Valmac Industries, Inc.

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Valmac Industries, Inc. andFood Handlers Local No. 425, Amalgamated Meat Cutters and Butcher Work- men of North America, AFL-CIO. Case 26-CA-5235 April 29, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On January 6, 1975, Administrative Law Judge Sid- ney D. Goldberg 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 Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and con- clusions of the Administrative Law Judge, and to adopt his recommended Order as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified herein and hereby orders that Respondent, Valmac Industries, Inc., Dardanelle, Arkansas, its officers, agents,,succes- sors, and assigns, shall take the action set forth in the said recommended Order as modified.' Respondent timely filed exceptions to the Administrative Law Judge's Decision and a brief with the Board. Counsel for the General Counsel filed a motion to strike Respondent's exceptions on the grounds that Respondent had failed to identify the appropriate portion of the Administrative Law Judge's Decision to which exception was taken and had not designated the precise portion of the record relied on. In response to the General Counsel's motion, the Respondent promptly identified the specific pages and lines of the Decision of the Administrative Law Judge to which the previously filed exceptions applied. In these circumstances, we shall deny the General Counsel's motion. _ 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule 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 Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 3 No backpay shall be awarded Riffle for the period during the strike, or any portion thereof, when Respondent did not require Biffle's full-time services exclusively as an office clerical employee. General Tire and Rubber Co., 190 NLRB 227 (1971) DECISION a group not on strike may be discharged for refusing to do the work of the employees on strike. The complaint herein,' issued pursuant to Section 10(b) of the National Labor Relations Act, as amended (the Act), alleges that Valmac Industries, Inc. (Respondent or the Com- pany), engaged in selling poultry products, discharged Brenda Biffle, an office clerical employee, because, during a strike by the production workers represented by Food Han- dlers Local No. 425, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO (the Union), she refused to perform the production duties of the striking employees. Respondent answered, admitting that Riffle had been ter- minated on the date alleged, but denying that it had dis- charged her for refusing to do production work. The issues so raised came on for trial before me at Russell- ville, Arkansas, on October 24, 1974. All parties were repre- sented: they were afforded an opportunity to adduce evi- dence, cross-examine witnesses, and to argue on the facts and the law. Briefs filed by the General Counsel and by counsel for respondent have been considered. For the reasons hereafter set forth in detail, I find that, while Respondent would have been justified in laying off Biffle for the duration of the strike, it discharged her and failed to reinstate her at the end of the strike, thereby restrain- ing and coercing her in her exercise of rights guaranteed by the Act. Upon the entire record herein, and considering the de- meanor of the witnesses while testifying, I make the follow- ing: FINDINGS OF FACT 1. The parties The Company, a Delaware corporation engaged at several locations in selling poultry products operates a plant at Dar- danelle, Arkansas, from which, it admits , it annually ships products valued at more than $50,000 to customers outside the State of Arkansas . It admits that it is engaged in com- merce and I so find. The Union is a labor organization and it represents Re- spondent's production workers at the Dardanelle plant. 2. Summary of events The facts in this case are, except for two items, substan- tially undisputed. On July 1, 1974, the production employees concertedly ceased work and engaged in an economic strike which ended in the resumption of production work on July 22, 1974. Bif- fle's husband was employed as a production worker and, although he was not a member of the Union, he went out on strike with the others and he returned when they did. There was no strike by the three office clerical employees but, on the first day of the strike, Respondent made a general request that the office clerical employees perform production work. The two others agreed and went into the plant but Biffle remained in the office doing her own work and part of the work of the other two. SIDNEY D. GOLDBERG, Administrative Law Judge: The question for decision in this case is whether an employee in I Issued August 30, 1974, on a charge filed August 1 and an amended charge filed August 30, 1974 217 NLRB No. 103 VALMAC INDUSTRIES, INC. 581 On Monday, July 8, Plant Manager Bob Whitlow told Biffle to come to the office the next day dressed and prepared to go into the plant and perform production work. She refused saying, according to Whitlow, that she would quit rather than work in the plant. Biffle testified that, in her refusal she stated that her reason was, in part, because she didn't feel she should "go against the strike." Whether she related her refusal to the strike is one of the two issues of fact in this case. Biffle came to work on July 9 in her usual office clothes: short dress and high heels. Whitlow, accompanied by Otis Davenport, one of Respondent's supervisors, asked her to go into the plant: she again refused and she was told that there was no other work for her to do. The Company's contention that she quit raises the other issue of fact herein. When the strike ended and production work was resumed on July 22, Respondent did not call Biffle back to work. When she telephoned on July 31 and asked about her job, she was told that a replacement for her had been hired on July 29. 3. Contentions of the parties The General Counsel contends that Respondent dis- charged Biffle and she did not quit voluntarily; that Biffle expiessly linked her refusal to do production work with the pending strike; and, therefore, that Respondent's discharge of Bifflle violated Section 8(a)(1) of the Act. Respondent contends that Biffle's refusal to perform pro- duction work did not constitute protected activity; that the only reason she gave for her refusal was that she had not been hired for such work and that she voluntarily quit rather than perform it. It further contends that her refusal made her a "partial striker' ; so that she was required to request reinstate- ment and ran the risk of being replaced. 4. Discussion and conclusions a. The issues of fact There is no dispute that Biffle's husband, although not a member of the union, went out on strike with the other production workers and that he walked the picket line with them. A rbus Mann, Respondent's plant superintendent, testified that on the first day of the strike he went into the office and spoke with the three clerical employees : that he asked them if they were going to come out on the production line and help during the strike; that the other two employees said they would but Biffle said she had not been hired for that type of work and would not go out there . She also said that someone had to stay and answer the phone and take care of the paper work.' Biffle testified, without contradiction , that during the first week she performed her own duties and parts of those of the other clerical employees. 2 Eliffle testified that it was Otis Davenport, a production supervisor; who asked the office force whether they would work m the plant and that she did not answer. She testified that when Mann came in he referred, jokingly, to the fact that everyone would have to go out in the plant and do production work During this same first week of the strike, Biffle testified, she met Whitlow at the Tastee Freeze shop; that Whitlow asked her when her husband was coming back to work; and that she said her husband would make up his own mind on that Subject. This testimony is undisputed. On Monday, July 8, just before quitting time, Whitlow came into the office and told Biffle that he wanted her to come to work the next day "prepared to go out to the plant." Whitlow testified that she said she would not go out to the plant, tha{she hadn't been hired for that job and that she had been trained to do clerical work. When he insisted that she do so, Whitlow testified, she said she would have to quit; that he said he didn't want her to quit and asked that she talk it over with her husband and think about it over night. Whitlow testified that his final instructions were that, if she came in the following morning, he would assume that she was pre- pared to work in the plant and that if she didn't come in, he would-consider her "a quit." The next morning, Whitlow testified, he and Davenport went to the office and Davenport said: "I have a job for you": that she answered: "Well, I'm not going to work" and that he replied: "If you can't go out in the plant you will have to go home." Biffle then left the plant. As noted above, there are two disputed-questions of fact: whether Biffle linked her refusal'to do production work with the strike then pending and whether she voluntarily quit. Biffle testified that on Monday, July 8, when Whitlow instructed her to come in the next morning dressed to do production work, she gave him three reasons why she would not do that work: that it was difficult work; that she was a trained office worker; and that she didn't feel she "should go against the strike." Whitlow testified that she referred only to her clerical training. Respondent makes much of the fact that Biffle's testimony concerning her reluctance to "go against the strike" is uncor- roborated and contrary to the testimony of Respondent's four witnesses. The difficulty with this argument by Respondent is that Biffle testified that she made the statement to Whitlow on the afternoon of July 8, when he told her to come prepared for production work, and there is no testimony that there was anyone else present during that conversation. The issue, therefore, must be decided on the basis of the acceptance of the testimony of either Whitlow or that of Biffle. The testimony is undisputed that Whitlow, when he met Biffle at the Tastee Freeze, asked her about her husband's participation in the strike. There is no doubt that the strike was on everybody's minds and that Whitlow realized that his request that she do production work was contrary to her husband's interest in making effective the stoppage by the production employees. Reference is made below to my conclusion that Whitlow was not a completely credible witness. While Biffle was also an interested witness, upon this record and the demeanor of the witnesses while testifying, I accept Biffle's testimony that, on the afternoon of July 8, she told Whitlow that she would not do production work because she would not go against the strike. The other issue of fact is whether Biffle quit or whether she was discharged for her refusal to do production work. Biffle testified that on the afternoon of July 8 she told Whitlow that she would quit before doing production work but she also 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that she changed her mind before the end of the day. Whitlow testified that when Biffle said she would quit he said that he didn't want her to quit and that he urged-her to reconsider. He also testified that he told her, if she came in the following morning, he would assume that she was pre- pared to work in the plant. It appears, therefore, from Biffle's conduct in reporting for work the following morning, that she did not choose to quit and Whitlow knew it, but she chose to face whatever results might flow from a refusal to perform production work. Whitlow's testimony concerning his conversation with Bif- fle in the morning on July 8 is that he brought Davenport with him into the office and that Davenport said he had a job for her; she said she would not work in the plant; and he, Whitlow, then said that he had to have her work in the plant, whereupon she asked whether that was all he had for her to do, and that he answered: "Yes it is. If you can't go out in the plant you will have to go home." Biffle further testified that she then said: "Does that mean I am fired?" and that Whitlow answered: "Yes." Whitlow testified that he told Biffle that she had to go out in the plant and work, and, when she asked whether that was all he had for her to do, he said, "If you can't go out in the plant, you will have to go home."' Whitlow further testified that the Company contested Bif- fle's application for unemployment insurance and that, at the hearing on her appeal from the disallowance of payments, the Company took the position that it had terminated her for refusal to do the work assigned to her. Upon the foregoing evidence, I find that Respondent discharged Billie on July 9, 1974. Whitlow testified that on July 9, the only reason Biffle gave for refusing to go into the plant to work was that "she had special training in office work and she didn't feel she should have to go out and work in the plant." When asked whether she gave the same reason at the hearing he attended before the unemployment compensation board, he answered "Much the same, yes, sir." In the decision of the referee, however, which was introduced in this case on consent of all parties, the recitals show that Biffle stated that she had informed the production manager that she would not work on the produc- tion line because it was involved in a labor dispute, and that she "did not favor crossing the picket line to do the strikers' work." This is not to say that the referee's decision in itself con- vinces me that Biffle made that statement to Whitlow at the time of her discharge, but I do accept the recital as adequate proof that Biffle so testified in that proceeding. Whitlow's testimony in this case, therefore, that at that hearing she did not give any other reason than her clerical training for her refusal to do the production work is rejected, and Whitlow's credibility as a witness is seriously impaired. On the foregoing, I find that Biffle, on the morning of July 9, refused to do the work of the striking production workers and that Respondent discharged her for that reason. 3 The testimony of Schwartz, the personnel clerk, was sufficiently equivo- cal to support Biffle's testimony that she signed the termination form, with its statement that she did thereby "tender my resignation," only because she was told that it was routine to do so. b. The question of law The General Counsel relies principally on General Tire and Rubber Co., 190 NLRB 227 (1971), enfd. 451 F.2d 257 (C.A. 1, 1971), in which a clerical employee, requested to do pro- duction work during a strike of the production workers, refused, stating that her husband was a strong union man and that because of her sympathy with the cause of the strikers, she would not do their work. The company official said there was no other work for her to do and he discharged her. It having been found that the employee was discharged and that the reason for the discharge was her refusal to do the struck work out of sympathy for the strikers, the Board found that the Company's action violated Section 8(a)(1) of the Act.' The cases on which Respondent relies fall into two groups, both of which fall short of meeting and turning the General Counsel's argument. In Home Beneficial Life Ins. Co. v. N.L.R.B., 159 F.2d 280 (C.A. 4, 1947), and N.L.R.B. v. Montgomery Ward & Co., 157 F.2d 486 (C.A. 8, 1946), the work which the discharged employees had refused to do was their own work and their refusals were in sympathy with other employees who had gone on strike. That is not the situation here; Biffle performed all of her regular work and as much as she could of the work of the other clerical em- ployees who-had agreed to do production work. Further- more, there is no justification for Respondent's characteri- zation of Biffle as an economic striker who was required to request reinstatement. She never refused to do her own work: it was only the struck work of the production workers that she refused to perform and she left the plant only when she was discharged.' The other case upon which Respondent relies is General Electric Company (Coshocton, Ohio Plant), 193 NLRB 372 (1971), in which the facts are similar to those herein: but only up to a point. In that case, also, the production workers were on strike and the office clerical employees were asked to do production work. As Respondent's brief discloses, however, the Board's decision states: When the turn of each of the seven employees for performing production work was reached on Respondent's work schedules and each refused to do that type of work, she was laid off for the duration of the strike. Each appears to have been willing to perform whatever office clerical work might become available for her but Respondent was unwilling to have her continue to do that work unless she also performed the production work allotted to her. At the conclusion of the strike all of them returned to their office clerical work. The Decision also points out that, in The Cooper Ther- mometer Company, 154 NLRB 502 (1965), the decision was different because the facts were different . Had Respondent ° To the same effect is The Cooper Thermometer Company, 154 NLRB 502 (1965), also cited by the General Counsel. 5 The argument that Biffle's employment application obligated her to do whatever work Respondent assigned to her is rejected. In that application she agreed to be transferred to other locations and other shifts but this acquiescence cannot be interpreted-.as' a consent to assignment to com- pletely different work VALMAC INDUSTRIES, INC. herein laid off Biffle on her refusal to do production work and recalled her when the strikers resumed work on-July 22, it would have brought itself squarely within the General Elec- tric decision and could have been found to be merely exercis- ing permissible business judgment. Its action in discharging Biffle, however, was not such exercise of business judgment but it constituted coercion and restraint directed against her concerted activity with the production workers. It was, there- fore, a violation of Section 8(a)(1) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in sections 2 and 4, occurring in connection with its operations described in sec- tion 1, have a close, intimate and substantial relationship to trade, traffic, and commerce, among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. THE REMEDY Having found that Respondent has engaged in an unfair labor practice, I shall recommend that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. Having found that Respondent, by discharging Brenda Bif- fle for engaging in activities protected by the Act, committed an unfair labor practice, I shall recommend that it offer her reinstatement to the position she held on July 9, 1974, or, if that position no longer exists, to a position substantially equivalent thereto, without loss of seniority or other rights and benefits, and that it make her whole for any loss of compensation she may have suffered, computed in the man- ner prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), and with interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact and upon the entire record herein, I reach the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. At the time of the activities set forth in this Decision, Robert Whitlow was a supervisor of Respondent, within the meaning of Section 2(11) of the Act, and acted as its agent. 3. The union is a labor organization within the meaning of Section 2(5) of the Act. 4. By discharging Brenda Biffle for engaging in concerted activities for the purpose of mutual aid and protection, Re- spondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed in the Act and committed an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 5. The foregoing unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER6 583 Respondent, Valmac Industries, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging any employee because he or she engaged in activities for the purpose of mutual aid or protection. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of their right to self-organization, to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer to Brenda Biffle immediate and full reinstatement to her former position or, if that position no longer exists, to a position substantially equivalent to that which she held on and immediately prior to July 9, 1974, without prejudice to her seniority and other rights and privileges, and make her whole for any loss of wages in the manner set forth in the section of the Decision 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, timecards, person- nel 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 plant at Dardanelle, Arkansas, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by its representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 6 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 7 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the 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 hearing held at Russellville, Arkansas, on October 24, 1974, in which we participated and had an opportunity to give evidence, resulted in a decision that, in discharging 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brenda Billie on July 9, 1974, because she refused to perform production work during the strike of the production workers, we had committed an unfair labor practice in violation of Section 8(a)(1) of the National Labor Relations Act, as amended, and this notice is posted pursuant to that decision. The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join or support unions To bargain as a group through a representative they chose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities. In recognition of these rights, we hereby notify our em- ployees that: WE WILL NOT discharge any of our employees because they -engage in concerted activities for 'mutual aid or protection. WE WILL offer Brenda Biffle immediate and full rein- statement to her former job or, if this job no longer exists, to a substantially equivalent position , without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of her discharge. WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the exercise of their right to self-organization, to form labor organizations, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities. VALMAC INDUSTRIES, INC