Seaboard Farms Of Athens, Inc

776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Seaboard Farms of Athens, Inc and Mary Mitchell Case 10-CA-22686 January 31, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On April 28, 1988, Administrative Law Judge Howard I Grossman issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering 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 briefs and has decided to affirm the judge's rulings,' findings, and conclusions and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Seaboard Farms of Athens, Inc, Athens, Georgia, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order ' The Respondent has excepted to some of the judge s credibility find rags 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 Frank F Rox Jr Esq, for the General Counsel James W Wimberly Jr and Robert Sumner Esqs (Wim berly Lawson Cobb and Leggio) of Atlanta Georgia, for the Respondent Amy Gellins Esq (Nelson and Sweat) of Athens Geor gia for the Charging Party DECISION STATEMENT OF THE CASE HOWARD I GROSSMAN Administrative Law Judge The original charge was filed on 17 July 19871 and an amended charge on 26 August by Mary Mitchell (Mitch ell or the Charging Party) The complaint issued on 27 August alleging that Seaboard Farms of Athens, Inc (Respondent or the Company) discharged Mitchell on 2 June because she engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection, in violation of Sec ' All dates are in 1987 unless otherwise specified tion 8(a)(1) of the National Labor Relations Act (the Act) A hearing was held before me on these matters on 16 and 17 November in Athens Georgia The General Counsel the Respondent and the Charging Party there after submitted briefs On the entire record, and on my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I JURISDICTION Respondent is a Georgia corporation with an office and place of business located at Athens Georgia where it is engaged in the processing of chickens During the calendar year preceding issuance of the complaint, a rep resentative period, Respondent sold and shipped goods valued in excess of $50 000 directly from its Athens Georgia facility to customers located outside the State of Georgia Respondent is an employer engaged in com merce within the meaning of Section 2(6) and (7) of the Act II THE ALLEGED UNFAIR LABOR PRACTICE A Mitchell's Alleged Protected Activities Certain employees of the Company were represented by the United Food and Commercial Workers Local 442 (the Union) Mitchell began working for the Company in 1976 She received three warnings for unreported absen teeism in 1979 1981 and 1985 2 In 1986 Mitchell was promoted to a nonbargaining unit job as a production clerical 3 It was her function in this position to make cer tam that eviscerated chickens on the processing lines were properly presented for inspection by a representa live of the U S Department of Agriculture (USDA) sta tioned in the plant In March 1987, Mitchell appeared as a witness for the Union in an arbitration proceeding The Company had discharged the union steward (Carol Rucker), and a grievance on the matter went to hearing The Company attempted to establish that Rucker a checker was dis charged for just cause because one morning after clock ing in she was not working from the starting time of 8 10 a in to about 8 30 a in Witnesses for the Company included Personnel Manager Kevin D Thigpen Quality Control Manager Paul Sims, and Supervisor James Der ricotte, all of whom also testified in the instant unfair labor practice proceeding Witnesses for the Union included Mitchell and other employees The Union attempted to establish that the Company had instructed Rucker and other checkers that they were not to start working until 8 30 a m 4 On 4 June the Company filed its brief with the arbitrator, in which it stated that Mitchell was grossly mistaken or flagrantly lying, and that [a]t worst she is a liar Al though the Company also criticized the other union wit 2 R Exhs 11-13 3 R Exh 10 The Company calls this position a presentation clerk 4 Jt Exh 1 292 NLRB No 80 SEABOARD FARMS OF ATHENS 777 nesses it did not characterize them in the same manner as it did Mitchell 5 The arbitrator concluded that Rucker had committed an infraction, but that the Company did not have just cause to discharge her Accordingly he ordered the Company to reinstate her without backpay 6 B Asserted Additional Evidence of Animus Mitchell testified that, prior to the arbitration she cus tomanly ate lunch in the company cafeteria with her aunt, Union Steward Johnnie Mae Jackson, and with other employees She continued this practice after the ar bitration hearing, and spoke with Union Steward Randall Hadley in the cafetena Hadley corroborated this, and testified that he met with quality control employees in the lunchroom after the arbitration According to Mitchell, Supervisor James Derricotte said to her that she was eating lunch with them Union folks again and that she ought to be tired of eating lunch with those folks Mitchell affirmed that this was the first time any supervisor had commented about her luncheon companions After Derricotte s statement, Mitchell started eating lunch in the quality control office Derricotte denied seeing Mitchell have lunch with Jackson or Hadley and denied speaking to her about it I credit Mitchell because she was a more trustworthy wit ness than Derncotte Carol Rucker testified that, after her reinstatement, Personnel Manager Thigpen told her that the Company would not tolerate any retaliation on [Rucker s] part, and warned her against filing petty grievances [to] get back at the Company' The Company refused to meet with her on grievances and would only discuss them with Steward Hadley Personnel Manager Thigpen testi feed that he had a conversation with Rucker to clear the air and tell her that the Company had no animosity towards her He also expressed his hope that Rucker had no animosity toward the Company According to Thigpen, this was the extent of the conversation He also stated that Rucker s belief that he would not let her file grievances was a misunderstanding on her part which he clarified with a call to Steward Hadley Quality control employee Maebelle Smith testified that after the arbitration, the Company removed a tele phone from the quality control office and required qual ity control employees to request permission to go to the lounge to reach a pay telephone Quality Control Super visor Mark N Morris agreed that this was done but averred that the purpose was to prevent hourly employ ees from coming to the quality control office to use the telephone and to make availability of a telephone con sistent for all employees Maebelle Smith also testified that the Company discon tinued the practice of allowing quality control employees to get their checks the day before payday Quality Con trol Supervisor Morris contended that this change was made by the accounting department and that it was ap plied uniformly to all employees The Company elicited evidence to rebut an inference of animus toward Mitchell Thus Quality Control Man ager Sims testified that he caused a bond to be posted for Mitchell on an occasion when she was arrested on a fraudulent check charge Sims did not remember the date, but asserted that it was in the spring and subse quent to the arbitration hearing Mitchell testified that her purse containing her checkbook, was stolen from her locker at work, that she did not write any of the checks, prosecuted the individual responsible paid the amounts involved, and that there are no charges pending against her These events took place in mid January ac cording to Mitchell, i e, prior to the arbitration proceed ing C Mitchell s Absences and Prior Reports-Mitchell s Discharge Mitchell was discharged for the asserted reasons of ex cessive absences and failure to make timely reports This puts in issue various conversations between Mitchell, su pervisors, and other employees the dates of these con versations and the presence or absence of individuals in the plant on various days 7 The evidence is sharply con flicting 1 Summary of the evidence a Mitchell s absences on 11 and 12 May and asserted Final Warning on 13 May Mitchell affirmed that she had to leave work early on 11 May because her babysitter informed her that her baby was sick Quality Control Supervisor Morris testi fled that Mitchell informed him of this, and that he gave her permission to leave Mitchell averred that she took the baby to a doctor learned that he had bronchitis and was told to stay home with him the following day 12 May Mitchell stated without contradiction that she re ceived a doctors excuse and, on the same day went back to the plant and gave it to her immediate supervi sor, James Derricotte Derncotte testified that he received a report that Mitchell called in (that she would not be at work) at 10 30 am on 12 May Mitchell denied this Derricotte did not deny receiving a doctors excuse from Mitchell Quality Control Supervisor Morris testified that he learned about Mitchell s absence on 12 May because she was not at her work station Morris contended that he asked Derricotte whether Mitchell had called and that Derricotte replied that she had called at 10 30 a in and had stated that she would not be in to work Derricotte denied making this report to Morris The time 10 30 ap pears in the 12 May space on Mitchell s attendance card 8 However, the letters F S," indicating that Mitchell was on leave that day for Family Sickness, also appear in the same space Mitchell testified that he first began making entries on Mitchell s attendance card on 18 May leaving the issue of the 12 May entries an unresolved question 8GC Exh 2 6 Jt Exh I The award is dated 10 July ' The evidence on the Company s rules on leaves of absence report ing and discipline is considered hereinafter 8 R Exh 6 778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On 13 May according to Morris he called Mitchell into the quality control laboratory and asked her the reason she had been absent the day before Mitchell gave him the reason Morris then told her about the impor tance of her job and the necessity of calling in prior to the beginning of her shift if she would not be at work Morris stated that, prior to 13 May, he had not told Mitchell to call in before her shift began Morris then testified that he served a final warning on Mitchell The warning is a memo that Morris signed and put in Mitchell s file 9 Morris admitted that Mitchell never saw the memo, that he did not give her a copy and that she did not sign it Derricotte asserted that he and/or Sims told Mitchell before 13 May to call in more than an hour ahead of time Mitchell denied any conversation with Morris on 13 May, denied that he gave her a final warning, denied that he told her to call in before the beginning of her shift, and denied that anybody else from management said this to her b Mitchell's requests for leave 18 and 19 May (Monday and Tuesday) Mitchell testified that she called Supervisor Derricotte at probably about 9 30 a in on 18 May (Monday) and informed him that she had babysitter problems She asked for a 30 day leave of absence, but added that she would return before that time if she obtained a babysit ter According to Mitchell, Derricotte replied that he was sure that it would be all right, as long as Mitchell talked with Quality Control Manager Sims Derricotte tried to connect Mitchell with Sims' office, but there was no answer Derricotte told Mitchell to call Sims the next day Tuesday Derncotte agreed that Mitchell made a call on the morning of 18 May but asserted that it was at approxi mately 10 15 am He testified initially that Mitchell only informed him that she could not come in because her baby was sick He was then shown a copy of a pretrial statement which he signed,' ° and agreed that he was aware that Mitchell wanted a leave of absence The memo is dated 13 May and reads Mary Mitchell left early on Mon May 11 and did not come to work on Tues May 12 She did not call in until 10 30 and told Monica in personnell [sic] On Wednesday May 13 I told her this is a final warning that she must get in touch with the supervisor James Derncotte or myself in the event of a necessary absence She must call in before her starting time (R Exh 3) 10 Derncotte s statement reads as follows On Monday morning 5-18-87 Mary Mitchell call in [sic] at 10 15 a in to tell me (James) that she would not be in that day be cause her baby was sick On Tuesday morning 9 45 a in she call in [sic] again saying that she wouldn t be in to work today because she couldn t find a baby sitter for her child And that she would call back to talk to the nurse about a leave of absences [sic] for 30 days On Wednesday she call in again but I d do t talk with her this time she spoke with Betty Starke On Thursday (10 a in ) Mary call in again saying that she wouldn + be in to work because she still didn t have a baby sitter for her child And that she had spoken with Kevin Thigpen that day before She didn t say what about But she did say he told her to get in touch with Paul Sims that up comeing [sic] Tuesday (R Exh 9) Quality Control Supervisor Morris testified that Super visor Derricotte informed him that Mitchell called in around 10 15 a in on 18 May [Monday] and that Derri cotte had talked to her about her babysitting problem Morris testified that he recorded the fact that Mitchell called in late on her attendance card 11 Morris nor mally does not make entries on attendance cards This is a function of employees in the personnel department Morris averred, however that he himself made the en tries on Mitchell s card beginning 18 May because she had been having attendance problems An entry on Mitchell s card stating that she was out because of family sickness on 17 May a Sunday, was an error according to Morris Mitchell testified that she called the office between 9 30 and 9 45 a in on 19 May (Tuesday) and asked for Quality Control Supervisor Sims He was not in, and Mitchell spoke with quality control employee Betty Joe Starke Mitchell asked Starke to inform Derncotte that she was calling in for the day Derricotte testified that Mitchell called in on 19 May (Tuesday), said that her baby was sick, that she did not have a babysitter, and wanted to talk to the nurse about a 30 day leave of absence Derricotte agreed that Mitch ell spoke with Starke whose starting time was 9 20 a in Morris testified that Derricotte told him that Mitchell called in at 9 45 a in c Mitchell s visit to the plant on 20 May (Wednesday) Mitchell did not have a telephone and testified that Derncotte sent a night shift employee to her residence on 20 May (Wednesday) to inform her that he wanted to see her at the plant Derricotte denied sending this mes sage Mitchell testified that she went to the plant, but there was no quality control supervisor in the office Mitchell caused Quality Control Manager Sims and Supervisor Derncotte to be paged, but there was no response Qual ity control employee Maebelle Smith testified that on one occasion she heard Mitchell s voice on the loud speaker calling for Derricotte Smith talked briefly with Mitchell who did not reach a supervisor Mitchell testified that she then talked with plant nurse Mane Strickland and asked for a leave of absence Strickland informed her that she would have to go through Quality Control Manager Sims or Personnel Manager Thigpen Nurse Mane Strickland corroborated Mitchell, testifying that the latter came to her office about a leave of absence because of her babysitting prob lems Mitchell assertedly told Strickland that Derncotte had instructed her to talk to Sims and Thigpen and Strickland agreed Derricotte contended that he did not see Mitchell in the plant that week " R Exh 6 SEABOARD FARMS OF ATHENS 779 d Mitchell s conversations with Personnel Manager Thigpen and Supervisor Derricotte on 21 May (Thursday) Mitchell affirmed that she called the office of Person net Manager Thigpen on 21 May (Thursday) but did not reach him Instead, she got Personnel Assistant Don Foster on the phone Thigpen was on another line When he hung up, Foster relayed a message from Thigpen that he could do nothing with Mitchell s leave request until she talked with Quality Control Manager Sims, and that the latter was going to be out of town until ` the follow ing Tuesday (The following Monday 25 May was Me monal Day) Personnel Manager Thigpen agreed that Mitchell called his office about a leave, and that Thigpen replied, through Foster, that Mitchell would have to contact Quality Control Manager Sims Mitchell testified that she then called Supervisor Der ncotte and said that she was calling in for the day Ac cording to Mitchell, Derricotte told her not to call in any more until she had spoken with Sims In the mean time, although Derncotte himself could not grant a leave of absence, he told Mitchell that he was going to classify her absences as due to family sickness " Derncotte ad vised Mitchell to come to the plant the next day Friday, to taik to Sims Although the latter was going to be out of town," Mitchell could probably see him before he left Derncotte admitted that Mitchell called him on 21 May (Thursday) and informed him that she had talked with Thigpen Although Derncotte initially denied that Mitchell reported a statement from Thigpen that Mitch ell should see Sims about her leave , Derricotte ultimately agreed that Mitchell reported this to him Derncotte also denied that Mitchell repeated Thigpen 's advice that Mitchell get in touch with Sims the following Tuesday (26 May), but, after having been shown his pretrial state ment, t 2 admitted that Mitchell said this to him Derricotte agreed that he told Mitchell that her ab sences on 18 and 19 May (Monday and Tuesday) would be counted as family sickness He defined this as leave granted to allow an employee to care for a sick family member However, Derricotte contended that he told Mitchell that only 18 and 19 May would be counted as family sickness On the other hand , Derricotte denied that he had any authority whatever to grant leaves of ab sence Derncotte also denied telling Mitchell not to call in any more until she had spoken with Sims, but agreed that he spends little time in the office and that it would make little sense for him to come to the office and take the same telephone message from Mitchell every day Derncotte testified that he knew Mitchell wanted a leave of absence, but did not inform Morris or Sims of this fact Morris testified that he knew Mitchell wanted a leave, but never acted on it because he was uncertain whether he or Sims was supposed to handle the request, and because Mitchell never asked Morris for a leave Derncotte contended that he knew Mitchell had asser tedly received a final warning ' the prior week but 12 Supra, fn 10 never told her or his supervisors that supposedly she was again calling in late e Mitchell s visit to the plant on 22 May (Friday) the poultry seminar in Atlanta and Morris' asserted order that Mitchell be in his office on Tuesday (1) Mitchell s visit to the plant Mitchell testified that she went to the plant on Friday and arrived between 11 and 11 30 a in together with her cousin and her baby She saw Quality Control Supervi sor Morris at 11 30 a in He was in personnel , going out the door ' Mitchell asked him who had the checks Morris answered that he did not know but said that he would go and see Morris then left , and returned with Mitchell s paycheck Mitchell asked Morris whether Sims was back, and Morris replied that he was still out of town " Morris was wearing a dress shirt, tie, and dress pants, unlike his normal work attire According to Mitchell , Derricotte again told her not to call him because he was still putting her down as family sickness,' and reminded her to call Sims the day after Memorial Day Derricotte denied making any such statements and denied seeing Mitchell that Friday (2) Morris whereabouts on 22 May-the poultry seminar in Atlanta Morris denied speaking to Mitchell on 22 May and denied being in the plant He contended that he was in Atlanta on 21 and 22 May (Thursday and Friday) attend ing a seminar on poultry processing According to Morris, he left the plant alone on Wednesday afternoon, drove to Jefferson , Georgia, and from there drove to At lanta with Sims in the latter 's car They spent Wednes day and Thursday nights in Atlanta and assertedly re turned on Friday afternoon The seminar was over about 1 p in Morns and Sims drove back to Jefferson, where Morris picked up his car He drove to his home in Athens, arriving about 3 p m Morns said that he showered and changed and then drove to the company parking lot for a bus ride with his wife and other em ployees back to Atlanta-for Willie Nelson s Night of Nights According to Morris the bus left the company parking lot at 3 30 p in Morris could not remember when he and other employees checked out of the Atlanta hotel-it `may have been in a break Asked whether he picked up his paycheck on Friday, Morris stated that he could not remember whether 21 May (Thursday) was a payday He normally picks up his check from the per sonnet secretary and agreed that he could not have done so on Thursday because he was in Atlanta Morns sug gested that he may have picked up his check the prior Wednesday He agreed that he wore dress clothes to the seminar, unlike his normal work clothes Sims testified that he and Moms left Atlanta on Friday around noon or shortly thereafter " They drove in Sims car to Jefferson, a drive of about an hour and a half, arriving about 3 p in Morris picked up his own car and drove back to Athens, a distance Sims estimated as 20 miles Sims changed clothes and, with his wife, drove to Athens to pick up the bus going back to Atlanta for 780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Willie Nelson show Unlike Morris, Sims contended that the bus left between 5 and 5 30 p in The first time he saw Morns-after their joint arrival in Jefferson-was when he pulled into the company parking lot Sims as serted that he then saw Morris and his wife arriving in their car, but had no knowledge whether Morris went into the plant Respondent submitted various documents in support of this evidence A poultry association brochure shows a poultry seminar on 21 and 22 May in an Atlanta hotel, but without any designation of the seminar hours on Friday 13 The Company also submitted weekly expense reports submitted by Morris and Sims These show a cash advance of $300 on 20 May (Wednesday), but hotel charges for Tuesday and Wednesday with three charged meals and a room charge for each day, and two charged meals for Thursday (21 May) 14 Sims testified that this was an error on his part and that the charges should have been for Wednesday, Thursday , and Friday Morris testified that Sims filled in and signed Morris voucher 15 Respondent also submitted a restaurant bill dated 21 May (Thursday), 1 a and vouchers of two other company em ployees who attended the seminar One of them shows charges for Thursday and two meals on Friday" while the other shows charges for Wednesday and Thursday and travel from Atlanta to Athens on Friday, but no charges for that day 18 The Company did not submit copies of hotel bills (3) Morris asserted order that Mitchell be in his office on Tuesday (26 May) Jackie Crowley, a secretary, testified that Morris di rected her to tell Mitchell to come in at 8 a in on Tues day, 26 May Crowley could not recall the date of this instruction According to this witness, Mitchell called her on Friday 22 May said that she was having babysit ting problems and wanted to talk to Morris about a leave of absence Crowley contended that she then informed Mitchell to be in Morris office the following Tuesday at 8 am, because they would be back in town Tuesday Morris testified on direct examination that he left a message with Crowley to inform Mitchell to be in his office Tuesday at 8 a in On cross examination he agreed that he never communicated directly with Mitchell about this appointment and did not know whether Crowley or anybody else did so Although Sims assertedly told him during the trip to Atlanta that Mitchell wanted a leave Morris did not inform Sims that he had arranged a meet ing with Mitchell the following Tuesday Mitchell denied speaking to Crowley about a leave of absence She denied that Crowley ever instructed her to come to Morris office on Tuesday, 26 May and denied speaking with Crowley on the phone on Friday 22 May-instead, as indicated , she testified that she went to the plant and actually saw and spoke with Morris but 13 R Exh 16 14 R Exhs 4 and 8 1s R Exh 4 16R Exh 4 17 R Exh 18 Ron Smith 18 R Exh 17 Willie Morris not about a leave, because Thigpen had told her to talk with Sims about the matter f Mitchell s conversation with Quality Control Manager Sims-Mitchell s Attempted Call to Morris Mitchell and Sims agree that they had a telephone conversation, but disagree about the date According to Mitchell, she finally reached Sims by phone on Tuesday (26 May), the day after Memorial Day Sims told her that he was going to let Morris handle the case about [her] leave ' Mitchell s reply Well Paul, I just saw Nathan [Morris] Friday If I had known, we could have went on and got it settled then Sims agreed that he had a conversation with Mitchell and that he referred her to Morris However, he con tended that this conversation took place the prior week, on 20 May (Wednesday) Sims wrote a memo to memori alize the conversation and the date 19 He was positive" about the date and writes such memos when there seems to be a problem building up Sims did not tell Mitchell that there was any problem regarding her ab sences or reporting in although Morris assertedly had been telling him all during the time that this was going on probably on a day to day basis , that Mitchell was absent or did not call in According to Mitchell, after her talk with Sims on Tuesday, she called the plant again and tried to reach Morris without success Instead, she got quality control employee Maebelle Smith and asked her to give Morris a telephone number at which he could reach Mitchell, who did not have a phone of her own Maebelle Smith testified that prior to Mitchell s dis charge, the company telephone operator gave her Mitch ell s name and a number Smith called, and Mitchell asked her to give the phone number to Morris and ask him to call because the Company had been giving Mitch ell the runaround Smith tried to locate Morris with out success She next saw him the following morning and told him that Mitchell had called Morris replied ac cording to Smith that the matter had been taken care of Mitchell testified that Morris never called her Morris testified that Mitchell did not show up on Tuesday pursuant to his asserted message to her He averred that in the afternoon he told Supervisor Derri cotte that Mitchell was not in his office , but did not in struct Derricotte to get her in to work Morris contend ed that the last time anybody in the plant heard from Mitchell prior to her discharge was 21 May (when Der ricotte admittedly talked with her) Morris however did not rebut Maebelle Smiths testimony that she told him Mitchell had called, and that Morris replied that the matter had been taken care of' 19 The memo is dated 20 May and reads Mary Mitchell call [sic] me today from outside the plant and told me that she wanted to come to the plant and discuss a leave of ab sence I told her that she needed to discuss this matter with Nath Morris She answered 0 K and had no further comment [R Exh 7] SEABOARD FARMS OF ATHENS g Mitchell s discharge Mitchell testified that, from 27 May to 10 June, she called in on some occasions , but not every day On cross examination, Respondents counsel, utilizing Mitch ell s notes, elicited testimony that she called in on 27 and 29 May, and on 2 and 4 June Mitchell said that she did not call every day because she felt the Company was giving her "the runaround , and because Derncotte had told her not to worry about calling until she talked with Sims Respondent submitted purported lists of employees who had called in from 26 May to 9 June , and Mitchell s name does not appear thereon 20 Personnel Director Thigpen testified that the call in list is maintained by em ployees in the personnel office , and that the phones are open from 10 p in until the following 5 p in If an em ployee reports an absence to a supervisor instead of the personnel office, the supervisor is supposed to report this fact to the office There is no particular form for this latter report Morris affirmed that he decided to discharge Morris Although he was the one who made the decision, he first consulted with Quality Control Manager Sims, who gave his approval Morns was uncertain what he would have done if Sims had opposed the discharge Sims agreed that Morns consulted with him about the matter during the week of 26 May, and that he gave the matter his blessing ' Sims did not ask Morris what the latter had done about Mitchell s leave request On 1 June, Morris sent Mitchell s termination notice to the personnel office The stated reasons were an exces sive amount of absences and unreported absences 21 Mitchell did not receive this notice of her discharge According to Personnel Manager Th gpen termination notices are not mailed out immediately They are nor mally sent with paychecks If an employee fails to pick up his paycheck after a few weeks the termination no tices are mailed out h Mitchell s conversations with Morrison 9 and 10 June Mitchell and Morris agree that she reached him by phone on 9 June (Tuesday) According to Mitchell she asked him what had been done about her leave request, and Morris replied that he did not know He asked her to call back the next morning Morris testified that he did not tell Mitchell she had been discharged because he wanted to make sure that something else hadn t been done Morris averred that he was new' in his position and uncertain about compa ny policy on leaves of absence At one time he thought Sims was going to handle Mitchell s leave request, and then Sims referred it back to him Personnel Manager Thigpen asserted that there was a ` transition of manage ment " that Sims was the quality control manager for the complex, and that Morris was taking over Sims duties as plant quality control supervisor Supervisor Derncotte however, testified that he reported to both 781 Sims and Morris that there was no change in this proce dure during the period prior to Mitchell s termination, and no change in Morns duties As indicated, Morris testified that, although he knew Mitchell wanted a leave of absence he never acted on the request because Mitchell never made it to him Mitchell called Morris the next day , 10 June and again asked about her leave Morris replied that she had been terminated This was Mitchell s first notice of her discharge 2 Factual analysis a Credibility resolutions It is undisputed that Quality Control Manager Morris gave Mitchell permission to leave early on 11 May be cause her baby was sick I credit Mitchell s uncontradict ed testimony that the doctor gave her a written excuse to stay home the following day, and that she delivered this excuse to Supervisor Derncotte I reject Derricotte s and Morris testimonies about Mitchell 's asserted call on 12 May at 10 30 a in, and credit her denial that she made such a call Mitchell would have had no reason to make a call because she delivered a doctor s excuse to Dern cotte justifying her absence from work on 12 May The fact that she was on leave on 12 May because of family sickness appears on her attendance card 22 Because the time 10 30 a in also appears in the same space , I infer that it was placed there to buttress Respondents conten tion that Mitchell committed the infraction of calling in late Morris testimony that he served a final warning on Mitchell on 13 May (Wednesday) is improbable because Morris admitted that Mitchell never received or signed the asserted warning , and in fact did net even see it As appears hereinafter, Mitchell was the only nonsuperviso ry employee who supposedly received an unwritten final warning prior to discharge-Respondent's consistent policy was to issue such warnings in written form It is improbable that Morris first learned on 13 May (Wednesday) the reason for Mitchell s absence the prior day by asking her the question Mitchell had received permission to leave early on Monday from Morris him self, and had already given the doctor s excuse covering Mitchell s absence on Tuesday to Supervisor Derricotte Further, the fact that Mitchell was on leave Tuesday for family sickness appears on her attendance card I there fore reject Morris testimony that he talked with Mitch ell on 13 May then learned the reason for her absence the previous day, gave her a final warning, or told her to report prior to the beginning of her shift if she could not be at work Instead I credit Mitchell's denial that this conversation took place It is undisputed that Mitchell called Supervisor Derri cotte the following week , on 18 May (Monday) and asked for leave because she had babysitter problems Al though Derncotte initially denied that Mitchell requested leave he was compelled to admit it after having been shown his pretrial statement I credit Mitchell's testimo 20 R Exh 15 21 R Exh 5 22 R Exh 6 782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ny that Derricotte told her that he was sure that it would be all right' as long as Mitchell communicated with Quality Control Manager Sims I also credit her tes timony that she called at probably about 9 30 a in Re spondent argues that Derricotte and Morris should be credited that Mitchell called in at 10 15 a in because of the `certain terms ' of their testimonies 23 However, as indicated, their terms were no more certain than Mitch ell s I credit Mitchell s uncontradicted testimony that she tried to reach Sims the next day, Tuesday, without suc cess It is also clear from Derricotte s admission that she reported she would not be in to work that day Her at tendance card corroborates her testimony that this call took place at 9 30-9 45 a m 24 Mitchell s testimony that she went to the plant on 20 May (Wednesday), tried to page Derricotte, and talked to Nurse Strickland is corroborated by the testimonies of Strickland and Maebelle Smith Although neither was specific about the date of this visit, their accounts of it are consistent with Mitchell s uncontradicted version Respondent argues that I should not credit Mitchell s tes timony that Derncotte sent a message to her because the employee who supposedly brought the message was not called as a witness It is obvious, however, that Mitchell did go to the plant and try to reach Derricotte I credit Mitchell s account of the reason for this visit and what took place It is undisputed that Mitchell called the office of Per sonnel Director Thigpen and was told, through Person nel Assistant Foster that Mitchell would have to talk to Sims about her leave request I credit Mitchell s uncon tradicted testimony that Foster added that Sims would be out of town until the following Tuesday (26 May) Derricotte, once again, was compelled to admit that Mitchell reported the Thigpen call to him on Thursday, after having been referred to his pretrial statement I credit Mitchell s testimony that the call to Thigpen s office took place on 21 May (Thursday) I also credit Mitchell s testimony that Derricotte told her on Thursday (21 May) not to call in any more until she had spoken with Sims and that she might be able to reach him at the plant the next day before he left town I further credit Mitchell s testimony that Derncotte said he would list her absences as Family Sickness until she met with Sims Derncotte s attempt to limit the Family Sickness reason to 18 and 19 May (Monday and Tues day) is not credible Derncotte contradicts himself by stating that he would list some of Mitchell s absences as due to family sickness and then denying that he had any authority to do so Derricotte agreed that it would not be feasible for him to come to the office to receive the same report every morning from Mitchell, prior to her seeing Sims Derncotte was a reluctant witness who changed his testimony when confronted with his pretrial statement For these reasons I accept Mitchell's testimo ny about this aspect of her conversation with Derricotte I do not credit Crowley's testimony that Mitchell called her on 22 May (Friday) asked to speak with Morris, and that Crowley told Mitchell to be in Morris office the following Tuesday Mitchell would have had no reason to call Morns-Thigpen and Derncotte told her to call Sims Crowley could not recall the date of the asserted order from Morris, and the latter was uncer tarn that the order was ever communicated to Mitchell Sims supposedly told Morris on the trip to Atlanta that Mitchell wanted to discuss a leave with Morris It is likely that Morris would have responded that he had issued an order that Mitchell was to be in his office the following Tuesday The fact that he did not say this to Sims suggests that there was no such order I credit Mitchell s denial that Crowley gave her any such in struction, or that she even spoke with Crowley I credit Mitchell s uncontradicted testimony that she went to the plant on 22 May (Friday) and obtained her paycheck Whether she obtained it from Morris depends on the validity of Morris and Sims' testimonies that Morris was in Atlanta about midday when, Mitchell tes tified, she saw Morris in the personnel department Respondents evidence about the Atlanta trip is not persuasive Although it seems clear that Sims and Morris made the trip, the evidence does not establish beyond doubt that Morris was not back in the plant by the middle of Friday Sims and Morris contradict each other on the time that the bus left for the Willie Nelson show Assuming arguendo that Sims truthfully reported errors in the dates on the expense vouchers (which Morris did not sign), there is no independent documentary evidence, such as a hotel bill or a restaurant charge, showing the time that Sims and/or Morris left Atlanta on Friday As suming that the two meal charges on Thursday should have been allocated to Friday, the company expense voucher does not establish the location of the meals The poultry association brochure does not show when the seminar ended-assuming that Sims and Morris remained until the end The voucher of one of the other employ ees who attended the seminar shows no Friday charges 25 The possible presence of Sims and Morns in the plant Friday morning is suggested by Derricotte s advice to Mitchell that she might be able to reach Sims Friday morning before he left town This advice would be consistent with Sims and Morris returning from Atlanta to Athens Thursday night There is no independent doc umentary evidence to show that Sims and Morris stayed in Atlanta Thursday night-they could easily have come back on Thursday evening after the meal in the Atlanta restaurant, a driving time of about 2 hours according to Sims testimony Or if they remained in Atlanta the same driving time would have made it possible for Morris to be back in the plant at midday on Friday Mitchell's testimony that she saw Morns wearing dress clothes in the personnel department about 11 30 a in is corroborated by Morris account of what he wore to the seminar and by Morris acknowledgment that he nor mally picks up his check from the personnel secretary Because Mitchell received her paycheck on Friday I conclude that the other employees also received their 23 R Br at 16 24 R Exh 6 25 R Exh 17 SEABOARD FARMS OF ATHENS pay the same week Morris said he could not have ob tamed his paycheck on Thursday because he was in At lanta His suggestion that he may have picked it up on Wednesday is contradicted by his own testimony that the accounting department stopped early delivery of pay checks Accordingly, the record contains no evidence of how Morris obtained his paycheck that week-unless as Mitchell testified, Morris was back in the plant on Friday and received it at that time If Morris did not re ceive his paycheck that week, Respondent undoubtedly had records that would have established this fact The fact that the Company has not submitted any such records constitutes evidentiary support for Mitchell s tes timony that Morris was in the plant on 22 May 26 I therefore credit Mitchell s testimony that she saw Morris in the plant on Friday and spoke with him I also credit Mitchell 's testimony that she saw Dern cotte at the plant, that he told her he was still listing her absences as family sickness and that she was to call Sims the following Tuesday It is probable that Derricotte, like Mitchell and Morris, also obtained his paycheck on Friday Further, as already indicated , Mitchell was a more trustworthy witness than Derncotte There is no doubt that Mitchell and Sims had a tele phone conversation in which the latter told Mitchell to talk to Morris about her leave request However, Sims assertion that this conversation took place on 20 May (Wednesday) is contradicted by Derricotte s admission that Mitchell told him on 21 May (Thursday) that Thig pen had instructed her to speak with Sims about her leave request It is highly improbable that Mitchell would have said this to Derricotte on Thursday if in fact, she had already spoken with Sims the prior day (Wednesday) and he had instructed her to speak with Morris Further Mitchell s account of her conversation with Sims including the protest that she could have talked to Morris about the leave request the previous Friday (22 May) at the plant adds verisimilitude to her testimony These factors have more probative weight than Sims averments including his asserted documenta tion of the date Accordingly I credit Mitchell s testimo ny that the conversation with Sims took place on 26 May (Tuesday) I further credit Mitchell s testimony that following her conversation with Sims on 26 May she tried to reach Morris on the telephone Because Mitchell could not reach Morris she told Maebelle Smith to tell Morris to call her Although Smith did not specify the exact date of this conversation she testified that it took place prior to Mitchell s discharge Smith s testimony therefore constitutes substantial corroboration of Mitchell, and I find that the conversation between Mitchell and Smith took place on 26 May (Tuesday), following Mitchell s conversation with Sims Smith s further testimony that she reported Mitchell s call to Morris the next day i e 27 May (Wednesday), and that Morris replied that the matter had been taken care of was not specifically denied by Morris Accord ingly I credit Smith s testimony and reject Morris claim 783 that nobody in the plant heard from Mitchell after 21 May I further credit Mitchell s testimony , elicited by Re spondent and corroborated by her notes , that she called the plant on 27 and 29 May (Wednesday and Friday) prior to her discharge on 1 June Respondents asserted records of call ins27 do not constitute effective rebuttal of Mitchell s testimony Personnel Director Thigpen agreed that any employee could call in to a supervisor instead of to the personnel department, and there is no established form for this report Respondent did not submit call in sheets for the week of 18 May during which, its supervisors admitted Mitchell did call in In these circumstances the call in sheet for the following week standing alone has less probative weight than Mitchell s testimony corroborated by her notes I do not credit Respondents assertions that a manage ment change and resulting confusion were the reasons that Thigpen told Mitchell to talk to Sims while the latter told her to talk to Morris This evidence is contra dicted by Derricotte's admission that there was no change in Morris duties during the relevant events b Summary There is little dispute about the rest of the facts In summary, the credited or undisputed evidence shows that Mitchell obtained permission on 11 June from Qual ity Control Supervisor Morris to leave work early be cause her baby was sick and thereafter delivered a doc for s excuse covering her absence for the next day Tues day On the following Monday ( 18 May), Mitchell request ed a leave of absence because she did not have a babysit ter and was told by Supervisor Derricotte that he was sure it would be all right as long as she talked with Qual ity Control Manager Sims On Tuesday ( 19 May), Mitch ell tried to reach Sims without success and reported to the office that she would not be in to work On Wednes day (20 May), Mitchell went to the plant in response to a message sent to her by Supervisor Derricotte and paged him but could not reach him Mitchell then requested a leave from a company nurse but was told she would have to communicate with company supervisors On Thursday (21 May) Mitchell called Personnel Di rector Thigpen and was told that she had to talk to Quality Control Manager Sims about her leave but that Sims would be out of town until the following Tuesday On the same day Thursday , Supervisor Derricotte, who testified that Mitchell said on 18 May that her baby was sick told Mitchell that he would classify her absences as family sickness -in effect granting her a leave-until she talked with Sims Derricotte also suggested that Mitchell try to reach Sims at the plant the next day before he left town Mitchell went to the plant on Friday and saw Morris, who told her that Sims was still out of town She also saw Derricotte who told her that he was continuing to list her absences as Family Sickness and reminded her to call Sims the following Tuesday 26 Penn Industries 233 NLRB 928 936 (1977) 27 R Exh 15 784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On the Tuesday following Memorial Day (26 May) Mitchell finally reached Sims, who told her that she had to talk to Morris Mitchell protested to Sims that she had just talked with Morris on the prior workday (Friday), at which time the matter could have been resolved None theless, Mitchell tried to reach Morris, without success Accordingly, she told Maebelle Smith to tell Morris to call her at a number at which she could be reached Smith gave Morris this message the following day, and was told that the matter had been taken care of Mitchell called the office on two further occasions that week (Wednesday and Friday) There is no evidence that Derricotte, Thigpen or Sims told Mitchell that she was calling in late ' Although Morris asserted that he gave her a final warning and discussed calling in with her on 13 May, I have not cred ited this testimony Morris admitted that he had a re placement for Mitchell during her absences In short, during the 2 week period preceding her dis charge Mitchell, with the exception of 1 working day (28 May), either called the plant, called and spoke with a supervisor, attempted to speak with a supervisor, or ac tually visited the plant On 1 June Morris sent Mitchell s termination notice to the personnel department, termination was for excessive and unreported absences Morris testified that he never acted on Mitchell s leave request because she had never made the request to him personally although he assert edly had learned from Sims prior to 22 May (Friday) that he was supposed to talk to Mitchell about her leave and, as I have found actually talked to Mitchell that Friday As Mitchell pointed out at the hearing, she did not know on Friday that she was supposed to talk to Morris about her leave and accordingly, asked him whether Sims was back in town News of Mitchell's discharge was not communicated to her on 1 June She reached Morris on 9 June asked about her leave and was told to call back the next day Mitchell did so and Morris then informed her that she had been terminated D Respondents Policies on Personal Leaves of Absence Personnel Director Thigpen testified that the Compa ny gives leaves of absence for medical and `personal' reasons It is the employees responsibility to initiate the leave request with his or her immediate supervisor, which in Mitchell s case was Morris According to Re spondent's witness Crowley, supervisors could approve personal leaves as late as 1986 but thereafter, begin ning January 1987 the departmental superintendent and the personnel manager had to approve such leaves Per sonnel Director Thigpen testified to the same effect Thigpen testified that granting a request for a personal leave of absence required assessment of subjective factors on a case by case basis, and that he tries to investigate the circumstances surrounding each request However, he does not consider the absence of a babysitter to be adequate reason for a personal leave of absence Thigpen did not know why various personal leaves were granted by him in 1986 28 but explained that these were given prior to the time he became personally in volved in such matters However, Thigpen did not know the circumstances underlying a personal leave request in March 1987 29 nor was he familiar with the facts justify ing his approval of a leave from 29 June to 3 August 1987 allowing an employee to visit Taiwan because her grandmother was `ill 30-about 2 months before the hearing in this matter E Respondents Rules on Reporting Absences 1 Summary of the evidence Respondent s rules required discharge in the event of 2 consecutive days of unreported absences, in some in stances two unreported absences within 6 months The factual issue is what constituted effective reporting of an absence Personnel Director Thigpen testified that bargaining unit employees were required to report within 2 hours after the shift began, or the absence was consid ered to be unreported Thigpen also testified that the rule was otherwise re garding employees not in the bargaining unit They were required to report by the time specified by the shift su pervisor and in all cases before the shift starts Quality Control Manager Sims affirmed that because it was a USDA requirement that the Company have a presentation clerk employees were told the importance of being on the job every day Sims asserted that he said this to Mitchell at the time she was promoted to the po sition of presentation clerk Sims also testified that the Company had to know before the start of a shift when a presentation clerk was not going to be present The re porting time policy regarding nonbargaining unit em ployees was different `depending upon the responsibil ity Quality Control Supervisor Morris stated that pres entation clerks were asked to call in before the start of the shift " Supervisor Derricotte declared that, to the best of his knowledge Mary Mitchell was required to call in at least two hours ahead of time Derricotte contended that he or Sims told Mitchell to call in more than an hour ahead of time Respondent submitted three records of warnings to employees which included admonitions to call in before the shift began 31 The first of these involved an employ ee in the "hatchery department 32 Personnel Manager Thigpen testified that the Company had a written policy with regard to absences in the hatchery depart ment Asked whether that policy applied to quality con trol employees, Thigpen replied No sir It doesn t Thigpen was then asked whether the hatchery absentee ism reporting policy applied to quality control employ ees His answer is as follows 28 G C Exhs 4 and 6 29 G C Exh 5 30GC Exh 7 ai R Exhs 32-34 32 Linda Cowart R Exh 32 The other two employees were not in the bargaining unit but their precise assignment is not indicated in the record SEABOARD FARMS OF ATHENS Not the processing plant But I would say that it really does because throughout the complex in nonbargaming unit employees if your re out with out calling in that s final Final warning Quality control employee Maebelle Smith testified that she reported her absences before the beginning of the shift, but that this was a matter of her personal choice Other employees might gust wait the two hours Smith also testified about meetings that Quality Control Super visor Morris held with quality control employees Her initial testimony about the timing of these meetings was confusing because Smith did not know the difference be tween an arbitration hearing and an award After this was clarified Smith testified that Morris held a meeting in which he discussed the new policy on not giving out checks early, clocking out when leaving company prop erty, and use of the telephones Mitchell was present at this meeting, but Rucker was not there because she had been discharged Smith further testified that Morris called another meeting at which the call in policy was discussed Rucker was present at this meeting On cross examination Smith affirmed that this was the only occa sion when the Company discussed a new rule on calling in before the start of a shift Smith did not receive a written statement of the rule Union Steward Rucker described a quality control meeting that she attended after her reinstatement Morris gave various telephone numbers that employees could call if they were going to be absent According to Rucker, Morris said that the employees could call in 2 hours before, but not later than 2 hours after, the starting time Morris did not state a requirement" that such calls had to be made before the starting time Asked on cross examination whether Morris specified that the employees were supposed to call in before the shift began, Rucker replied I can t say exactly that he made that perfectly clear that that was something he was really expecting out of us Quality Control Supervisor Morris agreed that he had two meetings with quality control employees, one imme diately after the arbitration hearing, and another after is suance of the award (10 July) Mitchell was at the first meeting, but Rucker was not because she had been dis charged At this meeting Morris asked the employees to be `courteous' and call in before the beginning of their shifts so that replacements could be obtained 33 Morris testified that this was a request not an order He contended that Mitchell and one other presentation clerk, although they were in the quality control depart ment, were outside the bargaining unit As to these em ployees, Morris asserted that he suggested more strong ly that they call in before their shifts began He admit ted however that he did not single out Mitchell and specifically direct her to call before the beginning of her shift 34 Mitchell s shift began at 8 10 am, according to Morris as As noted above Morris agreed that he had a replacement for Mitch ell during her absences 94 As indicated Moms contended that he told Mitchell on 13 May for the first time to call in before the beginning of her shift-testimony that I have not credited 785 Mitchell denied that anybody in management told her that because of her job she was required to call in before the beginning of her shift She expressed the opin ion that she had 2 1/2 hours thereafter to report absence from work Mitchell denied that any supervisor told her that she was calling in late 2 Factual analysis Smith Rucker, and Morris agree that the latter held a meeting of quality control employees at which call in procedure was discussed They also agree that Morris held two such meetings, the first one after the arbitration hearing, and the second one after issuance of the award The first issue is whether call in procedure was discussed at the first or second meeting I credit Smith's uncontradicted testimony that call in procedure was discussed at only one of the meetings This is implicitly corroborated by Morris I further credit Smith s and Rucker's testimonies that this discus sion took place during the meeting held after issuance of the award There is no way that Rucker could have had the knowledge of the call in discussion, which her testi mony demonstrates if the discussion took place before the award-Rucker had not been reinstated at that time Mitchell, on the other hand, could not have been at the second meeting because she had been discharged prior to issuance of the award Further, Mitchell testified that nobody told her to call in before the beginning of her shift Crediting Smith, Rucker, and Mitchell and reject ing Morris' contrary testimony, I conclude that Mitchell was not present during the only meeting at which call in procedure was discussed because Mitchell had already been discharged Even at this second meeting, crediting Rucker as cor roborated by Morris himself the latter did not issue a definite order' to call in before the beginning of the shift He merely asked the employees to be courteous Although Morris claimed to have suggested this even more strongly" regarding presentation clerks, he agreed that he did not issue an order to Mitchell In fact this would have been impossible because Mitchell was not present when Morris discussed call in procedure Morris and Rucker s testimonies do not support Thig pen s and Sims assertions of an inflexible rule requiring quality control employees to call in before the beginning of their shifts Close examination of Sims testimony shows that he did not claim to have told Mitchell to call in before shift time when she was promoted to the posi tion of presentation clerk Sims merely asserted that he told her about the importance of her position I do not credit Derricotte s contention that he or Sims told Mitchell, before 13 May, to call in more than 1 1/2 hours in advance Not even Morris claimed to have said this to Mitchell before 13 May, and I have not credited his assertion that he did so on that date Derricotte s and Morris testimonies about this are inconsistent with the other evidence, partially corroborated by Morris, that after Mitchell s discharge Morris made a simple request, not an order, to call in early Derncotte s remarks about an hour and a half rule before shift time are not sup ported by any other evidence from the Company, and 786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD are contradicted by Derricotte himself, the "two-hour" rule. Thigpen's testimony about application of the hatch- ery department rule to quality control employees is con- tradictory, and I do not credit it. Unlike the hatchery de- partment, there is no evidence of a written rule applying to quality control employees. Crediting Mitchell, Smith, and Rucker, partially cor- roborated by Quality Control Supervisor Morris, I find that there was no rule requiring Mitchell to call in before the beginning of her shift. Although Mitchell was mis- taken in her belief that she had 2-1/2 hours after shift time to call, there is no credible evidence that Mitchell, in fact, ever called more than the 2 hours after shift time permitted by the rule. F. Respondent's Policy on Written Warnings 1. Summary of the evidence As indicated, Mitchell received three warnings for un- reported absenteeism prior to her appointment in 1986 as a presentation clerk. The first two of these warnings, in 1979 and 1981, respectively, are entitled "Verbal Warn- ing," while the third one, in 1985, is labeled "1st Writ- ten" warning. The latter notes that the employee was furnished with a copy, and that the employee refused to sign. All three warnings are on a form with the heading "Conversation with Employee."35 Asked to explain the difference in the third warning, Personnel Director Thig- pen testified that the Company's previous policy had been to issue a first warning in. verbal form. In 1983, the Company changed to a written warning on the first of- fense. Respondent submitted documentary evidence of termi- nations of employees for two consecutive unreported ab- sences. The employees were both inside and outside the bargaining unit. The evidence consists of termination no- tices, reported "conversations with employees," applica- tions for state unemployment compensation, administra- tive decisions, and lists of discharged employees. In some instances, apparently when the employee simply failed to report for work on 2 consecutive days or thereafter, he was assumed to have quit. In other instances, the em- ployee was given a final written warning ,36 in one case a second final written warning.37 At least five individuals identified by Thigpen as em- ployees outside the bargaining unit received final written warnings prior to discharge.38 Nonetheless, Thigpen contended that the Company had no "policy" that final warnings issued to nonbargaining unit employees had to be in writing. He "would want" supervisors to do so, but "there's no policy that says that we have to put it down on paper." Thigpen was asked to identify nonbargaining unit em- ployees other than Mitchell whom the Company fired 38 R. Exhs. 11-13. 38 R. Exhs. 19-35. 37 R. Exh. 26. 38 It. Exh . 30 (Charles Harper); R. Exh. 31 (Billy Browning); R. Exh. 32 (Linda Cowart); R. Exh. 33 (Hazel Bishop); R. Exh. 34 (Guyre Gordon). One probationary employee not in the bargaining unit was dis- charged without any record of a written warning , R. Exh . 29 (Lisa Bos- well). within the preceding 2 years without a final written warning. The only individual he named was Personnel Assistant Don Foster, who was not hourly paid and who was subject to the same rules of conduct as other super- visors. Thigpen asserted that he had records that would identify other nonbargaining unit employees discharged without a final written warning, but stated that it would take "all of [his] time" to get them. Quality Control Su- pervisor Morris agreed that he did not give Mitchell her asserted "final warning" in writing, but contended that he was following this practice at the time of the hearing in this matter. Morris stated that this was the better policy-now that I look back on it," he added. Mitchell testified that warnings were in writing, that the employee was shown a copy and asked to sign, and in any event received a copy. 2. Factual analysis Respondent has not supplied any written rules setting forth its position on written warnings, and the evidence it elicited is contradictory and ambiguous. Thus, while Thigpen asserted a change to a first written warning for unreported absence in 1983, the Company submitted copies of termination notices thereafter without evidence of any written warning. I infer either that such warnings were issued, but are not in the record, or that an employ- ee who simply walked off and was never seen again was not given any warning. Thigpen's admission that he "would want" supervisors to give nonbargaining unit employees a final written warning, but had no "policy" requiring it, is contrary to the written records of such warnings and contrary to Thigpen's own testimony about the 1983 change in policy in which he made no distinction between bargain- ing and nonbargaining unit employees. The fact that Thigpen was unable to name any hourly paid nonbar- gaining unit employee other than Mitchell'39 who was discharged without a final written warning and failed to produce records admittedly in his possession concerning the subject of such other discharges,40 supports an infer- ence that it was the Company's policy to issue written warnings for unreported absences to employees not members of the bargaining unit prior to discharge, with the possible exception of employees who simply failed to return and were presumed to have quit. Crediting Mitch- ell, I so find. G. Mitchell's Credibility On cross-examination, Mitchell testified that she could not remember receiving a warning for failure to report absences. During rebuttal, Mitchell testified that she re- membered a warning in 1985, and that there might have been others. She also testified that she did not know that two unreported absences resulted in discharge. 39 Although Don Foster's supervisory status is not in issue, it is obvi- ous that his asserted discharge without a written final warning is irrele- vant regarding the policy applied to hourly paid employees such as Mitchell. 40 Penn Industries, supra, fn. 26. SEABOARD FARMS OF ATHENS Respondent argues that this testimony justifies an in ference that Mitchell was an unreliable witness This ar gument has no merit The knowledge of many witnesses about current or past events is faulty but this does not warrant invalidation of their testimony concerning events about which they do have knowledge Because Respond ent presented no evidence of written rules on discipline, it is entirely possible that Mitchell was unaware of them In any event, Mitchell had a truthful demeanor and her testimony was corroborated in part by the testimo vies of other witnesses, including Supervisor Derricotte, and in some instances by Respondents own records, while Respondents evidence was replete with the con tradictions outlined above H Mitchell s Unemployment Compensation Claim Mitchell filed a claim for unemployment compensation benefits under Georgia law on 16 July It was denied and, after an appeal, the case was heard by an adminis trative hearing officer on 20 August Mitchell and two witnesses for the Company including Personnel Manag er Thigpen made appearances The appeal was denied, in part on the hearing officers determinations that Mitchell was absent unreported from work from 26 May through 2 June, that her reporting time was 8 00 a in, and that any call in after that time would be con sidered as an unreported absence 41 I Legal Analysis and Conclusions As set forth above the complaint alleges that Mitchell was discharged for engaging in concerted protected ac tivities, but that this constituted a violation only of Sec tion 8(a)(1) of the Act However at the hearing and thereafter, all parties argued the issue whether Respond ent had discriminatory motivation Thus in opening ar gument the General Counsel urged that the case present ed strong animus and his posthearing brief argues that `Respondent has not rebutted the General Counsel s prima facie showing that Mitchell s discharge was based upon an illegal motive 42 Similarly, the Charging Party contends that Respondents asserted reason for discharg ing Mitchell was but a pretext to hide the illegal nature of its actions, taken to be rid of one whom it per ceived a disloyal employee 43 Respondent argues the reverse of the same issue and even specifies the shifting burdens of proof under Wright Line 44 The record contains evidence of discriminatory moti vation The timing of Mitchell s discharge-shortly after Mitchell s testimony against the Company in the arbitra tion proceeding, and simultaneously with Respondent s characterization of her as a liar in its brief to the arbi trator-constitutes evidence of unlawful motive under es 41 R Exh 14 42 G C Br 25 The General Counsel cites Crown Central Petroleum Corp 177 NLRB 322 (1969) enfd 430 F 2d 724 (5th Cir 1970) In that case the Board stated that evidence of union animus was not necessary to establish the violation of Section 8(a)(1) which it found therein and that although the employers conduct may have been inherently discnmina tory (id at 323) it was not necessary to decide that issue 49 C P Br at 20 44 Wright Line 251 NLRB 1083 ( 1980) enfd 662 F 2d 899 ( 1st Cir 1981) cert denied 455 U S 989 (1982) R Br at 36 787 tablished Board law Supervisor Derricotte s statement to Mitchell, after the arbitration, that she should be tired of eating lunch with the union people also supports an in ference that Respondent had animus against Mitchell be cause of her assistance to the Union Further Mitchell was discharged without a written warning contrary to Respondents established practice regarding employees not in the bargaining unit The warnings Mitchell received before her 1986 promotion (only one of which was written) could not have had any effect on her discharge because they were remote in time, were not referred to by the Respondent, and, in fact, Mitchell was promoted after receiving them An employers failure to follow an established practice of giving warnings prior to discharge constitutes evidence of unlawful motive 45 Respondents assertion of unreported' absences on Mitchell s part is false because the evidence does not es tablish that Mitchell failed to conform to the call in rule or that any supervisor so advised her Respondents reli ance on this alleged dereliction is pretextual 46 Nor was Mitchell guilty of excessive absenteeism Because su pervisor Derricotte had excused her from further calls and had told her that her absences would be listed as family sickness until she discussed her leave request with Sims Whether Mitchell s leave request based on lack of a babysitter would have been granted is irrelevant Nobody acted on the leave request, and Derricotte had expressed his opinion to her that it would be granted Mitchell's attempts to find a supervisor to act on her leave request were more than diligent The sequence of events outlined above-Derricotte s failure to tell Morris or Sims that Mitchell needed a leave together with his assurances to her about family sickness Morris failure to mention Mitchell s leave request when he saw her on 22 May with knowledge that she wanted a leave and that he was supposed to act on the request, Respondent s changing instructions to Mitchell, and the unavailability of supervisors when Mitchell tried to find them-all these factors justify Mitchell s characterization of the Company s actions as "a runaround The totality of the evidence including the false testimony of some of the Company s witnesses the doubtfulness or falsity of docu mentary evidence submitted to support that testimony and Mitchell s peremptory and uncommunicated dis charge in the face of an unresolved leave request war rant a conclusion that the Respondent was simply staging events to create a pretext to discharge Mitchell I therefore conclude that the General Counsel has es tablished a prima facie case that Mitchell s discharge was discrimmatonly motivated Although such motive is not alleged in the complaint I see no good reason to decide the case other than on the terms on which it was litigat ed by the parties 47 45 Robinson Furniture 286 NLRB 1076 (1987) Prototype Plastics 284 NLRB 711 (1987) Brunswick Corp 282 NLRB 974 (1987) Yaohan of California 280 NLRB 268 (1986) Woodcliff Lake Hilton Inn 279 NLRB 1064 (1986) 46 Postal Service 275 NLRB 510 (1985) 47 In an attempt to negate the General Counsels prima facie case Re spondent cites various cases in which discharges were not found to be Continued 788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD It is clear that Respondent has not rebutted the Gener- al Counsel's prima facie case for the reasons set forth above. The determinations by the state hearing officer con- trary to those made here do not compel a different con- clusion. From the number of witnesses, it appears that that hearing was less extensive than the instant unfair labor practice proceeding. In any event, the Court of Appeals for the Seventh Circuit in comparable circum- stances stated as follows: The Board was not represented before the (state) Commission, nor did that tribunal consider (the em- ployer's) possible violations of the National Labor Relations Act. The National Act was not even men- tioned in these decisions of the (State) Commission, and original jurisdiction under that Act has been committed by Congress exclusively to the Board. [NLRB v. Stafford Trucking, 371 F.2d 244, 249, (7th Cir. 1966), enfg. 154 NLRB 1309 (1965).]48 CONCLUSIONS OF LAW 1. The Respondent, Seaboard Farms of Athens, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging employee Mary Mitchell on 1 June 1987 because she engaged in protected, concerted activi- ties for the purpose of mutual aid and protection, Re- spondent thereby violated Section 8(a)(3) and (1) of the Act. 3. The foregoing unfair labor practice affects com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in an unfair labor practice, it is recommended that it be or- dered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully dis- charged Mary Mitchell on 1 June 1987 , it is recommend- ed that the Respondent be ordered to offer her immedi- ate and full reinstatement to her former position, dismiss- unlawful . Thus, in one instance , the employee's union activity had taken place over a year earlier and was indistinguishable from like activity of other employees . There was "nothing in the timing" of the discharge to suggest unlawful motive, and the employee had a "poor attendance record" and was discharged "after warning." Clark Equipment Co., 278 NLRB 498 ( 1986). In Midwest Electric Mfg. Corp., 260 NLRB 174 (1982), the employee 's only protected activity was attendance at a union meet- ing, and the employer followed previously announced layoff policies, in- cluding consideration of seniority, in making layoffs dictated by econom- ic considerations. In Daniel Construction Co., 266 NLRB 1090 (1983), the discharge of a supervisor for failing to give management information about employee union activities was found not to be violative of the Act. None of these cases has a factual pattern similar to those pertaining to Mitchell . Her protected activities were far more than attendance at one union meeting, and obviously she was not a supervisor. Unlike the Com- pany's treatment of other employees who testified at the arbitration pro- ceeding, Respondent called Mitchell a "liar" at the same time that it was discharging her without notice . She was not given a warning-on the contrary, she was given assurances that her absences would be excused. 48 Accord: NLRB v. Western Meat Packers, 368 F.2d 65, (10th Cir. 1966), enfg . 152 NLRB 1066 ( 1965). ing if necessary any employee hired to fill the position, and to make her whole for any loss of earnings she may have suffered because of Respondent's unlawful conduct, by paying her a sum of money equal to the amount she would have earned from the date of her unlawful dis- charge to the date of an offer of reinstatement, less net earnings during such period, to be computed on a quar- terly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).49 It is also recommended that Respondent be required to post appropriate notices, to remove from its personnel records all references to its unlawful discharge of Mary Mitchell, and to notify her in writing that such .removal has been made and that evidence of its unlawful disci- pline of her will not be used as a basis for future person- nel action against her. The General Counsel's brief includes a recornmenda- tion for a visitatorial clause on the ground that such clauses should be routinely included in Board orders. In Cherokee Marine terminal, 287 NLRB 1080 (1988), the Board declined to utilize this remedy on a routine basis and stated that it would do so only when there was a likelihood that a respondent would fail to cooperate or otherwise attempt to evade compliance. There is no evi- dence of this in the instant case and, accordingly, I shall decline to recommend a visitatorial clause. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6o ORDER The Respondent, Seaboard Farms of Athens, Inc., Athens, Georgia, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Discouraging employees from engaging in protect- ed, concerted activities for the purpose of mutual aid and protection by discharging them for engaging in such ac- tivities, or by discriminating against them in any other manner with respect to their hire, tenure of employment, or terms and conditions of employment. (b) 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 Mary Mitchell immediate and full reinstate- ment to her former job or, if that job no longer exists, to 49 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987 , shall be computed at the "short -term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621 . Interest on amounts accrued prior to January 1, 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). so 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. SEABOARD FARMS OF ATHENS 789 a substantially equivalent position without prejudice to her seniority or any other rights or privileges previously enjoyed, and make her whole for any loss of earnings and other benefits suffered as a result of the discrimina tion against her, in the manner set forth in the remedy section of the decision (b) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the discharge will not be used against her 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 Athens, Georgia place of business copies of the attached notice marked "Appendix 51 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 61 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 (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 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice WE WILL NOT discourage employees from engaging in protected concerted activities for the purpose of mutual aid and protection by discharging them for engaging in such activities or by discriminating against them in any other manner regarding their hire, tenure of employ ment, or terms and conditions of employment WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL offer Mary Mitchell immediate and full rein statement to her former job or, if that job no longer exists, to a substantially equivalent position, without prej udice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest WE WILL notify her that we have removed from our files any reference to her discharge and that the dis charge will not be used against her in any way SEABOARD FARMS OF ATHENS INC