Doxsee Food Corp.

National Labor Relations Board - Board Decisions

Jun 26, 1975

218 N.L.R.B. 934 (N.L.R.B. 1975)

934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Doxsee Food Corporation and Retail , Wholesale and
Department Store Union, AFL-CIO. Case 15-
_CA-5219
June 26, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On December 10, 1974, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
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
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge as
modified below, and to adopt his recommended
Order.
As found by the Administrative Law Judge, based
on credited testimony, on February 8, 1974, Whig-
ham, the plant manager, called Dorothy Hall, the
leading union adherent, into his office and asked her,
"What is this about a union coming in here? What is
your part in it and who else is involved?" Whigham
then told her there would be no union as long as he
was boss. He asked her if she liked her job and, when
she replied "yes," he told her to change her way of
thinking. When she said she could not, he told her he
had put her in a prestigious position, and if she could
not change her way of thinking he could find a place
elsewhere for her in the plant. Whigham also made
reference to the personnel files and said he felt she
had betrayed his trust.' Whigham also told Hall that
he would close the plant before he would have a
union or would fill the plant with $1.60-per-hour
workers. Whigham told her if she liked her job to do
things his way. When she asked if he was threatening
her job, he said she would always have a job but it
might not be one she liked.
Nothing further was said to Hall about the Union
until March 4, 1974, when she was given a warning
notice and transferred to a production job from her
shipping clerk's job. Whigham testified that on
March 4 Hall asked him if she could leave for lunch
at 11:40 a.m. instead of at 12 noon and that he
granted her request; he added such requests were
normal. He testified that shortly thereafter he saw
her outside the parking lot distributing union cards
and literature to the employees who were on their
lunchbreak. He testified that he felt Hall had
"misused the latitude," and "I felt very-misused by
it" because she had left early and "taken away from
her lunch time to do something nonrelated to work"
which he considered as a clear expression of her
interest. Whigham testified that that incident, togeth-
er with the fact that he had heard she had been
distributing literature in the plant on company time,2
made him decide to transfer her to the production
line. He prepared and gave to her, the afternoon he
transferred her, a warning notice which stated:
It has been called to my attention that you have
left your work in the shipping office to hand out
literature in the plant. This literature was distri-
buted to plant employees while they were at work
in the plant. This is a warning not to distribute
literature on company time. As indicated by your
action that your interest is in the plant, I am
transferring you from the job of shipping clerk to
production work. You will maintain the same
level of pay.
Whigham conceded that Hall's activity in the
parking lot that day triggered his decision to transfer
her. However, although he gave her the warning
notice for distributing union literature in the plant on
company time, he did not assign that as a reason for
her transfer. Rather, he said, he told her, he was
transferring her because her interest was in the
production area, "I thought it was only fitting and
proper that I place her where her interests were." He
testified that the second reason for the transfer was
that he was also concerned with the confidentiality of
the personnel records, although at the time of the
transfer he had no knowledge that she had, in fact,
examined the personnel records.
The Administrative Law Judge rejected as incredi-
ble Whigham's testimony that one of the reasons he
transferred Hall was that by placing her on the
production line she could more -easily organize the
production workers. The Administrative Law Judge
then discussed what he found to be the two other
alleged reasons given by Whigham for the transfer:
(1) her distribution of union literature outside the
plant on March 4, 1974; and (2) her perusal of
confidential personnel records. Whigham, in fact, did
not assign as a reason for Hall's transfer the parking
lot distribution of March 4, 1974, although he did
1 Whigham, on February 8 and in fact on March 4, when he transferred where she had access to the personnel files and other confidential records.
Hall, admittedly did not know Hall had , in fact, on one occasion looked in 2 The Administrative Law Judge did not credit testimony that Hall had
the personnel files. Whigham testified that he did not want her in the office solicited on company time.
218 NLRB No. 141
DOXSEE FOOD CORPORATION
concede that that incident triggered his decision to
transfer her. The Administrative Law Judge noted
that Whigham had given Hall permission to leave
earlly and that Hall's activity was protected under the
Act. With regard to the second reason, that Hall had
examined personnel records, the Administrative Law
Judge rejected that reason as pretextual also since
Whigham did not know Hall had examined the
personnel records when he transferred her. In fact,
Whigham did not testify that he transferred Hall
because she had looked at the records, but rather
because she had access to them.
Additionally, the Administrative Law Judge, in
making his finding concerning the transfer, inadvert-
ently referred to the date of Whigham's first
conversation with Hall, February 8, instead of the
actual date of the transfer, March 4, 1974. In any
event, we agree with the Administrative Law Judge
that the transfer was discriminatory and violative of
Section 8(a)(3). Whigham clearly sought to punish
Hall for her union activity; he admitted as much
when he testified he felt betrayed by her when she
distributed union literature outside the parking lot on
March 4, 1974. He further admitted that this incident
convinced him she should be transferred on that day.
Likewise, we agree with the Administrative Law
Judge, who discredited Whigham on demeanor and
otherwise, that Whigham's statement that he trans-
ferred her so she could better organize the plant is
incredible on its face. The other reason for the
transfer, her access to personnel records, is not a
legitimate defense, for Whigham admitted that he
did not know Hall had looked at the personnel
records when he transferred her. A plant clerical
employee cannot be reassigned or transferred to
another job merely because she has access to
confidential records and is active in the union,
without more . Put differently, plant clericals are
entitled to exercise Section 7 rights even though they
may have access to confidential or personnel files.
We therefore agree with the Administrative Law
Judge that Hall's transfer violated Section 8(a)(3).
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 Respondent, Doxsee Food Corpo-
ration, Troy, Alabama, its officers , agents , succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
DECISION
STATEMENT OF THE CASE
935
BERNARD J. SEFF, Administrative Law Judge: This case
came on for hearing before me in Troy, Alabama, on
August 27, 1974. The Retail, Wholesale and Department
Store Union, AFL-CIO, hereinafter referred to as the
Union, filed its charge on April 11, 1974,1 against the
Doxsee Food Corporation, hereinafter referred to as the
Company or Respondent. The complaint, which was issued
on June 11 , alleges that Respondent engaged in illegal
interrogation and threats to close the plant if the Union
were successful; it also threatened to transfer and did
transfer employee Dorothy Hall from her job as shipping
clerk to a production job because of her membership in
and activities on behalf of the Union. By these and other
acts Respondent violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended. Respondent in
its answer denied the commission of any unfair labor
practices but admitted allegations of the complaint
sufficient to support the assertion of jurisdiction under the
current standards of the Board (both inflow of over
$50,000 and outflow of over $50,000) in the past 12
months. Respondent also stipulated at the hearing that the
Union is a labor organization within the meaning of the
Act.
Upon the entire record and my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the parties I make the following:
FINDINGS OF FACT
1. THE COMPANY AND ITS BUSINESS
Respondent is a Maryland corporation with its home
office located in Baltimore, Maryland. This proceeding is
limited to the plant operated by the Company in
Brundidge, Alabama, where it manufactures prune juice,
chili sauce, and mayonnaise, among other products.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Company admits that Hall was a satisfactory
employee while she was discharging her duties as a
shipping clerk. She was hired in this capacity on May 16,
1973. As a shipping clerk she handled bills of lading, did
light bookkeeping, typing, and took care of back haul
reports . She also kept track of all incoming and outgoing
materials and supplies. She also operated the telex
machine . Her work station was in a separate office
completely separated from the main office.
Hall would obtain from the plant manager, Boyd
Whigham , and the shipping foreman, Dave Galloway, the
information required to prepare shipping records and
documents . Each day she would remove from the clip-
boards, which were on three forklifts , the green copies of
1 All dates concern events which took place in 1974 unless otherwise
stated.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the bills of lading from which she would type manifests.
She would check with Galloway if a discrepancy existed
between the bill of lading and tally sheets.
Hall was active on behalf of the Union. She gave out
approximately 30 authorization cards for the Union; she
got back 10 cards and she distributed literature outside the
plant on the Company's parking lot. She testified that she
did no proselytizing on company time but confined her
efforts to breaktimes, lunchtime , and both before and after
the employees came to work.
A. Events Leading to Hall's Transfer
On February 8 Hall was instructed to see Plant Manager
Whigham . Whigham testified that he opened the conversa-
tion by saying that he had heard there was a great deal of
union activity in the town of Brundidge and that she was
interested in the Union. Hall testified that her activity
began about the middle of January or the first part of
February.
Hall seated herself in Whigham's office. He came in, sat
down with his back facing her, spun around on his chair,
leaned over his desk, and said, "What is all this about a
union coming in here? What is your part in it and who else
is involved?" He said that he was shocked that anyone in
his office would even participate in such foolishness. The
conversation was interrupted by the appearance of
Production Manager Bob Dismukes . Whigham told Hall to
go to her own office and he would join her shortly . She was
at her own desk and she testified he said:
... there wouldn't be a union there as long as he was
the boss and he said the union was not suited for this
area. And I told him that there were other Doxsee food
unions and there was one that was even farther south
than Brundidge . And he said there wouldn 't be a union.
Did I understand him and I said I did . And he asked
me who was involved. And I told him that I couldn't
tell him that.
And then he asked me if I liked my job. And I told him
I did. And then he told me , "Well, you are just going to
change your way of thinking." I told him I was sorry he
felt that way but I just couldn 't change my way of
thinking . And he said, "When I hired you, you were
very unique and I put you in a very prestigious position
and expect you to respect my thinking . And, if you
can't change your thinking , maybe I can find a place
for you elsewhere in the plant." And he made reference
to my file and other personnel files. And he felt that I
had betrayed his trust and he could no longer use me.
He told me that the people in the plant , they like you
and they respect you and, you know, you can talk to
them. And I said, "Are you trying to tell me to go out
there and discourage them from union activities?"
And he said, "Oh no, but you understand."
According to Hall, Whigham also said he would close the
plant before he would have a union in the plant . That he
would fill the plant with $1 .60-per-hour workers. If they
tried to organize he would know what to do. Hall asked
Whigham if he was threatening her job because he asked
her if she liked it to which she replied she liked it just the
way it was., To which Whigham replied, "If you like it that
way, you have a clear choice. You do things my way or you
understand . He said I would always have a job . It might
not be what I like but it would be a job."
Suiting his action to his words , on March 4, Hall was
transferred from her job as shipping clerk to a job on the
production line capping mayonnaise jars . She suffered no
reduction in her wages as her earnings were kept at the
level of a shipping clerk while the production employees
earned considerably less, than this rate. Before the transfer
took place Whigham handed Hall an employee reprimand
and asked her to sign it . In part it read as follows:
It has been called to my attention that you have left
your work in the shipping office to hand out literature
in the plaint . This ,literature was distributed to plant
employees while they were at work in the plant . This is
a warning- not to distribute literature on Company time.
As indicated by your action that your interest is in the
plant, I am transferring you from the job of shipping
clerk to production work. You will maintain the same
level of pay.
Hall refused to sign the notice, denying that she handed
out literature in the plant on company time . Furthermore
she testified that she had not received any warning prior to
the reprimand.
Whigham flatly denied he had engaged in interrogation
or that he made antiunion remarks during his discussions
with Hall on February 8. In describing company labor
policies Whigham said many of Respondent's plants are
organized and "our company works with the unions and is
not an anti-union company in any manner; although their
policy is not to directly assist a facility that was not
organized. We aren 't an anti-union company."
He said he decided to move Hall away from the main
office where she had access to company personnel records.
He decided to move her to a production job "where she
was free to talk to any number of the production personnel
who would be taking lunch time and breaks at the same
time." Whigham went on to say that he thought "that by
moving her to the plant was exactly what she wanted so she
could better organize the plant . And it came as a surprise
to me that she made no complaint on the move , because
there is no question that it put her in a better position to
organize the plant." In this connection it should be noted
that in his opening statement on the record Respondent's
counsel said, "the fact is that Mrs. Hall was transferred for
a non-discriminatory purpose ... that in fact the result of
her transfer enabled her to further carry out her union
activities rather than hamper them because she was put in
with the plant employees who were being organized rather
than isolated with the office employees ." The fact of the
matter is that Hall had ample opportunity to proselytize
the employees in the plant because it was the very nature of
her duties to visit many parts of the plant. She had frequent
occasion to walk through the plant to secure green bills of
lading and shipping orders which were located in the plant
proper . Furthermore, she would have much greater access
to the employees in her capacity of a shipping clerk moving
DOXSEE FOOD CORPORATION 937
from place to place rather than would be the case if she
were confined to one place on the production line.
Whigham further stated that it was important to move Hall
away from the office because personnel records were kept
there . The main office is located in proximity to the
shipping office.
B. The Incident Concerning Personnel Records
On one occasion Hall apparently mentioned to Susan
Jordan, a nonsupervisory clerical employee , that she was
having difficulty locating employees at their homes.
According to Hall, Jordan told her that she could get
information as to addresses by coming in early in the
morning and looking at the personnel files . Hall said she
looked at the files for about 5 minutes, took some notes,
but the information was useless because the records had
unfamiliar route numbers . The notes were useless so she
destroyed them . Hall talked instead to two employees,
James Smith and John Pipkins, and from them she
received certain phone numbers which she was able to use.
As explained by Whigham his concern with this isolated
instance was that Hall's shipping office was so close to the
main office that she had access to confidential information.
C. , Other Alleged Instances of 8(a)(1) Activity
Smith (nicknamed "Meatball") was called as a witness
by the Respondent . On cross-examination he testified that
Whigham asked him "Have you heard anything about the
union?" Smith answered that he had not heard about a
union at Doxsee Food but he had heard about a union
trying to organize Brundidge Foods. He had also ex-
changed remarks with Hall about the Union . Hall readily
admitted that many of the employees spoke to her about
the Union during working time but whenever this occurred
she did not engage in conversation but told them to save
them conversation for lunchtime or during coffeebreaks.
Employee ` Mark Green testified that while he was at
work on the loading dock Whigham asked him how he felt
about the Union. Whigham told Green , who was a part-
time student worker, that he (Whigham) did not think
Green could belong to a union because of his status as a
part-time student worker . Whigham admitted he spoke to
Green about the Union but denied questioning him. He
said the conversation consisted of remarks about what the
Company had done for the employees and why he thought
Green would not be eligible for inclusion in the employee
unit.
Employee Grover Mallory was also called by Respon-
dent as a witness . He is a cook and has been working for
the Company for 13 years . He is in charge of six cook tanks
where prune juice is prepared . There is a scaffold between
the tanks . He spends a great deal of time up there. The
scaffold is between 8 and 10 feet above the floor. Mallory
testified that he had seen Hall around the mustard and
label lines . Sometimes she spent 5 or more minutes in that
area talking to employees . He had no idea about the
substance of these conversations because he was too far
away.
Rusty Bundy was called as a witness for the Company.
His job was to load trucks . He testified that he had a
conversation with Hall during worktime . She had a card
she wanted him to fill out . She gave him two cards and
asked him to give one to his friend Mark Green and
requested him to bring both cards the next day. She talked
to him after work the next day. Bundy said he and Green
reported the incident to Whigham.
Sybil Beard is a filling operator on the gallon line. She
works near Hall but testified that Hall did not talk to her
about the Union . She was produced by Respondent as its
witness.
James H . Smith was offered as a witness for Respondent.
He is a tow motor trainee, working in the shipping
department . He was asked if Whigham spoke to him about
the Union . He testified that he could not recall but that
Hall, Jordan , and he talked about the Union and all agreed
they were for it. At a union meeting Smith said that John
Pipkin and Buddy Snead knew the people in the plant but
that he (Smith) never gave Hall a list of employees. He also
testified that Whigham asked him, "Have you heard
anything about the Union?" "He also asked me what I
thought about the Union."
Dorothy Smith was also called as a witness by the
Company . She no longer works for Respondent and is a
friend of Hall . While she was employed Hall spoke to her
frequently "mostly around lunch time or right after work."
She gave some testimony concerning Hall's securing names
and phone numbers . Some conversations between Hall and
Smith took place in Hall's home . Smith went on to say that
she helped Hall pass out cards in back of the plant.
Hall, recalled to the stand by Respondent, testified that,
when she was transferred to the production line about
March 4 or 5, this action by the Company undermined her
prestige with her fellow workers . As shipping clerk she had
a private office . When she worked there she was dressed
"clean and respectably." When she worked in the kitchen
she had to wear slacks , blue-jeans , or uniforms . Contrasted
with the responsibility of acting as shipping clerk her work
of capping mayonnaise jars was "work a five year old
could perform."
Whigham himself testified on direct examination with
respect to his meeting with Hall on February 8, at which
time he told her she would be transferred , "that at that
time I really, you know didn't realize that she might have
gone into the personnel records . It was merely a thought or
concern of mine at the time." "And , as the evidence has
indicated this morning that was well warranted because in
fact she had." It is obvious from his own testimony this was
clearly an afterthought and could not have been one of the
reasons why he decided to transfer her to the production
line since this decision was made on February 8 before
knowledge of the personnel file incident was known to him.
Credibility Resolutions
Hall makes a good appearance, is a high school and
business college graduate , spoke in a composed, confident
manner, and convinced me of her truthfulness by her
demeanor and the consistency of her testimony.
On the other hand, Whigham, who told Hall that there
would be no union in the plant, testified at the hearing that
one reason he transferred her to the menial job of capping
mayonnaise jars was to make it convenient for her to
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proselytize for the Union among the production workers
she was trying to organize because she would become one
of them. Whigham was opposed to the Union. He had
given a talk to his employees who were gathered together
in captive audience style in which he first said his company
was not an antiunion employer, got along well with unions
in other of its plants, but no union was necessary in the
area where the Brundidge plant was located. Such an
explanation for Hall's transfer flies in the face of reason is
utterly incredible and to quote from Respondent's summa-
ry in its brief: "Transferring her to a job which placed her
directly among the production workers may have been
foolhardy on the employer's part from the standpoint of
inviting unionization ...." I am persuaded that Whig-
ham is an unbelievable witness. I so ford and do not credit
his testimony.
Concluding Findings and Analysis
Whigham in his talk with Hall on February 8 assigns as
his major reason for transferring her that she betrayed his
trust. He gave two reasons for this conclusion: (1) that she
requested permission to leave for her lunch at 11:30 a.m.
instead of her usual time of 12 noon for personal reasons (it
is not unusual for permission to leave early for personal
reasons to be granted); and (2) that she perused some
personnel records which were confidential.
As to point (1) that Hall was seen around 11:30 a.m. on
the Company's parking lot distributing union literature
from an auto conspicuously marked with union identifica-
tion cards, Whigham himself had told his captive audience
of employees that they had a right to engage in union
organizational activities provided such actions did not take
place on company time. Hall was doing exactly what she
was told she had a legal right to do. If she chose to use her
lunchtime for this purpose she was within her rights to do
so.
As to point (2), at the time Whigham threatened to
transfer her, according to Whigham's later statements, this
was because Hall had betrayed his trust by examining
certain personnel records. But the record shows that out of
his own lips Whigham testified he did not learn of this
incident until some time after February 8.
Thus the two reasons advanced by Respondent for
Respondent's disciplinary transfer were spurious and
pretextual. The record abundantly supports the fording,
which I make, that she was transferred in violation of
Section 8(a)(3) and (1). I also find that Respondent
additionally violated Section 8(a)(1) by questioning and
interrogating certain of its employees as to union activities.
Having found that Respondent discriminatorily trans-
ferred Dorothy Hall and coercively interrogated certain of
its employees I shall recommend that Respondent offer
Hall immediate and full reinstatement to her former or
substantially equivalent position, without prejudice to her
seniority and other rights and privileges.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has engaged in, and is engaging in,
unfair labor practices in violation of Section 8(a)(3) and (1)
of the Act, which unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER2
Respondent, Doxsee Food Corporation, Brundidge,
Alabama, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees with respect to
their organizational activities on behalf of the Retail,
Wholesale and Department Store Union, AFL-CIO.
(b) Threatening its employees with plant closure if they
select the Union as their bargaining representative.
(c) Threatening its employees with layoff if they select
the Union as their representative.
(d) Transferring employee Dorothy Hall to a less
desirable production job for engaging in activities in
support of the Union.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer Dorothy Hall reinstatement to her former or
substantially equivalent position, without prejudice to her
seniority and other rights and privileges.
(b) Post at its plant in Brundidge, Alabama, copies of the
attached notice marked "Appendix." 3 Copies of said
notice, on forms provided by the Regional Director for
Region 15, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it 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 insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
2 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.
3 In, the event that the Board 's Order is enforced by a Judgment of a
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."
DOXSEE FOOD CORPORATION 939
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended, gives
you the right:
To form , join, or help unions
To choose a union to represent you in
bargaining with us
To act together for your common interest or
protection
To refuse to participate in any or all of these
things.
The Board has ordered us to promise you that:
WE WILL NOT coercively interrogate you with respect
to your organizational activities on behalf of the Retail,
Wholesale and Department Store Union , AFL-CIO.
WE WILL NOT threaten you with plant closure if you
select the Union as your bargaining representative.
WE WILL NOT threaten you with layoff if you select
the Union as your bargaining representative.
The National Labor Relations Board has found that we
violated the Act by transferring Dorothy Hall as set forth
in the Order.
WE WILL offer to reinstate her to her former position
or, if this job is not available , to a substantially
equivalent job, without loss of seniority or other rights
and privileges.
DoxsEE FOOD
CORPORATION