Rudy Patrick Co.

National Labor Relations Board - Board Decisions

Jun 27, 1973

204 N.L.R.B. 564 (N.L.R.B. 1973)

564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rudy Patrick Company and Truck Drivers & Helpers
Local Union No . 728. Case 10-CA-9657
June 27, 1973
DECISION AND ORDER
By MEMBERS FANNING, KENNEDY, AND PENELLO
On March 13, 1973, Administrative Law Judge
Maurice S. Bush issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record I and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as corrected herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as corrected
and hereby orders that Respondent, Rudy Patrick
Company, Atlanta, Georgia, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order as so corrected:
The Administrative Law Judge inadvertently omit-
ted from that part of his Decision entitled "Order" the
paragraphs dealing with Respondent's affirmative ac-
tion necessary to effectuate the policies of the Act.
Insert the following as paragraphs (a) and (b) in said
recommended Order and reletter the remaining para-
graphs accordingly:
i Respondent's request for oral argument is hereby denied , as the record
and brief adequately present the issues and positions of the parties
2 Respondent only excepted to the Administrative Law Judge 's findings
that its discharges of four employees violated Sec 8(a)(3). In the absence of
exceptions thereto, we adopt pro forma thPitdministrative Law Judge's con.
clusions that Respondent independently violated Sec . 8(a)(1) and violated
Sec. 8(a)(4)
We note and correct the following minor error in that section of the
Administrative Law Judge 's decision entitled "Conclusions" which in no way
affects the result of this case . The Administrative Law Judge incorrectly
stated that Elliot was employed for 16 months rather than 3 months
In affirming the Administrative Law Judge 's 8(a)(3) findings we do not rely
on his findings that Blackstock 's having higher seniority than Wood, a driver
who was not discharged , shows that Respondent was illegally motivated in
discharging Blackstock, and we disavow his findings that Respondent 's rein-
statement offer made to Elliott and McCrackin was an admission of their
discriminatory discharge
"(a) Offer John Blackstock and Mitchell White im-
mediate, full, and unconditional reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights, and make them
whole for any pay losses which they may have suf-
fered by reason of the discrimination practiced
against them in the manner set forth within this Deci-
sion.
"(b) Make James Elliott, Sr., and Robert McCrac-
kin whole for any pay losses which they may have
suffered by reason of the discrimination practiced
against them in the manner set forth within this Deci-
sion."
DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH , Administrative Law Judge: The above-
named Respondent Company is engaged in the warehous-
ing and sale of seed products at Atlanta, Georgia, among
other locations, but its Atlanta location is the only such
plant here involved. In the early part of June 1972, the
Company became aware of union activities among its eight
warehouse and truckdriver employees at the Atlanta ware-
house. Under date of June 19, 1972, the above-named
Union by telegram notified the Company that a majority of
its Atlanta employees were serving on an "in-plant organiz-
ing committee" and warned the Company against any viola-
tions of the employees' rights under Section 7 of the
National Labor Relations Act. On June 20, 1972, the Com-
pany laid off one of its truckdrivers, John Blackstock, and
on June 23, 1972, laid off two other truckdrivers, Mitchell
White and James Elliott, Sr., and one warehouse laborer,
Robert McCrackin, all of whom are alleged discriminatees.
Under the above skeletonized but undisputed facts, there
are essentially four categories of issues in this proceeding.
The first is whether prior to the above-noted layoffs the
Company engaged in various independent violations of Sec-
tion 8(a)(1) of the Act (1) by unlawful interrogations into the
union activities of its employees, (2) by directing an employ-
ee to get back his union authorization card, (3) by prohib-
iting employees from talking abdut the Union at any time
at the plant, (4) by threatening its employees that those who
did not sign union authorization cards would receive priori-
ty in wage increases , (5) by threats of discharge or layoffs
for union activities, and (6) by threatening its employees
that it would close its plant or move if the Union got in.'
The second category of issues involves the question of
whether the Respondent discriminatorily discharged or laid
off the four above-named employees in violation of Section
8(a)(3) and (1) of the Act.
The third category of issues involves the question of
whether the Respondent is in violation of Section 8(a)(4)
and (1) because of its alleged refusal to reinstate the afore-
1 The above alleged violation was not pleaded in the complaint , but testi-
mony thereon was received in evidence without objection and accordingly
tried by consent. Monroe Feed Stores, 112 NLRB 1336
204 NLRB No. 98
RUDY PATRICK CO. 565
mentioned Robert McCrackin because he filed an unfair
labor practice charge against the Respondent.
The fourth and final category of issues involves the ques-
tion of whether the Union represented a majority of the
employees in the stipulated appropriate unit at
Respondent 's plant at the time it made its telegraphic repre-
sentation to that effect to the Respondent . An incidental
issue to this broader issue is whether an office employee,
Louise O'Neal, who spends only about 10 percent of her
time filling small seed orders in the warehouse , and ware-
house employee Edward Bailey , claimed by Respondent to
be a supervisor , should be included in the stipulated unit of
"truckdrivers , warehousemen , forklift operators and all pro-
duction and maintenance employees excluding all office
clerical employees . . . supervisors. . .."
The complaint herein was issued on August 10, 1972,
pursuant to a charge filed on June 28, 1972, an amended
charge filed on July 20, 1972, and a second amended charge
filed on August 7, 1972, with copies of the original and
amended charges duly served on Respondent. The
Company's answer denies the alleged unfair labor practices
and affirmatively alleges that the above-named dischargees
were discharged "for cause and economic reasons."
For reasons hereinafter indicated , the Respondent will be
found in violation of the Act as alleged in the complaint.
Upon the entire record in the case and from my observa-
tion of the witnesses , I make the following:
FINDINGS OF FACT
I JURISDICTIONAL FINDINGS
Respondent Rudy Patrick Company, a Delaware corpo-
ration , is engaged in the warehousing and wholesale sale of
seed products at its place of business and office in Atlanta,
Georgia. Although the Company maintains similar ware-
houses and sales offices at other locations, the only such
facility here involved is its Atlanta warehouse and office.
During the past calendar year, a representative period, the
Company purchased and received products valued in excess
of $50,000 directly from suppliers located outside the State
of Georgia and by reason thereof, as admitted, the Respon-
dent is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Georgia and Mississippi under General Manager Jim Burns
Ford, none of which have ever been operated under collec-
tive-bargaining agreements. Each plant has a plant manager
who in turn reports to Ford who works out of the
Respondent's plant at Columbus, Mississippi.
By stipulation it is established that Respondent's Atlanta
plant has an appropriate unit for purposes of collective
bargaining consisting of all its truckdrivers, warehousemen,
and forklift operators, but excluding all office clerical em-
ployees, professional employees, supervisors, and guards as
defined in the Act.
On June 19, 1972, at 12:42 p.m., the Charging Party,
Local Union No. 728, sent a telegraphic notice to
Respondent's Atlanta plant manager, Jerry Malcom, that
"a majority of your employees have of their own free will
and choice volunteered to be active on the Teamsters Local
No. 728...." It is stipulated, however, that Local No. 728
has never made demand for recognition upon the Respon-
dent. I am informed that this is the reason the complaint
does not allege a Section 8(a)(5) violation. Nevertheless,
counsel for General Counsel seeks an 8(a)(5)-type remedy
herein on the ground that "Respondent's unfair labor prac-
tices had the tendency to undermine the Union's majority
strength and made the holding of free election impossible."
It is an admitted fact that oral notice of General Counsel's
intention to request an 8(a)(5) remedy was given to counsel
for Respondent some 6 weeks prior to the hearing of this
proceeding. Because of this early notice, Respondent does
not claim that its preparation for trial was prejudiced by
General Counsel's oral request at the trial for an 8(a)(5)
remedy.
At the date of the Union's wire to the Respondent, the
Company had in its employment at the Atlanta plant four
warehouse employees and four truckdrivers. There is a dis-
pute as to whether one of the four warehouse employees, the
aforementioned Edward Bailey, should be included in the
stipulated appropriate unit. General Counsel contends that
he is not a supervisor and therefore includable in the unit.
Respondent contends that he is a supervisor and according-
ly not includable in the unit.
The facts with respect to Bailey, a black man commonly
referred to as "Biggun" because of his weight of approxi-
mately 300 pounds, are these. Although no longer employed
by the Company,3 at the times here involved Bailey had
worked for the Company for 7 years and had the greatest
seniority as a warehouse employee. He was carried on the
The Charging Party, Truck Drivers and Helpers Local
Union No.728, is a labor organization within the meaning
of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background, Stipulated Appropriate Unit, Eligibility for
Inclusion of Employees Bailey and O'Neal in Unit, and
Majority Support for Union
Respondent's wholesale seed plant at Atlanta , here in-
volved, is one of five such facilities it operated at the times
here pertinent2 at various towns in a management unit in
2 The "times here pertinent" relate to certain dates within the month of
June 1972 on which the complaint alleges that the Respondent committed
various violations of Sec 8(a)(1), and (3) and (4) of the Act. As of July 1,
1972, Rudy Patrick merged into Northrup King Company, a major national
seed company of Minneapolis , Minnesota , and thereafter the former Rudy
Patrick Company became known as the Sawan Seed Division of Northrup
King, a trade name (Sawan) under which Rudy Patrick Company also had
been known since 1957, when the Patrick firm appears to have absorbed
Sawan Incorporated by merger Counsel for General Counsel gave careful
consideration to my suggestion that the complaint be amended to show
Northrup King as the successor-owner of Respondent Rudy Patrick Compa-
ny, but concluded not to seek the amendment because if an order were issued
herein it would not only extend to the Rudy Patrick Company but would also
routinely extend to "its successors and assigns."
3 Bailey was discharged in early July 1972, but is not here involved as an
alleged discrimmatee under the complaint
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
books of Respondent as a "foreman" and received an hour-
ly wage of $2.50 as against $2 for the next most senior
warehouse employee and $ 1.75 for all other warehouse em-
ployees . Although Bailey denied that he was a foreman or
had supervisory authority, the record as a whole leaves no
doubt that during the course of his employment he told
other employees what work to perform, occasionally hired
additional warehouse laborers as needed when his superior
was away, had the authority to recommend the hiring and
firing of warehouse personnel , and that his recommenda-
tions were generally followed by his superiors. The credited
testimony of Gay Guthrie, warehouse superintendent and
Bailey 's immediate superior , establishes that Bailey on one
occasion "on his own" fired a warehouse employee because
he refused to take orders from him.
From all the evidence of record , I find that Bailey at all
times here material was a supervisor within the meaning of
the Act and accordingly not a member of the stipulated
bargaining unit which expressly excludes supervisors from
the unit.
Another questionable member of the bargaining unit is
Louise O'Neal who did not testify in this proceeding. The
record shows that O'Neal is in charge of all the office work
in the Atlanta office and is also personal secretary to Plant
Manager Jerry Malcom. The testimony of Assistant Plant
Manager Ralph Waters shows that "sometimes she [Louise]
might go out in the warehouse and get up an order , garden
seed or something , if all of them [warehouse employees]
were busy ." Based on the time O'Neal spends getting up
orders in the plant, estimated by the plant manager to be
approximately 10 percent of her worktime , the Respondent
contends that O'Neal should be found to be a member of
the bargaining unit.
I find that the limited and sporadic time that O'Neal
spends getting up small orders in the warehouse is too insig-
nificant to give her a "substantial community of interest"
with other members of the bargaining unit of full-time ware-
house laborers and truckdrivers. Sullivan Mining Company,
101 NLRB 1366. Accordingly, I find O'Neal not entitled to
be included in the stipulated bargaining unit.
With the exclusion of Bailey and O'Neal from the bar-
gaining unit , the Company had in its employment three
warehousemen and four truckdrivers at its Atlanta plant on
June 19, 1972, when as aforenoted the Union wired the
Company that "a majority of your employees have of their
own free will and choice volunteered to be active on the
Teamsters Local No. 728...." These seven employees
constituted the entire membership of the stipulated appro-
priate unit at the time of the Union's wire. It is undisputed,
the record shows , that at the time of the Union's telegram
to the Company, the Union had in its possession valid union
representation authorization cards from six of the seven
employees in the unit. I accordingly find that the Union had
cards from the majority of the employees in the unit at the
time of its wire to the Company. The only employee in the
unit who did not give the Union an authorization card to
represent him was Byron Wood, an over-the-road truck-
driver who declined to give the Union a card. On the basis
of these evidentiary findings , I find and conclude that on the
date of the Union's wire of June 19, 1972, the Union was
the exclusive representative for collective -bargaining pur-
poses of Respondent's employees in the stipulated appropri-
ate unit.
Following the Union's telegram of June 19, the Company
terminated truckdriver Blackstock on June 20 and truckdri-
vers Elliott and White and warehouseman McCrackin on
June 23, the alleged discnminatees herein.
B. Alleged Independent Violations of Section 8(a)(1)
The complaint sets forth numerous allegations of inde-
pendent 8 (a)(1) violations which are denied in Respondent's
answer.
None of the testimony offered by counsel for General
Counsel in proof of these alleged independent 8(a)(1) viola-
tions was denied or contradicted by Respondent.
The record shows that efforts to organize Respondent's
Atlanta plant were initiated by truckdrivers Elliott and
Blackstock in May 1972. Blackstock contacted Local No.
728's office and obtained a supply of union representation
authorization cards. Thereafter, between the two of them,
they spoke to and sought the support of all of the employees
in the unit for the Union. They obtained signed cards from
all of the employees they believed belonged in the unit
including warehousemen Bailey (found above to be a super-
visor) except for truckdriver Wood who as aforenoted de-
clined to sign a card. They received a total of six countable
valid cards out of the seven employees in the stipulated
bargaining unit: these are the figures found above in anoth-
er connection. Elliott's card bears the date of May 30, 1972;
the other cards were signed between June 14 and 19, 1972.
Bailey's card, invalid because of his supervisory status, was
signed on June 17, 1972.
Plant Manager Malcom got early wind of the union activ-
ity at the plant. The credited and undenied testimony of
Elliott shows that Malcom on or about June 5, 1972, looked
him up in the warehouse and asked him, "James, do you
know what's going on?" When Elliott professed ignorance,
Malcom asked him how he felt about the Union. Elliott
replied that he was a 100-percent union man. Later that
same day Malcom called Elliott into his office and again
asked him how he felt about a union and received the same
reply. The credited and undenied testimony of Elliott shows
that Malcom's reply to Elliott's comment that he was a
"100% Union man" was, "Well, I can't stop you from sign-
ing the Union cards, but the ones that don't sign a Union
card . . . will get the priority of raises over the man who
does." Some 2 or 3 days later Elliott telephoned Malcom at
his home to complain about a work assignment . Elliott's
credited and undenied testimony shows that Malcom re-
plied that he "couldn't work a man that paid attention to
a Union man instead of him."
The undenied and undisputed testimony of discharged
truckdriver White shows that on June 22, 1972, Malcom
called White and Elliott into his office and there in the
presence of all the supervisors except Bailey asked White
and Elliott what their "kick with the Company" was. White
complained that he was not being paid enough for his work.
Malcom thereupon made reference to and read to White
and Elliott the aforementioned telegram the Union had sent
him under date of June 19, 1972.
The undenied and undisputed testimony of Foreman Bai-
RUDY PATRICK CO.
ley shows that on or about the date of the Union's same
telegram Malcom called him and three other warehouse
employees , Robert McCrackin , Donald Cummings, and
Larry Tramplin , into Malcom 's office where , in the presence
of Assistant Manager Waters and Warehouse Superinten-
dent Guthrie , Malcom addressed the four warehouse em-
ployees on the subject of the Union as follows . Malcom told
the four employees that he had received the Union's wire
and was aware of the union talk around the plant and then
flatly told the employees that the Company could not afford
to pay union wages . He further told the men that if the
Union got in the Company would have to close down or
perhaps just go out of business . He then asked them why
they wanted a union . Cummings alone replied indirectly
that he was tired of working for the Company at only a little
more per hour than the wage he received when he began his
employment with the Company some 3 or 4 years ago.
Malcom next asked each of the four employees individually
if they wanted the Union . All said they would forget about
the Union except for McCracken . He stated he would
"stick" with the Union.
The undenied , undisputed , and credited testimony of Bai-
ley shows that the next day, June 20, 1972, Malcom, who
had learned that Bailey had signed a union card, asked
Bailey why he had signed up, stating that he did not think
that Bailey "would do me that way." After learning that
Bailey had received his card from Blackstock , Malcom or-
dered Bailey to get his card back . Bailey attempted to get
his card back from Blackstock, who was fired an hour or so
later, but was unable to do so because the card had already
been turned in to the Union . When Bailey passed this infor-
mation on to Malcom , he was told by Malcom , "Okay,
don't be talking about no more Union ." This testimony by
Bailey was corroborated by former employees McCrackin
and Elliott who were present when Malcom ordered Bailey
to get his card back . Elliott's undenied and undisputed testi-
mony adds an important fact overlooked by Bailey. Accord-
ing to Elliott 's credited testimony , Malcom when he heard
that Bailey had got his card from Blackstock , said , "Black-
stock is an instigator to the whole thing."
The undenied and undisputed testimony of Bailey further
shows that at a subsequent time Malcom advised him to tell
the men in the unit that if they kept insisting upon having
a union they would lose their jobs. Bailey passed the mes-
sage around for the men to keep their mouths shut about the
Union "until the time comes."
Similarly , the record shows that Warehouse Superinten-
dent Guthrie, like his superior, Malcom , also engaged in
interrogations of the employees at the plant on their union
activities.
The undenied and undisputed testimony of aforemen-
tioned truckdriver Elliott shows that on June 20 , 1972, just
prior to his layoff of June 23 , Guthrie called him aside and
interrogated him on the identities of the employees who had
signed union cards.
The undenied and undisputed testimony of former ware-
house employee Donald Cummings shows that on June 15,
1972, Guthrie twice asked him if he had signed a union card.
Finally the undenied and undisputed testimony of dis-
charged warehouseman McCracken shows that Guthrie on
June 19 , 1972, also asked him if he had signed a card to
which McCrackin replied , "Yes."
Conclusions
567
From the undisputed and undenied testimony set forth
above which I fully credit , I find and conclude that the
Respondent has engaged in numerous unfair labor practices
in independent violations of Section 8(a)(1) of the Act as
alleged in the complaint.
C. Alleged Unlawful Terminations
The Union as shown above notified the Respondent by
its June 19, 1972, telegram that a majority of their employ-
ees had volunteered to be active on the Union's in-plant
organizing committee . On June 20 , the Company dis-
charged truckdriver Blackstock and on June 23 discharged
truckdriver Elliott , the two employees in the unit who had
spearheaded the movement to organize the plant . On June
23, the Company also laid off or discharged truckdriver
Mitchell White and warehouse laborer McCrackin . In each
case , except Blackstock 's, the Company's only stated reason
for the layoff or discharge was "lack of work." In
Blackstock's case , the stated reason for his discharge was
lack of work and an alleged agreement that his employment
was to continue only until June 1972. At the trial, Respon-
dent sought to show that there were also additional reasons
for the layoffs.
On August 14, 1973, the Company by wire offered Elliott
and McCrackin "immediate reinstatement with backpay
minus interim earnings" which they declined.
As the Respondent 's above-noted independent violations
of Section 8(a)(1) of the Act are necessarily interrelated to
the discharges here under consideration , they will require
some reiteration below.
The Union's success in obtaining the majority support of
the bargaining unit was primarily due to employee dissatis-
faction with the company policy of not granting significant
periodic pay raises. When asked by Plant Manager Malcom
why he had signed a union card , long-time warehouse em-
ployee Cummings replied as aforenoted, ". . . after working
there for 4 years and making $2 an hour, I felt that I was
being mistreated and [should ] be making more than that "
Similarly , discharged truckdriver White, when asked by
Malcom what "kick" he had against the Company, com-
plained that he "needed . . . more money for the job" he
felt he was doing.
The Company, on the other hand, as the undisputed and
uncontradicted testimony shows, opposed the Union on the
stated ground that it could not afford to pay union wages
and even threatened to close its plant down or go out of
business if the Union got in.
The following are the pertinent facts with respect to the
layoff or discharge of James Elliott , Sr. Elliott was hired as
a truckdriver in February 1971, and was laid off by Plant
Manager Malcom on June 23 , 1972, for the alleged reason
of lack of work. As shown above, Elliott and truckdriver
Blackstock were the instigators of the drive to organize the
bargaining unit at Respondent's Atlanta plant . Elliott was
the first of the employees to sign a union authorization card.
His card bears the date of May 30, 1972.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Malcom, having somehow received early word of Elliott's
union activity, questioned Elliott as early as June 5, 1972,
as to "what's going on" and further questioned him as to
how he felt about the Union, to which Elliott forthrightly
replied that he was a 100-percent union man. Later that
same day when Malcom was again questioning Elliott and
was again told by Elliott that he was a 100-percent union
man, Malcom told him , "... I can 't stop you from signing
the Union cards, but the ones that don't sign a Union card
... will get priority of raises over the man who does."
Some 2 or 3 days later, Malcom turned aside a complaint
Elliott had about a work assignment with the remark that
he "couldn't work a man that paid attention to a Union man
instead of him."
On the day before his layoff, Malcom called Elliott into
his office where he read to him the telegram he had received
from the Union and during the course of the conversation
asked Elliott what his beef was against the Company to
which Elliott replied that he had no beef against the Compa-
ny or Malcom except that he "just need[ed] more money for
what I am doing."
The following day, June 23, Malcom told Elliott that he
was being laid off because of instructions Malcom had re-
ceived from General Manager Jim Ford to lay off three or
four employees for lack of work.
At the trial, Respondent claimed that a further reason for
Elliott's layoff was that he "was caught reading a confiden-
tial telegram on [Warehouse Superintendent] Guthrie's
desk." This so-called confidential telegram was the afore-
mentioned notice the Union had sent Malcom under the
date of June 19, 1972, that it represented a majority of the
employees in the unit. I find that the telegram was not
confidential in any true sense of the word in that Elliott was
one of the two ringleaders who by their successful efforts to
get all but one of the employees in the unit signed up on
union authorization cards laid the groundwork for the
Union's telegram to the Company. The record shows by
Elliott's direct and credited testimony that, on June 19 prior
to 4:30 p.m., he picked up the telegram in Guthrie's pres-
ence from Guthrie's desk and started to read it when Guth-
rie reached out and grabbed it from his hand. As Elliott
picked up the telegram in Guthrie's presence, I find that
there was nothing sinister or furtive in Elliott's act as im-
plied in Respondent's description that Elliott "was caught
reading a confidential telegram."
In the 16 months that Elliott worked for the Company
prior to his layoff, he had never received any reprimands or
warnings on his work and had never had any accidents in
connection with his work as a truckdriver for the Company.
As heretofore noted, the Company under date of August
14, 1972, offered Elliott immediate and unconditional rein-
statement to his job with backpay minus interim earnings.
He was again offered reemployment on August 25, 1972,
but this time without mention of backpay.
The pertinent facts with respect to the layoff or discharge
of John Blackstock and the inferences and conclusions to
be drawn therefrom are more complicated. He was hired as
an over-the-road driver in January 1971 and terminated on
June 20, 1972. At the time of his termination, he had the
greatest seniority of service. It is again noted that with El-
liott, he was a coinstigator of the union activity at
Respondent's Atlanta plant . Blackstock was the one who
contacted the Union and obtained from it a supply of blank
union authorization cards. He succeeded in getting signed
cards from all the employees in the unit he contacted except
driver Byron Wood.
As shown above, on June 20, prior to Blackstock's layoff
later that day, Plant Manager Malcom learned from Fore-
man Bailey that Blackstock had been the employee who had
gotten a union authorization card from him. Thereupon
Malcom declared to Bailey in the presence of Elliott that
Blackstock was the "instigator of the whole thing," a mean-
ing the union activity at the plant . Malcom asked Bailey to
get his card back from Blackstock, but when Bailey sought
to get it back Blackstock told him that he had already
turned the card into the Union. Bailey passed this informa-
tion on to Malcom.
All of the above occurred at around noontime of the
aforementioned June 20 as Blackstock was in the process of
filling out his driver's daily log. When he turned the log in,
he asked if there was to be any more work that afternoon
and was told there was none , but would probably be the
next day. Following normal authorized procedure, he
turned his tractor back over to the company from which it
was leased and went home.
At around 12:30 that noon (June 20), Malcom telephoned
Blackstock at his home that he was being laid off for lack
of work and also because of a claimed agreement they had
in January of that year that Blackstock 's employment was
to end in June . Incredulous, Blackstock asked if others were
also being laid off and received the reply, "Quite a few." He
also asked if Byron Wood, the next to the most junior driver
(who had refused to sign a union card ), was also laid off.
Malcom said, "No."
On or about June 22, 1972, the Respondent under
Malcom 's signature gave Blackstock a formal "separation
notice," marked ("Except for Lack of Work Only"), on a
printed form supplied by the Georgia Department of Labor,
Employment Security Agency. The third numbered para-
graph of the form states:
Explain below why the employee quit or was dis-
charged. Avoid use of general terms like "Insubordina-
tion," "Violation of company rules," "Absenteeism,"
or "Quit." Describe the act or acts of subordination,
tell what rule was violated, state how often absent, or
reason for quitting if know. .
Under the fourth paragraph of the "separation notice,"
Malcom stated that Blackstock had been "discharged" be-
cause:
Employer and employee had a working agreement un-
til June. Employee was laid off because of lack of work.
The following is the genesis of Respondent's asserted
"working agreement until June " with Blackstock . It is un-
disputed that in January 1972 as a result of something that
happened at work Blackstock attempted to give Malcom 2
weeks' notice that he was quitting. Malcom testified that he
told Blackstock to either quit right there and then or agree
to stay on until June as he did not want to make a change
of drivers at that time. Blackstock did not quit but stayed
As heretofore shown , Elliott's undemed , undisputed , and credited testi-
mony shows that Malcom made the above declaration to Bailey
RUDY PATRICK CO. 569
on until he was discharged on June 20 . From this incident
in January and the fact that Blackstock stayed on the job,
Respondent seeks to spell out a preagreement that
Blackstock 's employment would come to an end in June
1972. Blackstock denies that there was any such agreement
between him and Malcom . I credit his denial.
From the facts set forth in the above paragraph, I find
that there was no agreement between Blackstock and Mal-
com that Blackstock 's term of employment would virtually
automatically come to an end in June 1972, but only at most
an agreement by Blackstock that he would stay on with the
Company at least until sometime in June 1972. Accordingly,
I find without further discussion that the asserted but non-
existing agreement that Blackstock 's term of employment
was to end in June could not have been and was not a bona
fide reason for his discharge on June 20, 1972.
Similarly I find that Respondent 's contention that Black-
stock was terminated because of lack of work also does not
hold up because at the time of Blackstock 's discharge there
was obviously enough work for at least one truckdriver as
the Respondent retained in its employment Byron Wood
who had the next to the last seniority of any of the three
drivers Malcom discharged in the week of June 19, 1972,
that is , Blackstock , and Elliott and White , the other alleged
driver discriminatees.
But aside from the fact that Respondent could have re-
tained the most senior Blackstock instead of Wood as the
Company obviously had at least work for one driver, I will
give separate consideration below to the question of wheth-
er the Respondent in fact had the general lack of work it
claims as primary justification for the four layoffs or dis-
charges here involved.
The Company also asserts a number of other "for cause"
business reasons for Blackstock 's discharge aside from lack
of work . The most serious of these is that Malcom suspected
Blackstock of theft of grass seed from the Company which
he offered for sale to one of Respondent's customers at
Alamo , Georgia , at substantially less than regular wholesale
price. Blackstock admits that while driving for the Rudy
Patrick Company he did not have the right to engage in the
sale of seeds on the side on his own account . Blackstock
made a delivery of millet seed on June 5, 1972, to a ferterliz-
er and seed firm, Kaiser Agriculture Chemical, at Alamo.
The credited testimony of Nina Walker, bookkeeper for
Kaiser, shows that during the course of his June 5 delivery
to Kaiser Blackstock made her an offer of 100 pounds of
Burmuda grass seed at $1 per pound as against the regular
price of $1.80 per pound. As Kaiser is a small firm and
Walker was alone at the time Blackstock offered her the
Burmuda seed, she relayed the offer by a two-way radio to
Hollis Johnson , manager of Kaiser , who rejected the offer
for the reason that "we would never dispose of that many
seed."
On June 15 or 16, 1972, Johnson telephoned
Respondent 's plant manager, Malcom , to place another
seed order with him. Johnson's credited testimony shows
that, during the course of placing the order, he asked Mal-
com "if he had any more Burmuda grass seed he wanted to
give away, that one of his drivers offered my secretary [Nina
Walker] a hundred pounds of seed for a hundred dollars the
last time they were through there." Malcom's reply was that
he heard of some seed "being offered cheaper than that."
Blackstock denies that he made an offer of Burmuda grass
seed to the Kaiser firm at Alamo in June 1971, but admits
making a delivery for Respondent to the firm at Alamo. His
denial is not credited. It is to be noted that, although Mal-
com had a report of Blackstock's offer of Burmuda grass
seed to the Alamo firm at a bargain price as early as June
15 or 16, he did not fire Blackstock until June 20, the day
he became convinced that Blackstock was the instigator of
the union activity at Respondent's Atlanta plant.
Respondent also advanced the other reasons for
Blackstock's discharge. Among these is that the week before
his discharge he was short 33 bags of seed corn, for which
he had given receipts to dealers, out of trailer load of about
600 such bags because he had not followed proscribed pro-
cedures for such pickups from dealers; that on June 13,
1972, he backed into electric and telephone wires of a
customer's place of business while making a delivery, there-
by causing damage in the amount of $42.90 to the customer
for repairs and some damage to the air hose of the truck
Blackstock was operating which he himself repaired without
cost to the Respondent; that in April 1972 while driving
Blackstock was negligent in not noting that the lugs on the
rear tires of his trailer were working loose with result that
the tires and the drum assembly which held the tires were
ruined, but in this connection Blackstock's credited testimo-
ny shows that he stopped his vehicle as soon as he became
aware that something was going wrong with the rear tires
and that it was the responsibility of the Company's mechan-
ic, not his, to see that Company-owned trailers were in
operable condition; that also in April 1972 Blackstock in
hitching a tractor onto a trailer backed into the trailer with
such force as to break one of its axles; that on December
23, 1971, Blackstock at the plant pointed the blade of a
pocketknife he habitually uses for whittling wood at former
employee Carl Bennett, because he was admonishing Black-
stock to stop his jostling with a young warehouse employee,
J. A. Trapp, with whom Blackstock was having a quarrel of
undescribed origin .5
Although the Respondent contends that Blackstock's
above-noted vehicular accidents constitute one of the rea-
sons it fired him, the record shows that the Company re-
tained in its employment driver Byron Wood who had
refused to sign a union card notwithstanding the far more
serious accident Wood had by trying to beat an oncoming
train across a railroad track which caused the Company
more than $200 in damages and could have resulted in
serious personal injuries or death to Wood and others.
The third or final driver to be laid off was Mitchell White.
He was hired on September 20, 1971, and laid off on June
23, 1972, for alleged lack of work. His layoff was by means
of a note he found on the windshield of his parked car after
he had returned from a delivery at Douglasville, Georgia.
The note read:
M. J. White, dated June 23rd, 1972. It was most unfor-
tunate today about the accident you had at Baggett's
in Douglasville. These accidents are quite expensive for
5 The above -described incidents constitute all of the alleged auxiliary rea-
sons worthy of note set forth in Respondent 's brief in justification for
Blackstock 's discharge
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
us, not to mention inconvenience to the customer. I
received a call today from Columbus advising that
Kansas City is demanding that we lay off all personnel
that we can possibly do without because of lack of
business. I had told you I would use you in the ware-
house, but find this is impossible because we also have
to lay off some of the warehouse help. In lieu of vaca-
tion, I will pay you through June. Jerry L. Malcom.
The accident referred to in the layoff note was caused by
White's accidental backing of a van truck into the doors of
the new warehouse of a customer during the course of a
delivery with resulting damage in the amount of $392.60.
Without further discussion, I find that White's faulty ma-
neuver in the tricky business of backing up a van truck at
a customer 's new and apparently unfamiliar premises was
far less serious that driver Wood's heretofore-mentioned
wanton negligence or unlawful conduct in trying to cross a
railroad track against an oncoming train for which he was
arrested. It will be recalled that Wood, the only one of the
four drivers who declined to sign a union authorization
card, was not discharged because of his truck-train accident
but on the contrary was the only driver retained by Respon-
dent after June 23, 1972.
In addition to the accident, the Respondent claims two
other auxiliary reasons (besides the primary lack of work
reason) for White's layoff or discharge. One of these is that
Plant Manager Malcom had complaints from several cus-
tomers in the spring of 1972 about discourteous and rude
conduct on the part of White in the course of his deliveries
to such customers. Malcom's testimony on these incidents,
some of which came to him secondhand from others in his
office, were vague, uncertain, and totally lacking in detail.
The other alleged reason for White's layoff or discharge
was that, when White on June 15, 1972, asked Malcom
whether he had plans to use him temporarily in the ware-
house when the seed season slackened, White allegedly told
Malcom that he would not accept reassignment to ware-
house duties unless driver Blackstock was also temporarily
assigned to the warehouse. The reason for White's concern
over whether Blackstock would also be assigned to ware-
house duties when business slowed down is that
Respondent's drivers were paid on a straight weekly basis
whether there was work for them or not and were privileged
to go home without loss of pay if they ran out of driving
assignments whereas warehouse employees are paid by the
hour and thus cannot go home before the full workday is
over without loss of pay for time not on duty at the ware-
house. I credit White's denial that he made his acceptance
of reassignment to warehouse duties which he obviously
wanted when work fell off for drivers conditional upon
Blackstock's also being reassigned to warehouse work under
the same conditions. At the time of the incident here under
consideration, the question of whether White would be reas-
signed to the warehouse when business slackened was pure-
ly academic because Malcom at that time was not in the
process of transferring driver White or any other drivers to
the warehouse.
Without further discussion I find that Respondent's auxi-
liary reasons as set forth above for White's layoff or dis-
charge are pretextual and without merit.
White signed a union card 6 days before his layoff. On
the day before his layoff, White and driver Elliott, as hereto-
fore shown , were summoned to Plant Manager Malcom's
office where Malcom , then in receipt of the Union 's tele-
gram claiming majority support, asked the two drivers what
their "kick" was against the Company. White expressed his
bitter dissatisfaction with what he regarded his low pay. He
was, as noted, laid off the next day by a note affixed to the
windshield of his car after he returned from an over-the-
road delivery.
The facts with respect to the layoff of Robert McCrackin
are brief. Unlike the other layoffs, who were drivers, Mc-
Crackin was employed by Respondent as a warehouse la-
borer, loading and unloading trucks. He is a young man in
his early twenties who started working for Respondent
about December 1969 when he was still in high school and
continued working for the Company as a college student at
Georgia State until he was laid off by Warehouse Superin-
tendent Guthrie on June 23, 1972, for the alleged reason of
lack of work. The record establishes that he worked as a
regular full -time employee during the summer and as a
regular part-time employee during the rest of the year while
attending school . As might be expected from his continued
employment by Respondent for more than 3 years, the rec-
ord shows that McCrackin had a good work record.
McCrackin 's union support was solicited by driver Black-
stock at around June 14, 1972. Thereafter, he attended two
or three union meetings . On June 19, he signed a union
authorization card. On that same day, he was asked by
Guthrie if he had signed a union card and truthfully replied,
"Yes." On that same day, McCrackin and three other em-
ployees , as heretofore noted , were summoned to Plant Man-
ager Malcom's office where they were individually asked by
Malcom if they wanted a union. McCrackin was the only
employee who said he would "stick" with the Union. All the
other employees said they would forget the Union, as this
was obviously the answer Malcom wanted.
Respondent assigns as an auxiliary reason for Mc-
Crackin 's layoff his alleged absence without permission on
the isolated dates of only May 19, June 6, and June 21, 1972,
for the over-3-year period he worked for the Company,
during which he had four distinct periods of employment.
Guthrie's testimony that McCrackin was absent without
permission on the indicated dates was not convincing and
is not credited. I credit McCrackin 's testimony that he usu-
ally called in when he could not make it to work. When
Guthrie laid McCracken off, the only reason he gave for the
layoff was lack of work.
It will be recalled that the Respondent on August 14,
1972, offered McCrackin "immediate reinstatement, with
backpay minus interim earnings ," at the same time that he
made the identical offer to driver Elliott. McCrackin was
again offered reinstatement on August 25, 1972, but this
time without mention of backpay.
D. Alleged 8(a)(4) Violation re McCrackin
Following his discharge of June 23, 1972, McCrackin on
July 5 called at Respondent's plant to pick up his final
paycheck. While at the plant the undisputed and credited
RUDY PATRICK CO. 571
testimony of McCrackin shows that Guthrie, his former
supervisor who had laid him off, told McCrackin that "they
were going to hire me back but, since you know, I had filed
suit with the Union, that he didn't think they would hire me
back." (Emphasis supplied.) The "filed suit" was a reference
by Guthrie to the original charge filed with the Board on
June 28, 1972, by the Union in behalf of McCracken against
his discriminatory termination of June 23, 1972.
Subsequent to its original charge, the Union filed its
amended charge of August 7, 1972, that the Respondent "on
July 5, 1972, and thereafter refused to reinstate Robert Mc-
Crackin, an employee because he has filed a charge and
given testimony to the National Labor Relations Board, all
in violation of Section 8(a)(4) of the Act." On the basis of
this amended charge the complaint herein contains allega-
tions of violations of Section 8(a)(4) of the Act.
Without further discussion, I find and conclude that
Guthrie's remark to McCrackin that he did not think the
Respondent would rehire him because he "had filed suit
with the Union," that is, had brought charges against the
Respondent through the Union with the Board, constitutes a
violation of Section 8(a)(4) of the Act. N.L.R.B. v. News
Syndicate Co., Inc., 279 F.2d 323, 334 (C.A. 2, 1959), affd.
365 U.S. 696 (1961).
E. Lack of Work Defense to Terminations
The Company's principal defense against the multiple
discriminatory discharge allegations of the complaint is that
it was compelled to discharge the four involved employees
because of "seasonal lack of work." "Lack of work" was the
sole stated reason given by Warehouse Superintendent
Guthrie to McCrackin for his layoff and by Plant Manager
Malcom to Elliott and White 6 for their layoffs. In the case
of Blackstock, Malcom told him that in addition to being
laid off for lack of work he was also being terminated be-
cause of their purported agreement of many months ago
that his term of employment would end in June. As it was
found above that there was in fact no such preagreement,
it follows that consideration need only be given here to
Respondent's lack-of-work reason for Blackstock's dis-
charge. (But as shown above, even if Respondent's sales had
significantly slackened at the time of Blackstock's layoff,
lack of work should not have caused his particular layoff
because at the time the Company terminated Blackstock it
retained in its employment the aforementioned driver, By-
ron Wood, who had less seniority than Blackstock.)
The best evidence of "seasonal lack of work" to justify the
four nearly simultaneous discharges would have been com-
parative profit-and-loss statements showing a precipitous
decline in sales in the Atlanta plant in late June 1972 when
the discharges took place, as compared with prior years when
no such -ass layoffs occurred.
6 In the layoff note Malcom placed on the windshield of White's car,
Malcom expressed displeasure with the accident White had had that day by
backing into doors of a customer 's warehouse but gave as his sole reason for
White's layoff a call received that day "from Columbus advising me that
Kansas City is demanding that we lay off all personnel that we can possibly
do without bec-use of lack of business"
Respondent presented no such evidence . Instead, at the
trial the Respondent relied principally on a three -page inter-
office mimeographed letter appeal dated March 30, 1972,
sent by President B. H. Melton of the Company's head-
quarter office in Kansas City to Plant Manager Malcom of
the Atlanta plant , among other such plants at other loca-
tions, on the subject of "Fourth Quarter Expenses" as justi-
fication for the discharge of the four involved employees. It
appears from the letter that the Company operates on a
fiscal year basis ending June 30 . The letter states, "The first
eight months of this year , due to crop failure in the Wash-
ington area and other causes have caused us to run behind
in our sales forecast as a Company almost $2 .5 million."
The letter adjured the plant managers to make every ef-
fort to increase sales and "concurrently" to keep expenses
down as much as possible , with major emphasis on econo-
mies in keeping tomporary help at a minimum . None of the
four dischargees here involved were temporary help. Jim
Burns Ford , the aforementioned regional general manager
of the Company 's plants in the southeastern States, includ-
ing the Atlanta plant , testified that , pursuant to President
Melton's directive , he talked to Malcom weekly to "keep the
business running, [with] as few [employees] as possible
...." Notwithstanding this, Ford's testimony shows that
from March 20, "because most our business was still in front
of us," the Atlanta plant did not lay off any employees in
March , April, or May, but on the contrary it increased from
time to time the number of employees at the plant as re-
quired by the fluctuating volume of its sales.
Ford's testimony further shows that with the normal de-
cline in Respondent's seasonal business beginning in May
there would be "a gradual downward flow" of the number
of employees on the payroll of the Atlanta plant. The record
shows that the Atlanta plant in June 1972 did not follow this
normal pattern of prior years or gradual reduction of em-
ployees on its payroll but that it precipitously discharged the
four employees here involved , virtually simultaneously, on
the heels of its telegraphic notice from the Union that it
represented a majority of its employees . As a result of the
mass discharges , the Atlanta plant on June 24 , 1972, had
only one nonsupervisory warehouse employee , Cummings,
and one nonsupervisory driver, Wood, who had refused to
sign a union card , as compared to six warehouse employees
and four drivers in the last week in June 1970 and four
warehouse employees and four drivers in the last week of
June 1971 . These differences cannot be accounted for by
any backwardness of seasonal planting weather as Ford's
testimony shows that the growing season of March through
June 1972 for the seed dealers served by the Atlanta plant
was normal.
President Melton's letter of March 20 , 1972, urged all
plant managers "to put airairtight lid on anything but abso-
lute emergency expenditures from here until July 1, 1972."
The four dischargees here involved were regular full-time
experienced employees , not "emergency" employees. The
record shows that Plant Manager Malcom had planned to
keep the three discharged drivers on temporarily as ware-
house employees during the brief slack between seasons so
that he could have a needed staff of experienced drivers on
hand as soon as the next season opened . Instead , the three
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers and one warehouse employee (McCrackin), known
vocal supporters of the Union, were discharged virtually en
masse almost simultaneously with the Company's receipt of
the Union 's telegraphic notice that it represented a majority
of the employees in the Atlantic plant . Moreover , the dis-
charges took place only about a week prior to President
Melton 's own let-up date of July 1, 1972 (i.e., the beginning
of a new fiscal year), on the requested curtailment of operat-
ing expenses wherever possible.
It is again noted that Respondent offered reinstatement
to Elliott and McCrackin on August 14, 1972, with backpay
from the date of their discharges on June 23, 1972.
Discussion and Conclusions re Discharges
From the above evidentiary findings, I find and conclude
that Respondent failed to show by any competent and cred-
itable evidence that its discharges of the four alleged discri-
minatees was motivated by a "lack of work" for them,
seasonable or otherwise. With respect to Elliott and Mc-
Crackin, I infer and find an admission by Respondent of
their discriminatory discharge frorp its offer of August 14,
1972, to reinstate the two employees with backpay from the
date of their discharges on June 23, 1972.
Similarly I do not credit any of the various other alleged
business reasons given for the discharge of the four employ-
ees, such as driver accidents, or because of McCrackin's
alleged absences from work without permission on only 4
days of the more than 3 years he worked for Respondent,
or of driver White's alleged discourtesies, or of Blackstock's
suspected theft of Burmuda grass seed from the Company's
warehouse. Even in the case of Blackstock, the record sup-
ports the conclusion that the thing that triggered his dis-
charge on June 20, 1972, was the conclusion that Plant
Manager Malcom reached that day that Blackstock was the
instigator of all the union activity at the plant rather than
the suspicion of his theft of grass seed from the warehouse
as Malcom did not fire Blackstock or even question him on
June 15 or 16 when he received a report from a dealer-
customer of Blackstock's offer in early June to the customer
of unordered Burmuda grass seed at almost half of its regu-
lar selling price.
It is again noted that none of the above-described excuses
or reasons for layoffs were given to the discharged employ-
ees at the time of their discharge as might have been rea-
sonably expected if such alleged reasons played any bona
fide part in their terminations.
It is also again noted that the vehicle accidents that Re-
spondent now claims as auxiliary reasons for the discharge
of drivers Blackstock and White were far less serious than
the accident Wood had in trying to cross a railroad track
against an oncoming train and yet Wood, who refused to
give the Union an authorization card to represent him, had
not been discharged because of his far more culpable acci-
dent. I also find and conclude that most of the employee
incidents that Respondent seized on at the trial as auxiliary
reasons for the discharges have been condoned by Respon-
dent due to their remoteness in time from the date of the
terminations.
I find and conclude from the absence of any credible
lawful cause for the terminations and from the conjunction
of the discharges with company knowledge of the involve-
ment of the dischargees in organizing its plant and the offi-
cial notice the Company got from the Union of its majority
representation that the four dischargees were discriminato-
rily discharged because of their union activities in violation
of Section 8(a)(3) and (1) of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Rudy Patrick Company , is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union, Truck Drivers and Helpers Local Union
No. 728, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By interrogating employees concerning union meet-
ings and union activities, by directing an employee to get
back his union authorization card, by prohibiting employ-
ees from talking about the Union at any time in the plant,
by threatening employees that those who did not sign an
authorization card would receive priority in wage increases,
by threatening employees they would be discharged or laid
off, and that the plant would be closed or moved, the Re-
spondent has interfered with, restrained and coerced em-
ployees in the exercise of rights guaranteed them in Section
7 of the Act, and has thereby engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By laying off, discharging, and/or terminating the em-
ployment of James Elliott, Sr., John Blackstock, Mitchell
White, and Robert McCrackin as set forth above, Respon-
dent discriminated against them in regard to their tenure of
employment, and the terms and conditions thereof, to dis-
courage membership in the Union, and thereby engaged in
and is engaging in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act.
5. By discriminating against Robert McCrackin because
he caused the Union to file a charge with the National
Labor Relations Board, Respondent engaged in and is en-
gaging in unfair labor practices affecting commerce within
the meaning of Section 8(a)(4) of the Act.
6. Louise O'Neal is an office clerical and as such is ex-
cluded from the appropriate unit.
7. Edward Bailey is a supervisor within the meaning of
Section 2(11) of the Act and as such excluded from the
appropriate unit.
8. On June 19, 1972, the Union was the exclusive repre-
sentative for collective-bargaining purposes of
Respondent's employees in the unit described as follows:
All truckdrivers, warehousemen, and forklift operators
employed by the Respondent at its Atlanta, Georgia,
place of business, but excluding all office clerical em-
ployees, professional employees, guards, and supervi-
sors as defined in the Act.
RUDY PATRICK CO. 573
The aforesaid unit was, and is, a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act and any subsequent loss of such
status is the result of the Respondent's unfair labor practices
heretofore found above.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1), (3), and
(4) of the Act, I shall recommend that the Respondent cease
and desist therefrom and from any other manner infringing
upon its employees ' Section 7 rights , and that it take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that the Respondent discriminatorily ter-
minated and discharged the above -named employees on
June 20 and June 23 , 1972, it will be recommended that it
offer to each of them immediate , full, and unconditional
reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights,
privileges , or working conditions , and make each of them
whole for any loss of earnings suffered by reason of the
discrimination against them , by paying to each a sum of
money equivalent to the amount he would have earned from
the date of the discrimination against them until such discri-
mination has been fully eradicated , less his net earnings
during the period of such discrimination, backpay with in-
terest at the rate of 6 percent per annum shall be computed
in the manner set forth in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Company, 138
NLRB 716.E
General Counsel requests an 8(a )(5)-type remedy herein,
notwithstanding the fact that the complaint alleges only
8(a)(1), (3), and (4) violations and does not allege an 8(a)(5)
violation , due to the fact that the Union did not make the
requisite demand for recognition and bargaining . Interna-
tional Van Lines, 177 NLRB 353, is authority for the grant-
ing of an 8(a)(5) remedy where the complaint alleges only
8(a)(1) and (3) violations . Under the "Remedy" section of
that decision , the Board justified and directed the granting
of an 8 (a)(5) remedy therein as follows:
Having concluded that the Respondent . . . engaged in
unfair labor practices violative of Section 8(a)(3) and
(1), we are further persuaded that such conduct demon-
7 Under the compliance stage of the Order herein , recognition should be
given to the fact that Respondent 's period of discrimination against employ-
ees James Elliott , Sr., and Robert McCracken terminated on or about August
14, 1972, when Respondent offered the two employees full reinstatement to
their former positions with backpay from the dates of their discharge minus
interim earnings.
strates that Respondent had completely rejected the
collective-bargaining principle and its violations could
only have had the effect of destroying conditions need-
ed for a fair election. As the Union did represent major-
ity of the employees in an appropriate unit prior to the
discriminatory discharges, we conclude that only a bar-
gaining order can adequately restore as nearly as possi-
ble the situation which would have existed but for the
Respondent's unfair labor practices. Accordingly, we
shall order Respondent, upon request, to bargain with
the Union in the unit herein found appropriate.
In a footnote to the above paragraph, the Board stated:
While the Union made no formal demand on Respon-
dent for recognition such demand is not a prerequisite
to our granting a bargaining order in these circum-
stances. Western Aluminum of Oregon, Incorporated,
144 NLRB 1191, 1192; L. B. Foster Company, 168
NLRB 83.
In N.L.R.B. v. Gissel Packing Co. Inc., 395 U.S. 576, 594
(1969), Supreme Court states that ". . . the key to the is-
suance of a bargaining order is the commission of serious
unfair labor practices that interfere with the election pro-
cesses and tend to preclude the holding of a fair election."
Expanding on this test for the issuance of a bargaining
order, the opinion at page 614 states, "The Board itself .. .
has long had a similar policy of issuing a bargaining order,
in the absence of a section 8(a)(5) violation or even a bargaining
demand, when that was the only available, effective remedy
for substantial unfair labor practices...." (Emphasis sup-
plied.)
There is thus ample authority for the granting of an
8(a)(5)-type remedy where the complaint alleges only
8(a)(3) and (1) violations, to say nothing about an additional
8(a)(4) violation, as herein found.
Accordingly, having found that the Union was the major-
ity-designated representative of the Respondent's employ-
ees in an appropriate unit on June 19, 1972, and that the
Respondent, by engaging in unfair labor practices aimed at
destroying the union majority, discloses a disposition to
evade its obligation to bargain, it is found that a simple
cease-and-desist order would not prevent Respondent from
profiting from its unlawful conduct and that only a bargain-
ing order can restore, as nearly as possible, the situation
which would have obtained but for Respondent' s unfair
labor practices. Therefore, it will be recommended that Re-
spondent bargain with the Union upon request as the collec-
tive-bargaining representative of its employees in the
appropriate unit and, if an agreement is reached, embody
such agreement in a signed contract.
In view of the nature and extent of the unfair labor prac-
tices found to have been engaged in by the Respondent,
which indicate its determination to interfere with its em-
ployees' right of self-organization and its interference with
the principle of collective bargaining, I shall recommend a
broad cease-and-desist order herein.
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following rec-
ommended:
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER'
Respondent, Rudy Patrick Company, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union meetings and union activities; requesting or directing
employees to get back their union authorization cards; pro-
hibiting employees from talking about the Union at any
time in the plant; threatening its employees that those who
do not sign an authorization card will receive priority in
wage increases; threatening its employees that they will be
discharged or laid off if they continue their support of the
Union; threatening its employees that the plant will be
closed down or moved if the Union is successful in its orga-
nizational attempts.
(b) Discriminating against an employee because he has
caused a union to file charges or given testimony under this
Act.
(c) Discouraging membership of any employee in the
Union or any other labor organization by discharging or in
any other manner discriminating against any employee with
regard to his hire or tenure of employment or any term or
condition of employment, except as authorized in Section
8(a)(3) of the Act.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Upon request, recognize and bargain collectively with
Truck Drivers and Helpers Local Union No. 728 as the
exclusive representative of the employees in the appropriate
unit set forth in the "Conclusions of Law," above, and
embody in a signed agreement any understanding reached.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all records necessary to analyze
the amount of backpay due under the terms of this Order.
(c) Post at its Atlanta, Georgia, location copies of the
attached notices marked "Appendix." s Copies of the no-
tice, on forms provided by the Regional Director for Region
10, after being duly signed by Respondent's authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt thereof, and be maintained for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
8In 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 hereto shall be deemed
waived for all purposes.
9 In the event the Board's Order is enforced by a Judgment of the 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 "
(d) Notify the Regional Director for Region 10, in writ-
ing, within 20 days from the date of this Order, what steps
the 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, upon request, bargain collectively with Truck
Drivers and Helpers Local Union No. 728 as the exclu-
sive representative of our employees in the unit de-
scribed below, with respect to rates of pay, wages,
hours of employment, and other conditions of employ-
ment, and, if an understanding is reached, embody
such understanding in a signed agreement. The bar-
gaining unit is:
All truckdrivers, warehousemen, and forklift opera-
tors employed at the Employer's Atlanta, Georgia,
location, but excluding all office clerical employees,
professional employees, guards, and supervisors as
defined in the National Labor Relations Act, as
amended.
WE WILL offer to John Blackstock and Mitchell White
immediate, full, and unconditional reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent jobs without prejudice to their
seniority or other rights, privileges, or working condi-
tions, and make them each whole for any loss of pay
that they may have suffered as a result of the discrimi-
nation practiced against them.
WE WILL make James Elliott, Sr., and Robert McCrac-
kin whole for any loss of earnings they may have suf-
fered between their unlawful discharge on June 23,
1972, and August 14, 1972, when they were offered but
refused reinstatement of their old jobs.
WE WILL NOT discharge employees or otherwise discrimi-
nate against them because of their union activities.
WE WILL NOT discharge, threaten to discharge, or in any
other manner discriminate against any employee be-
cause he has caused a union to file charges or given
testimony under the National Labor Relations Act.
WE WILL NOT question or interrogate our employees
about their membership in, sympathy for, or activities
on behalf of any union.
WE WILL NOT threaten to discontinue our business or to
move our business or to discharge or lay off any of our
employees or to take reprisals against them because of
their membership in, or activities on behalf of, any
labor organization.
WE WILL NOT direct any employee to get his union au-
thorization card back from the Union.
WE WILL NOT prohibit employees from talking about the
Union at any time in the plant.
WE WILL NOT threaten our employees that those who do
RUDY PATRICK CO.
not sign authorization cards for the Union will receive
pay wage increases.
WE WILL NOT in any manner, interfere with, restrain, or
coerce our employees in the exercise of their rights to
self-organization, to form unions , tojoin , assist , or sup-
port Truck Drivers and Helpers Local Union No. 728,
or any other union, to bargain collectively through rep-
resentatives of their own choosing, or to engage in any
other concerted activities for the purpose of mutual aid
or protection, as guaranteed by Section 7 of the Na-
tional Labor Relations Act as amended, or to refrain
from any or all such activities.
All our employees are free to become and remain, or to
refuse from becoming or remaining, members of Truck
Drivers and Helpers Local Union No. 728, or any other
union.
Dated By
575
RUDY PATRICK COMPANY
(Employer)
(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 direct-
ed to the Board's Office, Peachtree Building, Room 701, 730
Peachtree Street NE, Atlanta, Georgia 30308, Telephone
404-526-5760.