Tom'S Foods, Inc.

TOM'S FOODS Tom's Foods,, Inc. and Bakery, Confectionery & To- bacco Workers International Union , AFL-CIO- CLC. Cases 10-CA-22037 and 10-CA-22122-1. 16 December 1987 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 11 August 1987 Administrative Law Judge J. Pargen Robertson issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,[ and conclusions, to modify the remedy,2 and to adopt the recommended Order.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Tom's Foods, Inc., Columbus, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except the attached notice is substituted for that of the administrative law judge. ' 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 We agree with the judge's finding that Supervisor William Gafford's remarks to employees George Starnes and Donald Robinette constitute interrogations into the union activities of the employees, in violation of Sec 8(a)(1) In light of this conclusion, we find it unnecessary to pass on the judge's conclusion that Supervisors Ballard and Whaley unlawfully interrogated employees, because the finding of these additional violations merely would be cumulative and would not materially affect our Order Member Babson applying Rossmore House, 267 NLRB 1176 (1984),' agrees with the judge's findings that Supervisors Ballard and Whaley un- lawfully interrogated employees We agree with the judge that the Respondent solicited an employee to report on a union meeting in violation of Sec 8(a)(1) In doing so we note that Supervisor Gafford who made the solicitation, also unlawfully interrogated employees and threatened employees with discharge in retal- iation for their union activity In this context, Gafford's asking an em- ployee to let him know what was said at a union meeting clearly consti- tuted an unlawful solicitation to report on union activities Member Babson in concluding that Supervisor Gafford violated Sec 8(a)(1) by soliciting employee Regan to report on a union meeting, relies, as did the judge, solely on Gafford's remark itself 2 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 3 We have modified the judge's notice to conform with his recom- mended order APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 645 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT interrogate our employees about their activities on behalf of Bakery, Confectionery & Tobacco Workers International Union, AFL- CIO-CLC or any other labor organization. WE WILL NOT threaten our employees with dis- charge because they engage in union or protected activities. WE WILL NOT solicit our employees to report back to management, the events in union meetings. WE WILL NOT engage in surveillance of our em-. ployees' union meetings. WE WILL NOT terminate or suspend our employ- ees because they engage in union activities. WE WILL NOT in-any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer immediate and full reinstatement to Albert Reynolds to his former position or, if that position.no longer exists, to a substantially equiva- lent position without prejudice to his seniority or other rights and privileges. WE WILL make Albert Reynolds whole for any loss of earnings he may have suffered by reason of our discrimination against him, with interest. WE WILL remove from our files any reference to the unlawful discharge and notify Albert Reynolds in writing that this has been done and that the dis- charge will not be used against him in any way. Tom's FOOD, INC. Gaye Nell Hymon, Esq, for the General Counsel Beatrice C. Hubbard, Esq., of Nashville, Tennessee, and Robert O. Sands, Esq. (Ogletree, Deakins, Nash, Smoak & Steward), of Atlanta, Georgia, for the Respondent. 287 NLRB No. 66 646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE' J. PARGEN ROBERTSON, Administrative Law Judge. This case was heard in Columbus, Georgia, on 22 and 23 April 1987. The complaint is based on the charge in Case 10-CA-22037 filed on 25 September 1986 and amended on 31 October 1986 and on the' charge in Case 10-CA- 22122-2 that was filed on 31 October 1987. An order consolidating cases, amended consolidated complaint, and notice of hearing issued on 21 November 1986. The complaint alleged that Respondent engaged in conduct violative of Section 8(a)(1) and (3) of the Act. FINDINGS OF FACT 1. JURISDICTION Respondent, in its answer to the complaint, admitted all the commerce allegations, that it is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Union, Bakery, Confec- tionery & Tobacco Workers International Union, AFL- CIO-CLC, is and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The 8(a)(1) Allegations 1. Surveillance of a union meeting Employee Ronnie Mitchell testified regarding a l2 Oc- tober 1986 union meeting in Columbus A. I' was at the meeting. I was on the north end-west end of the building, • looking out of the window. I noticed a supervisor's truck was down there stopped at the light. He went north on Broad Street, and he turned south on 9th Street and stopped in front of where we was having the meet- ing at. Q. Who was the supervisor you saw? A. Roy Gresham. Q. Okay, go ahead A. And I took some pictures from upstairs. I went downstairs, Tom Walls and I. Tom hollered just as we began to come out the door, and I come up with the camera and he took off. So, I took sev- eral pictures of him driving off down the street. Mitchell testified that he recognized Roy Gresham as the driver of the truck. Mitchell testified that Gresham made two trips around the union hall Tom Walls testified that he saw Roy Gresham circle the block while Mitchell was taking pictures of Gresh- am. Roy Gresham admitted that he drove by the union meeting on 12 October 1986. However, Gresham testi- fied that he was following his regular route to his hunt- ing camp and, even though he knew the union meeting was planned, he thought the meeting had finished before he had arrived. 'Gresham denied that he circled the block Gresham also denied that he stopped in front of the union hall. Conclusions Pictures taken by Ronnie Mitchell were received in evidence Those photographs support Walls' and Mitch- ell's testimony. Mitchell testified that he first took several pictures from the second floor of the union hall. Pictures identi- fied as 1-A, 1-F, 1-B, and 1-E appeared to have been taken from the second floor in that sequence. Subse- quently, as Gresham circled back in front of the hall, Mitchell ran down with Tom Walls and took several pic- tures at street level. Pictures 1-C, 1-G, 1-H, and 1-D ap- peared to have been taken in sequence at street level. An examination. of the pictures showed that Gresham's truck was in approximately the same relative positions in photographs 1-B and 1-G and photographs 1-E and 1-H. Gresham denied stopping in front of the hall. Since his truck appears in the same relative position in 'photos 1-B and 1-E, which were taken from the second floor, as in 1-G and 1-H which were taken after Mitchell finished his photographs from the second floor, then ran downstairs to the street, it is apparent that Gresham's truck passed the same points in front of the union hall on at least two occasions. Therefore, I discredit Gresham's testimony that he did not circle the block. I credit the testimony of Mitchell and Walls. Their testimony showed that Gresham en- gaged in surveillance of the union meeting. General Elec- tric Co., 255 NLRB 673 (1981). 2. Interrogations a. Supervisor Bobby Ballard Former employee John Andujar testified about a meet- ing he had with Bobby Ballard, 'a supervisor in the candy department- He brought me into the office. We had had a meeting about a week previous with the company president, a couple of other people, they were trying to tell us about production, stuff like that. And he asked me-he told me he brought me in there to ask me what my opinion was on the meet- ing and stuff like that. And we really didn't talk about it. He asked me a question and then he never let me carry through with it Then he started asking me did I hear about anything going on in the plant. I said, "What are you talking about?" He said, "I dust wanted to know have you heard any rumors going on in the plant?" I said, "Really, I don't know what you are talking about. What do you want to know?" I said, "Do you want to know about the union?" He said, "Oh, is there something going on about the union?" I said, "Yeah, I suppose that's what you brought me up here for." He said, "Well, I want to tell you right now I didn't bring you in here to talk about the union or nothing like that " But that' was' what the whole conversation went on, the whole time I was in there, he told me TOM'S FOODS that the union was no good, it brought around crime and stuff like that and it brought down peo- ple's wages, it got people in trouble, and stuff like that. And, you know, I just told him that I wasn't really involved in it or anything. He asked me where did I hear it from. And I can't recall the lady's name, but I told him I knew that she had talked to them about two days before I went up to the office, and I told him I heard it from her, the same person that he heard it from. And he said, "Well you don't really want a union here, do you?" I'said, "Well, you know, it's what the people want. I'm not but one person. But my opinion is I think it would be all right, you know, if everybody wants it." And he said, "You know, the union is no good, and stuff like that " Then after we talked about it for a little while, he said, "Now, I want you to know I didn't bring you up here to talk about the union or nothig like that." But, you know, basically the whole conversation was about the union. Bobby Ballard did not testify. The above testimony was unrebutted and is credited. Andujar's testimony showed that Ballard subtly brought the conversation around to the point when the Union was discussed. Moreover, it is clear that once Andujar raised the issue of union activity, Ballard proceeded to question Andujar in a manner designed to withdraw in- formation about the employees' union activities. Andujar admitted that he told Leadman Charles Horne that he favored the Union. However, there is no evidence beyond Andujar's comments to Horne that would indicate that Andujar was an open and active union supporter. Therefore this case must be destin- guished from Rossmore House, 269 NLRB 1176 (1984) I find that Ballard interrogated employee Andujar in viola- tion of Section 8(a)(1) Robins Federal Credit Union, 273 NLRB 1352 (1985). b. Brady Whaley Current employee Jimmy Milner testified to a conver- sation he had with Personnel Manager Brady Whaley on 16 September 1986: Well, it started around September the 9th when my father died. So, we had his funeral on Sunday, September the 14th; and I went down to the plant to thank the people for sending flowers and cards and everything. So, I took a card down there to thank them And on my way out, I met Brady, and he asked me was there anything that he could do for me So, I told him, I said, "Well, you know I'm not working at the time," because I was out hurt or had an injury down there. And so, he told me to come back Tuesday, which was September the 16th So, I went back down there that morning around 10:00. So, he said "Well, Jimmy, here's a check for you for a hundred dollars." And just before he handed me that check, he told me-he asked me, he said, "Jimmy, I heard that y'all had a union meeting down there at your father's funeral." 647 And I said, "Brady, what are you talking about?" He said, "I heard that y'all had a union meeting down there at your father's funeral." He said, "It might not have been exactly at your father's funer- al, but I heard that y'all had a union meeting down there." And I told him, I said, "I don't know what you are talking about," You know, just like that. And then I asked him why he was picking on me, you know. And that was mostly about what was said. Whaley's testimony concerning his conversation with Milner was as follows: A. And we were talking about his father. And during the conversation, Jimmy brought up the fact that he and his family didn't have money to buy groceries. Jimmy had been going through a hard time because of an accident he had at Tom's, and at the time he was not working He was on Worker's Comp, that's what he was receiving. So, I asked Jimmy did he need any help, and he said he did. So, I went out and spoke to the clerk in the office and got with accounting and I worked out a deal where we could provide Jimmy with a donation from Tom's. That process took probably about an hour to get the check. During that hour stay, Jimmy stayed in my office and, you, know, we talked. Q. Okay. And did you have a conversation spe- cifically about his father's funeral? A. Oh, yes, we did I told Jimmy that I had heard in the plant that the union used his father's funeral as a mechanism to have a meeting; and what I told Jimmy was, you know, I thought that was very disrespectful toward the memory of his father, and that was it. I didn't ask him any question. I didn't ask him did he attend the meeting or who at- tended the meeting or anything. To an extent Whaley's testimony corroborated that of Jimmy Milner. Even though Whaley testified that he did not ask Milner questions regarding the union meeting his comments to Milner obviously placed Milner in a posi- tion of having to respond. I found Milner to be more re- liable of the two. To the extent their testimony conflicts, I credit Milner. If Milner had refused to respond to Whaley's comments his silence would have suggested that he cooperated with the Union in holding a meeting at his father's funeral I find that Whaley's comments to Milner constituted interrogation in violation -of Section 8(a)(1) c. William Gafford Current employee George Starnes testified to two con- versations he had with Supervisor William Gafford in September 1986: He just wanted to know how the union was going and how the meeting went out at Flat Rock Park. He said he had heard we had been served hot dogs and hamburgers. Q. What if anything did you say to him? 648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A I just told him that I was trying to stay away from it. I Q. When did the next discussion take place? A. It was pretty close to the last of September. Q. And again, who was the supervisor? A. William Gafford. Q. Where did that discussion take place? A. Out on the floor in front of his office. Q. Was anybody else present during the conver- sation? A. No. Q. If you would, tell us what you recall being. said by Mr.-Gafford during that conversation. A He said the company knew all the people that was doing all the pushing for the union and they had better hope it goes through or all of them, would be gotten rid of, one of two at a time, said it may take a year or two. Gafford admitted that he talked to all the bakery em- ployees about the Union. He did not deny the testimony of George Starnes. I credit Starnes' testimony. Gafford's comments to Starnes constituted interroga- tion into the union activities of the employees I find that those comments constituted a violation of Section 8(a)(1). d. William Gafford, 8 September and mid-September 1986 Current employee Donald Robinette testified to two conversations he had with Supervisor William Gafford., In direct and on cross-examination Robinette placed those meetings at 8 September and mid-September 1986: , A. He asked me if I went to the union meeting; I told him I did. And he asked me if they served us anything to eat. Q. When did the next discussion take place? A. Oh, about the middle of September, the best I can remember Q. And who was the supervisor involved in that discussion? A. William Gafford. Q Where did that discussion take place? A. Mixing room Q. Again,, was anybody else present? A. There was other people, around but they couldn't hear us talking. Q. What do you recall being said?' A., He asked me-he asked me-well, 'he ex- plained something to me one time about this man he had known that worked for the union in about- ,something about their retirement plan. I forgot ex- actly what it was Q. Do you recall in this particular discussion if there was any mention of jobs made? A Well, he said that if anyone-if the,union did go in, some people would lose their jobs. William Gafford admitted talking to all the bakery em- ployees about the Union. However, Gafford testified that he did not specifically recall his conversations with Donald Robinette. In view of the entire record and especially Gafford's testimony that he talked to all the bakery employees about the Union, I credit the testimony of Donald Ro- binette concerning his conversation with Gafford.' Robin- ette's testimony established that he was illegally interro- gated by Gafford in violation of Section 8(a)(1). 3 Threat of discharge' Albert Reynolds placed a conversation between he and William Gafford in mid-September 1986. The Gener- al Counsel alleged that a portion of that conversation in- cludes the threat of discharge by William Gafford. Those comments, as testified to by Albert Reynolds are as fol- lows: _ And I told him, I said , "Well, we've got the union trying to come in here, same type they've got a Sunshine, and they haven't been on strike in years - out there." I said, "I didn't think this one will happen." And he told me, he said, "Well, you know if anybody finds out you are for the union you are automatically, fired." I told him, "Yeah, I know that." William Gafford testified that Albert Reynolds never told him he was for the Union. However, Gafford did not specifically deny Reynolds' version of their mid-Sep- tember conversation. As shown below I credit Reynolds' testimony. I find that Gafford's comments to Reynolds constituted threats of discharge for engaging in union ac- tivity in violation of Section 8(a)(1) 4. Soliciting employees to report on union meetings Current employee Ronnie Regan testified, that in late September 1986 he told William Gafford that he was going to a,union, meeting. Gafford replied, "Well, let me know what.they say " William Gafford testified that he did not recall this specific conversation with Ronnie Regan about the Union. However, as,shown above, Gafford admitted that, he talked to,all the employees about the Union. I credit Regan's testimony in this regard. His testimo- ny showed that Gafford solicited him to report back on. the activities at an employees, union meeting in violation of Section 8(a)(1). United Supermarket, 261 NLRB 1291 (1982). , B The 8(a)(1) and (3) Allegations 1. Albert Reynolds Albert Reynolds worked for Respondent from 20 April 1971 until he was suspended on 18 September 1986 and discharged on 23 September 1986. The General Counsel alleged that Reynolds' suspension and discharge were illegal. Reynolds' immediate supervisor was William Gafford. About 3 weeks before his suspension Reynolds in- volved himself in prounion activities. He solicited em- ployees to sign union authorization cards in the plant. About 3 days before his termination Reynolds talked to TOM'S FOODS 649 his supervisor about the Union According to Reynolds, his, conversation with William Gafford was as follows- ' A He asked me did I know anything about the union trying to come in the plant. I told him I did. And he said, well, said' the only thing he hated, if the union come in, that it may be like some of the unions up North, the plant may be shut down or on strike or something, people would lose their cars and houses and things. And I told him, I said, "Well, we've got the union trying to' come in here, the same type they've got at Sunshine, and they haven't been on strike in years out there." I said, "I don't think this one will happen." And he told me, he said , "Well, you know if anybody finds out you- are for the 'union you are automatically fired." I told him, "Yeah, I know that " William Gafford admitted that he talked to all the bakery employees including Albert Reynolds about the Union. Gafford said he did not recall what was said in each conversation. Although Gafford denied that Reyn- olds told him Reynolds favored the Union, Gafford did not deny Reynolds' version of the conversation about the Union. As shown here, I do not credit Gafford's denials about his conversation with employees about the Union. Gaf- ford admitted that he did not recall specific conversa- tions even though he admittedly told all the bakery em- ployees- that he opposed the Union. I credit Reynolds' version of the conversation with Gafford. Gafford's comments illustrate that he felt Reynolds supported the Union On 17 September 1986 Reynolds overslept and was phoned at home.' Reynolds arrived at the' plant at 6:30 a.m., 30 minutes late for his 6 a.m. shift Reynolds clocked 'iii at 6:30 a.m. but he subsequently went to the bathroom and drank a cup of coffee before reporting to the line William Gafford admitted that he saw Reynolds in the breakroom before Reynolds started work. According to both Reynolds' and current employ- ee Donald Robinette, Gafford agreed that, it Was - alright for Reynolds'to drink a cup of coffee before he started work.'Gafford denied telling Reynolds it was alright for Reynolds to have a cup of coffee. However, according to Gafford's version he did not order Reynolds to the line immediately nor did he tell Reynolds that Reynolds could not finish his coffee. I credit Reynolds and Robin- ette. Subsequently Reynolds reported to the line and worked the remainder of the day. In his testimony, Reynolds recalled that he started work at 6:40 a.m. Reynolds signed a statement to the Georgia Department of Labor placing the time at 6:45 a.m. when he started his work. Respondent places the time when Reynolds began work at 6.50 a m. Therefore, it is apparent that some 10 to 20 minutes lapsed between Reynolds' arrival at the plant and the time he began work. On 18 September Reynolds was suspended by Supervi- sor Ellis Kennedy pending an investigation into the inci- dent of 17 September. Subsequently Reynolds was, discharged on 23 Septem- ber for allegedly falsifying his timecard on 17 September. Respondent contended that Reynolds should have clocked in the time he began work rather than the time Reynolds entered the, plant.' Conclusion In consideration of whether the General Counsel proved, prima facie, that Respondent was motivated to suspend and discharge Reynolds because of protected ac- tivity, I note that Respondent, through Supervisor Wil- liam Gafford, learned 3 days before 18 September that Reynolds supported the Union The findings regarding 8(a)(1) allegations here, plus Supervisor Gafford's testi- mony illustrate that Respondent and Gafford harbored union animus. Reynolds had worked for Respondent for over 15 years. Prior to September 1986 Reynolds had not been disciplined. Supervisor Ellis Kennedy admitted that Reynolds was a punctual employee. Respondent admit- ted that Reynolds would not have been disciplined for being late on 17 September 1986 According to Respond- ent, the sole reason for Reynolds' suspension and dis- charge was the alleged falsification of his timecard. However, the evidence calls into question whether Reynolds falsified his timecard. Reynolds testified that he clocked in the time he ar- rived at the plant, 6:30 a.m. Respondent's witnesses ad- mitted that their investigation failed to show that Reyn- olds did not arrive at 6.30 a in Moreover, the evidence shows that Reynolds saw his supervisor, William Gaf- ford, in the breakroom a few minutes after 6:30. At that time Reynolds was subject to the direction of Supervisor Gafford. The credited evidence showed that Gafford agreed that Reynolds could finish a cup of coffee Subsequently, during interviews with supervisor, Reynolds consistently' admitted that he did not begin work' until after `6 30 am There was no showing that Reynolds ever claimed anything other than 6:30 a.m. was the time he entered the plant. In view of the above, I am convinced that the General Counsel proved a prima facie case. Respondent contends-that the evidence showed that Reynolds would have been suspended and discharged in the absence of protected activities. In that regard I shall examine whether Respondent customarily discharged employees for similar activity. Respondent contended that the evidence supported its contentions that in situations similar to the one with Albert Reynolds, employees were routinely discharged. I find that the record does not support Respondent. Regarding Respondent's policy, Respondent's supervi- sors admitted that it had no published policy illustrating to employees that, when late for work, employees were required to clock in the time they actually started work.' i Respondent , in its brief, argued that Reynolds admitted that Re- spondent's policy was for employees to clock in the time they start work Reynolds testified at Tr, 163 and 164 and on R Exh 9, that when he arrived before his shift, he started work at the begining of his shift How- ever, Reynblds testified that when late he, and other employees , routinely Continued 650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Moreover, it was admitted that no one told Reynolds about Respondent's alleged late clock-in policy Additionally, Supervisors Kennedy and Gafford admit- ted that employees are routinely permitted to correct errors in timecards. Kennedy testified that if employees made a mistake in their time, "Yes, they can change it, if they admit they made a mistake " Gafford testified that when he sees a card is not filled out right, "I will just take it to, the employee and ask him about it, if it's right." Then, according to Gafford, the employee may "Straighten it out." Nevertheless, when Reynolds offered to correct his timecard if it was wrong, Respondent re- jected his offer.' Regarding prior alleged timecard falsifications, the record included documentation on former employees Virgle Ivins, Dave Gary Jr., Tommy Edmonds, Lyn- wood (Joe) Regan, Walter Hobbs, and George Williams. Concerning Virgle Ivins, Ivins was found to have left the plant sometime before 1:45 p.m. on 6 September 1985 even though Ivins clocked out at 2 p.m. Ivins was dis- charged. Concerning Dave Gary Jr., the documentation showed that Gary was first suspected of leaving the plant before 7 a.m. on 28 August 1986. Gary clocked out at 7 a.m On the following day, Gary's supervisor saw Gary leaving the parking lot at 6:50 a.m. even though Gary had clocked out at 7 a.m. On 4 September 1986 Gary ex- plained that he had planned to correct his timecard but did not do so because of a meeting in the office. Gary was not discharged. He returned to work the next day. Tommy Edmonds clocked in at 10 p m on 21 June 1984 but was not seen until 11:10 p.m. On 25 June 1984 Edmonds was first seen at 11.04 p.m, even though he clocked in at 10:30 p m. During the investigation, Ed- monds admitted, "that he came in at 10.50 p in. on 6-21- 84." Edmonds was discharged Concerning Lynwood (Joe) Regan, the record indi- cates that Regan clocked in at 10.3 (10:18) p.m. even though his shift started at 10:45 p.m According to Su- pervisor Jimmy Steed he suspected Regan of falsifing his timecard on 28 August 1986. Steed directed the shift foreman to watch Regan. The foreman observed that Regan started work at 11:05 p.m. Regan's timecard showed a 10.3 (10:18) p.m. clock in. Steed told the bakery manager about the incident. Bakery Manager Si- zemore directed Steed to come in and observe Regan on the evening of 29 August. On 29 August Steed observed Regan arrive at the plant at 10:50 p.m. and start work at 10:58. After an investigation, Regan told supervision that "he thought he could get away with putting an incorrect starting time on his timecard " Regan was discharged. On 24 November 1986 Supervisor Charlie Averatt met two employees, Walter Hobbs and George Williams, as they entered the plant at 6:40 a.m. Both employees were verbally warned for being late. Subsequently, it was dis- covered that both employees had clocked in at 6.30 a m. Both Hobbs and Williams were discharged. clocked in the time they entered the plant Contrary to the argument of Respondent, I find that Reynolds, never admitted that it was Respond- ent's policy that employees clocking in late were required to indicate the time they actually started work rather than the time they eniered the plant The above records showed that none of the employees were discharged because their timecard reflected a time when the employee was in the plant but not at his work station Records showed that Ivins, Gary, Regan, Hobbs, and Williams were all out of Respondent's plant at a time when their timecards showed the respective employee was at work. Two of the above incidents occurred shortly before Reynolds was discharged. Dave Gary Jr was involved in an investigation that involved two evenings of work, 28 and 29 August 1986. On the second evening Gary was observed leaving Respondent's parking lot 10 minutes before his clock out time. Nevertheless, Respondent ac- cepted Gary's explanation and permitted him to return to work. On 28 August 1986 Lynwood Regan was suspected of falsifying his timecard. Thereafter, a foreman observed Regan falsifying his card Nevertheless, Regan was watched on the following night Subsequently Regan ad- mitted clocking in an incorrect time because he thought he could get away with it. The above documents failed to show that Respondent would have discharged Albert Reynolds in the absence of his union activities. In fact, those documents illustrat- ed that other cases were handled differently. Unlike the situations involving employees Gary and Regan, inci- dents that occurred shortly before Reynolds was dis- charged, the facts showed that Albert Reynolds was in the plant at the time indicated on his timecard. Shortly after entering the plant Reynolds placed himself under the direction of his supervisor, William Gafford Unlike the situations involving Gary and Regan, Reynolds was not given the opportunity of being observed a second evening. Unlike Gary's situation, Reynolds' story was not accepted by Respondent and unlike the,situation in- volving Regan, Reynolds did not tell Respondent that he was trying to get away with clocking in falsely. The facts illustrated that Respondent was presented with nothing more than an employee that may have mis- understood Respondent's policy regarding clock in when late for work. Moreover, Reynolds was subject to the di- rection of his supervisor, William Gafford, in the break- room shortly after he clocked in. The credited evidence showed us that Gafford agreed that Reynolds could finish his coffee. It is obvious that Respondent bent over backwards to have Albert Reynolds fit into a discharge offense mold. The evidence illustrated that Reynolds did nothing that justified a legal discharge 2. Tom Walls In consideration of whether the General Counsel proved a prima facie case as to Tom Walls, I shall first consider whether Walls engaged in union activity, and whether and when Respondent learned of that activity. Walls testified that he worked on behalf of the Union by making house calls for union representatives and talk- ing to employees after work about the Union. Walls said he started his union activity "probably about 2 to 3 weeks before his termination on 5 September 1986 " TOM'S FOODS 651 Respondent was advised, that Tom Walls and some 11 other employees were assisting the Union, by a letter to Respondent from the Union dated 2 September 1986 On cross-examination it was brought out that Walls felt he was overheard by supervisors as he discussed the Union during breaktime Walls' affidavit testimony, which was brought out during the hearing, referred to occasions on 29 and 30 August 1986, when supervisors may, have overheard Walls speaking in favor of the Union Regarding his work reassignment, Walls testified that about 2 or 3 weeks before his layoff he was taken off his job on the star bar line and told to repair some floures- cent lights in the supply room and' to arrange and orga- nize the stockroom Walls recalled that he continued to work in the supply room (called the cage) until he was laid off Walls' testimony showed that he was assigned to the supply room around the time he first became active for the Union and before, Respondent learned of Walls' union activity 2 I find that the General Counsel failed to show that Re- spondent was motivated by Walls union activities in reas- signing his work. I recommend that the allegation be dis- missed However, Walls was subsequently laid off on 5 Sep- tember 1986. On that day Respondent had just received the Union's 2 September letter naming Walls as one of its 12 supporters Respondent received that letter on 4 Sep- tember 1986 My findings here of other illegal activity against prounion employees, Respondent's knowledge of Walls' union activities, and the timing of its action against Walls, form the basis of a finding of illegal termi- nation. However, Respondent argued that Tom Walls was laid off without regard to his union activities, and that Walls would have been laid off in the absence of his union ac- tivities Walls was employed by Respondent as an .electrician on its star bar line. Walls was a member of the star bar start up crew when he was hired in March 1985,. The record showed that Walls continued to work on the star bar line until he was laid off on 5 September 1986. The record showed that the star bar line produced a product which was marketed by General Mills That product was a granola candy bar called Dandy Bar. At its peak the star bar line included approximately 100 em- ployees. However, the anticipated demand for the Dandy Bar did not materialize and because of cut backs necessitated by General Mills, Respondent began laying off star bar line employees on 14 October 1985 when 14 employees were laid off Twelve more star bar employ- ees were laid off on 30 November 1985. On 23 Decem- ber 1985, 42 star bar line employees were laid off. On 14 April 1986, 16 employees were laid off. Seventeen em- ployees were laid off on 9 June 1986 2 Although Walls may have been in error about the time he started working for the Union, he may also have been in error about the time of his job change However, documents also showed that the reassignment occurred before company knowledge Walls' timecard showed that he first worked in the "shop" on 28 August That assignment predated the 29 August conversation which Walls, in his affidavit, alleged may have been overheard by a supervisor After the 9 June 1986 layoff, General Mills wrote Re- spondent on 30 July 1986 and advised Respondent to re- start the star bar line on 4 August 1986, for an anticipat- ed 5 to 6 weeks' production. On 29 August 1986, howev- er, Respondent was advised by General Mills to cease Dandy Bar production Nine employees including Tom Walls were laid off when the star bar line shut down for the last time. Respondent's policy required it to lay off qualified em- ployees in accord with their company seniority. Tom Walls received "a temporary layoff' on 5 September 1986 As a temporary layoff, Walls did not have the right to bump into another area of the plant Neverthe- less, according to uncontested evidence, if Walls had been permanently laid off, he would not have had suffi- cient seniority to bump into any other division or depart- ment. The record showed that Walls was the electrician- with the least seniority. No electrician was retained after 5 September 1986 with less seniority than Walls There were two maintenance employees with less se- niority than Walls, Bob McCoy and Ed Merritt. Howev- er, the evidence proved that both McCoy and Merritt were mechanics. Moreover, despite Walls' testimony that he could perform' any other maintenance job, the docu- mentary evidence failed to show that Walls was qualified as anything other than an electrician. No electrician has been hired by Respondent since Walls was laid off. I find that the record proved that approximately 100 employees were laid off because of the decline and even- tual shutdown of the star bar line The record showed that Walls was laid off because of that shutdown, and that the star bar line shutdown resulted from business factors which were not within the control of Respond- ent Walls was laid off in accord with Respondent's es- tablished layoff policy. Therefore, as to Walls' layoff, the record proved that Walls would have been laid off in the absence of his union activities. I recommend that the allegations regarding Tom Walls' reassignment and layoff be dismissed . 3 Ronnie Mitchell " Maintenance mechanic Ronnie Mitchell was the second listed employee in the Union's '2 September 1986 letter to Respondent As shown above, Respondent re- ceived that letter on 4 September 1986 According to Mitchell, on 8 September 1986, he had the following conversation with Supervisor Gary Burde-' shaw. September the 8th, somewhere around 7.00 o'clock, Gary Burdeshaw came up to me and told me not to go back to the environmental lab anymore or have anything else to do with the lab or Research and Development because it was a one-man job, and that he was going to let Robert Streetman handle that from now on. Bulk raw materials was my job and that's what I do, that's where I work at, that's where I stay. Yes, he also told me not to be caught in any other area of the plant and to use the restroom that was closest to my job and don't be going to any 652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD other part of the plant, just stay in my working area and that's all. Subsequently, on 23 September 1986, Mitchell -had a conversation with Supervisor Jackie,Sanders: A. September 23rd? That't the day that Jackie Sanders told me that he wanted to see me; asked me had I finished rounds, I told him no, that I had to go back to the candy building and shake the sugar bags over the main hoppers up there. And he told me, say, "I've got a job for you to do, but I'm not going to tell you now because you would only make your rounds last longer." I said, "Why not tell me now?" He said, "Oh, what the heck, come on. I'll do better, I'll show you." He took me into the toolroom and told me he wanted everything taken off the floor, all parts, motors and everything, put on the shelves in the proper way they are supposed to be and then clean it up thoroughly, dust and everything. And he also told me that he was going to send me some help, which he never did. Q. How long did you remain in the toolroom? A. I think I was in thereabout 7 to 8 days, some- thing in that area. It was after the 23rd. Gary Burdeshaw testified that Mitchell's duties were changed on 8 September 1986 because of a study con- ducted by Respondent, which showed that several em- ployees including Mitchell, were engaged in similar re- petitive duties Mitchell had been making rounds which could have been handled during the rounds of employee Bobby Streetman. Mitchell's duties were changed in order to avoid unnecessary duplication with Streetman who was more qualified. Burdeshaw denied that he re- stricted Mitchell in any way According to Burdeshaw, Mitchell's regular job, which continued, placed him in' regular contact with the majority of the'employees in the candy department. Regarding his assignment in the toolroom, Jackie Sanders testified that Mitchell had experienced trouble with his sugar unloading job over a long period of time:' On 24 September 1986 Sanders asked Richard Ramsey to trouble-shoot the sugar unloading system. Ramsey had handled that job some 3 years earlier Ramsey located the problem but remained on the job throughout the day to ensure the problem did not recur. According to Sand-, ers, Mitchells' assignment to the toolroom was actually an assignment of general cleaning which included the toolroom. The assignment lasted for only 1 day. Conclusions It is apparent that Mitchell felt he was being restricted because of the close proximity of Respondent's action to the 2 September 1986 letter advising Respondent of Mitchell's union activities However, Respondent proved legitimate business reasons for the change in Mitchell's duties. Concerning the bathroom, Mitchell's affidavit showed that he was told to use the restroom nearest his work only after he asked Burdeshaw which restroom he should use. Concerning other restrictions, Mitchell was told not to go in the environment lab after those duties were assigned to Bobby Streetman Mitchell's testimony showed that the employees in the environment lab were research and development employees and those employ- ees were excluded from the bargaining unit Therefore, it would have been nonsensical to isolate Mitchell from those employees if Respondent's purpose was to remove Mitchell from contacts that could benefit the Union Concerning the toolroom assignment, Mitchell's affida- vit and his timecards showed that Mitchell was mistaken in believing that job lasted several days. That assignment lasted only 1 day, 24 September 1986. Jackie Sanders' testimony that Mitchell was moved in order to trouble shoot the sugar unloading system was not rebutted by the General Counsel. Therefore, I find that Respondent proved that Mitch- ell's job change on 8 and 24 September 1986 would have occurred in the absence of Mitchell's union activities. I recommend those allegations be dismissed 4. Steve Stokes Following Respondent's motion to dismiss paragraph 10 of the complaint, I ruled that I would not allow Re- spondent to defend paragraphs 10 and 15. On examina- tion of the record and briefs of the parties, I am con- vinced that the General Counsel failed to prove the alle- gations of paragraphs 10 and 15. Regarding paragraph 10, the evidence showed that employee Ronnie Regan had a conversation with Super- visor Larry Shores in mid-September 1986, during which Shores told Regan "that through some extent they were after Steve [Stokes], were going to watch Steve, to a point like that." Nothing was said in the conversation that would link Respondent's watching Stokes to the Union. Regarding paragraph 15, there was no showing that Respondent knew of Stokes' union activities at any time. Stokes talked with Supervisor William Gafford about the Union in "late September." However, it appeared that conversation occurred after Stokes' hours were reduced on 18 September, and, according to Stokes' testimony, nothing was said in that conversation that indicated that Stokes was supporting the Union, or that Respondent thought Stokes was supporting the Union. The Union's 2 September 1986 letter which identified 12 employees that supported the Union, did not name' Stokes Therefore, I find that the General Counsel failed to prove that Respondent, through Larry Shores, told an employee that employees that supported the Unuon were being watched, and the General Counsel failed to prove that Respondent reduced the hours and withheld one of Steve Stokes' breaks because of union or protected activ- ity. Respondent's motion to dismiss paragraphs 10 and 15 is granted. CONCLUSIONS OF LAW 1. Tom's Foods, Inc. is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. TOM'S FOODS 653 2. Bakery, Confectionery & Tobbacco Workers Inter- national Union, AFL-CIO-CLC is a labor organization as defined in Section 2(5) of the Act. 3. Respondent by interrogating its employees concern- ing their union activities-and desires, by soliciting its em- ployees to report on employees' union meetings; by threatening its employees with discharge because of its employees union activities; and by engaging in surveil- lance of its employees union meetings, engaged in con- duct violative of Section 8(a)(1) of the Act. 4. Respondent by suspending, discharging, and'tliereaf- ter failing and refusing to reinstate its employee Albert Reynolds because of its employee union activities, en- gaged in conduct violative of Section 8(a)(1) and (3) of the Act 5 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall order it to cease and desist there- from, and to take certain affirmative action necessary to -effectuate the policies of the Act. Having found that Respondent has illegally discharged its employee. Albert Reynolds in violation of Section 8(a)(1) and (3) of the Act, I shall order Respondent to offer Reynolds immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and to make Reynolds whole, with interest, for any loss of earnings he suffered as a result of the discrimination against him. Backpay and interest shall be computed in the manner described in F W. Woolworth Co., 90 NLRB 289 (1950), and New Horizons for the Retarded, 283 NLRB 1173 (1987).3 On these findings of fact and conclusions of law 'and on the entire record, I issue the following recommend- ed4 ORDER The Respondent, Tom's Foods, Inc., Columbus, Geor- gia, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging, suspending, or otherwise discriminat- ing against employees because of their union or other protected, concerted activities (b) Coercively interrogating employees about its em- ployees' union activities (c) Soliciting its employees to report back on union meetings. (d) Threatening its employees with discharge because of their union activities. (e) Engaging in surveillance of its emplolyees union meeting. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2: Take the following affirmative action necessary to effectuate the policies,of the Act. (a) Offer to employee Albert Reynolds immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job without prejudice to his seniority or other rights or privileges previously enjoyed, and make Reynolds whole for any loss of earnings, plus interest, he suffered by reason of its illegal action. (b) Remove from his files any reference, to the termi- nation of Albert Reynolds, and notify Reynolds in writ- ing that this has been done and that evidence of his un- lawful termination will not be used against him in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility in Columbus, Georgia, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent-to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. ' See generally Isis Plumbing Co, 138 NLRB 716 (1962) 4 If no exceptions are filed as provided by Sec 102 46 of the Board's If this Order is enforced by a judgment of a United States court of Rules and Regulations, the findings, conclusions, and recommended appeals, the words in the notice reading "Posted by Order of the Nation- Order shall, as provided in Sec 102 48 of the Rules, be adopted by the al Labor Relations Board" shall read "Posted Pursuant to a Judgment of Board and all objections to them shall be deemed waived for all pur- the United States Court of Appeals Enforcing an Order of the National poses Labor Relations Board " I