Maryland Baking Co. Of Georgia

National Labor Relations Board - Board Decisions

Jun 1, 1977

229 N.L.R.B. 1087 (N.L.R.B. 1977)

MARYLAND BAKING CO. OF GEORGIA
Maryland Baking Co. of Georgia, Inc. and Teamsters
Local Union 728. Case 1O-CA-12272
June 1, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On March 8, 1977, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Maryland
Baking Co. of Georgia, Inc., Atlanta, Georgia, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The charge was filed on September 17, 1976,1 and amended
on September 27. The complaint was issued on November
10. The hearing was held in Atlanta, Georgia, on January
13, 1977.
At the hearing Respondent amended its answer to admit
all the allegations in the complaint that it had committed
independent violations of Section 8(a)(1) of the National
Labor Relations Act, as amended. They are that Respon-
dent interfered with, restrained, and coerced its employees
in the exercise of their Section 7 rights by interrogating
them about their union membership, activities, and desires,
by threatening them in various ways, by prohibiting them
from soliciting on behalf of a union during working hours,
by instructing them to bring authorization cards to
management before signing, by soliciting grievances, by
creating the impression of surveillance, and by limiting
them in their in-plant movements and conversations to
discourage union activities. Consequently, the only issue
litigated was Respondent's motive for discharging Patricia
Batchelor on August 30. For the reasons set forth below, I
find the General Counsel has not proved that it was one
proscribed by Section 8(aX3) of the Act.
Upon the entire record, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Maryland corporation, is engaged in
Atlanta, Georgia, in the business of manufacturing ice
cream cones. It also warehouses products for its parent
corporation. During the year just prior to issuance of the
complaint, it shipped products valued at more than $50,000
directly to customers located outside the State of Georgia.
II. THE UNFAIR LABOR PRACTICES
A. Background
The Union undertook to organize Respondent's plant in
the late spring and summer of 1976. It filed a petition in
Case 10-RC-10824 on August 18. The election was held on
October 21. The Union lost. In due course, the case was
closed by issuance of a certificate of results.
B. Facts
Patricia Batchelor went to work for Respondent around
January 16 as a packer on the 11 p.m. to 7 a.m. shift. In
April she became pregnant by Johnny Heard, a machine
operator on the day shift. In July they began living
together. Ms. Batchelor's pregnancy was a difficult one,
causing her to miss work as frequently as once or twice a
week, on the average, from the beginning. On those
occasions she called in to report that she was too ill to
come to work. Only once, apparently in July, did she give
Respondent a doctor's certificate.
While at work on Tuesday, August 3, Ms. Batchelor
became so ill that she was taken to the hospital from the
plant. She was out sick for the remainder of the week.
When she returned to work on Monday, August 9, her
leadman told her that, in future, she would have to bring in
a doctor's certificate whenever she was off sick. Ms.
Batchelor protested. The next day, she was on her way to
the office to talk to Sara Saul, an official of Respondent
charged with personnel responsibilities, about what she
perceived as a change in Respondent's rules concerning
absence due to illness when she bumped into Ed Davis,
another official. Ms. Batchelor explained her problem to
Davis. Davis told her not to worry about what the leadman
had told her, just continue to do what she had done in the
past when her condition made her too ill to come to work.
Ms. Batchelor was off sick on Thursday, August 26,
and Friday, August 27. The first evening, she called the
plant herself to report that she would not be in. The
second, Heard called in for her. On Saturday, August 28,
Heard told Ms. Batchelor she was to call Ms. Saul on
All dates other than the date of the hearing are 1976.
229 NLRB No. 167
1087
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Monday. Ms. Batchelor did so. Ms. Saul discharged her for
excessive absenteeism. The conversation went as follows:
Ms. Batchelor: Ms. Saul, I understand that you
wanted me to call you.
Ms. Saul: Yes. I notice you have been absent a
great deal. You have a lot of absences on your record.
Ms. Batchelor: Yes. Didn't Ed Davis tell you about
my problems?
Ms. Saul: Yes but normally pregnant women don't
have those many problems during pregnancy.
Ms. Batchelor: Yes but, you know, I've been sick.
Ms. Saul: We can't use you now because of your
absences. After you have the baby, you can come back
and reapply.
Both Ms. Batchelor and Heard supported the Union in
its efforts to organize the plant. Each signed an authoriza-
tion card. Ms. Batchelor attended one union meeting;
Heard, several. Both talked to other employees about
supporting the Union. Heard solicited two authorization
cards from other employees which he turned in to the
Union. He was not, however, one of the employees who
instigated the Union's efforts to organize the plant.
On Tuesday, August 31, Heard approached Sara Piem,
the official who runs the plant for Respondent. As Heard
tried to explain that Davis had told him on Friday evening
it was all right for Ms. Batchelor to be off, Ms. Piem
interrupted him. She said she did not care what Davis had
told him. She said, "I hear you are getting a union up. If
that doesn't stop you will be fired."
Heard said, "I'm not concerned about the union. I'm
concerned about Patricia's and my welfare."
Ms. Piem said, "If you get fired, Patricia's welfare and
your welfare will be in worse shape than it is now." She
said the Union could not make her do anything she did not
want to do and, if the employees went on strike, they would
get no unemployment compensation.
Ms. Piem named Johnnie Mae Henson and Janette
Freeman as two other employees who were responsible for
bringing the Union into the plant. Heard protested that he
was not one of those responsible. Ms. Piem said that, if
word leaked out about what she had said to Heard, she
would learn of it. In that event also, she said, she would
discharge Heard.
Earlier in the Union's campaign, Heard had been the
victim of several other of the independent 8(a)(l) violations
admitted by Respondent. Sometime in June, around the
time Heard signed an authorization card for the Union,
Rene Palau, a supervisor, said to him, "I hear you're in the
Union." Heard said he was not. Palau said, "Well, did you
attend the union meeting?" Heard said he had. Palau said,
"Did you sign a card?" Heard said yes. Palau said, "Well,
you know we are going to be hard on you. Since you
attended the meeting and participated in the union, you
can get fired. Ms. Piem doesn't want you out on the floor
talking to anyone or anyone talking to you." (As operator
on his shift of the machine that makes the ice cream cones,
Heard is supposed to stay in the room where it is located
and only go onto the packing floor when a packer sounds a
buzzer to indicate a malfunction. Prior to the advent of the
Union, I gather, this rule was not rigidly enforced.)
Later that day, Heard had a conversation with Ed Davis.
Davis said, "I hear you're getting a union up. Be careful
because if you are not, you'll be fired." Heard protested he
was not getting a union up. Davis told Heard to get up a
list of names of employees and their grievances and take it
to Ms. Piem. Maybe, he said, Ms. Piem would talk about
them without a union.
About 2 weeks later, Heard had a second conversation
with Palau. Palau asked Heard which employees had
attended union meetings. Heard said he could not tell
Palau that. Palau asked when the next meeting was
scheduled. Heard said he could not answer that question
either. Palau said, "Well, I hear that you are trying to get it
[i.e., the Union] up. From now on, anything you do that I
hear, you're going to be fired. And if anyone comes in
contact with you, you have to tell them to go the other way
and not say anything to you."
C. Analysis and Conclusions
The General Counsel contends the motive for Patricia
Batchelor's discharge is reprisal for Johnny Heard's union
activities and not the frequent absences caused by her
pregnancy. As evidence he cites the fact that the discharge
came not long after Respondent was served with the
petition in Case 10-RC-10824 and the fact that Ms. Piem,
in talking to Johnny Heard on August 31, referred to his
and Patricia's welfare in the course of threatening to
discharge him for engaging in union activities. Whether
viewed separately or together, they are not sufficient to
overcome the facts with respect to Ms. Batchelor's record
of absenteeism. The only reasonable interpretation of the
words Ms. Piem spoke the day after Ms. Batchelor was
discharged is that they were prospective in their thrust.
Nothing about them implies that Ms. Piem was looking
back at what had occurred the day before to get across to
Heard the message that the same thing would happen to
him for the same reason if he persisted in his union
activities. The fact that the discharge occurred when,
presumably, the Union's organizing campaign was near, if
not at, its peak is offset by the fact that August 30 was a
logical time to discharge Ms. Batchelor because, in
Respondent's eyes, her condition was making it impossible
for her to do her work properly. Ms. Batchelor missed the
last 2 workdays before she was discharged. This was the
first occasion on which she failed to work after a weeklong
absence following an attack so severe she had to be rushed
to the hospital from the plant. What the two indicia of
discriminatory motive relied on by the General Counsel
lack individually is not supplied by putting them together.
As evidence, they cannot add up to more than the sum of
their parts. I find, therefore, the General Counsel has failed
to prove by a preponderance of the evidence on the record
considered as a whole that Respondent's ostensible reason
for discharging Patricia Batchelor on August 30, 1976, was
a pretext and that its real motive was one proscribed by
Section 8(a)(3) of the Act.
Upon the foregoing findings of fact, and upon the entire
record in this proceeding, I make the following:
1088
MARYLAND BAKING CO. OF GEORGIA
CONCLUSIONS OF LAW
1. Maryland Baking Co. of Georgia, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Teamsters Local Union 728 is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(aXl) of the Act
by:
(a) Interrogating employees about their union member-
ship, activities, and desires.
(b) Threatening employees with discharge for engaging
in union activities.
(c) Threatening employees with more onerous working
conditions if they continued to engage in union activities.
(d) Threatening to refuse to sign a union contract,
thereby advising employees that it was futile for them to
engage in union activities.
(e) Prohibiting employees from soliciting on behalf of a
union during working hours.
(f) Soliciting information from employees about their
union activities by instructing them to bring authorization
cards to management before signing.
(g) Soliciting grievances from employees.
(h) Creating an impression of surveillance of employees'
union activities.
(i) Limiting employees in their in-plant movements and
conversations to discourage union activities.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. The allegations of the complaint that Respondent
discharged Patricia Batchelor on August 30, 1976, in
violation of Section 8(a)(3) and (1) of the Act have not
been sustained.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 2
The Respondent, Maryland Baking Co. of Georgia, Inc.,
Atlanta, Georgia, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interrogating employees about their union member-
ship, activities, and desires.
(b) Threatening employees with discharge for engaging
in union activities.
(c) Threatening employees with more onerous working
conditions if they continue to engage in union activities.
(d) Threatening to refuse to sign a union contract,
thereby advising employees that it is futile for them to
engage in union activities.
(e) Prohibiting employees from soliciting on behalf of a
union during working hours.
(f) Soliciting information from employees about their
union activities by instructing them to bring authorization
cards to management before signing.
(g) Soliciting grievances from employees.
(h) Creating an impression of surveillance of employees'
union activities.
(i) Limiting employees in their in-plant movements and
conversations to discourage union activities.
(j) In any like or related manner interfering with or
attempting to restrain or coerce employees in the exercise
of rights guaranteed in Section 7 of the Act.
2. Take the following action necessary to effectuate the
policies of the Act:
(a) Post at its plant in Atlanta, Georgia, copies of the
attached notice marked "Appendix." 3 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges Respondent discharged Patricia
Batchelor on August 30, 1976, in violation of Section
8(a)(3) and (1) of the Act.
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other aid or protection, and
To refrain from any or all these things.
WE WILL NOT interrogate you about your union
membership, activities, and desires.
WE WILL NOT threaten you with discharge for
engaging in union activities.
WE WILL NOT threaten you with more onerous
working conditions if you continue to engage in union
activities.
1089
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten to refuse to sign a union
contract, thereby advising you that it is futile for you to
engage in union activities.
WE WILL NOT prohibit you from soliciting on behalf
of a union during working hours.
WE WILL NOT solicit information from you about
your union activities by instructing you to bring
authorization cards to management before signing.
WE WILL NOT solicit grievances from you.
WE WILL NOT create an impression of surveillance of
your union activities.
WE WILL NOT limit you in your in-plant movements
and conversations to discourage union activities.
WE WILL NOT in any like or related manner interfere
with or attempt to restrain or coerce you in tht exercise
of your rights guaranteed in Section 7 of the Act.
MARYLAND BAKING CO. OF
GEORGIA, INC.
1090