Valmac Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 27, 1977

229 N.L.R.B. 310 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Valmac Industries, Inc. and Food Handlers Local
#425, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO. Case 26-
CA-5235
April 27, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On April 29, 1975, the National Labor Relations
Board issued a Decision and Order' in the above-
entitled proceeding in which it adopted Administra-
tive Law Judge Sidney D. Goldberg's findings that
Respondent discharged employee Brenda Biffle in
violation of Section 8(a)(l) of the Act and ordered,
inter alia, that Respondent offer to Brenda Biffle
immediate and full reinstatement to her former
position or, if that position no longer existed, to a
position substantially equivalent to that which she
held on and immediately prior to July 9, 1974, and to
make her whole for any losses of earnings she may
have suffered. Thereafter, the Circuit Court of the
United States for the Eighth Circuit enforced the
Board's Order. 2 On June 28, 1976, Respondent filed
a Petition for Reconsideration of Order, moving that
the Board modify its Order with respect to requiring
Respondent to reinstate Biffle to her former position
or, in the alternative, that the Board direct a hearing
in this matter for the purpose of adducing additional
evidence. On July 6, 1976, the General Counsel filed
an opposition to the petition.
On September 3, 1976, the Board issued a notice to
show cause why Respondent's petition should not be
granted, and, on September 20, 1976, the General
Counsel filed a response to the Notice To Show
Cause. Thereafter, on October 27, 1976, the Board
granted Respondent's petition for reconsideration of
Order and ordered that a hearing be held before a
duly designated Administrative Law Judge for the
purpose of receiving evidence to resolve the issues
raised therein.
Pursuant thereto, a supplemental hearing was held
and, on December 30, 1976, Administrative Law
Judge Thomas A. Ricci issued the attached Decision
in this proceeding. Thereafter, Respondent filed
exceptions and a supporting brief, and the General
Counsel filed cross-exceptions and a supporting
brief, a brief in answer to Respondent's exceptions,
and a motion to strike portions of Respondent's
brief.3
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
229 NLRB No. 54
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,4 and conclusions of the Administrative Law
Judge, and to reaffirm our original Order in this
proceeding. s
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby affirms its Order in this
proceeding and hereby orders that the Respondent,
Valmac Industries, Inc., Dardanelle, Arkansas, its
officers, agents, successors, and assigns, shall take the
action set forth in the Board's original Order in this
proceeding, issued on April 29, 1975.
1 217 NLRB 580.
2 533 F.2d 1075 (1976).
3 The General Counsel's motion to strike portions of Respondent's bnef
is hereby denied as lacking in merit.
4 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
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.
The Administrative Law Judge found that discriminatee Biffle placed two
personal checks in the petty cash box in the week prior to her discharge on
July 9, 1974, whereas Biffe testified without contradiction that she placed
the checks in the petty cash box in March and June 1974, respectively. We
find, however, that this error is insufficient to warrant a different result
herein.
5 In his Decision, the Administrative Law Judge found, and we agree,
that from the time the Board issued its Order requiring Respondent to offer
to Brenda Bifle reinstatement to her former position or, if it no longer
existed, to a substantially equivalent position, to the time of the supplemen-
tal hearing, Bife's former position was in existence. The Administrative
Law Judge also found, and we agree, that inasmuch as Biffle's former
position existed during this penod, Respondent was obligated to offer her
reinstatement to that position as required by the Board's Order. In the
Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 NLRB 827 (1946). In reaffirming our prior Order,
we hereby shall require Respondent to offer to Brenda Bime reinstatement
to her former position as long as such former position exists, but in the event
such former position no longer exists, to a substantially equivalent position.
DECISION
Posture of the Case
THOMAS A. RiCCi, Administrative Law Judge: A hearing
in this proceeding was held at Russellville, Arkansas, on
November 30, 1976, pursuant to an order of the Board
issued on October 27, 1976. In its Decision and Order
dated April 29, 1975 (217 NLRB 76), the Board found that
in July 1974 Valmac Industries, Inc., the Respondent,
unlawfully discharged Brenda Biffle, in violation of Section
8(a)(3) of the Act, and ordered it to reinstate her to the job
she had held, or to a substantially equivalent position. The
Board's finding and order were enforced by the United
States Court of Appeals for the Eight Circuit, in May 1976.
When discharged, Biffle was an office clerical employee in
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VALMAC INDUSTRIES, INC.
the Respondent's Dardanelle, Arkansas, plant, where she
had worked for 5 years. In May 1976, a few days after the
circuit court order, the Respondent offered Biffle work in a
clerical position at its Morrillton, Arkansas, plant; this is
approximately 35 miles distant from the Dardanelle plant.
Biffle rejected the offer because it was neither the position
which she had been illegally deprived of, nor its substantial
equivalent.
With this, the Respondent, on June 28, 1976, filed a
"Petition for Reconsideration of Board Order," requesting
that the Board find, on the basis of facts the Respondent
was prepared to show, that the clerical job at Morrillton
was substantially equivalent to the one Biffie had lost at
Dardanelle, and that such offer satisfied the reinstatement
order of the Board in the unfair labor practice case. Over
the General Counsel's objections the Board directed this
hearing to receive evidence of the purpose of resolving "the
issues raised."
The Respondent's contentions
In its motion to the Board the Respondent justified its
offer to Biffle of a job at Morrillton solely on the ground
that she could not be trusted with the petty cash; her old
job in Dardanelle meant access to the petty cash, while the
one at the other plant did not. Although stopping short of
calling Biffle a thief, the Respondent asserts she unlawfully
took money out of the cash box while on the job, and was
therefore obligated to accept what was offered at Morrill-
ton in May 1976. This is the issue on which the Board
ordered a hearing.
At the hearing the Respondent came forth with a second
reason why, despite the Board order, it did not have to
offer Biffle her old job at Dardanelle. It now says that job
no longer exists and that therefore there is no way of using
Biffle there at all.
Facts: Conclusion
Neither of the reasons now advanced by the Respondent
for not reinstating Biffle to her job, as ordered by the
Board, is sufficient. In the circumstances as shown, the job
offered at Morrillton is not the substantial equivalent of the
old one, Biffle had a right to refuse it, and the Respon-
dent's liability to make her whole for loss of earnings is still
running and will continue to run until it adequately
complies with the Board's remedial order. The applicable
rule of law in this situation is not that which applies to
unfair labor practice proceedings, where the affirmative
burden of proof rests upon the General Counsel. Where
compliance is concerned, the wrongdoer who seeks to
avoid or lessen its obligation has the burden of proving it
has in fact met the remedial requirement. N.LR.B. v.
Brown and Root, Inc., et al., 311 F.2d 447 (C.A. 8, 1963).
When discharged in July 1974 Biffle worked in an office
with two other women; all three were office clericals who
made and kept records, filed papers, did typing, etc. Biffie
also answered the phone and acted as receptionist at her
desk. When she was fired the Respondent took Peggy
Tapp, an employee then doing production work, and made
her a clerical in Biffle's place. Tapp learned to do what
Biffle used to do and was still doing it when this hearing
took place.
In the intervening 2 years a different method of
recording production, deliveries, quantities received and
shipped, was evolved. Besides the three clerical employees
in the office where Tapp now works, the Respondent has
about 20 more clericals, in various departments here and
there. The total complement of employees in Dardanelle is
over 600. No doubt the changed system of keeping records
was reflected in the work of other clericals also, and as
office clericals always do, they too like Tapp, did what they
were told to do and learned whatever clerical duties were
necessary.
The idea that the work Tapp now does is not pure office
clerical work as it always was at that desk is an obvious
afterthought. When offering Biffie the job 35 miles away,
Dunaway, the director of industrial relations, said nothing
about that. When the Respondent filed its motion to
convince the Board the Morrillton job is the equivalent of
the one at Dardanelle, it again said nothing about Biffle's
old work no longer existing in the old plant. Since the
Respondent had no reason to advance this assertion in the
past in justification for not complying with the Board's
order, it is not surprising that the record here contains no
evidence to support it now.
At the outset of his testimony Dunaway had to be lead
by company counsel before he said Biffle had been
"primarily" a telephone receptionist. It is not true. Biffle
explained, and no one contradicted her, that among the
things she did were: (I) keep records of the number of
chickens killed, (2) calculate "condemned pounds," "how
many heads," "how much weight" each supplier supplied,
(3) checked, corrected, and made copies of bills of lading,
(4) added totals and reconciled the final figures, (5) typed
stencils, and (6) "did any typing or small jobs that ... the
plant manager or anybody . . . needed .... " After 5
years on the job she certainly could learn any new system
of recording.
Two company witnesses were called to prove Biffle's old
job had changed so drastically it can no longer be
considered the same. Leona West, one of the three girls in
that office, said the reports had "changed some, but it's
basically on the same pattern .... " She added that
"maybe the weights and prices per pound and things like
that have changed." Tapp, who now holds Biffle's job, said
"The daily condemnation report . . . is a little different
form now than what it was at the time," and "the shrinkage
report was a shorter form than what it is now." These are
the office girls talking about the clerical work that goes on.
There is nothing of significance in the fact forms get longer
or shorter, prices go up or down, and reports may be "a
little different." The industrial relations director added
nothing of substance by his conclusionary phrases that the
job has "changed rather substantially," that this "we have
to expect," that for all practical purposes "the old job
doesn't exist today," the "job duties have changed very
drastically . . . the job has gone through a metamorpho-
sis." I find Dunaway's testimony on this point worthless,
as, indeed, I discredit him entirely because he lied outright
on a more significant question at the hearing.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has for years been a practice, and it is still a practice
today, for the girls in the office who need it, to borrow
money from the petty cash and place there a personal IOU,
or a check payable to the Company. They replace the chit
later, but more frequently do so when on a later payday
they have the money. Without belaboring the matter,
Tapp, who has occupied Biffle's job since 1974, said that
she had done so herself. More significant, Scott, the office
girl who is more in charge of the petty cash than anyone
else, said she did it before Biffle left and she has been doing
it since. Dunaway's direct testimony that there is an
absolute rule against any employee doing that, is just plain
false.
During the last week before her discharge Biffle had
placed two checks in the petty cash box for a total of $48
for money she had borrowed. With knowledge that she was
the next day going to be discharged for refusing to do
struck work, on the last day in the office she removed her
checks because she knew she would not have sufficient
income to make them good on time. The next day, Scott,
on checking the petty cash box, noticed the apparent
shortage (she had seen Biffle's checks earlier), and advised
the manager. The manager said nothing about it. The next
day, Friday, Biffle came to the plant for her paycheck. She
spoke to Scott, told her about having removed her checks,
and said that as soon as she started to receive unemploy-
ment benefits, she would come in and make the checks
good. Again Scott so advised the manager, who again made
no comment whatever. Biffle never did succeed in receiving
unemployment payments until late in September or the
beginning of October. As soon as she did, she came back to
the plant and paid the $48 she owed to Scott.
It is the fact of Biffle having removed those personal
checks from the cash box when she was fired that
Industrial Relations Director Dunaway said at the hearing
showed a lack of "self control," or "self discipline," such as
to justify now keeping her far away from the cash box and
placing her 35 miles distant at the Morrillton plant instead.
I find no merit in the contention. It is a gross exaggeration
by the Respondent now belatedly to characterize what
happened with those checks as a form of theft by the
employee. The plant manager thought nothing of it when
he learned about it 2 years ago. When Dunaway advised
Biffle in May 1976 that there was no job for her at
Dardanelle and that she therefore would have to go far
away to Morrillton, he made no mention about this check
business at all. Of necessity it follows that the entire
incident was always deemed no more than normal,
accepted activity, that is up until the moment the employee
rejected the distant offer and a reason had to be found in
the attempt to justify it.
The truth of the matter is that when Biffle left she owed
the Company $48. She made no attempt to conceal it; in
fact, she took it upon of herself to be sure the Company's
records were straight, and that they knew she owned the
money. She voluntarily offered to repay it. Never, from
that day until 2 years later, was either any step taken to
recover the money, nor indeed any request made upon her.
Moreover, justice requires that this be said also. If she was
not able to repay the loan in July 1974, it was because the
Employer wrongfully deprived her of her employment. The
system was, as the Respondent's witnesses themselves said,
that the employees normally made good what they
borrowed out of their later salary. But it was the
Respondent which made it impossible for Biffle to make
good her promissory note, as it were, as she had always
done. Further, however justified the Employer may have
been to argue its innocence with respect to the discharge, it
is still a fact that the unemployment benefits to the woman
were delayed 2 months only because the Respondent went
out of its way to attempt to prevent her from obtaining it.
In the circumstances, now to call her a thief because she
found herself in financial straights purely as the result of
the Respondent's violation of law, will not do as a devious
technique for avoiding the compelled compliance with the
Board's order.
There is another reason why the offer made to Biffle to
go to such a distant plant is not what the Board means by
straight reinstatement or "substantial equivalent." Restora-
tion of the status quo means, of course, undoing the
damage inflicted upon the individual victim of an employ-
er's misconduct. It means more than that, however. Every
unlawful discharge under this statute has a coercive effect
upon all employees where the employee works. This
woman was punished for engaging in protected activities at
Dardanelle, where other employees of necessity knew what
had happened. The status quo to be restored includes the
assured state of mind of other employees in the shop. To
relegate Biffle to a distant plant so many miles away, does
not give the necessary assurance to the other Dardanelle
employees that they may, with protection of law, carry on
the concerted activities guaranteed by the statute.
I find that Biffie was not obligated under the Board's
order to accept the Morrillton job, and that that job did not
constitute reinstatement or its substantial equivalent as
called for by the Board's order. The Respondent hired four
clerical employees during 1975, and two others during
1976. It could easily have taken Biffle back, as was its duty.
It chose not to do so. With as many as 20 office clerical
employees throughout the plant, there are many ways in
which the Respondent can comply with the order. How it
does so is its responsibility and neither that of the General
Counsel nor of Biffme.
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