Bi-Lo, Inc.

National Labor Relations Board - Board Decisions

Jan 17, 1974

208 N.L.R.B. 489 (N.L.R.B. 1974)

BI-LO, INC. 489
Bi-Lo, Inc. and Alvin H . Campbell . Case 11-CA-5327
January 17. 1974
DECISION AND ORDER
By CHAIRMAN MILL ER AND MEMBERS
FANNING AND PENLLLO
On September 28, 1973, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge2 and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Bi-Lo, Inc.,
Mauldin, South Carolina, its officers, agents. succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Drv Wall Products,
Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C.A. 3. 1951) We have carefully
examined the record and find no basis for reversing his findings.
2 In finding an 8(a )( 1) violation in the discharge of Edwards for engaging
in concerted activity the Administrative Law Judge considered the
company's "prior illegal actions in preventing unionization " in Bi-Lo, Inc,
163 NLRB 1009 (1967). enfd 386 F 2d 834 (C A. 4, 1967). We disavow any
reliance on such conduct, which occurred over 6 years before the events
herein, as there is sufficient evidence of the Respondent 's unlawful
motivation to support the Administrative Law Judge's conclusion in this
matter without relying on the prior case
DECISION
SrATFMENT OF THE CASE
MARION C. LADWJG, Administrative Law Judge: This
case was tned at Greenville, South Carolina, on August 7,
1973.1 The -charge was filed by an individual, Alvin
Campbell, on May 21 (amended June 11), and the
complaint was issued on June 29. The primary issues are
whether the Company, the Respondent-after one of its
supervisors (upon the Company's instructions) appeared at
a meeting held by drivers at a truckstop to discuss wages
and other complaints--discharged two of the drivers who
called and spoke at the meeting for engaging in protected
concerted activity, in violation of Section 8(a)(1) of the
National Labor Relations Act.
Upon the entire record,2 including my observation of the
demeanor of the witnesses, and after due consideration of
the bnefs filed by the General Counsel and the Company, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
The Company, with a warehouse in Mauldin, South
Carolina, is engaged in the retail sale of groceries , produce,
meat , and other goods at Greenville , South Carolina, where
it annually sells and distributes goods valued in excess of
$500,000 and receives goods valued in excess of $50,000
directly from outside the State . The Company admits, and
I find , that it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
In 1967, the Board found that the Company, during a
union organizing effort, illegally interrogated employees.
made threats of reprisal, engaged in surveillance of union
activity, and discriminatonly discharged three employees.
Bi-Lo, Inc., 163 NLRB 1009 (1967), enfd. 386 F.2d 834
(C.A.4, 1967).
On December 19, 1972, 10 or 11 of the Company's 27
truckdrivers met at a truckstop about 2 miles from the
company warehouse to discuss their complaints about
wages, dispatcher favoritism, and other matters, and to
prepare for a meeting with management. Without invita-
tion, Driver Supervisor Parker Holliday (upon instructions
from Warehouse Manager Lloyd Simmons) went to the
meeting. He requested, and was given, permission to enter.
His brother, dnver Spencer Holliday, and driver William
Edwards (both of whom had invited other drivers to the
meeting), assured him that it was not a union meeting and
told him about the drivers' complaints. Some of the other
drivers then spoke, and Supervisor Holliday promised to
seek some relief from management. He assured them that
they would not be discharged for attending the meeting.
After the meeting, Supervisor Holliday telephoned
Manager Simmons, reported who was there and what the
complaints were, and indicated that there was not a union
involved, stating "he didn't think it was anything serious."
The next day, December 20, Simmons reported the
meeting to Vice President Henry Veach, who later that day
asked Simmons "what I thought about it." The following
morning, December 21, driver Edwards' timecard was
pulled, and Simmons discharged him. On December 29,
driver Holliday was also terminated. Thereafter, the
Company gave some wage increases and discharged the
i All dates are from October 1972 until August 1973 unless otherwise
stated.
2 The General Counsel's motion to correct transcript, in in 2 of his brief,
is denied for lack of merit
208 NLRB No. 72
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispatcher for favoritism. Apparently the remaining drivers
did not seek union representation.
The General Counsel contends, and the Company
denies, that the two drivers were discharged because of
their role in the December 19 meeting.
B. Discharge of Edwards
Driver Edwards credibly testified that on the morning of
December 21 (the second morning after the drivers'
meeting), he could not find his timecard, and Manager
Simmons motioned for him. They walked out of the side
door "where we could be by ourselves," and Simmons
handed him two checks, "told me he hated to do this" but
"he was going to have to let me go ... you are not satisfied
with your job, we will have to give you time off to hunt you
another job." (Emphasis supplied.) Edwards took the
checks and left. (When asked about this account of the
conversation, Simmons testified "that's exactly the way I
give it to him.") Edwards, who had been employed since
1967, credibly testified that there had been no prior
indication that he would be discharged.
Manager Simmons first testified on direct examination
that he decided to discharge Edwards "Because he
continued griping and complaining about his job." Howev-
er, he testified on cross-examination that Edwards had
been griping about working on Saturdays for 2 or 3
months, and that he had never warned Edwards about this.
(He testified that he did not know whether Supervisor
Holliday had warned Edwards. Holliday did not testify.
Edwards admitted complaining about working on Satur-
days, in excess of 50 hours a week.) When further
questioned on direct examination about "any specific
instance" which gave rise to the discharge, Simmons gave a
different reason. He claimed that "every time" Edwards
came in early with his truck and would be asked to work
overtime, he would go home without permission. When
repeatedly asked for any occurrence which precipitated the
discharge, Simmons finally claimed that on Monday,
December 18 (the day before the drivers' meeting),
Edwards went home without permission after the dispatch-
er told Edwards there were more runs to make. It was at
that point, according to Simmons, "I made up my mind to
let him go." When asked why he waited from Monday
until Thursday to discharge Edwards, Simmons answered,
"The best I can recall, I didn't see him any more from
Monday until Thursday." However, Simmons did not have
Edwards' timecard pulled from the rack on Tuesday or
Wednesday morning, as he did on Thursday morning (the
day after discussing the drivers' meeting with Vice
President Veach), although Simmons worked at the
warehouse Monday through Thursday that week. Moreo-
ver, Simmons did not leave any message for Edwards'
immediate supervisor, Holliday, to tell Edwards that he
was discharged, even though Simmons admitted that he
normally left it to the supervisor to relay the decision to
discharge an employee. Furthermore, at the time of the
discharge , Simmons did not mention either leaving work
without permission or refusing to work overtime as a
reason for the discharge. (Edwards had no recollection at
the trial of the purported Monday incident. He credibly
testified that he was not required to get permission to leave
if he went to work early in the morning, that he always got
permission to leave when he had something special to do,
and that he never refused to work overtime.) Simmons did
not impress me as a candid witness, and I discredit his
testimony that Edwards refused to work overtime on
December 18 and left work without permission.
The evidence clearly shows that the Company was
concerned about employee complaints leading to union
organization. Not only had Edwards been complaining
about excessive overtime,but he was a leader in setting up
and speaking at the December 19 meeting , where employee
complaints were discussed. After considering the Compa-
ny's prior illegal actions in preventing unionization and
after considering all the evidence , including Edwards'
leadership role in the meeting , his summary discharge, and
the timing of the discharge on December 21 (the day after
Manager Simmons discussed the meeting with Vice
President Veach), I find that the Company seized upon
Edwards' longstanding overtime complaints as a pretext
for eliminating one of the leaders in the employees'
concerted activity to remedy their complaints about wages
and working conditions. I further infer that the Company's
decision to eliminate the employee leadership , while giving
wage increases and taking other action to satisfy the
employees , was related to its fear of union organization.
Accordingly, I find, as alleged in the complaint, that the
Company discharged employee Edwards on December 21
because he engaged in protected concerted activity (the
December 19 drivers ' meeting), in violation of Section
8(a)(1) of the Act.
C. Discharge of Holliday
Driver Spencer Holliday , the other leading participant in
the December 19 drivers ' meeting, was discharged on
December 29.
It is undisputed , as driver Holliday credibly testified,
that on Friday , December 29 (8 days after driver Edwards'
discharge), Holliday returned to the warehouse from a run,
and while working on another run, his brother, Driver
Supervisor Parker Holliday, called him over to the side and
discharged him. Supervisor Holliday explained that Vice
President Veach and Warehouse Manager Simmons "said
me being his brother , I should have told him about the
[December 19] meeting ; and they just as soon as I find
myself something else to do . . . . I tried to assure him that
it was not a union meeting." Supervisor Holliday said "it
was out of his hands" and "told me that I could talk to Mr.
Veach" but "he doubted that it would do any good but I
could try ." Driver Holliday then spoke to Veach, asked
"why I was fired ," and said to Veach , "I know it is
probably about the meeting we had two weeks earlier but I
would like to reassure him it was not a union meeting, and
I think he was making a mistake ." Veach responded,
"Well, Parker was my bossman ; and if he fired me, he must
have had good reason . . . that's all I have to say."
(Without explanation, the Company failed to call Veach to
testify . Neither the General Counsel nor the Company
called Parker Holliday , who was no longer employed by
the Company. Although the Company challenges driver
Spencer Holliday's credibility, he impressed me as being an
honest, forthright witness.)
BI-LO, INC. '
At the trial, the Company stated that driver Holliday was
asked to look for anotherjob "because of problems he was
having with his brother , . . and m relationship with other
drivers"; that "no intention was ever made that he would
be discharged"; bLt at the suggestion that he begin looking
for another job, Holliday said, "in that case, I will quit,"
and he "voluntarily resigned as of that day." Thereafter the
Company called a single defense witness, Manager
Simmons, who gave testimony contradicting this theory of
the case . Now in its brief, the Company admits that
Holliday was discharged on December 29 and, relying on
Simmons' testimony, contends that the discharge was
"precipitated by his bad driving record" as well as his
"angry attitude" displayed toward his brother the day
before. (Several months earlier, as driver Holliday credibly
testified, he had been called into the office by Vice
President Veach who said "you have been reported to me
for driving too fast." He had been employed since
February 1971, and had served as dispatcher part of the
time.) Simmons, from his demeanor on the stand, im-
pressed me as being more concerned with attempting to
support the Company's cause than accurately reporting
what had happened. I discredit his uncorroborated claim
that driver Holliday was discharged because of a bad
driving record or other misconduct, and find that the
Company discharged him, like it did driver Edwards,
because of his leading role in the December 19 meeting.
Accordingly, I find that the Company discharged driver
Holliday for engaging in the concerted protected activity,
in violation of Section 8(a)(l) of the Act.
CONCLUSIONS OF LAW
By discharging William Edwards on December 21 and
Spencer Holliday on December 29 because of protected
concerted activity, the Company engaged in unfair labor
practices affecting commerce within the meaning of
Section 8 (a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I find it necessary to order
the Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the Act.
The Respondent having unlawfully discharged two
employees, I find it necessary to order the Respondent to
offer them full reinstatement, with backpay computed on a
quarterly basis plus interest at 6 percent per annum as
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962), from date of discharge to date reinstatement is
offered.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 3
Respondent, Bi-Lo, Inc., its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
491
(a) Discharging or otherwise discriminating against any
employee for engaging in protected concerted activity.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer William Edwards and Spencer Holliday
immediate and full reinstatement to their formerjobs or, if
their jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for their lost
earnings in the manner set forth in the "Remedy" section
of this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(c) Post at its warehouse in Mauldin, South Carolina,
copies of the attached notice marked "Appendix."4 Copies
of the notice, on forms provided by the Regional Director
for Region 11, after being duly signed by Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the
Respondent has taken to comply herewith.
i In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Sec.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and order, and all objections thereto shall be
deemed waived for all purposes.
+ In the event the Board 's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after
trial, that we violated Federal law by discharging employ-
ees for meeting with other employees to discuss wages and
conditions of employment:
WE WILL offer full reinstatement to William Ed-
wards and Spencer Holliday, with backpay plus 6-
percent interest.
WE WILL NOT discharge any of you for joining
together to discuss or take actions to obtain better
wages or working conditions.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT interfere with your lawful activities in This is an official notice and must not be defaced by
any similar manner. anyone.
Dated By
This notice must remain posted for 60 consecutive days
BI-Lo, INC. from the date of posting and must not be altered, defaced,
(Employer)
or covered by any other material . Any question concerning
this notice or compliance with its provisions may be
(Representative) (Title) directed to the Board 's Office, 1624 Wachovia Building,
301 North Main Street, Winston-Salem , North Carolina
27101, Telephone 919-723-2300.