Spring Valley Farms, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 643 (N.L.R.B. 1985)

SPRING VALLEY FARMS
Spring Valley Farms, Inc. and James Ledbetter.
Case 10-CA-19972
28 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 11 September 1984 Administrative Law
Judge Lawrence W. Cullen issued the attached de-
cision. The General Counsel and the Respondent
filed exceptions and supporting briefs.
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, I 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, Spring
Valley Farms, Inc., Oxford, Alabama, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
I The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge.
This case was heard by me on May 4, 1984, in Anniston,
Alabama The complaint is based on a charge filed by
James M Ledbetter, an individual, on February 2, 1984,
and alleges that Respondent Spring Valley Farms, Inc.,
violated Section 8(a)(1) of the National Labor Relations
Act (the Act), by threatening its employees with layoff
and plant closure if they joined or engaged in activities
on behalf of Carpenters and Joiners of America, AFL-
CIO, Local 2069 (the Union); that Respondent violated
Section 8(a)(3) and (1) of the Act by its discharge and
refusal to reinstate employee James M. Ledbetter be-
cause of his membership in, and activities on behalf of,
the Union; and because he engaged in concerted activi-
ties with other employees for purposes of collective bar-
gaining and other mutual aid and protection. Respondent
by its answer filed March 19, 1984, has denied the com-
mission of any violations of the Act
On the entire record in this case, including my obser-
vation of the demeanor of the witnesses, and after due
consideration of the closing statements of the parties and
the brief filed by Respondent, I make the following
643
FINDINGS OF FACT AND ANALYSIS
I JURISDICTION
A The Business of Respondent
The complaint alleges that "Respondent is an Alabama
corporation with an office and business located at
Oxford, Alabama, where it is engaged in the manufacture
and distribution of poultry feed," that "Respondent,
during the past calendar year, which period is represent-
ative of all times material herein, sold and shipped from
its Oxford, Alabama, facility goods valued in excess of
$50,000 directly to customers located outside the State of
Alabama," and that Respondent is, and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Respondent denied in its answer the complaint allega-
tion that it "sold and shipped from its Oxford, Alabama,
facility goods valued in excess of $50,000 directly to cus-
tomers located outside the State of Alabama," and
denied that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
At the hearing, the General Counsel declined to put
on any evidence to support the complaint allegation that
Respondent sold and shipped from its Alabama facility
goods valued in excess of $50,000 directly to customers
located outside the State of Alabama, but instead relied
on the decision in Case 10-RC-12859 in which the Re-
gional Director asserted jurisdiction over Respondent.
Respondent contends, in its brief as it did at the hearing,
that this allegation is incorrect, and there is no evidence
in this record or in the record in Case 10-RC-12859 to
support this allegation, and the complaint should be dis-
missed for lack of jurisdiction. At the hearing, the Gen-
eral Counsel relied on Frontier Marketing Cooperative,
229 NLRB 1046 (1977), in which the Board affirmed
without comment a finding by the administrative law
judge that the issuance as to whether Respondent was an
agricultural employer had been fully litigated in a prior
representation case. The General Counsel also cited in
support of its position John Bagwell Farms, 192 NLRB
547 (1971), for the proposition that the jurisdictional
issue is not relitigable as it has been resolved in a prior
representation case.
I have reviewed the transcript and the decision in Case
10-RC-12859. That transcript contains a stipulation by
Respondent that "The Employer during the past twelve
months received at its Oxford facility goods valued in
excess of $50,000 directly from suppliers located outside
the State of Alabama." Thus, in the instant case before
me, the General Counsel pleaded but did not prove the
direct outflow standard sufficient to establish jurisdiction.
However, in the previous representation case, the Re-
gional Director found that Respondent was an employer
within the meaning of Section 2(6) and (7) of the Act as
established by the record in that proceeding , that Re-
spondent met the direct inflow standard to establish ju-
risdiction Under these circumstances, I take judicial
notice of the decision and the transcript in the prior rep-
resentation case and find that Respondent is an employer
within the meaning of Section 2(6) and (7) of the Act in
274 NLRB No. 91
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the absence of any evidence submitted by Respondent
that it no longer meets the direct inflow standard estab-
lished in the representation case. The dismissal of this
case for lack of jurisdiction as a result of the General
Counsel's failure to prove the direct outflow standard
would be the exaltation of form over substance in view
of the establishment of jurisdiction in the prior represen-
tation case
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act
iII. THE ALLEGED UNFAIR LABOR PRACTICES
James Ledbetter was employed as a truckdriver by
Respondent in January 1983. As a truckdriver, Ledbetter
was assigned to a 12-hour shift during which he was re-
sponsible for delivering loads of chicken feed from Re-
spondent's mill and feed mix operation to farmers with
whom Respondent had contracted to raise its chickens.
It was undisputed that delays frequently occur wherein
drivers are required to wait for loads because of break-
downs of mill machinery and of the trucks, and there has
been a liberal practice of permitting the drivers to go to
local restaurants while awaiting their trucks to be loaded
for delivery Drivers are paid on the basis of tonnage
they load which is utilized to fix an hourly rate of pay
which they are paid for time spent on the job They are
on the, clock for a 12-hour shift with an hour deducted
I'or lunch
Ledbetter testified that he was a union supporter who
signed a union authorization card, solicited the signing of
union cards by four or, five other employees, one of
whom was solicited on Respondent's premises, and dis-
cussed the union campaign with Respondent's supervi-
sors. He''also discussed the Union with the employees on
Respondent's premises He also attended a representation
hearing on October 11; 1983, on behalf of the Union at
which' Respondent's representatives (Mill Manager Jerry
Warren and Respondent's director of human resources
Floyd Maples) were also in attendance although he was
not required to testify.
Ledbetter testified that on approximately October 13
or 14, 1983, he inquired of Second-Shift Mill Supervisor
Randy White whether the plant would be closed down
as a result of the union activity as he had heard from an-
other. employee that Respondent would close the plant if
the• employees selected the Union as their bargaining rep-
resentative. Ledbetter testified that White' told him that
Respondent was not making money and had closed its
Blountsville plant and laid off over half of the employees
at its Cullman plant because of union activities and
would not recall the laid-off employees because of their
support of the Union's campaign at the Cullman plant.
Ledbetter testified further in response to additional ques-
tioning by the General Counsel that White also told him
Respondent would not hesitate to do whatever it took to
defeat the union campaign.
Ledbetter testified that as a truckdriver, he worked the
first shift from 4 p.m until 4 a m., 5 days a week, and
during his shift, he would normally make two or three
trips to deliver feed to the farmers who raised chickens
for Respondent When he arrived, he checked the dis-
patch board in the scale room office. The dispatch board
contains the names of each of the truckdrivers with their
home telephone numbers and a clip with trip tickets for
feed which was to be loaded into the trucks and deliv-
ered to the growers The drivers print their own bills
showing the weight on the delivery (trip) tickets. As a
driver, Ledbetter would take the tickets to the truck as-
signed to him, inspect the truck, and then drive the truck
onto a scale to weigh the truck empty He would then
seek out a loader (a feed mill worker who loads the
trucks) to load the truck. Ledbetter would then drive the
truck under the feed bins and the loader would then
open the bins to load the truck. Ledbetter would then
drive the truck back on the scales and weigh the truck
which had been loaded with feed, then subtract the
weight of the truck when empty and obtain the net
weight of the feed which was then delivered to the
grower Ledbetter was paid an hourly rate based on the
tonnage of the feed delivered and a determination wheth-
er the trip was a short or long one This hourly rate is
also used in setting overtime pay Drivers are paid time
and a half for overtime for hours worked in excess of 40
hours per week, according to the testimony of Plant
Manager Jerry Warren
Ledbetter testified that the mill experienced operating
difficulties and breakdowns at least once a week, result-
ing in delays, and that delays were also occasioned be-
cause of operating problems with the trucks He testified
further that on these occasions, the drivers would go to
restaurants and "kill as much time as we thought was
necessary to, you know, allot for what was wrong with
the mill " He testified further that there were no set pro-
cedures or rules for doing so, but there "was a real lax
atmosphere among the drivers, since we were paid by
the ton" and that drivers could "more or less come and
go as we wanted to at the mill " He testified that when
he left at times that there were delays in getting loaded,
he sometimes did and sometimes did not tell someone
where he was going and that he would tell "whoever
was available, whoever was standing the closest," as the
mill managers would know the mill was "broken down."
The mill managers or supervisor (Stanley Birdette)
would call him and other drivers at home and at a local
restaurant Ledbetter lives nearby the plant (12 to 15
miles) and would go home during the downtime, "nu-
merous times " He had also been told by Mill Manager
Warren that if the mill was down and he was unable to
deliver the last load prior to the end of the shift to leave
it for the driver on the next shift On these occasions, the
trip ticket would be left on the dispatch board which
would show that the load had not been delivered and the
next shift supervisor could place the ticket under the
name of another driver on the next shift. He testified that
on several occasions, he left the workplace during the
shift or delayed coming in because the mill was not oper-
ating or a truck was not available, and he would either
SPRING VALLEY FARMS
be told by Assistant Mill Manager Randy White to leave
or that he would tell White he was going to leave and
that White would call him at home when the problem
was solved. On some occasions, he did not tell White be-
cause White knew where he would be and could call
him at home. He testified further that Edward (Buddy)
Weathers, a feed mill mixer, would also call the drivers
at the restaurants when the feed was ready.
On November 7, 1983, Ledbetter arrived at the feed
mill at the start of his shift at 4 p.m and was met by
Feed Mill Manager Warren who told him "that the feed
mill was torn up , that there was no feed available, and to
come back in approximately an hour. "Ledbetter went
home and returned in an hour ." The feed mill was still
not operating Ledbetter asked the feed mixer, Edward
"Buddy" Weathers, when the feed would be ready.
Weathers replied, "in a few minutes , in a little while."
Ledbetter then waited from 5 p.m. until 7 p.m. when his
first load of feed was ready for delivery and Ledbetter
proceeded to deliver the load to Ranburne, Alabama.
When he arrived at the farm house, he discovered that
the truck's feed delivery auger was not operating and he
was unable to unload the feed. He called Assistant Mill
Manager Randy Hampton who was still at the mill and
informed him of this . Hampton told him to return the
truck, which Ledbetter did, arriving between 7:30 and 8
p.m. He was going to use a spare truck to deliver the
second load but discovered that the backlight (which is
necessary to unload feed at night) was not working. He
reported this to Hampton who called a mechanic in to
repair it When he had initially returned from his earlier
delivery, he had been told that it could be another hour
before the feed would be ready, and he told Hampton
that he would "take a lunchbreak and kill an hour or
so." He returned after an hour to an hour and 15 minutes
and found that the lights on the spare truck had been re-
paired and that another truck had come in and was
empty and available which he chose to use rather than
the spare. He weighed this truck in (empty) and the feed
was not ready until 10:30 p.m. when he was able to load
only six bins of feed (a partial load) as the bin had run
out of feed Weathers told him he would run more feed
for him and at approximately 11 p.m., he asked Weathers
again whether he was ready to load his feed. Weathers
replied that he was running a different feed at the time
He told Weathers that he needed to go, as he had been
waiting since 8.30 p . m., and this would be his last load of
the night. Weathers told Ledbetter it would be a few
minutes until he could start on it. At this time, the truck
was still on the scales and Weathers and Terry Hudgins,
who was doing the loading of the trucks that night, ap-
proached and Hudgins asked Ledbetter whether he was
going to wait for his truck to be loaded. Ledbetter re-
plied, "No, I'm going to go home, Terry." At this point,
Weathers inquired , "You're not going to wait on the
feed, Jim? Are you going to wait on it or not?" Ledbet-
ter then answered, "No, I'm not Buddy [Weathers], I'm
going to go home. I've waited for 2-1/2 hours, and I'm
going to go to the house." He then pulled the truck off
the scale and parked it , washed up in the restroom,
turned in his trip tickets by leaving them on the clip
under his name in the scale office, and left approximately
645
10 minutes later at 11 : 10 p.m. At the time he pulled off
the scale, his truck had only six bins of feed on it which
is less than the full truck load of eight bins. He did not
wish to take the partial load as he regarded it as disad-
vantageous to take a partially full truck on a delivery.
The normal custom is to await a full load although he
has on rare occasions delivered less than a full load at
the instruction of Plant Manager Warren . On this occa-
sion , no one instructed him to deliver the partial load
He did not return to the mill that night . Ledbetter testi-
fied that in the past , if he were assigned a load of feed to
deliver at a time when he would not be able to complete
the delivery and return to the mill by 4 a.m., the end of
his shift , he was not to take that load but was to leave 'it
for the drivers on the next shift and on those occasions,
he would go home and not be called back prior to the
end of the shift.
On the next day, Ledbetter came to work early at 3
p.m. to complain to Mill Manager Warren concerning
the delays of the prior night. When Ledbetter spoke to
Warren , Warren notified him he was suspended indefi-
nitely for walking off the job. Ledbetter protested that
he had not walked off the job but had come to complain
about his inability to work the prior night (as a result of
the delays). Warren told Ledbetter that he had talked to
Stanley Birdette, the supervisor of the shift , who had in-
formed Warren that it was 4 or 5 a.m. before they were
aware of Ledbetter 's whereabouts. , ,
On the evening of his suspension , Ledbetter returned
to the feed mill office and confronted Birdette and told
him that he had witnesses to counter Birdette 's alleged
statement to Warren that he had been unaware of Led-
better 's whereabouts until 4 or 5 a . m. At that time Hud-
gins , who was then present , told Birdette that he had
told him that Ledbetter was going home and that Bir-
dette had known where Ledbetter was. At that point,
Assistant Mill Manager White, who was also then
present, stepped in front of Ledbetter and looked "stern-
ly" at Hudgins who then said no more.
On the day following his suspension, Ledbetter re-
turned to ask Warren for his job Warren said no, that
Ledbetter was still suspended indefinitely and that he
would contact him later. Ledbetter subsequently filed for
unemployment compensation and Warren denied that he
had discharged Ledbetter. On the following Friday,
Warren called Ledbetter by telephone to come to the
office which he did. Warren informed Ledbetter that he
had talked to his supervisor and it was their unanimous
decision to discharge him although it was their impres-
sion that he had walked off the job rather than been ter-
minated. When pressed further by Ledbetter as, to
whether he was discharged or not , Warren stated that he
was discharged.
On cross-examination, Ledbetter acknowledged that
his affidavit given to a Board agent concerning this case
had not included an alleged statement by White that Re-
spondent would do whatever it had to in order to defeat
the Union 's campaign to which he testified at the hear-
ing. He contended that he had recalled it after giving the
affidavit. He admitted on cross-examination that he was
aggravated when he left on the final night of his employ-
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, and that he told Weathers that he would not wait
for the feed to be loaded any longer since Weathers had
no idea when it would be ready. He testified that White
had called him at home on five or six occasions in the
past when he had gone home during his shift to await
the repair of the mill or a truck On each of these occa-
sions, he had told White he was going to go home and
White had indicated his approval. Ledbetter also testified
that Mill Supervisor Stanley Birdette had on an average
of once or twice a week called him as well as other
truckdrivers at a local restaurant (where they had been
waiting because of a delay) to return to the mill to make
their deliveries and that on only half of those occasions
had he previously told Birdette where he was going.
Ledbetter further testified that he had on at least two
prior occasions gone home while waiting for a truck to
be ready without checking with White and had returned
to work if White called him as White knew where he
was as his home phone number was on the dispatch
board in the scale office.
Denny Erwin , a truckdriver employed on the day
shift , testified as follows- Delays have occurred several
times wherein there were problems with the mill or
trucks and he was required to wait . When this occurs, he
usually goes to a local restaurant to eat. There has never
been a procedure explained to him by Respondent
wherein he has to tell anyone where he is going but he
does so If Warren , the mill manager , is there at the time
he learns of the delay, he tells Warren he is going. Oth-
erwise, he tells whoever is in the scale room , including
nonsupervisory employees . He has left without telling a
supervisor more than once. He may know when to
return if he has been told when the feed mill will be
ready. The secretary has also called him at the restau-
rant. He has never left without telling a supervisor and
then failed to return . He lives 32 miles from the mill.
Michael Russell, a feed mixer, testified as follows: On
November 7, the night of Ledbetter 's termination, he
walked into the computer room. Randy White, Stanley
Birdette , and Buddy Weathers were all in the room at
the time at the start of his shift shortly after 11 p.m
Hampton and White were working on the pellet mill so
he stood beside Birdette Terry Hudgins (a loader)
opened the door, stepped in, and "said that Jim Ledbet-
ter was going home." No -one said anything . He had no
trouble hearing Hudgins. He was standing beside Bir-
dette at the time. The feed that Ledbetter was to deliver
was ready shortly after midnight and he informed Bir-
dette it was ready Ledbetter did not return that night
A number of days later, Russell discussed the dis-
charge of Ledbetter with Birdette at which time he told
Birdette, "Stanley, between me and you, they fired Jim
because of the union , didn 't they?" to which Birdette re-
plied, "I can't say that they fired him over the union
The only thing that I can tell you, the only thing I've
ever heard Jim say was union , union , union " He has also
asked Birdette on several other occasions as to why Led-
better was discharged and that Birdette would reply
"that he couldn't tell me why they fired him. He recalled
occasions when the other drivers had left the mill with-
out telling a supervisor when they were leaving. Specifi-
cally, he recalled an incident wherein truckdriver Char-
lie Spivey was assigned by Supervisor Birdette to load
his truck at the end of his shift for the driver on the next
shift and Spivey left without doing so. This incident oc-
curred 3 weeks to a month prior to the hearing Birdette
was upset with Spivey's failure to load the truck and re-
marked that Respondent should fire Spivey because if
Respondent did not , it would help Ledbetter 's case, and
if Respondent did, it would hurt Ledbetter 's case. Spivey
was not discharged . Russell recalled another occasion 3
or 4 months prior to the hearing when Spivey left while
Russell was in the middle of running feed and failed to
load it on his truck , thus risking the feed becoming
clogged in the mill.
Russell recalled a further conversation with Birdette
concerning Ledbetter's discharge during which Russell
remarked to Birdette , "Stanley [Birdette], they run Jim
[Ledbetter] off because of the union," to which Birdette
replied,
. . . the Company [Respondent] lead [led] Jim to
the bedroom, Jim pulled his pants down so the
Company put it to him.
Russell then inquired further , "Well, you're saying the
company is mad at Jim ." Birdette replied , "Yes. They're
mad at him . He was for the union "
On cross-examination Russell was questioned concern-
ing a meeting held by Respondent 's representatives prior
to the election . He testified that it was at this meeting
that Respondent 's representative Perkins told him that
Respondent was not "mad at Jim [Ledbetter]." He also
testified that before Buddy Weathers (the mixer on the
day shift whom Russell replaces) left, he told him that he
had Ledbetter 's load of feed ready to run and that Rus-
sell told Birdette shortly after midnight that Ledbetter's
feed was ready He acknowledged that he had talked to
Ledbetter outside (previously) and that Ledbetter had
told him he was going home but that Russell did not
relate this to Birdette.
Dennis Parker, a mill worker who unloads feed at Re-
spondent 's mill on the 11 p m . to 7 a m. shift, testified as
follows. In 1983, truckdriver Charlie Spivey left the mill
without telling his supervisor, Birdette , near the end of
the shift after Spivey was loading feed and was told it
would be 15 minutes . Rather than wait, Spivey left Bir-
dette went to get Spivey but "came back mad" and told
Parker he was going to talk to Warren and inform him
of this Parker also recalled another incident 3 or 4
months prior to the hearing when Spivey was told to
load his truck on a Friday night near the end of the shift
in order that it would be ready for the driver on
Monday morning. Spivey initially refused and then said,
"okay" and then left the premises but did not load the
truck . Birdette was "mad " and Birdette and Parker later
went to Warren the following Tuesday morning and ex-
plained what had happened Warren told Parker not to
worry as long as a supervisor knew what was occurring
Birdette informed Warren that Spivey had left the job
without telling him (Birdette). Warren stated that Spivey
hated to load and that Spivey was on his own time when
he left and was not getting paid for it. A "couple of days
later," Birdette said that "they [Respondent ] should fire
SPRING VALLEY FARMS
him [Spivey] It wouldn't look good on Jim's [Ledbetter]
case if they keep him It would help Jim's case." He
came in on the tail end of a conversation between Rus-
sell and Birdette and heard Birdette say, "The only thing
I heard him talk about was union, union." It happens fre-
quently that a truckdriver leaves without loading his
truck
Respondent called on behalf of its case as witnesses
Jerry Warren, Randy White, Randy Hampton, Terry
Hudgins, A Stanley Birdette, and Edward Weathers.
Warren testified as follows. He is the manager of Re-
spondent's Oxford feed mill, a position he has held for 7
years. In November 1983, Randy White was the assistant
feed mill manager Stanley Birdette was a supervisor on
the third shift, and Randy Hampton was the supervisor
on the second shift There are two shifts for drivers, 4
a.m to 4 p.m. and 4 p.m. to 4 a m. Drivers are paid by
the ton at either a shorthaul rate (within a 50-mile radius
of the mill) or a longhaul rate (outside of the 50-mile
radius of the mill). The tonnage and the hours required
to deliver the feed are utilized to arrive at an hourly rate
which is the rate the drivers are paid. The hourly rate is
used to compute overtime. Drivers are required to clock
in and are allowed an hour for lunch which is subtracted
from the total hours All of the time the drivers are on
the clock and ready to deliver feed is included in the cal-
culation of hourly pay. Thus, drivers are paid for waiting
time as well as actual driving and loading time.
Warren denied having made the statement attributed
to him by Parker that Spivey did not like not getting
paid when he was working with reference to his refusal
to load the feed on his truck on a Friday night for an-
other driver on Monday morning. He called Spivey into
his office the following Monday morning after being ap-
prised of this by Parker and Birdette. He then told
Spivey that there had not been a clear policy for drivers
to load the truck on Friday night for the drivers on the
Monday shift but instructed him to do so in the future
and told Spivey that he was going to establish a written
policy requiring this and that disciplinary action would
be taken if he failed to do so again.
With respect to the discharge of Ledbetter, Warren re-
ceived a telephone call at 1 to 1.15 the morning of No-
vember 8, 1983, from Hampton informing him that a
truck load of feed had not been delivered by Ledbetter.
When he arrived at work the next morning, he apprised
Floyd Maples (Respondent's director of human re-
sources) of the situation. He also talked to Birdette
before he left and to Hampton when he reported in to
work He contends that at this time he had no knowl-
edge of any union activities on the part of Ledbetter
with the exception of his appearance at the representa-
tion hearing.
Birdette informed Warren that Ledbetter had left the
loaded truck that night and that Birdette had discovered
this at I to 1:15 a.m. and had called Hampton. Hampton
had then called Warren. That afternoon Ledbetter came
into his office and Warren asked him why he had "left
the load " Ledbetter replied that he had "waited on feed
two times that night; he wasn't paid to wait on feed; he
was paid by production and he left the load " Ledbetter
told him he had told Terry (Hudgins) he was going
647
home. Warren told Ledbetter he would investigate fur-
ther and Ledbetter could get back in touch with him on
Friday Warren then proceeded to talk to Hudgins,
Weathers, and Birdette
Warren has the authority to hire and discharge em-
ployees at the mill and decided to discharge Ledbetter
after his investigation of the matter after receiving the in-
dividual versions of what occurred as written up by
Weathers, Hudgins, Birdette, and Hampton (R. Exhs. 6-
9). He determined from this investigation that Ledbetter
had returned to the mill after experiencing difficulty with
his first load of feed, that he "ultimately got a truck
available for his second load and he didn't have enough
feed for it at that particular time and then left and went
home." Ledbetter did not tell any supervisor he was
going home and did not return to deliver the load of
feed. Only one other employee has done this in the past.
This occurred about 6-1/2 years previously, and the em-
ployee was discharged. On Friday morning following
November 8, 1983, he met with Ledbetter in his office
and discharged him telling him that "it was my decision
that I couldn't have drivers leaving and not carrying out
their assignments at will, and that as far as I was con-
cerned, he'd quit his job, and I didn't have a job for
him." At this time Ledbetter contended Ledbetter "had
done it before and felt that I was being unfair and he
wanted to know if I had considered him quit or terminat-
ed and I told him, well, it didn't make any difference, I
Just didn't have a job for him."
Warren acknowledged that the truckdrivers are not on
a rigid schedule. They are given an hour for lunch and
take it when it fits into their schedule. If their loads are
available on a timely basis, they can take it at their
option. If delays are experienced, they normally take
lunch at the time of the delay Drivers do not necessarily
tell anyone when they leave for lunch. Drivers are to
stay on the premises while awaiting their loads unless at
lunch or unless given permission. He has given Ledbetter
permission in the past to leave and, on the night in ques-
tion, he had told Ledbetter to return at 5 p m after Led-
better had reported in (at 4 p.m) On another occasion,
Ledbetter had been given permission by Warren to take
an entire shift off He acknowledged that he had ,taken
no disciplinary action against Spivey because of the inci-
dent involving his refusal to load the truck as reported
by Birdette and contended he was unaware of the prior
incident of Spivey's refusal to load the truck. He ac-
knowledged he is normally not present during the major
portion of the 4 p m. to 4 a.m. shift and is not aware of
each time someone leaves the plant The load that Led-
better did not deliver on November 8 was delivered the
next morning
Warren testified further that on several occasions in
the past, Ledbetter has reported to work and either his
feed or the truck were not ready and has said, "Hey
look, I'm going to go back home and you [Warren] call
me or have Randy [Hampton] call me when my truck's
ready." This posed no problem to Warren, and Ledbetter
would be called at home and would return in 15 minutes
On this occasion, the night of November 8, 1983, Led-
better did not notify a member of management or super-
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vision (Hampton or Birdette). It has been reported to
him that there have been occasions when drivers have
left and informed the nearest nonsupervisory employee
where they were going and these drivers were not disci-
plined for doing so. The offense for which Ledbetter
was discharged was "One, he left without permission
from that [the] two management people. Two, he failed
to carry out his work assignment when the load was
ready and available to him to do so." In the prior case
wherein an employee was discharged 6-1/2 years ago, he
left although the load was ready unlike the case involv-
ing Ledbetter wherein the load was not ready In Led-
better's case, the feed was ready within 30 minutes from
the time Ledbetter left. He is unaware whether his super-
visor called Ledbetter at home on the night in question.
Randy White testified as follows: He is employed as
Respondent 's assistant mill manager , a position he had
held for about a month at the time of the hearing. In No-
vember 1983, he was a shift supervisor He denied
having had a conversation with Ledbetter in which he
told Ledbetter that Respondent had shut down half of its
Cullman plant because of the Union or that it had shut
down its Blountsville plant because of the Union or that
employees from either plant had been laid off because of
the Union. On one occasion, Ledbetter asked him what
he knew about the closing of the Cullman plant and
White told him "it was due to the cost involved in
making feed at either plant which decided who would
get the most gross ." During this conversation, neither he
nor Ledbetter mentioned the Union. On another occa-
sion, he was asked if the Blountsville plant had been shut
down "because of voting the Union in." He does not
recall whether Ledbetter or someone else asked him this
He responded that he had "no idea what goes on at
Blountsville." He contends he had no knowledge of Led-
better's involvement with the Union
Randy Hampton, who is currently employed as a man-
ager of another feed mill but who was formerly Re-
spondent's assistant manager of its Oxford, Alabama feed
mill, testified as follows: He was working on the night of
November 7, 1983, as the mill was not operating. Led-
better called in that night and told him that his truck was
not operating and Hampton told him to bring it back to
the mill They proceeded to give him another truck but
the lights were not working . Hampton called in a me-
chanic to fix the lights and Ledbetter went to eat after
asking and receiving permission from Hampton to do so.
Hampton then proceeded to work on the mill He was
present in the computer room with Weathers and Bir-
dette and possibly Russell when Hudgins came in and
"said that Jim [Ledbetter] had got 6-1/2 bins [of feed]
and he was going on " Hampton assumed that Ledbetter
was going to deliver the six bins (a partial) load to the
farm He later saw that the truck on which the lights had
been repaired was still on the premises and inquired of
Russell and Birdette where Ledbetter was, and they told
him•that he had gone in another truck . He went home at
11 to 11:30 p.m. that night and at 12 to 12.30 a.m, he
received a telephone call from Birdette who informed
him that Ledbetter had gone home On cross-examina-
tion, he acknowledged that Hudgins had also told them
that Ledbetter had not wanted to wait. He did not in-
struct Birdette to contact Ledbetter at home. He has
never known a driver to leave without permission and
then fail to return to deliver the load. Nor is he aware of
any occasions on which an employee notified another
employee rather than a supervisor that he was going and
was then called to return.
Terry Hudgins testified as follows- He is employed as
a loader on the second shift On the night in question, he
loaded Ledbetter's truck with 6-1/2 bins of feed, and the
bins ran out of feed before the truck could be fully
loaded. Ledbetter said if it weighed over a certain
amount, he would take it out. The load was weighed and
it did not reach that amount and Ledbetter "told me he
wasn 't going to take it out . He was going home." Led-
better then pulled off the scales and parked his truck,
and Hudgins walked into the mix (computer) room and
told Weathers that Ledbetter was going home Hudgins
does not recall who else was present in the room with
Weathers at the time Prior to this, no driver had told
Hudgins rather than a supervisor that they were going
home or to a restaurant.
Arnold Stanley Birdette testified as follows: He is em-
ployed as a shift supervisor at Respondent ' s Oxford mill
and works from 10 p.m. to 7 a.m He was aware of a
union campaign on Respondent 's premises in October
and November 1983. Shortly after Ledbetter's discharge,
he had a conversation with Russell wherein Russell told
him that Ledbetter was fired because of the Union. He
told Russell he did not believe it. On two or three other
occasions, Russell has told him Ledbetter was fired be-
cause of the Union. He has never told Russell that all he
had heard Ledbetter talk about was union , union, union
Russell told him that, "Well, Jim [Ledbetter], bent over
and they put it to him " He had several conversations
with Russell during the union campaign wherein Russell
told him that he and Ledbetter were "going to make
sure it [the Respondent ] went union ." He would reply
that he did not know and, "just have to wait and see."
Birdette testified that he was on duty as a supervisor
the night in question The mill was down and the electri-
cians were there attempting to get it back in operation.
He talked briefly to Ledbetter and told him his feed was
ready, and Ledbetter said he was going to load it. There
were several people in the "batch [computer] room"
checking something with panels (the electrician, Hamp-
ton, Russell, and Weathers) and Terry Hudgins opened
the door and said, "Well , Jim lacks bin a piece but he's
gone." He assumed Ledbetter was tired of waiting and
would haul what he had. Drivers have done this "a few
times" in the past. Around 12 a.m., Charlie (Spivey) and
Birdette walked to the office , and Spivey inquired
whether Ledbetter had left the load. Birdette replied in
the negative and then looked at the tickets and said, "I
don't know. Let me look out and see if his car 's in the
parking lot " He then checked, saw Ledbetter 's car was
gone, and called Hampton and reported it to him about
12:15 a.m He acknowledges that at 12:15 a . m., he was
aware that Ledbetter was home but did not call him at
home.
Edward Weathers, a feed mixer employed by Re-
spondent at its Oxford mill, testified as follows: On the
SPRING VALLEY FARMS
night in question, he was told by Ledbetter that his truck
was loaded with 6-1/2 bins of feed and Weathers in-
quired whether Ledbetter wanted him to run two more
bins so he could get loaded Ledbetter asked him how
long it would take and Weathers told him, "by the time
he got under the bin it'd be running." Weathers does not
recall Ledbetter replying to this. Weathers then "went
back over to the mill and programmed two mixes into
the computer " and started to pull it up and at that time,
Hudgins came in and said Ledbetter "was gone " Weath-
ers contends that he assumed Ledbetter "had gone with
a short load " He does not remember Ledbetter telling
him that he was going home. He did not hear Ledbetter
say he was going home.
Analysis
A The Alleged 8(a)(1) Threats of Layoffs and
Closure of Facilities
I credit the testimony of Ledbetter that supervisor
White made the statements that Respondent's Blounts-
ville plant had been closed down and over half of its em-
ployees at its Cullman plant had been laid off because of
their support of the Union I find Ledbetter 's testimony
in this regard to be specific and convincing whereas
White's denials thereof were vague and unconvincing. I
do not , however, credit Ledbetter 's testimony elicited by
the General Counsel 's additional questioning of him that
White stated Respondent would do whatever it took to
defeat the Union As contended by counsel for Respond-
ent, this statement was not contained in the affidavit of
Ledbetter given to the Board agent and I reject it as an
unreliable embellishment of what White said on this oc-
casion I thus find that Respondent violated Section
8(a)(1) of the Act by the issuance of threats by its admit-
ted Supervisor Randy White to its employee James Led-
better that Respondent would close its plant and/or lay
off its employees if they chose union representation
B. The Discharge of Ledbetter
It is undisputed that Respondent was aware that Led-
better had appeared at the representation hearing on
behalf of the Union although he was not called to testify
Moreover, I find that Respondent had knowledge of
Ledbetter's activities on the premises by reason of the
admitted knowledge of Supervisor Birdette of Ledbet-
ter's and Russell's activities and support of the Union as
testified to by Russell and Birdette and by Ledbetter's in-
quiry of White concerning the outcome of the union
campaign. I further find that Respondent' s animus
toward union activities has been demonstrated by the
credited testimony of Ledbetter of White's comments
concerning what had occurred as a result of the union
activities at other of Respondent's facilities I further
credit Russell's version of his conversation with Birdette
as supported in part by employee Hudgins I found their
testimony to be specific and convincing and have also
considered the likelihood of the version they gave of
these conversations in view of the current employment
of Russell and Parker by Respondent, and I consider it
unlikely that they would fabricate these conversations
under these circumstances. I found Birdette's version of
649
the conversation to the effect that Russell made the
statements he attributed to Birdette to be unconvincing
However, in reviewing all of the testimony including
the admitted liberal practices with respect to the coming
and going of truckdrivers during delay time occasioned
by operating problems at the mill or by truck repairs, I
find that the incident involving Ledbetter stands on a dif-
ferent footing As pointed out by Respondent in its brief,
this is not an incident wherein Ledbetter left with per-
mission of a supervisor or without permission of a super-
visor to wait out a delay but returned to deliver the load,
both of which circumstances Respondent has concededly
tolerated in the past. Rather, this is an instance wherein
Ledbetter left because he was aggravated with the delays
he had encountered without telling a member of manage-
ment that he was leaving at 11.30 p in and did not
return for the remainder of his shift for a period of more
than 4 hours to deliver a load which could have been
ready to deliver within a half hour of the time he left. I
have carefully reviewed the testimony of Hampton,
Weathers, Birdette, and Hudgins concerning the circum-
stances of Ledbetter's departure from the premises on
the evening in question and their awareness of what had
occurred and found their testimony to be credible. Thus,
I credit Hudgins that he told Hampton, Weathers, and
Birdette that Ledbetter was going home, but I also credit
the testimony of Hampton, Weathers, and Birdette that
they understood Hudgins to have said that Ledbetter had
gone on, connotating that he had decided to deliver a
partial load of feed rather than wait for a full load as
drivers have occasionally done in the past. I do not find
anything remarkable in Birdette's handling of the matter
by calling Hampton who in turn called Warren inform-
ing him that Ledbetter had left work without delivering
the load of feed. Ledbetter's conduct in leaving and not
informing a supervisor and in not returning for the re-
mainder of his shift to deliver the load was an insubordi-
nate act which left him subject to disciplinary action.
There was no evidence presented that another employee
had engaged in similar conduct without discipline.
Rather, in the only prior similar case thereof which oc-
curred wherein a driver left his load which was ready at
the time' and went home for the remainder of the shift,
the driver was discharged. Although in Ledbetter's case,
the load was not ready, it was little short of a full load,
and according to the testimony of Weathers which I
credit he told Ledbetter he could be fully loaded as soon
as he pulled his truck under the bin.
Warren's method of investigating the matter by asking
each of the participants to write out their versions of
what had occurred in their own words does not appear
contrived as contended by the General Counsel but
rather appears to have been a normal thorough investiga-
tion to ascertain the facts such as any reasonable employ-
er might have made Mac Tools, 271 NLRB 254 (1984).
Nor do I find that Spivey's refusal to load a truck on h:s
own time for a driver on a subsequent shift to be on the
same footing as Ledbetter's actions, and I credit War-
ren's explanation that there had been confusion about
this prior to this time and that he issued instructions to
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spivey to do it in the future or that disciplinary action
would be taken.
I also have considered the opinions of Supervisor Bir-
dette as expressed to Russell that Ledbetter had given
Respondent an opportunity to take action against him,
and that Respondent had used it. I do not regard this as
probative evidence that Respondent actually discharged
Ledbetter because of his union activities. Nor do I
regard Birdette's statement that Spivey ought to be ter-
minated in order to bolster Respondent' s case against
Ledbetter to be determinative of the issues in this case.
It is well settled that an employee may not insulate
himself from discharge for misconduct by engaging in
concerted activities protected by the Act Further, a dis-
charge of an employee for a legitimate reason is not
made unlawful because Respondent welcomed the op-
portunity to do so because of his engagement in concert-
ed activities. Klate Holt Co, 161 NLRB 1602, 1612
(1966). In the instant case, the circumstances leading to
the termination of Ledbetter were sufficient to justify his
termination Thus, I find that the General Counsel has
failed to prove a prima facie case that his discharge was
motivated by unlawful reasons proscribed by the Act.
Assuming arguendo that the General Counsel did prove
a prima facie case of a violation of Section 8(a)(3) and
(1) of the Act by Respondent's discharge of Ledbetter, I
find that the Employer has met its burden of proving
that Ledbetter would have been discharged even in the
absence of his union activities, Wright Line, 251 NLRB
1083 (1980), enfd 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U S. 989 (1982); NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983), Mac Tools,
supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
The unfair labor practice of Respondent as found in
section III in connection with Respondent's operations as
found in section 1, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the sever-
al States and tends to lead to labor disputes burdening
and obstructing the flow of commerce.
CONCLUSIONS OF LAW
THE REMEDY
Having found that Respondent has violated Section
8(a)(1) of the Act, I shall recommend that it cease and
desist therefrom and post the appropriate notice.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed'
ORDER
The Respondent, Spring Valley Farms, Inc., Oxford,
Alabama, its officers, agents, successors, and assigns,
shall
1. Cease and desist from unlawfully interrogating its
employees concerning their union activities in violation
of Section 8(a)(1) of the Act.
2. Sign and post copies of the attached notice marked
"Appendix"2 immediately upon receipt thereof, in con-
spicuous places at its facilities in Oxford, Alabama, to
which its employees report. Reasonable steps shall be
taken to ensure that said notices are not altered, defaced,
or covered by any other material.
3. Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
4. The complaint is dismissed with respect to the alle-
gations of a violation of Section 8(a)(3) and (1) of the
Act by Respondent's discharge of James Ledbetter.
I 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
2 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
1. Respondent Spring Valley Farms, Inc. is an employ-
er within the meaning of Section 2(2), (6), and (7) of the
Act.
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3. Respondent did not violate Section 8(a)(3) and (1)
of the Act by its discharge of James Ledbetter.
4 Respondent violated Section 8(a)(1) of the Act by
the issuance of a threat of plant closure and layoff to its
employee James Ledbetter by its Supervisor Randy
White.
5 The aforesaid unfair labor practice has a close, inti-
mate, and substantial effect on the free flow of com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act
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
The National Labor Relations Act gives all employees
these rights.
To engage in self organization
To form, join, or assist unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things
SPRING VALLEY FARMS 651
WE WILL NOT unlawfully issue threats to our employ- WE WILL NOT in any like or related manner interfere
ees of plant closure and layoff because of their support with, restrain, or coerce our employees in the exercise of
of the Union or their engagement in concerted activity. rights guaranteed them by Section 7 of the Act.
SPRING VALLEY FARMS, INC.