Tuscaloosa Quality Foods

National Labor Relations Board - Board Decisions

Aug 18, 1995

318 N.L.R.B. 405 (N.L.R.B. 1995)

405
318 NLRB No. 27
TUSCALOOSA QUALITY FOODS
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
2 We note that in Hyatt Regency Memphis, 296 NLRB 259 (1989),
enfd. 939 F.2d 361 (6th Cir. 1991), the Board found that the em-
ployer violated the Act by applying more stringent and discrimina-
tory rules in response to the employees’ act of selecting the union
as their representative rather than, as the judge inadvertently states,
engaging in a strike.
The Respondent argues that its changes in productivity and vaca-
tion pay policies were made before the strike and certification of the
Union and thus could not have been in retaliation for concerted ac-
tivity and that, in any event, the charges are barred by Sec. 10(b).
We find no merit in these arguments. It is clear that the new produc-
tivity requirements were announced for the first time in June 1993,
which was after the strike and within 6 months of the charge. Al-
though the Respondent contends that the requirements were formu-
lated before the strike, the evidence does not establish that this was
so. In addition, even assuming that the Respondent formulated the
productivity requirements after the strike but before June, the charge
was timely filed because notice and implementation of the require-
ments occurred in June and thus within the Sec. 10(b) period. See
Chinese American Planning Council, 307 NLRB 410 (1992). With
regard to vacation pay, we note that employees testified that prior
to the strike they received 40 hours of pay for 1 week’s vacation.
No other means of calculating vacation time was announced or con-
veyed to the employees until after the strike and no earlier than June
1, 1993. Thereafter, employees received less vacation pay and there
is no evidence in the record that vacation pay had previously been
based on hours worked.
Tuscaloosa Quality Foods, Inc. and International
Union, United Mine Workers of America. Case
10–CA–27193
August 18, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On July 20, 1994, Administrative Law Judge How-
ard I. Grossman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Tusca-
loosa Quality Foods, Inc., Tuscaloosa, Alabama, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs.
‘‘(c) Remove from its files any reference to the un-
lawful discharges and notify the employees in writing
that this has been done and that the discharges will not
be used against them in any way.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT promulgate or more stringently en-
force our rules so as to require employees to debone
15 boxes of meat daily or derive 56.5 percent of meat
from the contents of these boxes.
WE WILL NOT promulgate and enforce a rule of ab-
senteeism more stringent than our prior rule of allow-
ing a reasonable number of absences coupled with a
requirement that the employee call in prior to the
scheduled worktime.
WE WILL NOT apply a formula for calculating our
employees’ vacation pay so as to reduce that pay.
WE WILL NOT discourage membership in Inter-
national Union, United Mine Workers of America, or
any other labor organization, by discharging or other-
wise discriminating against our employees because of
their union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL rescind the rules set forth above.
WE WILL offer reinstatement to Carl Fulgham and
Dorothy Thomas and make them whole, with interest,
for any loss of earnings they may have suffered be-
cause of our unlawful discharge of them.
406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Respondent advances a 10(b) defense and denies that the charge
was filed on November 29, 1993. I find that it was filed on that
date, based on G.C. Exh. 1(a).
The Board’s letter notifying Respondent of the charge is dated No-
vember 30, 1993 (G.C. Exh. 1(b)). There is no return receipt at-
tached to this letter. Respondent admits that a copy of the charge
was mailed to it on November 30, 1993. (G.C. Exh. 1 (e).) Although
it also contends that the charge was filed on November 30, 1993,
I have concluded that it was filed on November 29, 1993.
All dates are in 1993 unless otherwise stated.
2 G.C. Exhs. 4, 5.
3 Employees who removed meat from bones.
4 G.C. Exh. 4.
5 G.C. Exh. 5.
6 G.C. Exh. 6.
7 G.C. Exh 14.
WE WILL notify them that we have removed from
our files any reference to their discharges and that the
discharges will not be used against them in any way.
WE WILL reimburse employees, with interest, for
any vacation pay we have unlawfully withheld from
them.
TUSCALOOSA QUALITY FOODS, INC.
Edward A. Smith, Esq., for the General Counsel.
Harry L. Hopkins, Esq. (Lange, Simpson, Robinson & Som-
erville), of Birmingham, Alabama, for the Respondent.
John L. Quinn, Esq. (Longshore, Nakamura & Quinn), of
Birmingham, Alabama, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
charge was filed on November 29, 1993,1 by International
Union, United Mine Workers of America (the Union), and
complaint issued on February 28, 1994. It alleges that Tusca-
loosa Quality Foods, Inc. (Respondent or the Company), on
about June 6, 1993, imposed new rules on its employees, in-
cluding changing their production requirements, their rules
and penalties for absence, tardiness, and failure to achieve
production goals, and the method of determining the vacation
pay—all in retaliation for their participation in protected con-
certed and union activities. In addition, the complaint alleges
that Respondent discharged employee Carl Fulgham on Au-
gust 25 and employee Dorothy Thomas on September 17, for
the same reason. The complaint alleges that Respondent
thereby violated Section 8(a)(3) and (1) of the National
Labor Relations Act (the Act).
A hearing on these matters took place before me on May
2, 1994, in Birmingham, Alabama. Thereafter, the General
Counsel and Respondent filed briefs. Based on the entire
record, including my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The pleadings establish that Respondent is an Alabama
corporation, with an office and place of business in Tusca-
loosa, Alabama, where it is engaged in the business of proc-
essing chickens. During the calendar year preceding issuance
of the complaint, a representative period, the Company sold
and shipped goods valued in excess of $50,000 from its Tus-
caloosa, Alabama facilities directly to customers located out-
side the State of Alabama. Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Strike, the Representation Petition, and
the Election
On May 11, certain of Respondent’s employees engaged
in a strike. The exact number is not indicated in the tran-
script. A representation petition filed by the Union 6 days
later however, claims that the Company had 175 employees,
and a tally of ballots at a Board election lists 191 eligible
voters.2 General Manager Lonnie Polk testified that all the
‘‘deboners’’3 walked out, but that 50 to 60 other employees
remained at work. I conclude that over 100 employees went
out on strike on May 11. Current employee Sheila Watkins
testified that the reason was the fact that the current employ-
ees’ hours of work were too long. The walkout lasted about
a week.
The petition was filed on May 17,4 claiming representation
of Respondent’s production and maintenance employees, and
the election was held on July 8. Out of the total of 191 eligi-
ble voters, 151 cast votes for the Union, while 3 voters op-
posed it.5 The Board certified the Union as the collective-
bargaining representative of the indicated employees on July
16.6
B. The Alleged Changes in Rules
1. The production rules
a. Summary of the evidence
There are two factual issues: the production requirements
and the required percentage of yield. These rules pertained
to the deboners. Their function was to take a box of meat
and remove the meat from the bones. The production re-
quirement related to the number of boxes which each
deboner was required to complete daily. The yield require-
ment concerned the percentage of meat which the deboner
obtained from each box.
Sheila Watkins, a current deboner who was hired in May
1990, testified that her supervisor told her when she was
hired that she had to complete 10 boxes a day to keep her
job. The supervisor said nothing about yield.
The stipulation of the parties and Watkins’ testimony indi-
cate that, in about January 1993, the employees were re-
quired to sign a document that they would debone 12 boxes
daily, but that nothing was said about yield. This stipulation
is partially contradicted by the agreement which states that
employees had to debone 15 boxes daily after a training pe-
riod. However, nothing was said about yield.7 Watkins testi-
407TUSCALOOSA QUALITY FOODS
8 G.C. Exh. 9.
9 R. Exhs. 13, 14, and 15.
10 R. Br. 11.
11 See fn. 10, supra.
fied that nobody was told they would be fired for not making
production or yield, and, in fact, that nobody was fired when
this rule was in effect. Watkins was corroborated by Mattie
Walker, the leader of the union movement, who resigned on
July 15.
Watkins and Walker were also corroborated by Claudia
Taylor, a former deboner and current supervisor, who was
called as a witness by Respondent. Although Taylor testified
that a yield requirement was announced in early 1993, she
agreed that an employee who did not meet the requirement
was not fired, but, rather, was paid $5 hourly, not the pro-
duction rate. This practice was in effect at the time of the
hearing.
There are several employee status reports in evidence, stat-
ing that some employees quit, or were ‘‘terminated’’ (as
checked in the appropriate box on the form) for failure to
meet ‘‘production or yield’’ requirements. These reports were
signed by various supervisors.8 None of them testified, and
Plant Manager Lonnie Polk stated that he could not recall the
circumstances in any of the cases.
Respondent introduced three reports of alleged warnings
for failure to meet a yield requirement. Two of these reports
were assertedly signed by a supervisor who did not testify.
One of them was identified at the hearing by Claudia Taylor,
a supervisor.9
Prior to 1993, the deboners removed the meat by hand. In
December 1992, the Company instituted a new system utiliz-
ing a device called a ‘‘cone,’’ which removed the meat
semimechanically. Employees were trained to use this de-
vice.
Watkins testified that Plant Manager Polk held a meeting
of deboners in June. He then said, for the first time, that they
had to produce 56.5 percent of meat from the boxes they
deboned. If they did not, they would be fired. Polk also stat-
ed that the deboners would be fired if they did not complete
15 boxes daily.
Employee Leader Mattie Walker testified that Polk held
separate meetings for deboners and for support employees.
Although Walker was a support employee and did not attend
the meeting of deboners, she stated her understanding that it
was at that meeting that Polk set forth the new production
and yield requirements.
According to Walker, Polk held a earlier meeting of the
support personnel on May 19. Asked whether Polk stated the
new yield requirement at the meeting, Walker replied, ‘‘No,
no, no’’ and pointed out the separate deboner meeting. Dur-
ing the May 19 meeting, the employees asserted grievances
about working long hours and not being able to go to the
doctor or leave when they were sick. Walker denied that pro-
duction and yield were discussed, or complaints about some
workers being faster than others and being delayed on going
home. Nor was there any discussion of changing the line
quota to an individual quota.
Walker acknowledged that between the time of the walk-
out and the time that Walker resigned (July 15), the Com-
pany did make some changes. The employees considered
these changes to be in retaliation for their concerted activi-
ties.
Plant Manager Polk, on the other hand, testified that he
never made a change in the yield requirement. Polk con-
tended that the only change he made in the production re-
quirement was in response to a complaint from some em-
ployees that slower workers on the line were causing the
whole line to work longer hours. Accordingly, Polk asserted,
he changed the production quota to an individual rather than
a line requirement. This was done about May 18 or 19, after
the walkout. Prior to this, Polk argued, he measured produc-
tion by the line, but measured yield individually.
Supervisor Taylor first declared that production and yield
were always determined individually. Then, she asserted,
there was a time when the production quota was measured
by each line. Later, after the walkout, it changed to an indi-
vidual quota. Taylor also testified that the 15-box require-
ment ‘‘started after the walkout,’’ in May.
b. Factual analysis
Were any employees discharged prior to the walkout for
failure to meet production or yield requirements? Respondent
argues that they were citing the employee status report to
that effect.10 None of the supervisors who assertedly signed
these reports howevertestified, and Plant Manager Polk said
that he did not know the circumstances in any of the cases.
Watkins and Walker denied that anybody was fired before
the walkout for failure to meet production requirements and
were corroborated by Supervisor Claudia Taylor. Although
Taylor did testify about one warning 5 days before the walk-
out, there is no evidence of discharge. I conclude that Re-
spondent did not discharge anybody before the walkout for
failure to meet production requirements.
I do not credit Polk’s assertion that the only change in
production requirements was to establish an individual pro-
duction quota in lieu of a line quota. Supervisor Taylor her-
self testified that the 15-box requirement was imposed after
the walkout.
Respondent next argues that it was during the May 19
meeting that Polk set forth new production and yield require-
ments.11 This contention is apparently intended to support
the Company’s 10(b) defense (the charge was filed on No-
vember 29). The argument is contrary to the explicit testi-
mony of Watkins and Walker. There were two employee
meetings, the first on May 19 and the second in June. It was
during the second meeting that the new production and yield
requirements were announced. Polk’s testimony does not ex-
plicitly rebut this evidence, and I conclude that it was during
the June meeting with the deboners that Polk announced the
new rules, to wit, that employees would be discharged if they
did not produce 15 boxes daily and 56.5 percent in yield.
2. The new absenteeism rule
a. Summary of the evidence
Sheila Watkins testified that, prior to the May walkout,
there was no specific number of allowed absences. All that
the employee had to do was call in that she would not be
at work and not be absent more than a ‘‘reasonable’’ number
of times. Watkins herself was absent 10 times in the 12-
month period preceding the walkout but did not receive any
408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 G.C. Exh. 8.
13 Testimony of Plant Manager Polk and statement by company
counsel. R. Exhs. 8, 9.
14 G.C. Exh. 8.
15 G.C. Exh. 2.
16 See fn. 15, supra.
17 G.C. Exh. 8. 18 G.C. Exh. 8, R. Br. 6.
discipline. Mattie Walker corroborated Watkins on this issue.
Plant Manager Polk, on the other hand, stated that employees
absent more than 8 days annually were fired.
There are several ‘‘employee status reports’’ in evidence,
recording terminations for ‘‘excessive absenteeism.’’ None of
them mentions the figure ‘‘8.’’ Some speculate that the em-
ployee simply quit. One of them notes that the employee had
‘‘2’’ unexcused absences.12 It is signed by Supervisor Clau-
dia Taylor who, although she was a witness, did not testify
about this exhibit.
The Company agrees that it did change its absenteeism
policy. The General Counsel submitted a document which
constituted the Company’s response to the Board to a prior
charge which was later withdrawn.13 This document is dated
November 17, and states that the Company ‘‘changed over
to the occurrence system in May . . . immediately after the
walkout.’’ Under this new system, the document asserts, the
prior sick leave policy had been limited to 8 days annually,
but was extended to 25 days under the new policy.14
Respondent also posted a notice on this subject. The notice
is entitled ‘‘attendance and benefits.’’ It states that the ‘‘ef-
fective date’’ was June 1, but there is no stated date of the
posting. Watkins testified that she first saw it in August or
September. At the bottom of the notice is the handwritten
statement:
Due to confusion and misunderstanding occurrences
will be effective [sic] 10/11/93. Everyone will have a
clean slate. Everything will count.—NO EXCEP-
TIONS.15
The document sets forth a progressive disciplinary procedure
resulting in discharge after five ‘‘occurrences.’’ An ‘‘occur-
rence’’ is defined as a 1- to 5-day absence for one cause.16
Watkins testified that Plant Manager Polk held a meeting
in August or September, at which he discussed the notice.
Polk told the employees that they would be fired if they were
late or absent too many times. According to Watkins, there
were no such rules prior to the walkout.
As noted, Polk contended that there was a prior policy
which dictated discharge if the employee was absent more
than 8 days annually. Polk also agreed that the Company
changed this policy. Asked on direct examination whether it
did so with the employees in May, Polk replied that he told
them that he would change the rule and let them know.
b. Factual analysis
What was the Company’s prestrike rule on absenteeism?
Although Polk contended that 8 days of absence annually re-
sulted in discharge, there is no documentary evidence to sup-
port this testimony. Although there are several employees’
status reports indicating discharge for excessive absenteeism,
none of them mentions the figure ‘‘8,’’ and none of the su-
pervisors testified about these reports, not even Claudia Tay-
lor, who signed two of them17 and who was a witness.
Set against Respondent’s evidence is Sheila Watkins’
uncontradicted testimony that she was absent 10 times during
the 12 months preceding the walkout without being dis-
ciplined. As indicated, Watkins, corroborated by Walker,
stated that employees could be absent a reasonable number
of times, provided that they called in beforehand.
There is no documentary support for Polk’s rigid 8-day
rule. Although the Company may have discharged some em-
ployees for excessive absenteeism, these may have been
‘‘unreasonable’’ absences. I credit Watkins and Walker.
I turn next to the Company’s admitted new rule. The
Company contends that it went from 8 to 25 allowed days
of absence, out of concern for its employees’ welfare. The
evidence does not support this contention. Although it is true
that an employee with five ‘‘occurrences’’ of 5-day absences,
each for one cause, would have been absent 25 days before
reaching termination, an employee with six 1-day absences,
or ‘‘occurrences,’’ would reach automatic discharge before
the asserted but unproved prior limit of eight absences. It is
obvious that this rule, coupled with Polk’s threat to discharge
employees who were absent too many times, had a delete-
rious effect on the employees’ welfare.
Finally, the Company’s argument that it promulgated the
new rule in May is without merit.18 Polk did not so contend.
Although the Company argues that this timing is evidenced
by its statement to the Board, statements of position do not
constitute evidence. Moreover, the statement of position is
contradicted by the posting, which gives the effective date as
June 1. The Company’s argument is further compromised by
the written legend on the posting, giving still another date,
October 11, as the effective date.
I conclude that Respondent announced a new absenteeism
policy in mid to late 1992, and that it was adverse to its em-
ployees’ interests.
3. The alleged change in vacation pay
a. Summary of the evidence
Respondent had both hourly rates of pay and production
rates. The hourly rates were utilized when an employee was
in training. Watkins was paid an hourly rate for 3 months
after being hired. With respect to the production rate, Wat-
kins and Walker agreed that it was based on the amount of
meat which the employee obtained from the boxes. Watkins
however averred that she did not know what this rate was,
because Respondent never explained it to the employees.
Watkins also testified without contradiction that, prior to
the strike, she and other employees received 40 hours of pay
for 1 week’s vacation. In July, after the strike, she received
only 32 hours of pay. Watkins further affirmed that, after the
strike, in May or June, an employee in the breakroom asked
Polk why she wasn’t getting 40 hours of vacation pay. Polk
replied: ‘‘Why get 40 hours for vacation pay when you are
not working 40 hours?’’ Mattie Walker testified that a
change was made in vacation pay after the walkout.
The posted notice covering absenteeism also had a proce-
dure for computing vacation pay. Employees with 1 year of
service received a 1-week vacation, and employees with 5
years received 2 weeks. The amount of vacation pay was cal-
409TUSCALOOSA QUALITY FOODS
19 G.C. Exh. 2.
20 R. Exh. 11.
21 R. Br. 8–9. 22 G.C. Exh. 13, p. 16.
culated by the gross pay of the previous year divided by the
number of weeks worked.19
Respondent introduced a purported proposal to it from the
Union dated December 9, in which a 1-year employee’s va-
cation pay would be his ‘‘average’’ weekly wage over the
preceding year. The legend ‘‘OK 2/10, per Lonnie’’ appears
in the margin.20
b. Factual analysis
Respondent argues that Watkins was paid a production
rate, not an ‘‘hourly’’ rate, and that the General Counsel
failed to ‘‘provide the formula’’ under which the prestrike
‘‘hourly’’ rate was reduced after the strike.21
The fact however, that there was a change in the vacation
pay is established by the unrebutted testimony of Watkins
and Walker. Watkins contended that it was reduced. This
contention is buttressed by the fact that Respondent saw fit
to include a method of calculating vacation pay in a notice
which included other new rules. The General Counsel thus
established a prima facie case that there was a change in va-
cation pay which was adverse to the employees’ interests.
Respondent was silent in the face of this testimony. I con-
clude that Respondent did reduce the amount of vacation
pay. The exact formula of the reduction can be ascertained
in a compliance proceeding. Future Ambulette, 293 NLRB
884, 893 (1989).
Although Watkins testified that she overheard the ex-
change between Polk and another employee, recited above,
in ‘‘May or June,’’ the change itself was announced in a no-
tice which said that its effective date (the earliest one) was
June 1, and Watkins did not see the notice until August or
September. The evidence is insufficient to establish that the
change was made before June 1, or that employees were put
on notice of such change before that date.
Regarding the legend on the asserted union proposal, Polk
testified that he bargained with the Union’s representatives.
There was no testimony about this legend. The parties stipu-
lated that one of the ground rules in bargaining was that a
tentative agreement was dependent on the parties reaching an
overall agreement.
In the absence of any testimony from Respondent that it
reached agreement on this issue, or, that the legend was
made by Polk or somebody acting under his direction, I can-
not conclude that the document evidences any agreement by
the parties. It covers only one issue out of three which are
relevant. The stipulation of the parties buttresses this conclu-
sion. Since this document came into being subsequent to
February 1993, I conclude that the digits ‘‘2/10’’ refer to
February 1994, if they mean anything. This was subsequent
to the alleged violation.
C. The Discharge of Carl Fulgham
1. Summary of the evidence
Fulgham was hired in March 1991. At the time of the
strike, he was a support employee for the deboners on the
first shift. Fulgham participated in the strike. According to
his uncontradicted testimony, Plant Manager Polk said that
the employees would be fired if they did not come back to
work. Polk however, was only taking back the employees
that he needed, and Fulgham did not return until about a
month after the strike ended.
The Union published an article about the strike in its Mine
Workers Journal. It cited long hours, minimum pay, uncer-
tain quitting time, and unsafe working conditions. Fulgham
was quoted in the article as saying that the employees would
either make the place better or close it down.22 The publica-
tion was widely distributed to employees in early August,
and copies were left in the breakroom, which was frequented
by management.
When Fulgham returned, he was assigned to the cleaning
crew on the night shift. He asked Plant Manager Polk for his
old job on the first shift, but Polk said there were no open-
ings.
Polk was replaced by a new plant manager, Bill Traywick,
on August 16. Traywick had been employed elsewhere by
the Company, and knew about the walkout. He testified that
he had a conversation on August 17 with Fulgham, in which
the latter asked why he had to ‘‘break down’’ a machine.
They ‘‘argued’’ about it, but Traywick finally told Fulgham
that he would ‘‘work it out.’’ This testimony was elicited
from Traywick on cross-examination, after his attention was
directed to his pretrial affidavit. Fulgham, on the other hand,
testified that Traywick told him that he had to break down
the deboning machine and clean the stuffing machine.
Fulgham agreed that it was his job to perform these functions
and denied that he ever argued with Traywick about the mat-
ter, or refused to do this work.
Two days later, on August 9, Fulgham and Traywick had
another conversation before Fulgham’s shift began. It cov-
ered two subjects, cleaning the machines, and Fulgham’s re-
quest for reassignment to the first shift. Fulgham testified
that Traywick told him to break down the machines, and that
Fulgham agreed to do so without argument. Traywick, on the
other hand, contended that Fulgham refused to do so.
Traywick agreed that Fulgham’s shift had not yet started.
Fulgham then repeated his request, made previously to
former Plant Manager Polk, to be reassigned to the first shift.
Traywick refused. Fulgham’s version of his own response
was that he said he would ‘‘talk to some one else.’’ ‘‘What
did you say?’’ Traywick asked, and Fulgham repeated his
statement. Traywick testified in similar manner, adding that
Fulgham stated, ‘‘by God, he [Traywick] would see it.’’
Traywick then went to his office and examined Fulgham’s
file. He determined that Fulgham had previously been
charged with insubordination. Traywick did not make any in-
quiry about this among other supervisors and could not recall
the precise nature of the matter. Fulgham testified that he
was charged with insubordination for asking a supervisor
why a lunch period had been cut in half.
Fulgham’s shift had not yet started. After a visit to a near-
by store however, he was directed to Traywick’s office.
There, according to Fulgham, the plant manager told him
that he was fired for ‘‘threatening’’ Traywick. Fulgham
asked what he had said that Traywick interpreted as a threat,
and the latter replied that he ‘‘felt threatened’’ when
Fulgham said he would see somebody else about the re-
quested reassignment.
410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 G.C. Exh. 7.
24 Taylor testified that Thomas had completed her training period
on the day she was terminated. On the other hand, Taylor stated in
a pretrial affidavit that Thomas was discharged ‘‘when she was un-
able to make the yield more than 30 days after she had been on the
line, although it was before the first day that she was on production
for pay purposes.’’ At the hearing, Taylor denied stating this to the
Board investigator.
25 See fn. 23, supra.
26 See fn. 25, supra.
27 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 464 U.S. 393 (1983).
Traywick contended that he fired Fulgham because he re-
fused to break down the machines, threatened the plant man-
ager, and ‘‘cussed’’ him. He also considered Fulgham’s prior
‘‘insubordination.’’ When asked what he told Fulgham how-
ever, Traywick replied that he merely said he was fired.
Traywick testified that he called in two witnesses to observe
the firing.
2. Factual analysis
There is no evidence that Traywick ever gave ‘‘cussing’’
or failure to break down and clean the machines as he reason
for the discharge in his final conversation with Fulgham. His
two witnesses were not called to testify. I credit Fulgham’s
testimony, not contradicted by Traywick, that the plant man-
ager told him he was fired for threatening Traywick—by tell-
ing him that he, Fulgham, would see somebody else about
his requested transfer to the first shift.
Although the issue of whether Fulgham in fact refused to
break down and clean the machines is of lesser signifi-
cance—because of Traywick’s failure to state this as a reason
during the exit interview—I note that Fulgham was not actu-
ally at work when he supposedly refused to obey this order.
I credit his denial that he did refuse to do so.
D. The Discharge of Dorothy Thomas
1. Summary of the evidence
Dorothy Thomas, the alleged discriminatee, did not testify,
and the facts must be gleaned from one document and the
uncertain testimony of Supervisor Claudia Taylor.
The document is a letter signed by Respondent’s payroll
clerk. It states that Thomas was terminated on September 7,
1993, because she was unable to make the yield, and that her
last day of pay was September 17.23
According to Taylor, Thomas was given 30 days of train-
ing on the cone device. Taylor further averred that existing
employees were given 30 days to learn the new procedure,
but new employees were given 90 days. Employees in train-
ing were paid a base rate rather than the production rate.
After the 30 days, according to Taylor, Thomas was given
2 more weeks of training, but never made the yield. She
made the 15-box requirement for 1 day, but only ‘‘with
help.’’24
Taylor testified that she made the decision to discharge
Thomas because she had been ‘‘told’’ to do so if an em-
ployee did not make the yield or could not complete 15
boxes.
As indicated above, Taylor testified that employees not
making the production requirements were paid a $5 hourly
wage and were not discharged. She averred that this started
in ‘‘early 1993,’’ when they ‘‘changed over to the cone
line.’’ As set forth above, the Company instituted this proce-
dure in December 1992.
2. Factual analysis
On the basis of Respondent’s document, I find that Thom-
as was terminated on September 7.25 Since she was trained
on use of the cone on line 3, for 6 weeks, she came over
from line 2, where she had been a hand deboner, in late July.
Neither the yield requirement, cited in Respondent’s letter
as the reason for Thomas’ discharge,26 nor the yield an 15-
box requirements referred to by Taylor, were in effect or en-
forced prior to the May walkout. Further, at the time of
Thomas’ discharge, employees who did not meet these re-
quirements were not discharged, but, rather, were paid a $5
hourly rate. There is no evidence that any employee other
than Thomas was discharged for failure to meet the require-
ments.
E. Legal Analysis and Conclusions
1. Applicable principles
The General Counsel has the burden of establishing a
prima facie case that is sufficient to support the inference
that protected conduct was a motivating factor in an employ-
er’s decision to discipline an employee. Once this is estab-
lished, the burden shifts to the employer to demonstrate that
the discipline would have been administered even in the ab-
sence of the protected conduct.27
2. The changes in rules
I have found that the employees engaged in a strike of 1
week beginning May 11, and that Respondent thereafter
made changes in its rules. For the first time, it stated that
employees who did not debone 15 boxes daily, and derive
56.5 percent of meat from the boxes, would be discharged.
Although Respondent did not implement this rule except in
the case of Dorothy Thomas, it took employees who failed
to meet the requirements off the production rate and paid
them $5 hourly.
Prior to the strike, the employees were allowed a reason-
able number of absences, provided that they called in before-
hand. After the strike, Respondent posted a rule whereby an
employee would automatically be discharged with 6 separate
days of absenteeism per year and threatened employees that
they would be fired if they were absent too many times.
Prior to the strike, the Company allowed employees 40
hours of vacation pay. After the strike, it implemented a new
formula for computing vacation pay which resulted in a re-
duction in such pay.
The Company advanced no reason for these new rules
other than the contention that it gave the employees more
‘‘sick days’’ (which I reject). The timing of these changes—
all of them subsequent to the strike, and some after the July
election—and the absence of any plausible explanation for
their implementation, constitute evidence that they were in
retaliation for the strike and the employees’ overwhelming
vote for the Union. There is nothing to indicate that Re-
spondent would have implemented these rules absent the em-
ployees’ concerted activity.
411TUSCALOOSA QUALITY FOODS
28 See also Mesa Vista Hospital, 280 NLRB 298 (1986);
Presbyterian/St. Luke’s Medical Center, 258 NLRB 93, 99 (1981),
enfd. 723 F.2d 1468 (10th Cir. 1983); Times Publishing Co., 231
NLRB 207, 208 (1977).
29 Thomas was the only employee discharged for violation of the
new production rules. It is obvious that other employees also vio-
lated the rules, since Supervisor Taylor testified that those employees
who did not meet the production requirements were not fired but
paid $5 hourly. This establishes that the discharge of Thomas was
a disparate application of Respondent’s new production rule. Al-
though this constitutes additional evidence of discriminatory motiva-
tion, I need not rely on it in light of the rationale set forth above.
Although the Company introduced evidence purporting to
show that the parties reached agreement on a new vacation
formula, no final agreement was reached, the asserted agree-
ment took place if at all subsequent to the rule change, and
the other two rule changes are not even mentioned.
There is insufficient evidence to establish that any of these
changes took place prior to June 1. Accordingly, Respond-
ent’s 10(b) defense is without merit.
I conclude Respondent by these actions violated Section
8(a)(3) and (1) of the Act. EDP Medical Computer Systems,
284 NLRB 1232, 1266 (1987); Future Ambulette, supra.
3. The discharge of Carl Fulgham
Respondent’s unlawful changes of rules demonstrate its
animus toward the Union. In early August, a union journal
published an article about the strike, listing the employees’
complaints. Fulgham was quoted in this article as saying that
the employees would make the plant better or close it down.
The article was widely distributed to employees and copies
were left in the breakroom, which was frequented by man-
agement. On the basis of this article and the fact that
Fulgham was a striker, I conclude that Respondent knew that
he was a vocal union supporter. Jakel Motors, 288 NLRB
730, 740 (1998), enfd. 875 F.2d 644 (7th Cir. 1989). The
Company’s animus and the timing of Fulgham’s discharge,
shortly after appearance of the union publication, establish
the General Counsel’s prima facie case.
Traywick discharged Fulgham assertedly because he
‘‘threatened’’ the plant manager by telling him that he,
Fulgham, would see somebody else about Traywick’s denial
of Fulgham’s transfer request. This reasoning has no merit.
The Board has held that an employee’s statement to a super-
visor that he would seek redress for his grievances from the
Board did not constitute a threat justifying discharge. Kay
Fries Inc., 265 NLRB 1077, 1092 (1982). Fulgham’s state-
ment was vague, and did not contain any threat of physical
harm to Traywick. I conclude that the asserted reason was
pretextual, and that Respondent discharged Fulgham because
of his union activity, in violation of Section 8(a)(3) and (1).
4. The discharge of Dorothy Thomas
Thomas was discharged becaus she failed to meet Re-
spondent’s new rules, either the new yield requirement, or
that plus the 15-box requirement. However, these rules them-
selves were unlawful, and it is well established that discharge
of an employee because of violation of an unlawful rule is
itself violative of the Act. Crestfield Convalescent Home,
287 NLRB 328 (1987).28 In Baptist Memorial Hospital, 229
NLRB 45 (1977), where an employee was discharged for
failure to obey an unlawful rule, the Board found that Sec-
tion 8(a)(3) and (1) had been violated and ordered reinstate-
ment and backpay. More recently, in Hyatt Regency Mem-
phis, 296 NLRB 259 (1989), the Board held that the dis-
charges of employees because they violated the employer’s
more stringent enforcement of its sign-in/sign-out rule, in re-
taliation for it employees’ selection of the Union, violated
Section 8(a)(3) and (1).
The facts in the Hyatt Regency case are almost identical
with those involving the discharge of Dorothy Thomas. The
employees went on strike, selected the union, and the com-
pany responded with more stringent and discriminatory rules.
Thomas was discharged for violation of one of those rules.
On the rationale set forth in the cases cited above, I conclude
that this action violated Section 8(a)(3) and (1) of the Act.29
In accordance with my findings above, I make the follow-
ing
CONCLUSIONS OF LAW
1. The Respondent, Tuscaloosa Quality Foods, Inc., is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union, International Union, United Mine Workers
of America, is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent committed unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act by engaging
in the following conduct:
(a) In retaliation for its employees’ union activities, pro-
mulgating or more stringently enforcing its rules so as to (1)
require employees to debone 15 boxes of meat daily, and de-
rive 56.5 percent of meat from the contents of the boxes; (2)
change the rules for absenteeism from one allowing reason-
able absences coupled with a call-in requirement, to one
mandating discharge in circumstances which could include
only 6 days of absence annually; and (3) change the formula
for computing vacation pay so as to reduce the amount to
which the employees were entitled.
(b) Discharging employee Carl Fulgham on August 19,
1993, because of his union and other protected activities.
(c) Discharging employee Dorothy Thomas on September
7, 1993, because she violated a rule which Respondent un-
lawfully promulgated in retaliation for the employees’ union
activities.
4. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in cer-
tain unfair labor practices, it is recommended that it be or-
dered to cease and desist therefrom and take certain affirma-
tive action designed to effectuate the purposes of the Act.
It having been found that Respondent promulgated or
more stringently enforced rules in retaliation for it employ-
ees’ union activities, it will be recommended that it rescind
its more stringent enforcement of its rules relating to produc-
tion and yield, its disciplinary steps relating to absenteeism,
and its new formula for calculating the amount of vacation
pay due its employees. I shall also recommend that Respond-
412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621. Interest accrued before January 1,
1987 (the effective date of the amendment) shall be computed as in
Florida Steel Corp., 231 NLRB 651 (1977).
31 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
32 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ent be ordered to reimburse employees for any vacation pay
which it unlawfully withheld from them, with interest.
It having been found that Respondent unlawfully dis-
charged employee Carl Fulgham on August 19, 1993, and
employee Dorothy Thomas on September 7, 1993, it is rec-
ommended that Respondent be ordered to offer them rein-
statement to their former positions, without prejudice to their
seniority or other rights and privileges, or, if any such posi-
tion does not exist, to a substantially equivalent position, dis-
missing, if necessary, any employee hired to fill the position,
and to make them whole for any loss of earnings they may
have suffered by reason of Respondent’s unlawful conduct
by paying each of them a sum of money equal to the amount
he or she would have earned from the date of his or her un-
lawful discharge to the date of an offer of reinstatement less
net earnings during such period, to be computed in the man-
ner established by the Board in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).30
I shall also recommend the posting of notices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended31
ORDER
The Respondent, Tuscaloosa Quality Foods, Inc., Tusca-
loosa, Alabama, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Formulating and enforcing a rule requiring its employ-
ees to debone 15 boxes of meat daily and derive 56.5 percent
of meat from the contents of the boxes.
(b) Formulating and enforcing a rule on absenteeism more
stringent than its prior rule of allowing a reasonable number
of absences coupled with a requirement that the employee
call in prior to the scheduled worktime.
(c) Applying a formula for calculating its employees’ va-
cation pay so as to reduce the pay.
(d) Discouraging membership in International Union,
United Mine Workers of America, or any other labor organi-
zation, by changing its rules or discharging employees in re-
taliation for their union activities, or by discriminating
against them in any other manner with respect to their hire,
tenure of employment, or terms and conditions of employ-
ment.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind its formulation of or more stringent enforce-
ment of the rules described in paragraphs 1(a), (b), and (c)
above.
(b) Offer Carl Fulgham and Dorothy Thomas reinstatement
to their former positions or, if any such position no longer
exists, to a substantially equivalent position, dismissing, if
necessary, any employee hired to fill the position, and make
each of them whole for any loss of earnings either may have
suffered by reason of Respondent’s unlawful discharges of
them, in the manner described in the remedy section of this
decision.
(c) Reimburse employees, with interest, for any vacation
pay which it unlawfully withheld from them.
(d) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, employee transfer
records, jobsite rosters and all other records necessary to ana-
lyze the amount of backpay and other reimbursements due
under the terms of this Order.
(e) Post at its facilities at Tuscaloosa, Alabama, copies of
the attached notice marked ‘‘Appendix.’’32 Copies of the no-
tice, on forms provided by the Regional Director for Region
10, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 10 in writing
within 20 days from the date of this Order what steps the
Respondent has taken to comply.