Flowers Baking Co., Inc.

National Labor Relations Board - Board DecisionsFeb 23, 1979

240 N.L.R.B. 870 (N.L.R.B. 1979)

870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Flowers Baking Company, Inc. and Retail, Wholesale and Department Store Union, AFL-CIO. Cases 10-CA 12772 and 10C('A-12991 February 23, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MlKRPIY. AN[) TRI;ESI)AL[! On May 22, 1978, Administrative Law Judge Alvin Lieberman issued the attached Decision in this pro- ceeding. Thereafter, Respondent and the General Counsel filed exceptions and briefs in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge found, and we agree, that Respondent committed violations of Sec- tion 8(a)(1) of the Act by (1) interrogating employees about their activities in support of the Union and (2) by threatening, upon the Union's advent, to deprive employees of benefits and to close its plant; and Sec- tion 8(a)(3) and (I) of the Act by unlawfully dis- charging and thereafter refusing to reinstate employ- ee Michael Fergerson because he supported the Union. The Administrative Law Judge further con- cluded that the General Counsel has failed to estab- lish by a preponderance of the evidence that Respon- dent unlawfully discharged employees Early Johnson and Michael Maddox in violation of Section 8(a)(3) and (I) of the Act. While we agree with respect to Johnson, contrary to the Administrative Law Judge, we find that Respondent violated Section 8(a)(3) and (I) of the Act by its discriminatory discharge of Mi- chael Maddox.2 Respondent has excepted to certain credlbility findings made bh, the Administrative Law Judge. It is the Board's established policy not to oer- rule an Administrative Law Judge's resolutions with respect to credibhlity unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Srtandard )ri all Prrdrlu sN. m . 91 NlRB 544 (1950). enfd. 188 F.2d 362 (3d ('it 1951) We have carefuls examined the record and find no basis for reversing his findings We hereb? deny Respondent's request for oral argument inasmuch as the briefs and the record adequatel? present the issues and the positioiis of the parties. 2 In adopting the Administrative L.au Judge's recommnended dismiissal of the allegation of the complaint concerning Respondent's termtinationl of Johnson, we rely on the fact that there is no evidence to controert Respon- dent's assertion that information about Johnson's conviction for forgers and his faIlsification of his employment application came to main;gemenl's 240 NLRB No. 113 The relevant facts as to Maddox'a discharge are as follows: Maddox was hired as a pack-off man in October 1975. After I-year's service, Maddox was promoted to working foreman (a nonsupervisory position). As such his duties included assisting the production em- ployees, checking the production flow of goods, and filling out production reports. Sometime in March 1977,. Maddox asked his fellow employees whether they were interested in forming a union. As a result of the interest expressed by the employees, Maddox, along with two other employees, Early Johnson and William Heard, went to Gadsen, Alabama, to find out how they could obtain union representation. Af- ter meeting with union officials, Maddox signed an authorization card on March 24 and solicited 10 or II signatures from other employees at the plant. On April 4. the Union filed a petition for a representa- tion election. The election, which the Union lost, was held on June 10. On March 28, Maddox was working the 3 p.m. to 12 midnight shift when he received a telephone call from his aunt informing him that his son had become ill. (The night before Maddox had taken his son to the hospital emergency room.) Maddox immediately left the plant, without permission and without check- ing out. According to Maddox he told shipping clerk, Charles Moon, to tell Assistant Superintendent Tom Perry that he was leaving and he expected to return shortly. Upon his return, Maddox was met by Plant Superintendent Frank Buda and orally reprimanded for leaving the plant without permission.4 Maddox acknowledged that Buda told him the next time he had to leave "to contact him or his assistant Thomas Perry. or either call him over the P.A. system or write a note and leave it on the desk." Two days later Maddox received a written warning stating that "if this [his leaving the plant without permission] comes up again he will be discharged." s On April 1. Respondent's president. Calvin Rhodes, called Maddox into his office to discuss the March 28 incident. While in his office. Maddox testi- attentlolln in connection ith ai matter totalls unrelated to any employee ntiion or other cotncerted protected activity. bsent evidence that Respon- dent scrulinized enmployee records in an effort to seize upon some deficiency thereil 'is a pretext for ridding itself of unwanted union activists, and in view of the fact hat Johnson's discharge was pursuant to an established and legtillmte company rule. we cannot sax the General Counsel has met his burden of show ing an unlaw;ful motive (Compare h;hittaker Knitting Mils. In., 2(7 N RB 1019 1973). All dales herein are 1977 unless otherwise noted 4 lhe Administrative Law Judge did not make credihilit' resolutions with respect to conflicts in the testimnron of employee Maiddox and Supervisor Buda concerning the events leading to Maddox's discharge, Therefore, where there is a conflict Ae shall. for the purpose of this I)ecision, accept as true the testimnt of Respondent's Witnesses. Respondent maintainted rules of conduct for its emplhyees, violation of which " ill or ma' necessitate dsmissal. Included in the rules was Rule 18 "lI.eaing place of work s ithout permilsslon or justifiable reason." FLOWERS BAKING COMPANY, INC. 871 fied that Rhodes related that if he had been Buda. Maddox's immediate supervisor, he would have fired Maddox the night he returned. During this conversa- tion, Rhodes also asked Maddox if he knew who had signed authorization cards and whether Maddox had signed one. Maddox denied signing a card. Thereafter, on April I1. Marcus Scroggins. a relay driver for Respondent, became ill and informed Maddox that he was uncertain whether or not he would be able to make his scheduled deliveries.' Maddox testified that he asked Scroggins to wait un- til he had completed his duties and then he would assist him with the deliveries. Maddox, prior to his departure, informed pack-off man James Fincher that he was leaving to help Scroggins.' Thereafter Maddox left the plant without discussing the matter with his supervisor and without clocking out. On April 13, 2 days later, Maddox was discharged for violating rule 18 of Respondent's rules of conduct for employees. The Administrative Law Judge found that there was no direct evidence that Respondent was aware of Maddox's union activities and that in the absence of such evidence an essential ingredient of a discharge in violation of Section 8(a) (3) has not been proven. The Administrative Law Judge further found that Respondent's interrogation of Maddox had not pro- duced any information and therefore did not consti- tute evidence that Respondent was aware of Maddox's union activities. We disagree. Respondent's conduct in interrogating Maddox shows that it knew or at least suspected that Maddox was engaged in activity in support of the Union. Thus, as found by the Administrative Law Judge. shortly after the Union's organizational efforts be- gan, Rhodes called Maddox into his office to ques- tion him about union activities at the plant. The only other employee similarly interrogated was William Heard, another of the Union's principal organizers. Further, it was Maddox who was warned by Rhodes that if the Union came in certain employee benefits would be jeopardized and Heard was the only other employee similarly threatened. In these circumstan- ces we conclude that Respondent would not have * Scroggins did not testif' in the instant proceeding. Flncher. a former employee of Respondent. did not testilf udal. hou- ever. testified, over ohjection, that Fincher reported Maddox ahbsent from the job and that he had n knov, ledge of his whereabouts Buda' testimolinx is hearsas with respect to what Maddox told Flncher and therefore does not refute Maddox's testlmnon i this regard. As indicated hereinafter. we are satisfied that the record e dence of the circumstances surrounding Respondent's ertnltlion of Mlsddox is slffl- cient to sustain the inference of Respondent's knowledge of Mad.x',s union ati, it (tompare Soam JanA hii lru, in im /ti, 198 N\LRBH 12 ( 19 7 2t. Ihus. Wre find it unecessars to depend here ain Iliference Iof knowledge draw n from the small size of the dep.lrtmenl ill uIhlich I;ddox worked. singled out the two principal organizers for such treatment unless it was aware or suspected that they were involved with the Union,' and we therefore find that Respondent's knowledge of Maddox's union sympathies has been established. Since he found a lack of evidence as to knowledge. the Administrative Law Judge did not discuss the circumstances surrounding the discharge. An exami- nation of these events leads us to conclude that the reasons given by Respondent for discharging Mad- dox were pretextual and that the discharge was dis- criminatorily motivated. As noted above, on March 28, Maddox was orally reprimanded and 2 days later was given a written warning for leaving the plant without authorization to aid his sick child. On April 13, Maddox was discharged allegedly for an unau- thorized departure from the plant 2 days earlier. Re- spondent urges that Maddox was discharged because he ignored Respondent's earlier admonition that he should not leave the plant without permission. The difficulty with this position is that Respondent's warning was in the context of and quite clearly re- lated to departures for personal reasons. Here, how- ever, the April 11 departure was undertaken solely on Respondent's behalf since Maddox left to aid a sick driver delivering Respondent's products. Thus, un- like the first departure, when Maddox was engaged in a purely personal venture, the April II absence was made to undertake work for Respondent. It seems apparent therefore that (Respondent. in seek- ing to link together) the two departures as a basis for discharging Maddox, was searching for an excuse to discharge him. Further, the action taken by Maddox was neither unusual nor clearly outside his responsi- bilities as a working foreman. Indeed, it is clear that. approximately I month prior to the April I I incident, Maddox. with the knowledge of his supervisor, left the plant to aid driver Scroggins make deliveries." That the discharge was pretextual is further indi- cated by Respondent's reliance on Maddox's failure to clock out as a basis for its decision to discharge him. Respondent could not reasonably have expect- ed Maddox to clock out while performing work for Respondent." In addition, Maddox testified that when he received his promotion, Buda told him that "if anything that I thought I could handle [comes up] to go ahead and take care of it because lih was leaving sotne res.pon.sihilities to ime." '2 While an employer in ht nIl informa.tion wa obthalined as a result f the nterrog.atioln des notl II ani Wa negate the inference to he drav.n from the fact that the Inierrogatin ti.ook place tl t.n hat o .i.aslon. laN.ddo left the plant to a;sslt Sroggin, In the dlis- er, of somen damanled gools I his, factor further highlghts the difference betcwen the March 30 and the April I I ncident. While Buda testified hat 1addOsX did nt hse authorit t leasI e the ( 'oninlued FLOWERS BAKING COMPANY, INC. 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the circumstances here might warn employees it viewed as acting outside their responsibilities against doing so in the future, it appears highly unlikely that it would discharge an employee when the purpose of the departure was to work on behalf of the employer in an emergency capacity and when the offense was the first offense of that nature committed by the em- ployee. Accordingly, we conclude that Maddox's unau- thorized departure from the plant was seized upon by Respondent as an excuse to get rid of a union organ- izer and was therefore violative of Section 8(a)(3) and (1) of the Act. We shall, therefore, modify the recom- mended remedy and Order of the Administrative Law Judge to require Respondent to offer Maddox full and immediate reinstatement and to make him whole for any losses he may have suffered by reason of the discrimination practiced against hiring in the same manner as prescribed by the Administrative Law Judge in the remedy section of his Decision with respect to Michael Fergerson. CONCI.USIONS OF LAW The Conclusions of Law of the Administrative Law Judge are modified by substituting the following for Conclusions of Law 4 and 5, respectively, of his Decision: "4. By discharging and refusing to rehire Michael Fergerson and by discharging Michael Maddox, thereby discouraging membership in the Union, Re- spondent has engaged, and is engaging, in unfair practices within the meaning of Section 8(a)(3) and (I) of the Act. "5. Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(3) or (1) of the Act by discharging Early Johnson." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent, Flowers Baking Company, Inc., Opelika, Alabama, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Substitute the following for paragraph 2(a): "(a) Offer to Michael Fergerson and Michael Maddox immediate and full reinstatement to their former jobs or, in the event that those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole in the manner set forth in the section entitled 'The Remedy,' for any loss of earnings they may have suffered by reason of their unlawful dis- charges." 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the allegations of the complaint for which no violations have been found herein be, and they hereby are, dismissed. plant he did not contradict Maddox's earlier testimon) that he had previ- ously told Maddox he had some responsibility. APPENDIX NOII(E To EMPLOYEES Pos-ErD BY ORDER OF THE NAIIONAL LABOR REL.AIIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportu- nity to present evidence arguments, it has been de- cided that we have violated the National Labor Rela- tions Act. We have, therefore, been ordered to post this notice and to carry out its terms. WE Wt. NOT question you about anything connected with Retail, Wholesale and Depart- ment Store Union, AFL-CIO, or any other union. WEI WILL NOT threaten to close our plant or take away any benefits or privileges, including insurance and vacation benefits, you now have, or do anything else to your disadvantage and WE WILL NOT threaten to do any of these things if Retail, Wholesale and Department Store Union, AFL-CIO, or any other union becomes your bargaining representative. WE WILL NOT close our plant or take away any benefits or privileges, including insurance and vacation benefits, you now have, or do anything else to your disadvantage and WE WILL NOT threaten to do any of these things because you signed a card for, joined, or helped Retail, Wholesale and Department Store Union, AFL- CIO, or any other union. WE WILL NOT fire you, lay you off, suspend you, discipline you in any way, or do anything else to your disadvantage because you signed a card for, joined, or helped Retail, Wholesale and Department Store Union, AFL-CIO, or any other union. WE WILL NOT fire you, lay you off, discipline you in any way, or do anything else to your dis- FLOWERS BAKING COMPANY, INC. 873 advantage because you voted for Retail, Whole- sale and Department Store Union, AFL CIO. WE WI.L NOT in any other manner interfere with, restrain, or coerce you in the exercise of any right given you by the National Labor Rela- tions Act. As it has been decided that we fired Michael Fergerson and Michael Maddox because they helped and supported Retail. Wholesale and De- partment Store Union, AFL-CIO, wiE wl im- mediately offer to take Michael Fergerson and Michael Maddox back to work for us at their old jobs or, if such jobs no longer exist, at sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and WE w.l pay Michael Fergerson and Michael Maddox any wages and benefits they lost because we fired them, plus interest. WE witi. respect your right to form any union, to support an)' union, to help any union, and to deal with us through any union. WE wii.. also respect your right not to do an of these things. All our employees are free, without an)y objection from us, to become or remain members of Retail, Wholesale and Department Store Union. AFL CIO, or any other union. FI.OWERS BAKING COM1PANY. IN( DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN, Administrative Law Judge: The hear- ing in this proceeding, with all parties except the Charging Party represented, was held before me in Opelika. Ala- bama, on November 9, 10, and 11, 1977, on the General Counsel's complaints dated September 8, 1977 (first com- plaint), and September 20, 1977 (second complaint).' and Respondent's answers.2 In general, the issues litigated were whether Respondent violated Section 8(a)(l) and (3) of the National Labor Relations Act, as amended.3 More particu- The evidence adduced by the General Counsel did not support pars. 8 and 12 of the first complaint, and pars. 7 and 8 of the second compla;int Accordingly. my order will provide for their dismissal. A the hearing Respondent admitted the allegations of par 13 of the first complaint. In pertinent part these sections provide: Sec. 8(a) It shall be an unfair labor practice for an emploer I ) to interfere with, restrain or coerce emplo'ees in the exercise of the rights guaranteed in Section 7. (3) h discrimination in regard to hire tenure of empl,, ment to encourage or discourage membership in an, labor organization Sec. 7. Insofar as relevant, states: Sec 7 Employees shall have the right to self-organization. to form. join. or a ssist labor rga;lnizations. toh bar- gain collectively through representatises of their own choosing. and to larly, the questions for decision are as follows: 1. Did Respondent violate Section 8(a)( 1) of the Act by interrogating and threatening employees? 2. Did Respondent violate Section 8(a)(3) or (I) of the Act by discharging and refusing to reinstate three employ- ees. Early Johnson. Michael Maddox, and Michael Ferger- son? Upon the entire record,4 upon my observation of the witnesses and their demeanor while testifying, and having taken into account the arguments made and the briefs sub- mitted.5 I make the following: FINI)IN(;S OF FACTr I JURISDICTION Respondent, a Delaware corporation, is engaged at Ope- lika. Alabama. in the production and sale of baked goods. During 1976, a representative period, Respondent sold and shipped products valued at more than $50,000 to customers located outside the State of Alabama. Accordingly. I find that Respondent is engaged in commerce within the mean- ing of the Act and that the assertion of jurisdiction over this matter by the National Labor Relations Board (Board) is warranted. II TlE LAB()R DR(IANIZArlON INVOLVED Retail, Wholesale and Department Store Union. AFL CIO (Union). is a labor organization within the meaning of the Act. 11 INTRODIt1CION Briefly, this case is concerned with events occurring dur- ing and after an organizing campaign mounted by the Union which was climaxed by its defeat in a representation election. These included, the complaints allege, violations of Section 8(a)(1) of the Act by Respondent' and viola- tions of Section 8(a)(3) consisting of Respondent's dis- charging three employees, Early Johnson. Michael Mad- dox, and Michael Fergerson. Respondent denies having committed the alleged viola- tions of Section 8(a)(l) of the Act. Admitting the dis- charges, Respondent asserts that it dismissed the three em- ployees named in the complaints for cause: Johnson for falsifying his employment application, Maddox for leaving its plant without permission and without clocking off, and Fergerson for absenting himself from work without notice. Accordingly. it is Respondent's position that the discharges were not violative of Section 8(a)(3) of the Act. Additional- engage in other coincerted actislties for the purpose of collective bar- gainlng or other mutual aid or protectiin . . Errors in the transcript have been noted and corrected Although all the argumentls of the prties aind the ;uthorities cited them, whether appearing n heir briefs or made orally at trial. mar not hbe discussed each has been carefully weighed and considered Respondent's motion made al the conclusion of the trial, uapon which ruling as rese rsed, is disposed of in iccordance with the findings and conclusions set forth in this declsilon I he nature of these claimed siolations appear above in nmm statement of the qiestonils I[Ir declsion FLOWERS BAKING COMPANY. INC. 3 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly. Respondent claims that the General Counsel did not establish that it had knowledge before the termination of their employment that Johnson and Maddox had engaged in activity on behalf of the Union. IV PRFI.IMINARY FIN)IN(iS 8 A. Respondent's Employee Complement A total of more than 200 employees work for Respon- dent. At all material times 65 of them were employed in departments bearing a relationship to the production and distribution of the goods Rc.pondent manufactured. It was stipulated at trial that these were the "production, sanita- tion, shipping, transportation, garage and maintenance" departments. B. Respondent's Rules Respondent has promulgated rules of conduct for em- ployees, 9 in effect at all material times, which, as stated in their preamble, "will" or "may necessitate dismissal if vio- lated." Included in these rules are the following: 1. Falsifying employment records or giving false in- formation with reference thereto. 10. Habitual tardiness. 1I. Absence without reporting same. 12. Habitual absenteeism. 18. Leaving place of work without permission or justifiable reason. C. Respondent'v orm of Application for Emplovment A person seeking employment with Respondent is re- quired to prepare and submit an application on a printed form provided by respondent.'s On this form there is a space for the applicant to state whether he had "ever been convicted of a crime" and, if so, the "charge" on which the conviction was based. The form also contains a section in which the applicant is to set forth the "names and address- es of all previous employers." Finally, immediately above the signature line appears a pronouncement printed in large capital letters warning ap- plicants that "false statements on this application may be considered sufficient cause for dismissal." D. The Unionv Organizing Campaign On about March 16, 1977,11 the Union began to organize employees of Respondent. In the course of this campaign representatives to the Union met with employees and dis- tributed authorization cards. The Union's effort in this direction soon came to Re- Ihe purpose of these findings is to, furnish a frarme oir referenlce lthin which to csider the facts relating to Respondent's alleged unfair I;lhrrr practies (;.(. xh. 17. Resp Itxh. I is an exIn plc iof such formi All dates subsequently mentioned wilhout stating a ',car fali ' llhlll 1977. spondent's attention. To counteract it Calvin Rhodes, Re- spondent's president, met, from time to time, with small groups of employees during which he read a prepared speech making known Respondent's opposition to the Union and urging those in attendance to refuse to sign authorization cards. In addition, on March 29, Rhodes sent a letter 12 to all employees cautioning them to beware of "dirty tricks on the part of some . . . union supporters" in obtaining signa- tures to union cards. In the closing portion of his letter Rhodes expressed the "hope [that] all . . . employees will stand beside [him] in being against having a union" in Re- spondent's plant. On April 4, the Union filed a petition '3 seeking certifica- tion as the collective-bargaining representative of Respon- dent's employees in a unit consisting of "all production, maintenance, garage, relay drivers, shipping and sanitation employees employed at [respondent's] facility." On June 3, a week before the scheduled election on the Union's peti- tion, Respondent sent another letter to its employees soli- citing them, in essence, to vote against the Union. On June 10 a representation election was held among Respondent's employees in the unit described in the peti- tion. As earlier noted, the Union was defeated. V. HE AI.I.E(GED UNFAIR LABOR PRAC(IICES A. Facts, Contentions and Conclusions Concerning Re.spondent's Alleged Violations of Section 8(a)(1) of the Act The complaints allege that Respondent violated Section 8(a)( I ) of the Act by interrogating and threatening employ- ees. These allegations, denied by Respondent, will be sepa- rately considered. I. Interrogation On separate occasions during April 1977, Calvin Rhodes, Respondent's president, summoned Michael Maddox and William Heard, employees of Respondent, to his office. There, without complying with any of the safe- guards enumerated in Struksnes Construction Co., Inc. 165 NLRB 1062, 1063 (1967), Rhodes questioned them about the Union.'4 Rhodes asked Maddox, as the latter testified, if he "knew who had signed union cards" and whether he, him- self, "had signed one." Although Maddox had signed a card and obtained signed cards from other employees, he replied that he had not signed and did not know who had. During Heard's interview with Rhodes he, also, was asked whether he had signed an authorization card. In Struksnes the Board set forth five criteria for de- termining the lawfulness of interrogation of employees concerning their relationship to a union. One of these, not complied with here 15 is that "the employer has not en- (;( Exh 5. 'Resp lxh 7. 4Maddiox as nterrogated n ahout Aprd I and eard n ahbout April 1 the Srr MI discssiin o n nl, oeir ef the Sterlein standards should nrot he FLOWERS BAKING; COMPANY. INC. 875 gaged in unfair labor practices or otherwise created a coer- cive atmosphere." As will be shown below, Respondent did engage in other additional violations of Section 8(a)( ) of the Act and a violation of Section 8(a)(3). Furthermore, the very fact that the interrogation of Maddox and Heard was conducted in Rhodes' office also contributed to the crea- tion of "a coercive atmosphere." Thrush Pres.s, Inc.. 171 NLRB 575. 577 (1968). Accordingly. I conclude that by coercively interrogating employees as to their and other employees activities in sup- port of the Union Respondent violated Section 8(a)(l) of the Act. 2. Threats On about March 26, 1977, Calvin Rhodes, Respondent's president, told Maddox, as the latter testified, that "if the Union came in . . . he couldn't guarantee" that Respon- dent would continue to provide the insurance and vacation benefits the employees then enjoyed.' About a month later Rhodes informed Heard, as Heard related, that upon the coming of the Union "there was a possibility that the plant would be closed" and that there was a further "possibility" that "employees would have to pay their own insurance." Although couched in terms of guarantees and possibili- ties, there is no doubt in my mind that Rhodes was threat- ening plant closure and loss of benefits should the Union succeed in becoming the collective-bargaining representa- tive of Respondent's employees. It needs no citation of authority to establish that such threats are violative of Sec- tion 8(a)(l) of the Act. Accordingly, I conclude that by threatening to close its plant and depriving employees of existing benefits upon the Union's advent, Respondent committed further viola- tions of Section 8(a)(1) of the Act. B. Facts Concerning Respondent's 4lleged V'iolations of Section 8(a)(3) of the Act y Discharging Johnson and Maddox Early Johnson was hired in September 1976. He worked in the production department. Although he had formerly been employed by Uniroyal Tire Co. (Uniroyal) and while in its employ had been convicted of forgery. Johnson did not set forth either fact in his application for employment with Respondent. This came to Respondent's attention on about March 28, 1977. Johnson was discharged 2 days later, assertedly for falsifying his employment application by failing to disclose his conviction and previous employ- ment with Uniroyal in violation of rule I of Respondent's rules of conduct. 7 Michael Maddox was hired in October 1975. About a year later he was promoted to the position of working fore- man in the shipping department. While working in this construed as an indication that I am satlsfied that Rhodes complied a ith the other four |D At the time in question, Respondent paid part of its eiploiee, insur- ance premiums and the emplI,,ees paid the halance ( olncernli a,;li 1'inl, emplosees were recelsing ia 2-week acation after 4 ears of sers lte As allread noted. Ihis rule ma.kes falsffli eCmplolmenrt reo rds or gising false informatioln ith reference thereto" a dischareabhle offense capacity Maddox twice left Respondent's plant without permission and without clocking off. The first such event occurred on March 28. 1977. and the second on April I 1. In connection with his first departure from Respondent's plant without permission Maddox was given a written rep- rimand ' stating that he had been "warned that] if this comes up again he will be discharged." On April 13. 2 days after his second unauthorized departure from Respon- dent's premises, Maddox was discharged. assertedly for leaving the plant on two occasions without permission and without clocking off in contravention of rule 18 of Respon- dent's rules. °0 Johnson and Maddox were staunch adherents of the Union. They were instrumental in seeking out the Union. They signed authorization cards, solicited other employees to sign cards, and attended meetings with union represen- tatives. However. the General Counsel did not adduce di- rect evidence showing that Respondent was aware of this. C. Contentions and ('oncluding Findings ( oncerning Respondent 's Alleged iolations of Section 8(a)(3) of the Act hby Di.sehaoring Johnson and Maddo- Respondent contends that it was not unlawfully motivat- ed in discharging Johnson and Maddox. Moreover. Re- spondent argues that the General ounsel has not estab- lished that it had knowledge before the termination of their employment that Johnson and Maddox had engaged in union activity. In opposition, the General Counsel main- tains that Johnson and Maddox were discharged because of their union activism: that the stated reason for their dismissal is pretextuous: and that Respondent had knowl- edge that the, were furthering the Union while in its em- plo . Knowledge of a discharged employee's union activit is an essential ingredient of a discharge in violation of Sec- tion 8(a)(3) of the Act. 'Ihe possession of such knowledge on the part of an employer must be shown before an unfair labor practice within the meaning of that section can be said to have occurred. Pembek Oil Corporation, 165 NL.RB 367, 373 (1966). enfd. in this regard 404 F.2d 105 (2d Cir. 1968). Although there is no direct evidence to establish that Respondent had knowledge of the efforts of Johnson and Maddox on behalf of the Union. it is settled law that "di- rect knowledge of an employee's . . . union activities is [not] a sine qua non for finding that he has been discharged because of such activities. On the contrary, there is well established Board and court precedent that such knowl- edge may be inferred from the record as a whole." Wicsc Plow Wieldiing Co.. Inc., 123 NLRB 616, 618 (1959). The General Counsel urges that such an inference be drawn here based upon the small size of the departments in which Johnson and Maddox worked.2 ' A necessary corollary to Alihoigh a.idd, hd he title of orking foreman. he u s, nt a t- persisor lithin the meaning iof the Aet Resp [xh i . also alrcads noted. this rle inlterditcls under piin of distilsstl leis inl placo If iaork athol t prmission or listllilllh reasent" Ihe propositlin thus Idsanced h the (General ( oilnsel is ,mnnmonl% kno n la thl e ntall pan trule t his rule -secrri to ham hd it gcenesis in FLOWERS BAKING COMPANY. C 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this argument is that Respondent's total employee comple- ment of more than 200 people should be disregarded. 2 However, in applying the small plant rule the Board has refused to adopt the position taken by the General Coun- sel. On the contrary, it has held that it is the size of the plant, not the size of the department. which is controlling. Springfield Garment Manufacturing Company, 152 NLRB 1043, 1044, 1054 (1965); J.S. Dillon & Sons, Stores Co., Inc., 144 NLRB 1235, 1236, 1240-41, revised on other grounds 338 F.2d 395 (10th Cir. 1964). In Dillon it was specifically stated on this point that "the small plant rule is based upon the size of the plant, not the size of the department." Ac- cordingly, in determining whether the small plant rule is applicable in the instant case it is Respondent's total em- ployee complement, more than 200, which must be taken into account, not the small size of the departments in which Johnson and Maddox were employed. Huntington Hospital, Inc., 229 NLRB 253 (1977), relied on by the General Counsel in support of his argument that Respondent's knowledge of union activity by Johnson and Maddox should be inferred from the small size of the de- partments in which they worked, does not dictate a differ- ent result. In Huntington, the Board, without reference to Springfield or Dillon stated that in view of "the smallness of the . . . department [in which the employee there con- cerned worked] we can reach no conclusion other than that Respondent had knowledge of [the employee's] union ac- tivities." For this proposition the Board cited Tavko Indus- tries, Inc., 214 NLRB 84 (1974). Tayko, however, was a small plant case, not a small department case. The application of the small plant rule seems to be limit- ed to enterprises employing fewer than 130 people. 2 3 Where the number of employees is greater the Board has refused to apply the rule. There being more than 200 people in Respondent's em- ploy it follows that the small plant rule is inapplicable to .I..R.B. v. Abbottrr Worsted Mills, Inc., 127 F.2d 438. 440 (Ist ir. 1960). where it was stated that "in a small plant . it is a reasonable inference that the information [concerning an emploee's organization activities] came to the notice of . . management officials." ,22 The General Counsel also contends that respondent had knowledge of the union activity of Johnson and Maddox because of its unlawful interro- gation of, and threats. to employees. The short answer to this contention is that Johnson was neither interrogated nor threatened and respndent learned nothing of Maddox' union activity as a result of his having been interrogated and threatened. It will be remembered, in this regard. that Maddox denied having signed a union card when alsin Rhodes. respon- dent's president. asked whether he had done so. 2 See. e.g.. Quest-Shon Mark Brassiere Co., Inc.. 80 NLRB 1149. 1150 (1948) 130 employees): Malone Knitting (Conpany. 152 NI.RB 643. 644. 647 (1965). enfd. 358 F.2d 880 (Ist (ir. 1966)1 (80( 90 employees): .Sokeli Foods. Inc.. 91 NLRB 1267. 1270 enfd. 193 F.2d 736 (5th Cir. 1951) (75 employ- ees): lcirbank Knitting Mill. Inc.. 134 NLRB 951. 956 (1961): 40 45 enl- ployees): Ventre Packing (o. Inc.. 163 NL.RB 540. 541 (1967) (30 35 em- ployees): Taiko Industries. Inc.. 214 NI.RB 84. 88 ( 1974) (30 35 employees): Pembek Oil Corporation. 165 NLRB 367. 373 (1967). enfd. in this regard 404 F.2d 105 (2d Cir. 1968) (17 enploees)l Wicce Plow tWeldinr (', Inc.. 123 NLRB 616. 618 (1959) about 13 employees). 24See. e.g.. Atlantic Metal Products. Inc.. 161 NRB 919. 920 (1966) (about 180 employees): IhoiorLt Equipmenrt (ororation e al.. 146 Nl.RB 1247. 1252 (1964) (about 200 employees): JS. Dillon & Solas. ei.. 144 NL.RB 1235, 1236, 1240. reversed on other grounds 338 F.2d 395 ( 10th (ir. 1964) (about 260 emplo)ees): 7ennes.see Packers, Inc. etc. 143 NI.RB 494. 508 (1963) (275 emploees): Sprtngfild Garment Mauanuflc(urtn (oniani, 152 NLRB 1043, 1044. 1054 11965) (over 400 employees). show, by inference, that Respondent had knowledge of union activity by Johnson and Maddox. In view of this, and the absence of direct evidence to establish such knowl- edge, I find that this essential ingredient of a discharge in violation of Section 8(a)(3) of the Act has not been proven. Accordingly, I conclude that the General Counsel has failed to show by a preponderance of the evidence that Respondent violated Section 8(a)(3) or (1) of the Act by discharging Johnson and Maddox. My order will, there- fore, provide for the dismissal of paragraphs 13 and 14 of the first complaint. D. Facts Concerning Respondent's Alleged Violation of Section 8(a)(3) of the Act b, Discharging Fergerson Michael Fergerson was hired in September 1976. Al- though he was tardy and absent on several occasions, Fergerson's employment with Respondent progressed without significant incident until May 18, 1977. On that day, Fergerson injured his leg while working. Because of this Fergerson refused to work on May 21 and 22, his next scheduled work days. Being of the opinion that Fergerson's injury was not severe enough to warrant his refusal to work, Michael Beatty, Respondent's production superintendent, discharged him on May 23.25 Fergerson protested his discharge to Calvin Rhodes, Re- spondent's president. Rhodes converted Fergerson's dis- charge into a 3-day suspension. In doing so, Rhodes im- pressed upon Fergerson that in going over Beatty's head and permitting him to resume working for Respondent he was receiving a big favor. Rhodes then adverted to the representation election scheduled for June 10 and told Fer- gerson, as he testified, that he wanted Fergerson "to be with [him and] to vote no in the election." As found earlier, on June 3 Respondent mailed a letter to its employees, signed by Rhodes, soliciting them to vote against the Union. The letter sent to Fergerson 26 con- tned a postscript, also signed by Rhodes, stating "Now is the time for my favor----I need your no vote Friday Don't let me down-Thanks." On June 9, the day before the election, Rhodes conduct- ed a visitor through Respondent's plant. When they reached Fergerson's work place Rhodes patted him on the shoulder and told the visitor, as Fergerson related, "Mike [Fergerson] is 100 per cent with us." Then, turning to Fer- gerson, Rhodes said to him, "Mike, I want you to to be with me tomorrow . .. I want you to vote no against the Union . . . don't let me down." At the election, held the next day, Fergerson served as the Union's observer. When he saw Fergerson acting in this capacity Rhodes was, as he admitted, "surprised . . . because [he] had previously given [Fergerson] a second chance" to resume working for Respondent after his dis- charge on May 23. On June 24, Fergerson was to have worked the second shift, starting at 10:45 p.m. and ending at 6:45 a.m. the following day. At about 9:30 p.m. Fergerson called the sec- ond shift supervisor and told him that he would be late : It s not alleged that this discharge was violative of Sec. 8(a(3) of the Act. 26 (i.C( Exh. 6. FLOWERS BAKING COMPANY, INC. 877 because the automobile in which he was riding had mal- functioned. Some hours later, after being unable to have the car repaired. Fergerson again telephoned Respondent's plant to report that he would not be at work that night. but was unsuccessful in reaching his supervisor. On June 26, when Fergerson was next scheduled to work, he was informed that he had been discharged by Beatty, Respondent's production supervisor, for being ab- sent during the night of June 24.27 A few days later Fergerson informed Rhodes, Respon- dent's president, that he had been discharged by Beatty and asked Rhodes to rehire him. As Fergerson testified, Rhodes replied that he was unwilling to "go over Beatty's head and hire [Fergerson] back" and reminded Fergerson, in an obvious reference to his having been the union's elec- tion observer, that Fergerson had "let [himJ down." E. Contentions and Concluding Findings Concerning Respondent's Alleged Violations of Section 8(a)(3) and (I) of the Act byv Discharging Fergerson Respondent asserts that Michael Fergerson was dis- charged because he failed to come to work on June 24, 1977, and failed to report that absence. The General Coun- sel contends, and I agree, that Fergerson's dismissal was not caused by what occurred on June 24, as Respondent claims, but by his having supported the Union, as revealed by his having been its election observer. The first link in the chain of events culminating in Fergerson's ultimate discharge was his rehire by Calvin Rhodes, Respondent's president, following his earlier dis- charge on May 23, 1977. Rhodes made it clear to Ferger- son that a big favor was being conferred upon him and suggested that it could be requited by voting against the Union in the forthcoming election. Some 10 days later, in a letter to Fergerson, Rhodes re- minded him that he was expected to return the favor by voting "no" and admonished Fergerson not to "let [him] down." Rhodes was so confident that Fergerson would not let him down by voting in favor of the Union that he boast- ed to a visitor he was conducting through Respondent's plant that Fergerson was "one hundred percent with us." At the same time Rhodes exhorted Fergerson to vote against the Union and once more cautioned Fergerson against letting him down. Despite the favor he had bestowed upon Fergerson by rehiring him after his first discharge: Rhodes' expectation that Fergerson would return the favor by voting against the Union; Rhodes' several admonishments to Fergerson not to let him down; and Rhodes' boast that Fergerson was on Respondent's side in its election contest with the Union, Fergerson did "let [Rhodes] down" by serving as the Union's election observer. Seeing this, Rhodes was under- standably, as he admitted, "surprised." This was, undoubt- edly, an understatement. Rhodes was not only surprised, but also, in my opinion, disappointed and resentful at Fergerson's obvious unthankfulness in refusing to repay 2The second complaint allege. that this dlscharge wao ,ioatl.le of Set 8(aX3) and (I) of the Act the favor in the manner he suggested; i.e., by not support- ing the Union. To penalize Fergerson for his ingratitude in supporting the Union at the election respondent, as I see it. took ad- vantage of the first opportunity presenting itself, Fergerson's absence on June 24. as a pretext to discharge him for having done so. If more is needed to fortify my opinion in this respect, it is found in Rhodes' unwillingness once again to rehire Fergerson after his discharge on June 24 because, as Rhodes told him. Fergerson had "let [him] down." 28 Accordingly, I conclude that by discharging Fergerson on June 25, 1977, and refusing thereafter to reinstate him Respondent violated Section 8(a)(3) and (I) of the Act. VI VItF EFFECT OF RESPONDFNT'S UNFAIR LABOR PRA( IICES PON ('OMMER( I Respondent's unfair labor practices occurring in connec- tion with its operations set forth in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VII IHE REMEDY Having found that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, my order will require Respondent to cease and desist therefrom and to take such affirmative action as will effectuate the policies of the Act. In the latter connection, my order will require Respondent to offer full and immedi- ate reinstatement to Michael Fergerson and to make him whole for any losses he may have suffered by reason of the discrimination practiced against him. Any backpay found to be due to Fergerson shall be computed in accordance with the formula set forth in F 14: Woolworth Company, 90 NLRB 289 (1950), and shall include interest in the manner prescribed in Florida Steel Corporation. 231 NLRB 651 (1977)2. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce 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. By the following conduct, Respondent has engaged and is engaging in unfair labor practices within the mean- ing of Section 8(a)( 1) of the Act. (a) Coercively interrogating employees concerning their and other employees' activities in support of the Union. (b) Threatening, upon the Union's advent, to deprive employees of benefits and to close its plant. 4. B discharging and refusing to rehire Michael Ferger- 2 A I have found. his ;., a h o ious reference to Fergerson's hasing been the I llton's lection oherer Sec. genlerall, I. i Plwumhln d tlatlnn (. ., 138 N RRB l ( 192 FLOWERS BAKING COMPANY. I C. n__ 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD son, thereby discouraging membership in the Union, Re- spondent has engaged and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(3) and (I) of the Act. 5. Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(3) or (I) of the Act by discharging Early Johnson and Michael Maddox. 6. The unfair labor practices engaged in by Respondent, as set forth in Conclusions of Law 3 and 4, above, affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law. and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: ORDER ' The Respondent, Flowers Baking Company, Inc., Opeli- ka, Alabama, its agents, successors, and assigns. shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their attitudes toward, knowledge of, activities on behalf of, or as to any other matter relating to, Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization. (b) Threatening employees with plant closure, depriva- tion of benefits, or with any other form of reprisal, or effec- tuating any such threats, should Retail, Wholesale and De- partment Store Union, AFL CIO, or any other labor organization, become the collective-bargaining representa- tive of any of its employees. (c) Threatening employees with plant closure, depriva- tion of benefits, or with any other form of reprisal, or effec- tuating any such threats, for joining, assisting, or in any manner supporting Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization. (d) Discouraging membership in Retail, Wholesale and Department Store Union, AFL CIO, or any other labor organization, by discharging employees, or by discriminat- ing in any other manner against employees in regard to i Il the even no exceptioln are filed its prosided hy Sec. 102.4 of the Rules and Regulations of the National I.abor Relationls Board. the fildings, conclusions, and recoimmended Order herein shal. as, proiided in Sec. 102.48 of the Rules :ind Regulations. he adopted hN thie Bllard and hbec,mie its findings. conclusiuns, and Order. and .il hJectlns theielo shall he deemed waived for all purposes. hire or tenure of employment, or any term or condition of employment. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National La- bor Relations Act, as amended, or to refrain from any or all such activities. 2. Take the following affirmative action which, it is found, will effectuate the policies of the National Labor Relations Act, as amended: (a) Offer to Michael Fergerson immediate and full rein- statement to his former job without prejudice to his senior- ity or other rights or privileges and make him whole, in the manner set forth in the section of this Decision entitled "The Remedy," for any loss of earnings he may have suf- fered by reason of his unlawful discharge. (b) Preserve and, upon 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 neces- sary to analyze the amount of backpay due under the terms of this Order. (c) Post at its premises in Opelika, Alabama, copies of the attached notice marked "Appendix." 31 Copies of said notice on forms provided by the Regional Director for Re- gion 10, after being duly signed by Respondent's represen- tative, shall be posted by 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. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. IT IS FURTHER ORDERED that paragraphs 8, 12, 13, and 14 of the complaint issued on September 8, 1977, and para- graphs 7 and 8 of the complaint issued on September 20, 1977, be, and the same hereby are. dismissed. l IT the csent that this Order is enfollrced a Judgment of a nited Sta;ltes ( ourt of Appeals. the words in the notice reading "Posted b Order of the Natliolla Lahor Relations Board" shall read "Posted Pursuant to a J ldgim11T t of the nited Ste.tcs (Court of Appeals lnlforctilg an Order of the National Labor Relatiins Board."