Wells Blue Bunny

National Labor Relations Board - Board Decisions

Dec 16, 1987

287 N.L.R.B. 827 (N.L.R.B. 1987)

WELLS BLUE BUNNY
Wells Dairy , Inc., d/b/a Wells Blue Bunny and
United Food and Commercial Workers Union,
Local No. 179, AFL-CIO. Case 18-CA-9789
16 December 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND CRACRAFT
On 18 March 1987 Administrative Law Judge
Joel A. Harmatz issued the attached decision. The
Respondent and the General Counsel filed excep-
tions, supporting briefs, and reply briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions,2 to modify the remedy,3 and to adopt
the recommended Order.4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Wells
Dairy, Inc., d/b/a Wells Blue Bunny, Le Mars,
Iowa, its officers, agents, successors, and assigns,
shall take the action set forth in the Order, except
that the attached notice is substituted for that of
the administrative law judge.
' The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 ( 1950), enfd 188 F2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 Member Cracraft adopts the judge 's finding that the Respondent vio-
lated Sec 8 (a)(1) by discharging employees Brown and Weiler for engag-
ing in protected concerted activity She finds it unnecessary to pass on
whether the Respondent also violated Sec 8(a)(3) by discharging these
employees
S In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 ( 1987), interest on and after 1 January 1987 shall be
computed at the "short -term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to I January 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
° The General Counsel requests a visitatorial clause We deny the Gen-
eral Counsel 's request as unnecessary
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
827
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form , join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT coercively interrogate you con-
cerning your union activities.
WE WILL NOT threaten you with discipline, in-
cluding discharge , because you have elected to
complain about your working conditions in a
manner protected by Section 7 of the Act.
WE WILL NOT discourage membership in United
Food and Commercial Workers Union , Local No.
179, AFL-CIO, or any other labor organization, or
any protected concerted activity for your mutual
aid and protection by discharging or otherwise dis-
criminating against you with respect to wages,
hours, or other terms and conditions or tenure of
employment.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Gilbert Weiler and Glenn Brown
immediate reinstatement to their former positions
and WE WILL make them whole for any loss of
earnings they may have suffered by reason of our
discrimination against them , plus interest.
WE WILL notify Gilbert Weiler and Glenn
Brown that we have removed from our files all ref-
erences to their discharges , notifying them specifi-
cally that this has been done and that these unlaw-
ful disciplinary actions will in no way be used
against them in the future.
WELLS DAIRY, INC., D/B/A WELLS
BLUE BUNNY
James L. Fox, Esq., for the General Counsel.
Michael Alden, Esq. (Tate & Alden, P. C.), of Lincoln, Ne-
braska , for the Respondent.
287 NLRB No. 84
828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This
proceeding was heard by me in Le Mars, Iowa, on 1 and
2 December 1986, on an original unfair labor practice
charge filed on 29 August 1986 and a complaint issued
on 10 October 1986 which, as amended, alleges that Re-
spondent independently violated Section 8(a)(1) of the
Act by certain coercive conduct in connection with em-
ployee activity protected by the Act, and further violat-
ed Section 8(a)(1) and (3) by discharging employees Gil-
bert Weiler and Glenn Brown, either as a reprisal for
their having engaged in union activity, or because they
engaged in concerted activity protected by Section 7 of
the Act In its duly filed answer, Respondent denied that
any unfair labor practices were committed. Following
close of the hearing, briefs were submitted on behalf of
the General Counsel and the Respondent.
On the entire record in this proceeding, including my
opportunity directly to observe the witnesses while testi-
fying and their demeanor, and on consideration of the
posthearing briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is an Iowa corporation with plants and of-
fices located in Le Mars, Iowa, from which it is engaged
in the manufacture, nonretail sale, and distribution of
dairy products. During the calendar year ending 31 De-
cember 1985, a representative period, Respondent in the
course of the operations derived gross revenues exceed-
ing $500,000. During that same period, Respondent sold
and shipped from its Le Mars, Iowa plants products,
goods, and materials valued in excess of $50,000 directly
to points outside the State of Iowa, and received prod-
ucts, goods, and materials at those locations valued in
excess of $50,000 directly from points outside the State
of Iowa
The complaint alleges, the answer admits, and it is
found that Respondent is now, and has been at all times
material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and it is
found that United Food and Commercial Workers
Union, Local No. 179, AFL-CIO (the Union) is now,
and has been at all times material , a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issue of primary remedial concern in this case de-
rives from, allegations that Gilbert Weiler and Glenn
Brown were unlawfully discharged. On the motive issue,
the General Counsel asserts alternative theories It is
argued that this action either was a reprisal for concerted
protected activity and hence violative of Section 8(a)(1)
of the Act, or prompted by union activity and hence vio-
lative of Section 8(a)(3). Respondent denies knowledge
of any union activity prior to the decision to effect the
discharges, but seeks to excuse its conduct on the ground
that Weiler and Brown were terminated because of their
repeated complaints concerning job assignments, conduct
on the part of the dischargees which, according to Re-
spondent, was not protected by Section 7 of the Act.
Beyond the foregoing, the complaint includes allega-
tions that Respondent independently -violated Section
8(a)(1) of the Act through alleged acts of coercion in the
form of interrogation and an implied threat Both counts
relate to matters occurring after the terminations Re-
spondent seeks dismissal of these allegations, arguing that
neither involved conduct that might be construed as co-
ercive under controlling Board precedent.
B. Concluding Findings
The conduct under scrutiny in this case occurred at
Respondent's ice cream plant in Le Mars, Iowa. Re-
spondent also operates 'a milk plant in Le Mars and an-
other in Omaha, Nebraska. Respondent's employees have
no history, of outside union representation. There is,
however, an employee committee that exists for the pur-
pose of dealing directly with management concerning
both the negotiation of annual wage increases and the
consideration of grievances
Weiler and Brown were long-term employees At the
time of discharge, Weiler had been employed for about 6
years, and Brown's length of service exceeded 16 years.
Both had risen to the position of "machine operator," the
highest rated, nonsupervisory production job im the ice
cream plant.
Personnel Manager Michael Ellis summed ' up Re-
spondent's reason for the discharges as follows:
Gib and Glen were fired because they are perpetual
constant complainers, generally speaking they
griped about anything that upset, their normal rou-
tine and any time they had to do something other
than exactly what they wanted to do We got tired
of it and decided they should be fired.
The specific litigation in this proceeding was addressed
to limited grievances, which, in the main, pertained to
Respondent's procedure for altering the schedules of
production crews when their normal work,is unavailable.
In this regard, the evidence reveals that Respondent
manufactures a variety -of ice cream products, including
bulk, pail, and specialty items consisting of sandwiches,
bars, etc. These items are manufactured on production
lines consisting of approximately four permanently as-
signed employees. Permanent jobs on the various lines
are bid competitively. Because of seasonal influences on
demand and unforeseeable changes in consumer prefer-
ences, all lines are not in production continuously
throughout the year. During those occasions when a line
is down, its crew is reassigned to perform other work.
There is no dispute that employees would prefer to
work their own lines, than be reassigned. As a general
rule, their job transfers would be unsettling to workers in
the higher rated positions, who often would be required,
WELLS BLUE BUNNY 829
in consequence, to work different hours, while relegated
to monotonous, less responsible jobs Reassignment does
not hit all workers with the same frequency Some pro-
duction lines are subject to fewer fluctuations in demand,
and employees permanently assigned to those lines are
less vulnerable to reassignment . Dissatisfaction with the
reassignment process by Weiler and Brown, and mem-
bers of their crew, is central to Respondent's explanation
for the discharges.
As for the specifics of the underlying controversy, it is
noted that in early 1986,1 Respondent established a new
square half-gallon line To man this line, notices of job
openings were posted for bid Weiler and Brown, in the
past, had worked on unsteady lines requiring frequent re-
assignment . For this reason, before bidding, they in-
quired whether production on the new line would be
continuous . Because management contemplated reason-
ably uninterrupted production, Weiler and Brown were
given assurances to this effect. Both bid for the "machine
operator" classifications on the new operation They
were the successful bidders and assumed their positions
rotating on a two-shift basis. Bill Caravan and Myron
Plueger filled the remaining fixed slots on the permanent
crew, as class "A" assistants. In June, square half-gallon
inventories exceeded sales to a point warranting a cur-
tailment of output. In consequence, Weiler, Brown,
Caravan, and Plueger were rescheduled for other work.
The reassignments in the main were to other production
lines, provoking dissatisfaction among all four members
of the crew. During these frequent down periods, they
manifested a strong preference for giving breaks to co-
workers, over reassignment to fixed jobs on other lines.2
From time to time during the summer, members of the
new half-gallon crew raised the reassignment issue with
management representatives. First, Weiler, Brown, and
Plueger, in early July, met with Ron Delperdang 3 As
was customary, Weiler did most of the talking 4 Delper-
dang was queried as to why their crew was not reas-
signed to break work, when those jobs were being given
to class "C" or part-time help. On behalf of the crew,
the point was made that their greater seniority and
knowledge as to operation of the equipment would place
' All dates refer to 1986 unless otherwise indicated
2 The preference for working "breaks" was based on the fact that it
involves movement from job to job that allows the workday to pass
faster In addition , work schedules would remain constant under such an
assignment In this latter connection , because the various production lines
are operated on the basis of staggered shifts, reassignment frequently re-
quired rearrangement of personal affairs due to forced changes in the
starting and quitting times of those affected From the standpoint of the
"machine operators ," assignment to a production line was even more dis-
tasteful because , as in the case of Weiler and Brown , they never per-
formed in that capacity on reassignment , but always served in a lesser
job, often monotonous in nature , which denied them the freedom of
movement and variety experienced in their regular positions
3 Delperdang was Respondent ' s production manager He reported to
Plant Manager David Wells Immediate supervision of the new square
half-gallon line was the responsibility of Foremen Bob Schroeder and
Chuck Ream The latter reported directly to Delperdang
° Weiler, until 19 October 1985, had been a member of the employee
committee for some 4 years He claims that he retired from that role be-
cause he was frustrated with management 's response to employees' de-
mands His testimony that , while serving in this capacity, he was more
outspoken than other members of the committee was left unchallenged
Personnel Manager Ellis described him as an "active" member of the
committee
them in a better position to provide effective relief to
other workers. Delperdang stated that he could see no
reason why this could not be done. He advised that he
would talk to Schroeder and Ream about assigning the
new half-gallon crew to break work.5
Later in the month of July, Weiler, Brown, and
Plueger again met with Delperdang, this time in the
presence of Plant Manager Dave Wells. The work
schedules for that week reflected that Weiler, Brown,
and Plueger had been reassigned to work on a bulk line.
At the same time, the schedule reflected that part-timers
had been assigned to work breaks Weiler presented this
schedule to Wells and Delperdang, asking "is there any
reason why the four of us couldn't be put on breaks and
these two class C's or part-timers put on the crew?" Del-
perdang responded "there's no reason why they couldn't
do it, that they were going to talk to Bob Schroeder
about it "s
This conversation was followed by a formal meeting
of the employee committee, which was held on 8
August, one of several conducted annually for the pur-
pose of airing employee complaints Weiler and Brown
attended. Also present were three members of the em-
ployee committee and Dave Wells and Personnel Manag-
er Michael Ellis. The first issue raised by Weiler and
Brown related to reprimands that had been issued recent-
ly by management to various coworkers concerning sani-
tation. Weiler in this respect argued that the reprimands
were being dealt out indiscriminately and that some em-
ployees received them underservedly. He observed fur-
ther that employees had not been supplied with the
cleaning tools required to prevent unsanitary conditions
Next, Weiler again made the point that, when the new
square half-gallon line was not operating, his crew con-
tinued to be assigned to other production lines . Weiler
explained that this occurred at times when they felt they
should be assigned to breaks. Weiler reiterated, as he
argued persistently in past conversations with Delper-
dang, that members of the new square half-gallon crew
had more knowledge and seniority and should be used to
give breaks ahead of the lower-rated class "C" and part-
timers who had been given that work. Delperdang and
Wells responded that "they was going to talk to Schroe-
der [and] Chuck Ream and see if they could get us alto-
gether [sic], and talk to us and try to resolve it "'
It does not appear that Brown participated in any fur-
ther discussion of the reassignment issue .8 On 18 August,
5 Plueger was not called by any party The foregoing is based on a
composite of the credited testimony of Brown and Weiler Delperdang
was not examined as to this specific conversation He did testify, howev-
er, that later in July, Weiler confronted Delperdang, stating "Well I see
we are back on working the bulk crew again instead of being on breaks, I
thought we were going to get this straightened out " Delperdang 's testi-
mony in this latter respect enforces that probability that Delperdang pre-
viously had given the crew reason to believe that steps would be taken to
resolve their complaints favorably.
6 The foregoing is based on a composite of the credited, uncontradict-
ed testimony of Weiler and Brown
Here again the specific testimony offered by Weiler, as supplemented
by Brown, was not specifically contradicted by any witness having a
clear recollection of what happened
8 Ellis testified that at some undefined time in August , Brown com-
plained about reassignment to a job that entailed the sorting of packaging
Continued
830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he began a 2-week vacation. As shall be seen, his return
was interdicted abruptly by the discharge.
During the week after the committee meeting, the new
square half-gallon crew was again reassigned to various
bulk,lines. Weiler testified that he tried to reach Person-
nel Manager Ellis by telephone on 13 or 14 August, fi-
nally reaching him on Friday, 15 August. Ellis was than
informed. "Mike, they're still messing around with, our
hours and . we be on the bulk line again." Ellis an-
swered Weiler with an indication that he would discuss
the matter with Delperdang 9 Caravan, having missed
the 8 August meeting of the employee committee, ques-
tioned Delperdang as to whether anything had been
worked out so as to permit break work for his crew.
Delperdang responded that he did not know what was
going on, since he had dust returned from vacation and
he had not seen the schedule. Caravan then,suggested to,
Delperdang that perhaps, when the new square half-
gallon line was down, his crew might be kept together
and rotated with another half-gallon crew, rather than
split and reassigned to other production jobs all the time
Weiler then approached, complaining that, according to
the new schedule, his crew had again been reassigned to
a bulk line. When Delperdang reiterated that he had just
come back' from vacation and was unaware of the sched-
uling , Weiler stated "well I thought you were going to
have this worked out with Bob and Chuck." At this
point, Delperdang importuned Weiler with the observa-
tion that "novelty" employees are constantly getting bad
deals and do not complain, but "you do " Delperdang
then angrily walked off. 10
This apparently was the last predischarge confronta-
tion between any member of the new ,square half-gallon
crew and any management representative concerning the
reassignment issue. Weiler testified credibly that between
15 and 27 August, no complaints were registered with
management other than those related to equipment mal-
functions interfering with the quality of the product.
Beyond that, there was no evidence that either Weiler or
Brown, or any member of their fixed crew, addressed
any grievances or complaints to management during that
timeframe.t t On the other hand, since July, Weiler and
material Brown let Ellis know that he was unhappy about the assign-
ment, stating that he was being "jacked around"
9 Weiler's account is 'inconsistent with that of Ellis The latter ac-
knowledges that he received telephone messages from Weiler, but on 22
August Ellis insists that he never got back to Weiler I believed Weiler's
testimony, which seemed more probable than that of Ellis, who was an
unconvincing witness with limited grasp for detail
10 Delperdang testified that he informed Caravan that he "had been in
contact with Chuck Ream and Bob Schroeder on the scheduling and that
as far as [Delperdang] was concerned their scheduling was put-
ting the people where they thought they should be " He claims that
when Weiler interjected his objection, he stated "in my estimation they
really had no reason to be bitching about their hours or their reassign-
ments , the one who would have reason to bitch would be novelty people
being their hours are jacked around a lot more and they do have to work
a lot more hours" When in conflict, I credit Caravan, an incumbent em-
ployee who would have no apparent interest in testifying falsely with re-
spect to matters of interest to his employer
'' As indicated Ellis testified that "toward the end of August," or
about 22 August, he received phone messages from Weiler Ellis claims
that he tried to respond but Weiler could not be reached Although Ellis
claims to have asked Delperdang if he knew what Weiler wanted, Ellis
-alleges that he at no time during the remaining days of Weiler's employ-
ment communicated any form of response ' Indeed, Ellis could not recall
Brown had frequently discussed the possibility of seeking
union representation . During Brown 's vacation , Weiler
requested that Brown contact a local union official. On
26 August , Brown , while still on vacation , returned to
the plant to inform Weiler, who was then working the
evening shift , that a meeting with a union representative
had been scheduled for 5 September
The next day, Wednesday , 27 August; Weiler was
scheduled to work the night shift At 8:30 that morning,
he received a telephone call from Delperdang instructing
that he report to the plant for a meeting at 1.15 that
afternoon . Brown, who on that date continued to be on
vacation , received a similar call, urging that he attend a
meeting at 1 p m. Both attended as directed and were
discharged in the course of the meetings : At each, Dave
Wells, Delperdang , and Mike Ellis were present. Brown
was told he was terminated because of his constant com-
plaining about the work , and the fact that management
could do nothing to satisfy him. He was also told that
when he was put on breaks , management had received
complaints that he did not do his job Though requested
by Brown , management representatives declined to iden-
tify those who had complained.12 He was told also that
it appeared to management that he had not liked his job
for the past 4 to 5 years , that all he did was complain,
and that management could not keep him happy. He was
told that the matter had been discussed with Faye Wells,
Respondent 's chief executive officer, who indicated that
Brown should be terminated.13
The General Counsel contends that the discharges
were unlawful either on (1) the Employer 's stated
ground , as reprisals for protected concerted activity, or
(2) because the assigned reason was a pretext to mask
Respondent 's desire to eliminate Brown and Weiler in
order to thwart any nascent union activity.
Analysis begins the Respondent's brief , wherein it is
conceded that' " . . the discharges were ' prompted ex-
clusively by the complaints registered by Weiler, and
Brown about their fob' assignments " II Respondent
would excuse its conduct on grounds that the griping by
the employees fell outside the protective mantle of Sec-
tion 7.
Respondent contends initially in this respect that statu-
tory protection was removed because Weiler and Brown
were "lobbying for . . preferential treatment ." It is true
that Ellis, and presumably all other management repre-
sentatives involved in the discharge decision , knew or
should have known that all production personnel in the
ice cream plant, including the four members of the
Weiler-Brown crew, preferred giving breaks when their
line was down . However, the fact that this latter group
specifically any conversation with Weiler concerning his work assign-
ments other than that occurring on 8 August at the employee meeting
12 Respondent does not contend that job performance was a factor in-
fluencing the discharges In fact, Weiler and Brown's supervisors were
not even consulted in connection with their terminations The only sug-
gestion of work inadequacy appeared in uncorroborated reports from a
coworker, Brian Jelkin, whose opportunity to observe Brown and Weiler
was dubious at best
is Ellis testified that Faye Wells was informed of the facts and "con-
curred" in the discharge decision
11 See Respondent's posthearing brief, at 6
WELLS BLUE BUNNY
alone was pressing for the break assignment furnished no
license for reprisal. I know of no case standing for the
proposition that a concerted complaint loses its protected
status because, if granted, other employees in the bar-
gaining unit would be prejudiced. Claims founded on se-
niority almost always contemplate priority over others,
yet often furnish the predicated-for grievance activity
typically within statutory guarantees.
Moreover, beyond its legal insufficiency, the evidence
suggests that the "favoristism [sic]" argument might well
have been an afterthought, rather than a genuine consid-
eration leading to the discharges Thus, management was
fully aware that the dischargees registered their bids on
the new square half-gallon line only after receiving assur-
ances that work would be constant on that line, thus
avoiding reassignment to lesser jobs on other crews and
concomitant changes in work schedules. When this
proved not to be the case, Delperdang and Ellis were in-
formed by Brown and Weiler, consistently, that their
demand for assignment to breaks was based on their se-
niority and greater knowledge of the equipment, an argu-
ment based on the economic feasibility of avoiding such
assignments being given to less skilled, newer employees,
working either as class "C" personnel or on a part-time
basis. Mindful of the foregoing,15 management at virtual-
ly every turn assured the crew that their complaints
would be taken care of. Moreover, neither Brown,
Weiler, Caravan, nor Plueger, in his several confronta-
tions with superiors, was ever accused of seeking special
preference,16 nor did management communicate any ra-
tionale as to why the assignment of lower-rated person-
nel served employer interests in this respect.17 In sum,
15 Delperdang summarized the position of Weiler and Brown as fol-
lows
[T]hey though [sic] that they should not have to be put on other
equipment when their lesser [sic] senior people in the break crew or
on the equipment They thought that they should be able to give
breaks or work the break crew with their seniority and their knowl-
edge of most of the equipment
'6 Testimony that other employees had complained about such a pref-
erence did not ring true Delperdang, who claimed to have acted on such
reports in initiating the discharges, admitted that he did not know wheth-
er Weiler and Brown had been assigned to give breaks or whether favor-
itism had been extended to them He admittedly did not bother to check
the schedules, which were available, in order to ascertain whether in fact
Brown and Weiler had been given a preference, and if so, as against
whom He admitted that, as a class, machine operators, including the dis-
chargees, possessed greater qualifications and experience than part-timers
Finally, Delperdang conceded that employees who alleged a preference,
including Brian Jelkin, never stated that their work opportunities were
impaired because of any preference given Weiler or Brown, and, indeed,
the only outside employee he claims to have questioned, Grosenheider,
happened to be an operator on the 5-quart pail line , which did not experi-
ence downtime during the summer of 1986 Ellis also was disinterested in
the corroborative details He, too, testified that Jelkin reported that other
employees were concerned about the "apparent favored status" of Brown
and Weiler and "their constant complaining " Yet, Ellis confirmed that at
no time prior to the discharge was Jelkin asked to identify those employ-
ees As was true of Delperdang, Ellis admitted that he had no knowledge
as to the truth of any such accusations against Brown and Weiler, nor did
he investigate that charge These gentlemen did not strike me as inexperi-
enced managers who do not know the difference between claims seeking
favoritism and those based on rational employment factors such as senior-
ity and ability Quite obviously, the Employer's own personnel policy
recognizes these criteria as a basis for treating employees differently See,
eg,GCExh2,p8
17 As shall be seen, the means by which Respondent reacted to the
grievances tends to support the General Counsel's alternative claim that
831
Respondent knew full well that the employees were as-
serting seniority and a greater working knowledge over
employees with less credentials in these areas. There is
absolutely no evidence that Weiler or Brown asserted a
preferential claim for breakwork regarding higher rated
employees. From Respondent's standpoint, it knew or
should have known that Brown and Weiler were simply
seeking recognition by management of traditionally ac-
cepted employment factors that distinguished them and,
in their eyes, afforded a greater claim for break work
than lower rated personnel.
The defense next proceeds with an assertion that Sec-
tion 7 fails to apply because Weiler and Brown were
seeking "insulation from duties and assignments they
didn't care for " On the contrary, selflessness is not pre-
requisite to the "mutual aid and protection" contemplat-
ed by Section 7 of the Act To hold otherwise, would
produce an absurdity limiting statutory guarantees only
to those employee complaints that address nondetrimen-
tal conditions and that are viewed by the grievants with
indifference.
Respondent also appears to confuse purely individual
action with what clearly occurred here. The action by
the new half-gallon crew, including Brown and Weiler,
transcended that form of "purely personal griping and
complaining" that renders employees who act alone fair
game for lawful discharge. Their protestations were
clearly concerted within the intended meaning of Section
7 of the Act. Under the Act, two is always enough, and
there is no requirement that those who join in a common
expression of concern act in larger numbers. i 8 Here, the
employees voiced their complaints without disrupting
production and through channels that were not shown to
have been inappropriate. 19 They attempted to persuade
management of the propriety of their complaints by as-
sertions of seniority and experience-a line of reasoning
that went unanswered.20 The fact that their complaint
the complaints registered by Brown and Weiler were not the real reason
for their discharge From the objective, indisputable evidence on this
record, serious question arises as to why Respondent, instead of address-
ing the merits of their grievances, elected to terminate long-term, highly
rated employees with good work records
18 The cases involving purely personal griping by a single employee,
acting individually are plainly distinguishable from the group action to
which Respondent reacted in this case Cf NLRB v Deauville Hotel, 751
F 2d 1562 (11th Cir 1985), and cases cited at 1571, Pelton Casteel, Inc v
NLRB, 627 F 2d 23 (7th Cir 1980) Furthermore, the requirement that an
individual employee proceed "with the object of initiating, inducing, or
preparing for group action" is inapposite where, from beginning to end,
the specific employee complaint is iterated and reiterated through
"group" confrontations with management Accordingly, Respondent
relies erroneously on such cases as K-Mart Corp, 268 NLRB 246 (1983),
Mills Patrol Service, 264 NLRB 323, 324 (1982), Koch Supplies v NLRB,
646 F 2d 1257 (8th Cir 1981), Scooba Mfg Co v NLRB, 694 F 2d 82 (5th
Cir 1982)
19 Contrary to Respondent, Bechtel, Inc, 248 NLRB 1222 (1980), is
clearly distinguishable Rather than attempting to sieze control of and
dictate their conditions of work, the complainants sought peaceful change
through the force of reason They acted in the fashion encouraged by
Respondent's own published policy (See G C Exh 2, pp 3 and 8) and
engaged in no conduct that could be described fairly as disruptive of
plant discipline or abusive of management See, e g , Millcraft Furniture
Co, 282 NLRB 593 (1987)
20 Although Respondent contends that it unsuccessfully attempted to
satisfy Brown and Weiler, there is no specific evidence as to when and
Continued
832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was not supported by, or opposed to, other workers is
immaterial Congress did not intend that protected status
be imperiled when an element within an employee com-
plement looks on a grievance with disfavor. Section 7
merely requires "concerted" activity, not "consensus"
activity.
Accordingly, the conduct of Weiler and Brown consti-
tuted concerted activity for the purpose of mutual aid
and protection as guaranteed by Section 7 of the Act,
and the discharges, if based thereon, together with Re-
spondent's publication that they were discharged for that
reason, amounted to discrimination proscribed by Section
8(a) (1) of the Act.21
Although unnecessary to the remedy, the General
Counsel's claim of pretext is not necessarily inconsistent
with the above finding and warrants full consideration. 22
The evidence does not disclose 'that any employee had
ever been discharged for submitting complaints Indeed,
a discharge, so grounded, would flout Respondent's pub-
lished employment policy that unmistakably, and without
qualification, encourages such activity. In this respect,
Respondent's "Employee Handbook" stresses:
If you have a complaint, we want to hear and if
possible, correct it. For this reason employees are
encouraged [to] express their complaints to their im-
mediate supervisor or Plant Manager.23
A similar appeal is incorporated in the Company's decla-
ration of its antiunion policy, which recites, in material
part, as follows:
. . . [Y]ou must be open and honest with us, and it
is only reasonable to ask that each of you give us
the opportunity to respond to any complaint or
problem you may have. Be assured that we wll do
just how that was accomplished In contrast to this claim, the evidence
regarding the work assignment dispute tends to show that the grievants
were led to believe that management would react favorably on their
complaints, but did not do so Also clear is the fact that management did
not respond to the assertion of seniority of qualification or give any
reason to the crew as to why new employees or part-timers were given a
preference in break work Thus, management's response did not rise to
the level considered by the Board in Borden, Inc, 257 NLRB 864, 866
(1981)
21 The complaint includes an independent 8(a)(1) allegation based on
uncontroverted testimony by Chris Weiler (a cousin to Gilbert Weiler)
that Delperdang, on 27 August, informed him, in the presence of employ-
ees Jeff Rueder and Mark Nelson, that Brown and Weiler were dis-
charged "because of their constant complaining [Management] tried
to work with them on their scheduling and it didn't seem that they could
make them happy " Delperdang added that "Bill Caravan was considered
[for termination] but after what happened to these two guys, maybe he
would get back to being his old self again " These comments implied
strongly that participation in concerted activity was a risky endeavor,
that had already met with recriminations Delperdang thereby engaged in
conduct tending to impede employees in the exercise of Sec 7 guaran-
teed, and, accordingly, Respondent further violated Sec 8(a)(1) of the
Act in this respect
22 Respondent's mere assertion, in the circumstances, that the dis-
charges were based on employee complaints, would require a traditional
reinstatement and backpay remedy even if false Board intervention
would remain necessary to remove the chilling effects of, the published
reason for discharge and to assure Respondent's employees generally that
their own assertion of statutory rights will not create vulnerability to like
reprisals
23 See G C Exh 2, p 8
our best to resolve these matters in a fair and rea-
sonable manner.24
Respondent's proof makes no effort to distinguish the
conduct of Weiler and Brown from the reach of that
policy. Neither was counseled, formally or elsewise, that
their complaints were unreasonable, offensive to manage-
ment, or that they might lead to discipline if pursued;
Management was fully mindful that Weiler and Brown
sought to exercise their claim for break work only
against lower rated and/or part-time employees with less
seniority As indicated, even if reasonable basis had exist-
ed for belief that favoritism was involved, that angle was
never examined, investigated, or confirmed by anyone
having a voice in the discharge decision. For some un-
disclosed reason the senior employees were. discharged
without consulting immediate supervisors or business
records that would either establish or deny the existence
of favoritism Moreover, no steps were taken to ascertain
whether employees to be affected by the grievance took
offense even though it was only the lower rated and
part-timers who could rationally claim that job opportu-
nities were threatened by the Weiler-Brown grievance
Aside from these indisputable contradictions, Respond-
ent's disparate course is irreconcilable' with other em-
ployment practices as well. The employee handbook lays
out a progressive system of discipline By virtue thereof,
discharge is contemplated after a fourth offense, disci-
pline that is designed to follow- a verbal warning for the
first' violation; a written reprimand for the second, and
suspension for the third. In contrast with this formula,
Brown and Weiler, during their combined 22-year histo-
ry of employment with the Company, had received two
disciplinary citations, the most recent being 3 years old.
No' explanation ` was offered as to why the progressive
system of discipline was ignored in this instance. Quite
clearly, the very grievance activity that Respondent en-
courages could not have been viewed as inherently'unac-
ceptable behavior sufficient on its face to impel immedi-
ate discharge.25
The explanation must lie elsewhere. Indeed, other fac-
tors enforce that view Thus, although the published
reason for the discharges hardly' suggested a sense of ur-
gency, they were effected suddenly, while one employee
was on vacation, and in the midst of a payroll period.
Immediate supervisors were not consulted and Respond-
ent acted with such rapacity that there was no time for
development of evidence of a primary nature, which
would tend' to confirm or refute second- and third-hand
allegations that furnished the cornerstone of its case
against Brown and Weiler.
24 Id at 3
25 Dave Wells' testimony transcended mere complaints about working
conditions Indeed, he related that within the past 1-1/2 to 2 years, qual-
ity control personnel accused Weiler and Brown of fabricating tempera-
tures and barrel weights Despite the seriousness of these allegations,
Wells concedes that there was no followup and it does not appear that
evidence actually implicated the dischargees in such misconduct It is not
surprising that Wells , as Respondent 's last witness , would attempt to
divert attention from the job reassignment grievances He was regarded
as a thoroughly untrustworthy witness, bent on digging up any "old
bones" that might prejudice one's perception of the alleged discrimina-
tees He is discredited on all salient points
WELLS BLUE BUNNY 833
The employee handbook once more offers a major
clue in the effort to isolate the real causation and to rec-
oncile conflicts and implausibilities within the assigned
ground for the terminations Virtually at its threshold,
that document articulates as follows
NON-UNION POLICY: Wells' Dairy is a non-
union company and we sincerely want it to remain
non-union . More specifically , we believe that a
union would be detrimental to all of us. It would
reduce our operational flexability [sic] and efficien-
cy. It would make things much more complicated
and it would create a third party (a go-between)
that would destroy the direct, person to person rela-
tionship that we now enjoy . Where would we find
a third party (union or otherwise) that has as much
interest or as much at stake in our company as we
do?
The management of Wells' Dairy is committed to
maintaining a climate that will not cause anyone to
want a union or think that we need one. This means
that we must continually strive to provide good
working conditions , competitive wages and benefits,
and fair treatment of everyone It is difficult, how-
ever, to fulfill this commitment without everyone's
active support and cooperation. This is to say, that
you must be open and honest with us, and we think
it is only reasonable to ask that each of you give us
the opportunity to respond to any complaint or
problem you may have Be assured , that we will do
our best to resolve these matters in a fair and rea-
sonable manner.
Coincidentally, just before their discharge Brown and
Weiler were engaged in conduct offensive to Respond-
ent's position with respect to unionism Both had been
involved in discussing the possibility to unionization with
coworkers during that summer, and on 26 August, the
day before the terminations, those discussions culminated
in Brown's actually having succeeded in scheduling a
union meeting Personnel Manager Ellis confirmed that
on 26 August, Kenny White, an employee and a member
of the employee committee, informed Ellis that Brown
was involved in union activity. Ellis insists that this
report was received after the decision of effect the dis-
charges,26 but before Weiler and Brown had been in-
formed thereof.27
In the above light, ample evidence points to a strong
inference that union activity was at least a motive under-
lying these terminations This is supported by the ele-
26 Ellis' concession that on 26 August, prior to effecting the dis-
charges, he learned of Brown's union activity is a factor to be considered
as supporting the General Counsel's initial burden under Wright Line, 251
NLRB 1083 (1980) The parole testimony by Ellis that the decision had
been made earlier, and hence was unaffected by this information, is a
matter of defense and does not detract from the prima facie effects of the
earlier admission On balance, the testimony of Ellis, Delperdang, and
Dan Wells that they had no knowledge of union activity at the time of
the discharge decision, when considered against the totality of the indis-
putable, objective facts on this record, is deemed improbable and untrue
27 Delperdang testified that after the discharge decision, Kenny White
"told us that he thought that one or both of the gentlemen, Glenn or Gib
had been in contact with the union or were going to get in contact with
the union "
ments of union animus, the suspicion that arises from
timing, in relation to the advent of union activity, togeth-
er with the fact that these long-term employees, with
good work records, who had advanced to the most re-
sponsible of the rank-and-file positions in the plant, were
discharged hastily in violation of Respondent's published
employment policies. Under the precedent, such an infer-
ence of discrimination may be overridden only by "an af-
firmative defense in which the employer must demon-
strate by a preponderance of the evidence that the same
action would have taken place even in the absence of
protected conduct " See Roure Bertrand Dupont, Inc.,
271 NLRB 443 (1984).
Here, however, the inference of pretext is enforced,
rather than allayed by the defense. First, there is the
question of timing in relation to the date Respondent's
own assigned ground emerged Thus, the most recent of
the work assignment complaints took place in mid-
August, at least 11 days before the discharge decision
was allegedly made.28 Since Respondent acted entirely
upon Jelkin's initial allegations and neglected to explore
primary sources of corroboration, why the delay? This
and other questions are answered by the admitted facts,
that on 26 August Respondent acquired knowledge of
union activity, and that on 27 August the offenders were
discharged. A causal link between these events is plainly
reconcilable with Respondent's published antiunion
policy, yet Respondent's denial of such a nexus stands ir-
retrievably in conflict with its policy encouraging em-
ployees freely to make complaints This disparate course,
together with the abrupt nature of the action, in the
middle of a payroll period, without consulting immediate
supervisors or investigating the basis for its action, all in-
dicates that the subjective testimony afforded by Re-
spondent's witnesses as to both the timing of the decision
and the reason for the termination, was false, and in fur-
therance of a desperate, shameful design to "nip in the
bud" incipient union activity. Accordingly, it is conclud-
ed that Respondent has not established by credible proof
that Weiler and Brown would have been discharged
even if they had not engaged in union activity Hence it
is concluded that these discharges violated Section
8(a)(3) and (1) of the Act 29
28 Conflicting evidence on the part of Respondent's witnesses contrib-
utes to the probability that the discharges were prompted by a superven-
ing, undisclosed cause Thus, Ellis testified that the discharges were trig-
gered by a conversation he had with Delperdang in connection with tele-
phone messages he allegedly received from Weiler on 22 August Delper-
dang, on the other hand, claims that he "initiated" the action by "con-
tacting" Ellis and Wells after receiving the reports from Jelkin that em-
ployees were upset with the Weiler-Brown complaints Jelkm, who was
subsequently given an audience with Ellis and Dave Wells, testified that
this occurred either "the week before or two weeks before" the dis-
charges This confusion as to the timing of events heightened the proba-
bility of testimony by Weiler that the telephone calls were placed on 13
and 14 August It also suggests that Ellis' contrary testimony was de-
signed to cover the suspicion engendered by Respondent's limited interest
in developing evidence beyond the unconfirmed reports of Jelkin, togeth-
er with its otherwise unexplained delay in effecting the discharges until
the day after union activity was disclosed-l-2 weeks after its assigned
cause for discharge became known
29 An allegation that Respondent violated Sec 8(a)(I) through coer-
cive interrogation of employees was based on testimony by Personnel
Continued
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent independently violated Section
8(a)(1) by statements to the effect that employees had
been discharged because of their participation in activity
protected by the Act, and by coercively interrogating
employees concerning the union activity of others.
4. Respondent violated Section 8(a)(3) and (1) of the
Act by discharging employees Glenn Brown and Gilbert
Weiler on 27 August 1986, either because they engaged
in concerted activity protected by Section 7 of the Act,
or in reprisal for their having engaged in union activity.
5. The unfair labor practices found above are unfair
labor practices having an effect on commerce within the
meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of the Act, it
shall be recommended that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to,effectuate the policies of the Act.
Having concluded that Respondent discriminatorily
discharged Gilbert Weiler and Glenn Brown, it shall be
recommended that they be offered immediate reinstate-
ment to their former, or substantially equivalent, posi-
tions, discharging if necessary any replacement hired
since their terminations, and that they be made whole for
any loss of earnings and any other benefits by reason of
the discrimination against them. Backpay under the terms
of this Order shall be computed on a quarterly basis from
the date of discharge to the date of a bona fide offer of
reinstatement , less net interim earnings , as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in Florida Steel Corp., 231 NLRB 651
(1977).30
The General Counsel's request for a visitatorial clause
is deficient in that it fails to seek relief on the basis of, or
to set forth specific reasons as to why, such a provision
Manager Ellis Thus, Ellis testified that within a week following the dis-
charges , he met with the employee committee Prior thereto , Ellis had
heard that a union meeting had been scheduled Accordingly, he inquired
of members of the committee as to what was known about the union
meeting He was informed that several employees had inquired about the
possibility of consulting a local union attorney, and that committee mem-
bers had set up a meeting to discuss that possibility with those involved
Ellis was told that the employees were concerned about the enforceabil-
ity of agreements between the committee and Respondent, and whether
the committee actually had independent authority to provide representa-
tion Ellis admittedly "suggested" that if they thought they needed legal
counsel that "there were a lot of other alternatives besides going to a
union attorney " He went on to advise the employees that they might
take it up with the Company's owners, who themselves may wish to pro-
vide legal counsel In the total circumstances , including the fact that
Ellis' interrogation was calculated to obtain information concerning union
activity on the part of coworkers, this line of questioning, on the heels of
the unlawful discharges , falls well within the standards for unlawful coer-
cion set forth in Rossmore House, 269 NLRB 1176 (1984) See, e g ,
Fimco, Inc, 282 NLRB 653 (1987)
30 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
is warranted "in the circumstances of this case." See
O. L. Willis, Inc., 278 NLRB 203 (1986), Nathan's Furni-
ture Store, 278 NLRB 268 (1986); and Rebel Coal Co.,
279 NLRB 141 (1986) -
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed31
ORDER
The Respondent, Wells Dairy, Inc., d/b/a Wells Blue
Bunny, Le Mars, Iowa, its officers, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Coercively interrogating employees concerning
union activity
(b) Threatening employees that participation in con-
certed activity protected by the Act may result in disci-
pline, including discharge
(c) Discouraging employees from engaging in activity
on behalf of a union or from engaging in concerted ac-
tivity for mutual aid and protection, by discharging, or
in any other manner discriminating against them with re-
spect to their wages, hours, or other terms and condi-
tions or tenure of employment
(d) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Glenn Brown and Gilbert Weiler immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make them whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
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.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying , all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its ice cream plant in Le Mars, Iowa, copies
of the attached notice marked "Appendix "32 Copies of
the notice, on forms provided by the Regional Director
for Region 18, after being signed by the Respondent's
authorized representative, shall be posted ' by the Re-
a' if no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
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 pur-
poses
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 Nation-
al 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 "
WELLS BLUE BUNNY 835
spondent immediately upon receipt and maintained for 60 ent to ensure that the notices are not altered, defaced, or
consecutive days in conspicuous places including all covered by any other material.
places where notices to employees are customarily (e) Notify the Regional Director in writing within 20
posted . Reasonable steps shall be taken by the Respond - days from the date of this Order what steps the Re-
spondent has taken to comply.