Seaboard Farms Of Athens, Inc

National Labor Relations Board - Board Decisions

Jan 31, 1989

292 N.L.R.B. 776 (N.L.R.B. 1989)

776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Seaboard Farms of Athens , Inc and Mary Mitchell
Case 10-CA-22686
January 31, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, CRACRAFT, AND
HIGGINS
On April 28, 1988, Administrative Law Judge
Howard I Grossman issued the attached decision
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings, and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Seaboard
Farms of Athens, Inc, Athens, Georgia, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order
' The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
Frank F Rox Jr Esq, for the General Counsel
James W Wimberly Jr and Robert Sumner Esqs (Wim
berly Lawson Cobb and Leggio) of Atlanta Georgia,
for the Respondent
Amy Gellins Esq (Nelson and Sweat) of Athens Geor
gia for the Charging Party
DECISION
STATEMENT OF THE CASE
HOWARD I GROSSMAN Administrative Law Judge
The original charge was filed on 17 July 19871 and an
amended charge on 26 August by Mary Mitchell (Mitch
ell or the Charging Party) The complaint issued on 27
August alleging that Seaboard Farms of Athens, Inc
(Respondent or the Company) discharged Mitchell on 2
June because she engaged in concerted activities with
other employees for the purpose of collective bargaining
and other mutual aid and protection, in violation of Sec
' All dates are in 1987 unless otherwise specified
tion 8(a)(1) of the National Labor Relations Act (the
Act)
A hearing was held before me on these matters on 16
and 17 November in Athens Georgia The General
Counsel the Respondent and the Charging Party there
after submitted briefs On the entire record, and on my
observation of the demeanor of the witnesses, I make the
following
FINDINGS OF FACT
I JURISDICTION
Respondent is a Georgia corporation with an office
and place of business located at Athens Georgia where
it is engaged in the processing of chickens During the
calendar year preceding issuance of the complaint, a rep
resentative period , Respondent sold and shipped goods
valued in excess of $50 000 directly from its Athens
Georgia facility to customers located outside the State of
Georgia Respondent is an employer engaged in com
merce within the meaning of Section 2(6) and (7) of the
Act
II THE ALLEGED UNFAIR LABOR PRACTICE
A Mitchell's Alleged Protected Activities
Certain employees of the Company were represented
by the United Food and Commercial Workers Local 442
(the Union) Mitchell began working for the Company in
1976 She received three warnings for unreported absen
teeism in 1979 1981 and 1985 2 In 1986 Mitchell was
promoted to a nonbargaining unit job as a production
clerical 3 It was her function in this position to make cer
tam that eviscerated chickens on the processing lines
were properly presented for inspection by a representa
live of the U S Department of Agriculture (USDA) sta
tioned in the plant
In March 1987, Mitchell appeared as a witness for the
Union in an arbitration proceeding The Company had
discharged the union steward (Carol Rucker), and a
grievance on the matter went to hearing The Company
attempted to establish that Rucker a checker was dis
charged for just cause because one morning after clock
ing in she was not working from the starting time of
8 10 a in to about 8 30 a in Witnesses for the Company
included Personnel Manager Kevin D Thigpen Quality
Control Manager Paul Sims, and Supervisor James Der
ricotte, all of whom also testified in the instant unfair
labor practice proceeding
Witnesses for the Union included Mitchell and other
employees The Union attempted to establish that the
Company had instructed Rucker and other checkers that
they were not to start working until 8 30 a m 4 On 4
June the Company filed its brief with the arbitrator, in
which it stated that Mitchell was grossly mistaken or
flagrantly lying, and that [a]t worst she is a liar Al
though the Company also criticized the other union wit
2 R Exhs 11-13
3 R Exh 10 The Company calls this position a presentation clerk
4 Jt Exh 1
292 NLRB No 80
SEABOARD FARMS OF ATHENS 777
nesses it did not characterize them in the same manner
as it did Mitchell 5 The arbitrator concluded that Rucker
had committed an infraction, but that the Company
did not have just cause to discharge her Accordingly he
ordered the Company to reinstate her without backpay 6
B Asserted Additional Evidence of Animus
Mitchell testified that, prior to the arbitration she cus
tomanly ate lunch in the company cafeteria with her
aunt , Union Steward Johnnie Mae Jackson, and with
other employees She continued this practice after the ar
bitration hearing, and spoke with Union Steward Randall
Hadley in the cafetena Hadley corroborated this, and
testified that he met with quality control employees in
the lunchroom after the arbitration
According to Mitchell, Supervisor James Derricotte
said to her that she was eating lunch with them Union
folks again and that she ought to be tired of eating
lunch with those folks Mitchell affirmed that this was
the first time any supervisor had commented about her
luncheon companions After Derricotte s statement,
Mitchell started eating lunch in the quality control
office Derricotte denied seeing Mitchell have lunch with
Jackson or Hadley and denied speaking to her about it I
credit Mitchell because she was a more trustworthy wit
ness than Derncotte
Carol Rucker testified that, after her reinstatement,
Personnel Manager Thigpen told her that the Company
would not tolerate any retaliation on [Rucker s] part,
and warned her against filing petty grievances [to] get
back at the Company' The Company refused to meet
with her on grievances and would only discuss them
with Steward Hadley Personnel Manager Thigpen testi
feed that he had a conversation with Rucker to clear
the air and tell her that the Company had no animosity
towards her He also expressed his hope that Rucker
had no animosity toward the Company According to
Thigpen, this was the extent of the conversation He
also stated that Rucker s belief that he would not let her
file grievances was a misunderstanding on her part
which he clarified with a call to Steward Hadley
Quality control employee Maebelle Smith testified
that after the arbitration, the Company removed a tele
phone from the quality control office and required qual
ity control employees to request permission to go to the
lounge to reach a pay telephone Quality Control Super
visor Mark N Morris agreed that this was done but
averred that the purpose was to prevent hourly employ
ees from coming to the quality control office to use the
telephone and to make availability of a telephone con
sistent for all employees
Maebelle Smith also testified that the Company discon
tinued the practice of allowing quality control employees
to get their checks the day before payday Quality Con
trol Supervisor Morris contended that this change was
made by the accounting department and that it was ap
plied uniformly to all employees
The Company elicited evidence to rebut an inference
of animus toward Mitchell Thus Quality Control Man
ager Sims testified that he caused a bond to be posted for
Mitchell on an occasion when she was arrested on a
fraudulent check charge Sims did not remember the
date, but asserted that it was in the spring and subse
quent to the arbitration hearing Mitchell testified that
her purse containing her checkbook, was stolen from
her locker at work, that she did not write any of the
checks, prosecuted the individual responsible paid the
amounts involved, and that there are no charges pending
against her These events took place in mid January ac
cording to Mitchell, i e, prior to the arbitration proceed
ing
C Mitchell s Absences and Prior Reports-Mitchell s
Discharge
Mitchell was discharged for the asserted reasons of ex
cessive absences and failure to make timely reports This
puts in issue various conversations between Mitchell, su
pervisors, and other employees the dates of these con
versations and the presence or absence of individuals in
the plant on various days 7 The evidence is sharply con
flicting
1 Summary of the evidence
a Mitchell s absences on 11 and 12 May and asserted
Final Warning on 13 May
Mitchell affirmed that she had to leave work early on
11 May because her babysitter informed her that her
baby was sick Quality Control Supervisor Morris testi
fled that Mitchell informed him of this, and that he gave
her permission to leave Mitchell averred that she took
the baby to a doctor learned that he had bronchitis and
was told to stay home with him the following day 12
May Mitchell stated without contradiction that she re
ceived a doctors excuse and, on the same day went
back to the plant and gave it to her immediate supervi
sor, James Derricotte
Derncotte testified that he received a report that
Mitchell called in (that she would not be at work) at
10 30 am on 12 May Mitchell denied this Derricotte
did not deny receiving a doctors excuse from Mitchell
Quality Control Supervisor Morris testified that he
learned about Mitchell s absence on 12 May because she
was not at her work station Morris contended that he
asked Derricotte whether Mitchell had called and that
Derricotte replied that she had called at 10 30 a in and
had stated that she would not be in to work Derricotte
denied making this report to Morris The time 10 30 ap
pears in the 12 May space on Mitchell s attendance
card 8 However, the letters F S," indicating that
Mitchell was on leave that day for Family Sickness,
also appear in the same space Mitchell testified that he
first began making entries on Mitchell s attendance card
on 18 May leaving the issue of the 12 May entries an
unresolved question
8GC Exh 2
6 Jt Exh I The award is dated 10 July
' The evidence on the Company s rules on leaves of absence report
ing and discipline is considered hereinafter
8 R Exh 6
778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On 13 May according to Morris he called Mitchell
into the quality control laboratory and asked her the
reason she had been absent the day before Mitchell gave
him the reason Morris then told her about the impor
tance of her job and the necessity of calling in prior to
the beginning of her shift if she would not be at work
Morris stated that, prior to 13 May, he had not told
Mitchell to call in before her shift began
Morris then testified that he served a final warning
on Mitchell The warning is a memo that Morris
signed and put in Mitchell s file 9 Morris admitted that
Mitchell never saw the memo, that he did not give her a
copy and that she did not sign it Derricotte asserted
that he and/or Sims told Mitchell before 13 May to call
in more than an hour ahead of time
Mitchell denied any conversation with Morris on 13
May, denied that he gave her a final warning, denied
that he told her to call in before the beginning of her
shift, and denied that anybody else from management
said this to her
b Mitchell's requests for leave 18 and 19 May
(Monday and Tuesday)
Mitchell testified that she called Supervisor Derricotte
at probably about 9 30 a in on 18 May (Monday) and
informed him that she had babysitter problems She
asked for a 30 day leave of absence, but added that she
would return before that time if she obtained a babysit
ter According to Mitchell, Derricotte replied that he
was sure that it would be all right, as long as Mitchell
talked with Quality Control Manager Sims Derricotte
tried to connect Mitchell with Sims ' office, but there was
no answer Derricotte told Mitchell to call Sims the next
day Tuesday
Derncotte agreed that Mitchell made a call on the
morning of 18 May but asserted that it was at approxi
mately 10 15 am He testified initially that Mitchell
only informed him that she could not come in because
her baby was sick He was then shown a copy of a
pretrial statement which he signed ,' ° and agreed that he
was aware that Mitchell wanted a leave of absence
The memo is dated 13 May and reads
Mary Mitchell left early on Mon May 11 and did not come to
work on Tues May 12 She did not call in until 10 30 and told
Monica in personnell [sic] On Wednesday May 13 I told her this is a
final warning that she must get in touch with the supervisor James
Derncotte or myself in the event of a necessary absence She must
call in before her starting time (R Exh 3)
10 Derncotte s statement reads as follows
On Monday morning 5-18-87 Mary Mitchell call in [sic] at
10 15 a in to tell me (James ) that she would not be in that day be
cause her baby was sick On Tuesday morning 9 45 a in she call in
[sic] again saying that she wouldn t be in to work today because she
couldn t find a baby sitter for her child And that she would call
back to talk to the nurse about a leave of absences [sic] for 30 days
On Wednesday she call in again but I d do t talk with her this time
she spoke with Betty Starke
On Thursday (10 a in ) Mary call in again saying that she wouldn +
be in to work because she still didn t have a baby sitter for her child
And that she had spoken with Kevin Thigpen that day before She
didn t say what about But she did say he told her to get in touch
with Paul Sims that up comeing [sic] Tuesday (R Exh 9)
Quality Control Supervisor Morris testified that Super
visor Derricotte informed him that Mitchell called in
around 10 15 a in on 18 May [Monday] and that Derri
cotte had talked to her about her babysitting problem
Morris testified that he recorded the fact that Mitchell
called in late on her attendance card 11 Morris nor
mally does not make entries on attendance cards This is
a function of employees in the personnel department
Morris averred, however that he himself made the en
tries on Mitchell s card beginning 18 May because she
had been having attendance problems An entry on
Mitchell s card stating that she was out because of family
sickness on 17 May a Sunday, was an error according to
Morris
Mitchell testified that she called the office between
9 30 and 9 45 a in on 19 May (Tuesday) and asked for
Quality Control Supervisor Sims He was not in, and
Mitchell spoke with quality control employee Betty Joe
Starke Mitchell asked Starke to inform Derncotte that
she was calling in for the day
Derricotte testified that Mitchell called in on 19 May
(Tuesday), said that her baby was sick, that she did not
have a babysitter, and wanted to talk to the nurse about
a 30 day leave of absence Derricotte agreed that Mitch
ell spoke with Starke whose starting time was 9 20 a in
Morris testified that Derricotte told him that Mitchell
called in at 9 45 a in
c Mitchell s visit to the plant on 20 May (Wednesday)
Mitchell did not have a telephone and testified that
Derncotte sent a night shift employee to her residence
on 20 May (Wednesday) to inform her that he wanted to
see her at the plant Derricotte denied sending this mes
sage
Mitchell testified that she went to the plant, but there
was no quality control supervisor in the office Mitchell
caused Quality Control Manager Sims and Supervisor
Derncotte to be paged, but there was no response Qual
ity control employee Maebelle Smith testified that on
one occasion she heard Mitchell s voice on the loud
speaker calling for Derricotte Smith talked briefly with
Mitchell who did not reach a supervisor
Mitchell testified that she then talked with plant nurse
Mane Strickland and asked for a leave of absence
Strickland informed her that she would have to go
through Quality Control Manager Sims or Personnel
Manager Thigpen Nurse Mane Strickland corroborated
Mitchell, testifying that the latter came to her office
about a leave of absence because of her babysitting prob
lems Mitchell assertedly told Strickland that Derncotte
had instructed her to talk to Sims and Thigpen and
Strickland agreed
Derricotte contended that he did not see Mitchell in
the plant that week
" R Exh 6
SEABOARD FARMS OF ATHENS 779
d Mitchell s conversations with Personnel Manager
Thigpen and Supervisor Derricotte on 21 May
(Thursday)
Mitchell affirmed that she called the office of Person
net Manager Thigpen on 21 May (Thursday) but did not
reach him Instead , she got Personnel Assistant Don
Foster on the phone Thigpen was on another line When
he hung up , Foster relayed a message from Thigpen that
he could do nothing with Mitchell s leave request until
she talked with Quality Control Manager Sims , and that
the latter was going to be out of town until ` the follow
ing Tuesday (The following Monday 25 May was Me
monal Day)
Personnel Manager Thigpen agreed that Mitchell
called his office about a leave , and that Thigpen replied,
through Foster , that Mitchell would have to contact
Quality Control Manager Sims
Mitchell testified that she then called Supervisor Der
ncotte and said that she was calling in for the day Ac
cording to Mitchell , Derricotte told her not to call in
any more until she had spoken with Sims In the mean
time , although Derncotte himself could not grant a leave
of absence , he told Mitchell that he was going to classify
her absences as due to family sickness " Derncotte ad
vised Mitchell to come to the plant the next day Friday,
to taik to Sims Although the latter was going to be out
of town ," Mitchell could probably see him before he left
Derncotte admitted that Mitchell called him on 21
May (Thursday) and informed him that she had talked
with Thigpen Although Derncotte initially denied that
Mitchell reported a statement from Thigpen that Mitch
ell should see Sims about her leave , Derricotte ultimately
agreed that Mitchell reported this to him Derncotte also
denied that Mitchell repeated Thigpen 's advice that
Mitchell get in touch with Sims the following Tuesday
(26 May), but, after having been shown his pretrial state
ment , t 2 admitted that Mitchell said this to him
Derricotte agreed that he told Mitchell that her ab
sences on 18 and 19 May (Monday and Tuesday) would
be counted as family sickness He defined this as leave
granted to allow an employee to care for a sick family
member However , Derricotte contended that he told
Mitchell that only 18 and 19 May would be counted as
family sickness On the other hand , Derricotte denied
that he had any authority whatever to grant leaves of ab
sence Derncotte also denied telling Mitchell no t to call
in any more until she had spoken with Sims , but agreed
that he spends little time in the office and that it would
make little sense for him to come to the office and take
the same telephone message from Mitchell every day
Derncotte testified that he knew Mitchell wanted a
leave of absence , but did not inform Morris or Sims of
this fact Morris testified that he knew Mitchell wanted a
leave , but never acted on it because he was uncertain
whether he or Sims was supposed to handle the request,
and because Mitchell never asked Morris for a leave
Derncotte contended that he knew Mitchell had asser
tedly received a final warning ' the prior week but
12 Supra, fn 10
never told her or his supervisors that supposedly she
was again calling in late
e Mitchell s visit to the plant on 22 May (Friday) the
poultry seminar in Atlanta and Morris' asserted order
that Mitchell be in his office on Tuesday
(1) Mitchell s visit to the plant
Mitchell testified that she went to the plant on Friday
and arrived between 11 and 11 30 a in together with her
cousin and her baby She saw Quality Control Supervi
sor Morris at 11 30 a in He was in personnel , going out
the door ' Mitchell asked him who had the checks
Morris answered that he did not know but said that he
would go and see Morris then left , and returned with
Mitchell s paycheck Mitchell asked Morris whether
Sims was back , and Morris replied that he was still out
of town " Morris was wearing a dress shirt , tie, and dress
pants, unlike his normal work attire
According to Mitchell , Derricotte again told her not
to call him because he was still putting her down as
family sickness,' and reminded her to call Sims the day
after Memorial Day Derricotte denied making any such
statements and denied seeing Mitchell that Friday
(2) Morris whereabouts on 22 May-the poultry
seminar in Atlanta
Morris denied speaking to Mitchell on 22 May and
denied being in the plant He contended that he was in
Atlanta on 21 and 22 May (Thursday and Friday) attend
ing a seminar on poultry processing According to
Morris, he left the plant alone on Wednesday afternoon,
drove to Jefferson , Georgia, and from there drove to At
lanta with Sims in the latter 's car They spent Wednes
day and Thursday nights in Atlanta and assertedly re
turned on Friday afternoon The seminar was over about
1 p in Morns and Sims drove back to Jefferson, where
Morris picked up his car He drove to his home in
Athens, arriving about 3 p m Morns said that he
showered and changed and then drove to the company
parking lot for a bus ride with his wife and other em
ployees back to Atlanta-for Willie Nelson s Night of
Nights According to Morris the bus left the company
parking lot at 3 30 p in Morris could not remember
when he and other employees checked out of the Atlanta
hotel-it `may have been in a break Asked whether he
picked up his paycheck on Friday, Morris stated that he
could not remember whether 21 May (Thursday) was a
payday He normally picks up his check from the per
sonnet secretary and agreed that he could not have done
so on Thursday because he was in Atlanta Morns sug
gested that he may have picked up his check the prior
Wednesday He agreed that he wore dress clothes to the
seminar , unlike his normal work clothes
Sims testified that he and Moms left Atlanta on
Friday around noon or shortly thereafter " They drove
in Sims car to Jefferson , a drive of about an hour and a
half, arriving about 3 p in Morris picked up his own car
and drove back to Athens , a distance Sims estimated as
20 miles Sims changed clothes and, with his wife, drove
to Athens to pick up the bus going back to Atlanta for
780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Willie Nelson show Unlike Morris, Sims contended
that the bus left between 5 and 5 30 p in The first time
he saw Morns-after their joint arrival in Jefferson-was
when he pulled into the company parking lot Sims as
serted that he then saw Morris and his wife arriving in
their car , but had no knowledge whether Morris went
into the plant
Respondent submitted various documents in support of
this evidence A poultry association brochure shows a
poultry seminar on 21 and 22 May in an Atlanta hotel,
but without any designation of the seminar hours on
Friday 13 The Company also submitted weekly expense
reports submitted by Morris and Sims These show a
cash advance of $300 on 20 May (Wednesday), but hotel
charges for Tuesday and Wednesday with three charged
meals and a room charge for each day , and two charged
meals for Thursday (21 May) 14 Sims testified that this
was an error on his part and that the charges should
have been for Wednesday, Thursday , and Friday Morris
testified that Sims filled in and signed Morris voucher 15
Respondent also submitted a restaurant bill dated 21 May
(Thursday), 1 a and vouchers of two other company em
ployees who attended the seminar One of them shows
charges for Thursday and two meals on Friday" while
the other shows charges for Wednesday and Thursday
and travel from Atlanta to Athens on Friday, but no
charges for that day 18 The Company did not submit
copies of hotel bills
(3) Morris asserted order that Mitchell be in his
office on Tuesday (26 May)
Jackie Crowley, a secretary, testified that Morris di
rected her to tell Mitchell to come in at 8 a in on Tues
day, 26 May Crowley could not recall the date of this
instruction According to this witness, Mitchell called
her on Friday 22 May said that she was having babysit
ting problems and wanted to talk to Morris about a leave
of absence Crowley contended that she then informed
Mitchell to be in Morris office the following Tuesday at
8 am, because they would be back in town Tuesday
Morris testified on direct examination that he left a
message with Crowley to inform Mitchell to be in his
office Tuesday at 8 a in On cross examination he agreed
that he never communicated directly with Mitchell about
this appointment and did not know whether Crowley or
anybody else did so Although Sims assertedly told him
during the trip to Atlanta that Mitchell wanted a leave
Morris did not inform Sims that he had arranged a meet
ing with Mitchell the following Tuesday
Mitchell denied speaking to Crowley about a leave of
absence She denied that Crowley ever instructed her to
come to Morris office on Tuesday, 26 May and denied
speaking with Crowley on the phone on Friday 22
May-instead, as indicated , she testified that she went to
the plant and actually saw and spoke with Morris but
13 R Exh 16
14 R Exhs 4 and 8
1s R Exh 4
16R Exh 4
17 R Exh 18 Ron Smith
18 R Exh 17 Willie Morris
not about a leave , because Thigpen had told her to talk
with Sims about the matter
f Mitchell s conversation with Quality Control
Manager Sims-Mitchell s Attempted Call to Morris
Mitchell and Sims agree that they had a telephone
conversation , but disagree about the date According to
Mitchell , she finally reached Sims by phone on Tuesday
(26 May), the day after Memorial Day Sims told her
that he was going to let Morris handle the case about
[her] leave ' Mitchell s reply Well Paul , I just saw
Nathan [Morris ] Friday If I had known , we could have
went on and got it settled then
Sims agreed that he had a conversation with Mitchell
and that he referred her to Morris However, he con
tended that this conversation took place the prior week,
on 20 May (Wednesday) Sims wrote a memo to memori
alize the conversation and the date 19 He was positive"
about the date and writes such memos when there
seems to be a problem building up Sims did not tell
Mitchell that there was any problem regarding her ab
sences or reporting in although Morris assertedly had
been telling him all during the time that this was going
on probably on a day to day basis , that Mitchell was
absent or did not call in
According to Mitchell , after her talk with Sims on
Tuesday , she called the plant again and tried to reach
Morris without success Instead , she got quality control
employee Maebelle Smith and asked her to give Morris a
telephone number at which he could reach Mitchell,
who did not have a phone of her own
Maebelle Smith testified that prior to Mitchell s dis
charge, the company telephone operator gave her Mitch
ell s name and a number Smith called , and Mitchell
asked her to give the phone number to Morris and ask
him to call because the Company had been giving Mitch
ell the runaround Smith tried to locate Morris with
out success She next saw him the following morning
and told him that Mitchell had called Morris replied ac
cording to Smith that the matter had been taken care
of Mitchell testified that Morris never called her
Morris testified that Mitchell did not show up on
Tuesday pursuant to his asserted message to her He
averred that in the afternoon he told Supervisor Derri
cotte that Mitchell was not in his office , but did not in
struct Derricotte to get her in to work Morris contend
ed that the last time anybody in the plant heard from
Mitchell prior to her discharge was 21 May (when Der
ricotte admittedly talked with her) Morris however did
not rebut Maebelle Smiths testimony that she told him
Mitchell had called , and that Morris replied that the
matter had been taken care of'
19 The memo is dated 20 May and reads
Mary Mitchell call [sic] me today from outside the plant and told
me that she wanted to come to the plant and discuss a leave of ab
sence
I told her that she needed to discuss this matter with Nath Morris
She answered 0 K and had no further comment [R Exh 7]
SEABOARD FARMS OF ATHENS
g Mitchell s discharge
Mitchell testified that , from 27 May to 10 June, she
called in on some occasions , but not every day On
cross examination , Respondents counsel , utilizing Mitch
ell s notes , elicited testimony that she called in on 27 and
29 May , and on 2 and 4 June Mitchell said that she did
not call every day because she felt the Company was
giving her "the runaround , and because Derncotte had
told her not to worry about calling until she talked with
Sims
Respondent submitted purported lists of employees
who had called in from 26 May to 9 June , and Mitchell s
name does not appear thereon 20 Personnel Director
Thigpen testified that the call in list is maintained by em
ployees in the personnel office , and that the phones are
open from 10 p in until the following 5 p in If an em
ployee reports an absence to a supervisor instead of the
personnel office , the supervisor is supposed to report this
fact to the office There is no particular form for this
latter report
Morris affirmed that he decided to discharge Morris
Although he was the one who made the decision , he first
consulted with Quality Control Manager Sims, who gave
his approval Morns was uncertain what he would have
done if Sims had opposed the discharge Sims agreed
that Morns consulted with him about the matter during
the week of 26 May, and that he gave the matter his
blessing ' Sims did not ask Morris what the latter had
done about Mitchell s leave request
On 1 June , Morris sent Mitchell s termination notice to
the personnel office The stated reasons were an exces
sive amount of absences and unreported absences 21
Mitchell did not receive this notice of her discharge
According to Personnel Manager Th gpen termination
notices are not mailed out immediately They are nor
mally sent with paychecks If an employee fails to pick
up his paycheck after a few weeks the termination no
tices are mailed out
h Mitchell s conversations with Morrison
9 and 10 June
Mitchell and Morris agree that she reached him by
phone on 9 June (Tuesday) According to Mitchell she
asked him what had been done about her leave request,
and Morris replied that he did not know He asked her
to call back the next morning
Morris testified that he did not tell Mitchell she had
been discharged because he wanted to make sure that
something else hadn t been done Morris averred that
he was new' in his position and uncertain about compa
ny policy on leaves of absence At one time he thought
Sims was going to handle Mitchell s leave request, and
then Sims referred it back to him Personnel Manager
Thigpen asserted that there was a ` transition of manage
ment " that Sims was the quality control manager for
the complex , and that Morris was taking over Sims
duties as plant quality control supervisor Supervisor
Derncotte however , testified that he reported to both
781
Sims and Morris that there was no change in this proce
dure during the period prior to Mitchell s termination,
and no change in Morns duties
As indicated , Morris testified that , although he knew
Mitchell wanted a leave of absence he never acted on
the request because Mitchell never made it to him
Mitchell called Morris the next day , 10 June and
again asked about her leave Morris replied that she had
been terminated This was Mitchell s first notice of her
discharge
2 Factual analysis
a Credibility resolutions
It is undisputed that Quality Control Manager Morris
gave Mitchell permission to leave early on 11 May be
cause her baby was sick I credit Mitchell s uncontradict
ed testimony that the doctor gave her a written excuse
to stay home the following day, and that she delivered
this excuse to Supervisor Derncotte I reject Derricotte s
and Morris testimonies about Mitchell 's asserted call on
12 May at 10 30 a in, and credit her denial that she made
such a call Mitchell would have had no reason to make
a call because she delivered a doctor s excuse to Dern
cotte justifying her absence from work on 12 May The
fact that she was on leave on 12 May because of family
sickness appears on her attendance card 22 Because the
time 10 30 a in also appears in the same space , I infer
that it was placed there to buttress Respondents conten
tion that Mitchell committed the infraction of calling in
late
Morris testimony that he served a final warning on
Mitchell on 13 May (Wednesday) is improbable because
Morris admitted that Mitchell never received or signed
the asserted warning , and in fact did net even see it As
appears hereinafter, Mitchell was the only nonsuperviso
ry employee who supposedly received an unwritten final
warning prior to discharge-Respondent 's consistent
policy was to issue such warnings in written form
It is improbable that Morris first learned on 13 May
(Wednesday) the reason for Mitchell s absence the prior
day by asking her the question Mitchell had received
permission to leave early on Monday from Morris him
self, and had already given the doctor s excuse covering
Mitchell s absence on Tuesday to Supervisor Derricotte
Further, the fact that Mitchell was on leave Tuesday for
family sickness appears on her attendance card I there
fore reject Morris testimony that he talked with Mitch
ell on 13 May then learned the reason for her absence
the previous day, gave her a final warning , or told her
to report prior to the beginning of her shift if she could
not be at work Instead I credit Mitchell 's denial that
this conversation took place
It is undisputed that Mitchell called Supervisor Derri
cotte the following week , on 18 May (Monday) and
asked for leave because she had babysitter problems Al
though Derncotte initially denied that Mitchell requested
leave he was compelled to admit it after having been
shown his pretrial statement I credit Mitchell 's testimo
20 R Exh 15
21 R Exh 5 22 R Exh 6
782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ny that Derricotte told her that he was sure that it
would be all right' as long as Mitchell communicated
with Quality Control Manager Sims I also credit her tes
timony that she called at probably about 9 30 a in Re
spondent argues that Derricotte and Morris should be
credited that Mitchell called in at 10 15 a in because of
the `certain terms ' of their testimonies 23 However, as
indicated, their terms were no more certain than Mitch
ell s
I credit Mitchell s uncontradicted testimony that she
tried to reach Sims the next day, Tuesday, without suc
cess It is also clear from Derricotte s admission that she
reported she would not be in to work that day Her at
tendance card corroborates her testimony that this call
took place at 9 30-9 45 a m 24
Mitchell s testimony that she went to the plant on 20
May (Wednesday), tried to page Derricotte, and talked
to Nurse Strickland is corroborated by the testimonies of
Strickland and Maebelle Smith Although neither was
specific about the date of this visit, their accounts of it
are consistent with Mitchell s uncontradicted version
Respondent argues that I should not credit Mitchell s tes
timony that Derncotte sent a message to her because the
employee who supposedly brought the message was not
called as a witness It is obvious, however, that Mitchell
did go to the plant and try to reach Derricotte I credit
Mitchell s account of the reason for this visit and what
took place
It is undisputed that Mitchell called the office of Per
sonnel Director Thigpen and was told, through Person
nel Assistant Foster that Mitchell would have to talk to
Sims about her leave request I credit Mitchell s uncon
tradicted testimony that Foster added that Sims would
be out of town until the following Tuesday (26 May)
Derricotte, once again, was compelled to admit that
Mitchell reported the Thigpen call to him on Thursday,
after having been referred to his pretrial statement I
credit Mitchell s testimony that the call to Thigpen s
office took place on 21 May (Thursday)
I also credit Mitchell s testimony that Derricotte told
her on Thursday (21 May) not to call in any more until
she had spoken with Sims and that she might be able to
reach him at the plant the next day before he left town I
further credit Mitchell s testimony that Derncotte said
he would list her absences as Family Sickness until she
met with Sims Derncotte s attempt to limit the Family
Sickness reason to 18 and 19 May (Monday and Tues
day) is not credible Derncotte contradicts himself by
stating that he would list some of Mitchell s absences as
due to family sickness and then denying that he had
any authority to do so Derricotte agreed that it would
not be feasible for him to come to the office to receive
the same report every morning from Mitchell, prior to
her seeing Sims Derncotte was a reluctant witness who
changed his testimony when confronted with his pretrial
statement For these reasons I accept Mitchell's testimo
ny about this aspect of her conversation with Derricotte
I do not credit Crowley's testimony that Mitchell
called her on 22 May (Friday) asked to speak with
Morris, and that Crowley told Mitchell to be in Morris
office the following Tuesday Mitchell would have had
no reason to call Morns-Thigpen and Derncotte told
her to call Sims Crowley could not recall the date of
the asserted order from Morris, and the latter was uncer
tarn that the order was ever communicated to Mitchell
Sims supposedly told Morris on the trip to Atlanta that
Mitchell wanted to discuss a leave with Morris It is
likely that Morris would have responded that he had
issued an order that Mitchell was to be in his office the
following Tuesday The fact that he did not say this to
Sims suggests that there was no such order I credit
Mitchell s denial that Crowley gave her any such in
struction, or that she even spoke with Crowley
I credit Mitchell s uncontradicted testimony that she
went to the plant on 22 May (Friday) and obtained her
paycheck Whether she obtained it from Morris depends
on the validity of Morris and Sims' testimonies that
Morris was in Atlanta about midday when, Mitchell tes
tified, she saw Morris in the personnel department
Respondents evidence about the Atlanta trip is not
persuasive Although it seems clear that Sims and Morris
made the trip, the evidence does not establish beyond
doubt that Morris was not back in the plant by the
middle of Friday Sims and Morris contradict each other
on the time that the bus left for the Willie Nelson show
Assuming arguendo that Sims truthfully reported errors
in the dates on the expense vouchers (which Morris did
not sign), there is no independent documentary evidence,
such as a hotel bill or a restaurant charge, showing the
time that Sims and/or Morris left Atlanta on Friday As
suming that the two meal charges on Thursday should
have been allocated to Friday, the company expense
voucher does not establish the location of the meals The
poultry association brochure does not show when the
seminar ended-assuming that Sims and Morris remained
until the end The voucher of one of the other employ
ees who attended the seminar shows no Friday
charges 25
The possible presence of Sims and Morns in the plant
Friday morning is suggested by Derricotte s advice to
Mitchell that she might be able to reach Sims Friday
morning before he left town This advice would be
consistent with Sims and Morris returning from Atlanta
to Athens Thursday night There is no independent doc
umentary evidence to show that Sims and Morris stayed
in Atlanta Thursday night-they could easily have come
back on Thursday evening after the meal in the Atlanta
restaurant, a driving time of about 2 hours according to
Sims testimony Or if they remained in Atlanta the
same driving time would have made it possible for
Morris to be back in the plant at midday on Friday
Mitchell's testimony that she saw Morns wearing dress
clothes in the personnel department about 11 30 a in is
corroborated by Morris account of what he wore to the
seminar and by Morris acknowledgment that he nor
mally picks up his check from the personnel secretary
Because Mitchell received her paycheck on Friday I
conclude that the other employees also received their
23 R Br at 16
24 R Exh 6 25 R Exh 17
SEABOARD FARMS OF ATHENS
pay the same week Morris said he could not have ob
tamed his paycheck on Thursday because he was in At
lanta His suggestion that he may have picked it up on
Wednesday is contradicted by his own testimony that the
accounting department stopped early delivery of pay
checks Accordingly , the record contains no evidence of
how Morris obtained his paycheck that week-unless as
Mitchell testified , Morris was back in the plant on
Friday and received it at that time If Morris did not re
ceive his paycheck that week , Respondent undoubtedly
had records that would have established this fact The
fact that the Company has not submitted any such
records constitutes evidentiary support for Mitchell s tes
timony that Morris was in the plant on 22 May 26 I
therefore credit Mitchell s testimony that she saw Morris
in the plant on Friday and spoke with him
I also credit Mitchell 's testimony that she saw Dern
cotte at the plant , that he told her he was still listing her
absences as family sickness and that she was to call Sims
the following Tuesday It is probable that Derricotte,
like Mitchell and Morris , also obtained his paycheck on
Friday Further , as already indicated , Mitchell was a
more trustworthy witness than Derncotte
There is no doubt that Mitchell and Sims had a tele
phone conversation in which the latter told Mitchell to
talk to Morris about her leave request However, Sims
assertion that this conversation took place on 20 May
(Wednesday) is contradicted by Derricotte s admission
that Mitchell told him on 21 May (Thursday) that Thig
pen had instructed her to speak with Sims about her
leave request It is highly improbable that Mitchell
would have said this to Derricotte on Thursday if in
fact , she had already spoken with Sims the prior day
(Wednesday) and he had instructed her to speak with
Morris Further Mitchell s account of her conversation
with Sims including the protest that she could have
talked to Morris about the leave request the previous
Friday (22 May) at the plant adds verisimilitude to her
testimony These factors have more probative weight
than Sims averments including his asserted documenta
tion of the date Accordingly I credit Mitchell s testimo
ny that the conversation with Sims took place on 26
May (Tuesday)
I further credit Mitchell s testimony that following
her conversation with Sims on 26 May she tried to
reach Morris on the telephone Because Mitchell could
not reach Morris she told Maebelle Smith to tell Morris
to call her Although Smith did not specify the exact
date of this conversation she testified that it took place
prior to Mitchell s discharge Smith s testimony therefore
constitutes substantial corroboration of Mitchell, and I
find that the conversation between Mitchell and Smith
took place on 26 May (Tuesday), following Mitchell s
conversation with Sims
Smith s further testimony that she reported Mitchell s
call to Morris the next day i e 27 May (Wednesday),
and that Morris replied that the matter had been taken
care of was not specifically denied by Morris Accord
ingly I credit Smith s testimony and reject Morris claim
783
that nobody in the plant heard from Mitchell after 21
May
I further credit Mitchell s testimony , elicited by Re
spondent and corroborated by her notes , that she called
the plant on 27 and 29 May (Wednesday and Friday)
prior to her discharge on 1 June Respondents asserted
records of call ins27 do not constitute effective rebuttal
of Mitchell s testimony Personnel Director Thigpen
agreed that any employee could call in to a supervisor
instead of to the personnel department , and there is no
established form for this report Respondent did not
submit call in sheets for the week of 18 May during
which , its supervisors admitted Mitchell did call in In
these circumstances the call in sheet for the following
week standing alone has less probative weight than
Mitchell s testimony corroborated by her notes
I do not credit Respondents assertions that a manage
ment change and resulting confusion were the reasons
that Thigpen told Mitchell to talk to Sims while the
latter told her to talk to Morris This evidence is contra
dicted by Derricotte 's admission that there was no
change in Morris duties during the relevant events
b Summary
There is little dispute about the rest of the facts In
summary , the credited or undisputed evidence shows
that Mitchell obtained permission on 11 June from Qual
ity Control Supervisor Morris to leave work early be
cause her baby was sick and thereafter delivered a doc
for s excuse covering her absence for the next day Tues
day
On the following Monday ( 18 May), Mitchell request
ed a leave of absence because she did not have a babysit
ter and was told by Supervisor Derricotte that he was
sure it would be all right as long as she talked with Qual
ity Control Manager Sims On Tuesday ( 19 May), Mitch
ell tried to reach Sims without success and reported to
the office that she would not be in to work On Wednes
day (20 May), Mitchell went to the plant in response to a
message sent to her by Supervisor Derricotte and paged
him but could not reach him Mitchell then requested a
leave from a company nurse but was told she would
have to communicate with company supervisors
On Thursday (21 May) Mitchell called Personnel Di
rector Thigpen and was told that she had to talk to
Quality Control Manager Sims about her leave but that
Sims would be out of town until the following Tuesday
On the same day Thursday , Supervisor Derricotte, who
testified that Mitchell said on 18 May that her baby was
sick told Mitchell that he would classify her absences as
family sickness -in effect granting her a leave-until
she talked with Sims Derricotte also suggested that
Mitchell try to reach Sims at the plant the next day
before he left town Mitchell went to the plant on Friday
and saw Morris , who told her that Sims was still out of
town She also saw Derricotte who told her that he was
continuing to list her absences as Family Sickness and
reminded her to call Sims the following Tuesday
26 Penn Industries 233 NLRB 928 936 (1977) 27 R Exh 15
784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On the Tuesday following Memorial Day (26 May)
Mitchell finally reached Sims, who told her that she had
to talk to Morris Mitchell protested to Sims that she had
just talked with Morris on the prior workday (Friday), at
which time the matter could have been resolved None
theless, Mitchell tried to reach Morris, without success
Accordingly, she told Maebelle Smith to tell Morris to
call her at a number at which she could be reached
Smith gave Morris this message the following day, and
was told that the matter had been taken care of
Mitchell called the office on two further occasions that
week (Wednesday and Friday)
There is no evidence that Derricotte, Thigpen or Sims
told Mitchell that she was calling in late ' Although
Morris asserted that he gave her a final warning and
discussed calling in with her on 13 May, I have not cred
ited this testimony Morris admitted that he had a re
placement for Mitchell during her absences
In short, during the 2 week period preceding her dis
charge Mitchell, with the exception of 1 working day
(28 May), either called the plant, called and spoke with a
supervisor, attempted to speak with a supervisor, or ac
tually visited the plant
On 1 June Morris sent Mitchell s termination notice to
the personnel department, termination was for excessive
and unreported absences Morris testified that he never
acted on Mitchell s leave request because she had never
made the request to him personally although he assert
edly had learned from Sims prior to 22 May (Friday)
that he was supposed to talk to Mitchell about her leave
and, as I have found actually talked to Mitchell that
Friday As Mitchell pointed out at the hearing, she did
not know on Friday that she was supposed to talk to
Morris about her leave and accordingly, asked him
whether Sims was back in town
News of Mitchell's discharge was not communicated
to her on 1 June She reached Morris on 9 June asked
about her leave and was told to call back the next day
Mitchell did so and Morris then informed her that she
had been terminated
D Respondents Policies on Personal Leaves of
Absence
Personnel Director Thigpen testified that the Compa
ny gives leaves of absence for medical and `personal'
reasons It is the employees responsibility to initiate the
leave request with his or her immediate supervisor,
which in Mitchell s case was Morris According to Re
spondent's witness Crowley, supervisors could approve
personal leaves as late as 1986 but thereafter, begin
ning January 1987 the departmental superintendent and
the personnel manager had to approve such leaves Per
sonnel Director Thigpen testified to the same effect
Thigpen testified that granting a request for a personal
leave of absence required assessment of subjective factors
on a case by case basis, and that he tries to investigate
the circumstances surrounding each request However,
he does not consider the absence of a babysitter to be
adequate reason for a personal leave of absence
Thigpen did not know why various personal leaves
were granted by him in 1986 28 but explained that these
were given prior to the time he became personally in
volved in such matters However, Thigpen did not know
the circumstances underlying a personal leave request in
March 1987 29 nor was he familiar with the facts justify
ing his approval of a leave from 29 June to 3 August
1987 allowing an employee to visit Taiwan because her
grandmother was `ill 30-about 2 months before the
hearing in this matter
E Respondents Rules on Reporting Absences
1 Summary of the evidence
Respondent s rules required discharge in the event of 2
consecutive days of unreported absences, in some in
stances two unreported absences within 6 months The
factual issue is what constituted effective reporting of
an absence Personnel Director Thigpen testified that
bargaining unit employees were required to report within
2 hours after the shift began, or the absence was consid
ered to be unreported
Thigpen also testified that the rule was otherwise re
garding employees not in the bargaining unit They were
required to report by the time specified by the shift su
pervisor and in all cases before the shift starts
Quality Control Manager Sims affirmed that because it
was a USDA requirement that the Company have a
presentation clerk employees were told the importance
of being on the job every day Sims asserted that he said
this to Mitchell at the time she was promoted to the po
sition of presentation clerk Sims also testified that the
Company had to know before the start of a shift when a
presentation clerk was not going to be present The re
porting time policy regarding nonbargaining unit em
ployees was different `depending upon the responsibil
ity Quality Control Supervisor Morris stated that pres
entation clerks were asked to call in before the start of
the shift " Supervisor Derricotte declared that, to the
best of his knowledge Mary Mitchell was required to
call in at least two hours ahead of time Derricotte
contended that he or Sims told Mitchell to call in more
than an hour ahead of time
Respondent submitted three records of warnings to
employees which included admonitions to call in before
the shift began 31 The first of these involved an employ
ee in the "hatchery department 32 Personnel Manager
Thigpen testified that the Company had a written
policy with regard to absences in the hatchery depart
ment Asked whether that policy applied to quality con
trol employees, Thigpen replied No sir It doesn t
Thigpen was then asked whether the hatchery absentee
ism reporting policy applied to quality control employ
ees His answer is as follows
28 G C Exhs 4 and 6
29 G C Exh 5
30GC Exh 7
ai R Exhs 32-34
32 Linda Cowart R Exh 32 The other two employees were not in
the bargaining unit but their precise assignment is not indicated in the
record
SEABOARD FARMS OF ATHENS
Not the processing plant But I would say that it
really does because throughout the complex in
nonbargaming unit employees if your re out with
out calling in that s final Final warning
Quality control employee Maebelle Smith testified that
she reported her absences before the beginning of the
shift, but that this was a matter of her personal choice
Other employees might gust wait the two hours Smith
also testified about meetings that Quality Control Super
visor Morris held with quality control employees Her
initial testimony about the timing of these meetings was
confusing because Smith did not know the difference be
tween an arbitration hearing and an award After this
was clarified Smith testified that Morris held a meeting
in which he discussed the new policy on not giving out
checks early, clocking out when leaving company prop
erty, and use of the telephones Mitchell was present at
this meeting, but Rucker was not there because she had
been discharged Smith further testified that Morris
called another meeting at which the call in policy was
discussed Rucker was present at this meeting On cross
examination Smith affirmed that this was the only occa
sion when the Company discussed a new rule on calling
in before the start of a shift Smith did not receive a
written statement of the rule
Union Steward Rucker described a quality control
meeting that she attended after her reinstatement Morris
gave various telephone numbers that employees could
call if they were going to be absent According to
Rucker, Morris said that the employees could call in 2
hours before, but not later than 2 hours after, the starting
time Morris did not state a requirement" that such calls
had to be made before the starting time Asked on cross
examination whether Morris specified that the employees
were supposed to call in before the shift began, Rucker
replied I can t say exactly that he made that perfectly
clear that that was something he was really expecting
out of us
Quality Control Supervisor Morris agreed that he had
two meetings with quality control employees, one imme
diately after the arbitration hearing, and another after is
suance of the award (10 July) Mitchell was at the first
meeting , but Rucker was not because she had been dis
charged At this meeting Morris asked the employees to
be `courteous' and call in before the beginning of their
shifts so that replacements could be obtained 33 Morris
testified that this was a request not an order He
contended that Mitchell and one other presentation
clerk, although they were in the quality control depart
ment , were outside the bargaining unit As to these em
ployees, Morris asserted that he suggested more strong
ly that they call in before their shifts began He admit
ted however that he did not single out Mitchell and
specifically direct her to call before the beginning of her
shift 34 Mitchell s shift began at 8 10 am, according to
Morris
as As noted above Morris agreed that he had a replacement for Mitch
ell during her absences
94 As indicated Moms contended that he told Mitchell on 13 May for
the first time to call in before the beginning of her shift-testimony that I
have not credited
785
Mitchell denied that anybody in management told her
that because of her job she was required to call in
before the beginning of her shift She expressed the opin
ion that she had 2 1/2 hours thereafter to report absence
from work Mitchell denied that any supervisor told her
that she was calling in late
2 Factual analysis
Smith Rucker, and Morris agree that the latter held a
meeting of quality control employees at which call in
procedure was discussed They also agree that Morris
held two such meetings, the first one after the arbitration
hearing, and the second one after issuance of the award
The first issue is whether call in procedure was discussed
at the first or second meeting
I credit Smith's uncontradicted testimony that call in
procedure was discussed at only one of the meetings
This is implicitly corroborated by Morris I further
credit Smith s and Rucker's testimonies that this discus
sion took place during the meeting held after issuance of
the award There is no way that Rucker could have had
the knowledge of the call in discussion, which her testi
mony demonstrates if the discussion took place before
the award-Rucker had not been reinstated at that time
Mitchell, on the other hand, could not have been at the
second meeting because she had been discharged prior to
issuance of the award Further, Mitchell testified that
nobody told her to call in before the beginning of her
shift Crediting Smith, Rucker, and Mitchell and reject
ing Morris' contrary testimony, I conclude that Mitchell
was not present during the only meeting at which call in
procedure was discussed because Mitchell had already
been discharged
Even at this second meeting, crediting Rucker as cor
roborated by Morris himself the latter did not issue a
definite order' to call in before the beginning of the
shift He merely asked the employees to be courteous
Although Morris claimed to have suggested this even
more strongly" regarding presentation clerks, he agreed
that he did not issue an order to Mitchell In fact this
would have been impossible because Mitchell was not
present when Morris discussed call in procedure
Morris and Rucker s testimonies do not support Thig
pen s and Sims assertions of an inflexible rule requiring
quality control employees to call in before the beginning
of their shifts Close examination of Sims testimony
shows that he did not claim to have told Mitchell to call
in before shift time when she was promoted to the posi
tion of presentation clerk Sims merely asserted that he
told her about the importance of her position I do not
credit Derricotte s contention that he or Sims told
Mitchell, before 13 May, to call in more than 1 1/2
hours in advance Not even Morris claimed to have said
this to Mitchell before 13 May, and I have not credited
his assertion that he did so on that date Derricotte s and
Morris testimonies about this are inconsistent with the
other evidence, partially corroborated by Morris, that
after Mitchell s discharge Morris made a simple request,
not an order, to call in early Derncotte s remarks about
an hour and a half rule before shift time are not sup
ported by any other evidence from the Company, and
786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
are contradicted by Derricotte himself, the "two-hour"
rule. Thigpen's testimony about application of the hatch-
ery department rule to quality control employees is con-
tradictory, and I do not credit it. Unlike the hatchery de-
partment, there is no evidence of a written rule applying
to quality control employees.
Crediting Mitchell, Smith, and Rucker, partially cor-
roborated by Quality Control Supervisor Morris, I find
that there was no rule requiring Mitchell to call in before
the beginning of her shift. Although Mitchell was mis-
taken in her belief that she had 2-1/2 hours after shift
time to call, there is no credible evidence that Mitchell,
in fact, ever called more than the 2 hours after shift time
permitted by the rule.
F. Respondent's Policy on Written Warnings
1. Summary of the evidence
As indicated, Mitchell received three warnings for un-
reported absenteeism prior to her appointment in 1986 as
a presentation clerk. The first two of these warnings, in
1979 and 1981, respectively, are entitled "Verbal Warn-
ing," while the third one, in 1985, is labeled "1st Writ-
ten" warning. The latter notes that the employee was
furnished with a copy, and that the employee refused to
sign . All three warnings are on a form with the heading
"Conversation with Employee."35 Asked to explain the
difference in the third warning, Personnel Director Thig-
pen testified that the Company's previous policy had
been to issue a first warning in. verbal form. In 1983, the
Company changed to a written warning on the first of-
fense.
Respondent submitted documentary evidence of termi-
nations of employees for two consecutive unreported ab-
sences. The employees were both inside and outside the
bargaining unit. The evidence consists of termination no-
tices, reported "conversations with employees," applica-
tions for state unemployment compensation, administra-
tive decisions, and lists of discharged employees. In some
instances, apparently when the employee simply failed to
report for work on 2 consecutive days or thereafter, he
was assumed to have quit. In other instances, the em-
ployee was given a final written warning ,36 in one case a
second final written warning.37
At least five individuals identified by Thigpen as em-
ployees outside the bargaining unit received final written
warnings prior to discharge.38 Nonetheless, Thigpen
contended that the Company had no "policy" that final
warnings issued to nonbargaining unit employees had to
be in writing. He "would want" supervisors to do so, but
"there's no policy that says that we have to put it down
on paper."
Thigpen was asked to identify nonbargaining unit em-
ployees other than Mitchell whom the Company fired
38 R. Exhs . 11-13.
38 R. Exhs . 19-35.
37 R. Exh. 26.
38 It. Exh . 30 (Charles Harper); R. Exh. 31 (Billy Browning ); R. Exh.
32 (Linda Cowart); R. Exh. 33 (Hazel Bishop); R. Exh . 34 (Guyre
Gordon). One probationary employee not in the bargaining unit was dis-
charged without any record of a written warning , R. Exh . 29 (Lisa Bos-
well).
within the preceding 2 years without a final written
warning. The only individual he named was Personnel
Assistant Don Foster, who was not hourly paid and who
was subject to the same rules of conduct as other super-
visors. Thigpen asserted that he had records that would
identify other nonbargaining unit employees discharged
without a final written warning, but stated that it would
take "all of [his] time" to get them. Quality Control Su-
pervisor Morris agreed that he did not give Mitchell her
asserted "final warning" in writing, but contended that
he was following this practice at the time of the hearing
in this matter. Morris stated that this was the better
policy-now that I look back on it," he added.
Mitchell testified that warnings were in writing, that
the employee was shown a copy and asked to sign, and
in any event received a copy.
2. Factual analysis
Respondent has not supplied any written rules setting
forth its position on written warnings, and the evidence
it elicited is contradictory and ambiguous. Thus, while
Thigpen asserted a change to a first written warning for
unreported absence in 1983, the Company submitted
copies of termination notices thereafter without evidence
of any written warning. I infer either that such warnings
were issued, but are not in the record, or that an employ-
ee who simply walked off and was never seen again was
not given any warning.
Thigpen's admission that he "would want" supervisors
to give nonbargaining unit employees a final written
warning, but had no "policy" requiring it, is contrary to
the written records of such warnings and contrary to
Thigpen's own testimony about the 1983 change in
policy in which he made no distinction between bargain-
ing and nonbargaining unit employees. The fact that
Thigpen was unable to name any hourly paid nonbar-
gaining unit employee other than Mitchell'39 who was
discharged without a final written warning and failed to
produce records admittedly in his possession concerning
the subject of such other discharges,40 supports an infer-
ence that it was the Company's policy to issue written
warnings for unreported absences to employees not
members of the bargaining unit prior to discharge, with
the possible exception of employees who simply failed to
return and were presumed to have quit. Crediting Mitch-
ell, I so find.
G. Mitchell's Credibility
On cross-examination, Mitchell testified that she could
not remember receiving a warning for failure to report
absences. During rebuttal, Mitchell testified that she re-
membered a warning in 1985, and that there might have
been others. She also testified that she did not know that
two unreported absences resulted in discharge.
39 Although Don Foster's supervisory status is not in issue, it is obvi-
ous that his asserted discharge without a written final warning is irrele-
vant regarding the policy applied to hourly paid employees such as
Mitchell.
40 Penn Industries, supra, fn. 26.
SEABOARD FARMS OF ATHENS
Respondent argues that this testimony justifies an in
ference that Mitchell was an unreliable witness This ar
gument has no merit The knowledge of many witnesses
about current or past events is faulty but this does not
warrant invalidation of their testimony concerning events
about which they do have knowledge Because Respond
ent presented no evidence of written rules on discipline,
it is entirely possible that Mitchell was unaware of them
In any event, Mitchell had a truthful demeanor and
her testimony was corroborated in part by the testimo
vies of other witnesses, including Supervisor Derricotte,
and in some instances by Respondents own records,
while Respondents evidence was replete with the con
tradictions outlined above
H Mitchell s Unemployment Compensation Claim
Mitchell filed a claim for unemployment compensation
benefits under Georgia law on 16 July It was denied
and, after an appeal, the case was heard by an adminis
trative hearing officer on 20 August Mitchell and two
witnesses for the Company including Personnel Manag
er Thigpen made appearances The appeal was denied,
in part on the hearing officers determinations that
Mitchell was absent unreported from work from 26
May through 2 June, that her reporting time was 8 00
a in, and that any call in after that time would be con
sidered as an unreported absence 41
I Legal Analysis and Conclusions
As set forth above the complaint alleges that Mitchell
was discharged for engaging in concerted protected ac
tivities, but that this constituted a violation only of Sec
tion 8(a)(1) of the Act However at the hearing and
thereafter, all parties argued the issue whether Respond
ent had discriminatory motivation Thus in opening ar
gument the General Counsel urged that the case present
ed strong animus and his posthearing brief argues that
`Respondent has not rebutted the General Counsel s
prima facie showing that Mitchell s discharge was based
upon an illegal motive 42 Similarly, the Charging Party
contends that Respondents asserted reason for discharg
ing Mitchell was but a pretext to hide the illegal
nature of its actions, taken to be rid of one whom it per
ceived a disloyal employee 43 Respondent argues the
reverse of the same issue and even specifies the shifting
burdens of proof under Wright Line 44
The record contains evidence of discriminatory moti
vation The timing of Mitchell s discharge-shortly after
Mitchell s testimony against the Company in the arbitra
tion proceeding, and simultaneously with Respondent s
characterization of her as a liar in its brief to the arbi
trator-constitutes evidence of unlawful motive under es
41 R Exh 14
42 G C Br 25 The General Counsel cites Crown Central Petroleum
Corp 177 NLRB 322 (1969) enfd 430 F 2d 724 (5th Cir 1970) In that
case the Board stated that evidence of union animus was not necessary to
establish the violation of Section 8(a)(1) which it found therein and that
although the employers conduct may have been inherently discnmina
tory (id at 323 ) it was not necessary to decide that issue
49 C P Br at 20
44 Wright Line 251 NLRB 1083 ( 1980) enfd 662 F 2d 899 ( 1st Cir
1981) cert denied 455 U S 989 ( 1982) R Br at 36
787
tablished Board law Supervisor Derricotte s statement to
Mitchell, after the arbitration, that she should be tired of
eating lunch with the union people also supports an in
ference that Respondent had animus against Mitchell be
cause of her assistance to the Union
Further Mitchell was discharged without a written
warning contrary to Respondents established practice
regarding employees not in the bargaining unit The
warnings Mitchell received before her 1986 promotion
(only one of which was written) could not have had any
effect on her discharge because they were remote in
time, were not referred to by the Respondent, and, in
fact, Mitchell was promoted after receiving them An
employers failure to follow an established practice of
giving warnings prior to discharge constitutes evidence
of unlawful motive 45
Respondents assertion of unreported' absences on
Mitchell s part is false because the evidence does not es
tablish that Mitchell failed to conform to the call in rule
or that any supervisor so advised her Respondents reli
ance on this alleged dereliction is pretextual 46 Nor was
Mitchell guilty of excessive absenteeism Because su
pervisor Derricotte had excused her from further calls
and had told her that her absences would be listed as
family sickness until she discussed her leave request with
Sims Whether Mitchell s leave request based on lack of
a babysitter would have been granted is irrelevant
Nobody acted on the leave request, and Derricotte had
expressed his opinion to her that it would be granted
Mitchell's attempts to find a supervisor to act on her
leave request were more than diligent The sequence of
events outlined above-Derricotte s failure to tell Morris
or Sims that Mitchell needed a leave together with his
assurances to her about family sickness Morris failure to
mention Mitchell s leave request when he saw her on 22
May with knowledge that she wanted a leave and that
he was supposed to act on the request, Respondent s
changing instructions to Mitchell, and the unavailability
of supervisors when Mitchell tried to find them-all
these factors justify Mitchell s characterization of the
Company s actions as "a runaround The totality of the
evidence including the false testimony of some of the
Company s witnesses the doubtfulness or falsity of docu
mentary evidence submitted to support that testimony
and Mitchell s peremptory and uncommunicated dis
charge in the face of an unresolved leave request war
rant a conclusion that the Respondent was simply staging
events to create a pretext to discharge Mitchell
I therefore conclude that the General Counsel has es
tablished a prima facie case that Mitchell s discharge was
discrimmatonly motivated Although such motive is not
alleged in the complaint I see no good reason to decide
the case other than on the terms on which it was litigat
ed by the parties 47
45 Robinson Furniture 286 NLRB 1076 (1987) Prototype Plastics 284
NLRB 711 (1987) Brunswick Corp 282 NLRB 974 (1987) Yaohan of
California 280 NLRB 268 (1986) Woodcliff Lake Hilton Inn 279 NLRB
1064 (1986)
46 Postal Service 275 NLRB 510 (1985)
47 In an attempt to negate the General Counsels prima facie case Re
spondent cites various cases in which discharges were not found to be
Continued
788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It is clear that Respondent has not rebutted the Gener-
al Counsel's prima facie case for the reasons set forth
above.
The determinations by the state hearing officer con-
trary to those made here do not compel a different con-
clusion. From the number of witnesses, it appears that
that hearing was less extensive than the instant unfair
labor practice proceeding. In any event, the Court of
Appeals for the Seventh Circuit in comparable circum-
stances stated as follows:
The Board was not represented before the (state)
Commission, nor did that tribunal consider (the em-
ployer's) possible violations of the National Labor
Relations Act. The National Act was not even men-
tioned in these decisions of the (State) Commission,
and original jurisdiction under that Act has been
committed by Congress exclusively to the Board.
[NLRB v. Stafford Trucking, 371 F.2d 244, 249, (7th
Cir. 1966), enfg. 154 NLRB 1309 (1965).]48
CONCLUSIONS OF LAW
1. The Respondent, Seaboard Farms of Athens, Inc., is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. By discharging employee Mary Mitchell on 1 June
1987 because she engaged in protected, concerted activi-
ties for the purpose of mutual aid and protection, Re-
spondent thereby violated Section 8(a)(3) and (1) of the
Act.
3. The foregoing unfair labor practice affects com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in an
unfair labor practice, it is recommended that it be or-
dered to cease and desist and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent unlawfully dis-
charged Mary Mitchell on 1 June 1987 , it is recommend-
ed that the Respondent be ordered to offer her immedi-
ate and full reinstatement to her former position, dismiss-
unlawful . Thus, in one instance , the employee 's union activity had taken
place over a year earlier and was indistinguishable from like activity of
other employees . There was "nothing in the timing" of the discharge to
suggest unlawful motive, and the employee had a "poor attendance
record" and was discharged "after warning ." Clark Equipment Co., 278
NLRB 498 ( 1986). In Midwest Electric Mfg. Corp., 260 NLRB 174 (1982),
the employee 's only protected activity was attendance at a union meet-
ing, and the employer followed previously announced layoff policies, in-
cluding consideration of seniority , in making layoffs dictated by econom-
ic considerations . In Daniel Construction Co., 266 NLRB 1090 (1983), the
discharge of a supervisor for failing to give management information
about employee union activities was found not to be violative of the Act.
None of these cases has a factual pattern similar to those pertaining to
Mitchell . Her protected activities were far more than attendance at one
union meeting , and obviously she was not a supervisor . Unlike the Com-
pany's treatment of other employees who testified at the arbitration pro-
ceeding , Respondent called Mitchell a "liar" at the same time that it was
discharging her without notice . She was not given a warning-on the
contrary , she was given assurances that her absences would be excused.
48 Accord: NLRB v. Western Meat Packers, 368 F.2d 65, (10th Cir.
1966), enfg . 152 NLRB 1066 ( 1965).
ing if necessary any employee hired to fill the position,
and to make her whole for any loss of earnings she may
have suffered because of Respondent's unlawful conduct,
by paying her a sum of money equal to the amount she
would have earned from the date of her unlawful dis-
charge to the date of an offer of reinstatement, less net
earnings during such period, to be computed on a quar-
terly basis in the manner established by the Board in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).49
It is also recommended that Respondent be required to
post appropriate notices, to remove from its personnel
records all references to its unlawful discharge of Mary
Mitchell, and to notify her in writing that such .removal
has been made and that evidence of its unlawful disci-
pline of her will not be used as a basis for future person-
nel action against her.
The General Counsel's brief includes a recornmenda-
tion for a visitatorial clause on the ground that such
clauses should be routinely included in Board orders. In
Cherokee Marine terminal , 287 NLRB 1080 (1988), the
Board declined to utilize this remedy on a routine basis
and stated that it would do so only when there was a
likelihood that a respondent would fail to cooperate or
otherwise attempt to evade compliance. There is no evi-
dence of this in the instant case and, accordingly, I shall
decline to recommend a visitatorial clause.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed6o
ORDER
The Respondent, Seaboard Farms of Athens, Inc.,
Athens, Georgia, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discouraging employees from engaging in protect-
ed, concerted activities for the purpose of mutual aid and
protection by discharging them for engaging in such ac-
tivities, or by discriminating against them in any other
manner with respect to their hire, tenure of employment,
or terms and conditions of employment.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Mary Mitchell immediate and full reinstate-
ment to her former job or, if that job no longer exists, to
49 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987 , shall be
computed at the "short -term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S.C. § 6621 . Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U.S.C. § 6621), shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
so If no exceptions are filed as provided by Sec . 102.46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall , as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
SEABOARD FARMS OF ATHENS 789
a substantially equivalent position without prejudice to
her seniority or any other rights or privileges previously
enjoyed, and make her whole for any loss of earnings
and other benefits suffered as a result of the discrimina
tion against her, in the manner set forth in the remedy
section of the decision
(b) Remove from its files any reference to the unlawful
discharge and notify the employee in writing that this
has been done and that the discharge will not be used
against her in any way
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at Athens, Georgia place of business copies of
the attached notice marked "Appendix 51 Copies of the
notice, on forms provided by the Regional Director for
Region 10, after being signed by the Respondent's au
thorized representative, shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
61 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
WE WILL NOT discourage employees from engaging in
protected concerted activities for the purpose of mutual
aid and protection by discharging them for engaging in
such activities or by discriminating against them in any
other manner regarding their hire, tenure of employ
ment , or terms and conditions of employment
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL offer Mary Mitchell immediate and full rein
statement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prej
udice to her seniority or any other rights or privileges
previously enjoyed and WE WILL make her whole for
any loss of earnings and other benefits resulting from her
discharge, less any net interim earnings , plus interest
WE WILL notify her that we have removed from our
files any reference to her discharge and that the dis
charge will not be used against her in any way
SEABOARD FARMS OF ATHENS INC