Kellogg

EGGO FROZEN FOODS 647 Eggo Frozen Foods, Division of Fearn International, Inc., A Subsidiary of Kellogg and Lamar Griffin. Case 10-CA-10048 March 13, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On September 28, 1973, Administrative Law Judge Ivar H. Peterson issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions 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 and findings' of the Administrative Law Judge but, for the reasons set forth below, has decided to dismiss the complaint in its entirety. We do not agree with the Administrative Law Judge's conclusion that the discharges of Lamar Griffin, Lillie Foster, Barbara Daniel, Dodie Rober- son, and Barbara Cox on January 18, 1973, violated Section 8(a)(1) of the Act. We are not satisfied that the General Counsel has met the burden of establish- ing that these five employees were engaged in protected concerted activity at the time they were discharged. Prior to January 18, the date of the discharges, representatives of two civil rights groups, the South- ern Christian Leadership Conference (herein SCLC) and the Metropolitan Atlanta Summit Leadership Congress, Inc. (herein the Congress) sent a telegram to Respondent's vice president, Wells, accusing Respondent of maintaining racially discriminatory hiring and classification policies, and complaining about Respondent's contemplated institution of a 12- hour workday. The telegram also contained a demand for a meeting to resolve these matters. On January 10, 1973, Wells sent a reply to the Congress vigorously denying the existence of any discriminato- ry personnel practices. Although the proposed 12- hour workday was never implemented, Respondent instituted a Sunday work schedule, effective January 14. Sometime prior to that date an announcement printed on stationery with the Congress' letterhead was posted on a plant bulletin board by Martha I 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 209 NLRB No. 103 Price, an employee and member of the Congress. The announcement read as follows: To All Eggo Employees That It may Concern: To Whom It May Concern: The members of the Metro Summit Chapter of Eggo Employees will work the old schudle [sic]: We refuse to work the new schudle [sic] until such time that we hear from the first letter that was sent to Eggo Foods. Also we will observe the state holiday of Rev. Dr. Martin Luther King Birthday on Monday, January 15, 1973. On Sunday, January 14, a number of Black employees stayed at home in protest over the new Sunday work schedule. On the following day, January 15, several Black employees again failed to report to work in observance of the birthday of Martin Luther King, Jr. On Tuesday, January 16, Respondent's assistant plant manager, Alfred Plott, issued formal warnings to these employees for their unauthorized absences. On the mornings of January 17 and 18, various employees picketed Respondent's premises on their nonworking hours protesting the introduction of Sunday work. The discharge of the five employees in question on January 18 was triggered by Plott's discharge of a Black employee, Julliette Poole, for failing to obey the order of Production Supervisor Darryl Ash to sweep a certain area of the plant floor. As Plott led her to the timeclock and punched out her timecard, a number of Black employees, including the five employees whose discharges are in issue, approached the timeclock to see what was happening. It was then that Plott suddenly turned around to these people and told them that they were fired and to get out of the plant. In order for employee activity to come within the protection of the Act, it must be. among other things, concerted. This crucial element appears to be missing from the conduct of the five dischargees. The record shows that each of these five employees separately left the work area and approached the timeclock to see what was happening with regard to the firing of Julliette Poole. There is no evidence that the employees protested in any way the discharge of Poole or made any gesture to Plott of their support for Poole. In finding the conduct of the five dischargees convinces us that the resolutions are incorrect Standard Dry 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. 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD protected, the Administrative Law Judge reasoned that, in view of the picketing that had already been taking place at the plant, Plott "would naturally be aware that these employees, by walking off their jobs and going to the timeclock where the discharge of one of their fellow employees was taking place, would be engaging in concerted activities as a protest over the discharge of their fellow employee." 2 But, even were Plott's state of mind relevant, this is no more than speculation by the Administrative Law Judge. In the absence of any evidence of a coordinat- ed effort on their part to express their concern with or protest of Poole's firing, we cannot accept such a speculation as a substitute for proof. We conclude that the five dischargees, in leaving their work stations and standing silently by the timeclock as Poole was being fired, were not engaged in protected concerted activity. Therefore, their discharges by Respondent did not violate Section 8(a)(1) of the Act. It also follows that the subsequent strike by employees in support of the dischargees was not an unfair labor practice strike, and, therefore, Respon- dent did not violate Section 8(a)(1) when it refused, on March 27, 1973, to reinstate the dischargees and strikers after they made unconditional offers to return to work.3 Accordingly, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section .10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint be, and it hereby is, dismissed in its entirety. 2 See Administrative Law Judge 's Decision penultimate paragraph of sec iI 3 Respondent replied that it would reinstate the strikers and dischargees only as vacancies occurred strike which, allegedly, was caused and prolonged by unfair labor practices of the Respondent. According to the complaint, on March 22 the striking employees of the Respondent, including, among others, the five allegedly discriminatorily discharged employees and six other named strikers, unconditionally offered to return to work. The complaint further alleged that on or about March 27, and thereafter, the Respondent refused to reinstate the named employees because they had engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection, all in violation of Section 8(a)(1) and Section 2(6) and (7) of the Act. On or about June 21, the Respondent filed its answer to the complaint, denying the commission of any unfair labor practices. On or about July 31, Mary Joyce Johnson, attorney for the employees, moved that the hearing be continued due to personal inconvenience. In response to this request, the Regional Director rescheduled the hearing from July 19 to August 1. On or about September 5 and 13, respectively, counsel for the General Counsel and counsel for the Respondent filed briefs with me which have been carefully considered. Upon the entire record i in the case and my observation of the witnesses as they testified, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Delaware corporation, has at all times material herein engaged in the manufacture and sale of frozen food products, with its office and place of business located in Atlanta, Georgia. During the past 12 months the Respondent purchased and received goods valued in excess of $50,000 directly from suppliers located outside the State of Georgia. The Respondent, which employs about 135 employees, admits and I find that it has been at all times material herein engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES DECISION STATEMENT OF THE CASE IvAR H. PETERSON, Administrative Law Judge: I heard this case in Atlanta, Georgia, on August I and 2, 1973, upon the complaint issued on June 8 by the Regional Director for Region 10, based on a charge and amended charge filed by Lamar Griffin, an individual, on March 21 and June 5. Briefly stated, the complaint alleged that, on or about January 18, the Respondent discharged five named employees and thereafter failed and refused to reinstate them because they engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection. The complaint further alleged that, on or about January 18, employees of the Respondent ceased work concertedly and engaged in a A. The Events Under date of March 22, 11 named employees addressed a letter to J. L. Wells, vice president and general manager denominating themselves "The Black Employees of Eggo Food Div., for Better Working Conditions and Equal Opportunity in Employment." The letter, in pertinent part stated: "We, the Black Employees of Eggo Food Division for Better Working Conditions and Equal Opportunity in Employment, still seek reinstatement to our jobs with Eggo Food Division " The letter continued by stating that in "seeking re-employment to the positions that we previously held with Eggo Food, we are demanding that all person [sic ] involved in trying to bring about equal and adequate job opportunities and promotional opportunities for all Eggo Food employees regardless [sic] of race, creed, or color by participating in the boycotting and picketing of I The unopposed motion of counsel for the Respondent to correct the transcript in one respect is hereby granted. EGGO FROZEN FOODS 649 Eggo Food Division, be immediately reinstated to their previous positions unconditional [sic]." Finally, the letter stated that the signatories "sincerely feel that the supervi- sors and managerial personnel should not be allowed to harass, intimidate, or punish any of us in any way whatsoever due our participation in the racial labor dispute." Under date of March 27, Wells acknowledged receipt of the letter and stated that the signatories "will be offered positions for which you are qualified as such openings occur." By way of background, the present dispute apparently had its origin in early January. Under date of January 4, the Rev. Joseph E. Boone, executive director Metro Summit Congress, the Rev. Carl Dorsey, Cochairman Operation Bread Basket of the Southern Christian Leader- ship Conference, and the Rev. Hosea Williams, president of the Atlanta Chapter of the Southern Christian Leader- ship Conference, sent a telegram to Vice President Wells stating: "After careful investigation of resent [sic] com- plants [sic] from the Black work force of Eggo Foods Inc. relative to discriminatory practices in hiring and upgrading based upon race," they found that the complaints were valid and called for an immediate conference in relation to them. They alleged that "the deliberate discriminatory practice of hiring Whites over Black by a 7 to 1 rattio [sic] be stopped." Vice President Wells replied to the Rev. Boone by letter dated January 10. With respect to the allegations made, Wells stated: In response to your recent telegram concerning our Company's treatment of minority employees, we feel that there is some misunderstanding as to our Compa- ny's policies and its efforts to treat all of our people in a fair and equitable manner. At the present time our hourly production and maintenance employee work force is in excess of 33 percent black, which is a considerably higher percent- age than the recent 21% figure given by the Georgia Department of Labor, as the percentage of minority employees in the total labor force for our employment area. Also, of our recently hired employees, approxi- mately 33% of those hired are minority persons. The 7 to 1 ratio stated in your telegram simply is not accurate. In addition, the company cancelled the proposed twelve hour shift agreement a short time ago and instead, plans to initiate an eight hour, five day per week schedule. You may also be interested in knowing that approxi- mately one third of our plant supervisory force is black and that the company has and will continue to make available higher paying jobs as well as supervisory positions to all qualified employees. As we have stated to our employees many times, all available jobs are open to all employees without restriction as to race or sex. We feel that our Atlanta plant has a fine record in up- grading employee benefits and pay and due to our continuing efforts , has accomplished considerably more than other area employers. Under date, of February 12, the Rev. Ralph David Abernathy, president of the Southern Christian Leadership Conference, wrote to Vice President Wells with regard to a conference the parties had held in which he stated he would make the Conference's demands in writing. He made the following three requests: 1. That Black persons be employed in the office, mechanical and all departments of Eggo Foods; 2. That the seventeen (17) persons who are presently out of the plant be restored to their previous positions, with their present seniority, and without any reprisals; and 3. That retro-active salary be paid them for the period they have been out of the plant. He also requested that the Respondent "advertise in the Black news media and make deposits with Black lending institutions in the Metro Atlanta area." He further stated that he was in agreement with the Respondent's proposal that "Sundays will be considered a work day with double pay through the month of April. Should it become necessary to continue this practice beyond April you will evaluate this practice and make your findings known to all persons concerned." Wells replied in a letter dated February 15, in which, among other things, he stated: At that [February 12] meeting you refused our offer which included reinstatement, without back pay, for the 17 employees who walked off the job and Affirmative Action in the areas of hiring and minority participation. We feel, that under the circumstances, the terms of this offer were more than fair, and we have patiently awaited a further reply from you regarding the offer. We have a moral obligation which is owed our Eggo employees who have remained at work during this difficult situation. It is unfair and improper to ask these Eggo employees to faithfully perform their work in a continual state of uncertainty over the status of their job. Accordingly, to provide our work force the certainty and .tability it needs in these difficult times, we are compelled to withdraw our offer as stated at the 2/12/73 meeting. We wish to make clear that the withdrawal of Eggo's 2/12/73 offer will not affect Eggo's plan for continuing Affirmative Action in the areas of hiring and minority participation. Further, those employees who walked off the job and desire reinstatement will be offered reinstatement as job openings occur at the Eggo Atlanta Plant. Under date of February 15, a memorandum was submitted to Respondent's management by 58 signatories, stating they were employees, which advised Respondent 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that if the seventeen employees are returned to their jobs with seniority rights, We, the Undersigned WILL walk out. We feel that it would be impossible for us to work with these people under the conditions that now exist. Under the same date, the Respondent was sent a memorandum from employees, which, in substance, stated that they, being new employees recently hired to replace the strikers, protested the offer of the strikers to return, viewing that offer, if accepted, as "an unfair labor practice act to the new employees to release them . . . and reinstate the former employees... . Amplifying the circumstances surrounding the work stoppage that began on January 18, Juliette Poole, who had worked for the Respondent for about 1 year and had the job of picking waffles, testified that about 7 a.m. on that day the employees started picketing and continued to do so for an hour. At 8 o'clock they went to work and, in accordance with customary practice, rotated Jobs at 9 a.m. She explained that early morning picketing was occasioned by the scheduling of Sunday work and the proposed 12- hour workday. She related that at 9 o'clock the assistant supervisor assigned her to sweep and, as she was sweeping, Darryl Ash, a supervisor, assigned her to go in the back of the warehouse and sweep. She related that none of the other girls had ever been given such an assignment, and she refused. Ash left briefly and then came back and shoved her on her shoulder and said "didn't I tell you to go back in the warehouse and sweep." Thereupon Supervisor Al Plott came to her and, according to Poole, "told me that if I couldn't do the job that was assigned for me to do to hit my card, and I told him to hit it, and when he hit my card all of the other girls gathered around by the timeclock and then he told all of them to just get out." Thereupon the employees left and resumed picketing. Martha Collins Price, who had been employed since September 1970 on production work, corroborated Poole's testimony as related above. She testified that she picketed for 2 or 3 months beginning January 18. Mrs. Price acknowledged that she was scheduled to work on Monday, January 15, but that she called the Company and advised that she was taking the day off because it was the Rev. Martin Luther King's birthday. She also acknowledged that she had posted on the bulletin board the announce- ment refusing to work the new schedule and intending to observe January 15 as the birthday of the Rev. Martin Luther King. In December 1972 the Respondent announced a new 12- hour workday schedule which required Sunday work. Some of the strikers were dissatisfied and contacted the Rev. Boone, and he sent a telegram on January 4 to the Respondent protesting the alleged discriminatory practices as to hiring, upgrading, and new work schedule. The Respondent answered Rev. Boone's letter on January 10, stating, among other things, that the proposed 12-hour shift had been rescinded prior to the commencement of the strike on January 18. Employees had been picketing the Respondent's premises during their off hours and off days, protesting working hours. On January 18, Poole was discharged by Supervisor Plott because she refused to sweep a certain area of the plant. Thereupon a number of employees, including the alleged discriminatees, stopped work, and left their duty stations and went to the area of the timeclock to determine the reason for Poole's discharge and to protest it. Witnesses presented by counsel for the General Counsel corroborate each other in stating that once Poole had been discharged by Plott, the latter turned around at the timeclock, put his hands in the air, waved at the alleged discrim,natees, and told them all to "get out." On the other hand, Supervisor Plott denied that at the time Poole was discharged some employees were grouped around the timeclock, as they testified. In resolving this issue, it should be pointed out that most of the alleged discriminatees had already been offered reemployment and their apparent credibility would be greater than that of employees who are "out in the cold." Moreover, it should be observed that the Respondent and its supervisors were under a substantial amount of pressure from the other employees who presented petitions threatening to walk out if,lhe striking employees were reemployed. Upon all the evidence, I come to the conclusion that the Respondent was aware that certain employees were engaged in picketing activities at the Respondent's facility, and that Supervisor Plott, accordingly, would naturally be aware that these employees, by walking off their jobs and going to the timeclock where the discharge of one of their fellow employees was taking place, would be engaging in concerted activities as a protest over the discharge of their fellow employee. I further conclude that Plott did tell the employees to get out of the plant and that this instruction is equivalent to a discharge. It was this occurrence that precipitated the strike and, accordingly, I conclude that the strike was an unfair labor practice strike, and, in consequence, the strikers are entitled to reinstatement to their former or substantially equivalent positions immedi- ately upon unconditional application to return to work. I further find that the Respondent's failure to reinstate the strikers, after their March 22 offer to return to work, constitutes a further violation of Section 8(a)(1) of the Act. On cross-examination, Plant Manager Macko testified that it was his feeling that the employees, prior to staying out on Sunday and Monday, had planned to do so. Macko further admitted that employees had been given discipli- nary warnings for their refusal to work on Sunday and Monday which, in my view, indicates that the Respondent entertained some animus toward the employees who were engaged in concerted activities. Such animus, considered in the context of the later events, persuades me that the Respondent did in fact discharge the employees for walking off their jobs and going over to the timeclock to protest the discharge of Poole. CONCLUSIONS OF LAW 1. The Respondent, Eggo Frozen Foods, Division of Fearn International, Inc., A Subsidiary of Kellogg, is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. By unlawfully discharging Lamar Griffin, Lillie Foster, Barbara Daniel, Dodie Roberson, and Barbara Cox, on January 18, 1973, the Respondent violated Section 8(a)(1) of the Act. EGGO FROZEN FOODS 651 3. By refusing on March 27, 1973, to reinstate the said employees the Respondent further violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices burdening and affecting commerce within the meaning of Section 2 (6) and (7) of the Act. THE REMEDY I find that it is necessary that the Respondent be ordered to cease and desist from the unfair lanor practices found and to take certain affirmative action, including reinstating all strikers, to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, in accordance with their unconditional offer to return to work. If necessary to provide jobs for strikers, the Respondent shall discharge any replacement employees and, in addition , pay the strikers backpay from 5 days after their application to return to work until they are in fact employed. [Recommended Order omitted from publication.]