Spring Valley Foods, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1982

265 N.L.R.B. 1410 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spring Valley Foods, Inc. and United Food and
Commercial Workers International Union,
AFL-CIO, CLC, Local 405. Case 10-CA-
17209
December 16, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On September 3, 1982, Administrative Law
Judge William N. Cates issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,1
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Spring Valley
Foods, Inc., Blountsville, Alabama, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Productm
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge: This
case was heard before me on June 23, 1982, at Oneonta,
Alabama. The hearing was held pursuant to a complaint
issued by the Acting Regional Director for Region 10 of
the National Labor Relations Board, hereinafter the
Board, on August 27, 1981, and is based on a charge
filed by United Food and Commercial Workers Interna-
tional Union, AFL-CIO, CLC, Local 405, hereinafter
the Union. The complaint alleges that Spring Valley
Foods. Inc., hereinafter Respondent, violated Section
8(a)(1) and (3) of the National Labor Relations Act,
hereinafter the Act.
The complaint, as amended at the hearing, alleges that
Respondent committed violations of Section 8(a)(1) of
265 NLRB No. 182
the Act in response to the Union's organizational cam-
paign at Respondent's Blountsville, Alabama, facility.
The Union's organizational campaign commenced on or
about February 1.1 The complaint further alleges that,
on or about June 24, Respondent issued a warning to its
employee Ronald G. Osborne and thereafter, on or about
July 16, discharged him and has since that time failed
and refused to reinstate him in violation of Section
8(a)(1) and (3) of the Act. Respondent in its answer
denies having violated the Act as alleged in the com-
plaint.
Upon the entire record in this proceeding, including
my observation of the witnesses who testified herein, and
after due consideration of Respondent's brief, 2 I make
the following:
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, Respondent, a Delaware
corporation, has maintained an office and place of busi-
ness located at Blountsville, Alabama, where it is en-
gaged in the processing of chickens. During the 12-
month period immediately preceding the issuance of the
complaint herein, which period is representative of all
times material herein, Respondent sold and shipped from
its Blountsville, Alabama, facility goods valued in excess
of $50,000 directly to customers located outside the State
of Alabama.
The complaint alleges, Respondent admits, and I find
that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I find
that United Food and Commercial Workers International
Union, AFL-CIO, CLC, Local 405, is now, and has
been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent has for a number of years operated a
chicken processing facility in Blountsville, Alabama,
where, at all times material herein, it employed approxi-
mately 400 employees. The processing of chickens is ac-
complished along processing lines where the chickens
pass employee processors at a rate of approximately one
per second. Employees are assigned to remove various
parts of the chickens as they move along the processing
lines, a type of work which was described and admitted
to be of a monotonous boring nature.
The Union's organizational campaign at Respondent
culminated in an election conducted by the Board on
July 17. Shortly after the election the Union was certi-
fied and the parties entered into negotiations toward a
I All dates hereinafter are 1981 unless otherwise indicated.
2 Counsel for the General Counsel timely filed a two and one-half page
memorandum which I have received and considered as a brief.
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SPRING VALLEY FOODS, INC.
collective-bargaining agreement. On September 29, the
employees ratified the collective-bargaining agreement
that resulted from the negotiations. On December 17,
Respondent closed its Blountsville, Alabama, facility.
There were no allegations in the complaint that the clos-
ing was in any manner unlawful.
Plant Manager Emris Starkey, Area Manager Richard
Paracca, Quality Control Supervisor Andy Neal, and Su-
pervisor James Williams were admitted to be supervisors
and agents of Respondent within the meaning of Section
2(11) of the Act.
B. The Alleged Violations of Section 8(a)(1) of the Act
I shall treat the several alleged independent violations
of Section 8(a)(l) of the Act according to the name of
the specifically indicated supervisor alleged to have en-
gaged in the unlawful conduct.
1. The alleged violations attributed to Quality
Control Supervisor Andy Neal
The General Counsel at complaint paragraph 7 alleges
that Respondent through Neal interrogated employees
concerning their union membership, activities, and de-
sires on July 16.
Counsel for the General Counsel relies upon the testi-
mony of employee Barbara Denney to establish the al-
leged unlawful conduct.
Denney who commenced work for Respondent in
1976 and worked there until the plant closed in Decem-
ber testified she handed out leaflets for the Union during
the 1981 campaign and that everyone at Respondent
knew she was for the Union. She described herself as the
most active person at Respondent on behalf of the
Union. Denney testified that, on July 16, she was work-
ing at the plant on the Kentucky Fried Chicken line
when Quality Control Supervisor Neal came up to her
and asked her, "How are things going?" Denney asked
what things and Neal said the Union. Denney testified
Neal "asked me how I thought it would go whether it
would come in or not." Denney told Neal she thought
from the people that she had talked to that the Union
would come in this time. Neal responded that from the
people he had talked to it would not surprise him if it
went either way.
Respondent did not call Neal as a witness and Re-
spondent's counsel at the hearing stated it did not contest
the conversation involving Neal. Respondent contends
that the alleged interrogation was nothing short of a
low-level supervisor engaging in small talk about the
Union with the Union's strongest and most well-known
union advocate and that, as such, no violation of the Act
occurred.
I credit the uncontradicted, undisputed, and acknowl-
edged testimony of Denney with respect to the conversa-
tion she attributes to Quality Control Supervisor Neal. I
am persuaded and find that such conduct constituted un-
lawful interrogation as alleged in the complaint notwith-
standing the fact it may have been engaged in by a low-
level but admitted supervisor of Respondent inasmuch as
no legitimate purpose could have been served by the in-
quiry.
2. The alleged violations attributed to Area
Manager Buddy Paracca
The General Counsel at paragraph 7 of the complaint
alleges that Respondent through Paracca, on or about
April 25, interrogated employees concerning their union
membership, activities, and desires in violation of Section
8(a)(l) of the Act.
Counsel for the General Counsel relies upon the testi-
mony of employee Denney to establish the unlawful con-
duct attributed to Area Manager Paracca.
Denney testified that near the end of April she had a
conversation with Paracca in which he sought to know
why she wanted a union. Denney told Paracca that she
would not tell him anything at that time but would in a
few weeks if he wanted to know. Denney testified no
one else was present during the conversation which took
place in the supply room at Respondent's facility.
Denney testified that the meeting between her and Par-
acca was a friendly one and that he had stated he just
wanted to talk person to person with her.
Respondent's counsel at the hearing indicated Re-
spondent was willing to admit the contents of the con-
versation inasmuch as it was aware that it occurred and
admitted its content.
Paracca testified he spoke with Denney on the date in-
dicated and told her he simply wanted to talk to her as
one person to another and not as supervisor or employee
but just person to person. Paracca testified he wanted to
find out if Denney had been mistreated in the past. Par-
acca testified he later found out from legal counsel what
he could and could not do and that he immediately re-
ported his conduct to Plant Manager Starkey.
Respondent contends that under most standards Parac-
ca's interrogation of Denney would be unlawful; howev-
er, Respondent has great reservations that this "friendly"
and "frank" exchange between Paracca and Denney in-
terfered with, restrained, or coerced Denney in the exer-
cise of her Section 7 rights.
It is my opinion and I so find that the interrogation
constituted coercive interference with protected rights
and as such violated Section 8(a)(1) of the Act notwith-
standing the fact that the participants may have engaged
in a pleasant conversation as friends about the Union.
The fact that the interrogation took place in a friendly
atmosphere and/or among friends does not remove it
from an unlawful category. See Jax Mold & Machine,
Inc., 255 NLRB 942 (1981), and Mayfield's Dairy Farngs
Inc., 225 NLRB 1017, 1019 (1976). See also Webb's In-
dustrial Plant Service, Inc., 260 NLRB 933, at fn. 2
(1982).
3. The alleged violations attributed to Plant
Manager Emris Starkey
The General Counsel by amendment made at the hear-
ing alleges at paragraph 10(a) of the complaint that Re-
spondent on or about June 10, acting through its supervi-
sor and agent Starkey, threatened to discharge employ-
ees if they joined or engaged in activities on behalf of
the Union.
Employee Bernita Laminack testified that she attended
several meetings at which officials of Respondent spoke
1411
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about the Union. One such meeting occurred approxi-
mately 2 or 3 days before the July 17 Board-conducted
election. As Laminack walked out of the meeting she
talked with Plant Manager Starkey. Laminack testified
that Starkey told her, "We'll have to do something about
Jayne [Osborne] because she's getting a little wild." La-
minack testified that Osborne had attended the meeting
and had spoken out during the meeting about benefits
that another company that processed chickens had. La-
minack testified that Osborne was trying to compare the
benefits of that company with the benefits provided by
Respondent. Osborne asked several questions at the
meeting.
Osborne testified she was at a meeting conducted by
Respondent Plant Manager Starkey and Assistant Plant
Manager Casey at which meeting the Union was dis-
cussed. Osborne did not place a date on the meeting but
testified she told Starkey that another chicken processing
company had better benefits than Respondent. Osborne
testified she was telling Starkey about the benefits when
Assistant Plant Manager Casey told her to "shut up."
Plant Manager Starkey testified as follows:
We was having group meetings and usually I would
go over things, pros and cons, about the campaign,
and this particular one Jayne [Osborne] did have a
contract . . . she kept quoting things out of it, and
would say-well, the things I was talking about was
the Gadsden contract and the Ashland contract,
and she got kind of aggravated. It got a little bit
loud. And she thought that I didn't understand, I
think, that she was talking about-she thought I
thought that it wasn't the same union-well, she
said-she thought I thought it was the same union
at Gadsden as it was at McElrath. I believe that's
what she got aggravated about . . . I believe Bea
[Laminack] was in the same meeting, and we went
outside, just outside the door there to be waiting on
another group or something, and I didn't like the
employees to get mad . . . I said that Jayne did get
a little loud in that meeting. I said that we need her
not to be getting so loud so we can discuss things.
I am persuaded that the incident as outlined above
does not constitute anything more than a protected free
heated exchange between a known union supporter and
certain of Respondent's officials. Nothing said in the con-
versation as testified to by any of those involved herein
would constitute a threat to discharge employees. I shall
therefore recommend that paragraph 10(a) of the com-
plaint be dismissed in its entirety.
4. The alleged violations attributed to Supervisor
James Williams
The General Counsel in the complaint, at paragraphs
7-10 and 12-14, alleges that Respondent through Wil-
liams violated Section 8(a)(1) of the Act by interrogating
employees concerning their union activities on May I
and June 10 and 25; threatened employees with a denial
of a wage increase if they joined or engaged in activities
on behalf of the Union on or about July 16; threatened
employees on or about June 10 with loss of their jobs if
they joined or engaged in activities on behalf of the
Union; promised employees on or about July 16 addition-
al benefits if they voted against the Union; and solicited
its employees on or about July 16 concerning grievances
they had with Respondent and promised to remedy those
grievances, at a time when it had knowledge of the
Union's organizational campaign, for the purpose of
causing its employees to reject the Union as their collec-
tive-bargaining representative.
The General Counsel presented Cynthia Barfoot, Ber-
nita Laminack, Gary Wade, Jayne Osborne, and Ronald
Osborne in support of the complaint allegations involv-
ing Williams. For ease of consideration I have consid-
ered the testimony on a witness-by-witness fashion rather
than by complaint allegation.
Cynthia Barfoot testified she was employed by Re-
spondent from November 1979 until December 17, 1981.
Barfoot testified she spoke with Supervisor Williams ap-
proximately every other day during the union campaign
at which time they discussed the pros and cons of the
Union. In early to mid-June, Barfoot attended a union
meeting and the following day Supervisor Williams came
to her at her work station and she told him she had been
to a union meeting the night before. Barfoot testified
Williams asked her what had gone on at the meeting.
Barfoot testified she told Williams if he wanted to know
he would have to go to a meeting and find out. Accord-
ing to Barfoot, Williams then asked her how she was
going to vote and she told him she was going to vote
yes. Williams told Barfoot if the Union ever came in Re-
spondent's plant would probably close and he would lose
his job and he wanted to know who would feed his chil-
dren. Barboot commented to Williams if the plant closed
and she lost her job who would feed her children.
Barfoot testified that toward the end of June she and
Supervisor Williams were talking about Ronald "Half-
Pint" Osborne. In the conversation Williams stated to
Barfoot, "If a union ever came in Half-Pint wouldn't be
there long enough to enjoy it." Barfoot testified no one
else was present during the conversation other than she
and Williams.
Bernita Laminack testified she worked for Respondent
from August 1978 until the plant closed in December
1981. Laminack worked on the cut-up line of the wing
department where she clipped the right wing from chick-
ens as they passed in front of her at the approximate rate
of one chicken per second. Laminack testified that Su-
pervisor Williams spoke with her about the Union on the
day before the Board-conducted election, and told her
she should vote no. Laminack testified she later asked
Supervisor Williams if it were true that when the Union
tried to come in at Respondent's facility a few years
back that he did not vote for it. Laminack testified that
when she mentioned the matter to Williams he stated to
her that Half-Pint had told her that. Laminack told Wil-
liams that Osborne had not told her. Laminack testified
that later Supervisor Williams stated to her that if the
Union did not come in for her to write down on a piece
of paper what she felt needed changing, and if he could
he would try to do it for her.
1412
SPRING VALLEY FOODS, INC.
Gary Wade testified he worked for Supervisor Wil-
liams on the debone line. Wade testified that Williams
spoke with him in the break area at the plant approxi-
mately 2 weeks before the July 17 Board-conducted elec-
tion and asked him how he was going to vote. Wade tes-
tified he told Supervisor Williams it was none of his con-
cern and walked off.
Jayne Osborne [herein called J. Osborne], wife of
Ronald Osborne, testified that Plant Manager Starkey
and Assistant Plant Manager Casey held a meeting to
talk about the Union. Osborne testified she asked several
questions at the meeting. Supervisor Williams spoke with
J. Osborne at her work station after the meeting and, ac-
cording to Osborne, Williams stated: "What Starkey told
you about the raises, that's true. He said that if we voted
the Union in we wouldn't get a raise when Gadsden
[did]. Said we had always got a raise a month to a month
and a half before Gadsden, and said if a union was voted
in that we'd have to wait and let the Union get our
raises, that they wouldn't give them to us."
Ronald Osborne testified that right after the Union had
its first meeting in Oneonta, Alabama, that Supervisor
Williams spoke to him in the presence of his wife J. Os-
borne, who is also an employee of Respondent, and
stated to him, "I heard you made a few statements last
night." Osborne testified he told Williams that he went
to the meeting to ask questions. Supervisor Williams then
told Osborne that the employees tried to go union one
time before and he (Williams) voted for it but it did not
go union and it was not going to go union this time.
Respondent presented Supervisor James Williams who
testified that he commenced work for Respondent in
1973, and that, during the union campaign in 1981, he
was supervisor over the special, cut-up, and deboning
lines. Williams testified he was a frontline supervisor
close to every employee and they talked and kidded a lot
together.
Williams testified he talked with employee Barfoot
about the Union on a daily basis. Williams testified he
could not recall in any of his conversations with Barfoot
anything being said regarding his children or Barfoot's
children. Williams testified that he could recall discussing
the possibility of the plant closing with various employ-
ees at or about the time the Union was handing out cer-
tain of its campaign propaganda. Williams testified,
"Well, a lot of employees ask me about could they close
the plant or not if the Union came in . . . I told them I
wasn't too sure but I thought they could." Williams testi-
fied that Barfoot asked him about the possibility of the
plant closing, but he did not know if he answered her at
the time because it had been such a long time ago that
she had asked him.
Supervisor Williams testified that he and employee La-
minack talked about the Union all the time. Williams tes-
tified Laminack asked him questions and they discussed
the Union and related matters. Williams knew Laminack
was for the Union because she had told him so on nu-
merous occasions. Williams testified the only incident he
could recall pertaining to a discussion between himself
and Laminack that involved Ronald Osborne was that
after Osborne was terminated Laminack told him that
Respondent should have not terminated Osborne for the
reason it did but rather that it should have terminated
him on that occasion when Osborne came to the plant
drinking. Respondent's counsel in questioning Supervisor
Williams at the hearing asked him to examine his recol-
lection as to whether he had said anything about Os-
borne with respect to the fact that if the Union got in he,
Osborne, would not be there long enough to enjoy it.
Williams testified: "If I said anything like that it was be-
cause of the way Half-Pint [Osborne] was acting. Well,
when he first started to work at Spring Valley he was a
good employee. One of the best there was. And then the
last couple or two or three months he just went wild.
You couldn't control him."
Williams testified he never on any occasion told La-
minack that if she would tell him what she wanted and
write it down he would try to get it for her if he could.
Williams testified that Laminack had asked him how he
voted in the election before he became a supervisor and
he told her that she must have been talking to Half-Pint.
Williams testified that Ronald Half-Pint Osborne had
asked him the same question.
Supervisor Williams stated he could not recall talking
with employee Wade about the Union.
As demonstrated by Williams' testimony set forth
above he had a lack of recall with respect to most of the
critical comments attributed to him by various of the
witnesses presented by counsel for the General Counsel.
With respect to conversations that he did recall his testi-
mony tended to support and to some extent corroborate
the testimony of the witnesses called by counsel for the
General Counsel. For example Williams readily acknowl-
edged talking to most of the witnesses about the Union
and also acknowledged being asked and answering the
questions of employees regarding whether or not Re-
spondent could close its plant if the Union came in. I am
persuaded that Williams' testimony was so replete with a
lack of recall that it is unworthy to be relied upon and as
such I decline to credit his testimony where it is in con-
flict with the testimony of witnesses called by counsel
for the General Counsel.
Therefore, based on the credited testimony of the wit-
nesses called by counsel for the General Counsel it is
clear that Williams engaged in unlawful interrogation of
employee Barfoot when he inquired of her regarding
what had transpired at a union meeting she had attended
the night before and when he asked her how she was
going to vote. Such conduct violates Section 8(aXl) of
the Act, as alleged at paragraph 7 of the complaint, and
I so find.
Additionally, I find that Supervisor Williams threat-
ened employees with loss of their jobs if they joined or
engaged in activities on behalf of the Union as alleged at
paragraph 9 of the complaint when he told employee
Barfoot that if the Union ever came in the plant would
probably close and he as well as the employees would
lose their jobs. I also find that the same conversation
would constitute an unlawful threat of plant closure as
alleged at paragraph 10(b) of the complaint.
I likewise conclude and find that Respondent through
Supervisor Williams unlawfully threatened employees
with discharge when he told employee Barfoot that if
1413
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union ever came in employee Osborne would not be
there long enough to enjoy it. This particular finding
was not alleged as a violation in the complaint; however,
I find it was fully litigated and I have made a finding
thereof. Where a matter is fully litigated and is clearly
related to the subject matter of the complaint as it was in
the instant case, additional findings of violations of the
Act may be made thereon. See, generally, Crown Zeller-
bach Corporation, 225 NLRB 911 (1976).
I find that when Supervisor Williams asked employee
Laminack to write down what she felt needed changing
at the plant and if he could he would change it or try to
have it changed he engaged in conduct that violated the
Act in that in so doing he solicited employees concern-
ing grievances they had with Respondent and promised
to remedy the grievances all at a time when Respondent
was aware of the Union's organizational campaign. I find
his conduct was an attempt to cause the employees to
reject the Union as their collective-bargaining representa-
tive. I also conclude and find that the same conversation
of Williams constituted a promise to the employees of
additional benefits if they voted against the Union. I find
the outlined conduct violated Section 8(a)(1) of the Act,
as alleged at paragraphs 10, 12, and 13 of the complaint.
The conversation which I find Supervisor Williams
had with employee Wade wherein he asked Wade how
he was going to vote constituted unlawful interrogation.
With respect to the conversation that employee Jayne
Osborne had with Supervisor Williams wherein Williams
told her that if the Union was voted in the employees
would not get a raise when Gadsden did, but that the
employees would have to wait and let the Union get the
raise for them, did not constitute an unlawful threat of a
denial of a wage increase on the part of Supervisor Wil-
liams. I shall recommend that portion of the complaint at
paragraph 8 that is based upon the testimony of Jayne
Osborne be dismissed.
Supervisor Williams did not deny and I credit the tes-
timony of Ronald Osborne that Williams stated to him,
after he had attended a union meeting, that he heard he
had made a few statements the night before. Osborne re-
sponded that instead of making statements he had asked
questions at the meeting. Williams then discussed with
Osborne the fact that the employees of Respondent had
tried to go union once before and had not and it would
not go union this time. I find Williams' comments may
be viewed as constituting either unlawful interrogation
or as creating the impression that the employees' activi-
ties on behalf of the Union were under surveillance. Inas-
much as the complaint only alleges the conduct to con-
stitute interrogation and not an impression of surveillance
I shall treat and find it only as interrogation, as alleged
at paragraph 7 of the complaint.
C. The Warning Given Ronald G. Osborne
The General Counsel at paragraph 12 of the complaint
alleges that Respondent, on or about June 24,3 issued in
s Although the complaint alleges that the warning issued on June 24
and the General Counsel at the hearing did not move to amend the com-
plaint, it is clear from the record evidence that the warning issued on
July 8 (G.C. Exh. 2).
violation of Section 8(aX3) and (1) of the Act a warning
to its employee Ronald G. Osborne because of his mem-
bership in and activities on behalf of the Union and be-
cause he engaged in concerted activities with other em-
ployees for the purposes of collective bargaining and
other mutual aid and protection.
Jayne Osborne, wife of Ronald Osborne, testified she
was involved in the incident that gave rise to her hus-
band receiving a reprimand. She described the incident
as follows:
Well, I was at my scale weighing chicken and
James [Supervisor Williams] come up to me and
told me to weigh this box of chicken. When I al-
ready knew how to weigh it. That's what I did ev-
eryday. And Half-Pint [Ronald Osborne] was stand-
ing behind me and he said, "You don't have to pay
any attention to him; he's just trying to be a smart-
ass."
J. Osborne testified Supervisor Williams did not re-
spond to her husband's comment in any manner but
rather just turned and walked away. J. Osborne testified
that she had heard her husband, Ronald Osborne, on a
daily basis use language like that in the presence of Su-
pervisor Williams. J. Osborne testified she had told Wil-
liams on occasion to "go to hell" and "to kiss my ass." J.
Osborne testified that she had never received a repri-
mand for using language of that nature. J. Osborne testi-
fied that she and her husband were good friends with
Supervisor Williams and that Supervisor Williams and
her husband were always cutting up. She testified, "like
on Fridays, James [Supervisor Williams] would give our
checks out and he would come up behind me and start
putting my check in my back pocket and Half-Pint
[Ronald Osborne] would tell him to quit and leave me
[alone] . . . quit playing with my butt."
J. Osborne, when asked on cross-examination, how the
matter would come up wherein she would tell Supervi-
sor Williams to kiss her "ass" responded: "He would tell
me to do something and I would say 'kiss my butt' or
something like that, just joking." J. Osborne testified her
husband informed her later that day that he had gotten a
warning for making the comment he did to Supervisor
Williams.
Ronald Osborne testified that on the date that he re-
ceived the reprimand in question his wife was operating
the scales weighing chickens before they were placed in
the cooler. He testified that Supervisor Williams came by
and "told my wife to weigh out some chickens and I
told my wife not to listen to him; that he was just being
a smart ass. As me and James Williams always just
played around like that." Osborne testified that Williams
walked away. About 15 minutes later Williams came
back, got Osborne, took him to the office, and gave him
a warning. (G.C. Exh. 2.) Osborne testified he had made
similar statements on a daily basis to Williams. Osborne
testified he had in the past told Supervisor Williams that
he would whip his "ass" and things of that nature. Os-
borne testified he and Supervisor Williams were good
friends and, "Well, we'd aggravate each other about
each other's wives. Like he would be aggravating my
1414
SPRING VALLEY FOODS, INC.
wife over there talking to her and I'd tell him, I'd say,
'James, leave my wife alone.' He'd say, 'Well, Half-Pint,
you go out with my wife all the time.' He said, 'I got
two kids that belong to you and I need some child sup-
port.' All the time horseplaying like that. Pinching each
on the leg; grabbing each other." Osborne testified he
had never received any reprimands or discipline of any
kind for his language. Osborne testified that other em-
ployees used like language in front of Supervisor Wil-
liams.
Osborne acknowledged on cross-examination that prior
to his receiving the warning involving Supervisor Wil-
liams and his wife he had received a warning for throw-
ing a pocketknife at a box at the plant. Osborne also ac-
knowledged he had received a 3-day suspension for
coming to the plant at a time when he was off from
work and getting into an argument at the plant when he
was told his wife could not be released from work to go
on a trip with him to Georgia. Osborne testified he had
been drinking at the time.
Respondent acknowledged at the hearing that Osborne
was vociferous in his activity on behalf of the Union and
that he was discharged the day before a Board-conduct-
ed election.
Supervisor Williams testified that as best he could re-
member, and he was not too sure about it, but he
thought the scales for weighing chickens was torn up on
the morning in question thus he was instructing J. Os-
borne on how to weigh the meat. Williams testified that
Ronald Osborne was on the deboning line and "he
screamed out and said, 'don't pay any attention to him;
he's just trying to be a smart ass."' Supervisor Williams
stated that every employee on the deboning line, the cut-
up line, and some of the employees on the Kentucky
Fried Chicken line heard what Osborne said. Williams
testified he went directly to his supervisor, Area Man-
ager Paracca, about the incident.
Supervisor Williams informed Area Manager Paracca
what had happened and Paracca instructed him to bring
Osborne to the office, which he did. Osborne was issued
a reprimand for his conduct.
Supervisor Williams testified that employees "might
cuss me behind my back, but not to me." Williams testi-
fied he would not tolerate employees cursing at him.
Williams was unable to recall any other incident where
an employee had told another employee not to do what
he (Williams) was instructing the employee to do. Super-
visor Williams testified that he was very close to the em-
ployees on his lines and they talked, kidded, and did a
lot of things together. Supervisor Williams could not
recall J. Osborne ever telling him to kiss her "ass."
Supervisor Williams testified no one had ever told him
he was going to whip his "ass"; however, he stated there
had been a good deal of pinching at one time on the lines
under his supervision. Supervisor Williams stated he and
Ronald Osborne were good friends and kidded around a
lot. Williams testified they teased each other about their
wives. Williams testified further about the teasing be-
tween Osborne and himself: "When we were pinching
one another, this probably wasn't on the line. This prob-
ably was in the supervisor's office or in the hallway or a
staircase or something when we walked by one another."
Supervisor Williams testified there were times when em-
ployees would be told by him to do something and just
to tease him they would say "oh hell" or something like
that. Williams stated: "Nobody wanted to do what I told
them to do. Everybody did what I asked them to."
Supervisor Williams testified that a former employee,
Karen Pugh, had cursed a fellow employee two or three
times and on the fourth occasion she was taken to the
office and discharged. Williams testified however that
there was anger and some difficulty between the two
employees.
Respondent contends that the warning given to Os-
borne with respect to his telling his wife to disobey the
instructions of her supervisor was nothing more than a
warning for pure and simple insubordination. Respondent
contends that in order for Supervisor Williams to effec-
tively perform his functions on the work lines assigned
to him he simply could not tolerate such comments of in-
subordination as those of Osborne particularly when the
comments were heard by other employees on the
debone, cut-up, and Kentucky Fried Chicken lines.
Counsel for the General Counsel contends with re-
spect to both the warning and subsequent discharge that
Osborne was singled out and punished for something that
had been done by other employees on prior occasions
with complete impunity.
With respect to credibility it is undisputed that Super-
visor Williams was instructing J. Osborne with respect to
weighing chickens. It is further undisputed that Ronald
Osborne told his wife, apparently within earshot of other
employees, not to listen to Supervisor Williams that he
was just trying to be a "smart ass." Osborne testified he
had made comments of this nature to Williams in the
past, a fact Williams denied. Williams' overall credibility
was diminished considerably in my opinion by his contin-
ual inability to recall most of the critical events of the
case as they pertained to him. As indicated elsewhere in
this Decision, Williams did not deny outright most of the
comments attributed to him but rather simply indicated
an inability to recall such comments. Both of the Os-
bornes testified clearly, candidly, and in my opinion
truthfully about the events that took place at work with
respect to the warning given to and the discharge of
Ronald Osborne. I, therefore, credit Ronald Osborne's
testimony that in the past he had made comments to Su-
pervisor Williams of a similar nature to the one he re-
ceived a warning. The record evidence establishes there
was a great deal of levity and profanity in the exchanges
that took place around Supervisor Williams and his em-
ployees, particularly the Osbornes.4 Williams acknowl-
edged a good deal of kidding took place between him
and Ronald Osborne about their respective wives. J. Os-
borne credibly testified that Supervisor Williams would
place her paycheck in her back pocket and that her hus-
band would tell Supervisor Williams in explicit language
to leave his wife alone. I am therefore persuaded based
on the admitted teasing that went on between Osborne
and Williams that Osborne when he told his wife not to
4 Employees Laminack, Barfoot, and Denney each testified with re-
spect to the profane language used on the lines that were supervised by
Supervisor Williams.
1415
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay any attention to Supervisor Williams' instructions
was engaging in nothing more than conduct of a nature
that he had engaged in with Williams on numerous occa-
sions before, and that Respondent singled Osborne out
on this occasion because of his activities on behalf of the
Union.
Respondent, as outlined elsewhere in this Decision,
had animus toward the Union with specific animus di-
rected toward Osborne. Such specific animus is borne
out by the credited testimony of Barfoot that Williams
told her if the Union did come in Osborne would not be
there long enough to enjoy it. I am persuaded that coun-
sel for the General Counsel established a prima facie case
with respect to the warning issued to Osborne on July 8,
and I am likewise persuaded that Respondent's asserted
reasons for issuing the warning were nothing but a pre-
text with the true reason for the warning being Os-
borne's union activities. I therefore find that Respondent
violated Section 8(a)(3) of the Act as alleged in the com-
plaint when it issued the warning it did to Osborne on
July 8.
D. The Discharge of Ronald G. Osborne
The General Counsel at paragraph 16 of the complaint
alleges that Respondent discharged Ronald G. Osborne
on July 16, and thereafter failed and refused to reinstate
him because of his membership in and activities on behalf
of the Union and because he engaged in concerted activi-
ties with other employees for the purposes of collective
bargaining and other mutual aid and protection.
Osborne commenced work for Respondent in July
1980 and worked there until his discharge on July 16.
Osborne worked on the debone line under the supervi-
sion of Supervisor Williams. Osborne testified he was
employed during the Union's organizing campaign which
it was acknowledged commenced in February 1981. Os-
borne talked to employees about the Union and gave
them union cards at his home and in the parking lot. Os-
borne wore "vote yes" stickers on his person, while at
work, at the plant. Osborne testified he attended a meet-
ing called by Respondent at which Plant Manager Star-
key spoke stating his opposition to the Union. Osborne
testified that he spoke up at the same meeting telling ev-
eryone to vote for the Union. As is set forth elsewhere
in this Decision, Supervisor Williams inquired of Os-
borne with respect to the Union after Osborne had at-
tended a union meeting the night before. 5
Osborne testified that on his job he wore a liner from
a shipping container to protect his clothing and avoid
getting the chicken that was being processed contaminat-
ed. Osborne testified he preferred a shipping container
liner to an apron because of his size in that an apron
would drag the floor whereas he could wear a shipping
container liner without any difficulty. Osborne testified
he was working on the debone line catching meat on
July 16, when fellow employee Gary "Bucky" Wade
came along and ripped the liner that he, Osborne, was
wearing off his back. Osborne testified he told Wade that
a Respondent's counsel stipulated at the hearing that Osborne was vo-
ciferous in his support of the Union and that he was discharged the day
before the Board conducted its election on July 17.
he would get him as Wade laughed and ran away. Os-
borne testified that he and Wade often engaged in such
conduct. Osborne stated that after Wade ripped the liner
from his back he followed Wade up the line to where
Wade was talking with another employee. Osborne took
a pair of scissors and clipped a portion of the apron that
Wade was wearing. Later that same day, Wade took the
apron off, hung it up, and went on break. Osborne fin-
ished cutting Wade's apron into two pieces while Wade
was gone on break and hung the pieces back up. Os-
borne had one of his boots off for some reason when
Wade returned to the area and Wade ran, grabbed his
boot, and was in the process of going to fill it with ice at
the ice machine when he was observed by Supervisor
Williams. Williams instructed Wade to give the boot
back to Osborne.
According to Osborne a short time later Supervisor
Williams came and took him to the personnel office. Os-
borne testified that when he arrived at the personnel
office Assistant Plant Manager Casey and Personnel
Clerk Betty Millican were present along with Supervisor
Williams. Osborne testified that Assistant Plant Manager
Casey told him "this has cost you your job ... for cut-
ting Bucky's apron." Osborne protested stating that this
type of conduct had gone on for a long time and that
Supervisor Williams knew about it. Osborne asked that
fellow employee Wade be called in to the meeting so
that he could prove that Wade had jerked his liner off of
his back just prior to his cutting Wade's apron. Osborne
was told that Wade had already made his statement and
there was no need for him to come back down to the
office.
Osborne testified that he cut Wade's apron because he
and Wade were engaging in horseplay and because Wade
had jerked his liner off prior to his cutting Wade's apron.
Osborne stated that Supervisor Williams had observed
the two of them engage in such conduct in the past, and
that Supervisor Williams had seen Wade rip the liner off
of his back several times and had just laughed about it.
Osborne testified that approximately a week before the
election Brenda Nichols, a fellow employee, had come
up behind him while Supervisor Williams was standing
there, and had taken a pair of scissors and cut the liner
off his (Osborne's) back. Osborne stated that Williams
said nothing to Nichols about the incident. Osborne testi-
fied that even he and Supervisor Williams had engaged
in horseplay such as throwing ice and pinching each
other. Additionally, Osborne stated that Supervisor Wil-
liams had blown up rubber gloves with carbon dioxide
and had thrown them into water so they would expand
and break with a loud noise. Osborne stated he had
never been reprimanded for engaging in horseplay. Os-
borne testified that fellow employee Michael Sparks cut
the sleeves out of his (Osborne's) jacket one day when
they were horseplaying in the frozen packout department
and that Supervisor Travis Holliday observed them do
so.
On cross-examination, Osborne acknowledged that
when he was discharged he told Supervisor Williams at
the time that he would get him, that it did not matter
1416
SPRING VALLEY FOODS, INC.
where, even if it were in Arab, Alabama, but he would
get him.6
Gary Bucky Wade testified that he worked for Re-
spondent from June 1980 until the plant closed in De-
cember 1981. Wade testified he placed meat on the
debone line under the supervision of James Williams.
Wade testified that, on July 16, Osborne was on the
other end of the belt from him catching meat. Wade tes-
tified that Osborne wore plastic bags and that he would
go down and snatch them off Osborne and tear them up.
Wade stated that Osborne told him he was going to get
him and that at or about 2 minutes before he went on
break he was talking with a fellow employee on another
line when Osborne came to him and cut his apron a little
bit. Wade testified: "He [Osborne] just snuch up behind
me and clipped it a little bit, you know. We just laughed
it off." Wade testified that when he returned from break
and got his apron it had been cut too short for use there-
fore he went to the personnel office to buy a new one.7
Wade testified that before going to purchase a new
apron he observed Osborne sitting with one of his boots
off. Wade testified: "I snatched it [the boot] and was
going to go to the ice machine and fill it up with ice and
[Supervisor] James Williams told me to give it back [to
Osborne]."
Wade testified he then proceeded to the office where a
secretary named Betty wanted to know why he needed
to get a new apron and what had happened to his old
one. Wade told her that Osborne had cut his old apron.
Wade testified that Betty told him that Osborne should
be made to pay for the apron. Wade told Betty he would
pay for it himself. Wade testified that Supervisor Wil-
liams, Assistant Plant Manager Casey, and Area Manager
Richard Paracca came into the office at that time and
talked to him. Wade testified he. was told, "they said
wasn't nobody going to get in trouble; they just wanted
to know what happened to my apron, and I told them he
[Osborne] cut it." Wade was again told that Osborne
should be made to pay for the apron. Wade again stated
that he would pay for the apron himself. Wade testified
he returned to his work station and that in a short while
Supervisor Williams came and took Osborne from the
area.
Wade testified he never knew of anyone receiving a
disciplinary warning for engaging in horseplay. Wade
testified he and Osborne were good friends and they had
engaged in horseplay in the past. Wade testified that he
did not receive a reprimand for grabbing Osborne's boot
and running with it. Wade testified he had in fact en-
gaged in that type of activity on previous occasions and
had done so in front of Supervisor Williams. Wade stated
that Supervisor Williams would throw ice or put carbon
dioxide in gloves, blow them up, and have them explode
with noise. Wade testified Supervisor Williams would
also scare employees with heads of chickens in his hand.
Wade testified he would tie employees' apron strings
around poles at the plant, put ice down employees'
backs, and specifically he had placed ice down Osborne's
e Arab, Alabama, is Supervisor Williams hometown.
I Wade testified that the first four aprons were given to the employees
by Respondent and thereafter the employees had to purchase them at a
price of $1.25.
back and that Osborne had placed ice down his back.
Wade testified he had cut employee Bill Sullins' apron
and that Sullins had cut his, Wade's, apron. Wade testi-
fied he knew of no reason why Osborne would cut his
apron on the day that he did other than the fact, "We
was just always clowning around.""
Counsel for the General Counsel presented employee
Laminack as a witness who testified that the work of
cutting the right wing from a chicken every second
became a boring job and that in order to break the bore-
dom she, along with other employees, engaged in horse-
play. Laminack testified she had thrown chicken livers,
chicken hearts, and ice and had tied employees' aprons in
knots. Laminack testified that she had done so in the
presence of Supervisor Williams and that horseplay oc-
curred on a daily basis. Laminack testified that Supervi-
sor Williams had even engaged in that type horseplay.
She testified for example, "Well, there's another wing
cutter, Eloise, he's [Supervisor Williams] tied her apron
up around her and made her boobies big. Tied it in
knots."
Laminack testified she was present on July 16 when
Osborne cut Wade's apron. Laminack described the
event by stating, "It was just a funny thing, and we all
were laughing about it. Bucky [Wade] looked surprised."
Employee Barfoot testified that because the jobs were
tedious and boring that if the employees did not joke
around they would go berserk. Barfoot testified that in
order to make the job bearable the employees engaged in
horseplay such as throwing chicken livers or gizzards at
their fellow employees and putting ice down their backs.
Barfoot testified she had engaged in such conduct in the
presence of Supervisor Williams and that neither she nor
her fellow employees had received any reprimands for
that type of activity. Barfoot testified Supervisor Wil-
liams had tied employees to the worktables by their
apron strings and had placed stickers on them.
Employee Denney testified she observed employees
Osborne and Wade on a daily basis together joking,
laughing, and pinching each other on the legs in the
presence of Supervisor Williams.
Jayne Osborne testified that she had seen employees
fill gloves with carbon dioxide causing the gloves to ex-
plode with noise. Osborne testified she had observed em-
ployees throw ice on each other and take chicken heads
and scare each other. Osborne stated this type of con-
duct had taken place in front of Supervisor Williams.
Respondent presented Supervisor Williams who testi-
fied he was in charge of the cut-up, deboning, and spe-
cial cut lines. Williams testified that he participated in
the events surrounding the termination of employee Os-
borne. On July 16, Williams was in the computer room
where Respondent was encountering a problem in the
operation of the cooler and as he came out of the com-
puter room he observed that employee Wade had em-
ployee Osborne's shoe. Williams instructed Wade to give
Osborne back his shoe and then continued his attempt to
straighten out the mechanical problem with the cooler at
the plant. Williams testified that shortly thereafter some-
" Wade testified he did not say to Respondent's officials that Osborne
had gone too far when he cut his apron.
1417
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one came from the personnel office and told him they
had Wade in the personnel office. Williams proceeded to
the personnel office where he was informed of the apron
cutting incident. Williams testified that Wade gave a
statement concerning the incident. The statement which
was signed by Supervisor Williams indicated that Wade
had stated he had taken off his apron while on break and
that Osborne had cut the apron into two pieces while he
was on break. The statement indicated that Wade did not
know why Osborne had clipped his apron. (Resp. Exh.
1.)
Supervisor Williams testified he then brought Osborne
to the office and discussed the incident with him. After
obtaining a statement from Osborne he was terminated.
Williams testified: "He [Osborne] told me he didn't want
to talk to me anymore, and he would get me no matter
where it was at, if it was in Arab or anywhere, that he
would get me." (Williams testified he made his home in
Arab, Alabama.)
Williams testified with respect to horseplay that he
had seen employees throw chicken gizzards, but not ice.
Williams acknowledged he had observed employees tie
the aprons of other employees tight around them. Wil-
liams testified, "I never can recall about blowing up any
gloves. I don't think I ever did." Supervisor Williams
testified he did not think employees had ever thrown
chicken gizzards at him, but it could have happened.
Williams testified he had never reprimanded employees
for throwing chicken gizzards at each other. Supervisor
Williams acknowledged he had tied the apron of an em-
ployee named Eloise up around her neck and that it
lifted her apron up. Williams testified Eloise was the
only one he could recall doing that to because he and
she were very close. Supervisor Williams testified he
could not remember an employee by the name of Mi-
chael Sparks nor could he remember any cutting or rip-
ping of liners from employees' backs.
Area Manager Richard Paracca testified that he was
involved in the discharge of Osborne. Paracca testified
that when he was called into a meeting about the inci-
dent the first thing Wade told him was that Osborne had
gone too far in cutting his apron. Paracca testified:
"Bucky [Wade] and Half-Pint [Osborne] had cut up a
good bit and I wanted to make sure this wasn't just cut-
ting up. When I saw Gary, he was upset about it." Par-
acca testified he did not participate in the meeting with
Osborne after Wade had been interviewed.
Paracca testified he had never seen Supervisor Wil-
liams participate in horseplay such as shooting water or
throwing ice. Paracca testified he had written employees
up for horseplay and he stated that the apron cutting in-
cident was not horseplay, that Wade was angry, and that
he was sure it was not just horseplay.
Assistant Plant Manager James Casey testified he was
notified by personnel that the apron cutting incident had
occurred. Casey proceeded to personnel to determine
what the problem was. Casey testified that when he ar-
rived at the personnel office Area Manager Paracca and
Supervisor Williams were already there. Casey asked
Wade to explain to him exactly what had happened. Ac-
cording to Casey, Wade told him his apron had been cut
either before or during his break. Casey testified Wade
seemed upset about it. Casey could not recall anything
being said regarding no one getting into trouble if Wade
told what happened.
Casey testified he discussed the matter with Wade and
later with Osborne. According to Assistant Plant Man-
ager Casey, Osborne felt that Dr. Schuler, a Federal
meat inspector, had "pimped" on him. Casey testified Su-
pervisor Williams was trying to talk to Osborne but Os-
borne did not want to talk with him. Casey stated Os-
borne told Williams he would get him one way or the
other whether in Arab, Alabama, or someplace else.
Casey informed Osborne that, due to his cutting
Wade's apron and his past misconducts, he was being
terminated.
Assistant Plant Manager Casey testified he tried to
control horseplay at the plant and had even written em-
ployees up for horseplay. Casey testified that he had
given Douglas Blankenship a written warning on May
29, 1969, for throwing ice, running, and costing Re-
spondent money. (Resp. Exh. 3.) Casey testified another
example of an employee being given a warning for en-
gaging in horseplay was when Blankenship was given a
warning on November 17, 1976, for running a jack into
another employee and injuring the employee's leg. (Resp.
Exh. 4.) Casey testified that employee Jimmy Bromblove
was given a warning on September 12, 1979, for horse-
play which consisted of throwing blood on fellow em-
ployees.
With respect to credibility, as elsewhere in this Deci-
sion, I find Supervisor Williams to be an unreliable wit-
ness because of his very poor memory of events in
which he was involved. Ronald Osborne impressed me
as a believable witness and as such I credit his testimony
that he along with employee Wade had engaged in var-
ious types of horseplay in the past in the presence of Su-
pervisor Williams. Osborne's testimony in this respect
was corroborated by Wade as well as various other em-
ployees. I likewise credit Osborne's testimony that fellow
employee Nichols had cut the apron he (Osborne) was
wearing and that she had done so in the presence of Su-
pervisor Williams. The credible evidence is overwhelm-
ing that the employees under Williams' supervision fre-
quently engaged in general horseplay. For example, em-
ployee Wade testified that horseplay had taken place in
the presence of Supervisor Williams and that Williams
had participated in various types of horseplay himself
such as throwing ice, filling gloves with carbon dioxide,
and frightening employees with portions of chickens. I
am fully persuaded that employees Laminack, Barfoot,
and Denney were telling the truth when they stated that
Supervisor Williams had observed them, on a daily basis,
engaging in horseplay to break the boredom of their
jobs. In fact, Supervisor Williams acknowledged engag-
ing in the horseplay of tying employees' apron strings,
pinching employees, and generally teasing them. Even
Area Manager Paracca acknowledged there was horse-
play on the work lines which Supervisor Williams pre-
sided over and further acknowledged that Osborne and
Wade "cut up a good bit." I am persuaded and find that
horseplay was the order of the day for the employees
1418
SPRING VALLEY FOODS, INC.
who worked under the supervision of Supervisor Wil-
liams.
Further, with respect to credibility, after careful obser-
vation of employee Wade, both in his initial and rebuttal
testimony, I am persuaded that he did not tell any offi-
cial of Respondent that Osborne had gone too far in cut-
ting his apron. I am also persuaded that the reason Wade
told management officials of Respondent about the apron
cutting incident and who had been involved in it was
that he had been assured by those officials that no one
concerned would get into trouble as a result of what
Wade would tell them. Wade knew that he, as well as
Osborne and other employees, had engaged in horseplay
on a daily basis and I am convinced that he did not wish
to get others or himself into trouble with management at
Respondent's facility.
Based upon all of the above facts and circumstances, I
find that counsel for the General Counsel has established
a prima facie showing of a violation of Section 8(a)(3)
and (I) of the Act by Respondent when it discharged
Ronald G. Osborne in what was clearly retaliation for
his having engaged in union and protected concerted ac-
tivities. I find counsel for the General Counsel estab-
lished such a prima facie case inasmuch as Respondent
had demonstrated, as outlined elsewhere in this Decision,
its general animus toward the Union and its specific
animus toward employee Osborne. Employee Osborne
had been subjected to interrogation by Supervisor Wil-
liams and Supervisor Williams had stated to an employee
that if the Union came in Osborne would not be around
long enough to enjoy it. The timing of the discharge is
suspect in the instant case in that it happened I day
before the Board-conducted election and it fulfilled the
predictions of Supervisor Williams. The discharge was of
a known union adherent who in the words of Respond-
ent had been "vociferous" in his support of the Union.
I am also persuaded and find that the asserted reasons
given by Respondent for the discharge of Osborne were
pretexual and the real reasons for his discharge were his
union and protected concerted activities. Respondent
contends it discharged Osborne for cutting fellow em-
ployee Wade's apron. It is abundantly clear from the
record evidence as outlined above that Osborne was dis-
charged for an offense that had been tolerated by Re-
spondent. Not only had that type of offense been tolerat-
ed by Respondent but also its own supervisory personnel
had engaged in horseplay along with the employees. The
pretextual nature of Respondent's reasons is further
borne out by the fact that it did not discipline employee
Wade although Wade had removed the liner from em-
ployee Osborne and was even caught in the act of at-
tempting to fill employee Osborne's boot with ice. There
can be no question that the conduct, as described by em-
ployee Wade, of "clowning around" had been fully con-
doned and participated in by the management personnel
of Respondent. For example, Area Manager Paracca ac-
knowledged that Osborne and Wade cut up a good bit.
There was nothing different in the conduct engaged in
by Osborne on the occasion in question than from nu-
merous other occasions; it would appear the only differ-
ence this time was that Osborne had engaged in union
activities. Respondent simply seized upon the apron cut-
ting incident to rid itself of this irritating, vociferous
union supporter.
I find that the reasons assigned by Respondent for the
discharge of Osborne were pretextual and that Respond-
ent failed to rebut the prima facie case established by
counsel for the General Counsel. Accordingly, I find
that Respondent violated Section 8(a)3) and (1) of the
Act by its discharge of employee Ronald G. Osborne.
See Limestone Apparel Corp., 255 NLRB 722 (1981);
Wright Line, a Division of Wright Line, Inc., 251 NLRB
1083 (1980).
Respondent contends that even if it is found that Os-
borne was unlawfully discharged no reinstatement would
be proper because of the threat that Osborne made to
Supervisor Williams to get him either at Respondent's fa-
cility or in Supervisor Williams' hometown. I reject Re-
spondent's contention in this respect. Osborne's behavior
at his termination interview was prevoked by his dis-
criminatory discharge. I conclude and find that his con-
duct does not warrant his forfeiting the opportunity for
reinstatement. See Model A and Model T Motor Car Re-
production Corporation, 259 NLRB 555, fn. 4 (1981).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, found to constitute unfair labor practices occur-
ring in connection with the operations of Respondent de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to disputes
burdening and obstructing commerce and the free flow
thereof.
CONCLUSIONS OF LAW
1. Respondent, Spring Valley Foods, Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. United Food and Commercial Workers International
Union, AFL-CIO, CLC, Local 405, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act
by interrogating its employees concerning their union
membership, activities, and desires; by threatening its em-
ployees that it would close its plant if the employees
joined or engaged in activites on behalf of the Union; by
threatening its employees with the loss of their jobs if
they joined or engaged in activities on behalf of the
Union; by threatening its employees with discharge if the
employees joined or engaged in activities on behalf of
the Union; by promising its employees benefits if the em-
ployees voted against the Union; and by soliciting from
its employees grievances they had with Respondent and
promising to remedy those grievances for the purpose of
causing its employees to reject the Union as their collec-
tive-bargaining representative.
4. Respondent has engaged and is engaging in unfair
labor practices within the meaning of Section 8(aX3) and
(1) of the Act by issuing a warning on July 8, 1981, to its
employee Ronald G. Osborne.
1419
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Respondent has engaged and is engaging in unfair
labor practices within the meaning of Section 8(aX3) and
(1) of the Act by discharging on or about July 16, 1981,
and thereafter failing and refusing to reinstate its employ-
ee Ronald G. Osborne.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. The General Counsel has not established by prepon-
derance of evidence that Respondent has violated the
Act as alleged in the complaint except to the extent
found above.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the purposes of
the Act.
It having been found that Respondent unlawfully rep-
rimanded and discharged its employee Ronald G. Os-
borne, I shall recommend that Respondent be ordered to
offer Osborne full reinstatement to his former or substan-
tially equivalent position of employment without preju-
dice to his seniority or other rights and make him whole
for any loss of pay that he may have suffered by reason
of the discrimination against him with interest. Backpay
shall be computed in accordance with F. W. Woolworth
Company, 90 NLRB 289 (1950). Interest shall be comput-
ed as prescribed in Florida Steel Corporation, 231 NLRB
651 (1977). See, generally, Isis Plumbing & Heating Co.,
138 NLRB 716 (1962). Further, it is recommended that
Respondent expunge from its files any reference to the
reprimand of July 8, 1981, or to the July 16, 1981, dis-
charge of Ronald G. Osborne and to notify him in writ-
ing that this had been done and that evidence of the un-
lawful reprimand and discharge will not be used as a
basis for future personnel actions against him. See Ster-
ling Sugars, Inc., 261 NLRB 472 (1982). Inasmuch as Re-
spondent is no longer in business in Blountsville, Ala-
bama, reinstatement of Osborne is subject to Respond-
ent's reopening its operation in Blountsville, Alabama.
Further, inasmuch as Respondent is no longer operating
its Blountsville, Alabama, plant I shall recommend that
copies of the notice it would normally post at its facility
be mailed to each of the employees employed by Re-
spondent at the time it closed its Blountsville, Alabama,
plant on December 17, 1981. A copy of the notice shall
also be mailed to Ronald G. Osborne.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 9
The Respondent, Spring Valley Foods, Inc., Blounts-
ville, Alabama, its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
(a) Interrogating its employees concerning their union
membership, activities, and desires.
(b) Threatening its employees that it would close its
plant if the employees joined or engaged in activities on
behalf of the Union.
(c) Threatening its employees with loss of their jobs if
they joined or engaged in activities on behalf of the
Union.
(d) Threatening its employees with discharge if they
engaged in activities on behalf of the Union.
(e) Promising its employees benefits if they voted
against the Union.
(f) Soliciting its employees concerning grievances they
had with Respondent and promising to remedy those
grievances for the purpose of causing its employees to
reject the Union as their collective-bargaining representa-
tive.
(g) Discharging employees or otherwise discriminating
against them in any manner with respect to their tenure
of employment or any terms or conditions of employ-
ment because they engaged in activities on behalf of the
Union.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the purposes of the Act:
(a) Offer Ronald G. Osborne immediate and full rein-
statement to his former job or, if his former job no
longer exists, to a substantially equivalent position of em-
ployment without prejudice to his seniority and other
rights and privileges and make him whole for any loss of
earnings he may have suffered by reason of the discrimi-
nation against him in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Expunge from its files any reference to the July
1981 reprimand and discharge of employee Ronald G.
Osborne and notify him in writing that this has been
done and that evidence of the unlawful reprimand and
discharge will not be used as the basis for future person-
nel actions against him.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amounts of backpay due
under terms of this recommended Order.
9 In the event that no exceptions are filed as provided by Sec. 102.46
of the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order and all objections thereto
shall be deemed waived for all purposes.
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SPRING VALLEY FOODS, INC.
(d) Mail copies of the attached notice marked "Appen-
dix""' to all employees employed by Respondent at the
time it closed its Blountsville, Alabama, facility on De-
cember 17, 1981. A copy of the notice shall also be
mailed to Ronald G. Osborne.
(e) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges violations of the
Act not specifically found.
o1 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Puru-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present their evidence, it has been decided that we vio-
lated the law in certain ways. We have been ordered to
post this notice.
WE WILL NOT interrogate our employees con-
cerning their membership in or activities on behalf
of or the membership in or activities of other em-
ployees on behalf of United Food and Commercial
Workers International Union, AFL-CIO, CLC,
Local 405, or any other labor organization.
WE WILL NOT threaten our employees that we
will close our plant if they join or engage in activi-
ties on behalf of the Union.
WE WILL NOT threaten our employees with loss
of their jobs if they join or engage in activities on
behalf of the Union.
WE WILL NOT threaten our employees with dis-
charge if they join or engage in activities on behalf
of the Union.
WE WILL NOT promise our employees benefits it
they vote against the Union.
WE WILL NOT solicit our employees concerning
grievances they have with us and promise to
remedy those grievances for the purpose of causing
our employees to reject the Union as their collec-
tive-bargaining representative.
WE WILL NOT discharge or otherwise discrimi-
nate against our employees with regard to hire or
tenure of employment or any terms or conditions of
employment for engaging in activities on behalf of
the Union.
WE WILL offer Ronald G. Osborne immediate
and full reinstatement to his former job or, if his
former job no longer exists, to a substantially equiv-
alent position of employment without prejudice to
his seniority or other rights and WE WILL make him
whole for any loss of pay he may have suffered by
reason of our discrimination against him with inter-
est.
WE WILL expunge from our files any references
to the July 1981 reprimand and discharge given to
employee Ronald G. Osborne and WE WILL notify
him that this has been done and that evidence of
this unlawful conduct will not be used as a basis for
future personnel actions against him.
SPRING VALLEY FOODS, INC.
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