Valmac Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1975

217 N.L.R.B. 580 (N.L.R.B. 1975)

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Valmac Industries , Inc. andFood Handlers Local No.
425, Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO. Case
26-CA-5235
April 29, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On January 6, 1975, Administrative Law Judge Sid-
ney D. Goldberg issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions'
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings,' and con-
clusions of the Administrative Law Judge, and to adopt
his recommended Order as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge as modified herein and
hereby orders that Respondent, Valmac Industries,
Inc., Dardanelle, Arkansas, its officers, agents,,succes-
sors, and assigns, shall take the action set forth in the
said recommended Order as modified.'
Respondent timely filed exceptions to the Administrative Law Judge's
Decision and a brief with the Board. Counsel for the General Counsel filed
a motion to strike Respondent's exceptions on the grounds that Respondent
had failed to identify the appropriate portion of the Administrative Law
Judge's Decision to which exception was taken and had not designated the
precise portion of the record relied on. In response to the General Counsel's
motion, the Respondent promptly identified the specific pages and lines of
the Decision of the Administrative Law Judge to which the previously filed
exceptions applied. In these circumstances, we shall deny the General
Counsel's motion. _
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
3 No backpay shall be awarded Riffle for the period during the strike, or
any portion thereof, when Respondent did not require Biffle's full-time
services exclusively as an office clerical employee. General Tire and Rubber
Co., 190 NLRB 227 (1971)
DECISION
a group not on strike may be discharged for refusing to do
the work of the employees on strike.
The complaint herein,' issued pursuant to Section 10(b)
of the National Labor Relations Act, as amended (the Act),
alleges that Valmac Industries, Inc. (Respondent or the Com-
pany), engaged in selling poultry products, discharged
Brenda Biffle, an office clerical employee, because, during a
strike by the production workers represented by Food Han-
dlers Local No. 425, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO (the
Union), she refused to perform the production duties of the
striking employees.
Respondent answered, admitting that Riffle had been ter-
minated on the date alleged, but denying that it had dis-
charged her for refusing to do production work.
The issues so raised came on for trial before me at Russell-
ville, Arkansas, on October 24, 1974. All parties were repre-
sented: they were afforded an opportunity to adduce evi-
dence, cross-examine witnesses, and to argue on the facts and
the law. Briefs filed by the General Counsel and by counsel
for respondent have been considered.
For the reasons hereafter set forth in detail, I find that,
while Respondent would have been justified in laying off
Biffle for the duration of the strike, it discharged her and
failed to reinstate her at the end of the strike, thereby restrain-
ing and coercing her in her exercise of rights guaranteed by
the Act.
Upon the entire record herein, and considering the de-
meanor of the witnesses while testifying, I make the follow-
ing:
FINDINGS OF FACT
1. The parties
The Company, a Delaware corporation engaged at several
locations in selling poultry products operates a plant at Dar-
danelle, Arkansas, from which, it admits , it annually ships
products valued at more than $50,000 to customers outside
the State of Arkansas . It admits that it is engaged in com-
merce and I so find.
The Union is a labor organization and it represents Re-
spondent's production workers at the Dardanelle plant.
2. Summary of events
The facts in this case are, except for two items, substan-
tially undisputed.
On July 1, 1974, the production employees concertedly
ceased work and engaged in an economic strike which ended
in the resumption of production work on July 22, 1974. Bif-
fle's husband was employed as a production worker and,
although he was not a member of the Union, he went out on
strike with the others and he returned when they did. There
was no strike by the three office clerical employees but, on the
first day of the strike, Respondent made a general request
that the office clerical employees perform production work.
The two others agreed and went into the plant but Biffle
remained in the office doing her own work and part of the
work of the other two.
SIDNEY D. GOLDBERG, Administrative Law Judge: The
question for decision in this case is whether an employee in
I Issued August 30, 1974, on a charge filed August 1 and an amended
charge filed August 30, 1974
217 NLRB No. 103
VALMAC INDUSTRIES, INC. 581
On Monday, July 8, Plant Manager Bob Whitlow told
Biffle to come to the office the next day dressed and prepared
to go into the plant and perform production work. She
refused saying, according to Whitlow, that she would quit
rather than work in the plant. Biffle testified that, in her
refusal she stated that her reason was, in part, because she
didn't feel she should "go against the strike." Whether she
related her refusal to the strike is one of the two issues of fact
in this case.
Biffle came to work on July 9 in her usual office clothes:
short dress and high heels. Whitlow, accompanied by Otis
Davenport, one of Respondent's supervisors, asked her to go
into the plant: she again refused and she was told that there
was no other work for her to do. The Company's contention
that she quit raises the other issue of fact herein.
When the strike ended and production work was resumed
on July 22, Respondent did not call Biffle back to work.
When she telephoned on July 31 and asked about her job, she
was told that a replacement for her had been hired on July
29.
3. Contentions of the parties
The General Counsel contends that Respondent dis-
charged Biffle and she did not quit voluntarily; that Biffle
expiessly linked her refusal to do production work with the
pending strike; and, therefore, that Respondent's discharge of
Bifflle violated Section 8(a)(1) of the Act.
Respondent contends that Biffle's refusal to perform pro-
duction work did not constitute protected activity; that the
only reason she gave for her refusal was that she had not been
hired for such work and that she voluntarily quit rather than
perform it. It further contends that her refusal made her a
"partial striker' ; so that she was required to request reinstate-
ment and ran the risk of being replaced.
4. Discussion and conclusions
a. The issues of fact
There is no dispute that Biffle's husband, although not a
member of the union , went out on strike with the other
production workers and that he walked the picket line with
them.
A rbus Mann , Respondent 's plant superintendent , testified
that on the first day of the strike he went into the office and
spoke with the three clerical employees : that he asked them
if they were going to come out on the production line and help
during the strike; that the other two employees said they
would but Biffle said she had not been hired for that type of
work and would not go out there . She also said that someone
had to stay and answer the phone and take care of the paper
work.'
Biffle testified, without contradiction , that during the first
week she performed her own duties and parts of those of the
other clerical employees.
2 Eliffle testified that it was Otis Davenport, a production supervisor; who
asked the office force whether they would work m the plant and that she
did not answer. She testified that when Mann came in he referred, jokingly,
to the fact that everyone would have to go out in the plant and do production
work
During this same first week of the strike, Biffle testified,
she met Whitlow at the Tastee Freeze shop; that Whitlow
asked her when her husband was coming back to work; and
that she said her husband would make up his own mind on
that Subject. This testimony is undisputed.
On Monday, July 8, just before quitting time, Whitlow
came into the office and told Biffle that he wanted her to
come to work the next day "prepared to go out to the plant."
Whitlow testified that she said she would not go out to the
plant, tha{she hadn't been hired for that job and that she had
been trained to do clerical work. When he insisted that she
do so, Whitlow testified, she said she would have to quit; that
he said he didn't want her to quit and asked that she talk it
over with her husband and think about it over night. Whitlow
testified that his final instructions were that, if she came in
the following morning, he would assume that she was pre-
pared to work in the plant and that if she didn't come in, he
would-consider her "a quit."
The next morning, Whitlow testified, he and Davenport
went to the office and Davenport said: "I have a job for you":
that she answered: "Well, I'm not going to work" and that
he replied: "If you can't go out in the plant you will have to
go home." Biffle then left the plant.
As noted above, there are two disputed-questions of fact:
whether Biffle linked her refusal'to do production work with
the strike then pending and whether she voluntarily quit.
Biffle testified that on Monday, July 8, when Whitlow
instructed her to come in the next morning dressed to do
production work, she gave him three reasons why she would
not do that work: that it was difficult work; that she was a
trained office worker; and that she didn't feel she "should go
against the strike." Whitlow testified that she referred only
to her clerical training.
Respondent makes much of the fact that Biffle's testimony
concerning her reluctance to "go against the strike" is uncor-
roborated and contrary to the testimony of Respondent's four
witnesses. The difficulty with this argument by Respondent
is that Biffle testified that she made the statement to Whitlow
on the afternoon of July 8, when he told her to come prepared
for production work, and there is no testimony that there was
anyone else present during that conversation. The issue,
therefore, must be decided on the basis of the acceptance of
the testimony of either Whitlow or that of Biffle.
The testimony is undisputed that Whitlow, when he met
Biffle at the Tastee Freeze, asked her about her husband's
participation in the strike. There is no doubt that the strike
was on everybody's minds and that Whitlow realized that his
request that she do production work was contrary to her
husband's interest in making effective the stoppage by the
production employees.
Reference is made below to my conclusion that Whitlow
was not a completely credible witness. While Biffle was also
an interested witness, upon this record and the demeanor of
the witnesses while testifying, I accept Biffle's testimony that,
on the afternoon of July 8, she told Whitlow that she would
not do production work because she would not go against the
strike.
The other issue of fact is whether Biffle quit or whether she
was discharged for her refusal to do production work. Biffle
testified that on the afternoon of July 8 she told Whitlow that
she would quit before doing production work but she also
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that she changed her mind before the end of the day.
Whitlow testified that when Biffle said she would quit he said
that he didn't want her to quit and that he urged-her to
reconsider. He also testified that he told her, if she came in
the following morning, he would assume that she was pre-
pared to work in the plant. It appears, therefore, from Biffle's
conduct in reporting for work the following morning, that she
did not choose to quit and Whitlow knew it, but she chose
to face whatever results might flow from a refusal to perform
production work.
Whitlow's testimony concerning his conversation with Bif-
fle in the morning on July 8 is that he brought Davenport
with him into the office and that Davenport said he had a job
for her; she said she would not work in the plant; and he,
Whitlow, then said that he had to have her work in the plant,
whereupon she asked whether that was all he had for her to
do, and that he answered: "Yes it is. If you can't go out in
the plant you will have to go home." Biffle further testified
that she then said: "Does that mean I am fired?" and that
Whitlow answered: "Yes." Whitlow testified that he told
Biffle that she had to go out in the plant and work, and, when
she asked whether that was all he had for her to do, he said,
"If you can't go out in the plant, you will have to go
home."'
Whitlow further testified that the Company contested Bif-
fle's application for unemployment insurance and that, at the
hearing on her appeal from the disallowance of payments, the
Company took the position that it had terminated her for
refusal to do the work assigned to her. Upon the foregoing
evidence, I find that Respondent discharged Billie on July 9,
1974.
Whitlow testified that on July 9, the only reason Biffle gave
for refusing to go into the plant to work was that "she had
special training in office work and she didn't feel she should
have to go out and work in the plant." When asked whether
she gave the same reason at the hearing he attended before
the unemployment compensation board, he answered "Much
the same, yes, sir." In the decision of the referee, however,
which was introduced in this case on consent of all parties,
the recitals show that Biffle stated that she had informed the
production manager that she would not work on the produc-
tion line because it was involved in a labor dispute, and that
she "did not favor crossing the picket line to do the strikers'
work."
This is not to say that the referee' s decision in itself con-
vinces me that Biffle made that statement to Whitlow at the
time of her discharge, but I do accept the recital as adequate
proof that Biffle so testified in that proceeding. Whitlow's
testimony in this case, therefore, that at that hearing she did
not give any other reason than her clerical training for her
refusal to do the production work is rejected, and Whitlow's
credibility as a witness is seriously impaired.
On the foregoing, I find that Biffle, on the morning of July
9, refused to do the work of the striking production workers
and that Respondent discharged her for that reason.
3 The testimony of Schwartz, the personnel clerk, was sufficiently equivo-
cal to support Biffle's testimony that she signed the termination form, with
its statement that she did thereby "tender my resignation," only because she
was told that it was routine to do so.
b. The question of law
The General Counsel relies principally on General Tire and
Rubber Co., 190 NLRB 227 (1971), enfd. 451 F.2d 257 (C.A.
1, 1971), in which a clerical employee, requested to do pro-
duction work during a strike of the production workers,
refused, stating that her husband was a strong union man and
that because of her sympathy with the cause of the strikers,
she would not do their work. The company official said there
was no other work for her to do and he discharged her. It
having been found that the employee was discharged and that
the reason for the discharge was her refusal to do the struck
work out of sympathy for the strikers, the Board found that
the Company's action violated Section 8(a)(1) of the Act.'
The cases on which Respondent relies fall into two groups,
both of which fall short of meeting and turning the General
Counsel's argument. In Home Beneficial Life Ins. Co. v.
N.L.R.B., 159 F.2d 280 (C.A. 4, 1947), and N.L.R.B. v.
Montgomery Ward & Co., 157 F.2d 486 (C.A. 8, 1946), the
work which the discharged employees had refused to do was
their own work and their refusals were in sympathy with
other employees who had gone on strike. That is not the
situation here; Biffle performed all of her regular work and
as much as she could of the work of the other clerical em-
ployees who-had agreed to do production work. Further-
more, there is no justification for Respondent's characteri-
zation of Biffle as an economic striker who was required to
request reinstatement. She never refused to do her own work:
it was only the struck work of the production workers that
she refused to perform and she left the plant only when she
was discharged.'
The other case upon which Respondent relies is General
Electric Company (Coshocton, Ohio Plant), 193 NLRB 372
(1971), in which the facts are similar to those herein: but only
up to a point. In that case, also, the production workers were
on strike and the office clerical employees were asked to do
production work. As Respondent's brief discloses, however,
the Board's decision states:
When the turn of each of the seven employees
for performing production work was reached on
Respondent's work schedules and each refused to
do that type of work, she was laid off for the
duration of the strike. Each appears to have been
willing to perform whatever office clerical work
might become available for her but Respondent
was unwilling to have her continue to do that work
unless she also performed the production work
allotted to her. At the conclusion of the strike all
of them returned to their office clerical work.
The Decision also points out that, in The Cooper Ther-
mometer Company, 154 NLRB 502 ( 1965), the decision was
different because the facts were different . Had Respondent
° To the same effect is The Cooper Thermometer Company, 154 NLRB
502 (1965), also cited by the General Counsel.
5 The argument that Biffle's employment application obligated her to do
whatever work Respondent assigned to her is rejected. In that application
she agreed to be transferred to other locations and other shifts but this
acquiescence cannot be interpreted-.as' a consent to assignment to com-
pletely different work
VALMAC INDUSTRIES, INC.
herein laid off Biffle on her refusal to do production work and
recalled her when the strikers resumed work on-July 22, it
would have brought itself squarely within the General Elec-
tric decision and could have been found to be merely exercis-
ing permissible business judgment. Its action in discharging
Biffle, however, was not such exercise of business judgment
but it constituted coercion and restraint directed against her
concerted activity with the production workers. It was, there-
fore, a violation of Section 8(a)(1) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent, set forth in sections 2 and 4,
occurring in connection with its operations described in sec-
tion 1, have a close, intimate and substantial relationship to
trade, traffic, and commerce, among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice, I shall recommend that it cease and desist
therefrom and take affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent, by discharging Brenda Bif-
fle for engaging in activities protected by the Act, committed
an unfair labor practice, I shall recommend that it offer her
reinstatement to the position she held on July 9, 1974, or, if
that position no longer exists, to a position substantially
equivalent thereto, without loss of seniority or other rights
and benefits, and that it make her whole for any loss of
compensation she may have suffered, computed in the man-
ner prescribed in F W. Woolworth Company, 90 NLRB 289
(1950), and with interest as prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and upon the entire
record herein, I reach the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. At the time of the activities set forth in this Decision,
Robert Whitlow was a supervisor of Respondent, within the
meaning of Section 2(11) of the Act, and acted as its agent.
3. The union is a labor organization within the meaning of
Section 2(5) of the Act.
4. By discharging Brenda Biffle for engaging in concerted
activities for the purpose of mutual aid and protection, Re-
spondent interfered with, restrained, and coerced employees
in the exercise of rights guaranteed in the Act and committed
an unfair labor practice within the meaning of Section 8(a)(1)
of the Act.
5. The foregoing unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER6
583
Respondent, Valmac Industries, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging any employee because he or she engaged
in activities for the purpose of mutual aid or protection.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their right to
self-organization, to engage in concerted activities for the
purpose of collective bargaining and other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Offer to Brenda Biffle immediate and full reinstatement
to her former position or, if that position no longer exists, to
a position substantially equivalent to that which she held on
and immediately prior to July 9, 1974, without prejudice to
her seniority and other rights and privileges, and make her
whole for any loss of wages in the manner set forth in the
section of the Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(c) Post at its plant at Dardanelle, Arkansas, copies of the
attached notice marked "Appendix."' Copies of said notice,
on forms provided by the Regional Director for Region 26,
after being duly signed by its representative, shall be posted
by it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by it to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 26, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
6 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions and order, and all objections thereto shall be
deemed waived for all purposes
7 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The hearing held at Russellville, Arkansas, on October 24,
1974, in which we participated and had an opportunity to
give evidence, resulted in a decision that, in discharging
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brenda Billie on July 9, 1974, because she refused to perform
production work during the strike of the production workers,
we had committed an unfair labor practice in violation of
Section 8(a)(1) of the National Labor Relations Act, as
amended, and this notice is posted pursuant to that decision.
The National Labor Relations Act, as amended, gives all
employees the following rights:
To organize themselves
To form , join or support unions
To bargain as a group through a representative they
chose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all such activities.
In recognition of these rights , we hereby notify our em-
ployees that:
WE WILL NOT discharge any of our employees because
they -engage in concerted activities for 'mutual aid or
protection.
WE WILL offer Brenda Biffle immediate and full rein-
statement to her former job or, if this job no longer
exists, to a substantially equivalent position , without
prejudice to her seniority or other rights and privileges,
and make her whole for any loss of earnings she may
have suffered by reason of her discharge.
WE WILL NOT in any like or related manner interfere
with , restrain or coerce employees in the exercise of their
right to self-organization , to form labor organizations, to
bargain collectively through representatives of their own
choosing, to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or pro-
tection , or to refrain from any or all such activities.
VALMAC INDUSTRIES, INC