Wells Blue Bunny

WELLS BLUE BUNNY Wells Dairy, Inc., d/b/a Wells Blue Bunny and United Food and Commercial Workers Union, Local No. 179, AFL-CIO. Case 18-CA-9789 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT On 18 March 1987 Administrative Law Judge Joel A. Harmatz issued the attached decision. The Respondent and the General Counsel filed excep- tions, supporting briefs, and reply briefs. 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 briefs and has decided to affirm the judge's rulings, findings,' and conclusions,2 to modify the remedy,3 and to adopt the recommended Order.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Wells Dairy, Inc., d/b/a Wells Blue Bunny, Le Mars, Iowa, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except that 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 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 Member Cracraft adopts the judge 's finding that the Respondent vio- lated Sec 8 (a)(1) by discharging employees Brown and Weiler for engag- ing in protected concerted activity She finds it unnecessary to pass on whether the Respondent also violated Sec 8(a)(3) by discharging these employees S 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 I 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) ° The General Counsel requests a visitatorial clause We deny the Gen- eral Counsel's request as unnecessary APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 827 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 coercively interrogate you con- cerning your union activities. WE WILL NOT threaten you with discipline, in- cluding discharge, because you have elected to complain about your working conditions in a manner protected by Section 7 of the Act. WE WILL NOT discourage membership in United Food and Commercial Workers Union , Local No. 179, AFL-CIO, or any other labor organization, or any protected concerted activity for your mutual aid and protection by discharging or otherwise dis- criminating against you with respect to wages, hours, or other terms and conditions or tenure of employment. 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 Gilbert Weiler and Glenn Brown immediate reinstatement to their former positions and WE WILL make them whole for any loss of earnings they may have suffered by reason of our discrimination against them , plus interest. WE WILL notify Gilbert Weiler and Glenn Brown that we have removed from our files all ref- erences to their discharges, notifying them specifi- cally that this has been done and that these unlaw- ful disciplinary actions will in no way be used against them in the future. WELLS DAIRY, INC., D/B/A WELLS BLUE BUNNY James L. Fox, Esq., for the General Counsel. Michael Alden, Esq. (Tate & Alden, P. C.), of Lincoln, Ne- braska, for the Respondent. 287 NLRB No. 84 828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge. This proceeding was heard by me in Le Mars, Iowa, on 1 and 2 December 1986, on an original unfair labor practice charge filed on 29 August 1986 and a complaint issued on 10 October 1986 which, as amended, alleges that Re- spondent independently violated Section 8(a)(1) of the Act by certain coercive conduct in connection with em- ployee activity protected by the Act, and further violat- ed Section 8(a)(1) and (3) by discharging employees Gil- bert Weiler and Glenn Brown, either as a reprisal for their having engaged in union activity, or because they engaged in concerted activity protected by Section 7 of the Act In its duly filed answer, Respondent denied that any unfair labor practices were committed. Following close of the hearing, briefs were submitted on behalf of the General Counsel and the Respondent. On the entire record in this proceeding, including my opportunity directly to observe the witnesses while testi- fying and their demeanor, and on consideration of the posthearing briefs, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is an Iowa corporation with plants and of- fices located in Le Mars, Iowa, from which it is engaged in the manufacture, nonretail sale, and distribution of dairy products. During the calendar year ending 31 De- cember 1985, a representative period, Respondent in the course of the operations derived gross revenues exceed- ing $500,000. During that same period, Respondent sold and shipped from its Le Mars, Iowa plants products, goods, and materials valued in excess of $50,000 directly to points outside the State of Iowa, and received prod- ucts, goods, and materials at those locations valued in excess of $50,000 directly from points outside the State of Iowa The complaint alleges, the answer admits, and it is found that Respondent is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and it is found that United Food and Commercial Workers Union, Local No. 179, AFL-CIO (the Union) is now, and has been at all times material , a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issue of primary remedial concern in this case de- rives from, allegations that Gilbert Weiler and Glenn Brown were unlawfully discharged. On the motive issue, the General Counsel asserts alternative theories It is argued that this action either was a reprisal for concerted protected activity and hence violative of Section 8(a)(1) of the Act, or prompted by union activity and hence vio- lative of Section 8(a)(3). Respondent denies knowledge of any union activity prior to the decision to effect the discharges, but seeks to excuse its conduct on the ground that Weiler and Brown were terminated because of their repeated complaints concerning job assignments, conduct on the part of the dischargees which, according to Re- spondent, was not protected by Section 7 of the Act. Beyond the foregoing, the complaint includes allega- tions that Respondent independently -violated Section 8(a)(1) of the Act through alleged acts of coercion in the form of interrogation and an implied threat Both counts relate to matters occurring after the terminations Re- spondent seeks dismissal of these allegations, arguing that neither involved conduct that might be construed as co- ercive under controlling Board precedent. B. Concluding Findings The conduct under scrutiny in this case occurred at Respondent's ice cream plant in Le Mars, Iowa. Re- spondent also operates 'a milk plant in Le Mars and an- other in Omaha, Nebraska. Respondent's employees have no history, of outside union representation. There is, however, an employee committee that exists for the pur- pose of dealing directly with management concerning both the negotiation of annual wage increases and the consideration of grievances Weiler and Brown were long-term employees At the time of discharge, Weiler had been employed for about 6 years, and Brown's length of service exceeded 16 years. Both had risen to the position of "machine operator," the highest rated, nonsupervisory production job im the ice cream plant. Personnel Manager Michael Ellis summed ' up Re- spondent's reason for the discharges as follows: Gib and Glen were fired because they are perpetual constant complainers, generally speaking they griped about anything that upset, their normal rou- tine and any time they had to do something other than exactly what they wanted to do We got tired of it and decided they should be fired. The specific litigation in this proceeding was addressed to limited grievances, which, in the main, pertained to Respondent's procedure for altering the schedules of production crews when their normal work,is unavailable. In this regard, the evidence reveals that Respondent manufactures a variety -of ice cream products, including bulk, pail, and specialty items consisting of sandwiches, bars, etc. These items are manufactured on production lines consisting of approximately four permanently as- signed employees. Permanent jobs on the various lines are bid competitively. Because of seasonal influences on demand and unforeseeable changes in consumer prefer- ences, all lines are not in production continuously throughout the year. During those occasions when a line is down, its crew is reassigned to perform other work. There is no dispute that employees would prefer to work their own lines, than be reassigned. As a general rule, their job transfers would be unsettling to workers in the higher rated positions, who often would be required, WELLS BLUE BUNNY 829 in consequence, to work different hours, while relegated to monotonous, less responsible jobs Reassignment does not hit all workers with the same frequency Some pro- duction lines are subject to fewer fluctuations in demand, and employees permanently assigned to those lines are less vulnerable to reassignment . Dissatisfaction with the reassignment process by Weiler and Brown, and mem- bers of their crew, is central to Respondent's explanation for the discharges. As for the specifics of the underlying controversy, it is noted that in early 1986,1 Respondent established a new square half-gallon line To man this line, notices of job openings were posted for bid Weiler and Brown, in the past, had worked on unsteady lines requiring frequent re- assignment . For this reason, before bidding, they in- quired whether production on the new line would be continuous . Because management contemplated reason- ably uninterrupted production, Weiler and Brown were given assurances to this effect. Both bid for the "machine operator" classifications on the new operation They were the successful bidders and assumed their positions rotating on a two-shift basis. Bill Caravan and Myron Plueger filled the remaining fixed slots on the permanent crew, as class "A" assistants. In June, square half-gallon inventories exceeded sales to a point warranting a cur- tailment of output. In consequence, Weiler, Brown, Caravan, and Plueger were rescheduled for other work. The reassignments in the main were to other production lines, provoking dissatisfaction among all four members of the crew. During these frequent down periods, they manifested a strong preference for giving breaks to co- workers, over reassignment to fixed jobs on other lines.2 From time to time during the summer, members of the new half-gallon crew raised the reassignment issue with management representatives. First, Weiler, Brown, and Plueger, in early July, met with Ron Delperdang 3 As was customary, Weiler did most of the talking 4 Delper- dang was queried as to why their crew was not reas- signed to break work, when those jobs were being given to class "C" or part-time help. On behalf of the crew, the point was made that their greater seniority and knowledge as to operation of the equipment would place ' All dates refer to 1986 unless otherwise indicated 2 The preference for working "breaks" was based on the fact that it involves movement from job to job that allows the workday to pass faster In addition, work schedules would remain constant under such an assignment In this latter connection , because the various production lines are operated on the basis of staggered shifts, reassignment frequently re- quired rearrangement of personal affairs due to forced changes in the starting and quitting times of those affected From the standpoint of the "machine operators ," assignment to a production line was even more dis- tasteful because , as in the case of Weiler and Brown, they never per- formed in that capacity on reassignment , but always served in a lesser job, often monotonous in nature , which denied them the freedom of movement and variety experienced in their regular positions 3 Delperdang was Respondent 's production manager He reported to Plant Manager David Wells Immediate supervision of the new square half-gallon line was the responsibility of Foremen Bob Schroeder and Chuck Ream The latter reported directly to Delperdang ° Weiler, until 19 October 1985, had been a member of the employee committee for some 4 years He claims that he retired from that role be- cause he was frustrated with management's response to employees' de- mands His testimony that , while serving in this capacity, he was more outspoken than other members of the committee was left unchallenged Personnel Manager Ellis described him as an "active" member of the committee them in a better position to provide effective relief to other workers. Delperdang stated that he could see no reason why this could not be done. He advised that he would talk to Schroeder and Ream about assigning the new half-gallon crew to break work.5 Later in the month of July, Weiler, Brown, and Plueger again met with Delperdang, this time in the presence of Plant Manager Dave Wells. The work schedules for that week reflected that Weiler, Brown, and Plueger had been reassigned to work on a bulk line. At the same time, the schedule reflected that part-timers had been assigned to work breaks Weiler presented this schedule to Wells and Delperdang, asking "is there any reason why the four of us couldn't be put on breaks and these two class C's or part-timers put on the crew?" Del- perdang responded "there's no reason why they couldn't do it, that they were going to talk to Bob Schroeder about it "s This conversation was followed by a formal meeting of the employee committee, which was held on 8 August, one of several conducted annually for the pur- pose of airing employee complaints Weiler and Brown attended. Also present were three members of the em- ployee committee and Dave Wells and Personnel Manag- er Michael Ellis. The first issue raised by Weiler and Brown related to reprimands that had been issued recent- ly by management to various coworkers concerning sani- tation. Weiler in this respect argued that the reprimands were being dealt out indiscriminately and that some em- ployees received them underservedly. He observed fur- ther that employees had not been supplied with the cleaning tools required to prevent unsanitary conditions Next, Weiler again made the point that, when the new square half-gallon line was not operating, his crew con- tinued to be assigned to other production lines. Weiler explained that this occurred at times when they felt they should be assigned to breaks. Weiler reiterated, as he argued persistently in past conversations with Delper- dang, that members of the new square half-gallon crew had more knowledge and seniority and should be used to give breaks ahead of the lower-rated class "C" and part- timers who had been given that work. Delperdang and Wells responded that "they was going to talk to Schroe- der [and] Chuck Ream and see if they could get us alto- gether [sic], and talk to us and try to resolve it "' It does not appear that Brown participated in any fur- ther discussion of the reassignment issue.8 On 18 August, 5 Plueger was not called by any party The foregoing is based on a composite of the credited testimony of Brown and Weiler Delperdang was not examined as to this specific conversation He did testify, howev- er, that later in July, Weiler confronted Delperdang, stating "Well I see we are back on working the bulk crew again instead of being on breaks, I thought we were going to get this straightened out " Delperdang 's testi- mony in this latter respect enforces that probability that Delperdang pre- viously had given the crew reason to believe that steps would be taken to resolve their complaints favorably. 6 The foregoing is based on a composite of the credited, uncontradict- ed testimony of Weiler and Brown Here again the specific testimony offered by Weiler, as supplemented by Brown, was not specifically contradicted by any witness having a clear recollection of what happened 8 Ellis testified that at some undefined time in August, Brown com- plained about reassignment to a job that entailed the sorting of packaging Continued 830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD he began a 2-week vacation. As shall be seen, his return was interdicted abruptly by the discharge. During the week after the committee meeting, the new square half-gallon crew was again reassigned to various bulk,lines. Weiler testified that he tried to reach Person- nel Manager Ellis by telephone on 13 or 14 August, fi- nally reaching him on Friday, 15 August. Ellis was than informed. "Mike, they're still messing around with, our hours and . we be on the bulk line again." Ellis an- swered Weiler with an indication that he would discuss the matter with Delperdang 9 Caravan, having missed the 8 August meeting of the employee committee, ques- tioned Delperdang as to whether anything had been worked out so as to permit break work for his crew. Delperdang responded that he did not know what was going on, since he had dust returned from vacation and he had not seen the schedule. Caravan then,suggested to, Delperdang that perhaps, when the new square half- gallon line was down, his crew might be kept together and rotated with another half-gallon crew, rather than split and reassigned to other production jobs all the time Weiler then approached, complaining that, according to the new schedule, his crew had again been reassigned to a bulk line. When Delperdang reiterated that he had just come back' from vacation and was unaware of the sched- uling, Weiler stated "well I thought you were going to have this worked out with Bob and Chuck." At this point, Delperdang importuned Weiler with the observa- tion that "novelty" employees are constantly getting bad deals and do not complain, but "you do " Delperdang then angrily walked off. 10 This apparently was the last predischarge confronta- tion between any member of the new ,square half-gallon crew and any management representative concerning the reassignment issue. Weiler testified credibly that between 15 and 27 August, no complaints were registered with management other than those related to equipment mal- functions interfering with the quality of the product. Beyond that, there was no evidence that either Weiler or Brown, or any member of their fixed crew, addressed any grievances or complaints to management during that timeframe.t t On the other hand, since July, Weiler and material Brown let Ellis know that he was unhappy about the assign- ment, stating that he was being "jacked around" 9 Weiler's account is 'inconsistent with that of Ellis The latter ac- knowledges that he received telephone messages from Weiler, but on 22 August Ellis insists that he never got back to Weiler I believed Weiler's testimony, which seemed more probable than that of Ellis, who was an unconvincing witness with limited grasp for detail 10 Delperdang testified that he informed Caravan that he "had been in contact with Chuck Ream and Bob Schroeder on the scheduling and that as far as [Delperdang] was concerned their scheduling was put- ting the people where they thought they should be " He claims that when Weiler interjected his objection, he stated "in my estimation they really had no reason to be bitching about their hours or their reassign- ments, the one who would have reason to bitch would be novelty people being their hours are jacked around a lot more and they do have to work a lot more hours" When in conflict, I credit Caravan, an incumbent em- ployee who would have no apparent interest in testifying falsely with re- spect to matters of interest to his employer '' As indicated Ellis testified that "toward the end of August," or about 22 August, he received phone messages from Weiler Ellis claims that he tried to respond but Weiler could not be reached Although Ellis claims to have asked Delperdang if he knew what Weiler wanted, Ellis -alleges that he at no time during the remaining days of Weiler's employ- ment communicated any form of response ' Indeed, Ellis could not recall Brown had frequently discussed the possibility of seeking union representation . During Brown's vacation , Weiler requested that Brown contact a local union official. On 26 August , Brown, while still on vacation, returned to the plant to inform Weiler, who was then working the evening shift, that a meeting with a union representative had been scheduled for 5 September The next day, Wednesday, 27 August; Weiler was scheduled to work the night shift At 8:30 that morning, he received a telephone call from Delperdang instructing that he report to the plant for a meeting at 1.15 that afternoon . Brown, who on that date continued to be on vacation , received a similar call, urging that he attend a meeting at 1 p m. Both attended as directed and were discharged in the course of the meetings : At each, Dave Wells, Delperdang, and Mike Ellis were present. Brown was told he was terminated because of his constant com- plaining about the work, and the fact that management could do nothing to satisfy him. He was also told that when he was put on breaks , management had received complaints that he did not do his job Though requested by Brown, management representatives declined to iden- tify those who had complained.12 He was told also that it appeared to management that he had not liked his job for the past 4 to 5 years , that all he did was complain, and that management could not keep him happy. He was told that the matter had been discussed with Faye Wells, Respondent's chief executive officer, who indicated that Brown should be terminated.13 The General Counsel contends that the discharges were unlawful either on (1) the Employer's stated ground , as reprisals for protected concerted activity, or (2) because the assigned reason was a pretext to mask Respondent 's desire to eliminate Brown and Weiler in order to thwart any nascent union activity. Analysis begins the Respondent's brief, wherein it is conceded that' " . . the discharges were ' prompted ex- clusively by the complaints registered by Weiler, and Brown about their fob' assignments " II Respondent would excuse its conduct on grounds that the griping by the employees fell outside the protective mantle of Sec- tion 7. Respondent contends initially in this respect that statu- tory protection was removed because Weiler and Brown were "lobbying for . . preferential treatment." It is true that Ellis, and presumably all other management repre- sentatives involved in the discharge decision , knew or should have known that all production personnel in the ice cream plant, including the four members of the Weiler-Brown crew, preferred giving breaks when their line was down . However, the fact that this latter group specifically any conversation with Weiler concerning his work assign- ments other than that occurring on 8 August at the employee meeting 12 Respondent does not contend that job performance was a factor in- fluencing the discharges In fact, Weiler and Brown's supervisors were not even consulted in connection with their terminations The only sug- gestion of work inadequacy appeared in uncorroborated reports from a coworker, Brian Jelkin, whose opportunity to observe Brown and Weiler was dubious at best is Ellis testified that Faye Wells was informed of the facts and "con- curred" in the discharge decision 11 See Respondent's posthearing brief, at 6 WELLS BLUE BUNNY alone was pressing for the break assignment furnished no license for reprisal. I know of no case standing for the proposition that a concerted complaint loses its protected status because, if granted, other employees in the bar- gaining unit would be prejudiced. Claims founded on se- niority almost always contemplate priority over others, yet often furnish the predicated-for grievance activity typically within statutory guarantees. Moreover, beyond its legal insufficiency, the evidence suggests that the "favoristism [sic]" argument might well have been an afterthought, rather than a genuine consid- eration leading to the discharges Thus, management was fully aware that the dischargees registered their bids on the new square half-gallon line only after receiving assur- ances that work would be constant on that line, thus avoiding reassignment to lesser jobs on other crews and concomitant changes in work schedules. When this proved not to be the case, Delperdang and Ellis were in- formed by Brown and Weiler, consistently, that their demand for assignment to breaks was based on their se- niority and greater knowledge of the equipment, an argu- ment based on the economic feasibility of avoiding such assignments being given to less skilled, newer employees, working either as class "C" personnel or on a part-time basis. Mindful of the foregoing,15 management at virtual- ly every turn assured the crew that their complaints would be taken care of. Moreover, neither Brown, Weiler, Caravan, nor Plueger, in his several confronta- tions with superiors, was ever accused of seeking special preference,16 nor did management communicate any ra- tionale as to why the assignment of lower-rated person- nel served employer interests in this respect.17 In sum, 15 Delperdang summarized the position of Weiler and Brown as fol- lows [T]hey though [sic] that they should not have to be put on other equipment when their lesser [sic] senior people in the break crew or on the equipment They thought that they should be able to give breaks or work the break crew with their seniority and their knowl- edge of most of the equipment '6 Testimony that other employees had complained about such a pref- erence did not ring true Delperdang, who claimed to have acted on such reports in initiating the discharges, admitted that he did not know wheth- er Weiler and Brown had been assigned to give breaks or whether favor- itism had been extended to them He admittedly did not bother to check the schedules, which were available, in order to ascertain whether in fact Brown and Weiler had been given a preference, and if so, as against whom He admitted that, as a class, machine operators, including the dis- chargees, possessed greater qualifications and experience than part-timers Finally, Delperdang conceded that employees who alleged a preference, including Brian Jelkin, never stated that their work opportunities were impaired because of any preference given Weiler or Brown, and, indeed, the only outside employee he claims to have questioned, Grosenheider, happened to be an operator on the 5-quart pail line , which did not experi- ence downtime during the summer of 1986 Ellis also was disinterested in the corroborative details He, too, testified that Jelkin reported that other employees were concerned about the "apparent favored status" of Brown and Weiler and "their constant complaining " Yet, Ellis confirmed that at no time prior to the discharge was Jelkin asked to identify those employ- ees As was true of Delperdang, Ellis admitted that he had no knowledge as to the truth of any such accusations against Brown and Weiler, nor did he investigate that charge These gentlemen did not strike me as inexperi- enced managers who do not know the difference between claims seeking favoritism and those based on rational employment factors such as senior- ity and ability Quite obviously, the Employer's own personnel policy recognizes these criteria as a basis for treating employees differently See, eg,GCExh2,p8 17 As shall be seen, the means by which Respondent reacted to the grievances tends to support the General Counsel's alternative claim that 831 Respondent knew full well that the employees were as- serting seniority and a greater working knowledge over employees with less credentials in these areas. There is absolutely no evidence that Weiler or Brown asserted a preferential claim for breakwork regarding higher rated employees. From Respondent's standpoint, it knew or should have known that Brown and Weiler were simply seeking recognition by management of traditionally ac- cepted employment factors that distinguished them and, in their eyes, afforded a greater claim for break work than lower rated personnel. The defense next proceeds with an assertion that Sec- tion 7 fails to apply because Weiler and Brown were seeking "insulation from duties and assignments they didn't care for " On the contrary, selflessness is not pre- requisite to the "mutual aid and protection" contemplat- ed by Section 7 of the Act To hold otherwise, would produce an absurdity limiting statutory guarantees only to those employee complaints that address nondetrimen- tal conditions and that are viewed by the grievants with indifference. Respondent also appears to confuse purely individual action with what clearly occurred here. The action by the new half-gallon crew, including Brown and Weiler, transcended that form of "purely personal griping and complaining" that renders employees who act alone fair game for lawful discharge. Their protestations were clearly concerted within the intended meaning of Section 7 of the Act. Under the Act, two is always enough, and there is no requirement that those who join in a common expression of concern act in larger numbers. i 8 Here, the employees voiced their complaints without disrupting production and through channels that were not shown to have been inappropriate. 19 They attempted to persuade management of the propriety of their complaints by as- sertions of seniority and experience-a line of reasoning that went unanswered.20 The fact that their complaint the complaints registered by Brown and Weiler were not the real reason for their discharge From the objective, indisputable evidence on this record, serious question arises as to why Respondent, instead of address- ing the merits of their grievances, elected to terminate long-term, highly rated employees with good work records 18 The cases involving purely personal griping by a single employee, acting individually are plainly distinguishable from the group action to which Respondent reacted in this case Cf NLRB v Deauville Hotel, 751 F 2d 1562 (11th Cir 1985), and cases cited at 1571, Pelton Casteel, Inc v NLRB, 627 F 2d 23 (7th Cir 1980) Furthermore, the requirement that an individual employee proceed "with the object of initiating, inducing, or preparing for group action" is inapposite where, from beginning to end, the specific employee complaint is iterated and reiterated through "group" confrontations with management Accordingly, Respondent relies erroneously on such cases as K-Mart Corp, 268 NLRB 246 (1983), Mills Patrol Service, 264 NLRB 323, 324 (1982), Koch Supplies v NLRB, 646 F 2d 1257 (8th Cir 1981), Scooba Mfg Co v NLRB, 694 F 2d 82 (5th Cir 1982) 19 Contrary to Respondent, Bechtel, Inc, 248 NLRB 1222 (1980), is clearly distinguishable Rather than attempting to sieze control of and dictate their conditions of work, the complainants sought peaceful change through the force of reason They acted in the fashion encouraged by Respondent's own published policy (See G C Exh 2, pp 3 and 8) and engaged in no conduct that could be described fairly as disruptive of plant discipline or abusive of management See, e g , Millcraft Furniture Co, 282 NLRB 593 (1987) 20 Although Respondent contends that it unsuccessfully attempted to satisfy Brown and Weiler, there is no specific evidence as to when and Continued 832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was not supported by, or opposed to, other workers is immaterial Congress did not intend that protected status be imperiled when an element within an employee com- plement looks on a grievance with disfavor. Section 7 merely requires "concerted" activity, not "consensus" activity. Accordingly, the conduct of Weiler and Brown consti- tuted concerted activity for the purpose of mutual aid and protection as guaranteed by Section 7 of the Act, and the discharges, if based thereon, together with Re- spondent's publication that they were discharged for that reason, amounted to discrimination proscribed by Section 8(a) (1) of the Act.21 Although unnecessary to the remedy, the General Counsel's claim of pretext is not necessarily inconsistent with the above finding and warrants full consideration. 22 The evidence does not disclose 'that any employee had ever been discharged for submitting complaints Indeed, a discharge, so grounded, would flout Respondent's pub- lished employment policy that unmistakably, and without qualification, encourages such activity. In this respect, Respondent's "Employee Handbook" stresses: If you have a complaint, we want to hear and if possible, correct it. For this reason employees are encouraged [to] express their complaints to their im- mediate supervisor or Plant Manager.23 A similar appeal is incorporated in the Company's decla- ration of its antiunion policy, which recites, in material part, as follows: . . . [Y]ou must be open and honest with us, and it is only reasonable to ask that each of you give us the opportunity to respond to any complaint or problem you may have. Be assured that we wll do just how that was accomplished In contrast to this claim, the evidence regarding the work assignment dispute tends to show that the grievants were led to believe that management would react favorably on their complaints, but did not do so Also clear is the fact that management did not respond to the assertion of seniority of qualification or give any reason to the crew as to why new employees or part-timers were given a preference in break work Thus, management's response did not rise to the level considered by the Board in Borden, Inc, 257 NLRB 864, 866 (1981) 21 The complaint includes an independent 8(a)(1) allegation based on uncontroverted testimony by Chris Weiler (a cousin to Gilbert Weiler) that Delperdang, on 27 August, informed him, in the presence of employ- ees Jeff Rueder and Mark Nelson, that Brown and Weiler were dis- charged "because of their constant complaining [Management] tried to work with them on their scheduling and it didn't seem that they could make them happy " Delperdang added that "Bill Caravan was considered [for termination] but after what happened to these two guys, maybe he would get back to being his old self again " These comments implied strongly that participation in concerted activity was a risky endeavor, that had already met with recriminations Delperdang thereby engaged in conduct tending to impede employees in the exercise of Sec 7 guaran- teed, and, accordingly, Respondent further violated Sec 8(a)(1) of the Act in this respect 22 Respondent's mere assertion, in the circumstances, that the dis- charges were based on employee complaints, would require a traditional reinstatement and backpay remedy even if false Board intervention would remain necessary to remove the chilling effects of, the published reason for discharge and to assure Respondent's employees generally that their own assertion of statutory rights will not create vulnerability to like reprisals 23 See G C Exh 2, p 8 our best to resolve these matters in a fair and rea- sonable manner.24 Respondent's proof makes no effort to distinguish the conduct of Weiler and Brown from the reach of that policy. Neither was counseled, formally or elsewise, that their complaints were unreasonable, offensive to manage- ment, or that they might lead to discipline if pursued; Management was fully mindful that Weiler and Brown sought to exercise their claim for break work only against lower rated and/or part-time employees with less seniority As indicated, even if reasonable basis had exist- ed for belief that favoritism was involved, that angle was never examined, investigated, or confirmed by anyone having a voice in the discharge decision. For some un- disclosed reason the senior employees were. discharged without consulting immediate supervisors or business records that would either establish or deny the existence of favoritism Moreover, no steps were taken to ascertain whether employees to be affected by the grievance took offense even though it was only the lower rated and part-timers who could rationally claim that job opportu- nities were threatened by the Weiler-Brown grievance Aside from these indisputable contradictions, Respond- ent's disparate course is irreconcilable' with other em- ployment practices as well. The employee handbook lays out a progressive system of discipline By virtue thereof, discharge is contemplated after a fourth offense, disci- pline that is designed to follow- a verbal warning for the first' violation; a written reprimand for the second, and suspension for the third. In contrast with this formula, Brown and Weiler, during their combined 22-year histo- ry of employment with the Company, had received two disciplinary citations, the most recent being 3 years old. No' explanation ` was offered as to why the progressive system of discipline was ignored in this instance. Quite clearly, the very grievance activity that Respondent en- courages could not have been viewed as inherently'unac- ceptable behavior sufficient on its face to impel immedi- ate discharge.25 The explanation must lie elsewhere. Indeed, other fac- tors enforce that view Thus, although the published reason for the discharges hardly' suggested a sense of ur- gency, they were effected suddenly, while one employee was on vacation, and in the midst of a payroll period. Immediate supervisors were not consulted and Respond- ent acted with such rapacity that there was no time for development of evidence of a primary nature, which would tend' to confirm or refute second- and third-hand allegations that furnished the cornerstone of its case against Brown and Weiler. 24 Id at 3 25 Dave Wells' testimony transcended mere complaints about working conditions Indeed, he related that within the past 1-1/2 to 2 years, qual- ity control personnel accused Weiler and Brown of fabricating tempera- tures and barrel weights Despite the seriousness of these allegations, Wells concedes that there was no followup and it does not appear that evidence actually implicated the dischargees in such misconduct It is not surprising that Wells, as Respondent 's last witness, would attempt to divert attention from the job reassignment grievances He was regarded as a thoroughly untrustworthy witness, bent on digging up any "old bones" that might prejudice one's perception of the alleged discrimina- tees He is discredited on all salient points WELLS BLUE BUNNY 833 The employee handbook once more offers a major clue in the effort to isolate the real causation and to rec- oncile conflicts and implausibilities within the assigned ground for the terminations Virtually at its threshold, that document articulates as follows NON-UNION POLICY: Wells' Dairy is a non- union company and we sincerely want it to remain non-union . More specifically, we believe that a union would be detrimental to all of us. It would reduce our operational flexability [sic] and efficien- cy. It would make things much more complicated and it would create a third party (a go-between) that would destroy the direct, person to person rela- tionship that we now enjoy. Where would we find a third party (union or otherwise) that has as much interest or as much at stake in our company as we do? The management of Wells' Dairy is committed to maintaining a climate that will not cause anyone to want a union or think that we need one. This means that we must continually strive to provide good working conditions, competitive wages and benefits, and fair treatment of everyone It is difficult, how- ever, to fulfill this commitment without everyone's active support and cooperation. This is to say, that you must be open and honest with us, and we think it is only reasonable to ask that each of you give us the opportunity to respond to any complaint or problem you may have Be assured , that we will do our best to resolve these matters in a fair and rea- sonable manner. Coincidentally, just before their discharge Brown and Weiler were engaged in conduct offensive to Respond- ent's position with respect to unionism Both had been involved in discussing the possibility to unionization with coworkers during that summer, and on 26 August, the day before the terminations, those discussions culminated in Brown's actually having succeeded in scheduling a union meeting Personnel Manager Ellis confirmed that on 26 August, Kenny White, an employee and a member of the employee committee, informed Ellis that Brown was involved in union activity. Ellis insists that this report was received after the decision of effect the dis- charges,26 but before Weiler and Brown had been in- formed thereof.27 In the above light, ample evidence points to a strong inference that union activity was at least a motive under- lying these terminations This is supported by the ele- 26 Ellis' concession that on 26 August, prior to effecting the dis- charges, he learned of Brown's union activity is a factor to be considered as supporting the General Counsel's initial burden under Wright Line, 251 NLRB 1083 (1980) The parole testimony by Ellis that the decision had been made earlier, and hence was unaffected by this information, is a matter of defense and does not detract from the prima facie effects of the earlier admission On balance, the testimony of Ellis, Delperdang, and Dan Wells that they had no knowledge of union activity at the time of the discharge decision, when considered against the totality of the indis- putable, objective facts on this record, is deemed improbable and untrue 27 Delperdang testified that after the discharge decision, Kenny White "told us that he thought that one or both of the gentlemen, Glenn or Gib had been in contact with the union or were going to get in contact with the union " ments of union animus, the suspicion that arises from timing, in relation to the advent of union activity, togeth- er with the fact that these long-term employees, with good work records, who had advanced to the most re- sponsible of the rank-and-file positions in the plant, were discharged hastily in violation of Respondent's published employment policies. Under the precedent, such an infer- ence of discrimination may be overridden only by "an af- firmative defense in which the employer must demon- strate by a preponderance of the evidence that the same action would have taken place even in the absence of protected conduct " See Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984). Here, however, the inference of pretext is enforced, rather than allayed by the defense. First, there is the question of timing in relation to the date Respondent's own assigned ground emerged Thus, the most recent of the work assignment complaints took place in mid- August, at least 11 days before the discharge decision was allegedly made.28 Since Respondent acted entirely upon Jelkin's initial allegations and neglected to explore primary sources of corroboration, why the delay? This and other questions are answered by the admitted facts, that on 26 August Respondent acquired knowledge of union activity, and that on 27 August the offenders were discharged. A causal link between these events is plainly reconcilable with Respondent's published antiunion policy, yet Respondent's denial of such a nexus stands ir- retrievably in conflict with its policy encouraging em- ployees freely to make complaints This disparate course, together with the abrupt nature of the action, in the middle of a payroll period, without consulting immediate supervisors or investigating the basis for its action, all in- dicates that the subjective testimony afforded by Re- spondent's witnesses as to both the timing of the decision and the reason for the termination, was false, and in fur- therance of a desperate, shameful design to "nip in the bud" incipient union activity. Accordingly, it is conclud- ed that Respondent has not established by credible proof that Weiler and Brown would have been discharged even if they had not engaged in union activity Hence it is concluded that these discharges violated Section 8(a)(3) and (1) of the Act 29 28 Conflicting evidence on the part of Respondent's witnesses contrib- utes to the probability that the discharges were prompted by a superven- ing, undisclosed cause Thus, Ellis testified that the discharges were trig- gered by a conversation he had with Delperdang in connection with tele- phone messages he allegedly received from Weiler on 22 August Delper- dang, on the other hand, claims that he "initiated" the action by "con- tacting" Ellis and Wells after receiving the reports from Jelkin that em- ployees were upset with the Weiler-Brown complaints Jelkm, who was subsequently given an audience with Ellis and Dave Wells, testified that this occurred either "the week before or two weeks before" the dis- charges This confusion as to the timing of events heightened the proba- bility of testimony by Weiler that the telephone calls were placed on 13 and 14 August It also suggests that Ellis' contrary testimony was de- signed to cover the suspicion engendered by Respondent's limited interest in developing evidence beyond the unconfirmed reports of Jelkin, togeth- er with its otherwise unexplained delay in effecting the discharges until the day after union activity was disclosed-l-2 weeks after its assigned cause for discharge became known 29 An allegation that Respondent violated Sec 8(a)(I) through coer- cive interrogation of employees was based on testimony by Personnel Continued 834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce 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. The Respondent independently violated Section 8(a)(1) by statements to the effect that employees had been discharged because of their participation in activity protected by the Act, and by coercively interrogating employees concerning the union activity of others. 4. Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees Glenn Brown and Gilbert Weiler on 27 August 1986, either because they engaged in concerted activity protected by Section 7 of the Act, or in reprisal for their having engaged in union activity. 5. The unfair labor practices found above are unfair labor practices having an effect on commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of the Act, it shall be recommended that it be ordered to cease and desist therefrom and to take certain affirmative action de- signed to,effectuate the policies of the Act. Having concluded that Respondent discriminatorily discharged Gilbert Weiler and Glenn Brown, it shall be recommended that they be offered immediate reinstate- ment to their former, or substantially equivalent, posi- tions, discharging if necessary any replacement hired since their terminations, and that they be made whole for any loss of earnings and any other benefits by reason of the discrimination against them. Backpay under the terms of this Order shall be computed on a quarterly basis from the date of discharge to the date of a bona fide offer of reinstatement , less net interim earnings , as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977).30 The General Counsel's request for a visitatorial clause is deficient in that it fails to seek relief on the basis of, or to set forth specific reasons as to why, such a provision Manager Ellis Thus, Ellis testified that within a week following the dis- charges, he met with the employee committee Prior thereto, Ellis had heard that a union meeting had been scheduled Accordingly, he inquired of members of the committee as to what was known about the union meeting He was informed that several employees had inquired about the possibility of consulting a local union attorney, and that committee mem- bers had set up a meeting to discuss that possibility with those involved Ellis was told that the employees were concerned about the enforceabil- ity of agreements between the committee and Respondent, and whether the committee actually had independent authority to provide representa- tion Ellis admittedly "suggested" that if they thought they needed legal counsel that "there were a lot of other alternatives besides going to a union attorney " He went on to advise the employees that they might take it up with the Company's owners, who themselves may wish to pro- vide legal counsel In the total circumstances, including the fact that Ellis' interrogation was calculated to obtain information concerning union activity on the part of coworkers, this line of questioning, on the heels of the unlawful discharges , falls well within the standards for unlawful coer- cion set forth in Rossmore House, 269 NLRB 1176 (1984) See, e g , Fimco, Inc, 282 NLRB 653 (1987) 30 See generally Isis Plumbing Co, 138 NLRB 716 (1962) is warranted "in the circumstances of this case." See O. L. Willis, Inc., 278 NLRB 203 (1986), Nathan's Furni- ture Store, 278 NLRB 268 (1986); and Rebel Coal Co., 279 NLRB 141 (1986) - On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed31 ORDER The Respondent, Wells Dairy, Inc., d/b/a Wells Blue Bunny, Le Mars, Iowa, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Coercively interrogating employees concerning union activity (b) Threatening employees that participation in con- certed activity protected by the Act may result in disci- pline, including discharge (c) Discouraging employees from engaging in activity on behalf of a union or from engaging in concerted ac- tivity for mutual aid and protection, by discharging, or in any other manner discriminating against them with re- spect to their wages, hours, or other terms and condi- tions or tenure of employment (d) 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 Glenn Brown and Gilbert Weiler immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them 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 ice cream plant in Le Mars, Iowa, copies of the attached notice marked "Appendix "32 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by the Respondent's authorized representative, shall be posted ' by the Re- a' 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 32 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " WELLS BLUE BUNNY 835 spondent immediately upon receipt and maintained for 60 ent to ensure that the notices are not altered, defaced, or consecutive days in conspicuous places including all covered by any other material. places where notices to employees are customarily (e) Notify the Regional Director in writing within 20 posted . Reasonable steps shall be taken by the Respond - days from the date of this Order what steps the Re- spondent has taken to comply.