Bagley Produce, Inc.

20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bagley Produce, Inc. and Freedom Through Equality, Inc. Case 30-CA-2252 December 28, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On August 22, 1973, Administrative Law Judge Fannie M. Boyls issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Secti,-,n 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order as herein modified.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that Respondent, Bagley Produce, Inc., Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as so modified. 1. Delete from paragraph 1(a) the words "includ- ing union activities." 2. Substitute the attached notice for that of the Administrative Law Judge. I We find it unnecessary to reach the question whether Respondent violated Sec 8(a)(3) of the Act in view of the substantial evidence that Respondent violated Sec 8(a)(1) and the sufficiency of the Remedy Therefore, we have amended the Order and the notice tc conform with the above APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge, refuse to reinstate, or otherwise discriminate against any of our employ- ees because they have engaged in protected concerted activities for their mutual aid and protection. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the National Labor Relations Act. WE WILL offer to each of the employees listed below immediate and full reinstatement to the job she held immediately before February 7, 1973, or, if the job no longer exists, to a substantially equivalent position, without prejudice to her seniority and other rights and privileges, and WE WILL make each whole for any loss of earnings she may have suffered as a result of her discharge, plus 6-percent interest: Lena Roby Marilyn Wesley Ollie McDowell Vergie Dennis Ethel Jones Virgie Jeanes Maria Hall Cora Tatum Barbara Harrison BAGLEY PRODUCE, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Commerce Building, Second Floor, 744 North Fourth Street, Milwaukee, Wisconsin 53202, Telephone 414-224-3861. DECISION STATEMENT OF THE CASE FANNIE M. BOYLS, Administrative Law Judge: This case, initiated by a charge and amended charge filed respectively on March 1 and April 24, 1973, and a complaint issued on April 26, 1973, was tried before me in Milwaukee, Wisconsin, on June 6, 7, and 8, 1973. The complaint alleges and Respondent's answer denies that Respondent had violated Section 8(a)(3) and (1) of the Act by discharging 10 employees because they engaged in protected concerted activities and/or because they engaged in activities on behalf of Teamsters "General" Local No. 200, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. At the conclusion of the hearing counsel for the General Counsel and for Respondent argued orally upon the record. Thereafter Respondent also filed a bnef. Upon the entire record in this case, from my observation of the demeanor of the witnesses, and after a careful consideration of Respondent's bnef, I make the following: 208 NLRB No. 13 BAGLEY PRODUCE, INC. 21 FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent is a Wisconsin corporation engaged at Milwaukee, Wisconsin, in the processing and precooking of poultry. During the calendar year 1972, which is a representative year, Respondent purchased goods valued in excess of $50,000 in interstate commerce, directly from points outside Wisconsin. Upon the basis of these admitted facts, I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters "General" Local No. 200, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Preliminary Statement and Issues The nine employees here involved, who walked out of Respondent's plant on February 7, 1973, following an unsuccessful attempt to get immediate wage increases,' and one other employee, Cora Tatum, who joined the group later were not represented by a labor organization at the time of their walkout but thereafter on the same morning signed cards for Teamsters Local 200. The General Counsel contends that their discharge in the afternoon of the same day was in violation of Section 8(a)(1) of the Act because it interferred with, restrained, and coerced the employees in the exercise of their rights protected under Section 7 of the Act to engage in concerted action for their mutual aid and protection and that the discharges were additionally in violation of Section 8(a)(3) of the Act because they constituted discrimination in employment to discourage membership in the Union. Respondent defends its discharge of the employees by asserting that the employee's action in walking out was individual, not concerted, action, that it was not protected concerted activity and that Respondent properly dis- charged nine of the employees for walking off their jobs and refusing to work that day and the other employee because of excessive absenteeism and her refusal to work on February 7. Respondent also asserts that the complaint should be dismissed because the party filing the charges was not shown to have had any interest in the proceeding or any right to initiate this proceeding. B. The Procedural Issue Following their discharge the employees here involved went to the National Association for the Advancement of Colored People (NAACP) for advice. They were referred by that organization to an attorney, Nelson G. Alston, staff attorney for an organization called Freedom Through Equality, Inc. After interviewing the employees, Alston referred them to one of the attorneys for the National Labor Relations Board and filed a charge and an amended charge in their behalf as staff counsel for Freedom Through Equality, Inc. Respondent's contention, reasserted in its brief, that the Charging Party was not qualified to file a charge was rejected at the commencement of the hearing and the ruling then made is now reaffirmed. Respondent's objec- tion is completely answered by the ruling of the Supreme Court in N. L. R. B. v. Indiana & Michigan Electric Company, 318 U.S. 9, 17-18 (1943), wherein it stated: The Act requires a charge before the Board may issue a complaint, but omits any requirement that the charge be filed by a labor organization or an employee. In the legislative hearings Senator Wagner, sponsor of the Bill, strongly objected to a limitation on the classes of persons who could lodge complaints with the Board. He said it often was not prudent for the workman himself to make a complaint against his employer, and that strangers to the labor contract were therefore permitted to make the charge. The charge is not a proof. It merely sets in motion the machinery of an inquiry. When a Board complaint issues, the question is only the truth of its accusations . The charge does not even serve the purpose of a pleading. C. The Subsidiary Facts Respondent is a family owned corporation run by Andrew Loehndorf, the president, and his two sons, James Loehndorf, the vice president and treasurer, and Richard Loehndorf, the secretary, with the assistance of Donald Ledrowski, the comptroller and office manager, and three supervisors over the cooking , sizing, and cutting rooms, respectively. Richard, usually called Dick or Dickie Loehndorf, is the plant manager and in general control of the day-to-day operations and the hiring of personnel. Respondent's business consists of the precooking and processing of iced chickens which are delivered to it in truckloads. It employs about 65 production, maintenance, and truckdriving employees. About 40 employees are employed in the cutting operations. Cutting is done with knives, with machines, and with saws. Ten women, the employees here involved, worked on the saw cutting line, the most difficult and highest paid operation performed by the women employees. It has been Respondent's policy, according to Plant Manager Loehndorf, to review wages and grant increases after the first of the year-usually between mid-January and the last week in February. A general 4-percent wage increase had been given to all the employees on February 26, 1972. Prior to February 1973 several of the cutters had inquired of Plant Manager Loehndorf about an increase in their pay. In November 1972, one of them, Barbara Harrison, told Loehndorf that she had increased her production from 60 to 80 boxes a day and thought it was time she got a raise. He told her to wait because "at the beginning of the year," everyone would get a raise. Also in I Lena Roby, Ollie McDowell, Ethel Jones, Maria Hall, Barbara (Vigie Jeanes' first name is incorrectly spelled "Vergie" in the complaint ) Harrison, Marilyn Wesley, Vergie Dennis, Vigie Jeanes, and Hilda Cruz 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD November two other cutters, Ollie McDowell and Ethel Jones, asked Loehndorf when they were going to get a raise. He responded that they would get a raise when they cut more boxes of chickens. They returned sometime in January and Jones told Loehndorf that she was cutting more boxes and wanted a raise. He told McDowell and Jones that he had always been fair to them and would give them a raise but did not say when. When by February 6 no raise was forthcoming, several of the cutters during their 2:30 p.m. break period decided to meet after work that day at a tavern next door to the plant for the purpose of making plans to seek raises. Six of them met at the tavern dust after 3:30 p.m., their quitting time, for that purpose.z They decided that they would meet in the plant lunchroom the next morning about 15 minutes before their 7 a.m. starting time and ask Richard Loehndorf for a 15-cent raise in pay and that they would not settle for less than a 10-cent increase. It was also agreed that Barbara Harrison would do the talking for the group. As had been agreed upon, the cutters gathered in the plant lunchroom before 7 a.m. on February 7 for the purpose of making their demand for wage increases. About 7 a.m., Harrison requested the cutting room supervisor, Mike Colon, to notify Richard Loehndorf that they wanted to talk to him. Loehndorf arrived shortly thereafter and asked what their problem was. Harrison responded that the cutters wanted a 15-cent raise in their pay. There is some conflict in the testimony as to exactly what was said thereafter and in what sequence. I doubt that any one witness was fully accurate in relating all the details and some clearly had better memories than others. However, after a careful analysis of all the testimony, and upon a preponderance of the credible evidence, I find that the following is a substantially accurate summary of what then transpired. Loehndorf assured the cutters that they would get a raise within the next few weeks but that he could not give them one without first talking the matter over with his father and brother. He stated also that he was too busy working on a machine to talk to them about a raise at that time and, requested them to punch in and go to work. Harrison expressed the view that since Loehndorf had the authority to hire and fire them and give them days off, he should also have the authority to attempt to give them a raise. She stated that the cutters wanted to know about the raise that day and that they would not work unless they were assured of a raise. Loehndorf told the group that if they did not have enough faith and trust in him to let him talk the matter over with his father and his brother first they could just take the day off. As the cutters started making preparations to leave the plant, Loehndorf called Harrison to his office. She, in turn, requested the other cutters to accompany her and learn "from the horse's mouth" what Loehndorf had to say. Loehndorf told the cutters that he had been lenient and fair with them in the past and he did not understand why they wanted to put him in the position he was in by taking the action they were about to take. He told them that he had been putting in 100 hours a week on the machine he 2 Barbara Harrison, Ollie McDowell, Vergie Dennis, Lena Roby, Ethel Jones, and Maria Hall 3 The tavern served food as well as alcoholic and nonalcoholic was then working on and that he was tired and had not had time to sit down and talk to his father and brother about a raise but that he would do so. Harrison told him that she expected an answer before the day was over. McDowell asked if the cutters could sit in the lunchroom and wait until his father and brother arrived. Loehndorf said "no." He told them that if they were not going to work, or if they did not trust him to be fair with them, they should "just take the day off." Seizing upon the latter statement as a purported direction, the cutters in a gay mood started leaving the plant. Office Manager Ledrowski observed them laughing and joking. He heard Harrison say, "They gave us the day off" and others said, "We've got the day off-let's go." As they were leaving, one of them, Jones, told some of the others, "When I get back in the morning ... I bet you I have a raise." The others responded, "We'll wait and see." All of the saw cutters who left the plant that morning except Hilda Cruz adjourned to the tavern next door. While at the tavern they decided to try to obtain the assistance of a labor organization and made-an appoint- ment to see someone at the office of Teamsters Local 200. Since Harrison was the only cutter who had a car available for transportation and all could not ride in her car, another cutter, Ollie McDowell, telephoned Cora Tatum, a cutter to whom McDowell had loaned her car that day in order to enable Tatum to keep an appointment with her doctor, and requested Tatum to bring the car to the tavern. Tatum did so and accompanied the other cutters to the union office. There they were told that the Union could not help them unless over 50 percent of the employees signed union authorization cards. They then took a stack of cards with them and arrived back at the tavern about 11 a.m. There each of them signed a card. They also obtained signatures on cards from some of the other employees who ate lunch at the tavern during their 11:15 a.m. lunchbreak.3 In addition, one employee identified only as "Willie" took a few cards back to the plant with him in order to get them signed by several of the Puerto Rican women who did not speak English and seldom came to the tavern. He returned some signed cards to Harrison about 11:30 a.m. and she placed them with a stack of other signed cards on the bar. Among those who came to the tavern and sat at the bar at the 11:15 lunchbreak were Mike Colon, supervisor of the cutting room, where the cutters here involved worked, and Don Miller, supervisor of the sizing room. Harrison asked Colon how many employees worked at the plant, but did not explain the reason for her question. He replied that there were about 30 or 35.4 At that time Harrison had about 23 signed union cards in her possession and she told the other cutters that they had enough cards signed. She called the union hall and made an appointment for 2 p.m. She drove some of the cutters home but returned to the tavern in time to talk to any employees who might come to the tavern at the 12:30 lunchbreak. None came at that time. In the meantime, during the morning of February 7, after Andrew Loehndorf and his son James arrived at the plant, beverages Some of the employees had breakfast as well as lunch there 4 This was apparently the approximate number of employees in the cutting department at that time BAGLEY PRODUCE, INC. several meetings were held by them with Richard Loehn- dorf and the office manager, Ledrowski, to discuss the walkout and raises for the employees. It was decided during the morning that raises would be granted to all the employees, including the cutters who had walked out, but the amount of the raises-which it was finally decided would be 10 cents an hour-was not determined until about 12:30 p.m. that day.5 This decision was announced to all the employees later that day. Having learned from Supervisor Colon that the cutters were at the tavern during his luncheon period, Andrew Loehndorf, Respondent's president, about 1 p.m., called the tavern and asked if any of the girls were there. He was told that Barbara Harrison was there and she was then called to the telephone. According to Harrison's credited testimony, corroborated by Richard Loehndorf's initial account when testifying under Rule 43(b) in response to the General Counsel's questions, Andrew Loehndorf told her that he wanted to talk to the girls, but that since she was the only one there he would like to talk with her. He asked if she would come to the plant. She replied that she was waiting for Ollie McDowell, whom she was expecting in 15 minutes or a half hour, and asked if he could wait until McDowell arrived. He said "All right." When McDowell did not arrive within a half hour, Harrison called Andrew Loehndorf back, informed him of this fact, and asked if he could wait a few minutes longer. He replied that if she could not come "right away" she should forget it. She then told him she would bethere in a few minutes.6 Harrison thereupon telephoned McDowell and told the latter what Andrew Loehndorf had said to her. McDowell, having loaned her car to Cora Tatum for an appointment with her doctor, could not come to the tavern and advised Harrison to see Loehndorf alone. Either before or after calling McDowell, Harrison also called employee Dennis about Andrew Loehndorf's request to talk to her. Dennis advised her not to go alone. McDowell had already 5 The above findings in this paragraph are based on the testimony of Richard Loehndorf given in response to questions by the General Counsel when examining him at the commencement of the hearing. Thus, Loehndorf was questioned and answered as follows Q. A Did you discuss it [the raise ] in the mornmg7 Well, we had a few words about the girls getting a raise, yes r t s « s Q What was the figure? A I would say the final figure came about 12:30, around there Q. plant? A Q. A. Q. A. Q. A. t * s s s And, the raise would be effective for all the employees in the Yes. Including the cutters? Yes. Including the cutters who walked out that day? Yes And, the raise would have been how much? Well, we decided to give the plant a 10-cent per hour raise. I do not credit later inconsistent and contradictory testimony given by Richard Loehndorf and by Office Manager Ledrowski. 6 Andrew Loehndorf did not testify. Donald Ledrowski, Respondent's office manager, who says he listened to the conversation over an extension telephone in his office, testified that Andrew Loehndorf told Harrison over the telephone that he wanted her to come back to work-this apparently in support of a theory, which developed as the hearing progressed, that the cutters were fired because they refused to come back to work when called 23 telephoned another cutter, Jones, and asked her to go with Harrison to see Andrew Loehndorf, but Jones had no means of transportation and could not go. Harrison finally went to the plant alone but did not arrive until about 3 p.m. When she walked into the office where Richard and Andrew Loehndorf and Don Ledrowski were waiting, she asked "What did you want?" Richard Loehndorf replied that telegrams were in the process of being sent to all the cutters informing them that they were being dismissed for having walked off their job.7 Harrison then returned to the tavern and telephoned the other cutters about what had happened. She suggested that they all report to the plant at 6:45 the following morning to inquire as to why they were fired when they were told they could take the day off. Most of them did report to the plant at that time. Richard Loehndorf denied telling them to take the day off. Cora Tatum asked why she was fired when she had been out sick the day before. Loehndorf replied that he had heard she was with the other girls at the tavern on the day before and had therefore concluded that she "was in with them" and so "must go, too." 8 One of the 10 cutters, Hilda Cruz, was reinstated on Friday, February 9. She telephoned her supervisor, Colon, on the night of February 7, after receiving the discharge telegram, and explained to him that she had walked out, after punching in that morning, because she had been told by the other cutters that there was no work to be done. She told Richard Loehndorf the same thing on Friday. He believed her and put her back to work. She had not come back to the plant on February 8 because of illness. D. Analysis and Conclusions The complaint alleges that Respondent discharged the cutters "because they engaged in protected, concerted activities, and/or because of their activities on behalf of and that Harrison appeared to have been drinking alcoholic beverages (a charge denied by Harrison) and that she was in no condition to work when she finally came to the plant. Ledrowski impressed me as being overly anxious, in this as well as other aspects of his testimony, to support any theory which, in his view, might help Respondent's case. Richard Loehndorf indicated in response to questions by the General Counsel when called under Rule 43(b), that his father asked Harrison "to come over to talk to us . Just to come over to talk, and see if we can talk about what happened." He explained, "We were going to tell them that we were going to give them a raise " He later changed his testimony by asserting that his father asked Harrison "to come on back to work " I find Harrison a far more credible witness than either Ledrowski or Richard Loehndorf and credit her testimony, supported by Richard Loehndorf's initial testimony, rather than his later testimony and Ledrowski's regarding what was said during the telephone conversations between Andrew Loehndorf and Harrison. 7 All the cutters were sent identically worded telegrams that afternoon stating You are hereby notified that you are dismissed from the employment of Bagley Produce, Inc, because of refusal to work at 7 a.m on Wednesday, February 7th. 1973 Your checks will be ready between 12:30 and 1.30 p.m. on Thursday, February 8th, 1973 8 The findings in the above paragraph are based on the credited testimony of Harrison and Tatum. Supervisor Mike Colon had reported to Loehndorf after lunch on the day before that he saw Tatum in the tavern with the other cutters Tatum, as already noted, had in fact come to the tavern to deliver the car which McDowell had loaned her to meet a 1 p.m doctor's appointment that day, and she accompanied the cutters to the union office then returned with them to the tavern before leaving with McDowell's car 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union," in violation of Section 8(a)(1) and (3) of the Act. There is persuasive evidence in the record that Respon- dent discharged the employees, in substantial part, because it learned, between the time Andrew Loehndorf called the tavern and talked to Harrison and the time she arrived at the plant, that the cutters had signed union cards. To be sure, there is no direct evidence that Respondent's officials knew prior to discharging the employees that they had engaged in union activities, and the two who testified denied that they had such knowledge, but there is strong circumstantial evidence to support this conclusion. Harri- son and the other cutters signed their union cards at the tavern and obtained signatures of a number of other employees who came there for lunch about 11:15 a.m. One of the employees who came to the tavern for lunch, identified only as Willie, was asked by Harrison to take some cards to the plant and have them signed by some of the Puerto Rican employees who did not normally eat at the tavern. He did so and return the signed cards to Harrison during his luncheon period. She placed them on the stack of other cards on the bar where she was sitting. Among those who came to the tavern for lunch during the 11: 15 luncheon break were Don Miller, supervisor over the sizing room, and Mike Colon, supervisor over employees of the cutting room including the cutters who were then in the tavern. Harrison, observing him at the other end of the bar from where she was sitting, approached him and ascer- tained from him his estimate of the number of employees working at the plant. She then announced to some of the other cutters, "We have enough cards now." At that time she had about 23 signed cards. There is no evidence that Colon was in hearing range of Harrison's remark about having enough cards or that he actually saw any union cards.9 Moreover, Harrison had cautioned "Willie" not to let any of the "office people" see him distributing the cards she gave him. Nevertheless, with as many as about 23 cards being signed in so short a period of time and with two of Respondent's supervisors present at the tavern when some of them were being signed, it would be suprising if this did not come to the attention of one of Respondent's officials at some time during the afternoon. Strongly supporting an inference that Respondent did learn of the union activities and was motivated, at least in part, by that fact in discharging the, cutters is the circumstance that management representatives, despite the expressed reluctance of Richard Loehndorf to take them back, decided about 12:30 p.m. on February 7, to grant raises to all plant employees, including the cutters who had walked out, and Andrew Loehndorf, about 1 p.m., called the tavern for the purpose of having the cutters who might be there come back to the plant and talk over the 10-cent raise Respondent was willing to give them, then suddenly changed his mind before Harrison arrived. Since the 9 Colon was called as a witness by the General Counsel, who sought to interrogate him under Rule 43(b) When I ruled that Colon had not been qualified as a Rule 43(b) witness, only a few questions were asked him Colon testified that when he returned to the plant he told Richard Loehndorf only that the cutters, including Cora Tatum, were at the tavern and in response to Loehndorf's question as to whether they were drinking he replied that there were glasses in front of them. Richard Loehndorf testified that, in addition to Colon, one of the employees whom he could not identify cutters had requested a 15-cent raise, Respondent could not, of course, know whether they would accept a 10-cent raise and return to work on that basis. It is reasonable to assume that Respondent's representatives intended to try to persuade them to accept the latter amount and return to work. Why, then, did Respondent's officials change their minds during the afternoon about seeking to induce the employees to come back at a 10-cent increase in pay? Why, prior to Harrison's arrival, were telegrams being prepared and transmitted, telling the cutters that they were being dismissed for "refusal to work" that morning? Why did Respondent's officials give contradictory and inconsistent explanations at the hearing as to the reasons for terminat- ing the cutters, such as: because they refused to work that morning; because they refused to come back to work when called (although no attempt was made to reach other employees when it was learned that only Harrison was at the tavern); and because Harrison, when she finally arrived at the plant about 3 p.m. (while the discharge telegrams were already being transmitted) had liquor on her breath and was in no condition to work between then and the 3:30 quitting time.i0 I am convinced that the only reasonable answer to these questions is that Respondent learned, during the interim between Andrew Loehndorf's first talk with Harrison and her arrival at the plant, that the cutters had signed union cards and that Respondent was motivat- ed, at least in part, by this factor in deciding to dismiss them. The discharges were therefore in violation of Section 8(a)(3) and (1) of the Act. Even if I should be mistaken, however, in finding that Respondent knew of the cutters' union activities prior to discharging them and was motivated, at least in part by that factor, the discharges were nevertheless in clear violation of Section 8(a)(1) of the Act. There can be no question but that the walkout of the cutters on the morning of February 7 was concerted action on their part as a consequence of or in connection with their attempt to discuss and obtain an immediate wage increase. It grew out of a "labor dispute" within the meaning of Section 2(9) of the Act and the cutters remained employees within the meaning of Section 2(2) of the Act. Although they purported to interpret Loehndorf's statement to them as a grant of the day off, they, of course, did not believe that he was willingly giving them a day off from work. As employee McDowell acknowledged, and as must have been apparent to the other cutters, Loehndorf appeared unhappy and disturbed when they started walking out. The fact that the employees deliberately sought to misinterpret Loehndorf's remarks to mean what they believed was to their advantage does not, however, alter the fact that they were acting in concert to accomplish their purpose-the prompt granting of a wage increase. It is clear that they intended-even before being so advised by the union agent whom they consulted later that told him that the cutters were in the tavern io In view of the patently unreliable character of the testimony of Richard Loehndorf and Don Ledrowski, I am inclined to credit the testimony of Harrison (who, on the whole, 'impressed me as reliable) that she had imbibed nothing but a "soda pop " However, regardless of whether she had been drinking something stronger, that factor obviously could have had nothing to do with the decision, already made, to discharge her. BAGLEY PRODUCE, INC morning-to return to work on the following day and hopefully with their purpose accomplished. One of them, Jones, as already noted, remarked to the others as they were walking out, "When I get back in the morning . . . I bet you I have a raise," and several replied that they would wait and see. But even if they had not intended to return to work the next morning, they unquestionably were engaging in a protected concerted activity for their mutual aid and protection and could not lawfully be discharged because of their walkout. If, as Respondent asserts, it discharged them for walking out and failing to return to work before any replacements were hired, Respondent manifestly violated Section 8(a)(1) of the Act. It might be argued that the employees acted unwisely or unreasonably in walking out without giving Richard Loehndorf time in which to consult with his father and brother about their demands, even though he was unwilling to let them wait in the lunch room until the father and brother arrived or to assure them of prompt action on their demands. But, as the Supreme Court pointed out in N.L.R.B. v. Washington Aluminum Co., 370 U.S. 916 (1962), "It has long been settled that the reasonableness of workers' decisions to engage in concert- ed activity is irrelevant to the determination of whether a labor dispute exists or not" and the employees are protected under Section 7 of the Act when they engage in such concerted activity growing out of their labor dis- pute.ii Respondent accordingly interfered with, restrained, and coerced them in the exercise of those Section 7 rights and thereby violated Section 8(a)(1) of the Act insofar as it discharged them for engaging in the walkout. Respondent alleges that the case of Cora Tatum must be judged on a different basis from that of the other cutters. She was absent from work on February 7 when the other cutters walked out and therefore could not have been discharged for walking out. During the preceding week she had been absent from work for 4 days with the "flu" and was still not feeling well when she reported to work on Monday, February 5. For that reason she was permitted to do less strenuous work than her regular saw cutting work. Toward the end of the day she told Richard Loehndorf that she would not be at work the -next day unless she was feeling better. She did not feel better and stayed at home, making an appointment with her doctor for 1 p.m. on the following day, February 7. As already noted, during the morning of February 7, at McDowell's request she brought McDowell's car to the tavern and accompanied the other cutters to the union office, then returned with them to the tavern and was observed by Supervisor Colon and others who came there for lunch at 11: 15 a.m. She received the same kind of telegram which the other cutters received, informing her that she was dismissed "because of refusal to work at 7 a.m. on Wednesday, February 7." When she returned to the plant with the other cutters the next morning to-inquire why she was fired, Richard Loehndorf asked her if she had not been over at the tavern with the other cutters on the preceding day and refused to accept her explanation that she had merely brought McDowell's car to her and had a doctor's appointment at 1 p.m. 11 See also N.L.R B v. Mackay Radio & Telegraph Co., 304 U S 333, 344 (1938), and N L.R B v. Leprmo Cheese Company, d/b/a Lepnno Manufactur- 25 Respondent contends that, despite what was said on the telegram dismissing Tatum, she was in fact discharged for excessive absenteeism, about which Richard Loehndorf had talked to her on the Monday preceding her discharge, and the fact that she was in the tavern with the other cutters when she could have been working. A comparison of her attendance record with that of the other cutters discloses that her attendance record is no worse than that of most of the other cutters and not as bad as that of several others. One of them, Harrison, was given a 3-day suspension from work in 1972 for failing to report for work. I do not for a moment believe that Tatum's recent absences while recovering from a bout with the "flu" had anything to do with her discharge and am confident that, if Respondent had regarded her absences as sufficiently serious, it would have given her a disciplinary layoff, as it had given Harrison in 1972, rather than discharging her. It is manifest from all the evidence that Respondent discharged Tatum along with the other cutters because it believed that she was making common cause with them in their concerted attempt to get prompt wage increases and that her discharge, like theirs, was in violation of Section 8(a)(1), if not also Section 8(a)(3) of the Act. It is not important whether these discharges be considered a violation of Section 8(a)(1), Section 8(a)(3), or of both sections of the Act, for, in any event, the order necessary to remedy the unfair labor practices found would be substantially the same. CONCLUSIONS OF LAW 1. By discharging employees Lena Roby, Ollie McDow- ell, Ethel Jones, Maria Hall, Barbara Harrison, Marilyn Wesley, Vergie Dennis, Vigie Jeanes, and Hilda Cruz because they engaged in protected concerted activities, including union activities, Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. 2. By discharging employee Cora Tatum because it believed that she was making common cause with the other cutters in their concerted action to obtain wage increases, Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, my recommended Order will require that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. All of the 10 cutters named in the complaint (except Cora Tatum who was absent from work for health reasons) walked out of the plant on the morning of February 7 in connection with their concerted effort to obtain an immediate wage increase and it is clear from the record that 9 of the 10 would not have worked that day even if they had not been discharged during the afternoon. But for mg Company, 424 F.2d 184 (C.A 10), cert. denied 400 U S. 915 (1970). 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their unlawful discharge, it is a reasonable assumption that all (except Cruz, who was ill on February 8) would have returned to work on February 8. Cruz apparently would have been reinstated on,February 8 had she reported for work then since Respondent was willing to accept her explanation made to her supervisor the evening before that she walked out only because she was told by some of the cutters that there was no work to be done. She was reinstated when she reported for work on Friday, February 9. No backpay or reinstatement order is necessary, therefore, to remedy her unlawful discharge. To remedy Respondent's unlawful discharge of and refusal to reinstate the others, however, Respondent will be required to offer each reinstatement to her old job or, if the job no longer exists, to a substantially equivalent position, without prejudice to her seniority and other rights and privileges, and to make each whole from February 8, 1973, to the date she is offered reinstatement, the backpay to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: ORDER 12 Respondent, Bagley Produce, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, refusing to reinstate , or otherwise discriminating against any employees for engaging in protected concerted activities, including union activities, for their mutual aid and protection. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 12 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to each of the employees named below reinstatement to her former job or, if the job no longer exists, to a substantially equivalent position, without prejudice to her seniority and other rights and privileges, and make each whole for her lost earnings in the manner set forth in the section of "this Decision entitled "The Remedy." Lena Roby Marilyn Wesley Ollie McDowell Vergie Dennis Ethel Jones Vigie Jeanes Maria Hall Cora Tatum Barbara Harrison (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and- reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its Milwaukee , Wisconsin, plant copies of the attached notice marked "Appendix." 13 Copies of the notice on forms provided by the Regional Director for Region 30, after being duly signed by an authorized representative of Respondent, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 13 In the event that the Board 's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "