Spring Valley Farms, Inc.

SPRING VALLEY FARMS Spring Valley Farms, Inc. and James Ledbetter. Case 10-CA-19972 28 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 11 September 1984 Administrative Law Judge Lawrence W. Cullen issued the attached de- cision. The General Counsel and the Respondent filed exceptions and supporting briefs. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Spring Valley Farms, Inc., Oxford, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the Order. I The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings DECISION STATEMENT OF THE CASE LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard by me on May 4, 1984, in Anniston, Alabama The complaint is based on a charge filed by James M Ledbetter, an individual, on February 2, 1984, and alleges that Respondent Spring Valley Farms, Inc., violated Section 8(a)(1) of the National Labor Relations Act (the Act), by threatening its employees with layoff and plant closure if they joined or engaged in activities on behalf of Carpenters and Joiners of America, AFL- CIO, Local 2069 (the Union); that Respondent violated Section 8(a)(3) and (1) of the Act by its discharge and refusal to reinstate employee James M. Ledbetter be- cause of his membership in, and activities on behalf of, the Union; and because he engaged in concerted activi- ties with other employees for purposes of collective bar- gaining and other mutual aid and protection. Respondent by its answer filed March 19, 1984, has denied the com- mission of any violations of the Act On the entire record in this case, including my obser- vation of the demeanor of the witnesses, and after due consideration of the closing statements of the parties and the brief filed by Respondent, I make the following 643 FINDINGS OF FACT AND ANALYSIS I JURISDICTION A The Business of Respondent The complaint alleges that "Respondent is an Alabama corporation with an office and business located at Oxford, Alabama, where it is engaged in the manufacture and distribution of poultry feed," that "Respondent, during the past calendar year, which period is represent- ative of all times material herein, sold and shipped from its Oxford, Alabama, facility goods valued in excess of $50,000 directly to customers located outside the State of Alabama," and that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent denied in its answer the complaint allega- tion that it "sold and shipped from its Oxford, Alabama, facility goods valued in excess of $50,000 directly to cus- tomers located outside the State of Alabama," and denied that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. At the hearing, the General Counsel declined to put on any evidence to support the complaint allegation that Respondent sold and shipped from its Alabama facility goods valued in excess of $50,000 directly to customers located outside the State of Alabama, but instead relied on the decision in Case 10-RC-12859 in which the Re- gional Director asserted jurisdiction over Respondent. Respondent contends, in its brief as it did at the hearing, that this allegation is incorrect, and there is no evidence in this record or in the record in Case 10-RC-12859 to support this allegation, and the complaint should be dis- missed for lack of jurisdiction. At the hearing, the Gen- eral Counsel relied on Frontier Marketing Cooperative, 229 NLRB 1046 (1977), in which the Board affirmed without comment a finding by the administrative law judge that the issuance as to whether Respondent was an agricultural employer had been fully litigated in a prior representation case. The General Counsel also cited in support of its position John Bagwell Farms, 192 NLRB 547 (1971), for the proposition that the jurisdictional issue is not relitigable as it has been resolved in a prior representation case. I have reviewed the transcript and the decision in Case 10-RC-12859. That transcript contains a stipulation by Respondent that "The Employer during the past twelve months received at its Oxford facility goods valued in excess of $50,000 directly from suppliers located outside the State of Alabama." Thus, in the instant case before me, the General Counsel pleaded but did not prove the direct outflow standard sufficient to establish jurisdiction. However, in the previous representation case, the Re- gional Director found that Respondent was an employer within the meaning of Section 2(6) and (7) of the Act as established by the record in that proceeding , that Re- spondent met the direct inflow standard to establish ju- risdiction Under these circumstances, I take judicial notice of the decision and the transcript in the prior rep- resentation case and find that Respondent is an employer within the meaning of Section 2(6) and (7) of the Act in 274 NLRB No. 91 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the absence of any evidence submitted by Respondent that it no longer meets the direct inflow standard estab- lished in the representation case. The dismissal of this case for lack of jurisdiction as a result of the General Counsel's failure to prove the direct outflow standard would be the exaltation of form over substance in view of the establishment of jurisdiction in the prior represen- tation case II. THE LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that the Union is, and has been at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act iII. THE ALLEGED UNFAIR LABOR PRACTICES James Ledbetter was employed as a truckdriver by Respondent in January 1983. As a truckdriver, Ledbetter was assigned to a 12-hour shift during which he was re- sponsible for delivering loads of chicken feed from Re- spondent's mill and feed mix operation to farmers with whom Respondent had contracted to raise its chickens. It was undisputed that delays frequently occur wherein drivers are required to wait for loads because of break- downs of mill machinery and of the trucks, and there has been a liberal practice of permitting the drivers to go to local restaurants while awaiting their trucks to be loaded for delivery Drivers are paid on the basis of tonnage they load which is utilized to fix an hourly rate of pay which they are paid for time spent on the job They are on the, clock for a 12-hour shift with an hour deducted I'or lunch Ledbetter testified that he was a union supporter who signed a union authorization card, solicited the signing of union cards by four or, five other employees, one of whom was solicited on Respondent's premises, and dis- cussed the union campaign with Respondent's supervi- sors. He''also discussed the Union with the employees on Respondent's premises He also attended a representation hearing on October 11; 1983, on behalf of the Union at which' Respondent's representatives (Mill Manager Jerry Warren and Respondent's director of human resources Floyd Maples) were also in attendance although he was not required to testify. Ledbetter testified that on approximately October 13 or 14, 1983, he inquired of Second-Shift Mill Supervisor Randy White whether the plant would be closed down as a result of the union activity as he had heard from an- other. employee that Respondent would close the plant if the• employees selected the Union as their bargaining rep- resentative. Ledbetter testified that White' told him that Respondent was not making money and had closed its Blountsville plant and laid off over half of the employees at its Cullman plant because of union activities and would not recall the laid-off employees because of their support of the Union's campaign at the Cullman plant. Ledbetter testified further in response to additional ques- tioning by the General Counsel that White also told him Respondent would not hesitate to do whatever it took to defeat the union campaign. Ledbetter testified that as a truckdriver, he worked the first shift from 4 p.m until 4 a m., 5 days a week, and during his shift, he would normally make two or three trips to deliver feed to the farmers who raised chickens for Respondent When he arrived, he checked the dis- patch board in the scale room office. The dispatch board contains the names of each of the truckdrivers with their home telephone numbers and a clip with trip tickets for feed which was to be loaded into the trucks and deliv- ered to the growers The drivers print their own bills showing the weight on the delivery (trip) tickets. As a driver, Ledbetter would take the tickets to the truck as- signed to him, inspect the truck, and then drive the truck onto a scale to weigh the truck empty He would then seek out a loader (a feed mill worker who loads the trucks) to load the truck. Ledbetter would then drive the truck under the feed bins and the loader would then open the bins to load the truck. Ledbetter would then drive the truck back on the scales and weigh the truck which had been loaded with feed, then subtract the weight of the truck when empty and obtain the net weight of the feed which was then delivered to the grower Ledbetter was paid an hourly rate based on the tonnage of the feed delivered and a determination wheth- er the trip was a short or long one This hourly rate is also used in setting overtime pay Drivers are paid time and a half for overtime for hours worked in excess of 40 hours per week, according to the testimony of Plant Manager Jerry Warren Ledbetter testified that the mill experienced operating difficulties and breakdowns at least once a week, result- ing in delays, and that delays were also occasioned be- cause of operating problems with the trucks He testified further that on these occasions, the drivers would go to restaurants and "kill as much time as we thought was necessary to, you know, allot for what was wrong with the mill " He testified further that there were no set pro- cedures or rules for doing so, but there "was a real lax atmosphere among the drivers, since we were paid by the ton" and that drivers could "more or less come and go as we wanted to at the mill " He testified that when he left at times that there were delays in getting loaded, he sometimes did and sometimes did not tell someone where he was going and that he would tell "whoever was available, whoever was standing the closest," as the mill managers would know the mill was "broken down." The mill managers or supervisor (Stanley Birdette) would call him and other drivers at home and at a local restaurant Ledbetter lives nearby the plant (12 to 15 miles) and would go home during the downtime, "nu- merous times " He had also been told by Mill Manager Warren that if the mill was down and he was unable to deliver the last load prior to the end of the shift to leave it for the driver on the next shift On these occasions, the trip ticket would be left on the dispatch board which would show that the load had not been delivered and the next shift supervisor could place the ticket under the name of another driver on the next shift. He testified that on several occasions, he left the workplace during the shift or delayed coming in because the mill was not oper- ating or a truck was not available, and he would either SPRING VALLEY FARMS be told by Assistant Mill Manager Randy White to leave or that he would tell White he was going to leave and that White would call him at home when the problem was solved. On some occasions, he did not tell White be- cause White knew where he would be and could call him at home. He testified further that Edward (Buddy) Weathers, a feed mill mixer, would also call the drivers at the restaurants when the feed was ready. On November 7, 1983, Ledbetter arrived at the feed mill at the start of his shift at 4 p.m and was met by Feed Mill Manager Warren who told him "that the feed mill was torn up , that there was no feed available, and to come back in approximately an hour. "Ledbetter went home and returned in an hour." The feed mill was still not operating Ledbetter asked the feed mixer, Edward "Buddy" Weathers, when the feed would be ready. Weathers replied, "in a few minutes, in a little while." Ledbetter then waited from 5 p.m. until 7 p.m. when his first load of feed was ready for delivery and Ledbetter proceeded to deliver the load to Ranburne, Alabama. When he arrived at the farm house, he discovered that the truck's feed delivery auger was not operating and he was unable to unload the feed. He called Assistant Mill Manager Randy Hampton who was still at the mill and informed him of this . Hampton told him to return the truck, which Ledbetter did, arriving between 7:30 and 8 p.m. He was going to use a spare truck to deliver the second load but discovered that the backlight (which is necessary to unload feed at night) was not working. He reported this to Hampton who called a mechanic in to repair it When he had initially returned from his earlier delivery, he had been told that it could be another hour before the feed would be ready, and he told Hampton that he would "take a lunchbreak and kill an hour or so." He returned after an hour to an hour and 15 minutes and found that the lights on the spare truck had been re- paired and that another truck had come in and was empty and available which he chose to use rather than the spare. He weighed this truck in (empty) and the feed was not ready until 10:30 p.m. when he was able to load only six bins of feed (a partial load) as the bin had run out of feed Weathers told him he would run more feed for him and at approximately 11 p.m., he asked Weathers again whether he was ready to load his feed. Weathers replied that he was running a different feed at the time He told Weathers that he needed to go, as he had been waiting since 8.30 p .m., and this would be his last load of the night. Weathers told Ledbetter it would be a few minutes until he could start on it. At this time, the truck was still on the scales and Weathers and Terry Hudgins, who was doing the loading of the trucks that night, ap- proached and Hudgins asked Ledbetter whether he was going to wait for his truck to be loaded. Ledbetter re- plied, "No, I'm going to go home, Terry." At this point, Weathers inquired, "You're not going to wait on the feed, Jim? Are you going to wait on it or not?" Ledbet- ter then answered, "No, I'm not Buddy [Weathers], I'm going to go home. I've waited for 2-1/2 hours, and I'm going to go to the house." He then pulled the truck off the scale and parked it, washed up in the restroom, turned in his trip tickets by leaving them on the clip under his name in the scale office, and left approximately 645 10 minutes later at 11 : 10 p.m. At the time he pulled off the scale, his truck had only six bins of feed on it which is less than the full truck load of eight bins. He did not wish to take the partial load as he regarded it as disad- vantageous to take a partially full truck on a delivery. The normal custom is to await a full load although he has on rare occasions delivered less than a full load at the instruction of Plant Manager Warren . On this occa- sion, no one instructed him to deliver the partial load He did not return to the mill that night . Ledbetter testi- fied that in the past , if he were assigned a load of feed to deliver at a time when he would not be able to complete the delivery and return to the mill by 4 a.m., the end of his shift, he was not to take that load but was to leave 'it for the drivers on the next shift and on those occasions, he would go home and not be called back prior to the end of the shift. On the next day, Ledbetter came to work early at 3 p.m. to complain to Mill Manager Warren concerning the delays of the prior night. When Ledbetter spoke to Warren, Warren notified him he was suspended indefi- nitely for walking off the job. Ledbetter protested that he had not walked off the job but had come to complain about his inability to work the prior night (as a result of the delays). Warren told Ledbetter that he had talked to Stanley Birdette, the supervisor of the shift, who had in- formed Warren that it was 4 or 5 a.m. before they were aware of Ledbetter's whereabouts. , , On the evening of his suspension , Ledbetter returned to the feed mill office and confronted Birdette and told him that he had witnesses to counter Birdette 's alleged statement to Warren that he had been unaware of Led- better's whereabouts until 4 or 5 a .m. At that time Hud- gins, who was then present , told Birdette that he had told him that Ledbetter was going home and that Bir- dette had known where Ledbetter was. At that point, Assistant Mill Manager White, who was also then present, stepped in front of Ledbetter and looked "stern- ly" at Hudgins who then said no more. On the day following his suspension, Ledbetter re- turned to ask Warren for his job Warren said no, that Ledbetter was still suspended indefinitely and that he would contact him later. Ledbetter subsequently filed for unemployment compensation and Warren denied that he had discharged Ledbetter. On the following Friday, Warren called Ledbetter by telephone to come to the office which he did. Warren informed Ledbetter that he had talked to his supervisor and it was their unanimous decision to discharge him although it was their impres- sion that he had walked off the job rather than been ter- minated. When pressed further by Ledbetter as, to whether he was discharged or not, Warren stated that he was discharged. On cross-examination, Ledbetter acknowledged that his affidavit given to a Board agent concerning this case had not included an alleged statement by White that Re- spondent would do whatever it had to in order to defeat the Union's campaign to which he testified at the hear- ing. He contended that he had recalled it after giving the affidavit. He admitted on cross-examination that he was aggravated when he left on the final night of his employ- 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment, and that he told Weathers that he would not wait for the feed to be loaded any longer since Weathers had no idea when it would be ready. He testified that White had called him at home on five or six occasions in the past when he had gone home during his shift to await the repair of the mill or a truck On each of these occa- sions, he had told White he was going to go home and White had indicated his approval. Ledbetter also testified that Mill Supervisor Stanley Birdette had on an average of once or twice a week called him as well as other truckdrivers at a local restaurant (where they had been waiting because of a delay) to return to the mill to make their deliveries and that on only half of those occasions had he previously told Birdette where he was going. Ledbetter further testified that he had on at least two prior occasions gone home while waiting for a truck to be ready without checking with White and had returned to work if White called him as White knew where he was as his home phone number was on the dispatch board in the scale office. Denny Erwin, a truckdriver employed on the day shift, testified as follows- Delays have occurred several times wherein there were problems with the mill or trucks and he was required to wait . When this occurs, he usually goes to a local restaurant to eat. There has never been a procedure explained to him by Respondent wherein he has to tell anyone where he is going but he does so If Warren , the mill manager, is there at the time he learns of the delay, he tells Warren he is going. Oth- erwise, he tells whoever is in the scale room , including nonsupervisory employees . He has left without telling a supervisor more than once. He may know when to return if he has been told when the feed mill will be ready. The secretary has also called him at the restau- rant. He has never left without telling a supervisor and then failed to return . He lives 32 miles from the mill. Michael Russell, a feed mixer, testified as follows: On November 7, the night of Ledbetter 's termination, he walked into the computer room. Randy White, Stanley Birdette, and Buddy Weathers were all in the room at the time at the start of his shift shortly after 11 p.m Hampton and White were working on the pellet mill so he stood beside Birdette Terry Hudgins (a loader) opened the door, stepped in, and "said that Jim Ledbet- ter was going home." No -one said anything . He had no trouble hearing Hudgins. He was standing beside Bir- dette at the time. The feed that Ledbetter was to deliver was ready shortly after midnight and he informed Bir- dette it was ready Ledbetter did not return that night A number of days later, Russell discussed the dis- charge of Ledbetter with Birdette at which time he told Birdette, "Stanley, between me and you, they fired Jim because of the union , didn't they?" to which Birdette re- plied, "I can't say that they fired him over the union The only thing that I can tell you, the only thing I've ever heard Jim say was union, union , union " He has also asked Birdette on several other occasions as to why Led- better was discharged and that Birdette would reply "that he couldn't tell me why they fired him. He recalled occasions when the other drivers had left the mill with- out telling a supervisor when they were leaving. Specifi- cally, he recalled an incident wherein truckdriver Char- lie Spivey was assigned by Supervisor Birdette to load his truck at the end of his shift for the driver on the next shift and Spivey left without doing so. This incident oc- curred 3 weeks to a month prior to the hearing Birdette was upset with Spivey's failure to load the truck and re- marked that Respondent should fire Spivey because if Respondent did not, it would help Ledbetter's case, and if Respondent did, it would hurt Ledbetter 's case. Spivey was not discharged . Russell recalled another occasion 3 or 4 months prior to the hearing when Spivey left while Russell was in the middle of running feed and failed to load it on his truck, thus risking the feed becoming clogged in the mill. Russell recalled a further conversation with Birdette concerning Ledbetter's discharge during which Russell remarked to Birdette , "Stanley [Birdette], they run Jim [Ledbetter] off because of the union," to which Birdette replied, . . . the Company [Respondent] lead [led] Jim to the bedroom, Jim pulled his pants down so the Company put it to him. Russell then inquired further, "Well, you're saying the company is mad at Jim." Birdette replied , "Yes. They're mad at him . He was for the union " On cross-examination Russell was questioned concern- ing a meeting held by Respondent 's representatives prior to the election . He testified that it was at this meeting that Respondent's representative Perkins told him that Respondent was not "mad at Jim [Ledbetter]." He also testified that before Buddy Weathers (the mixer on the day shift whom Russell replaces) left, he told him that he had Ledbetter's load of feed ready to run and that Rus- sell told Birdette shortly after midnight that Ledbetter's feed was ready He acknowledged that he had talked to Ledbetter outside (previously) and that Ledbetter had told him he was going home but that Russell did not relate this to Birdette. Dennis Parker, a mill worker who unloads feed at Re- spondent's mill on the 11 p m . to 7 a m. shift, testified as follows. In 1983, truckdriver Charlie Spivey left the mill without telling his supervisor, Birdette, near the end of the shift after Spivey was loading feed and was told it would be 15 minutes . Rather than wait, Spivey left Bir- dette went to get Spivey but "came back mad" and told Parker he was going to talk to Warren and inform him of this Parker also recalled another incident 3 or 4 months prior to the hearing when Spivey was told to load his truck on a Friday night near the end of the shift in order that it would be ready for the driver on Monday morning. Spivey initially refused and then said, "okay" and then left the premises but did not load the truck . Birdette was "mad" and Birdette and Parker later went to Warren the following Tuesday morning and ex- plained what had happened Warren told Parker not to worry as long as a supervisor knew what was occurring Birdette informed Warren that Spivey had left the job without telling him (Birdette). Warren stated that Spivey hated to load and that Spivey was on his own time when he left and was not getting paid for it. A "couple of days later," Birdette said that "they [Respondent] should fire SPRING VALLEY FARMS him [Spivey] It wouldn't look good on Jim's [Ledbetter] case if they keep him It would help Jim's case." He came in on the tail end of a conversation between Rus- sell and Birdette and heard Birdette say, "The only thing I heard him talk about was union, union." It happens fre- quently that a truckdriver leaves without loading his truck Respondent called on behalf of its case as witnesses Jerry Warren, Randy White, Randy Hampton, Terry Hudgins, A Stanley Birdette, and Edward Weathers. Warren testified as follows. He is the manager of Re- spondent's Oxford feed mill, a position he has held for 7 years. In November 1983, Randy White was the assistant feed mill manager Stanley Birdette was a supervisor on the third shift, and Randy Hampton was the supervisor on the second shift There are two shifts for drivers, 4 a.m to 4 p.m. and 4 p.m. to 4 a m. Drivers are paid by the ton at either a shorthaul rate (within a 50-mile radius of the mill) or a longhaul rate (outside of the 50-mile radius of the mill). The tonnage and the hours required to deliver the feed are utilized to arrive at an hourly rate which is the rate the drivers are paid. The hourly rate is used to compute overtime. Drivers are required to clock in and are allowed an hour for lunch which is subtracted from the total hours All of the time the drivers are on the clock and ready to deliver feed is included in the cal- culation of hourly pay. Thus, drivers are paid for waiting time as well as actual driving and loading time. Warren denied having made the statement attributed to him by Parker that Spivey did not like not getting paid when he was working with reference to his refusal to load the feed on his truck on a Friday night for an- other driver on Monday morning. He called Spivey into his office the following Monday morning after being ap- prised of this by Parker and Birdette. He then told Spivey that there had not been a clear policy for drivers to load the truck on Friday night for the drivers on the Monday shift but instructed him to do so in the future and told Spivey that he was going to establish a written policy requiring this and that disciplinary action would be taken if he failed to do so again. With respect to the discharge of Ledbetter, Warren re- ceived a telephone call at 1 to 1.15 the morning of No- vember 8, 1983, from Hampton informing him that a truck load of feed had not been delivered by Ledbetter. When he arrived at work the next morning, he apprised Floyd Maples (Respondent's director of human re- sources) of the situation. He also talked to Birdette before he left and to Hampton when he reported in to work He contends that at this time he had no knowl- edge of any union activities on the part of Ledbetter with the exception of his appearance at the representa- tion hearing. Birdette informed Warren that Ledbetter had left the loaded truck that night and that Birdette had discovered this at I to 1:15 a.m. and had called Hampton. Hampton had then called Warren. That afternoon Ledbetter came into his office and Warren asked him why he had "left the load " Ledbetter replied that he had "waited on feed two times that night; he wasn't paid to wait on feed; he was paid by production and he left the load " Ledbetter told him he had told Terry (Hudgins) he was going 647 home. Warren told Ledbetter he would investigate fur- ther and Ledbetter could get back in touch with him on Friday Warren then proceeded to talk to Hudgins, Weathers, and Birdette Warren has the authority to hire and discharge em- ployees at the mill and decided to discharge Ledbetter after his investigation of the matter after receiving the in- dividual versions of what occurred as written up by Weathers, Hudgins, Birdette, and Hampton (R. Exhs. 6- 9). He determined from this investigation that Ledbetter had returned to the mill after experiencing difficulty with his first load of feed, that he "ultimately got a truck available for his second load and he didn't have enough feed for it at that particular time and then left and went home." Ledbetter did not tell any supervisor he was going home and did not return to deliver the load of feed. Only one other employee has done this in the past. This occurred about 6-1/2 years previously, and the em- ployee was discharged. On Friday morning following November 8, 1983, he met with Ledbetter in his office and discharged him telling him that "it was my decision that I couldn't have drivers leaving and not carrying out their assignments at will, and that as far as I was con- cerned, he'd quit his job, and I didn't have a job for him." At this time Ledbetter contended Ledbetter "had done it before and felt that I was being unfair and he wanted to know if I had considered him quit or terminat- ed and I told him, well, it didn't make any difference, I Just didn't have a job for him." Warren acknowledged that the truckdrivers are not on a rigid schedule. They are given an hour for lunch and take it when it fits into their schedule. If their loads are available on a timely basis, they can take it at their option. If delays are experienced, they normally take lunch at the time of the delay Drivers do not necessarily tell anyone when they leave for lunch. Drivers are to stay on the premises while awaiting their loads unless at lunch or unless given permission. He has given Ledbetter permission in the past to leave and, on the night in ques- tion, he had told Ledbetter to return at 5 p m after Led- better had reported in (at 4 p.m) On another occasion, Ledbetter had been given permission by Warren to take an entire shift off He acknowledged that he had ,taken no disciplinary action against Spivey because of the inci- dent involving his refusal to load the truck as reported by Birdette and contended he was unaware of the prior incident of Spivey's refusal to load the truck. He ac- knowledged he is normally not present during the major portion of the 4 p m. to 4 a.m. shift and is not aware of each time someone leaves the plant The load that Led- better did not deliver on November 8 was delivered the next morning Warren testified further that on several occasions in the past, Ledbetter has reported to work and either his feed or the truck were not ready and has said, "Hey look, I'm going to go back home and you [Warren] call me or have Randy [Hampton] call me when my truck's ready." This posed no problem to Warren, and Ledbetter would be called at home and would return in 15 minutes On this occasion, the night of November 8, 1983, Led- better did not notify a member of management or super- 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vision (Hampton or Birdette). It has been reported to him that there have been occasions when drivers have left and informed the nearest nonsupervisory employee where they were going and these drivers were not disci- plined for doing so. The offense for which Ledbetter was discharged was "One, he left without permission from that [the] two management people. Two, he failed to carry out his work assignment when the load was ready and available to him to do so." In the prior case wherein an employee was discharged 6-1/2 years ago, he left although the load was ready unlike the case involv- ing Ledbetter wherein the load was not ready In Led- better's case, the feed was ready within 30 minutes from the time Ledbetter left. He is unaware whether his super- visor called Ledbetter at home on the night in question. Randy White testified as follows: He is employed as Respondent's assistant mill manager, a position he had held for about a month at the time of the hearing. In No- vember 1983, he was a shift supervisor He denied having had a conversation with Ledbetter in which he told Ledbetter that Respondent had shut down half of its Cullman plant because of the Union or that it had shut down its Blountsville plant because of the Union or that employees from either plant had been laid off because of the Union. On one occasion, Ledbetter asked him what he knew about the closing of the Cullman plant and White told him "it was due to the cost involved in making feed at either plant which decided who would get the most gross." During this conversation, neither he nor Ledbetter mentioned the Union. On another occa- sion, he was asked if the Blountsville plant had been shut down "because of voting the Union in." He does not recall whether Ledbetter or someone else asked him this He responded that he had "no idea what goes on at Blountsville." He contends he had no knowledge of Led- better's involvement with the Union Randy Hampton, who is currently employed as a man- ager of another feed mill but who was formerly Re- spondent's assistant manager of its Oxford, Alabama feed mill, testified as follows: He was working on the night of November 7, 1983, as the mill was not operating. Led- better called in that night and told him that his truck was not operating and Hampton told him to bring it back to the mill They proceeded to give him another truck but the lights were not working . Hampton called in a me- chanic to fix the lights and Ledbetter went to eat after asking and receiving permission from Hampton to do so. Hampton then proceeded to work on the mill He was present in the computer room with Weathers and Bir- dette and possibly Russell when Hudgins came in and "said that Jim [Ledbetter] had got 6-1/2 bins [of feed] and he was going on " Hampton assumed that Ledbetter was going to deliver the six bins (a partial) load to the farm He later saw that the truck on which the lights had been repaired was still on the premises and inquired of Russell and Birdette where Ledbetter was, and they told him•that he had gone in another truck . He went home at 11 to 11:30 p.m. that night and at 12 to 12.30 a.m, he received a telephone call from Birdette who informed him that Ledbetter had gone home On cross-examina- tion, he acknowledged that Hudgins had also told them that Ledbetter had not wanted to wait. He did not in- struct Birdette to contact Ledbetter at home. He has never known a driver to leave without permission and then fail to return to deliver the load. Nor is he aware of any occasions on which an employee notified another employee rather than a supervisor that he was going and was then called to return. Terry Hudgins testified as follows- He is employed as a loader on the second shift On the night in question, he loaded Ledbetter's truck with 6-1/2 bins of feed, and the bins ran out of feed before the truck could be fully loaded. Ledbetter said if it weighed over a certain amount, he would take it out. The load was weighed and it did not reach that amount and Ledbetter "told me he wasn't going to take it out . He was going home." Led- better then pulled off the scales and parked his truck, and Hudgins walked into the mix (computer) room and told Weathers that Ledbetter was going home Hudgins does not recall who else was present in the room with Weathers at the time Prior to this, no driver had told Hudgins rather than a supervisor that they were going home or to a restaurant. Arnold Stanley Birdette testified as follows: He is em- ployed as a shift supervisor at Respondent 's Oxford mill and works from 10 p.m. to 7 a.m He was aware of a union campaign on Respondent's premises in October and November 1983. Shortly after Ledbetter's discharge, he had a conversation with Russell wherein Russell told him that Ledbetter was fired because of the Union. He told Russell he did not believe it. On two or three other occasions, Russell has told him Ledbetter was fired be- cause of the Union. He has never told Russell that all he had heard Ledbetter talk about was union , union, union Russell told him that, "Well, Jim [Ledbetter], bent over and they put it to him " He had several conversations with Russell during the union campaign wherein Russell told him that he and Ledbetter were "going to make sure it [the Respondent ] went union." He would reply that he did not know and, "just have to wait and see." Birdette testified that he was on duty as a supervisor the night in question The mill was down and the electri- cians were there attempting to get it back in operation. He talked briefly to Ledbetter and told him his feed was ready, and Ledbetter said he was going to load it. There were several people in the "batch [computer] room" checking something with panels (the electrician, Hamp- ton, Russell, and Weathers) and Terry Hudgins opened the door and said, "Well , Jim lacks bin a piece but he's gone." He assumed Ledbetter was tired of waiting and would haul what he had. Drivers have done this "a few times" in the past. Around 12 a.m., Charlie (Spivey) and Birdette walked to the office , and Spivey inquired whether Ledbetter had left the load. Birdette replied in the negative and then looked at the tickets and said, "I don't know. Let me look out and see if his car's in the parking lot " He then checked, saw Ledbetter's car was gone, and called Hampton and reported it to him about 12:15 a.m He acknowledges that at 12:15 a .m., he was aware that Ledbetter was home but did not call him at home. Edward Weathers, a feed mixer employed by Re- spondent at its Oxford mill, testified as follows: On the SPRING VALLEY FARMS night in question, he was told by Ledbetter that his truck was loaded with 6-1/2 bins of feed and Weathers in- quired whether Ledbetter wanted him to run two more bins so he could get loaded Ledbetter asked him how long it would take and Weathers told him, "by the time he got under the bin it'd be running." Weathers does not recall Ledbetter replying to this. Weathers then "went back over to the mill and programmed two mixes into the computer " and started to pull it up and at that time, Hudgins came in and said Ledbetter "was gone " Weath- ers contends that he assumed Ledbetter "had gone with a short load " He does not remember Ledbetter telling him that he was going home. He did not hear Ledbetter say he was going home. Analysis A The Alleged 8(a)(1) Threats of Layoffs and Closure of Facilities I credit the testimony of Ledbetter that supervisor White made the statements that Respondent's Blounts- ville plant had been closed down and over half of its em- ployees at its Cullman plant had been laid off because of their support of the Union I find Ledbetter 's testimony in this regard to be specific and convincing whereas White's denials thereof were vague and unconvincing. I do not , however, credit Ledbetter 's testimony elicited by the General Counsel 's additional questioning of him that White stated Respondent would do whatever it took to defeat the Union As contended by counsel for Respond- ent, this statement was not contained in the affidavit of Ledbetter given to the Board agent and I reject it as an unreliable embellishment of what White said on this oc- casion I thus find that Respondent violated Section 8(a)(1) of the Act by the issuance of threats by its admit- ted Supervisor Randy White to its employee James Led- better that Respondent would close its plant and/or lay off its employees if they chose union representation B. The Discharge of Ledbetter It is undisputed that Respondent was aware that Led- better had appeared at the representation hearing on behalf of the Union although he was not called to testify Moreover, I find that Respondent had knowledge of Ledbetter's activities on the premises by reason of the admitted knowledge of Supervisor Birdette of Ledbet- ter's and Russell's activities and support of the Union as testified to by Russell and Birdette and by Ledbetter's in- quiry of White concerning the outcome of the union campaign. I further find that Respondent' s animus toward union activities has been demonstrated by the credited testimony of Ledbetter of White's comments concerning what had occurred as a result of the union activities at other of Respondent's facilities I further credit Russell's version of his conversation with Birdette as supported in part by employee Hudgins I found their testimony to be specific and convincing and have also considered the likelihood of the version they gave of these conversations in view of the current employment of Russell and Parker by Respondent, and I consider it unlikely that they would fabricate these conversations under these circumstances. I found Birdette's version of 649 the conversation to the effect that Russell made the statements he attributed to Birdette to be unconvincing However, in reviewing all of the testimony including the admitted liberal practices with respect to the coming and going of truckdrivers during delay time occasioned by operating problems at the mill or by truck repairs, I find that the incident involving Ledbetter stands on a dif- ferent footing As pointed out by Respondent in its brief, this is not an incident wherein Ledbetter left with per- mission of a supervisor or without permission of a super- visor to wait out a delay but returned to deliver the load, both of which circumstances Respondent has concededly tolerated in the past. Rather, this is an instance wherein Ledbetter left because he was aggravated with the delays he had encountered without telling a member of manage- ment that he was leaving at 11.30 p in and did not return for the remainder of his shift for a period of more than 4 hours to deliver a load which could have been ready to deliver within a half hour of the time he left. I have carefully reviewed the testimony of Hampton, Weathers, Birdette, and Hudgins concerning the circum- stances of Ledbetter's departure from the premises on the evening in question and their awareness of what had occurred and found their testimony to be credible. Thus, I credit Hudgins that he told Hampton, Weathers, and Birdette that Ledbetter was going home, but I also credit the testimony of Hampton, Weathers, and Birdette that they understood Hudgins to have said that Ledbetter had gone on, connotating that he had decided to deliver a partial load of feed rather than wait for a full load as drivers have occasionally done in the past. I do not find anything remarkable in Birdette's handling of the matter by calling Hampton who in turn called Warren inform- ing him that Ledbetter had left work without delivering the load of feed. Ledbetter's conduct in leaving and not informing a supervisor and in not returning for the re- mainder of his shift to deliver the load was an insubordi- nate act which left him subject to disciplinary action. There was no evidence presented that another employee had engaged in similar conduct without discipline. Rather, in the only prior similar case thereof which oc- curred wherein a driver left his load which was ready at the time' and went home for the remainder of the shift, the driver was discharged. Although in Ledbetter's case, the load was not ready, it was little short of a full load, and according to the testimony of Weathers which I credit he told Ledbetter he could be fully loaded as soon as he pulled his truck under the bin. Warren's method of investigating the matter by asking each of the participants to write out their versions of what had occurred in their own words does not appear contrived as contended by the General Counsel but rather appears to have been a normal thorough investiga- tion to ascertain the facts such as any reasonable employ- er might have made Mac Tools, 271 NLRB 254 (1984). Nor do I find that Spivey's refusal to load a truck on h:s own time for a driver on a subsequent shift to be on the same footing as Ledbetter's actions, and I credit War- ren's explanation that there had been confusion about this prior to this time and that he issued instructions to 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Spivey to do it in the future or that disciplinary action would be taken. I also have considered the opinions of Supervisor Bir- dette as expressed to Russell that Ledbetter had given Respondent an opportunity to take action against him, and that Respondent had used it. I do not regard this as probative evidence that Respondent actually discharged Ledbetter because of his union activities. Nor do I regard Birdette's statement that Spivey ought to be ter- minated in order to bolster Respondent' s case against Ledbetter to be determinative of the issues in this case. It is well settled that an employee may not insulate himself from discharge for misconduct by engaging in concerted activities protected by the Act Further, a dis- charge of an employee for a legitimate reason is not made unlawful because Respondent welcomed the op- portunity to do so because of his engagement in concert- ed activities. Klate Holt Co, 161 NLRB 1602, 1612 (1966). In the instant case, the circumstances leading to the termination of Ledbetter were sufficient to justify his termination Thus, I find that the General Counsel has failed to prove a prima facie case that his discharge was motivated by unlawful reasons proscribed by the Act. Assuming arguendo that the General Counsel did prove a prima facie case of a violation of Section 8(a)(3) and (1) of the Act by Respondent's discharge of Ledbetter, I find that the Employer has met its burden of proving that Ledbetter would have been discharged even in the absence of his union activities, Wright Line, 251 NLRB 1083 (1980), enfd 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U S. 989 (1982); NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), Mac Tools, supra. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE The unfair labor practice of Respondent as found in section III in connection with Respondent's operations as found in section 1, has a close, intimate, and substantial relation to trade, traffic, and commerce among the sever- al States and tends to lead to labor disputes burdening and obstructing the flow of commerce. CONCLUSIONS OF LAW THE REMEDY Having found that Respondent has violated Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and post the appropriate notice. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed' ORDER The Respondent, Spring Valley Farms, Inc., Oxford, Alabama, its officers, agents, successors, and assigns, shall 1. Cease and desist from unlawfully interrogating its employees concerning their union activities in violation of Section 8(a)(1) of the Act. 2. Sign and post copies of the attached notice marked "Appendix"2 immediately upon receipt thereof, in con- spicuous places at its facilities in Oxford, Alabama, to which its employees report. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. 3. Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 4. The complaint is dismissed with respect to the alle- gations of a violation of Section 8(a)(3) and (1) of the Act by Respondent's discharge of James Ledbetter. I If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings , conclusions, and recommended Order shall , as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 2 If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 1. Respondent Spring Valley Farms, Inc. is an employ- er within the meaning of Section 2(2), (6), and (7) of the Act. 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3. Respondent did not violate Section 8(a)(3) and (1) of the Act by its discharge of James Ledbetter. 4 Respondent violated Section 8(a)(1) of the Act by the issuance of a threat of plant closure and layoff to its employee James Ledbetter by its Supervisor Randy White. 5 The aforesaid unfair labor practice has a close, inti- mate, and substantial effect on the free flow of com- merce within the meaning of Section 2(2), (6), and (7) of the Act The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice The National Labor Relations Act gives all employees these rights. To engage in self organization To form, join, or assist unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things SPRING VALLEY FARMS 651 WE WILL NOT unlawfully issue threats to our employ- WE WILL NOT in any like or related manner interfere ees of plant closure and layoff because of their support with, restrain, or coerce our employees in the exercise of of the Union or their engagement in concerted activity. rights guaranteed them by Section 7 of the Act. SPRING VALLEY FARMS, INC.