATIVE
where needed in Respondent's facility. Such ice was nec-
essary for the preservation of the raw chicken product.
After lunch the male employee was removed from the
ice house and put back on his regular job. Around 1 p.m.
according to Johnson's testimony, Locklear came and
told Johnson that she was not keeping enough ice on the
floor. Johnson replied that she was doing her best. Sub-
sequently, however, around 2 p.m. Locklear replaced
Johnson with a male employee and took Johnson back to -
the personnel office where she was terminated for not
keeping up with her job.
Respondent's evidence with respect to the discharge of
Johnson was set forth in the testimony of Locklear who
did not dispute much of Johnson's testimony. Although
acknowledging that Johnson worked with another em-
ployee in the ice house most of the morning, Locklear
related that the ice house job was not normally per-
formed by two people. Only on Fridays when the ice
supply had receded from a point more distant from the
auger did the job call for two people. Further, Locklear
said that she had successfully worked the ice house job
herself previously, although she had not worked at the
job for more than an hour at a time. After the male em-
ployee was removed from the ice house Locklear ascer-
tained that there was insufficient ice coming out into the
plant so that the temperature gauges on the product indi-
cated the product was getting hot. She then reported_to
Johnson that the temperature was rising and Johnson
said okay she would put more ice in the auger. Locklear
had noted that Johnson was not taking a full shovel full
to the auger. Notwithstanding telling Johnson of the
problem, the temperature continued to rise, and the Fed-
eral Government inspectors' in the plant retained some
product coming from the chiller for being too warm. It
was at that point that Locklear took Johnson back to the
personnel department where she was discharged.
Like Johnson, Vivian Godwin apparently responded to
Respondent's poststrike letter to strikers and indicated
she desired to be recalled to an available job. Godwin
testified that she was called in to work on 16 October
where she talked to Personnel Supervisor Jackie Pate
who offered her a choice of two positions, the ice house
or box stacking. Apparently without resolving what job
she was going to choose, she was sent to the supply
room with Pauline Locklear., At the supply room, how-
ever, Godwin asked leave of Locklear to go move her
car inasmuch as it was parked in the wrong location. On
returning she and Locklear proceeded toward Godwin's
job but Godwin again asked leave to get a hairnet.
Godwin proceeded back to the supply room where she
talked to Judy Cummings, an employee who asked
Godwin what job she was going to take. Godwin testi-
fied she replied she was going to take the ice house posi-
tion. Godwin then left to locate Locklear. When she ulti-
mately located Locklear again , Locklear told her to
return to the personnel office. 'There Pate asked her if
she had told Judy Cummings and Supervisor Dorothy
McCollum that she was not going to stack boxes.
Godwin related what she had told Cummings as set forth
above , but Pate disputed it. Pate called in Supervisor
McCollum and employee Cummings and . asked if
Godwin had not stated that she was not going to stack
505
boxes. McCollum affirmed that Godwin had told Cum-
mings that she was not going to stack boxes. Godwin, a
14-year employee of the Company, protested that she
had not refused any job. Pate replied that that was the
only job they had open. Godwin insisted that if that was
all they had she would take it. Nevertheless, Pate told
Godwin she was terminated for refusing the stacking job.
Godwin testified that she had a back problem and had
been under a doctor's care and had referred to her back
problem when talking to Pate. According to Godwin,
Respondent knew that she had a back problem due to
her previous submission of doctor reports to Respondent.
Locklear testified that she took Godwin back to the
box stacking job, the only job available at the time. With
respect to Godwin, Personnel Supervisor Pate testified,
however, that when she had initially talked to Godwin
by phone about returning to work, she had told her of
the ice house job and the box stacking job but the former
had been filled before Godwin reported to work. Ac-
cording to Locklear, there had been no discussion of any
other job during the initial conference with Godwin that
morning. Moreover, Godwin never mentioned any
health problem in connection with box stacking. Subse-
quently, before Godwin was actually put to work, Lock-
lear talked to Judy Cummings in the supply room in the
presence of Supervisor McCollum. Cummings reported
that Godwin had said she was not stacking "no damn
boxes." McCollum confirmed that she had heard the
remark also. At that point, Locklear reported the matter
to Geiger who told Locklear to terminate Godwin.
Locklear then reported the matter to Pate in personnel
and took Godwin to the personnel department where
Godwin denied that she had said she was not going to
stack any boxes, but Pate called McCollum and Cum-
mings in. They reported that Godwin had said she
would not stack boxes, whereupon Godwin replied that
she had said it, but she did not mean anything by it. She
was thereupon terminated. Locklear conceded that
Godwin had never started stacking boxes that morning.
Moreover, she conceded that Godwin had never specifi-
cally expressed her refusal to stack boxes to Locklear.
F. Arguments of the Parties
The General Counsel contends that any discussion
among the employees regarding the possibility of a strike
or even the solicitation among employees of support for
a strike over working conditions was a concerted activi-
ty protected under the Act. Consistent with this position,
the General Counsel argues that the discharge of Clark,
Townsend, and Williams was unlawful because it inter-
fered with their protected concerted activities in connec-
tion with soliciting support for the strike. Based on the
denials of Clark, Williams, and Townsend of any in-
volvement in seeking strike support based on Respond-
ent's hiring of Koreans, the General Counsel insists that
the three did not engage in any misconduct in connec-
tion with their otherwise protected activity. The three
women having been discharged for "soliciting a strike"
the discharge was violative of Section $(a)(1), the argu-
ment continues. Because the discharge was violative of
the Act and because the evidence reflects that the strike
506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
stemmed in part from those discharges, it,is argued that
the strike that began on 27 August was an unfair labor
practice strike.
Because the strike was an unfair labor practice strike,
according to the General Counsel, the employees were
entitled to reinstatment on their reconditional offer to
return to work. Black's offer in that regard, which was
rejected by Respondent, was a valid offer and therefore
the refusal to reinstate the strikers constituted a separate
violation of Section 8(a)(1) - of the Act, the General
Counsel contends. If there was any ambiguity in Black's
offer for the strikers to return to work or any question
about his authority to make that offer, the matter should
have been resolved by the strikers' efforts to return to
work on 30 August, which were rebuffed by Geiger
through his instruction to the guard not to let any strik-
ers on the premises.
Based essentially on the testimony of Isiah Jackson,
Respondent contends that Townsend, Clark, and Wil-
liams were engaged in activity unprotected under the
Act by encouraging employees to strike because of Re-
spondent's hiring of Koreans. Respondent asserts that it
would be unlawful for it to discriminate in hiring based
on the national origin of the applicant, and therefore
claims any efforts of employees whether through con-
certed action or not to cause it to violate such a law
must be held to be unprotected. For this reason, Re-
spondent argues that its discharge of the three employees
was lawful.
It is Respondent's position that even assuming the dis-
charges of the three employees were unlawful, the strike
that followed was not based on the discharges, but rather
on the preexisting plans of the employees to strike on 27
August. Therefore, the strike could not have been caused
by any unfair labor practices on Respondent's part.
Moreover, even if the discharges were the cause of the
strike, the strike was unprotected because it was in sup-
port of the unprotected activity of the three discharged
employees. Finally, Respondent asserts that the strike
was also not protected in any event because it was clear-
ly timed to cause Respondent not only maximum finan-
cial harm but actual product loss or damage.
Respondent further argues that even if the strike was
protected, the strikers are entitled to status as economic
strikers only. The offer to return to work made by Black
was invalid because Respondent claims the evidence
does not show that employees specifically authorized
Black to send his 29 August telegram. Respondent also
asserts that because Black and the IUD were not certi-
fied and recognized as representatives of the employees,
they did not possess the legal authority to make an offer
for the employees to return to work. Additionally, in this
regard, Respondent asserts that the legal sufficiency of
any attempted delegation of authority in making the
offer depended not on principles of agency, but on the
scope of the IUD's representational rights under the Act.
Because Respondent's employees were not represented
by a union, the argument goes, Respondent, citing Sears,
Roebuck & Co., 274 NLRB 230 (1985), and Linden
Lumber v. NLRB, 419 U.S. 301 (1974), claims it was free
to deal with employees individually regarding all terms
and conditions of employment.
Respondent's position regarding the discharge of John-
son was she was terminated for cause based on her fail-
ure to perform the ice house job in a satisfactory manner
causing Respondent to fail to meet USDA requirements.
Similarly, Godwin was said to have been discharged for
insubordinate conduct in stating she was not going to
stack boxes.
G. Analysis and Conclusion
1. The protected nature of the strike
As already concluded, infra, the employees had decid-
ed, dependent on gathering further support, to engage in
a strike action on 27 August prior to the discharge of
Clark, Smith, Townsend, and Williams. The basic con-
cerns that prompted the planned strike based on the
credible testimony of Margaret Johnson related to work-
ing conditions and a wage increase. There was absolutely
no evidence presented that any subjects discussed at the
employee meetings on 19 and 22 August would indicate
that the strike was related to employee concerns over
Respondent's hiring of Koreans. I can only conclude that
the concerns of the employees expressed in the strike dis-
cussions prior to 26 August were economic in nature and
that a strike over such concerns would be within the
protection of the Act.
Arguing from the premise that the strike was based
solely on economic concerns, Respondent asserts the
strike was unprotected because of its timing, which was
designed to result in the greatest harm to Respondent. I
find the argument to be without merit. Normally,
planned employee strikes are timed to ensure the greatest
impact on an employer. And employers in anticipation of
strikes build inventories and devise strategies to lessen
the impact of strikes. Indeed, Respondent here, as admit-
ted by Geiger, took steps on 26 August, on hearing of
the strike possibility, to lessen the impact of the strike on
production the following day. The fact that the strike oc-
curred during the workday when chickens were on the
line and vulnerable to loss does not mean employees
automatically lost protection under the Act. Strikers are
not required under the Act to institute the'strike at a spe-
cific time of day. See, e.g., First National Bank of Omaha
V. NLRB, 413 F.2d 921, 925 (8th Cir. 1969); NLRB v.
Solo Cup Co., 237 F.2d 521, 526 (8th Cir. 1956). The eco-
nomic pressure flowing from such a strike must be
weighed against the goals sought to be achieved by the
strikers. See NLRB v. A. Lasaponara & Sons, 541 F.2d
992, 998 (2d Cir. 1976). Although, based on Geiger's tes-
timony, Respondent sustained some loss of its product on
the line when the strike occurred, the extent of that loss
separate from labor losses resulting from the strike was
not clearly defined on the record. To be weighed against
such an indefinite loss are the strikers' legitimate con-
cerns regarding their working conditions and pay. Here,
as in NLRB v. Lasaponara & Sons, supra, the employees'
efforts were not simply to inflict economic loss on Re-
spondent without a compensatory gain for themselves. It
is in this respect that Dobbs Houses v. NLRB, 325 F.2d
531 (5th Cir. 1963), cited in Respondent's brief, is distin-
guishable. There the strike action by waitresses during a
LUMBEE FARMS
busy dinner hour to protest the discharge of a supervisor
was found unprotected by the court because there was
no compensatory objectives for the employees. In the
case sub judice the evidence is- undisputed that at least
one compensatory objective of the strike was a wage in-
crease. Aside from stopping work the employees here
did nothing affirmatively to cause physical damage to
Respondent.
Moreover, considerable doubt is raised regarding Re-
spondent's present claim of damage resulting from the
strike by a news release prepared by Geiger after the
strike began. Thus, the news rellease states:
Mr. Geiger went on to state, "on Tuesday morning
. . . 47 employees walked away from their jobs, We
were informed that the timing of the walkout, in
view of the fact that we were in full production,
was calculated to cause the company monetary
losses from product contamination and a supposed
inability to meet customer's Labor Day weekend
orders." "I might add," he emphasized, "that nei-
ther occurred."
In light of this statement, Geiger' s claim of significant
losses as a result of the timing of the strike appears to be
substantially exaggerated, if not entirely fabricated.
Accordingly, even if the strike was based only on eco-
nomic considerations, I find nothing in the timing of the
strike that would deprive employees of protection under
the Act. I also find that no protection was lost by virtue
of the strikers' failure to tell Respondent at the outset of
the strike the basis for the strike. A specific demand need
not be presented to an employer before a walkout can be
protected under Section 7. Washington Aluminum Co.,
370 U.S. 9 (1962); Daniel Construction Co., 277 NLRB
795 (1985). In any event, Geiger was well aware that at
least a wage increase was a concern of the employees
when the walkout occurred for the Friday preceding the
strike, Johnson had clearly expressed this concern to
Geiger by suggesting that he promise the employees a
raise sometime in the future. The suggestion was reject-
ed. Moreover, although Geiger, on the morning of the
strike, addressed the strikers and warned them to return
to work, he did not attempt to ascertain the basis for the
strike.
2. The discharges as a cause of the strike
The fact that the strike was preplanned and had ecd-
nomic goals does not preclude the strike from also being
classified as an unfair labor practice strike if unfair labor
practices of Respondent contributed to the occurrence
of, or prolongation of, the strike. NLRB v. Pecheur Loz-
enge Co., 209 F.2d 393 (2d Cir. 1953), cert. denied 347
U.S. 953 (1954). A decision on whether the strike here
was caused in any way by unfair labor practices on Re-
spondent's part requires an initial determination of
whether Respondent committed an unfair labor practice
in the discharge of the employees on 26 August. That
determination in turn requires close examination of the
facts surrounding the discharges. Ascertainment of the
facts is rendered more difficult because neither the Gen-
eral Counsel's nor Respondent's witnesses were wholly
COOPERATIVE, 507
convincing. The truth probably lies somewhere between
the versions of the respective sides. Clark, Townsend,
and Williams were unpersuasive in their denials regard-
ing soliciting Jackson or other employees to strike.
Clark, having attended both the employee meetings the
week prior to the strike, was unconvincing in her denials
about a strike being discussed at those meetings. A lack
of knowledge of what transpired at those meetings
would require incredible naivete, and her eagerly stated
flat denial on cross-examination that she was involved in
any discussions on August 26 or previously with employ-
ees about a walkout was hollow and unbelievable. Town-
send was at times evasive on cross-examination. She con-
tradicted her prehearing statements on significant points
having to do with whether a strike was scheduled for 27
August and whether she talked to employees about a
strike away from work. i 3 Williams likewise was contra-
dicted by her prehearing statements given the Board in
material respects concerning whether the employees at
the 22 August meeting scheduled a strike for 27 August.
Further, she was evasive and unresponsive on cross-ex-
amination and exhibited a startling lack of recall.
On the other hand, Jackson, a convicted felon, in testi-
fying for Respondent was in no way a model witness.
Jackson's testimony was notable for its lack of detail. He
attributed no specific remarks to any of the other three
alleged participants in the conversation, and testified in
vague, generalized, and conclusionary terms. This is ex-
emplified by the 'following excerpts from Jackson's testi-
mony-
Q. Would you please tell us what was discussed
in that conversation?
A. What was discussed in the conversation was
about a walkout and about the hiring of Koreans at
the plant.
Q. To the best of your recollection , what was
said in the conversation?
A. Well, like I was saying, about the hiring of
Koreans and they asked me was I going to partici-
pate in the walkout.
Q. Did any one of them discuss any other walk-
out?
A. Yes.
Q. And what was that?
A. A discussion about the walkout that they had
of the turkey plant.
Q. And where is the turkey plant located?
A. Raeford, North Carolina.
Q. And what reason was being given by these
ladies at walking out at Turkey Farms?
A. More money and about the hiring of Koreans
instead of local people around the area.
13 Townsend's denial of talking to employees generally about a strike
was also disputed by employee Jimmy Simpson, a witness for Respond-
ent, who credibly testified without specific contradiction that about 2 or
3 weeks prior to the strike, Townsend had talked to him about a strike in
the presence of Clark saying the only way employees would be able to
get more money was to "walk out together" and "to pull together."
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Q. Was there any other discussion about the
hiring of Koreans?
A. Like just talking in general like, they are not
hiring the local people but they are hiring them in-
stead like replacing them like that, conversation like
that.
The reference to the turkey farm and its relation to
Respondent, if any, was not explained in the record. On
cross-examination , Jackson testified as follows:
Q. Isn't it true that the only thing that Patsy
Clark said was to ask you whether you were joining
the walkout?
A. She asked me if I was going to walk out with
them.
Q. And that's the' only thing she had to say
during the conversation, isn't that true?
A. No.
Q. What else did Ms. Clark have to say?
A. The same what I said , about hiring, the local
people, about hiring Koreans and not hiring the
local people; that is what the whole conversation
was about and more money.
However, Jackson admitted on further cross-examination
that at a state unemployment compensation hearing he
had testified that all Clark had asked him was whether
he was going to walk out with the rest of them.
The accuracy of Jackson's vague and generalized ver-
sion is also brought into question by the undisputed fact
that in reporting the matter to Watts and Geiger he had
included Gwendolyn Smith in the group as having made
the remarks now claimed to be the basis for removing
employees from the protection of the Act. Yet, Jackson
subsequently conceded that Smith had said nothing. Nei-
ther side in this proceeding called Smith. The General
Counsel argues that I should draw an adverse inference
against Respondent for not having done so. I decline to
do so, for there was no showing that Smith was more
available to Respondent than to the General Counsel.
The fact that she was still employed by Respondent
made her no less available to the General Counsel. Nor
does such employment create any presumption of bias on
Smith's part against the General Counsel' s case . Que En-
terprises, 140 NLRB 1001, 1003 (1963).
Considering the foregoing, and because it is difficult to
perceive how the hiring of six Koreans in the plant of
450 employees would be of any particular concern to
employees sufficient to encourage strike action, I would
not, without more, credit Jackson's testimony that any of
the three dischargees complained of the hiring of Kore-
ans in the prestrike discussions with him. There is more,
however. Thus, employee Yvonne Maynor testified for
Respondent that about 2 weeks prior to the strike, she
had heard Clark, Townsend, and Williams in the break-
room complaining about "Koreans being hired, taking
jobs they thought Americans should have." These com-
plaints were not made, however, in the context of any
strike discussions. Maynor impressed me as truthful and
there was no showing of bias on her part against Clark,
Townsend, and Williams. I credit Maynor. Having
voiced the complaint before, I find it not unlikely that
one of them would have alluded to the same complaint
in discussing the matter with Jackson. On balance and
considering the record as a whole, I credit Jackson's tes-
timony over the denials of Clark, Townsend, and Wil-
liams and find that he had discussions with them about a
strike and that one or another of them asked him to par-
ticipate in the strike and alluded in the discussions to Re-
spondent's hiring of Koreans.
Having credited Jackson, however, I am nevertheless
constrained to the view that misconduct on the part of
the three that would remove them from the protection of
the Act has not been established by Respondent. If it
could be said that the dischargees here were seeking
through strike action to cause Respondent to either dis-
charge Koreans or to make a commitment not to hire
any in the future for racial or national origin consider-
ations, I would concur in Respondent's argument that
such activity would be outside the protective mantle of
the Act as an attempt to cause Respondent to violate
other laws such as Title VII of the Civil Rights Act of
1964 (42 U.S.C. § 2000 et seq.) cited by Respondent.
However, I cannot reach that conclusion based on Jack-
son's vague and conclusionary testimony when the em-
ployees' remarks may also be interpreted as compatible
with lawful and protected aims. Such a lawful interpreta-
tion is revealed in Geiger's own pretrial statement to the
Board, which shows that the reference to "foreigners"
was in a significantly different context. Thus, Geiger in
his statement said Jackson reported to him that four em-
ployees (including Smith) had asked Jackson to walk out
with them the next morning because Geiger "was hiring
too many foreigners and they would work for anything."
Considering that no' demands had ever before been
placed on Respondent to either discharge or refuse to
hire Koreans or foreigners, and considered in the context
of Jackson's concession herein that the dischargees had
talked about walking out for more money, it is reasona-
ble to conclude that the discharged employees' remarks
were reflective of an economic concern rather than one
based on race, national origin, or other irrelevant consid-
eration. Under this interpretation, the conduct of the em-
ployees in soliciting support could not be regarded as un-
protected under the Act for the objection to the foreign-
ers was premised ' not on their nationality, but on their
depression of the wage rates.
Considering all the foregoing, I am persuaded that the
misconduct attributed to Clark, Townsend, and Williams,
which Respondent contends deprived them of the pro-
tection of the Act, has not been established. It is clear
that Section 8(a)(1) is violated if an employee is dis-
charged for misconduct in connection with a protected
activity if the misconduct did not in fact occur and de-
spite the employer's good-faith belief to the contrary.
NLRB v. Burn up & Sims, 379 U.S. 21 (1964). According-
ly, and because there was no evidence that Clark, Town-
send, and Williams in any other way interferred with
their own work or the 'work of other employees during
their strike solicitations, I find Respondent violated Sec-
tion 8(a)(1) of the Act as alleged in discharging them on
LUMBEE FARMS COOPERATIVE 509
26 August. 14 Even assuming that the three dischargees
had not been protected by the Act in their references to
Koreans or foreigners in their i emarks to Jackson, I find
Respondent nevertheless violated Section 8(a)(1) of the
Act in the discharges. It is well established that the exist-
ence of a basis for discharge is no defense to a discharge
if in fact the discharge was nevertheless based on an-
other unlawful reason. Rose's Stores, 256 NLRB 550
(1981). In the instant case, I am persuaded that, it was not
their remarks to Jackson about Koreans or foreigners
that prompted the discharges, but rather the efforts of
the three in soliciting Jackson to strike. Only Geiger's
self-serving testimony indicates that he discharged the
employees because they were telling him he could not
hire Koreans. Geiger's testimony regarding his motive
was not substantiated by any other witness including
Processing Manager Watts even though Geiger testified
that when he told Watts to terminate the four, he also
told him no one was going to tell Geiger not to hire
"Korean nationals." Under these circumstances, Geiger's
claim smacks of afterthought and I find it incredible.
That Geiger 'was opportunistic and not unwilling to
stretch the truth was shown by a news release prepared
by him during the strike in which he left the clear im-
pression , admittedly contrary to the truth, that as the
strike occurred, he offered to meet with the "employees"
to discuss their grievances, but that nevertheless "47 em-
ployees" left the plant and began picketing.
Significant in concluding that references by the dis-
chargees to Koreans or foreign nationals was not the mo-
tivating concern for their discharges is Respondent's fail-
ure to investigate or ascertain ' the position of the people
accused of the misconduct. Geiger never asked for their
version of the facts before deciding to discharge them.
Such a failure, coupled with Respondent's haste in effec-
tuating the discharges, clearly indicates that Respondent
was reacting to the strike solicitations rather than any
particular remarks of the dischargees in connection with
such solicitation.
Most revealing regarding Respondent's motivation in
effectuating the discharges was its reliance on its policy
against restricting output and intimidating other employ-
ees. Although Watts testified he did not use the word
strike in announcing the discharges to the four employ-
ees, and I credit him in this regard, he conceded that he
was in fact referring to the strike in applying Respond-
ent's rule 16.15 Yet, there was no evidence that the four
discharged had restricted output or had intimidated
others. There was no showing that those discharged
were interfering with Jackson's work on their own in
talking to Jackson. Thus, the rule relied on had no appli-
cation to the circumstances except to the extent that a
strike, if successful, would have the necessary effect of
restricting output.
14 Although not alleged as a violation , it is clear that Smith 's discharge
would have violated the Act under Burnup & Sims, supra, for Respond-
ent concedes she had not engaged in any misconduct and was, therefore,
subsequently reinstated
15 Although I credit Watts regarding what he told the dischargees, it
was not unreasonable for them to conclude from what he said that he
was in fact discharging them for soliciting for a strike.
Finally, the discharged employees were never told the
reason now relied on by Respondent for justifying the
discharges , i.e., the alleged misconduct in complaining
that Respondent was hiring Koreans or foreigners. The
failure to so tell the discharged employees , in the ab-
sence of some credible explanation not set forth in the
record, clearly indicates that such reason was not relied
on. Even when Williams talked to Geiger on 31 August
at the plant, Geiger complained to Williams only of her
having gone down the line "soliciting ." Based on Wil-
liams' testimony, which I credit in this instance," s there
was no reference by Geiger to the dischargees complain-
ing about the hiring of Koreans or foreigners.
Considering the foregoing and the fact that at the time
of the discharges Respondent had specifically identified
only the four dischargees as strike solicitors , and because
I find Geiger's unsubstantiated testimony regarding his
motivation in effectuating the discharges unpersuasive, I
conclude Respondent has not demonstrated that it relied
on any unprotected aspect of the strike solicitations of
the discharged employees. For this reason I conclude
that, even assuming misconduct on the part of the dis-
chargees-in connection with activity otherwise protected
under the Act, Respondent discharged them not for such
misconduct, but for their protected activity of soliciting
or encouraging other employees to strike . In this regard,
I conclude Respondent violated Section 8(a)(1) of the
Act as alleged.
Having found that Respondent engaged in unfair labor
practices under the Act in the discharges, there remains
the, issue of whether the unfair labor practices were a
contributing cause of the strike on 27 August. It is suffi-
cient that the strike was caused at least in part by Re-
spondent's unfair labor practices . See, e.g., Daisy 's Origi-
nals, 187 NLRB 251 (1970). Based on Margaret John-
son's credited testimony, the strike, while preplanned,
was essentially conditional on garnering further support
from employees. Further, Johnson related that she did
not believe the strike would have occurred in the ab-
sence of the discharges because employees did not have
the "nerve." This assessment was probably accurate be-
cause only a fraction of Respondent's work force joined
the strike even in light of the discharges. In any event,
Johnson testified without contradiction that she discussed
the discharges with several other employees at work on
the morning of 29 August and asked them what they
were going to do about it. She added that she got re-
sponses indicating a willingness to walk out so she ad-
vised them to "spread the word and tell everybody, you
know, at 8:00 o'clock we will be walking out."
16 Although Williams cannot be described as a wholly candid witness,
I did not perceive her testimony about the meeting with Geiger to be a
fabrication , particularly since Geiger 's denial of any meeting with Wil-
liams after the strike was not convincing Further, although called as a
witness by Respondent, security guard Ronald Chance did not testify
about, and failed to refute, Williams' visit to the plant on 31 August, even
though Williams identified "Ron" as the guard who let her in to see
Geiger on that day It seems reasonable to infer from Chance's failure to
rebut Williams' testimony that she did meet with Geiger as she claimed
Under these circumstances, I find Williams' testimony regarding the fact
of the meeting with Geiger and his remarks in the meeting are credible
510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Christine Chavis, a witness for the General Counsel,
testified credibly,that she learned of the discharges on
the morning of 27 August and, on seeing the walkout
begin, decided to go with the strike. Similarly,_ striker
Mildred Shaw, who learned of the discharges on the
evening they occurred, testified that the next day at
work when the walkout started, the employees working
next to her told her to "come on, they're going to strike
to support our coworkers."
Finally, based on Margaret Johnson's testimony, un-
contradicted in this regard, among picket signs used
were those containing language referring to "Unfair
Labor Practices." Johnson testified, again without con-
tradiction, that as spokesman for the Concerns Council
she told newspaper reporters and others that the strike
was to support the four girls who were fired, for better
working conditions in the plant, and for more money. In
view of the above, and while not all strikers may have
been aware of the discharges prior to the strike, I con-
clude the record fully supports the conclusion I reach
here that the strike was caused at least in part by the dis-
charges, and that for this reason the strike must be classi-
fied as an unfair labor practice strike from its inception.
3. The validity of the offer to return to work
Concerning the validity of Black's offer of 29 August
for the employees to return to work, Respondent argues
that many strikers were not aware of the offer to return
to work, that no record was made of employees specifi-
cally granting authorization for the offer, that the offer
may have been sent before any authorization was given,
and lastly that the offer must be held invalid because nei-
ther Black nor the IUD was certified or recognized as
the collective-bargaining representative. In connection
with the latter argument, which appears to contradict
Respondent's contention elsewhere herein that the IUD
is not a labor organization, Respondent asserts that to
have accepted the validity of the work return offer, it
would have had to deal with the IUD, a situation Re-
spondent was legally privileged to avoid under Sears,
supra, and Linden Lumber, supra. Having credited Black
regarding the circumstances of his sending the offer to
Respondent, I find Respondent' s initial arguments to be
without merit. The fact that each striker did not grant
Black specific authorization to send the telegram is im-
material for it is clear that the strike was over, and -any
picketing ceased commensurate with the sending of the
"offer." There was no evidence that the strike continued,
or that any employees insisted on a continuation of the
strike. Nor was there evidence that any employees ob-
jected to the offer to return to work.
I likewise reject Respondent' s legal argument and find
the Sears and Linden Lumber cases inapposite. Sears dealt
with, and upheld, an employer's right to deal directly
with employees in investigatory interviews when no
union representative of such employees has been certified
or recognized. Linden Lumber involved the right of em-
ployers,to refuse to grant recognition to a union based
on union authorization cards in the absence of unfair
labor practices precluding a fair election. Neither situa-
tion is present in the instant case. Moreover, although an
employer may not be compelled to recognize or negoti-
ate with a minority union , the Board and courts have
specifically held that nothing in the Act precludes a mi-
nority representative from acting as the employees' agent
for the purpose of requesting reinstatement . See F. M.
Homes, Inc., 235 NLRB 648 (1978), and cases cited
therein at fn. 4. See also Hendon & Co., 197 NLRB 813
(1972). Respondent would distinguish the case herein
from the foregoing line of cases as well as Marlene In-
dustries Corp., 255 NLRB 1446 (1981), enf. denied 712
F.2d 1011 (6th Cir. 1983), cited in the General Counsel's
brief, on the grounds that in the cited cases the employer
knew the union making the return-to-work offers repre-
sented the striking employees even if such union did not
enjoy majority representative status among the employ-
er's employees generally. Regardless of whether this is a
valid distinction, Geiger admitted that in view of Black's
mailgram he "assumed that [the strikers] would attempt
to" return to work, and responded by instructing his
guard not to allow the "walkout employees" to return.
Instead , he told the guard that if they trespassed to call
the police and have them arrested. Thus, Geiger treated
the offer as a valid one. And, any doubt as to the validi-
ty of the return to work offer should have been resolved
by the actual attempt of the employees to return to work
on the morning of 30 August. 17
In any event, and, assuming some doubt by Respondent
regarding the validity or conditional status of Black's
return to work offer, it was incumbent on Respondent to
clarify the matter with the strikers when they appeared
at the plant to go to work. Certainly, Respondent was
free to explore the matter with the individual strikers.
Respondent's failure to do so precludes it from now
complaining, and any uncertainty regarding Black's offer
of the strikers return to work must be resolved against
Respondent. Haddon House Food Products, 242 NLRB
1057, 1058 at fn. 6 (1979), enfd. as modified on other
grounds 640 F.2d 392 (D.C. Cir. 1981). Accordingly, I
conclude Black's offer on behalf of the strikers was valid
and unconditional.
Because the return to work offer was valid and be-
cause I have found that the strike was based from its in-
ception at least in part on the unfair labor practices of
Respondent, the strikers were entitled to their jobs when
they attempted to return to work on 30 August even if
they had been previously replaced and even if it was
necessary for Respondent to discharge the replacements.
Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278 (1956).
It is clear that they were not allowed to do so by Re-
spondent. In failing and refusing to reinstate the strikers
named in the complaint,on their offer to return to work,
Respondent violated Section 8(a)(1) of the Act as al-
leged. See generally San Isabel Electric Services, 225
NLRB 1073 (1976).
17 Even the identity of the individual strikers attempting to return to
work on 30 August was known to Respondent, for Geiger admittedly
told guard Ronald Chance to make a list of those attempting to return
That list, according to Geiger's belief as related at the hearing, was no
longer in existence at the time of the hearing
1
LUMBEE FARMS COOPERATIVE 511
4. The discharges of Johnson and Godwin
Because I have found above that the strikers were en-
titled to reinstatement to their old positions in view of
their status as unfair labor practice strikers and their
valid offer to return to work, the burden was on Re-
spondent to reinstate them to their old positions. It is
clear that neither Margaret Johnson nor Vivian Godwin
were reinstated to their former positions after the strike.
Prior to the strike, Johnson had been a gizzard cleaner
while Godwin worked on the eviscerating line, stabbing,
washing, and cleaning knives. There was no evidence
that these jobs had been abolished during the strike or
that the box stacking and ice house jobs were substantial-
ly equivalent to the prestrike jobs of Johnson and
Godwin. In these circumstances, I must conclude, that
neither of the two were ever properly reinstated by Re-
spondent, and that Respondent must fulfill its obligation
to reinstate them.
In view of Respondent's failure to properly reinstate
Johnson and Godwin and because Respondent violated
Section 8(a)(1) in failing and refusing to reinstate the
strikers, it would appear to be unnecessary to decide
whether Respondent's discharge of either Johnson or
Godwin from the jobs to which they were assigned on
14 and 16 October, respectively, was based on their in-
volvement in, or leadership of, the strike. Never having
been properly reinstated, the order providing for the
backpay and reinstatement of the unfair labor practice
strikers provided below includes Johnson and Godwin.
However, a failure to decide the issue of their discharges
would leave the complaint allegations on these points un-
resolved and an inadequate basis for Board review of the
merit of the allegations. Thus, the legality of the dis-
charges of Johnson and Godwin will be undertaken
below.
There is little dispute concerning the facts surrounding
Johnson's discharge. She was offered one position, found
she could not perform the work, and was offered a
second job in the ice house. Although the General Coun-
sel makes much of the fact that Respondent had never
previously assigned a woman to work alone in the ice
house, there was no evidence that the job could not be
performed by a woman. Moreover, there was nothing in
Johnson's testimony suggesting the job was too difficult
for her. Finally, there was no evidence to contradict
Locklear's testimony, which I credit in this regard, that
not enough ice was being dispensed from the ice house
to the work floor to keep the product properly chilled.
There appears to be a legitimate basis for finding fault
with Johnson's work. Considering the foregoing, the fact
that Locklear warned Johnson once before the discharge
that not enough ice was coming to the floor, and that
Locklear had previously discharged employees for the
same offense as Johnson, and although the discharge is
suspicious, I conclude that the evidence was insufficient
to establish that the discharge was based on Johnson's
prior protected concerted activity. I, therefore, find no
violation of Section 8(a)(1) of the Act in Johnson's dis-
charge from the ice house job.
With respect to Godwin's discharge, I find the facts to
be those related by Respondent's witnesses Pate, McCul-
lum, and Locklear. Godwin appeared nervous and
uneasy while testifying, an appearance not fully explain-
able as resulting from an illness she claimed to be experi-
encing. Not surprisingly, she exhibited her greatest dis-
comfort during cross-examination. She was contradicted
by her prehearing statement to the Board regarding a
significant aspect of her testimony, the decision of em-
ployees at the 22 August meeting to strike on 27 August.
Accordingly, I do not find Godwin fully credible. I find
Godwin did tell Judy Cummings within the hearing of
Dorothy McCullum 1 s that she was not going to stack
"no damn boxes." As the General Counsel argues, how-
ever, there remains an element of disparate treatment in
Respondent's discharge of Godwin. Thus, Pate conceded
that she had initially told Godwin, as she had told other
former strikers, that if she did not believe she could per-
form a job in which Respondent had openings, Respond-
ent would call her when they had another opening. And,
as in the case of Johnson, Respondent allowed employ-
ees to attempt a job before rejecting it. Further, employ-
ee and former striker Mary Shaw credibly testified that
she had rejected the box stacking job without penalty.
The manner of Godwin's purported rejection of the box
stacking job is hardly a reason for this disparity in treat-
ment. Godwin did not specifically tell Locklear, who was
to be her supervisor she was rejecting the job. There was
no refusal to obey a direct order. Nor did Godwin direct
any insubordinate language at Locklear. Indeed, it was
not even Locklear's decision to discharge Godwin. It
was Geiger's. Given Godwin's known position in the
employees Concerns Council and her strike participation,
Respondent's disposition to retaliate against those per-
ceived to be instigators of the strike as demonstrated in
the discharges of 26 August, Godwin's long period of
prior employment with Respondent,19 the minor nature
of Godwin's offense, and the failure to grant her a job-
rejection privilege accorded other returning strikers,
compels me to conclude that the General Counsel has es-
tablished a prima facie case that Godwin's discharge was
based on her prior protected activity. Further, in the ab-
sence of evidence that other employees guilty of offenses
like or similar to Godwin's were similarly so harshly
treated, I find Respondent has not demonstrated that
Godwin would have been discharged without regard to
her protected activity. Accordingly, I conclude that
Godwin's discharge interfered with her Section 7 rights
in violation of Section 8(a)(1) of the Act as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By discharging employees Patsy Clark, Jeanette
Townsend, and Diane Williams on 26 August 1986 and
employee Vivian Godwin on 16 October 1985 because of
their involvement in activity protected under the Act,
Respondent engaged in, and is engaging in, unfair labor
18 It is not fully clear from the record that Godwin directed her re-
marks about the job to McCullum It is my sense of the record and testi-
mony that McCullum simply overheard Godwin's remark that was di-
rected to Cummings.
19 Godwin had been employed by Respondent for about 14 years
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
practices within the meaning of Section 8(a)(1) of the
Act.
3. Respondent did not violate the Act in the discharge
of Margaret Johnson on 14 October 1985.
4. The strike, which began among Respondent's em-
ployees on 27 August 1985, was an unfair labor practice
strike from its inception.
5. By failing and refusing to properly and timely rein-
state unfair labor practice strikers listed below on their
unconditional application for reinstatement, Respondent
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(1) of the Act:
Diane Bell
Leacher Bilbo
Sarah Brooks
Barbara Bullard
Rosie L. Campbell
Vanessa Campbell
Christine Chavis
Vickie Chavis
Barbara Collins
Delphine Edwards
Vivian Godwin
Margaret Johnson
Vernice Johnson
Sandra Judd
Annette Locklear
Geneva Locklear
Gloria A. Locklear
Ruby A. Locklear
Shirley Locklear
Gloria Mainor
Helen McAllister
Johnnie McAllister
Martha McArn
Brenda McBryde
Dazza McBryde
Ola McBryde
Gladys McDonald
Barbara McDougald
Jonathon McEachin
Shirley McEachin
Johnny McGougan
Judy McNeill
Joann Miller
Charlene Pearson
Teresa Ray
Eddie Shaw
Mary Shaw
Mildred Shaw
William Shaw
Carrie Simpson
Barbara Smith
TeWanda Spearman
Kunehona Visessing
Eva Watkins
Gloria Williams
Mary Willis
6. The unfair labor practices described above in Con-
clusions of Law 2 and 5 affect commerce within the
meaning of Section 2(6) and (7) of the Act.
7. Respondent did not engage in any unfair labor prac-
tices other than those found here.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Respondent, having discriminatorily discharged Patsy
Clark, Jeanette Townsend, and Diane Williams, must
offer them reinstatement and make them whole for any
loss of earnings and other benefits, computed on a quar-
terly basis from the date of discharge to the date of a
proper offer of reinstatement, less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in Florida Steel
Corp., 231 NLRB 651 (1977).20 Consistent with the
20 See generally Isis Plumbing Co, 138 NLRB 716 (1962).
Board's holding in Sterling Sugars, 261 NLRB 472 (1982),
it will also be recommended that Respondent be required
to remove from its records and files any reference to the
discharges of the above-named employees and notify
them in writing that this has been done and that evi-
dence of the unlawful discharges will not be used for
future personnel actions against them.
Having found that Respondent unlawfully failed and
refused to reinstate the unfair labor practice strikers
listed in the notice21 following their unconditional offer
to return to work, it shall be ordered that Respondent, to
the extent it has not already done so, offer them immedi-
ate and full reinstatement to their former positions or, if
such positions no longer exist, to substantially equivalent
positions without loss of seniority or other benefits and
make them whole for any loss of pay resulting from Re-
spondent's failure to properly reinstate them by payment
of a sum of money to them equal to the amount they
normally would have earned as wages from the effective
date of their unconditional offer to return to work, 30
August 1985, to the date of a bona fide offer of reinstate=
ment by Respondent or their actual reinstatement as the
case may be, less any net interim earnings. The backpay
and interest shall also be computed in accordance with
the authority cited in the paragraph immediately
above.2 2
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed23
ORDER
The Respondent, Lumbee Farms Cooperative, Inc.,
Lumber Bridge, North Carolina, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for engaging in protected concerted activi-
ties under the Act for mutual aid or protection.
(b) Failing or refusing to reinstate either in a timely
manner or at all unfair labor practice strikers on their un-
conditional application to return to work.
2 i Shirley A. Locklear was listed in pars 12 and 13 of the complaint as
having been a striker Respondent's answer denied the pertinent portions
of both complaint paragraphs The list of strikers made at the home of
Margaret Johnson on 30 August (G C Exh 3) lists no Shirley A Lock-
lear, although it does list a Shirley A Williams Accordingly, and be-
cause there is no independent evidence that Shirley A Locklear was a
striker, I shall omit her name from the notice I shall leave for compli-
ance processing the determination of whether Locklear was inadvertently
alleged in the complaint instead of Shirley A Williams
22 The General Counsel in her brief sought also a "visitatorial clause"
in effect allowing the Board to engage in discovery under the Federal
Rules of Civil Procedures in order to monitor compliance However, no
special circumstances are asserted or argued to justify such a clause The
Board has previously indicated such clauses will not be granted in a pro
forma manner See 0. L Willis, Inc, 278 NLRB 203 (1986), 278 NLRB
626 (1986) Compare Hilton Inn North, 279 NLRB 45 (1986)' In the ab-
sence of any special circumstances shown here, no visitatorial clause will
be provided
22 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
LUMBEE FARMS COOPERATIVE 513
(c) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Patsy Clark, Jeanette Townsend, Diane Wil-
liams, and to the extent it has not already done so, the
below-named employees immediate and full reinstate-
ment to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges and make then whole in the manner set forth
in the remedy section of this decision.
Diane Bell
Leacher Bilbo
Sarah Brooks
Barbara Bullard
Rosie L. Campbell
Vanessa Campbell
Christine Chavis
Vickie Chavis
Barbara Collins
Delphine Edwards
Vivian Godwin
Margaret Johnson
Vernice Johnson
Sandra Judd
Annette Locklear
Geneva Locklear
Gloria A. Locklear
Ruby A. Locklear
Shirley Locklear
Gloria Mainor
Brenda McBryde
Dazza McBryde
Ola McBryde
Gladys McDonald
Barbara McDougald
Jonathon McEachin
Shirley McEachin
Johnny McGougan
Judy McNeill
Joann Miller
Charlene Pearson
Teresa Ray
Eddie Shaw
Mary Shaw
Mildred Shaw
William Shaw
Carrie Simpson
Barbara Smith
TeWanda Spearman
Kunehona Visessing
Helen McAllister Eva Watkins
Johnnie McAllister Gloria Williams
Martha McArn Mary Willis
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at Respondent's facility in Lumber Bridge,
North Carolina, copies of the attached notice marked
"Appendix."24 Copies of the notice, on forms provided
by the Regional Director for Region 24, after being
signed by the Respondent's authorized representative,
shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employ-
ees are customarily posted Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint is
dismissed in all respects other than those specific viola-
tions of the Act found.
24 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by 6rder of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."