Ocoma Foods Co.

National Labor Relations Board - Board Decisions

Nov 23, 1970

186 N.L.R.B. 697 (N.L.R.B. 1970)

OCOMA FOODS COMPANY
Ocoma Foods Company and Jerry Pamplin. Case
26-CA-3492
November 23, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On March 23, 1970, Trial Examiner Alba B. Martin
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter,
Respondent filed timely exceptions, and a brief in
support thereof, to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
Trial Examiner's findings, conclusions, and recom-
mendations.
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 Trial Examiner, and hereby orders
that Respondent, Ocoma Foods Company, Shelby-
ville, Tennessee, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE PROCEEDING
ALBA B MARTIN, Trial Examiner. This proceeding, with
all parties represented, was heard before me in Shelbyville,
Tennessee, on December 18 and 19, 1969.1 The principal
issue involved is whether Dixie discharged Jerry Pamplin
on April 11, 1969 in violation of Section 8(a)(3) and (1) of
the Act,2 or for cause. After the hearing Respondent filed a
helpful brief, which has been duly considered.
Upon the entire record and my observation of the
witnesses, I hereby make the following.
The charge was filed by Jerry Pamplin, an individual, on September
29, 1969
FINDINGS OF FACT
1. THE BOARD'S JURISDICTION
697
The Board's jurisdiction was admitted by Respondent
and is not in issue. The plant involved herein (called the
plant) in Shelbyville, Tennessee, is engaged in processing,
preparing, distributing, and selling dressed chickens. Prior
to June 3, 1969, the plant was owned and operated by Dixie
Home Corporation (Dixie). On or about that date Dixie
transferred and conveyed its entire assets, including the
plant, to Consolidated Food Corporation, in exchange for
common stock of that corporation; and the latter's wholly
owned subsidiary, Ocoma Foods Company, Respondent
herein, has since then operated the plant. The chairman of
the board of directors of Dixie, W. B. Woosley, became an
advisor and consultant to Respondent. The president of
Dixie, W. B. Woosley, Jr., became vice president of
Respondent and plant manager of the plant. The plant
superintendent, A. L. Rhodes, continued on in that
capacity. The complaint alleged, the answer admitted, and I
find, that during the 12-month period prior to issuance of
the complaint on November 14, 1969, Respondent sold and
shipped products valued in excess of $50,000 directly from
the plant to points outside of Tennessee. The answer
admitted also that prior to takeover Dixie was engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail, Wholesale, Department Store Union , AFL-CIO,
herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A Whether This Case is Barred by a Settlement
Agreement in a Previous Case
The case involved herein was filed September 29, 1969,
by Jerry Pamplin as an individual, and was docketed as
Case 26-CA-3492.
On July 7, 1969, the Board's Acting Regional Director
approved an informal settlement agreement between
Ocoma Foods Company and the Union in another case
docketed as Case 26-CA-3351. Ocoma Foods Company
signed the settlement agreement on June 27 and the Union
signed it on July 3. The settlement agreement related solely
to Section 8(a)(1) of the Act, as shown by the fact that the
notice covered interrogation, solicitation, surveillance, and
creating the impression of surveillance. The settlement
agreement did not cover the issue of the Pamplin discharge,
which had occurred on April 11, 1969. The original charge
in Case 26-CA-3351, filed by the Union on April 30, 1969,
had included an 8(a)(3) allegation as to Pamplin's
discharge, but in its first amended charge in that case filed
June 20, the Union had omitted the 8(a)(3) allegation, and
had specifically alleged interrogations and surveillance.
This was the state of the charge when the settlement
agreement was executed.
2 29USC Sec 151. elseq
186 NLRB No. 108
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The settlement agreement reserved to the Regional
Director the discretion to decline to issue a complaint if the
Charging Party failed or refused to become a party to the
agreement . From this I conclude that the settlement
agreement was executed before any complaint was issued
by the Regional Director in Case 26-CA-335 1.
Respondent contended this informal settlement agree-
ment prior to issuance of complaint barred the present
proceeding because the original charge in that case
included the Pamplin discharge . But it seems to me, and I
find, that when the Charging Party there , the Union,
amended its charge and dropped the Pamplin and 8(aX3)
allegation , the Union thereby indicated its desire that the
Pamplin discharge not be pursued by the Regional Office.
The settlement agreement executed thereafter was silent as
to the Pamplin discharge and as to any remedy related to an
8(a)(3) violation . This is convincing to me, and I find, that
the Company and the Union, the parties to the agreement,
did not consider the Pamplin discharge to be included in
the settlement or to - be, since the filing of the amended
charge , any longer in Case 26-CA-3351. Had they
considered the discharge any longer a part of the case, it
seems to me, the parties would have taken some note of it in
the settlement agreement rather than just leave it dangling
in limbo. Certainly , insofar as the record showed, the
Regional Director never issued a complaint in that case and
never complained in that case that Pamplin was discrimina-
torily discharged.
Respondent contended that the complaint in Case
26-CA-3492 is barred under Section 10(m) of the Act
because the Regional Office did not give the Pamplin
discharge priority. I believe and find that after this
discharge was amended out of the original charge in Case
26-CA-3351 by the filing of the amended charge, the
Regional Director took no further action on the Pamplin
discharge in that case because he considered that subject
matter no longer before him. When the question was again
before him after the filing of Case 26-CA-3492 on
September 29 by a different Charging Party, an individual
rather than the Union , he investigated it promptly and
issued his complaint on November 14. In any case nothing
in this record demands that justice in the situation requires
that the individual who filed the charge in Case
26-CA-3492 be deprived of his day in court.
B. The Discharge of Pamplin
Jerry Pamplin worked for Dixie for about 7 years, from
1962 until his discharge on April 11, 1969. During his last 8
or 9 months he worked as a knife sharpener under
Superintendent A. L. Rhodes. At the time of the hearing
Pamplin was 27 years old, Rhodes 33. Both were married
and had families . As a knife sharpener Pamplin moved
around the plant and sharpened about 170 knives for the
employees who used them, mostly women , and as he
sharpened he customarily talked to the employees and
joked with them and sometimes teased them . Pamplin was a
jolly person in the plant and he and Rhodes became
friendly. They talked about many things, Pamplin bor-
rowed money from Rhodes, and once he helped Rhodes
move his driveway . Pamplin had a motorcycle, and Rhodes
sometimes rode it around the block at the plant at
breaktime . Rhodes admitted that he considered Pamplin a
good friend and that they talked together at the plant a
good deal.
The record does not disclose when the union campaign
began in the plant , but both Pamplin and Rhodes indicated
in their testimony that the first they knew of it was a few
weeks before Pamplin 's discharge . Pamplin credibly
testified that the first he heard of it was one day in the
"break room" when Rhodes asked him if he had heard
anything about "this union campaign ." Pamplin replied by
asking what is a union . On the witness stand Pamplin
explained that although he had "heard about unions" he
really didn't know what a union was . Pamplin finished
seventh grade in school . Superintendent Rhodes explained
that a union was "a group of people in the plant trying to
take it over." He named an employee who was trying to get
cards signed . Rhodes then asked Pamplin if he would go to
the union meetings and learn what he could from them,
how many were present, and what they were talking about.
For a week or so Pamplin hesitated . Rhodes kept asking
Pamplin to do it and finally Pamplin capitulated and
started doing it. He reported back to Rhodes what he
learned at the meetings , and also what he heard from
employees as he questioned them , at Rhodes' request,
concerning the Union and concerning whether they had
signed a card . Sometime during this period , according to
Pamplin 's credited testimony , Rhodes told him that if he
would get the information for him he would give him a 15-
cent raise, up to $2 an hour.
Superintendent Rhodes denied promising Pamplin a raise
in return for information about the Union , and claimed
that when Pamplin was put on the knife sharpening job
months before Rhodes told him that he would recommend
him for a raise at such time as Pamplin sharpened all the
knives in the plant . Pamplin denied this . Rhodes testified
that Pamplin was always pressing him for the raise, that
they must have had 200 or 300 conversations about it, each
time Pamplin claiming Rhodes had promised him the raise
and Rhodes replying that he wasn't yet sharpening all the
knives in the plant . Pamplin 's understanding , possibly
erroneous , was that a former knife sharpener had received
over $2 per hour on the job. On the witness stand Rhodes
admitted that Pamplin brought him much information
about the Union but denied that Rhodes asked him to get it
or bring it . Rhodes testified Pamplin was always volunteer-
ing information about the Union , and that Pamplin came to
him numerous times a day with information.
Pamplin was a natural to be an informer on the Union for
Rhodes. At the start Pamplin had no prejudices or
inclinations for or against the Union . They were friendly,
Rhodes had loaned him money (the record is silent as to
whether it was repaid), and Pamplin was continuously
pressing Rhodes for a raise. Pamplin was an easy mixer
with the employees, a great talker and kidder , and his job
took him all over the plant . Under these circumstances it is
reasonable to believe, as I do , that Rhodes offered him the
raise if he would bring him information about the Union,
and that Pamplin 's testimony is credible. Further, I find it
completely incredible that Pamplin would have returned to
Rhodes time after time, day after day, with information
OCOMA FOODS COMPANY 699
about the Union if he had not had the strong incentive of a
promised wage increase.
Pamplin credibly testified that as time went on and he
was giving Rhodes the requested information about the
Union, he began to realize that Rhodes was not going to
give him the raise . Further , Rhodes finally told Pamplin he
couldn 't give him a raise until after the election . Pamplin
had his wife , who worked in the plant , sign a union card.
Rhodes asked Pamplin about his wife 's signing, and
Pamplin said he had had her do it because Rhodes wasn't
living up to his promise to give Pamplin the raise . Pamplin
said also that if he didn ' t get the raise he himself was going
to sign a union card; and he did so at a union meeting the
following Thursday with 60 or 70 present. Then he told
Rhodes he had done so.
After he signed the union card Pamplin "started taking a
big part in it." He went to employees' homes at night with
union representatives and tried to persuade them to sign up
for the Union. Rhodes testified that he had complaints
from a couple of women employees that their husbands
were mad at them because Pamplin had come to their
homes at night soliciting union cards. In addition Pamplin
gave out cards to employees at breaktimes.
Once Superintendent Rhodes handed Pamplin a list of
questions to "incriminate" the Union; and Rhodes told
Pamplin to go down to the Union and ask for his card back
since the Union said it would give cards back to those who
wanted them, and that this would test whether the Union
was so straight and honest.
Once Rhodes told Pamplin, according to Pamplin's
testimony, that his "so-called friends," the "people you
have been giving cards to, they weren't your friends
because they have turned them in. I have eight cards turned
in that you gave out to get signed." On the witness stand
Rhodes admitted that some employees brought him union
cards. Pamplin had given eight cards to a member of the
cleanup crew, Parris Clark, who worked after shift hours,
but several times when Pamplin went into the breakroom to
meet Clark on his break and get the signed cards back,
Clark put him off and said he would have them the
following day. Clark never returned the cards.
The foreman of the cleanup crew, Earnest Martin, told
Rhodes that Pamplin had been passing out cards to the
cleanup crew. W. B. Woosley, chairman of the board, heard
about it from Rhodes and then talked to Martin about it.
On the witness stand Martin admitted that he had not seen
Pamplin doing it, and that his only source of information
was that one man in his crew had asked him if he knew that
Martin was out there passing out cards. No one complained
to Martin that Pamplin was bothering them or interrupting
their work. Martin saw Pamplin talking to one man who
was supposed to be working.
On Sunday, April 6, 5 days before his discharge, Pamplin
was at the plant twice to check on the knives to see if they
needed sharpening and to try to borrow some plumbing to
clean out a sewer line. He sometimes worked several hours
on Saturdays or Sundays sharpening knives. On this
occasion, according to the credited testimony of W. R. Ray,
the weekend night watchman and a credible witness, the
first time Pamplin went in the plant he said he was going to
sharpen knives for a while. On the second visit Pamplm
went in to call Rhodes to ask to borrow some plumbing
equipment . Ray credibly testified that both times Pamplin
was in the plant the cleanup crew was there . Shortly after
Pamplin came out the second time and he was talking with
the night watchman and another person dust outside the
employees ' entrance, Woosley drove up and asked Pamplin
what he was doing there . Pamplin told him. According to
Ray, Woosley asked Pamplin if he had handed out union
cards and Pamplin replied he had, although the question
and answer did not necessarily relate to that day. Woosley
testified that he spoke to Pamphn as follows:
Now, Jerry, you didn't come down here to sharpen
knives, you didn 't come down here to get a thing to
clean your toilet out with; you came down here to sign
up the rest of the clean-up crew . You were down here
last Wednesday night, I believe it was, when you
weren 't supposed to be here , you weren 't authorized to
be down here , and Earnest Martin , the foreman over
the cleanup crew , told you to get out , you had no
business down there and to quit talking to the
employees. Finally he ran you out after you had signed
a number of them up , and now you 've come down here
this afternoon when you aren 't authorized to be here
other than to sharpen knives when it's necessary. You
don't have on knife sharpening clothes and I want you
to get out. You came down here to sign the rest of them
up and that 's against the rules and you know it. I want
you to get out and stay out." I said, "Jerry, you've given
enough trouble and caused enough trouble and I'm not
going to put up with you much longer . I'm going to give
you your last warning. If you cause any more trouble
I'm going to fire you." That was roughly the conversa-
tion.
Ray's version of this conversation between Pamplin and
Woosley was that Woosley said Pamplin had no business
down at the plant when it wasn ' t working hours, when no
one was working , that it was against the rules to hand the
cards out to the "hands" and that "I ought to fire you right
now, and if anything else comes up I'm going to fire you."
Pamplin 's version was that Woosley pointed his finger at
Pamplin and told him he was "breaking the law down there
giving out union cards" and that Pamplin knew he was
breaking the law. Then Woosley said , "I am warning you in
front of witnesses . . . one more mistake, one more slip-up,
and you are gone . . . We are going to fire you." Pamplin
added, "I stood there and I said `yes, sir' and `no , sir,' and
he turned around and left."
On Thursday, April 10, the day before his discharge,
Woosley was passing out back wage checks to employees
pursuant to a wage and hour investigation. When Pamplin
was called in for this purpose and after Woosley had given
him his check and asked him to sign a receipt for it,
Woosley added that if Pamplin didn't trust him he could
take the receipt to Jack Davis, the union representative, or
the attorneys for the Union, and have them look it over,
and then come back and get his check. Woosley also
accused Pamplin of starting the rumor in the plant that
there were no people working there but "niggers and poor
white trash ," and that Pamplin also started the rumor
"about them putting a fence around the plant and charging
$5 a month for parking space."
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Friday, April 10, Pamplin was called into a
conference room in the office and discharged by Woosley
and Rhodes . The testimony is in conflict as to which one
did the actual firing , but the resolution of the case does not
require resolution of this conflict . They were both in on the
decision to discharge Pamplin and the decision was made
by the chairman of the board. Pamplin was told that he was
being discharged for fooling around with a woman, who
had complained. When Pamplin asked who it was, Woosley
and Rhodes both refused to reveal her identity. She was a
new employee named Carol Williams, with whom Woosley
and Rhodes had talked that morning and from whom they
had obtained an affidavit.
Some 3 days before Foreman Garland Bates saw Pamplin
passing out some union cards in the plant, and he told J. W.
Patterson, an employee, according to the latter's uncon-
tradicted testimony, that he might get rid of Pamplin for
passing out union cards.
On the morning of the discharge prior to the discharge,
Foreman Bates saw Pamplin talking to Patterson in the
presence of Carol Williams. After Pamplin had left the spot
Bates asked Patterson what Pamplin had said. Patterson
replied that Pamplin had asked Patterson how he would
like to have some of that. Bates replied, according to
Patterson's undenied testimony, "That's a good excuse, we
want to get rid of him anyway."
In Patterson 's presence Bates then asked Williams,
"Would you go to the office and sign a complaint on
Jerry?" She replied, "No, I don't want to get nobody fired."
Foreman Bates then told Superintendent Rhodes that
Carol Williams wanted to talk to him, and Bates took her to
Rhodes. Rhodes and Woosley then talked to her for about
30 minutes and the chairman of the board wrote the
statement which she signed . Williams was 18 years old and
married. She was hesitant and embarrased before them.
Woosley told her he was old enough to be her grandfather.
She told them that Pamplin bothered her, said bad things to
her, put his hands on her, told her he wanted to bite her and
kiss her, and asked her how she would like to go out in the
bushes where they could have a lot of fun and do things.
This was the substance of her affidavit.
Carol Williams left Dixie's or Respondent's employ some
weeks or months after Pamplin's discharge. One day
thereafter she and Pamplin met accidentally downtown.
She told him she was sorry about his losing his job and that
if there was anything she could do to help, to let her know.
He told her she could go up there and tell the truth.
(Pamplin had learned from the Regional Office that
Williams was the one who had complained against him.)
She said that "Mr. Woosley and them . .. told her that if
she changed her statement they would get her for perjury,
and said she had a family and couldn't go to jail." Then
Pamplin visited an attorney, told her that he had said they
couldn't "get her" for perjury, and she went to the attorney
with him and executed another affidavit retracting the
statement she had given Woosley and Rhodes.
In its brief Respondent contended that "the officers of
Respondent acted in good faith in discharging Jerry
Pamplin because of complaint of another employee
concerning his improper advances toward her , and for no
other reason."
Three General Counsel witnesses , two men and one
woman ,3 testified that it is commonplace for employees,
men and women , to talk profanely and vulgarly among
themselves and to joke and kid and tease each other
concerning, among other things , sexual matters. They
testified in detail concerning the language and actions
indulged in by some employees and one foreman . Some of
this took place while work was proceeding , but the
employees were freer for talk and horseplay during
breaktimes and when the production line was halted for
some reason , as occasionally happened . Once in the
breakroom in the presence of several employees including a
woman , Superintendent Rhodes uttered a vulgar expression
involving the woman. The plant employed approximately
250 employees , about half of whom were Negroes and half
of whom were women.
Respondent 's testimony was that although there was
some vulgar talk, it was not a usual thing , and that many
employees didn ' t do it at all . However , Superintendent
Rhodes testified that " I constantly talked with the foremen
about . . . dirty talk.. .." He admitted that when women
are working together their talk is just as rough as men's and
they use vulgarity just as regularly as men do.
Rhodes testified that once about 3 years ago a female
employee threatened to stick a knife in Pamplin because he
pinched her on the breast. Respondent did not discharge
Pamplin for this act or the girl for the threat.
Rhodes told of reprimanding Pamplin once over a verbal
advance he made toward a Negro female employee, which
Pamplin volunteered he had made . On this occasion
Rhodes' concern related to the possible racial problem that
could arise . Rhodes did not discharge Pamplin for this.
Rhodes testified that about 2 weeks before the discharge
one Pat Bowen , a female employee , complained to Rhodes
that Pamplin was bothering her, that Pamplin asked her
"Do you love me?" and said dirty things to her. Rhodes
asserted that he reprimanded Pamplin over this incident.
Pamplin had previously testified on direct examination that
Respondent never reprimanded him concerning his con-
duct with the employees, for using profanity, or for joking
or teasing or "propositioning" any employee. Noteworthy
is the fact that in his affidavit dated May 26, 1969, Rhodes
gave a completely different version of this alleged
complaint of Pat Bowen . In cross-examining Pamplin,
Respondent asked him about his advances toward Carol
Williams but asked nothing about his alleged approaches to
Pat Bowen. Concerning reprimanding Pamplin, Rhodes
testified further that,
I talked with Jerry about two or three things
approximately two weeks, I guess, before his discharge.
At this particular time I talked with him about talking
dirty and arguing with people on the line which he was
sharpening knives for and the fact of not being careful
and calling Negroes niggers , and at the same time I
talked to him again about his drinking.
Of note is that Rhodes did not warn Pamplin that his job
was at stake or that any recurrence would cost him his job.
Nor did Rhodes put any adverse report in Pamplin's
3 Jerry Pamplin , J. W. Patterson , and Pearlee M. Mays.
OCOMA FOODS COMPANY
personnel file concerning the Bowen matter or anything
else mentioned in the quotation above. In fact the only
warning notice in Pamplin's personnel file, according to
Rhodes' testimony, was one for excessive absenteeism.
There was testimony as to Pamplin's shortcomings during
his 7-year term of employment, but Dixie put up with him
despite them, and as Pamplin and Rhodes were friendly,
Rhodes' comments to Pamplin about his behavior appeared
to have been more in the nature of friendly advice than of
official warning. Pamplin was a good worker and
performed an important function as a knife sharpener.
CONCLUSIONS
The entire record showed Dixie's deep hostility toward
the Union. Upon the preponderance of the evidence in the
entire record considered as a whole I believe and hold that
Dixie discharged Pamplin because of his union activities
and to discourage other employees from supporting the
Union. When he learned about the union campaign
Superintendent Rhodes seized upon Pamplin's easy way
among the employees and his strong desire for a raise by
promising him a raise if he would inform on the Union.
When Pamplin later turned on Respondent and started
organizing for the Union because he didn't get the raise,
Dixie sensed in him a strong antagonist. Dixie was so
interested in Pamplin's efforts to sign up employees that the
chairman of the board asked the foreman of the cleanup
crew what he knew about it; and 5 days before the
discharge Woosley evicted Pamplin from the plant area and
threatened to fire him for signing up employees into the
Union contrary to the "law" or the "rules." 4 Three days
before the discharge Foreman Bates told an employee he
might get rid of Pamplin for passing out union cards.
Admitting to an employee that Dixie wanted "to get rid of"
Pamplin, Foreman Bates seized upon a vulgar expression
uttered by Pamplin in the presence of an 18-year-old
married female employee as a vehicle to carry out Dixie's
desire. Although vulgarity is not to be condoned and the
Board does not condone it, there was plenty of it in the
plant to the knowledge of management and no one had ever
before been discharged for it. Against her will the foreman
took the 18-year-old employee to the office where she was
subjected for 30 minutes to the interrogation of the head of
the business with all the authority of the chairman of the
board, and of the plant superintendent, under which
circumstances she signed a statement written for her by
Woosley. Insofar as the record showed this was the only
such episode participated in by the chairman of the board,
who testified that less than one-tenth of 1 percent of
employee complaints get to him for action. The decision to
discharge Pamplin was then made without first giving him
an opportunity to deny or explain the allegations against
him. Upon all the evidence I hold that Dixie seized upon
the Williams' incident as a pretext to rid itself of a turncoat
prounion antagonist, in order to discourage further
4 The record contained no proof of any no-solicitation rule by Dixie
and no proof that any such rule was lawful if it existed The settlement
notice provided that Respondent "will not prohibit our employees, during
nonworking time, from soliciting their fellow employees to join or support
the above-named Union, or any other union "
701
employee support for the Union, Dixie thereby violating
Section 8(a)(3) and (1) of the Act.5
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
As Respondent, Ocoma Foods Company, did not
commit the violations found above, the question arises as to
its responsibility to mitigate the effects of Dixie's unfair
labor practices and to restore to employees the free exercise
of their rights guaranteed by the Act. As has been seen
above, Consolidated Food Corporation took over from
Dixie all of Dixie' s assets in exchange for common stock of
Consolidated; and thereafter Consolidated's wholly owned
subsidiary, Respondent, has operated the plant. Beyond
question Respondent took over operation of the plant with
notice of Dixie's unfair labor practices, for these were
committed by the plant superintendent, Rhodes, who
served in that capacity for Dixie and continued in that
capacity with Respondent; and by W. B. Woosley,
chairman of the board of directors of Dixie and an advisor
and consultant to Respondent. The record does not reflect
whether Dixie is still in existence as a corporation, but in
any case Dixie has no assets.
Superintendent Rhodes testified that at the time of the
hearing Respondent employed at the plant approximately
350 to 360 employees; and that during Pamplin's 7 years of
employment Dixie employed at the plant approximately
250 employees, including service people such as knife
sharpeners and packing department employees and mainte-
nance employees. As it is the same business now as then
Respondent now employs knife sharpeners who perform
the function Pamplin was performing for some 8 months
prior to his discharge. The parties stipulated that since June
3, 1969, the takeover date, Respondent has "been in charge
of the . . plant . . . and has carried on the . . . plant as a
going concern." In the light of the entire record, and in the
absence of any suggestion to the contrary, I conclude that
Respondent retained the approximately 250 employees of
Dixie when it took over the plant, and has added to the
existing complement of employees.
As Dixie has no assets, as Respondent took over the plant
and business with no interruption, retaining the same
employees, and as those who committed the unfair labor
practices, particularly Rhodes, are still in high position with
Respondent and therefore Respondent took over the plant
with knowledge of the unfair labor practices, it seems
5 This conclusion is not altered by the fact that at the termination
interview Pamplin signed. at the invitation of Rhodes. a paper giving the
reason for the termination as "misconduct connected with other
employees "
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
impelling to me that mitigation of the effects of the unfair
labor practices and restoration of the free exercise of
Section 7 rights requires that Respondent should not only
reinstate Pamplin with backpay but should also post an
appropriate notice.6
Accordingly, Respondent will be required to offer Jerry
Pamplin reinstatement to his former or substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and to make him whole for any
loss of pay suffered by reason of the discrimination by
paying to him a sum of money equivalent to the amount he
normally would have earned as wages from the date of his
discharge, April 11, 1969, to the date of the offer of
reinstatement, less his net earnings during such period. The
backpay shall be computed on a quarterly basis in the
manner prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289, with interest thereon at 6 percent
as ascertained by the formula adopted in Isis Plumbing &
Heating Co., 138 NLRB 716.
As provided in the Woolworth case, I recommend further
that Respondent make available to the Board, upon
request, payroll and other records in order to facilitate the
checking of the amounts of backpay due.
Upon the basis of the foregoing findings of fact and the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
earnings suffered by reason of the discrimination against
him.
(b) Notify Jerry Pamplin if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Recommended Order.
(d) Post at its poultry processing plant in Shelbyville,
Tennessee, the attached notice marked "Appendix." 7
Copies of said notice, on forms provided by the Regional
Director for Region 26, after being duly signed by
Respondent's authorized representative, shall be posted by
it 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.
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have been
taken to comply herewith .8
1. Ocoma Foods Company, of Shelbyville, Tennessee, is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Retail , Wholesale , Department Store Union,
AFL-CIO , is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discriminatorily discharging Jerry Pamplin on
April 11, 1969, because of his union activities, and to
discourage further employee support for the Union, Dixie
Home Corporation violated Section 8(a)(3) and ( 1) of the
Act.
4. On June 3 , 1969, Respondent took over the plant,
assets, and business of Dixie Home Corporation , and has
since that time run the business and operated the plant.
5. The aforesaid labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and in order to mitigate the effects of
Dixie Home Corporation's unfair labor practices and to
restore to employees the free exercise of their rights
guaranteed by the Act, I recommend that.Ocoma Foods
Company, of Shelbyville, Tennessee, its officers, agents,
successors, and assigns, shall take the following affirmative
action, which I find will effectuate the policies of the Act:
(a) Offer to Jerry Pamplin reinstatement to his former or
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole
in the manner prescribed in the portion of the Trial
Examiner's Decision entitled "The Remedy" for any loss of
6 Cf. Perma Vinyl Corporation, 164 NLRB 968 , enfd. 397 F.2d 544 (C.A.
5); Thomas Engine Corporation, 179 NLRB No. 165.
r In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and Recommended Order herein
shall, as provided in Section 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 . In the event
that the Board 's 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
8 In the event that this Recommended Order is adopted by the Board
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer to Jerry Pamplin immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority and other
rights and privileges previously enjoyed, in accordance
with the recommendations of the Trial Examiner's
Decision.
WE WILL notify Jerry Pamplin if presently serving in
the Armed Forces of the United States of his right to
full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
OCOMA FOODS COMPANY 703
WE WILL make whole Jerry Pamplin for any loss of
pay suffered by him by reason of the discrimination
practiced against him , in accordance with the recom-
mendations of the Trial Examiner 's Decision.
OCOMA FOODS COMPANY
(Employer)
Dated By
(Representative) (Title)
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY
ANYONE.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions , may be directed to the Board's Office, 746
Federal Office Building, 167 North Main Street , Memphis,
Tennessee 38103, Telephone 901-534-3161.