Tom'S Foods, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1987

287 N.L.R.B. 645 (N.L.R.B. 1987)

TOM'S FOODS
Tom's Foods ,, Inc. and Bakery, Confectionery & To-
bacco Workers International Union , AFL-CIO-
CLC. Cases 10-CA-22037 and 10-CA-22122-1.
16 December 1987
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 11 August 1987 Administrative Law Judge J.
Pargen Robertson issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,[ and
conclusions, to modify the remedy,2 and to adopt
the recommended Order.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Tom's
Foods, Inc., Columbus, Georgia, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order, except the attached notice is
substituted for that of the administrative law judge.
' 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
We agree with the judge's finding that Supervisor William Gafford's
remarks to employees George Starnes and Donald Robinette constitute
interrogations into the union activities of the employees, in violation of
Sec 8(a)(1) In light of this conclusion, we find it unnecessary to pass on
the judge's conclusion that Supervisors Ballard and Whaley unlawfully
interrogated employees, because the finding of these additional violations
merely would be cumulative and would not materially affect our Order
Member Babson applying Rossmore House, 267 NLRB 1176 (1984),'
agrees with the judge's findings that Supervisors Ballard and Whaley un-
lawfully interrogated employees
We agree with the judge that the Respondent solicited an employee to
report on a union meeting in violation of Sec 8(a)(1) In doing so we
note that Supervisor Gafford who made the solicitation, also unlawfully
interrogated employees and threatened employees with discharge in retal-
iation for their union activity In this context, Gafford's asking an em-
ployee to let him know what was said at a union meeting clearly consti-
tuted an unlawful solicitation to report on union activities
Member Babson in concluding that Supervisor Gafford violated Sec
8(a)(1) by soliciting employee Regan to report on a union meeting, relies,
as did the judge, solely on Gafford's remark itself
2 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
3 We have modified the judge's notice to conform with his recom-
mended order
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
645
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT interrogate our employees about
their activities on behalf of Bakery, Confectionery
& Tobacco Workers International Union, AFL-
CIO-CLC or any other labor organization.
WE WILL NOT threaten our employees with dis-
charge because they engage in union or protected
activities.
WE WILL NOT solicit our employees to report
back to management, the events in union meetings.
WE WILL NOT engage in surveillance of our em-.
ployees' union meetings.
WE WILL NOT terminate or suspend our employ-
ees because they engage in union activities.
WE WILL NOT in-any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer immediate and full reinstatement
to Albert Reynolds to his former position or, if that
position.no longer exists, to a substantially equiva-
lent position without prejudice to his seniority or
other rights and privileges.
WE WILL make Albert Reynolds whole for any
loss of earnings he may have suffered by reason of
our discrimination against him, with interest.
WE WILL remove from our files any reference to
the unlawful discharge and notify Albert Reynolds
in writing that this has been done and that the dis-
charge will not be used against him in any way.
Tom's FOOD, INC.
Gaye Nell Hymon, Esq, for the General Counsel
Beatrice C. Hubbard, Esq., of Nashville, Tennessee, and
Robert O. Sands, Esq. (Ogletree, Deakins, Nash, Smoak
& Steward), of Atlanta, Georgia, for the Respondent.
287 NLRB No. 66
646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE'
J. PARGEN ROBERTSON, Administrative Law Judge.
This case was heard in Columbus, Georgia, on 22 and 23
April 1987. The complaint is based on the charge in Case
10-CA-22037 filed on 25 September 1986 and amended
on 31 October 1986 and on the' charge in Case 10-CA-
22122-2 that was filed on 31 October 1987. An order
consolidating cases, amended consolidated complaint,
and notice of hearing issued on 21 November 1986. The
complaint alleged that Respondent engaged in conduct
violative of Section 8(a)(1) and (3) of the Act.
FINDINGS OF FACT
1. JURISDICTION
Respondent, in its answer to the complaint, admitted
all the commerce allegations, that it is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that the Union, Bakery, Confec-
tionery & Tobacco Workers International Union, AFL-
CIO-CLC, is and has been at all times material, a labor
organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The 8(a)(1) Allegations
1. Surveillance of a union meeting
Employee Ronnie Mitchell testified regarding a l2 Oc-
tober 1986 union meeting in Columbus
A. I' was at the meeting. I was on the north
end-west end of the building, • looking out of the
window. I noticed a supervisor's truck was down
there stopped at the light. He went north on Broad
Street, and he turned south on 9th Street and
stopped in front of where we was having the meet-
ing at.
Q. Who was the supervisor you saw?
A. Roy Gresham.
Q. Okay, go ahead
A. And I took some pictures from upstairs. I
went downstairs, Tom Walls and I. Tom hollered
just as we began to come out the door, and I come
up with the camera and he took off. So, I took sev-
eral pictures of him driving off down the street.
Mitchell testified that he recognized Roy Gresham as
the driver of the truck. Mitchell testified that Gresham
made two trips around the union hall
Tom Walls testified that he saw Roy Gresham circle
the block while Mitchell was taking pictures of Gresh-
am.
Roy Gresham admitted that he drove by the union
meeting on 12 October 1986. However, Gresham testi-
fied that he was following his regular route to his hunt-
ing camp and, even though he knew the union meeting
was planned, he thought the meeting had finished before
he had arrived. 'Gresham denied that he circled the
block Gresham also denied that he stopped in front of
the union hall.
Conclusions
Pictures taken by Ronnie Mitchell were received in
evidence Those photographs support Walls' and Mitch-
ell's testimony.
Mitchell testified that he first took several pictures
from the second floor of the union hall. Pictures identi-
fied as 1-A, 1-F, 1-B, and 1-E appeared to have been
taken from the second floor in that sequence. Subse-
quently, as Gresham circled back in front of the hall,
Mitchell ran down with Tom Walls and took several pic-
tures at street level. Pictures 1-C, 1-G, 1-H, and 1-D ap-
peared to have been taken in sequence at street level.
An examination. of the pictures showed that Gresham's
truck was in approximately the same relative positions in
photographs 1-B and 1-G and photographs 1-E and 1-H.
Gresham denied stopping in front of the hall. Since his
truck appears in the same relative position in 'photos 1-B
and 1-E, which were taken from the second floor, as in
1-G and 1-H which were taken after Mitchell finished his
photographs from the second floor, then ran downstairs
to the street, it is apparent that Gresham's truck passed
the same points in front of the union hall on at least two
occasions.
Therefore, I discredit Gresham's testimony that he did
not circle the block. I credit the testimony of Mitchell
and Walls. Their testimony showed that Gresham en-
gaged in surveillance of the union meeting. General Elec-
tric Co., 255 NLRB 673 (1981).
2. Interrogations
a. Supervisor Bobby Ballard
Former employee John Andujar testified about a meet-
ing he had with Bobby Ballard, 'a supervisor in the candy
department-
He brought me into the office. We had had a
meeting about a week previous with the company
president, a couple of other people, they were
trying to tell us about production, stuff like that.
And he asked me-he told me he brought me in
there to ask me what my opinion was on the meet-
ing and stuff like that. And we really didn't talk
about it. He asked me a question and then he never
let me carry through with it Then he started asking
me did I hear about anything going on in the plant.
I said, "What are you talking about?" He said, "I
dust wanted to know have you heard any rumors
going on in the plant?" I said, "Really, I don't
know what you are talking about. What do you
want to know?" I said, "Do you want to know
about the union?" He said, "Oh, is there something
going on about the union?" I said, "Yeah, I suppose
that's what you brought me up here for." He said,
"Well, I want to tell you right now I didn't bring
you in here to talk about the union or nothing like
that " But that' was' what the whole conversation
went on, the whole time I was in there, he told me
TOM'S FOODS
that the union was no good, it brought around
crime and stuff like that and it brought down peo-
ple's wages, it got people in trouble, and stuff like
that. And, you know, I just told him that I wasn't
really involved in it or anything. He asked me
where did I hear it from. And I can't recall the
lady's name, but I told him I knew that she had
talked to them about two days before I went up to
the office, and I told him I heard it from her, the
same person that he heard it from. And he said,
"Well you don't really want a union here , do you?"
I'said, "Well, you know, it's what the people want.
I'm not but one person. But my opinion is I think it
would be all right, you know, if everybody wants
it." And he said, "You know, the union is no good,
and stuff like that "
Then after we talked about it for a little while, he
said, "Now, I want you to know I didn't bring you
up here to talk about the union or nothig like that."
But, you know, basically the whole conversation
was about the union.
Bobby Ballard did not testify.
The above testimony was unrebutted and is credited.
Andujar's testimony showed that Ballard subtly brought
the conversation around to the point when the Union
was discussed. Moreover, it is clear that once Andujar
raised the issue of union activity, Ballard proceeded to
question Andujar in a manner designed to withdraw in-
formation about the employees' union activities.
Andujar admitted that he told Leadman Charles
Horne that he favored the Union. However, there is no
evidence beyond Andujar' s comments to Horne that
would indicate that Andujar was an open and active
union supporter. Therefore this case must be destin-
guished from Rossmore House, 269 NLRB 1176 (1984) I
find that Ballard interrogated employee Andujar in viola-
tion of Section 8(a)(1) Robins Federal Credit Union, 273
NLRB 1352 (1985).
b. Brady Whaley
Current employee Jimmy Milner testified to a conver-
sation he had with Personnel Manager Brady Whaley on
16 September 1986:
Well, it started around September the 9th when
my father died. So, we had his funeral on Sunday,
September the 14th; and I went down to the plant
to thank the people for sending flowers and cards
and everything. So, I took a card down there to
thank them And on my way out, I met Brady, and
he asked me was there anything that he could do
for me So, I told him, I said , "Well, you know I'm
not working at the time," because I was out hurt or
had an injury down there. And so, he told me to
come back Tuesday, which was September the
16th So, I went back down there that morning
around 10:00. So, he said "Well, Jimmy, here's a
check for you for a hundred dollars." And just
before he handed me that check, he told me-he
asked me, he said, "Jimmy, I heard that y'all had a
union meeting down there at your father' s funeral."
647
And I said, "Brady, what are you talking about?"
He said, "I heard that y'all had a union meeting
down there at your father's funeral." He said, "It
might not have been exactly at your father's funer-
al, but I heard that y'all had a union meeting down
there." And I told him, I said, "I don't know what
you are talking about," You know, just like that.
And then I asked him why he was picking on me,
you know. And that was mostly about what was
said.
Whaley's testimony concerning his conversation with
Milner was as follows:
A. And we were talking about his father. And
during the conversation, Jimmy brought up the fact
that he and his family didn't have money to buy
groceries. Jimmy had been going through a hard
time because of an accident he had at Tom's, and at
the time he was not working He was on Worker's
Comp, that's what he was receiving. So, I asked
Jimmy did he need any help, and he said he did. So,
I went out and spoke to the clerk in the office and
got with accounting and I worked out a deal where
we could provide Jimmy with a donation from
Tom's. That process took probably about an hour
to get the check. During that hour stay, Jimmy
stayed in my office and, you, know, we talked.
Q. Okay. And did you have a conversation spe-
cifically about his father's funeral?
A. Oh, yes, we did I told Jimmy that I had
heard in the plant that the union used his father's
funeral as a mechanism to have a meeting; and what
I told Jimmy was, you know, I thought that was
very disrespectful toward the memory of his father,
and that was it. I didn't ask him any question. I
didn't ask him did he attend the meeting or who at-
tended the meeting or anything.
To an extent Whaley's testimony corroborated that of
Jimmy Milner. Even though Whaley testified that he did
not ask Milner questions regarding the union meeting his
comments to Milner obviously placed Milner in a posi-
tion of having to respond. I found Milner to be more re-
liable of the two. To the extent their testimony conflicts,
I credit Milner. If Milner had refused to respond to
Whaley's comments his silence would have suggested
that he cooperated with the Union in holding a meeting
at his father's funeral I find that Whaley's comments to
Milner constituted interrogation in violation -of Section
8(a)(1)
c. William Gafford
Current employee George Starnes testified to two con-
versations he had with Supervisor William Gafford in
September 1986:
He just wanted to know how the union was
going and how the meeting went out at Flat Rock
Park. He said he had heard we had been served hot
dogs and hamburgers.
Q. What if anything did you say to him?
648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A I just told him that I was trying to stay away
from it. I
Q. When did the next discussion take place?
A. It was pretty close to the last of September.
Q. And again , who was the supervisor?
A. William Gafford.
Q. Where did that discussion take place?
A. Out on the floor in front of his office.
Q. Was anybody else present during the conver-
sation?
A. No.
Q. If you would, tell us what you recall being.
said by Mr.-Gafford during that conversation.
A He said the company knew all the people that
was doing all the pushing for the union and they
had better hope it goes through or all of them,
would be gotten rid of, one of two at a time, said it
may take a year or two.
Gafford admitted that he talked to all the bakery em-
ployees about the Union. He did not deny the testimony
of George Starnes. I credit Starnes' testimony.
Gafford's comments to Starnes constituted interroga-
tion into the union activities of the employees I find that
those comments constituted a violation of Section 8(a)(1).
d. William Gafford, 8 September and mid-September
1986
Current employee Donald Robinette testified to two
conversations he had with Supervisor William Gafford.,
In direct and on cross-examination Robinette placed
those meetings at 8 September and mid-September 1986: ,
A. He asked me if I went to the union meeting; I
told him I did. And he asked me if they served us
anything to eat.
Q. When did the next discussion take place?
A. Oh, about the middle of September, the best I
can remember
Q. And who was the supervisor involved in that
discussion?
A. William Gafford.
Q Where did that discussion take place?
A. Mixing room
Q. Again,, was anybody else present?
A. There was other people, around but they
couldn't hear us talking.
Q. What do you recall being said?'
A., He asked me-he asked me-well, 'he ex-
plained something to me one time about this man he
had known that worked for the union in about-
,something about their retirement plan. I forgot ex-
actly what it was
Q. Do you recall in this particular discussion if
there was any mention of jobs made?
A Well, he said that if anyone-if the,union did
go in, some people would lose their jobs.
William Gafford admitted talking to all the bakery em-
ployees about the Union. However, Gafford testified that
he did not specifically recall his conversations with
Donald Robinette.
In view of the entire record and especially Gafford's
testimony that he talked to all the bakery employees
about the Union, I credit the testimony of Donald Ro-
binette concerning his conversation with Gafford.' Robin-
ette's testimony established that he was illegally interro-
gated by Gafford in violation of Section 8(a)(1).
3 Threat of discharge'
Albert Reynolds placed a conversation between he
and William Gafford in mid-September 1986. The Gener-
al Counsel alleged that a portion of that conversation in-
cludes the threat of discharge by William Gafford. Those
comments, as testified to by Albert Reynolds are as fol-
lows: _
And I told him, I said , "Well, we've got the
union trying to come in here, same type they've got
a Sunshine, and they haven't been on strike in years
- out there." I said, "I didn't think this one will
happen." And he told me, he said, "Well, you know
if anybody finds out you are for the union you are
automatically, fired." I told him, "Yeah, I know
that."
William Gafford testified that Albert Reynolds never
told him he was for the Union. However, Gafford did
not specifically deny Reynolds' version of their mid-Sep-
tember conversation. As shown below I credit Reynolds'
testimony. I find that Gafford's comments to Reynolds
constituted threats of discharge for engaging in union ac-
tivity in violation of Section 8(a)(1)
4. Soliciting employees to report on union meetings
Current employee Ronnie Regan testified, that in late
September 1986 he told William Gafford that he was
going to a,union, meeting. Gafford replied, "Well, let me
know what.they say "
William Gafford testified that he did not recall this
specific conversation with Ronnie Regan about the
Union. However, as,shown above, Gafford admitted that,
he talked to,all the employees about the Union.
I credit Regan's testimony in this regard. His testimo-
ny showed that Gafford solicited him to report back on.
the activities at an employees, union meeting in violation
of Section 8(a)(1). United Supermarket, 261 NLRB 1291
(1982). ,
B The 8(a)(1) and (3) Allegations
1. Albert Reynolds
Albert Reynolds worked for Respondent from 20
April 1971 until he was suspended on 18 September 1986
and discharged on 23 September 1986. The General
Counsel alleged that Reynolds' suspension and discharge
were illegal.
Reynolds' immediate supervisor was William Gafford.
About 3 weeks before his suspension Reynolds in-
volved himself in prounion activities. He solicited em-
ployees to sign union authorization cards in the plant.
About 3 days before his termination Reynolds talked to
TOM'S FOODS 649
his supervisor about the Union According to Reynolds,
his, conversation with William Gafford was as follows-
' A He asked me did I know anything about the
union trying to come in the plant. I told him I did.
And he said, well, said' the only thing he hated, if
the union come in, that it may be like some of the
unions up North, the plant may be shut down or on
strike or something, people would lose their cars
and houses and things. And I told him, I said,
"Well, we've got the union trying to' come in here,
the same type they've got at Sunshine, and they
haven't been on strike in years out there." I said, "I
don't think this one will happen." And he told me,
he said , "Well, you know if anybody finds out you-
are for the 'union you are automatically fired." I
told him, "Yeah, I know that "
William Gafford admitted that he talked to all the
bakery employees including Albert Reynolds about the
Union. Gafford said he did not recall what was said in
each conversation. Although Gafford denied that Reyn-
olds told him Reynolds favored the Union, Gafford did
not deny Reynolds' version of the conversation about the
Union.
As shown here, I do not credit Gafford's denials about
his conversation with employees about the Union. Gaf-
ford admitted that he did not recall specific conversa-
tions even though he admittedly told all the bakery em-
ployees- that he opposed the Union. I credit Reynolds'
version of the conversation with Gafford. Gafford's
comments illustrate that he felt Reynolds supported the
Union
On 17 September 1986 Reynolds overslept and was
phoned at home.' Reynolds arrived at the' plant at 6:30
a.m., 30 minutes late for his 6 a.m. shift
Reynolds clocked ' iii at 6:30 a.m. but he subsequently
went to the bathroom and drank a cup of coffee before
reporting to the line William Gafford admitted that he
saw Reynolds in the breakroom before Reynolds started
work. According to both Reynolds' and current employ-
ee Donald Robinette, Gafford agreed that, it Was - alright
for Reynolds'to drink a cup of coffee before he started
work.'Gafford denied telling Reynolds it was alright for
Reynolds to have a cup of coffee. However, according
to Gafford's version he did not order Reynolds to the
line immediately nor did he tell Reynolds that Reynolds
could not finish his coffee. I credit Reynolds and Robin-
ette.
Subsequently Reynolds reported to the line and
worked the remainder of the day. In his testimony,
Reynolds recalled that he started work at 6:40 a.m.
Reynolds signed a statement to the Georgia Department
of Labor placing the time at 6:45 a.m. when he started
his work. Respondent places the time when Reynolds
began work at 6.50 a m. Therefore, it is apparent that
some 10 to 20 minutes lapsed between Reynolds' arrival
at the plant and the time he began work.
On 18 September Reynolds was suspended by Supervi-
sor Ellis Kennedy pending an investigation into the inci-
dent of 17 September.
Subsequently Reynolds was, discharged on 23 Septem-
ber for allegedly falsifying his timecard on 17 September.
Respondent contended that Reynolds should have
clocked in the time he began work rather than the time
Reynolds entered the, plant.'
Conclusion
In consideration of whether the General Counsel
proved, prima facie, that Respondent was motivated to
suspend and discharge Reynolds because of protected ac-
tivity, I note that Respondent, through Supervisor Wil-
liam Gafford, learned 3 days before 18 September that
Reynolds supported the Union The findings regarding
8(a)(1) allegations here, plus Supervisor Gafford's testi-
mony illustrate that Respondent and Gafford harbored
union animus.
Reynolds had worked for Respondent for over 15
years. Prior to September 1986 Reynolds had not been
disciplined. Supervisor Ellis Kennedy admitted that
Reynolds was a punctual employee. Respondent admit-
ted that Reynolds would not have been disciplined for
being late on 17 September 1986 According to Respond-
ent, the sole reason for Reynolds' suspension and dis-
charge was the alleged falsification of his timecard.
However, the evidence calls into question whether
Reynolds falsified his timecard.
Reynolds testified that he clocked in the time he ar-
rived at the plant, 6:30 a.m. Respondent's witnesses ad-
mitted that their investigation failed to show that Reyn-
olds did not arrive at 6.30 a in Moreover, the evidence
shows that Reynolds saw his supervisor, William Gaf-
ford, in the breakroom a few minutes after 6:30. At that
time Reynolds was subject to the direction of Supervisor
Gafford. The credited evidence showed that Gafford
agreed that Reynolds could finish a cup of coffee
Subsequently, during interviews with supervisor,
Reynolds consistently' admitted that he did not begin
work' until after `6 30 am There was no showing that
Reynolds ever claimed anything other than 6:30 a.m. was
the time he entered the plant.
In view of the above, I am convinced that the General
Counsel proved a prima facie case.
Respondent contends-that the evidence showed that
Reynolds would have been suspended and discharged in
the absence of protected activities. In that regard I shall
examine whether Respondent customarily discharged
employees for similar activity.
Respondent contended that the evidence supported its
contentions that in situations similar to the one with
Albert Reynolds, employees were routinely discharged. I
find that the record does not support Respondent.
Regarding Respondent's policy, Respondent's supervi-
sors admitted that it had no published policy illustrating
to employees that, when late for work, employees were
required to clock in the time they actually started work.'
i Respondent , in its brief, argued that Reynolds admitted that Re-
spondent's policy was for employees to clock in the time they start work
Reynolds testified at Tr, 163 and 164 and on R Exh 9, that when he
arrived before his shift, he started work at the begining of his shift How-
ever, Reynblds testified that when late he, and other employees , routinely
Continued
650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Moreover, it was admitted that no one told Reynolds
about Respondent's alleged late clock-in policy
Additionally, Supervisors Kennedy and Gafford admit-
ted that employees are routinely permitted to correct
errors in timecards. Kennedy testified that if employees
made a mistake in their time, "Yes, they can change it, if
they admit they made a mistake " Gafford testified that
when he sees a card is not filled out right, "I will just
take it to, the employee and ask him about it, if it's
right." Then, according to Gafford, the employee may
"Straighten it out." Nevertheless, when Reynolds offered
to correct his timecard if it was wrong, Respondent re-
jected his offer.'
Regarding prior alleged timecard falsifications, the
record included documentation on former employees
Virgle Ivins, Dave Gary Jr., Tommy Edmonds, Lyn-
wood (Joe) Regan, Walter Hobbs, and George Williams.
Concerning Virgle Ivins, Ivins was found to have left
the plant sometime before 1:45 p.m. on 6 September 1985
even though Ivins clocked out at 2 p.m. Ivins was dis-
charged.
Concerning Dave Gary Jr., the documentation showed
that Gary was first suspected of leaving the plant before
7 a.m. on 28 August 1986. Gary clocked out at 7 a.m On
the following day, Gary's supervisor saw Gary leaving
the parking lot at 6:50 a.m. even though Gary had
clocked out at 7 a.m. On 4 September 1986 Gary ex-
plained that he had planned to correct his timecard but
did not do so because of a meeting in the office. Gary
was not discharged. He returned to work the next day.
Tommy Edmonds clocked in at 10 p m on 21 June
1984 but was not seen until 11:10 p.m. On 25 June 1984
Edmonds was first seen at 11.04 p.m, even though he
clocked in at 10:30 p m. During the investigation, Ed-
monds admitted, "that he came in at 10.50 p in. on 6-21-
84." Edmonds was discharged
Concerning Lynwood (Joe) Regan, the record indi-
cates that Regan clocked in at 10.3 (10:18) p.m. even
though his shift started at 10:45 p.m According to Su-
pervisor Jimmy Steed he suspected Regan of falsifing his
timecard on 28 August 1986. Steed directed the shift
foreman to watch Regan. The foreman observed that
Regan started work at 11:05 p.m. Regan's timecard
showed a 10.3 (10:18) p.m. clock in. Steed told the
bakery manager about the incident. Bakery Manager Si-
zemore directed Steed to come in and observe Regan on
the evening of 29 August. On 29 August Steed observed
Regan arrive at the plant at 10:50 p.m. and start work at
10:58. After an investigation, Regan told supervision that
"he thought he could get away with putting an incorrect
starting time on his timecard " Regan was discharged.
On 24 November 1986 Supervisor Charlie Averatt met
two employees, Walter Hobbs and George Williams, as
they entered the plant at 6:40 a.m. Both employees were
verbally warned for being late. Subsequently, it was dis-
covered that both employees had clocked in at 6.30 a m.
Both Hobbs and Williams were discharged.
clocked in the time they entered the plant Contrary to the argument of
Respondent , I find that Reynolds, never admitted that it was Respond-
ent's policy that employees clocking in late were required to indicate the
time they actually started work rather than the time they eniered the
plant
The above records showed that none of the employees
were discharged because their timecard reflected a time
when the employee was in the plant but not at his work
station Records showed that Ivins, Gary, Regan , Hobbs,
and Williams were all out of Respondent's plant at a time
when their timecards showed the respective employee
was at work.
Two of the above incidents occurred shortly before
Reynolds was discharged. Dave Gary Jr was involved
in an investigation that involved two evenings of work,
28 and 29 August 1986. On the second evening Gary was
observed leaving Respondent's parking lot 10 minutes
before his clock out time. Nevertheless, Respondent ac-
cepted Gary's explanation and permitted him to return to
work.
On 28 August 1986 Lynwood Regan was suspected of
falsifying his timecard. Thereafter, a foreman observed
Regan falsifying his card Nevertheless, Regan was
watched on the following night Subsequently Regan ad-
mitted clocking in an incorrect time because he thought
he could get away with it.
The above documents failed to show that Respondent
would have discharged Albert Reynolds in the absence
of his union activities. In fact, those documents illustrat-
ed that other cases were handled differently. Unlike the
situations involving employees Gary and Regan, inci-
dents that occurred shortly before Reynolds was dis-
charged, the facts showed that Albert Reynolds was in
the plant at the time indicated on his timecard. Shortly
after entering the plant Reynolds placed himself under
the direction of his supervisor, William Gafford Unlike
the situations involving Gary and Regan, Reynolds was
not given the opportunity of being observed a second
evening. Unlike Gary's situation, Reynolds' story was
not accepted by Respondent and unlike the,situation in-
volving Regan, Reynolds did not tell Respondent that he
was trying to get away with clocking in falsely.
The facts illustrated that Respondent was presented
with nothing more than an employee that may have mis-
understood Respondent's policy regarding clock in when
late for work. Moreover, Reynolds was subject to the di-
rection of his supervisor, William Gafford, in the break-
room shortly after he clocked in. The credited evidence
showed us that Gafford agreed that Reynolds could
finish his coffee.
It is obvious that Respondent bent over backwards to
have Albert Reynolds fit into a discharge offense mold.
The evidence illustrated that Reynolds did nothing that
justified a legal discharge
2. Tom Walls
In consideration of whether the General Counsel
proved a prima facie case as to Tom Walls, I shall first
consider whether Walls engaged in union activity, and
whether and when Respondent learned of that activity.
Walls testified that he worked on behalf of the Union
by making house calls for union representatives and talk-
ing to employees after work about the Union. Walls said
he started his union activity "probably about 2 to 3
weeks before his termination on 5 September 1986 "
TOM'S FOODS 651
Respondent was advised, that Tom Walls and some 11
other employees were assisting the Union, by a letter to
Respondent from the Union dated 2 September 1986 On
cross-examination it was brought out that Walls felt he
was overheard by supervisors as he discussed the Union
during breaktime Walls' affidavit testimony, which was
brought out during the hearing, referred to occasions on
29 and 30 August 1986, when supervisors may, have
overheard Walls speaking in favor of the Union
Regarding his work reassignment, Walls testified that
about 2 or 3 weeks before his layoff he was taken off his
job on the star bar line and told to repair some floures-
cent lights in the supply room and' to arrange and orga-
nize the stockroom Walls recalled that he continued to
work in the supply room (called the cage) until he was
laid off
Walls' testimony showed that he was assigned to the
supply room around the time he first became active for
the Union and before, Respondent learned of Walls'
union activity 2
I find that the General Counsel failed to show that Re-
spondent was motivated by Walls union activities in reas-
signing his work. I recommend that the allegation be dis-
missed
However, Walls was subsequently laid off on 5 Sep-
tember 1986. On that day Respondent had just received
the Union's 2 September letter naming Walls as one of its
12 supporters Respondent received that letter on 4 Sep-
tember 1986 My findings here of other illegal activity
against prounion employees, Respondent's knowledge of
Walls' union activities, and the timing of its action
against Walls, form the basis of a finding of illegal termi-
nation.
However, Respondent argued that Tom Walls was laid
off without regard to his union activities, and that Walls
would have been laid off in the absence of his union ac-
tivities
Walls was employed by Respondent as an .electrician
on its star bar line. Walls was a member of the star bar
start up crew when he was hired in March 1985,. The
record showed that Walls continued to work on the star
bar line until he was laid off on 5 September 1986.
The record showed that the star bar line produced a
product which was marketed by General Mills That
product was a granola candy bar called Dandy Bar. At
its peak the star bar line included approximately 100 em-
ployees. However, the anticipated demand for the
Dandy Bar did not materialize and because of cut backs
necessitated by General Mills, Respondent began laying
off star bar line employees on 14 October 1985 when 14
employees were laid off Twelve more star bar employ-
ees were laid off on 30 November 1985. On 23 Decem-
ber 1985, 42 star bar line employees were laid off. On 14
April 1986, 16 employees were laid off. Seventeen em-
ployees were laid off on 9 June 1986
2 Although Walls may have been in error about the time he started
working for the Union, he may also have been in error about the time of
his job change However, documents also showed that the reassignment
occurred before company knowledge Walls' timecard showed that he
first worked in the "shop" on 28 August That assignment predated the
29 August conversation which Walls, in his affidavit, alleged may have
been overheard by a supervisor
After the 9 June 1986 layoff, General Mills wrote Re-
spondent on 30 July 1986 and advised Respondent to re-
start the star bar line on 4 August 1986, for an anticipat-
ed 5 to 6 weeks' production. On 29 August 1986, howev-
er, Respondent was advised by General Mills to cease
Dandy Bar production Nine employees including Tom
Walls were laid off when the star bar line shut down for
the last time.
Respondent's policy required it to lay off qualified em-
ployees in accord with their company seniority. Tom
Walls received "a temporary layoff' on 5 September
1986 As a temporary layoff, Walls did not have the
right to bump into another area of the plant Neverthe-
less, according to uncontested evidence, if Walls had
been permanently laid off, he would not have had suffi-
cient seniority to bump into any other division or depart-
ment. The record showed that Walls was the electrician-
with the least seniority. No electrician was retained after
5 September 1986 with less seniority than Walls
There were two maintenance employees with less se-
niority than Walls, Bob McCoy and Ed Merritt. Howev-
er, the evidence proved that both McCoy and Merritt
were mechanics. Moreover, despite Walls' testimony that
he could perform' any other maintenance job, the docu-
mentary evidence failed to show that Walls was qualified
as anything other than an electrician. No electrician has
been hired by Respondent since Walls was laid off.
I find that the record proved that approximately 100
employees were laid off because of the decline and even-
tual shutdown of the star bar line The record showed
that Walls was laid off because of that shutdown, and
that the star bar line shutdown resulted from business
factors which were not within the control of Respond-
ent Walls was laid off in accord with Respondent's es-
tablished layoff policy. Therefore, as to Walls' layoff, the
record proved that Walls would have been laid off in the
absence of his union activities.
I recommend that the allegations regarding Tom
Walls' reassignment and layoff be dismissed .
3 Ronnie Mitchell "
Maintenance mechanic Ronnie Mitchell was the
second listed employee in the Union's '2 September 1986
letter to Respondent As shown above, Respondent re-
ceived that letter on 4 September 1986
According to Mitchell, on 8 September 1986, he had
the following conversation with Supervisor Gary Burde-'
shaw.
September the 8th, somewhere around 7.00 o'clock,
Gary Burdeshaw came up to me and told me not to
go back to the environmental lab anymore or have
anything else to do with the lab or Research and
Development because it was a one-man job, and
that he was going to let Robert Streetman handle
that from now on. Bulk raw materials was my job
and that's what I do, that's where I work at, that's
where I stay.
Yes, he also told me not to be caught in any
other area of the plant and to use the restroom that
was closest to my job and don't be going to any
652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other part of the plant , just stay in my working area
and that's all.
Subsequently, on 23 September 1986, Mitchell -had a
conversation with Supervisor Jackie,Sanders:
A. September 23rd? That't the day that Jackie
Sanders told me that he wanted to see me; asked me
had I finished rounds, I told him no, that I had to
go back to the candy building and shake the sugar
bags over the main hoppers up there. And he told
me, say, "I've got a job for you to do, but I'm not
going to tell you now because you would only
make your rounds last longer." I said, "Why not
tell me now?" He said, "Oh, what the heck, come
on. I'll do better, I'll show you."
He took me into the toolroom and told me he
wanted everything taken off the floor, all parts,
motors and everything, put on the shelves in the
proper way they are supposed to be and then clean
it up thoroughly, dust and everything. And he also
told me that he was going to send me some help,
which he never did.
Q. How long did you remain in the toolroom?
A. I think I was in thereabout 7 to 8 days, some-
thing in that area. It was after the 23rd.
Gary Burdeshaw testified that Mitchell's duties were
changed on 8 September 1986 because of a study con-
ducted by Respondent, which showed that several em-
ployees including Mitchell, were engaged in similar re-
petitive duties Mitchell had been making rounds which
could have been handled during the rounds of employee
Bobby Streetman. Mitchell's duties were changed in
order to avoid unnecessary duplication with Streetman
who was more qualified. Burdeshaw denied that he re-
stricted Mitchell in any way According to Burdeshaw,
Mitchell's regular job, which continued, placed him in'
regular contact with the majority of the'employees in the
candy department.
Regarding his assignment in the toolroom, Jackie
Sanders testified that Mitchell had experienced trouble
with his sugar unloading job over a long period of time:'
On 24 September 1986 Sanders asked Richard Ramsey to
trouble-shoot the sugar unloading system. Ramsey had
handled that job some 3 years earlier Ramsey located
the problem but remained on the job throughout the day
to ensure the problem did not recur. According to Sand-,
ers, Mitchells' assignment to the toolroom was actually
an assignment of general cleaning which included the
toolroom. The assignment lasted for only 1 day.
Conclusions
It is apparent that Mitchell felt he was being restricted
because of the close proximity of Respondent's action to
the 2 September 1986 letter advising Respondent of
Mitchell's union activities However, Respondent proved
legitimate business reasons for the change in Mitchell's
duties. Concerning the bathroom, Mitchell's affidavit
showed that he was told to use the restroom nearest his
work only after he asked Burdeshaw which restroom he
should use. Concerning other restrictions, Mitchell was
told not to go in the environment lab after those duties
were assigned to Bobby Streetman Mitchell's testimony
showed that the employees in the environment lab were
research and development employees and those employ-
ees were excluded from the bargaining unit Therefore, it
would have been nonsensical to isolate Mitchell from
those employees if Respondent's purpose was to remove
Mitchell from contacts that could benefit the Union
Concerning the toolroom assignment, Mitchell's affida-
vit and his timecards showed that Mitchell was mistaken
in believing that job lasted several days. That assignment
lasted only 1 day, 24 September 1986. Jackie Sanders'
testimony that Mitchell was moved in order to trouble
shoot the sugar unloading system was not rebutted by
the General Counsel.
Therefore, I find that Respondent proved that Mitch-
ell's job change on 8 and 24 September 1986 would have
occurred in the absence of Mitchell's union activities. I
recommend those allegations be dismissed
4. Steve Stokes
Following Respondent's motion to dismiss paragraph
10 of the complaint, I ruled that I would not allow Re-
spondent to defend paragraphs 10 and 15. On examina-
tion of the record and briefs of the parties, I am con-
vinced that the General Counsel failed to prove the alle-
gations of paragraphs 10 and 15.
Regarding paragraph 10, the evidence showed that
employee Ronnie Regan had a conversation with Super-
visor Larry Shores in mid-September 1986, during which
Shores told Regan "that through some extent they were
after Steve [Stokes], were going to watch Steve, to a
point like that." Nothing was said in the conversation
that would link Respondent's watching Stokes to the
Union.
Regarding paragraph 15, there was no showing that
Respondent knew of Stokes' union activities at any time.
Stokes talked with Supervisor William Gafford about the
Union in "late September." However, it appeared that
conversation occurred after Stokes' hours were reduced
on 18 September, and, according to Stokes' testimony,
nothing was said in that conversation that indicated that
Stokes was supporting the Union, or that Respondent
thought Stokes was supporting the Union. The Union's 2
September 1986 letter which identified 12 employees that
supported the Union, did not name' Stokes
Therefore, I find that the General Counsel failed to
prove that Respondent, through Larry Shores, told an
employee that employees that supported the Unuon were
being watched, and the General Counsel failed to prove
that Respondent reduced the hours and withheld one of
Steve Stokes' breaks because of union or protected activ-
ity. Respondent's motion to dismiss paragraphs 10 and 15
is granted.
CONCLUSIONS OF LAW
1. Tom's Foods, Inc. is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
TOM'S FOODS 653
2. Bakery, Confectionery & Tobbacco Workers Inter-
national Union, AFL-CIO-CLC is a labor organization
as defined in Section 2(5) of the Act.
3. Respondent by interrogating its employees concern-
ing their union activities-and desires, by soliciting its em-
ployees to report on employees' union meetings; by
threatening its employees with discharge because of its
employees union activities; and by engaging in surveil-
lance of its employees union meetings, engaged in con-
duct violative of Section 8(a)(1) of the Act.
4. Respondent by suspending, discharging, and'tliereaf-
ter failing and refusing to reinstate its employee Albert
Reynolds because of its employee union activities, en-
gaged in conduct violative of Section 8(a)(1) and (3) of
the Act
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, I shall order it to cease and desist there-
from, and to take certain affirmative action necessary to
-effectuate the policies of the Act.
Having found that Respondent has illegally discharged
its employee. Albert Reynolds in violation of Section
8(a)(1) and (3) of the Act, I shall order Respondent to
offer Reynolds immediate and full reinstatement to his
former position or, if that position no longer exists, to a
substantially equivalent position without prejudice to his
seniority or other rights and privileges, and to make
Reynolds whole, with interest, for any loss of earnings
he suffered as a result of the discrimination against him.
Backpay and interest shall be computed in the manner
described in F W. Woolworth Co., 90 NLRB 289 (1950),
and New Horizons for the Retarded, 283 NLRB 1173
(1987).3
On these findings of fact and conclusions of law 'and
on the entire record, I issue the following recommend-
ed4
ORDER
The Respondent, Tom's Foods, Inc., Columbus, Geor-
gia, its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Discharging, suspending, or otherwise discriminat-
ing against employees because of their union or other
protected, concerted activities
(b) Coercively interrogating employees about its em-
ployees' union activities
(c) Soliciting its employees to report back on union
meetings.
(d) Threatening its employees with discharge because
of their union activities.
(e) Engaging in surveillance of its emplolyees union
meeting.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2: Take the following affirmative action necessary to
effectuate the policies,of the Act.
(a) Offer to employee Albert Reynolds immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent job without
prejudice to his seniority or other rights or privileges
previously enjoyed, and make Reynolds whole for any
loss of earnings, plus interest, he suffered by reason of its
illegal action.
(b) Remove from his files any reference, to the termi-
nation of Albert Reynolds, and notify Reynolds in writ-
ing that this has been done and that evidence of his un-
lawful termination will not be used against him in any
way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its facility in Columbus, Georgia, copies of
the attached notice marked "Appendix."5 Copies of the
notice, on forms provided by the Regional Director for
Region 10, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent-to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
' See generally Isis Plumbing Co, 138 NLRB 716 (1962)
4 If no exceptions are filed as provided by Sec 102 46 of the Board's If this Order is enforced by a judgment of a United States court of
Rules and Regulations, the findings, conclusions, and recommended appeals, the words in the notice reading "Posted by Order of the Nation-
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
Board and all objections to them shall be deemed waived for all pur- the United States Court of Appeals Enforcing an Order of the National
poses Labor Relations Board " I