Bi-Lo, Inc.

BI-LO, INC. 489 Bi-Lo, Inc. and Alvin H. Campbell. Case 11-CA-5327 January 17. 1974 DECISION AND ORDER By CHAIRMAN MILL ER AND MEMBERS FANNING AND PENLLLO On September 28, 1973, Administrative Law Judge Marion C. Ladwig issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions 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 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 Judge2 and to adopt his recommended Order. 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 and hereby orders that the Respondent, Bi-Lo, Inc., Mauldin, South Carolina, its officers, agents. succes- sors, and assigns, shall take the action set forth in the said recommended Order. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Drv Wall Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C.A. 3. 1951) We have carefully examined the record and find no basis for reversing his findings. 2 In finding an 8(a)( 1) violation in the discharge of Edwards for engaging in concerted activity the Administrative Law Judge considered the company's "prior illegal actions in preventing unionization " in Bi-Lo, Inc, 163 NLRB 1009 (1967). enfd 386 F 2d 834 (C A. 4, 1967). We disavow any reliance on such conduct, which occurred over 6 years before the events herein, as there is sufficient evidence of the Respondent's unlawful motivation to support the Administrative Law Judge's conclusion in this matter without relying on the prior case DECISION SrATFMENT OF THE CASE MARION C. LADWJG, Administrative Law Judge: This case was tned at Greenville, South Carolina, on August 7, 1973.1 The -charge was filed by an individual, Alvin Campbell, on May 21 (amended June 11), and the complaint was issued on June 29. The primary issues are whether the Company, the Respondent-after one of its supervisors (upon the Company's instructions) appeared at a meeting held by drivers at a truckstop to discuss wages and other complaints--discharged two of the drivers who called and spoke at the meeting for engaging in protected concerted activity, in violation of Section 8(a)(1) of the National Labor Relations Act. Upon the entire record,2 including my observation of the demeanor of the witnesses, and after due consideration of the bnefs filed by the General Counsel and the Company, I make the following: FINDINGS OF FACT 1. JURISDICTION The Company, with a warehouse in Mauldin, South Carolina, is engaged in the retail sale of groceries , produce, meat, and other goods at Greenville , South Carolina, where it annually sells and distributes goods valued in excess of $500,000 and receives goods valued in excess of $50,000 directly from outside the State . The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Introduction In 1967, the Board found that the Company, during a union organizing effort, illegally interrogated employees. made threats of reprisal, engaged in surveillance of union activity, and discriminatonly discharged three employees. Bi-Lo, Inc., 163 NLRB 1009 (1967), enfd. 386 F.2d 834 (C.A.4, 1967). On December 19, 1972, 10 or 11 of the Company's 27 truckdrivers met at a truckstop about 2 miles from the company warehouse to discuss their complaints about wages, dispatcher favoritism, and other matters, and to prepare for a meeting with management. Without invita- tion, Driver Supervisor Parker Holliday (upon instructions from Warehouse Manager Lloyd Simmons) went to the meeting. He requested, and was given, permission to enter. His brother, dnver Spencer Holliday, and driver William Edwards (both of whom had invited other drivers to the meeting), assured him that it was not a union meeting and told him about the drivers' complaints. Some of the other drivers then spoke, and Supervisor Holliday promised to seek some relief from management. He assured them that they would not be discharged for attending the meeting. After the meeting, Supervisor Holliday telephoned Manager Simmons, reported who was there and what the complaints were, and indicated that there was not a union involved, stating "he didn't think it was anything serious." The next day, December 20, Simmons reported the meeting to Vice President Henry Veach, who later that day asked Simmons "what I thought about it." The following morning, December 21, driver Edwards' timecard was pulled, and Simmons discharged him. On December 29, driver Holliday was also terminated. Thereafter, the Company gave some wage increases and discharged the i All dates are from October 1972 until August 1973 unless otherwise stated. 2 The General Counsel's motion to correct transcript, in in 2 of his brief, is denied for lack of merit 208 NLRB No. 72 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dispatcher for favoritism. Apparently the remaining drivers did not seek union representation. The General Counsel contends, and the Company denies, that the two drivers were discharged because of their role in the December 19 meeting. B. Discharge of Edwards Driver Edwards credibly testified that on the morning of December 21 (the second morning after the drivers' meeting), he could not find his timecard, and Manager Simmons motioned for him. They walked out of the side door "where we could be by ourselves," and Simmons handed him two checks, "told me he hated to do this" but "he was going to have to let me go ... you are not satisfied with your job, we will have to give you time off to hunt you another job." (Emphasis supplied.) Edwards took the checks and left. (When asked about this account of the conversation, Simmons testified "that's exactly the way I give it to him.") Edwards, who had been employed since 1967, credibly testified that there had been no prior indication that he would be discharged. Manager Simmons first testified on direct examination that he decided to discharge Edwards "Because he continued griping and complaining about his job." Howev- er, he testified on cross-examination that Edwards had been griping about working on Saturdays for 2 or 3 months, and that he had never warned Edwards about this. (He testified that he did not know whether Supervisor Holliday had warned Edwards. Holliday did not testify. Edwards admitted complaining about working on Satur- days, in excess of 50 hours a week.) When further questioned on direct examination about "any specific instance" which gave rise to the discharge, Simmons gave a different reason. He claimed that "every time" Edwards came in early with his truck and would be asked to work overtime, he would go home without permission. When repeatedly asked for any occurrence which precipitated the discharge, Simmons finally claimed that on Monday, December 18 (the day before the drivers' meeting), Edwards went home without permission after the dispatch- er told Edwards there were more runs to make. It was at that point, according to Simmons, "I made up my mind to let him go." When asked why he waited from Monday until Thursday to discharge Edwards, Simmons answered, "The best I can recall, I didn't see him any more from Monday until Thursday." However, Simmons did not have Edwards' timecard pulled from the rack on Tuesday or Wednesday morning, as he did on Thursday morning (the day after discussing the drivers' meeting with Vice President Veach), although Simmons worked at the warehouse Monday through Thursday that week. Moreo- ver, Simmons did not leave any message for Edwards' immediate supervisor, Holliday, to tell Edwards that he was discharged, even though Simmons admitted that he normally left it to the supervisor to relay the decision to discharge an employee. Furthermore, at the time of the discharge, Simmons did not mention either leaving work without permission or refusing to work overtime as a reason for the discharge. (Edwards had no recollection at the trial of the purported Monday incident. He credibly testified that he was not required to get permission to leave if he went to work early in the morning, that he always got permission to leave when he had something special to do, and that he never refused to work overtime.) Simmons did not impress me as a candid witness, and I discredit his testimony that Edwards refused to work overtime on December 18 and left work without permission. The evidence clearly shows that the Company was concerned about employee complaints leading to union organization. Not only had Edwards been complaining about excessive overtime,but he was a leader in setting up and speaking at the December 19 meeting, where employee complaints were discussed. After considering the Compa- ny's prior illegal actions in preventing unionization and after considering all the evidence , including Edwards' leadership role in the meeting, his summary discharge, and the timing of the discharge on December 21 (the day after Manager Simmons discussed the meeting with Vice President Veach), I find that the Company seized upon Edwards' longstanding overtime complaints as a pretext for eliminating one of the leaders in the employees' concerted activity to remedy their complaints about wages and working conditions. I further infer that the Company's decision to eliminate the employee leadership , while giving wage increases and taking other action to satisfy the employees, was related to its fear of union organization. Accordingly, I find, as alleged in the complaint, that the Company discharged employee Edwards on December 21 because he engaged in protected concerted activity (the December 19 drivers' meeting), in violation of Section 8(a)(1) of the Act. C. Discharge of Holliday Driver Spencer Holliday, the other leading participant in the December 19 drivers' meeting, was discharged on December 29. It is undisputed, as driver Holliday credibly testified, that on Friday, December 29 (8 days after driver Edwards' discharge), Holliday returned to the warehouse from a run, and while working on another run, his brother, Driver Supervisor Parker Holliday, called him over to the side and discharged him. Supervisor Holliday explained that Vice President Veach and Warehouse Manager Simmons "said me being his brother, I should have told him about the [December 19] meeting ; and they just as soon as I find myself something else to do . . . . I tried to assure him that it was not a union meeting." Supervisor Holliday said "it was out of his hands" and "told me that I could talk to Mr. Veach" but "he doubted that it would do any good but I could try." Driver Holliday then spoke to Veach, asked "why I was fired," and said to Veach , "I know it is probably about the meeting we had two weeks earlier but I would like to reassure him it was not a union meeting, and I think he was making a mistake." Veach responded, "Well, Parker was my bossman ; and if he fired me, he must have had good reason . . . that's all I have to say." (Without explanation, the Company failed to call Veach to testify. Neither the General Counsel nor the Company called Parker Holliday, who was no longer employed by the Company. Although the Company challenges driver Spencer Holliday's credibility, he impressed me as being an honest, forthright witness.) BI-LO, INC. ' At the trial, the Company stated that driver Holliday was asked to look for anotherjob "because of problems he was having with his brother , . . and m relationship with other drivers"; that "no intention was ever made that he would be discharged"; bLt at the suggestion that he begin looking for another job, Holliday said, "in that case, I will quit," and he "voluntarily resigned as of that day." Thereafter the Company called a single defense witness, Manager Simmons, who gave testimony contradicting this theory of the case. Now in its brief, the Company admits that Holliday was discharged on December 29 and, relying on Simmons' testimony, contends that the discharge was "precipitated by his bad driving record" as well as his "angry attitude" displayed toward his brother the day before. (Several months earlier, as driver Holliday credibly testified, he had been called into the office by Vice President Veach who said "you have been reported to me for driving too fast." He had been employed since February 1971, and had served as dispatcher part of the time.) Simmons, from his demeanor on the stand, im- pressed me as being more concerned with attempting to support the Company's cause than accurately reporting what had happened. I discredit his uncorroborated claim that driver Holliday was discharged because of a bad driving record or other misconduct, and find that the Company discharged him, like it did driver Edwards, because of his leading role in the December 19 meeting. Accordingly, I find that the Company discharged driver Holliday for engaging in the concerted protected activity, in violation of Section 8(a)(l) of the Act. CONCLUSIONS OF LAW By discharging William Edwards on December 21 and Spencer Holliday on December 29 because of protected concerted activity, the Company engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having unlawfully discharged two employees, I find it necessary to order the Respondent to offer them full reinstatement, with backpay computed on a quarterly basis plus interest at 6 percent per annum as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from date of discharge to date reinstatement is offered. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 3 Respondent, Bi-Lo, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: 491 (a) Discharging or otherwise discriminating against any employee for engaging in protected concerted activity. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer William Edwards and Spencer Holliday immediate and full reinstatement to their formerjobs or, if their jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for their lost earnings in the manner set forth in the "Remedy" section of this Decision. (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 records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its warehouse in Mauldin, South Carolina, copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respondent's authorized representative, shall be posted by the 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 the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. i 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. + In the event the Board 's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after trial, that we violated Federal law by discharging employ- ees for meeting with other employees to discuss wages and conditions of employment: WE WILL offer full reinstatement to William Ed- wards and Spencer Holliday, with backpay plus 6- percent interest. WE WILL NOT discharge any of you for joining together to discuss or take actions to obtain better wages or working conditions. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT interfere with your lawful activities in This is an official notice and must not be defaced by any similar manner. anyone. Dated By This notice must remain posted for 60 consecutive days BI-Lo, INC. from the date of posting and must not be altered, defaced, (Employer) or covered by any other material. Any question concerning this notice or compliance with its provisions may be (Representative) (Title) directed to the Board's Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-723-2300.