Whitfield Pickle Co.

National Labor Relations Board - Board Decisions

Mar 5, 1965

151 N.L.R.B. 430 (N.L.R.B. 1965)

430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
It is recognized that there could be instances of contracting out which would not'
be in accord with the existing practice and, hence, would be a change in working
conditions. Thus, Respondent concedes arguendo that a substantial departure from
the previous pattern of conduct might effect a change in working conditions. But,.
clearly, that is not the situation before us
General Counsel argues that Respondent's history of contracting out work does.
not constitute a defense and seeks to analogize this course of conduct with a history
of admitted 8(a)(3) violations which would not be a defense to an existing 8(a)(3),
charge. General Counsel's argument is not valid, as it assumes the very question in
issue here, viz, whether Respondent's practices were violative of the Act.12 The
crux of the violation charged is a unilateral change in working conditions. And a
history of contracting out work over a period of years without prior bargaining with
the Union demonstrates that there was no unilateral change in working conditions.
In view of the foregoing, I conclude that the line of cases exemplified by Town &
Country is not controlling here and that it would be inappropriate to extend and apply
the doctrine set forth in those cases to to the instant case. As I have observed above,.
the nub of the case is whether the Respondent effected a change of existing working
conditions. If it did not, it was not under a duty to notify the Union and bargain
with it before engaging in such action. In view of the long history of Respondent's
business practices of contracting out work, its action in the two instances complained'
of did not constitute a unilateral change in working conditions. There was therefore
no duty to notify the Union and bargain with it.13 I shall therefore recommend that
the complaint be dismissed in its entirety.14
RECOMMENDED ORDER
For the reasons above expressed and on the entire record, it is hereby recommended'
that the complaint be dismissed in its entirety.
12 Cf. Peerless Distributing Company , 144 NLRB 1510.
13 This is not to say that the subject of contracting out is not a proper subject for
collective bargaining . Clearly, the Respondent is not relieved of the duty to bargain
with the Union about any proposed changes requested by the Union which would limit
in any way the Respondent 's right to contract out work of the maintenance unit. But
the time for such bargaining is when the parties are negotiating for a contract.
14 Having reached the conclusion that the Respondent did not effect a unilateral change
in the working conditions and, hence , was not under a duty to bargain with the Union,
regarding its action , I find it unnecessary to, and do not , reach the question whether
the Union waived its right to notice and to bargain about each specific contracting-out-
job or whether the Union had consciously bargained away this right.
Whitfield Pickle Company and Retail , Wholesale and Department
Store Union , AFL-CIO . Cases Nos. 15-CA-2449 and 15-CA-
2449-2. March 5, 1965
DECISION AND ORDER
On November 30, 1964, Trial Examiner Leo F. Lightner issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board
151 NLRB No. 49.
WHITFIELD PICKLE COMPANY 43T
has delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Brown and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has considered
the entire record in these cases, including the Trial Examiner's,
Decision, the exceptions, and brief, and hereby adopts the Trial
Examiner's findings, conclusions, and recommendations.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
its Order, the Order recommended by the Trial Examiner and
orders that the Respondent, Whitfield Pickle Company of Mont-
gomery, Alabama, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended
Order, with the following modification:
Modify paragraph 1(e) to read :
"(e) Promulgating, maintaining, or enforcing rules prohibiting
its employees from engaging in solicitation or discussion on com-
pany premises during their nonworking time in connection with
their union or concerted activities or prohibiting the distribution
of literature relating to such activities in nonworking areas during
nonworking time." 2
1 We agree, as the Trial Examiner in effect found , that Respondent violated Sec-
tion 8 (a) (1) by prohibiting union discussion and solicitation during the employees' own
time and by prohibiting employee distribution of union literature in nonworking areas
during nonworking time.
2 The fourth indented paragraph of the notice shall be amended to read
WE WILL NOT promulgate , maintain , or enforce any rule which unlawfully pro-
hibits our employees from engaging in solicitation, discussing union activities, or
distributing literature on behalf of Retail , Wholesale and Department Store Union,
AFL-CIO, or any other labor organization.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Leo F. Lightner in Montgomery,
Alabama, on July 7, 1964, on the complaint of the General Counsel, as amended,
and the answer of Whitfield Pickle Company, herein referred to as Respondent.' The
issues litigated were whether the Respondent violated Sections 8(a)(1), (3 ), and (4),
and 2( 6) and (7) of the Labor-Management Relations Act, 1947, as amended, 61
Stat. 136, herein called the Act. The parties waived oral argument and briefs filed
by the General Counsel and Respondent have been carefully considered. During the
hearing the Trial Examiner reserved rulings on several motions. These motions are
disposed of in accordance with the findings and conclusions herein set forth.
'The charge in Case No. 15-CA-2449 was filed on February 27, 1964 , and amended
on April 28, 1964 The charge in Case No. 15-CA-2449-2 was filed an March 18, 1964.
The complaint was issued on May 11, 1964.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Alabama corporation, maintaining its principal office, and the
manufacturing plant with which we are herein concerned, in Montgomery, Alabama,
where it is engaged in the manufacture, sale, and distribution of pickles and pickle
products. During the 12 months preceding the issuance of the complaint, a repre-
sentative period, Respondent purchased, transferred, and delivered to its Alabama
plant, goods and materials valued in excess of $50,000, which were transported
directly from States in the United States other than the State of Alabama. The com-
plaint alleges, the answer admits, and I find, that Respondent is an employer engaged
in commerce wihin the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Retail, Wholesale and Department Store Union, AFL-CIO, herein called the
Union, is a labor organization within the meaning of Section 2(5) of the Act.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The principal issues raised by the pleadings, as amended, and litigated at the hear-
ing are whether the Respondent: (a) interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act in violation of
Section 8(a)(1) by (1) interrogation or threats, (2) promulgating a rule prohibiting
union discussion, solicitation, or distribution of literature, or (3) advising employees
that Respondent would not sign a collective-bargaining agreement; (b) discrimina-
torily discharged Marguerite Elizabeth Goodwin, on February 20, 1964, in violation
of Section 8(a)(3) and (1) of the Act; or (c) discriminatorily failed and refused to
reinstate Marguerite Elizabeth Goodwin, thereafter, because charges were filed before
the Board, in violation of Section 8(a)(4), (3), and (1) of the Act. Respondent
generally denied the commission of any unfair labor practices.
B. Background and sequence of events
On an unspecified date, late in 1963 or early in 1964, the Union began an organi-
zational campaign at Respondent's plant. On January 20, 1964, John L. Parker,
union representative, forwarded a letter to L. B. Whitfield, Jr., president, advising
the Respondent that the Union was engaging in an organizing campaign at Respond-
ent's plant. The letter listed five employees as representatives: Eula Mae Gray,
Nonnia Bell, Gertrude Wright, Frances Brantley, and Irma Bryant. It is undisputed
that the letter was received by J. G. Aired, secretary-treasurer of Respondent, in the
normal course of business. The principal events herein relate to the period immedi-
ately following January 20 and continuing until approximately 3 weeks after an
election held on March 20, 1964, extending until the time of the hearing relative to
the failure to recall dischargee Goodwin.
It is undisputed that a Board-conducted election was held on March 20, 1964, at
which time the employees voted 85 to 75 in favor of the Union.
C. Supervisory personnel
It is undisputed that: L. B. Whitfield III, assistant vice president; J. C. Herring,
vice president; J. G. Aired, secretary-treasurer; S. A. Ribbik, plant superintendent;
and John E. Brown, a supervisor in the grading department, are, and at all times per-
tinent herein were, supervisors within the meaning of Section 2 (11) of the Act.2
D. Interference, restraint, and coercion
The evidence relative to acts and statements of Respondent's supervisory person-
nel, allegedly conduct in derogation of the provisions of Section 8(a)(1) of the Act,
is summarized under the name of the particular representative specified in the com-
plaint and testimony.
21 find, for reasons explicated infra, that Thomas Butler was not a supervisor during
the period commencing January 20, 1964, and thereafter.
WHITFIELD PICKLE COMPANY 433
1. John E. Brown
Marguerite Elizabeth Goodwin credibly related that she had a conversation with
John Brown. She placed the time of the conversation as the day following the first
union meeting, which she attended.3 Goodwin identified John Brown as her super-
visor in the grading department at the time of the conversation .4 Brown is also one
of a three-member committee who approve or reject employee applications for credit
union loans.
Goodwin related that Brown came to her work station and advised her that he had
been in the packing department and heard rumors about the Union. Brown asked
her if she knew anything about the union meeting that had taken place the prior
afternoon. Goodwin advised Brown that she had attended the meeting and that she
thought it would be a good thing to have a union in the plant. Goodwin related
that she advised Brown that she had had "some words" with Winnie Luster, a pack-
ing department employee, who had countersigned a note to enable Goodwin to
obtain a credit union loan. Goodwin explained to Brown that Luster, whom the
record indicates was antiunion, had advised Goodwin that Goodwin would lose her
job if she had anything to do with the Union. Goodwin inquired of Brown if it was
possible for her to obtain a different cosigner, since Luster was holding a threat over
her. Brown responded that she could obtain another cosigner. Thereafter, Good-
win obtained Nonnia Bell as a substitute cosigner of her note. Nonnia Bell is one
of the five members of the union organizing committee, listed in the Union's letter
of January 20 to Respondent. Goodwin asserted that Brown then advised her that
a union had tried to organize the plant once before, that the employees had gone on
strike, and that the employees that were on strike lost their jobs. Biown advised
Goodwin that he knew that she had to work "and that his advice to me was that if
I wanted my job, wanted to keep my job, to leave the Union alone."
Brown acknowledging that he talked to Goodwin every day while she was working,
asserted that he had no recollection of asking Goodwin about the Union. He
admitted there was a lot of talk going on about the Union and "in the conversation
you have with employees day in and day out, there is a possibility the Union could
have come up. But as far as any threats or anything of that nature, I never made
that." Brown denied ever interrogating Goodwin relative to a union meeting.
Brown admitted having a conversation with Goodwin relative to her obtaining a
different cosigner to replace the one that she had, acknowledging that Nonnia Bell
replaced Winnie Luster. He also acknowledged that Goodwin gave him a reason
for desiring to change the cosigner and admitted that the reason given was that Luster
was against the Union, with the result that there was friction between Goodwin and
Luster. Brown admitted that there had been a prior attempt to organize the plant,
during which some employees went on strike and lost their jobs. Brown asserted
he was not there at the time but beard talk of it, however he denied these facts came
up in his discussion with Goodwin.
To the extent Brown's testimony is in conflict with that of Goodwin, 1 credit
Goodwin.
2. Rule prohibiting union discussion, solicitation, or distribution of literature-
statement of intent not to sign collective-bargaining agreement
Nonnia Bell is one of five members of the Union's organizing committee, being so
designated in the Union's letter of January 20, 1964, to Respondent. Bell related
that a few days before the election (March 20) she had clocked out for lunch, and
was in the combination lunchroom and dressing room at approximately 12 o'clock.
Right after the employees began eating, Bell got up and gave a talk, telling the
employees that she would appreciate it if they would all take part in the election that
was coming up. Bell asserted that she told them that she agreed with L. B. Whit-
field III that she felt that everyone should take part in the election whether they vote
8I do not consider the precise date of the conversation essential to a determination of
the issues raised by the evidence relative to it. However, Goodwin first placed the time
as approximating the middle of January, acknowledging she did not remember the exact
date, and ultimately asserted, by inference, that it was after January 20. Goodwin
related that at the union meeting the employees were shown a copy of the January 20
letter, which had been previously dispatched by the Union to the Company.
* The record reveals that thereafter Brown was replaced as a supervisor in the grading
department by Bill Benson , and Brown was transferred to supervisor in the packing
department.
783-133-66-vol 151-29
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
yes or no because it did concern their work . She related that during her talk Whit-
field came in , sat down , but did not say anything , then left and was sitting outside
the room when she left. Bell related that Whitfield called her over and inquired
whether she knew that she had broken the law. She inquired what kind of a law
she had broken . Whitfield responded private property law, "that I wasn ' t supposedto make any talks about the Union on their property ." She inquired if Whitfieldintended to put her in jail. He responded "No, I'm not going to do anything with
you this time , but let's don ' t have anymore of it."
Two or three weeks after the election , Bell advised Whitfield that she wished to
talk to him during the luncheon break. Bell, accompanied by two employees, Rose
Respess and Eula Mae Gray, clocked out and approached Whitfield, who was sitting
in his car in Respondent 's parking lot. Bell told Whitfield that she wanted to know
if it "still went" that "we" could not talk on his property . Whitfield responded,
"That is the way it had to be ." She then advised Whitfield that it did not make any
sense that they could not talk for the Union while they were around the employees.
Whitfield responded , "I'm just sorry , that's the law " Bell inquired as to what law
he meant. Whitfield responded , "Our lawyer 's law, private property law." Bell
repeated that it did not make sense and was advised to get a lawyer . She then asked
about passing out leafllets . Whitfield responded , "No leaflets , no talk, no nothing."
Thereupon , Respess stated that they had won the election . Whitfield responded,
"Well, you might have won the election but we hadn't signed anything and we don't
intend to sign anything " Whitfield then advised Bell that he would check with his
lawyer again, make certain that he was right , and would talk to her after he had
talked to his lawyer Later the same day , Whitfield advised Bell, "That's the way
it's going to be, no talk ." Bell advised Whitfield that it did not make sense , that if
he was in her place and was for the Union and did not have a chance to talk for
the Union , it would not make any sense . Whitfield responded , "Well, I'm sorry,
that's the way it has to be." Bell then stated , "Well, you act just like we haven't won
the election ." Whitfield responded , "You might have won it but we haven 't signed
anything and we don 't intend to sign anything . I know you feel that way but we
feel different."
Rose Respess corroborated the testimony of Bell relative to the parking lot con-
versation with Whitfield . Respess related that Whitfield had advised them, "No
leaflets, no talks, that 's what my lawyer says." Respess also corroborated Bell's
assertion that Whitfield stated that they had not signed anything and did not intend
to. Eula Mae Gray corroborated the testimony of Bell and Respess that Whitfield
had advised that there were to be "no leaflets , no talk, no nothing," and that Whitfield
had stated that they had not signed anything and did not intend to.
L. B. Whitfield III is assistant vice president of Respondent and a son of the
president . He acknowledged being present , in the courtroom, during the testi-
mony of Bell, Respess , and Gray. He acknowledged that he had advised them
that if they wanted to talk union they should step out the gate "off the company
property and they could talk union as long as they wanted to ." Whitfield acknowl-
edged that he had made no distinction between employees ' work time and free time.
He asserted that it was his view that an employee cannot talk union on company
property , even on their free time . In answer to a leading question , Whitfield asserted
that there had been some fights or near fights between the employees who were for
or against the Union and that it was for this reason that he had asked them not to
talk union on the company property.5 Whitfield acknowledged similarly advising
Bell, after her speech, prior to the election . Whitfield denied having stated that the
Company would not sign a contract with the Union.
To the extent Whitfield 's testimony is at variance with that of Bell, Respess, and
Gray, I credit the latter three.
3. Concluding findings
In making credibility findings herein, I have considered all of the testimony, the
demeanor of the witnesses, the interest of each in the outcome of the litigation, or
lack of such interest, and candor or lack thereof.
5 Whitfield was uncertain whether it was in January 1964 that he was notified of
the union organizing activity He asserted that prior to that time, they had a rule that
there would be no politics discussed between employees on their own time on company
property. This rule was never published Whitfield asserted that there was a fight or
near fight between Winnie Luster and Nonnia Bell before the election, and that he knew
of other threats , specifics unstated It was for these reasons that he adopted the stated
rule
WHITFIELD PICKLE COMPANY 435
I have found, supra, that in January 1964 Brown interrogated Goodwin relative
to her knowledge and participation in union activities. I find it improbable that
Goodwin would have discussed with Brown the reason she sought to replace Luster
as a cosigner, admittedly because of Luster's antipathy toward the union activities
of Goodwin, yet Goodwin's union activity would not have been discussed
The Board and courts have held in numerous cases that interrogation is not pei se
violative of Section 8(a)(1) of the Act, but must be considered in context. The
Board has stated that the test is whether, under all the circumstances, the interroga-
tion reasonably tends to restrain or interfere with the employees in he exercise of
rights guaranteed them by the Act. Blue Flash Express, Inc., 109 NLRB 591, 593.
It is patent that Goodwm was not given the assurances of freedom from possible
reprisals, in fact quite the opposite was stated.
Respondent urges that the interrogation by Brown was an "innocuous inquiry." &
Respondent further urges that the interrogation was an isolated incident having no,
legal significance. I find these contentions without merit. The court in the Hill
case, cited by Respondent, noted that at the time of Respondent's interrogation, the
employees who were questioned had not received any indication of Respondent's
antiunion feelings. In the instant case, I have found that Brown advised Goodwin
that he knew that she had to work, to support five children, and that his advice to,
her was if she wanted to keep her job, to leave the Union alone. It is thus evident
the interrogation was coupled with a threat of economic retaliation if Goodwin per-
sisted in activities protected under Section 7 of the Act.
Accordingly, for the reasons indicated, I find that the interrogation by Brown,
and the threat enunciated by him, are each violative of Section 8 (a) (1) of the Act.
It appears undisputed that several days before the election, which was held on
March 20, 1964, and again some 2 or 3 weeks thereafter, L. B. Whitfield III advised
Bell and others on the latter occasion, that she could not discuss the Union with
other employees on Respondent's property on the employees' free time. On the
latter occasion, he expanded the rule to encompass any distribution of union litera-
ture on company property.
General Counsel urges that the promulgation of a rule which limits employees'
discussion of union matters beyond working time is presumptively invalid. In Wal-
ton s the Board said no-solicitation or no-distribution rules which prohibit the Union's
solicitation or distribution of union literature on company property by employees
during their nonwork time, are presumptively an unreasonable impediment to self-
organization, and are therefore presumptively invalid both as to their promulgation
and enforcement, however such rules may be validated by evidence that special cir-
cumstances make the rule necessary in order to maintain production or discipline.
The Respondent does not dispute either the facts, set forth supra, or the law
applicable, but asserts that there is no proof the Company had a rule prohibiting
union solicitation. Respondent urges that Whitfield was not talking about a com-
pany rule but general law. Respondent urges that even though Whitfield's opinion
as to the law may have been erroneous, it was merely an expression of individual
personal opinion. In contrast Respondent would, at least inferentially, justify the
adoption of such rule by its assertion "there is evidence that there had been near
fights and that one employee had been followed home." I find no merit in Respond-
ent's contentions that Whitfield did not announce a rule or company policy relative
to union discussion, solicitation and distribution of literature, or, alternatively, that
the evidence reflects justification for the adoption of such a rule.
Accordingly, I find the prohibition against employees discussing union activities,
soliciting union memberships, or distributing union Iterature on company property,
during employees' free time, was violative of Section 8(a)( I) of the Act.
I have found, supra, that Whitfield had advised Bell. Respess, and Gray, that while
the Union had won the election, Respondent had not signed anything and did not
intend to sign anything. Respondent urges that the record does not reflect that
Whitfield had "any responsibility or right to speak for the Company with reference
to its bargaining with the Union." Respondent asserts that this was the responsibility
of Alred, secretary-treasurer and counsel. Respondent urges that Whitfield was
expressing his own views and did not represent the position of the Company, and
6 Citing N L R.B. v. Hill t Hill Truck Limes, Inc., 266 F. 2d 883 (C A 5).
7 Walton Manufacturing Company, 126 NLRB 697, enfd 289 F. 2d 177 (C A. 5), citing
Republic Aviation Corporation Y. N.L.R.B., 324 U.S. 793; N.L.R.B. v. The Babcock &
Wilcox Company, 351 U S. 105; N.L.R.B. v. United Steelworkers of America, CIO, Peti-
tioner ( Nutone Inc., Intervenor), 357 U.S. 357 . See also N .L.R.B. v. Hill ct Hill Truck
Lines, Inc., supra.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that there are no charges of refusal to bargain in the complaint. In its brief, Respond-
ent urges that a contract was, in fact, signed after the record herein was closed.
I find no merit in Respondent's contentions. It is a fact of industrial life that an
employee accepts a pronouncement of a vice president of company policy.
The Board has held in numerous cases that a statement that a Respondent had no
intention of entering into or signing a collective-bargaining agreement carries an
inference that Respondent would seek to avoid its obligation to bargain in good faith,
and such a statement is violative of Section 8 (a) (1) of the Acts I find accordingly.
E. The discharge of Goodwin
Goodwin has been employed by Respondent on two different occasions. She was
first hired during the peak season, when extra employees were hired, in 1958, by
Ribbik, plant superintendent. During this period she was a temporary employee for
a period of 4 months, working 3 weeks in the grading department and the balance
in the packing department.
Goodwin was reemployed in 1961 as a grader and was thereafter regularly employed
until her discharge in February 1964. She described her duties as grading the size
of the pickles and sorting them by sizes, including rejecting those which were bad.
During the summer months, peak season, she was usually transferred to the packing
department. She explained that during the summer the graders worked mostly on
green cucumbers, as distinguished from cured cucumbers. Goodwin's assertion that
she was never reprimanded or criticized relative to her work by any supervisor is
undisputed. She related that she had been complimented. Goodwin's last job was
"tailing the belt." She explained that the person at the tail of the belt is responsible
for all pickles going off the end of the belt, if they go to the packing department and
they are graded wrong it causes the packers to stop their work and do the grading
over. Goodwin had been working at tailing, off and on, for more than a year. When
a new grading room was established several weeks before Goodwin's discharge, her
supervisor, Fanny Sexton, requested that Goodwin replace another employee in the
new grading room. It was Vice President Herring, who is also over the graders, who
effected this transfer, about 3 weeks before the discharge. It was Goodwin's undis-
puted testimony that in the fall of 1963 she had a misunderstanding with Fanny
Sexton. At that time she requested her supervisor, John Brown, to transfer her to
the packing department or lay her off. Goodwin related that Brown advised her that
he would not lay her off because she knew her job, that she was a good worker, and
he could not replace her. Brown also advised her that it cost the Company money
to train graders and when they were trained for the job there was no sense in sending
them to the packing room when they were needed so badly in the grading depart-
ment. Goodwin also related that in January 1964, a photographer came to the plant
to take pictures for the Credit Union magazine. Goodwin asserted that Ribbik does
not like employees to leave their work stations. When Brown advised Goodwin that
Ribbik wanted her to talk with the photographer, she thought Brown was joking.
Brown returned the second time to assure her he was not kidding, that Ribbik wanted
her to talk to the photographer. After the photographer left, Brown advised her that
she had been selected because Ribbik told the photographer that she was a typical
grader 9
Goodwin credibly related that when she was first employed she was advised to call
either John Brown or Fanny Sexton, her supervisors, relative to absences by reason
of illness, and to be certain to call them before 6 a m. She was never advised that
she should call Superintendent Ribbik or Vice President Herring
Goodwin asserted that while she was working Thursday, February 13, she was
taken ill and so advised Sexton, although, inferentially, she remained at work. The
following day, Friday, February 14, she reported for work but was ill and had to
leave the belt several times to go to the restroom. On Monday, February 17, she
did not report for work but attempted to call Fanny Sexton. Ribbik answered the
telephone, inquired who was calling, and asked Goodwin what her trouble was.
Being advised that she was ill, Ribbik inquired as to whether she had been to a doc-
tor. Goodwin advised Ribbik that she had not been able to go to a doctor. Ribbik
then advised her the best thing she could do was to go to a doctor and bring a doctor's
gReeves Broadcasting cf Development Corporation (WHTN-TV), 140 NLRB 466; The
Little Rock Downtowner, Inc., 143 NLRB 887.
While Brown and Ribbik were called as witnesses , they did not dispute these asser-
tions of Goodwin.
WHITFIELD PICKLE COMPANY 437
certificate saying that she had been ill, and specifying the nature of the trouble,
before she reported back to work. She advised Ribbik that she would go to a doctor
as soon as she was able to.
Goodwin went to see Dr. Thorstad on Wednesday, February 19. Goodwin related
that the doctor was unable to examine her at that time because of her condition to
and advised her that it would be necessary for her to go into a hospital for tests.
The same afternoon, Wednesday, February 19, Goodwin called Sexton, advised her
that she had been to the doctor, obtained the doctor's certificate, as Ribbik had
requested, but the doctor advised her to stay off from work for the rest of the week
and thought that she would have to go into a hospital later. Goodwin related that
Sexton responded that she would tell Ribbik and Herring and that she was certain
it would be all right.11
On Friday afternoon, February 21, Goodwin received an undated letter, written
the preceding day, from Respondent, signed by J. C. Herring, vice president. The
letter stated.
Your records show that you have entirely too much absenteeism. You were
absent from August 14, 1963 until September 5, 1963 which makes a total of
22 days. During the month of December 1963 you were absent two and one-
half days, and you have been absent four days this week.
On March 19, 1962, and February 26, 1963 you had garnishments from Auto
Lec Stores, Inc. All this indicates that you are unreliable and unable to take
care of your personal affairs.
Since repeated warning of both of these offenses, we are forced to replace you
on our payroll.
Upon receipt of the letter, Goodwin called Herring and inquired why he had sent
the letter after Ribbik had told her to go to a doctor and get a doctor's certificate
before she reported back to work, and that it would be all right for her to report for
work when she got the certificate. She also advised Herring that she had called
Sexton and that Sexton had assured her that everything would be all right. Goodwin
asserted that Herring advised her he had sent the letter because she had called every-
one except him. Goodwin responded that she had never found it necessary to call
him, that she had never been told to call him, and that she thought it was sufficient
when she called Ribbik and Sexton. She advised Herring of the nature of the doc-
tor's advice to hei. She asserted that Herring advised her to let the doctor get her
straightened out and after she was all right he would try to put her back to work.
In the same conversation, Goodwin advised Herring that if he could not let her work,
she would have to go down and apply for unemployment compensation because she
needed the job, or some income, as she was a widow and the sole support of her
family. Herring advised her that she could not apply for unemployment compensa-
tion because it would make their rates go up too high. Goodwin responded that she
was sorry about his rates but had to look after her family. Herring then advised her
that he would protest her drawing unemployment compensation.12
Goodwin related that on Saturday, February 22, she was unable to obtain an
answer when she called the plant, and called Whitfield, Junior, president, at his
home. She explained to him that she was trying to reach someone who would help
her about her lob because she had been laid off. Whitfield, Junior, advised her to
call Frank Whitfield, another son, at the plant, asserting that he would be able to
help her Pursuant to a subsequent telephone call to Frank Whitfield, Goodwin
went to the plant on Monday, February 24.13 Goodwin related that on Monday,
she turned the letter over to Whitfield, who advised her that his father had turned the
matter over to him to straighten out. Goodwin inquired if she should go to work
and was advised to go to the dressing room and wait until Whitfield had talked to
19 The fact that Goodwin was Ill and under Dr. Thorstad's care , and was seen by him
on February 19, is indicated by a statement signed by him I so find.
11 Sexton did not appear as a witness.
12 Subsequently, Goodwin did file for unemployment compensation and obtained it over
the Company's protest
181 do not credit Frank Whitfield's assertion that Goodwin advised him , in the tele-
phone conversation, that she did not know why she was laid off, to the extent such
statement implies that Goodwin represented that the letter did not state a specific reason.
Neither do I credit Frank Whitfield's assertion that Goodwin brought the letter to him
on Saturday , as distinguished from Monday Nor do I credit Frank Whitfied's asser-
tion that he did not know if Goodwin was at the plant when he turned the letter over
to Ribbik, admittedly on Monday
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ribbik and Herring. Subsequently, about 10 a in., she talked to Ribbik, who advised
her that he did not understand why she was there, that the letter should have been
enough. When she inquired if she could go to work, she was advised that she had
already been replaced, that when they needed 20 graders, they needed 20 not 19 or
21. She then requested the return of the doctor's certificate and Respondent's letter,
which she had given to Whitfield. She inquired of Ribbik whether after she went to
the hospital they would let her return to work and he responded in the negative. She
then left and went to the unemployment office.
Goodwin explained her absence of 22 days between August 14 and September 5,
1963 She credibly related that while she had been a grader, the grading department
was closed down for 2 weeks. She had been in the packing room most of the sum-
mer, but had gone back to the grading department before it was closed down. She
needed work and asked for the extra 2 weeks' work and asked to be allowed to go
into the packing room, which she did. She related that she had had arthritis, since
1940, in her shoulder and back. In packing she had to lift jars onto a table. They
were working, 10, 12, and 15 hours a day, 6 days a week, and her arthritic condition
was aggravated. Goodwin asserted she gave out and went to Dr. Burns. Goodwin
explained her absence of 21/2 days in December 1963, asserting that there was not
enough heat in the plant, the employees had to stand in boxes and water to grade,
the doors were open and it was extremely cold and she caught influenza, which
caused her absence. Her illness in February 1964 was due to a feminine disorder.
Goodwin acknowledged that two garnishments were issued, one in 1962 and one
in 1963, however, both garnishments were adjusted prior to the end of the payroll
period in which they were issued. Vice President Herring inferentially acknowledged
that the garnishments had been adjusted before the end of the day period. It was
his testimony that it is Respondent's policy to discharge employees if their wages are
garnisheed, unless the garnishment is lifted before payday. Secretary-Treasurer
Alred acknowledged Respondent's files contained a release in the 1962 garnishment,
dated prior to the specified payment date. It is also undisputed that these garnish-
ments occurred in March of 1962 and February 1963, long before the discharge in
February 1964.
Goodwin credibly asserted that she was not given repeated warnings about absen-
teeism, as Respondent's letter asserts. In fact, to the contrary, she stated that when
she was on the verge of a nervous breakdown, in May or June 1962, she was off
from work and under a doctor's care for about 4 weeks. At that time she had a
conversation with Ribbik, who advised her that he could hold her job for her indefi-
nitely, all she would have to do is let him know that she was coming back. She
quoted Ribbik as asserting that he knew that she had family problems and had to get
them straightened out. She stated that Ribbik had asserted that he hoped she would
get her problems straightened out because he liked the employees to work every day
they could. Goodwin acknowledged that in December 1963, when she had influenza,
Ribbik had pulled her card. When she returned to work, Ribbik inquired how she
felt: She responded she did not feel good but wanted to work, if she could. Ribbik
responded that from looking at her he did not think she would be able to work and
looked as though she needed to stay off a few days longer. She then went to work.
Goodwin denied that Herring ever said anything to her about her work or her
absenteeism, or ever gave her any warning.
Vice President Herring acknowledged that he had been at Respondent's Dallas,
Texas, plant continuously for a period of 6 months prior to December 13, 1963. He
returned on that date and thereafter was in the grading department in the Mont-
gomery plant. Commencing the middle or end of January 1964, two grading rooms
were established in the Montgomery plant. Herring related that Goodwin was
absent "every week or 2 or 3, she was off a day or 2 or 3 days, sometimes more."
He asserted that he warned Goodwin several times. He could not identify the period
of time in which the warnings were given, asserting "it was just off and on." Herring
was asked if the Company's letter of discharge correctly reflected Goodwin's absen-
teeism over the period of time covered by the letter. He first responded "that was
the majority of it," then stated that it correctly reflected the company records from
August 1963 forward. He was then shown a recapitulation, from company records,
of Goodwin's absences, and asserted, "I don't know anything about it." 14 Herring
was asked if absenteeism had created a problem for Respondent, and responded,
"Not too much." Herring, however, asserted the reason for Goodwin's discharge
was "because she didn't work regular." He related that he had a conversation with
14 However, Alred related that Respondent's records reflect three-fourths of-a day
absence on November 18, and one-half day on December 10
WHITFIELD PICKLE COMPANY 439
Superintendent Ribbik before writing the discharge letter, but denied knowing that
Goodwin had called in and reported her illness, acknowledging that he later found
this out.
Ribbik, at variance with Herring, asserted that his conversation with Herring was
relative to Goodwin's continued and chronic absenteeism "which of course affected
the production in that particular department due to her absenteeism." Ribbik
asserted that he had cautioned Goodwin about three times "about returning to work
more regularly than she had been." Ribbik first asserted that these warnings were
"prior to 6 months from the time she was dismissed," then modified the statement
to assert it was within the 6 months preceding the discharge. Ribbik then placed
the times of these warnings as the time when Goodwin returned after the illnesses
in September and December 1963. Ribbik acknowledged these absences were due
to illness. Ribbik acknowledged that when an employee was absent by reason of
illness they were required to produce a doctor's certificate certifying the fact that
they were unable to return to work. Ribbik then asserted that if a person was
absent for 5 days and brought in a doctor's certificate they were issued a warning
if it was a chronic situation. Ribbik could not recall giving any written warnings
to Goodwin about absenteeism.
Herring, asserting he did not know of Goodwin's illness when he wrote the dis-
charge letter, acknowledged that generally employees who are ill so notify the super-
visors in the grading department, Brown or Sexton. Herring acknowledged this was
the first and only letter of discharge that he had written.
Herring explained that Respondent had adopted a policy of putting in writing
notification that an employee was laid off. Superintendent Ribbik and Secretary-
Treasurer Aired related that they had attended a course given by the Alabama
Unemployment Compensation officials to explain how Respondent's management
could help itself financially with respect to unemployment compensation. These
meetings covered 2 days in 1962. It was suggested that the Company could save
money "by issuing warnings and reprimands in writing to the individual employees,
thus having documentary proof to present in case of a disagreement between an
unemployed employee and the employer." Clearly the written reprimands were
intended to furnish a basis for a claim that a discharge was for cause. Ribbik
acknowledged no written warnings had been given to Goodwin. Aired admitted
that chronic or excessive absenteeism is not a disqualifying factor in an application
for unemployment benefits. He related that the reason the letters were sent out was
that if Respondent could establish that the employee quit, this would be a disquali-
fying reason. Aired acknowledged that a person who is chronically ill and dis-
charged for that reason is not disqualified. Goodwin was not so disqualified.
Herring and Ribbik denied that they knew that Goodwin was a member of the
Union at the time Respondent's letter of discharge to Goodwin was written, Febru-
ary 20. I do not credit these denials. It is patent that Respondent knew of Good-
win's union activity approximately a month earlier. To the extent the testimony of
Goodwin is at variance with that of Herring and Ribbik, I credit Goodwin.
1. Refusal to rehire Goodwin
It is undisputed that Respondent failed and refused to rehire Goodwin. The rea-
son for the refusal is in dispute and is next considered.
Aired asserted that Respondent's normal complement approximates 250 employ-
ees, 30 in storage, 40 in grading, 50 to 60 in packing, the remainder in maintenance,
supply, and shipping. During the peak season, described by him as May 20 to July 20,
they hire an additional 50 to 75 temporary employees. However, in 1964 an
extra 100 to 150 were employed for what is called the green pack. Aired acknowl-
edged that the temporary employees do not come from any particular type and are
not necessarily people who had worked during prior seasons. Aired acknowledged
that if a person has some experience, and was satisfactory in other respects, Respond-
ent would prefer such a person to a completely inexperienced person.
I have found, supra, that Herring, on February 21, advised Goodwin to let the
doctor get her straightened out and after she was all right he would try to put her
back to work. Goodwin related that while she was in the hospital, in the latter part
of February or early March 1964, her supervisor, Fanny Sexton, visited her and
advised her that she (Sexton) had asked Herring to bring Goodwin to work because
she needed her. Sexton advised Goodwin that she had made the same representa-
tions to Frank Whitfield.15
151 have found , supra, that it was Sexton who had Goodwin transferred to "tail the
belt" in the new grading room in January 1964.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Goodwin was in the hospital approximately 10 days. Meanwhile, the charges herein
had been filed on February 27, 1964, by the Union. After she was discharged from
the hospital, inferentially on Monday, March 9, 1964, Dr. Thorstad called Whitfield,
Junior about Goodwin returning to work. Later that day Goodwin was advised, by
Dr. Thorstad, that Whitfield had said that Goodwin should call Aired. Goodwin
called Alred and was advised that Whitfield had discussed her retiring with him and
that she should call again the following day. During the subsequent teephone con-
versation with Aired, Goodwin was advised that he was sorry but there was nothing
he could do for her at that time, that something had come up since she had left the
plant, and that he could not tell her what things he referred to. When Goodwin
inquired, "Does the union have anything to do with it?" Aired responded, "Yes
they do, those things do have a way of making things unpleasant you know, and I
am sorry. There is nothing I can do for you at this time."
Aired, who denied that Goodwin was discharged for union activity, asserted that
no one in executive capacity or in a supervisory capacity knew that Goodwin was a
member of the Union at the time of her discharge. I have found to the contrary,
supra, relative to the interrogation of Goodwin, by Brown in January.
Aired acknowledged that it was after he had received notice that Respondent was
charged with an unfair labor practice because of the discharge of Goodwin, that he
had a conversation with Goodwin relative to her reemployment. He acknowledged
having advised Goodwin that he could not take her back and the Union had some-
thing to do with it. He explained his meaning as follows: "After having received
this notice from the Government that we were being charged with unfair labor prac-
tices because we had discharged Elizabeth when in fact we had no knowledge that
Elizabeth had anything whatsoever to do with the Union, then after consulting with
other officials of the Company we decided that under those circumstances we did
not think it right to take her back."
Aired identified a pretrial statement he had made to a Board agent on April 10,
1964. He acknowledged stating in the pretrial statement that when he advised
Goodwin that the Union had something to do with her not being able to come back
to work, "whan I had in mind was the fact that Mrs. Goodwin had filed an unfair
labor practice charge against the Company in conneticon with her discharge."
Goodwin related that she was receiving benefit checks, through Respondent.16
Goodwin related that Aired, who was also an officer in the Credit Union, withheld
the checks because she was indebted to the Credit Union, and was supposed to make
payments of $10 31 a month on that indebtedness. She inquired of Aired why it
was, if he knew she owed the Credit Union, that he did not give her her job back so
she could pay that and other bills. Aired responded that he could not do anything
for her at that time.
Aired acknowledged that other employees were being hired by Respondent in
March 1964.
2. Respondent's defenses
Respondent urges that the real underlying reason for the discharge of Goodwin
was excessive absenteeism. In support of this contention Aired, secretary and treas-
urer, and Ribbik, plant superintendent, testified that they had attended a course con-
ducted by the Alabama Unemployment Compensation officials in 1962. The pur-
pose of the conference was to teach industrial employers how to reduce their unem-
ployment compensation expense. One of the major suggestions made was that
employers sending warning notices to employees with excessive absenses and follow
this with a written letter of discharge where justified. Respondent introduced 10
letters in support of its contention that it had followed this practice. General Coun-
sel urges that an examination of these letters reflect the disparity in Respondent's
treatment of Goodwin.
These 10 letters, all written by Superintendent Ribbik, recite either that the
employee had been replaced or must report by a stated date, on penalty of being
replaced upon failure. In most instances, Ribbik was unable to recite background
asserting that no personnel records were kept. Except for one letter in October
ie Aired related that Respondent carried a group insurance policy with Metropolitan
Life Insurance Company on which the Company paid two-thirds and the employees
one-third. When an employee was ill they were reimbursed for hospital bills and surgi-
cal benefits and received compensation at the rate of $25 a week.
WHITFIELD PICKLE COMPANY 441
1962, and one in December 1963, these letters were all within the period from April 2
to September 20, 1963. Eliminating those letters which do not contain the detail of
alleged absenteeism , the detail contained in the remainder is set forth seriatim:
A letter dated April 2, 1963, advised employee Rowe that she had not reported
since March 6, 1963, that if she did not report by Monday , April 8, she would
be replaced.
A letter dated May 7, 1963, advised employee Parker that she had not reported
since March 1963 and unless she reported by May 20, 1963 , she would be
replaced.
A letter dated May 8, 1963 , advised employee Watson that she had not
reported since January 21 , 1963, that Respondent assumed she was physically
unable to hold a steady job, that she could return to work on or before May 20,
but would be replaced if she did not report by that date.
A letter dated May 8, 1963, advised employee Wolfe that she had not reported
since April 19 and would be replaced if she did not report on or before May 20.
A letter dated September 10, 1963, advised employee Randall that the
employee had failed to report on September 9th and 10th and that unless the
employee reported for work by Thursday , September 12, Respondent would
assume that the employee had quit and was no longer interested in the job.
A letter dated September 20, 1963, advised employee Forrester that since
starting on May 20, 1963, the employee had been repeatedly absent and was
being replaced.
It is thus evident that, except in the case of Randall , each employee had been
absent substantially more than the 4 days of absence in Goodwin 's case. Herring's
letter was written on the fourth day. Herring 's assertion that Ribbik had not writ-
ten letters to graders , employees under Herring ' s supervision , is erroneous . Ribbik
identified Watson and Parker as graders.
In the light of Ribbik 's inability to relate the history of the employment or reasons
for absenteeism of these employees , and Aired's admission that absenteeism is not a
disqualifying factor for unemployment benefits, I find no merit in this contention.
Respondent advanced as an alternative reason for the discharge of Goodwin her
chronic illness. Aired asserted the Company pays two-thirds and the employees one-
third of the cost of the group insurance policy was Metropolitan Life. Respondent
asserts that the annual premium is about $38,000 and that in 1962 there was a return
dividend with $2,900 .44, while in 1963 the return dividend amounted to only $86.
Respondent asserts that this was an economic consideration in effecting Goodwin's
discharge . I have set forth above Vice President Herring's assertion that he was
unaware of Goodwin's illness at the time he sent the letter of discharge . It follows
that the assertion of the cost of insurance , as a reason for the discharge , is an after-
thought and was not in the mind of Herring at the time he wrote the letter. I find no
merit in this asserted defense.
3. Concluding findings
The sole questions to be resolved are whether the discharge of Goodwin and
Respondent 's later refusal to rehire her were discriminatorily motivated.
I have found , supra, that on an unspecified date, shortly after January 20, 1964,
Goodwin's supervisor , John E. Brown , interrogated Goodwin relative to her attend-
ance at a union meeting the preceeding day. I have further found that at that time
Brown advised her that if she wanted to keep her job, his advice to her was "to
leave the Union alone." In the light of the evidence supporting these findings,
Respondent 's assertions that it did not know of Goodwin's union activities when the
discharge letter was issued, February 20, 1964, I find incredible.17
I find no merit in Respondent 's contention that since Goodwin was not an officer
of the Union , or one of the five named to the union committee , in the Union 's letter
of January 20, 1964, Respondent had no reason to engage in discriminatory conduct
toward her.
17 While Goodwin testified that she solicited and obtained four union authorization
cards, there is no evidence that Respondent had knowledge of this activity. While
Goodwin asserted that she solicited Tom Butler, among others , the evidence is that
Butler, at that time, was no longer a supervisor in the packing department Accord-
ingly, Respondent's motion to strike that evidence is granted.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's union animus is amply demonstrated in the conduct of Whitfield in
advising Bell that she could not talk about the Union, on employees' free time, on
Respondent's property. This event occurred less than 1 month after the discharge
of Goodwin Respondent's animus is further demonstrated by Whitfield's further
conversation with Bell, and others, in which he advised that they could neither dis-
cuss the Union, solicit, or distribute literature, and that while they had won the
election, Respondent had no intention of entering into a collective- bargaining agree-
ment. These actions I have found to violative of Section 8(a)(1) of the Act.
A further demonstration of Respondent' s animus is revealed in Alred's admission
that he advised Goodwin that she would not be rehired because she had filed a
charge against Respondent. Alred's language is both illuminating and conclusive. It
was- "after having received this notice from the Government that we were being
charged with unfair labor practices because we had discharged Elizabeth when in
fact we had no knowledge that Elizabeth had anything whatsoever to do with the
Union, then after consulting with other officials of the Company we decided that
tinder those circumstances we did not think it right to take her back." Section
8(a)(4) of the Act provides: "to discharge or otherwise discriminate against an
employee because he has filed charges or given testimony under this Act," is an
unfair labor practice.
I find that the refusal of the Respondent to rehire, or reinstate, Goodwin was
violative of Section 8(a)(4), (3), and (1) of the Act. Tennessee Packers, Inc.,
Frosty Morn Division, 146 NLRB 165.
Next considered are the circumstances surrounding the discharge. It was Ribbik
whom Goodwin called to advise that she was ill, in her effort to reach Sexton for the
same purpose. Ribbik at that time advised and cautioned her to obtain a doctor's
certificate to verify her condition before she returned to work. There is no claim
that she was either warned or advised of the possibility of a discharge during that
conversation. Ribbik and Herring both asserted that they had a conference before
Herring's letter of discharge was written. Yet Herring denies knowledge that the
reason for Goodwin's absence was illness. I find this assertion implausible.
The Respondent makes no challenge of the quality of Goodwin's work. Nor does
Respondent dispute the fact that a grader assigned to "tail the belt" is given the final
responsibility for correct classification. It is undisputed that this was Goodwin's
assignment. Respondent asserts that it was seeking to remove employees guilty of
excessive absenteeism in order to reduce its liability for unemployment compensa-
tion . However, Respondent, through Aired, acknowledged that this was not an
adequate defense to such a claim unless it could be demonstrated that the employee
voluntarily quit. Obviously, such circumstances are not germane where demon-
strated illness was the cause of the absence, as in the case of Goodwin.
Respondent asserted that "absenteeism" was the reason for Goodwin's discharge.
Yet Herring, in contradiction of Ribbik, asserted that absenteeism had not created
"too much" of a problem for Respondent.
General Counsel, in support of his contention of disparity of treatment, refers to
the records of the employment of La Rue Bazzell, also a grader. Alred acknowl-
edged Bazzell was absent 11/z years, between January 1953 and January 1960, and
6 months from September 11, 1963, to March 12, 1964. Bazzell was reinstated on
the latter date. It was relative to this latter period that Ribbik asserted that when
he needed 20 graders he meant 20, not 19 or 21. Goodwin's illness was of substan-
tially less duration than that of Bazzell. Bazzell was not discharged for a more
lengthy absenteeism.
Respondent's effort to assert justification for Goodwin's discharge by reliance upon
the inconsequential and irrelevant is further demonstrated in Herring's letter. He
assigns as a reason for the discharge two garnishments It is undisputed that if a
garnishment is released prior to payday no action is taken against the employee,
otherwise the employee is summarily discharged. The letter recites these garnish-
ments were in March 1962 and February 1963, long before the discharge in February
1964. It is undisputed that both were released prior to the particular payday
involved.
Finally, I find that the discharge was precipitate and without warning. I have
found that the only discussion Ribbik had with Goodwin about her absences was
during her illness in June 1962, at which time Ribbik advised her that he would hold
her job for whatever time was necessary as long as she kept him advised of her con-
dition It is obvious that at that time Ribbik asserted that he hoped that her prob-
lems would be resolved so that she could be more regular in her attendance. This
was far from a warning of drastic action if the absences were continued. It was also
nearly 2 years prior to the events with which we are concerned herein.
WHITFIELD PICKLE COMPANY 443
The Board has found a discharge discriminatorily motivated by reason of the
unconvincing character of the reasons adduced to support the discharge , including
the timing of the discharge . Pacemaker Corporation , 120 NLRB 987, 991 ; United
Fireworks Mfg. Co., Inc., 118 NLRB 883, 885.
If employees are discharged partly because of their participation in a campaign to
establish a union and partly because of some neglect or delinquency , there is none-
theless a violation of the Act . N.L.R.B . v. Jamestown Sterling Corp ., 211 F. 2d 725
(C.A. 2). Similarly , the courts have held that the existence of some justifiable
ground for discharge or layoff is no defense if it was not the "moving cause." Wells,
Incorporated v. N.L.R.B., 162 F. 2d 457, 460 (C.A. 9).
In view of the above facts, and upon the entire record as a whole, I believe, and
hold, that Respondent 's purported reasons for discharging Goodwin are but a pre-
text, and that the real reason and "moving cause " was the known union and concerted
activities of said employee, and said discharge constituted discrimination with respect
to her hire and tenure of employment to discourage membership in the Union in
violation of Section ( a) (3) and ( 1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the Respondent 's operations described in section I, above, have a close,
intimate , and substantial relationship to trade, traffic, and commerce among the sev-
eral States , and, such of them as have been found to constitute unfair labor practices,
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent has engaged in, and is engaging in certain unfair
labor practices , it will be recommended that it cease and desist therefrom , and take
certain affirmative action designed to effectuate the policies of the Act.
Respondent having discriminatorily discharged Marguerite Elizabeth Goodwin, on
February 20, 1964, because of her union and concerted activities , and having failed
and refused thereafter to rehire her, I recommend that Respondent offer to her imme-
diate and full reinstatement to her former or substantially equivalent position, with-
out prejudice to her seniority and other rights and privileges , and make her whole
for any loss of pay she may have suffered by reason of Respondent 's discrimination
against her, by payment to her of a sum of money equal to that which she would
normally have earned as wages from the date of said discharge to the date when,
pursuant to the Recommendations herein contained , Respondent shall offer her
reinstatement , less net earnings during said period. Said backpay shall be computed
on a quarterly basis in the manner established by the Board in F. W. Woolworth
Company , 90 NLRB 289. Interest on backpay shall be computed in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716.
It is also recommended that Respondent be ordered to make available to the Board,
upon request, payroll and other records to facilitate checking of the amount of earn-
ings due.
In view of the nature of the unfair labor practices committed , the commission of
similar and other unfair labor practices reasonably may be anticipated . I shall
therefore recommend that the Respondent be ordered to cease and desist from in
any manner infringing upon rights guaranteed to its employees by Section 7 of the
Act.
Upon the foregoing findings of fact and upon the entire record in the case, I make
the following
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Retail, Wholesale and Department Store Union , AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. By engaging in the conduct set forth in the section entitled "Interference,
Restraint , and Coercion ," to the extent herein found , the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 ( a) (1) of the
Act.
4. By discriminating with respect to the hire and tenure of employment of Mar-
guerite Elizabeth Goodwin , by discriminatorily discharging her, as found , supra,
thereby discouraging the free exercise of the rights guaranteed by Section 7 of the Act,
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and discouraging membership in and activities for the above -named labor organiza-
tion, Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( a)(3) and ( 1) of the Act.
5. By failing and refusing to reinstate or reemploy Marguerite Elizabeth Good-
win because she had filed charges, with the Board , against Respondent , as found
herein , thereby discouraging the free exercise of the rights guaranteed by Section 7
of the Act , and discouraging membership in and activities for the above-named
labor organization , Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(4), (3 ), and (1 ) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, and pursuant to Section 10(c) of the Act, I recommend
that Respondent , Whitfield Pickle Company, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
( a) Discouraging membership in, or activities on behalf of , Retail, Wholesale and
Department Store Union , AFL-CIO, or any other labor organization of its employ-
ees, by discharging , and thereafter failing and refusing to reinstate employees, or in
any other manner discriminating against them in regard to their hire and tenure of
employment or condition of employment.
( b) Refusing to reinstate or reemploy an employee , or otherwise discriminating
against an employee, because they have filed charges against Respondent with the
Board.
(c) Interrogating employees in a manner violative of Section 8(a)(1) of the Act.
(d) Threatening economic retaliation if any employee engages in organizational
activities.
(e) Promulgating or enforcing any unlawful no-solicitation , no-union discussion,
or no-distribution rule
(f) Advising employees that Respondent had no intention of entering into, or
signing, a collective -bargaining agreement , in a manner violative of Section 8(a)(1)
of the Act.
(g) In any other manner interfering with, restraining , or coercing its employees in
the exercise of their right to self-organization , to form labor organizations , to join
or assist the above -named Union , or any other labor organization , to bargain collec-
tively through representatives of their own choosing , and to engage in any other
concerted activity for the purpose of collective bargaining or other mutual aid or
protection , or to refrain from any and all such activities.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Offer to Marguerite Elizabeth Goodwin immediate and full reinstatement to
her former or substantially equivalent position, without prejudice to her seniority
or other rights and privileges previously enjoyed, and make her whole for any loss
of pay she may have suffered by reason of Respondent 's discrimination against her,
in accordance with the recommendations set forth in section 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, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due and the right of employment under the terms of this Recom-
mended Order.
(c) Post at its place of businss in Montgomery , Alabama, copies of the attached
notice marked "Appendix." 18 Copies of said notice to be furnished by the Regional
Director for Region 15, shall , after being duly signed by the Respondent , be posted
18In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board ' s Order be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United
States Court of Appeals , Enforcing an Order," will be substituted for the words "a
Decision and Order".
WHITFIELD PICKLE COMPANY 445
by Respondent immediately upon receipt thereof, and be maintained for 60 con-
secutive days thereafter, in conspicuous places, including all places where notices,
to employees are customarily posted. Reasonable steps shall be taken by Respond-
ent to insure that such notices are not altered, defaced, or covered by any other.-
material.
(d) Notify the Regional Director for Region 15, in writing, within 20 days from
the date of the receipt of this Trial Examiner's Order, what steps Respondent has
taken to comply herewith.
It is further recommended that unless, within 20 days from the date of the receipt
of the Trial Examiner's Order, the Respondent shall notify the said Regional Direc-
tor, in writing, that it will comply with the foregoing Recommended Order,I° the
National Labor Relations Board issue an Order requiring Respondent to take the
aforesaid action.
is In the event" that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply therewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in, or activities on behalf of , Retail,
Wholesale and Department Store Union , AFL-CIO, or any other labor organi-
zation of our employees , by discharging , or failing or refusing to reinstate,
employees , or in any other manner discriminating against them in regard to,
their hire or tenure of employment or any term or condition of employment
WE WILL NOT refuse to reinstate or rehire any employee because they have
filed unfair labor practice charges against us, before the National Labor Rela-
tions Board.
WE WILL NOT interrogate or threaten economic retaliation if any employee
engages in organizational activities , in a manner violative of Section 8(a) (1) of
the Act.
WE WILL NOT promulgate or enforce any rule which prohibits our employees.
during nonworking time, from engaging in solicitation , discussing union activi-
ties, or distributing literature on behalf of Retail, Wholesale and Department
Store Union , AFL-CIO, or any other labor organization.
WE WILL NOT threaten or refuse to bargain in good faith or to sign a collective-
bargaining agreement , when agreement is reached , in a manner violative of
Section 8 (a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization, to join or assist the
aforementioned or any other labor organization, to bargain collectively through
representatives of their own choosing , and to engage in other concerted activi-
ties for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
WE WILL offer to Marguerite Elizabeth Goodwin immediate and full rein-
statement to her former or substantially equivalent position , without prejudice
to her seniority and other rights and privileges , and make her whole for any
loss of pay suffered as the result of the discrimination against her.
All our employees are free to become or remain , or to refrain from becoming or
remaining members of a labor organization of their own choosing.
WHITFIELD PICKLE COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board's Regional Office, T-6024
Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, Telephone
No. 529-2411, Extension 6396, if they have any questions concerning this notice or
compliance with its provisions.
Ron Kvarfordt d/b/a Fred & Sons O. K. Rubber Welders and
Lodge No. 1933 , International Association of Machinists, AFL-
CIO. Case No. 19-CA-2696. March 5, 1965
DECISION AND ORDER
On June 15, 1964, Trial Examiner E. Don Wilson issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices, and recommend-
ing that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Decision. Thereafter, the
Respondent filed exceptions to the Decision with supporting argu-
ments.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board
has delegated its powers in connection with this case to a three-
member panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Decision, the exceptions and supporting arguments, and the entire
record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner except as modified
herein.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts, as
its Order the Order recommended by the Trial Examiner and
orders that Respondent, Ron Kvarfordt d/b/a Fred & Sons O.K.
Rubber Welders, Pocatello, Idaho, his agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's
Recommended Order, with the following modifications :
1. Substitute the following as paragraph 1(a) in the Recom-
mended Order :
"Refusing, upon request, to bargain with Lodge No. 1933, Inter.
national Association of Machinists, AFL-CIO, as the representative
of all of Respondent's employees at his place of business in Pocatello,
Idaho, excluding guards, professional employees, and supervisors
within the meaning of the Act."
151 NLRB No. 51.