Forestwood Farms

National Labor Relations Board - Board Decisions

Sep 29, 1992

308 N.L.R.B. 1049 (N.L.R.B. 1992)

1049
308 NLRB No. 153
FORESTWOOD FARMS
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In addition, the Respondent asserts that some of the judge’s rul-
ings, findings, and conclusions demonstrate bias and prejudice. On
careful examination of the judge’s decision and the entire record, we
are satisfied that such contentions are without merit.
2 In adopting the judge’s conclusion that the Respondent violated
Sec. 8(a)(3) and (1) of the Act by discharging employee Carmichael,
we do not rely on the judge’s finding that the Respondent’s attorney
suggested that the Union find Carmichael another job. The record is
unclear as to who suggested that the Union find Carmichael another
job. However, even without relying on this finding, we agree with
the judge’s conclusion that the General Counsel established a prima
facie case.
Chairman Stephens, in agreeing with the judge that the Respond-
ent failed to rebut the General Counsel’s prima facie case, finds it
unnecessary to rely on Paradise Post, 297 NLRB 876 (1990), a case
in which he dissented.
The judge’s decision contains the following errors which do not
affect the result. In secs. E and F of his decision, the judge refers
to certain events as occurring in 1992 rather than 1991. Additionally,
the judge indicated that the Union’s witness, Seidenfaden, testified
that when the Union filed its petition for certification, the Respond-
ent’s president, Scott, called him and told him, ‘‘My people don’t
want a union.’’ The judge further stated that ‘‘Scott agreed that he
called Seidenfaden, thus corroborating the Union representative.’’
The Respondent excepted to the judge’s implication that Scott admit-
ted he said, ‘‘My people don’t want a union.’’ A review of the
record shows that Scott only testified to the fact that he called the
union representative, and did not admit that he told Seidenfaden that
the Respondent’s employees did not want a union.
Forestwood Farms, Inc. and United Food and Com-
mercial Workers Union Local 1657, AFL–CIO.
Case 10–CA–25545
September 29, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On April 28, 1992, Administrative Law Judge How-
ard I. Grossman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Forestwood Farms, Inc.,
Birmingham, Alabama, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Birmingham, Alabama, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Gaye Nell Hymon, Esq., for the General Counsel.
David Arendall, Esq. (Arendall & O’Kelley), of Birmingham,
Alabama, for the Respondent.
George Longshore, Esq., of Birmingham, Alabama, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
charge was filed on September 16, 1991, by United Food and
Commercial Workers Local 1657 (the Union). Complaint
issued on October 18, 1991, and alleges that Forestwood
Farms, Inc. (Respondent or the Company), on October 28,
1991, discharged employee Cassandra Carmichael because of
her membership in and activities on behalf of the Union, thus
violating Section 8(a)(3) and (1) of the National Labor Rela-
tions Act (the Act).
A hearing was held before me on this matter in Bir-
mingham, Alabama, on January 24, 1992. Thereafter, the
General Counsel and Respondent filed briefs. On the entire
record, including my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The pleadings establish that Respondent is an Alabama
corporation, with an office and place of business located at
Birmingham, Alabama, where it is engaged in the processing
of vegetables into cut products. During the calendar year pre-
ceding issuance of the complaint, a representative period, Re-
spondent purchased and received at its Birmingham, Ala-
bama facility, goods and materials valued in excess of
$50,000 directly from suppliers located outside the State of
Alabama. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
The pleadings as amended at the hearing establish that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Union’s Campaign and Certification
The Union began an organizing campaign in February
1990. The leading union proponent was Cassandra Car-
michael, who obtained signatures on 19 union authorization
cards. Company President Everett W. Scott Sr. denied know-
ing this until the day of the hearing. However, Carmichael
testified without contradiction that Scott called her a ‘‘trou-
blemaker’’ on several occasions, and that he had never ap-
plied this term to her before the beginning of the union cam-
paign. She also testified without contradiction that Scott told
a supervisor to handle her with kid gloves because she was
reporting back to the Union. I credit her testimony.
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 C.P. Exh. 1.
2 G.C. Exh. 2.
3 G.C. Exh. 3, art. XVI. The Union could appoint two stewards.
4 The contract provided that ‘‘[t]he shop stewards shall not use
their position as shop steward as an excuse to avoid performing their
duties to the Employer.’’ Id.
5 G.C. Exh. 3.
6 G.C. Exh. 4.
7 G.C. Exh. 5.
The Union made a written demand for recognition, and
George Seidenfaden, the Union’s secretary/treasurer, testified
that Scott called him and asked the meaning of the letter.
Seidenfaden explained it, and Scott replied that his ‘‘people
don’t want a union.’’ Seidenfaden answered that the Union’s
position was based on signed authorization cards. Scott
agreed that he called Seidenfaden, thus corroborating the
union representative. A representation petition was filed on
May 11, 1990,1 and a Board election was held, at which Car-
michael participated as a union observer. On July 2, 1990,
the Union was certified as the representative of Respondent’s
food preparers and processors, with certain exclusions.2
B. The Bargaining, the Contract, the Company’s
Objections to Carmichael, and the Decertification
1. Summary of the evidence
Bargaining began in November 1990, and Company
Owner Scott attended the first two sessions, together with
Attorney Arendall. The Union was represented by union offi-
cial Seidenfaden and by Carmichael. The latter was the only
employee representative of the Union, and attended most of
the bargaining sessions. In the second session, according to
Seidenfaden, Scott began criticizing Carmichael, and this led
to a dispute between Seidenfaden and Scott. Thereafter, the
Company was represented only by Attorney Arendall.
Seidenfaden testified to a number of conversations with
Arendall in which Carmichael was discussed. Thus, in late
January 1991, after a negotiation session in Arendall’s con-
ference room, Arendall inquired as to the identity of the indi-
vidual the Union intended to appoint as shop steward.
Seidenfaden named Carmichael, and Arendall said that this
was a mistake. When Seidenfaden asked the reason, Arendall
replied that there was a ‘‘lot of animosity’’ between Scott
and Carmichael because of ‘‘all this mess.’’ When
Seidenfaden asked Arendall to explain what he meant, the
latter referred to ‘‘the last several months with your Union.’’
Arendall said that the Union could get a better contract if it
agreed not to designate Carmichael as steward. The Com-
pany stated that she talked too much, and would abuse the
position of steward. Seidenfaden replied that the Union
would remove Carmichael as steward if she did not perform
her job, but otherwise rejected the Company’s proposal.
Seidenfaden further affirmed that he had a telephone con-
versation with Arendall in February 1991, in which the attor-
ney told him that Scott was ‘‘considerably upset’’ over the
Union’s intention to designated Carmichael as steward.
Arendall suggested that the Union get her another job at a
company where the Union had a contract, and Seidenfaden
rejected this proposal.
The parties reached an agreement in February 1991. How-
ever, according to Seidenfaden, the Company withdrew its
position on prior tentative agreements, principally one which
specified a 3-year duration to the contract. The Company re-
duced this term so that the agreement ran for only a few
months. Seidenfaden testified that Arendall told him that
some of the things he had agreed to were ‘‘taken off the
table’’ because of the Union’s failure to address the issue of
Carmichael as the steward. The Company wanted ‘‘peace
and harmony,’’ and could not be assured of that with Car-
michael as the steward. Further, Seidenfaden averred,
Arendall informed him that the Company intended to file a
decertification petition.
Attorney Arendall testified, and partially corroborated and
partially denied Seidenfaden’s testimony. He agreed that the
subject of Carmichael’s ‘‘talking’’ had come up in an early
bargaining session, and that the Company expressed concern
that Carmichael would ‘‘abuse’’ the shop steward position by
going to various work areas and interfering with production.
Arendall also agreed that on ‘‘at least one occasion, if not
two,’’ he discussed Carmichael with Seidenfaden. The Com-
pany was worried about the Union’s right to designate stew-
ards under the proposed clause.3 Arendall felt that the Com-
pany and the Union ‘‘would be at odds with each other over
whether she [Carmichael] was doing Union duties or was
goofing off from her work.’’ However, Arendall denied that
he ever told the Union not to appoint Carmichael—the Com-
pany’s concern was with the Union’s power to designate
stewards under the proposed clause. Arendall asserted that it
was ‘‘given’’ that Carmichael would be the steward. He con-
firmed Seidenfaden’s testimony that the latter promised to re-
move Carmichael in 2 months if she did not work out. Asked
why Seidenfaden would have said this if the Company had
not expressed disagreement with her appointment, Arendall
replied that the Company’s concern was with the steward
clause.4
Arendall did not specifically deny that he told Seidenfaden
that there was a lot of animosity between Scott and Car-
michael because of ‘‘this mess.’’ Nor did he specifically
deny suggesting that the Union get Carmichael another job.
According to Arendall, the issue of finding another job for
Carmichael was raised by Seidenfaden, as something he
would have to do if he removed Carmichael as steward.
Arendall denied that there had been a tentative agreement on
a 3-year term for the contract. Nonetheless, he asserted that
there had been a ‘‘change’’ to ‘‘the short contract.’’ The rea-
son for this was the fact that an employee had approached
Scott and had asked how to get the Union ‘‘out.’’ This was
the reason for the ‘‘change,’’ not company opposition to Car-
michael as a union steward.
On February 25, 1991, the parties executed a collective-
bargaining agreement which ran from February 22, to July
2, 1991.5 The latter date was the anniversary date of the cer-
tification. On February 25, 1991, the Union notified the
Company by letter that Carmichael was designated as one of
the shop stewards.6 On May 1, 1991, a decertification peti-
tion was filed, and the Union thereafter filed a disclaimer of
interest and requested withdrawal of its original petition. On
July 30, 1991, the Regional Director for Region 10 revoked
the certification.7
1051FORESTWOOD FARMS
8 R. Exh. 2.
9 Id.
10 Id. Carmichael stated that she left the building to mail a letter
while on a break. Although there is no evidence that she exceeded
her break period, one of Scott’s sons told her when she returned that
she had left the property on company time, because the Company
was responsible for her unless she clocked out.
11 Id. Carmichael affirmed that C.J. was a truckdriver, and that
when the truckdrivers pull the lettuce out of the cooler, employees
go in to see how much is there. According to Carmichael, Scott
came over to her work area, ‘‘insulted’’ her in front of her cowork-
ers, and said that he would fire her if he caught her in the cooler
again with C.J. Scott testified about this, and asserted that Car-
michael had no authority to be in the cooler checking on lettuce. Al-
though Shipp’s statement was placed in Carmichael’s file, Scott did
not give her an opportunity to submit a written statement.
12 Id. Shipp’s statement alleges that Carmichael was talking with
a loud voice, that he ordered her to lower it, and that she replied
she was not the only one talking. When Shipp said that she was the
only one talking in a loud voice, Carmichael began screaming. She
later began to ‘‘settle down’’ and resume her work. Respondent sub-
mitted a written statement from employee Randy Scott corroborating
Shipp. Carmichael testified that she was not the only one laughing
and talking. Everett Scott testified that Carmichael was not given a
copy of Randy Scott’s statement, and was not given an opportunity
to present her side of the story. As explanation, Scott said that he
took no disciplinary action. Asked why he then placed the two writ-
ten reports in Carmichael’s file, Scott replied, ‘‘Just for recordwise.’’
13 G.C. Exh. 6.
14 R. Exh. 2. Scott asserted that he was called to Carmichael’s
work area because she was not working properly, that she was upset,
and that she threw a knife at somebody which went into a cardboard
box. Carmichael retrieved it, and then turned the air pressure on,
which ‘‘blew’’ everybody away. Carmichael contended that the knife
fell into the box, that Scott pushed the box ‘‘on’’ her, and that she
became so nervous that the air hose was cut accidentally.
2. Factual analysis
Attorney Arendall’s position that the Company did not ex-
press opposition to Carmichael’s appointment as steward, but
merely to the language of the steward clause in the contract,
is disingenuous. The clause was a standard one giving the
Union the right to appoint stewards. There is no reason for
the Company’s opposition to this clause unless it objected to
one of the stewards being appointed. I credit Seidenfaden,
and find that Arendall told him that there was a lot of ani-
mosity between Scott and Carmichael because of ‘‘this
mess,’’ which was defined as the Company’s experience with
the Union. I also find, crediting Seidenfaden, that Arendall
told him the Union could get a better contract if it agreed
not to appoint Carmichael as steward, and suggested that the
Union get her another job with a different company.
Although Arendall denied that there had ever been ten-
tative agreement on a 3-year term for the contract, he admit-
ted that there had been a ‘‘change’’ to a ‘‘short term con-
tract.’’ I infer that there had been tentative agreement on a
longer contract, otherwise there would have been nothing to
‘‘change.’’ Although Arendall asserted that the reason for the
change was an employee’s inquiry to Scott on how to get the
Union out, and, in fact, a decertification petition was filed,
this did not take place until May 1, 1991, several months
subsequent to Arendall’s and Seidenfaden’s discussions about
a contract. Without making a finding on Arendall’s hearsay
as to what an employee may have told Scott about decerti-
fication, I credit Seidenfaden’s testimony that Arendall told
him, at about the time of signing the agreement, that some
things had been ‘‘taken off the table’’ because the Company
wanted ‘‘peace and harmony,’’ and was not assured of hav-
ing it with Carmichael as a union steward. One of the mat-
ters taken off the table was a 3-year term for the agreement.
C. Carmichael’s Employment History Until April 1991
Carmichael started working for the Company as a vegeta-
ble processor in July 1989. Her supervisor was Donald
Shipp. He testified that Carmichael needed ‘‘real close super-
vision.’’ Company Owner Scott contended that Carmichael
was a marginal employee from the beginning. Her short-
coming was talking, and her habit of ceasing to work while
doing so.
Scott contended that he talked to Carmichael about this
problem, and the Company produced records entitled ‘‘Em-
ploye Warning Report.’’ However, most of these record ab-
sence or tardiness. Scott averred that they are merely used
for record keeping on attendance, and do not constitute dis-
ciplinary records. The first one is dated February 15, 1990,
about the time of the beginning of the union campaign, and
states that Carmichael could not work because of sickness in
the family.8 Scott testified that it was company policy to
‘‘write up’’ every time an employee was absent, and agreed
that it was probable that Carmichael had been absent pre-
viously during the 7 or 8 months that she had then been em-
ployed. However, he could not explain why there were no
writeups recording such prior absences.
There are five more such reports in 1990, and several
more of similar nature in 1991.9 The first report of a dif-
ferent nature is dated November 26, 1990, at about the time
the Company and the Union started bargaining. It states that
Carmichael left the building without clocking out.10
The next such report is a written statement from Super-
visor Shipp dated December 6, 1990, stating that he saw Car-
michael in a cooler with ‘‘C.J.’’ He asked her what she was
doing there, and received no response.11 Supervisor Shipp
submitted a written report of Carmichael’s ‘‘insubordinate
behavior’’ on January 22, 1991.12
Scott agreed that there was more typewritten statements in
Carmichael’s file than there were in other employee files. He
stated that he did not take any disciplinary action on these
statements. Asked then why they were filed, Scott said that
he had a faulty memory.
D. Carmichael’s Grievances
1. Summary of the evidence
On April 6, 1991, Carmichael filed a grievance alleging
that she had been told to go home early, and requested com-
pensation for lost time.13 Carmichael was the only employee
who filed a grievance. Elaise Fox, a union business agent,
testified that the Company granted this request.
On June 6, Carmichael received a warning report alleging
that she had thrown a knife into a box of onions and had
opened up an air valve.14
On the next day, June 7, 1991, Carmichael filed a griev-
ance alleging that Scott was harassing and intimidating her
because she was the shop steward, and was attempting to get
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 G.C. Exh. 7.
16 G.C. Exhs. 9, 10.
her to quit her job.15 Business agent Fox made a telephone
call to Scott in which she requested a meeting on the subject
of Carmichael. Fox wrote Scott two letters on this matter on
June 12,16 and a meeting was held on June 17. Fox, Car-
michael, Scott and an individual named ‘‘Ron’’ were present.
According to Fox, the meeting lasted for ‘‘awhile.’’ Scott
and Carmichael traded accusations. Scott said that Car-
michael started out as ‘‘such a good employee,’’ but ‘‘after
this mess’’ was ‘‘one of the worst.’’ He wished that Car-
michael would go somewhere else and find another job. Car-
michael said that her work had not changed, but that her atti-
tude toward Scott had changed because his attitude toward
her had changed. Scott repeated that Carmichael had become
‘‘one of the worst women in this plant.’’ Fox asked whether
Carmichael had any writeups, and Scott said that she had
none. The meeting ended with Scott agreeing not to ‘‘har-
ass’’ Carmichael any more. Carmichael then left, and a sepa-
rate conversation ensued between Scott and Fox. Scott said
he had no problems working with Fox, but that Carmichael
had become one of the worst employees.
Scott denied telling Fox that Carmichael was the worst
employee he ever had—she was only marginal. He denied
telling Fox that there were no writeups in Carmichael’s file,
and commented that in fact there were such writeups. Scott
was asked whether he told Fox that he had no problems with
Carmichael ‘‘until this mess started, or words to that effect.’’
He answered: ‘‘I have never used the word ‘mess.’’’
2. Factual analysis
Scott’s answer was evasive on whether he told Fox that
he had no problems with Carmichael until the mess started.
Fox was a more truthful witness, and I credit her testimony
on this point. Because of Fox’s greater credibility, I also ac-
cept her testimony that Scott told her that Carmichael had
started out as ‘‘such a good employee,’’ but had become one
of the worst after ‘‘all this mess,’’ and that Scott wished she
would find a job elsewhere.
Scott was correct in asserting that Carmichael in fact did
have writeups in her file at the time of Fox’s inquiry about
the matter. However, this is not determinative of the issue as
to whether he told Fox that there were no such write ups.
If he had agreed that there were and Fox had asked to see
them, they may not have survived the Union’s scrutiny. Fur-
ther, Scott contended that they were not disciplinary in na-
ture. Because Fox was a more truthful witness, I credit her
on this issue.
At about the beginning of July 1991, Carmichael told
Scott that she was quitting. Scott did not encourage her do
so, and Carmichael in fact did not resign.
E. Carmichael’s Discharge
1. The rule on signing timecards
The Company predicates Carmichael’s discharge on her
asserted refusal to sign her timecard. Scott testified that the
Company required such signatures in order to avoid disputes
over the amount of time worked. The Company’s 2-week
pay period ended on Tuesday, and the employees were re-
quired to sign their cards on Tuesday afternoon so that the
hours worked could be reported to a payroll company the
following morning. Checks were distributed on Friday. The
policy on employee signing of the timecards had been in ef-
fect since at least August 1990.
There were, however, occasions on which employees had
not signed by Tuesday afternoon. According to Scott, there
are one or two of these every payroll period. His procedure
is to take the timecards to his ‘‘downstairs’’ office, and ask
the employees to come there and sign. Carmichael testified
without contradiction that Scott on occasion permitted em-
ployees to sign their timecards on Friday, before receiving
their paychecks. I credit her testimony.
2. The events of August 27, 1992
a. Summary of the evidence
Carmichael testified that Scott approached employees in
the break area on August 27, 1991, a Tuesday, and said that
any employee having problems with signing timecards
should see him after work. Candy B. Headley, a witness
called by Respondent, corroborated Carmichael. The latter
obtained Supervisor Shipp’s permission to discuss the matter
with Scott after the break on August 27. According to Car-
michael, she told the company president that she was op-
posed to the rule, because she did not have to sign her time-
card when she started working for the company, and the rule
was imposed only after another employee filed for unem-
ployment compensation benefits. Scott replied that it was his
building, that he could change the rules if he wanted to, and
that he would fire Carmichael if she did not sign her time-
card. Carmichael replied that she was going to sign, and that
she had been doing so. She was not asked to sign her card
at that time.
Carmichael contended that she asked Scott for permission
to leave early because she had to take her grandmother to
the doctor, and that Scott granted this request. At 10:30 a.m.,
one of Scott’s sons, Everett (Scott), told Carmichael that a
neighbor had called and reported a prowler around her house.
Everett told her that she could leave, and she did so. She for-
got to sign her timecard.
Scott’s version is that he approached the work area at
about 9 a.m., and that Carmichael asked for permission to
leave by 12 noon or 12:30 p.m. Scott granted this request.
He then asked her to sign her card because she had failed
to sign it timely during the two prior pay periods. Car-
michael replied that she did not have to sign it. About an
hour later, at 10 a.m., Carmichael came to his office and
again requested permission to leave early. Scott assertedly re-
plied that he had already granted this request. He again asked
Carmichael to sign the timecard, and she replied that she did
not have to. Scott took no action because ‘‘at that point the
time hadn’t passed that we had to pick up the cards.’’ Ac-
cording to Scott, Carmichael had clocked out for the lunch
period, returned, and was told that somebody was breaking
into her house. She had not clocked in, but left again—with-
out permission, according to Scott.
b. Factual analysis
Carmichael’s testimony is more probable than Scott’s. The
record contains no reason why Carmichael, after signing
timecards since the inception of the rule, would suddenly
have refused to do so. It is unlikely that, after receiving per-
1053FORESTWOOD FARMS
17 Scott listed other instances where insubordination had resulted
in discharge—an employee threatened to ‘‘whip’’ Supervisor Shipp;
an employee refused to move her parked car which prevented a truck
from being loaded; and an employee chanted and refused to work.
mission at 9 a.m. to leave early, she would have announced
to Scott that she was not going to sign her timecard—and
then would have repeated the same request and the same re-
fusal an hour later. It is undisputed that these events took
place on Tuesday morning, prior to expiration of the time-
card signing deadline under its most rigid application. Be-
cause of the improbabilities in Scott’s testimony, the fact that
he admitted having a faulty memory, and the fact that Car-
michael appeared to be a more truthful witness, I credit her
version of the events on August 27.
3. Carmichael’s discharge on August 28, 1991
a. Summary of the evidence
The events leading to Carmichael’s discharge on August
28 are the subject of conflicting accounts of four witnesses.
According to Carmichael, she arrived at the plant at the start-
ing time of 5:30 a.m. The first break, 10 minutes in duration,
was scheduled for 8:30 a.m. Prior to that time, Supervisor
Shipp approached her and asked her to sign her timecard.
According to established practice, this meant going to Scott’s
‘‘downstairs’’ office. Carmichael replied to Shipp that she
was not feeling well, and was ‘‘taking a break.’’ Shipp
walked away, and returned. He told Carmichael to take her
break, and that she could ‘‘sign it afterwards.’’ Shipp said
that he would let another employee (Pamela Collins) go first
to sign her own timecard.
Carmichael then went to the break area, which was not en-
closed, and sat down. About 5 minutes into the break, Shipp
approached her and again asked her to sign her timecard.
Carmichael replied that she was not feeling well. Shipp then
went in the direction of the office. Before he arrived there,
Scott approached the break area, but did not reach it. He
started shouting at Carmichael, and asked whether she was
‘‘on the clock.’’ When Carmichael replied affirmatively,
Scott told her that she was fired for insubordination. He
never asked her to sign her timecard.
Shipp testified about these events, but erroneously placed
them the day before, on August 27. He later corrected this
testimony and stated that the events took place on August 28.
Shipp stated that Scott told him to bring Carmichael and
Pamela Collins to the office to sign their timecards. Shipp
then spoke to Carmichael and Collins ‘‘at break time.’’ He
denied that Carmichael told him that she was not feeling
well, and contended that she said she would not sign ‘‘at that
time.’’ Shipp took Collins to the office to sign her own time-
card.
Shipp testified that he approached Carmichael in the break
area at a table, and asked her three times to sign her time-
card. She replied to the first request that she was not going
to sign, and did not answer the other two requests.
Candy B. Headley, an employee called by Respondent as
a witness, was in the break area with 10–12 employees dur-
ing these events. She testified about a conversation between
Carmichael and a management representative. However, un-
like Supervisor Shipp, Headley testified that the management
representative was Company President Scott, rather than
Shipp. Headley stated that she did not see Shipp talking to
Headley; Scott asked Carmichael three times to come to his
office and sign her timecard, or she would be terminated. On
each occasion, Carmichael replied that she would do so on
company time, not on her own time. She was ‘‘hollering’’
by the end of the conversation. As employees were getting
up from the break area, Scott told Carmichael that she was
fired. According to Headley, employees are permitted to wait
until the end of a break period before signing their timecards.
Scott testified that Shipp reported to him that Carmichael
refused to come to the office and sign her timecard. After
another asserted request brought the same result, Scott went
to the break area and asked Carmichael to sign the timecard
in his office. On direct examination, Scott testified that Car-
michael replied, ‘‘I ain’t going to sign.’’ Another request
brought another refusal, and Scott then asked whether she
was on the timeclock. He did not get an answer, and then
said that if she did not come to the office to discuss the mat-
ter, he would terminate her. After receiving no response,
Scott terminated her, and told her to clock out. On cross-ex-
amination, Scott’s attention was directed to Headley’s testi-
mony about Carmichael’s responses, i.e., that she would sign
the card on company time, not on her own time. Scott’s an-
swer was not responsive to this question. Asked the same
question again, Scott replied that Carmichael ‘‘could have
said that later because she was really beside herself.’’
Scott testified that the Company paid for breaktime, and
that it was really company time. Sometime employees are re-
quired to work through breaks. He gave as examples an
order that had to be filled, or a a truck waiting to get out.
Asked whether employees are required to sign their time-
cards during breaks on a ‘‘regular basis,’’ Scott replied,
‘‘Occasionally, yes.’’ The company president averred that
employees required to work during breaks are given assur-
ances that they will get the ‘‘lost’’ time back. Scott agreed
that Carmichael did not not receive any such assurances on
this occasion.
Scott testified that Carmichael was discharged for insubor-
dination17 which took place in front of other employees. He
was asked about Carmichael’s alleged insubordination on
January 22, 1991, which also took place before other em-
ployees, but distinguished this on the ground that Carmichael
on that occasion returned to work. The company president
testified that Carmichael’s prior infractions had nothing to do
with her discharge—it was based entirely on the incidents of
August 28, 1991.
b. Factual analysis
It is clear that, just before the 8:30 a.m. break on August
28, Supervisor Shipp asked Carmichael and Collins to go to
the office to sign their timecards. Although Shipp denied that
Carmichael told him she was not feeling well, he admitted
that she said she would not sign ‘‘at that time.’’ In addition,
Shipp took Collins along to the office to get her timecard
signed. I credit Carmichael’s testimony that Shipp told her
she could sign her timecard ‘‘afterwards,’’ i.e., after the
break.
The biggest conflict in the evidence is the identity of the
management representative who repeatedly asked Carmichael
in the break area to come to the office to sign her timecard.
Headley, a witness for Respondent, was a truthful witness
with good recall of the events. I credit her testimony, cor-
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 This does not invalidate Carmichael’s testimony that Shipp also
asked her to sign, since Headley merely testified that she did not see
Shipp. The latter was a confused witness, and I do not credit his as-
sertion, implicitly contradicted by Scott, that it was Shipp who made
these requests. Although Carmichael stated that Scott never reached
the break area, the area was not enclosed, and the boundaries may
have been indistinct.
19 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
roborated by Scott, that it was the company president who
did so.18
I also credit Headley’s testimony that Carmichael replied
that she would sign the timecard on company time, rather
than her own time. Scott tacitly admitted this—his expla-
nation that Carmichael may have said this ‘‘later’’ is not per-
suasive—there is no evidence of a ‘‘later’’ conversation be-
tween them. I also credit Headley’s testimony that employees
were not required to sign timecards during breaks. Scott’s as-
sertion that they were required to do so ‘‘occasionally’’ on
a ‘‘regular’’ basis is contradictory, and the examples he gave
of employees being required to work through breaks had a
direct impact on company operations, unlike the signing of
a timecard. Finally, I note Scott’s admission that Carmichael
on this occasion, was not given the customary assurance that
she would receive compensatory time for the lost breaktime.
F. Legal Analysis and Conclusions
The General Counsel has the burden of establishing a
prima facie case sufficient to support an inference that pro-
tected conduct was a motivating factor in Respondent’s dis-
charge of Carmichael. Once this is established, the burden
shifts to Respondent to demonstrate that the discharge would
have taken place even in the absence of the protected con-
duct.19
Carmichael was the leading proponent of the Union, and
the only employee on the negotiating committee. Respondent
called her a ‘‘troublemaker’’ who was reporting to the
Union. Respondent’s representative told the Union that there
was animosity between Carmichael and the company presi-
dent because of ‘‘all this mess,’’ which was identified as the
Company’s experiences with the Union. The company rep-
resentative expressed opposition to Carmichael’s appointment
as a steward, and tried to get the Union to find her a job
elsewhere. Because the Union refused to assure the Company
that it would not appoint Carmichael as a steward, the Com-
pany changed its position, adversely to the Union, on ele-
ments of the contract to which it had tentatively agreed.
Respondent began inserting ‘‘warning reports’’ into Car-
michael file at about the time the union campaign started.
These principally concerned absences, and the Company was
unable to explain why prior absences, which had probably
occurred, were not recorded prior to the advent of the union
campaign. The only explanation for warning reports issued in
the absence of disciplinary action was recordkeeping. After
the bargaining began, Respondent issued warning reports to
Carmichael without giving her an equal opportunity to give
her version of the incident in question. She had more typed
reports in her file than any other employee. The timing of
these actions and their disparate nature constitute evidence of
discriminatory motivation. The company president told a
union representative that, although Carmichael had stated out
as a good employee, she had become one of the worse ‘‘after
this mess,’’ i.e., the advent of the union campaign.
The General Counsel has thus established a strong prima
facie that Carmichael’s union activities were a motivating
factor in Respondent’s discharge of her. The fact that Re-
spondent did not encourage Carmichael to resign when she
stated this intention in July 1992 is insufficient to negate the
prima facie case.
Respondent had not rebutted this case. Although it predi-
cated its discharge of Carmichael on the ground that she re-
fused to sign her timecard, the facts show that a company
supervisor gave her permission to take a break before sign-
ing. During the break, she was asked by the company presi-
dent to sign the card, and replied that she would do so on
company time, not her own time. This did not constitute a
refusal to sign the card, but, rather, an assertion that she
would do so on the Company’s time. Employees were not
normally required to sign timecards during breaks. Although
employees were sometimes required to work during breaks,
these concerned essential company operations—the Company
has not established a similar need for the signing of time-
cards during a break. Finally, Carmichael was not given the
customary assurance that her lost break time would be re-
stored.
Respondent’s rebuttal thus fails because Carmichael did
not in fact commit the alleged offense of insubordination.
Maremont Corp., 294 NLRB 11, 20, 42 (1989). I conclude
that Respondent seized upon this incident to discharge the
principal union activist. Paradise Post, 297 NLRB 876
(1990). In doing so, it violated Section 8(a)(3) and (1) of the
Act.
In accordance with my findings above, I make the follow-
ing
CONCLUSIONS OF LAW
1. Forestwood Farms, Inc. is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. United Food and Commercial Workers Union, Local
1657, AFL–CIO is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(3) and (1) of the Act
by discharging employee Cassandra Carmichael on August
28, 1991, because of her union activities and sympathies, and
other protected, concerted activities.
4. The unfair labor practices described in paragraph 3 con-
stitutes an unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent engaged in certain
unfair labor practices, it is recommended that it be ordered
to cease and desist therefrom, and to take certain affirmative
action designed to effectuate the purposes of the Act.
It having been found that Respondent unlawfully dis-
charged Cassandra Carmichael on August 28, 1991, it is rec-
ommended that Respondent be ordered to offer her imme-
diate and full reinstatement to her former position, or, if that
position no longer exists, to a substantially equivalent posi-
tion, dismissing if necessary any employee hired to fill said
position, and to make her whole for any loss of earnings she
may have suffered by reason of Respondent’s unlawful con-
duct, by paying her a sum of money equal to the amount she
1055FORESTWOOD FARMS
20 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendments to 26 U.S.C. § 6621. Interest accrued before January 1,
1987 (the effective date of the amendment) shall be computed as in
Florida Steel Corp., 231 NLRB 651 (1977).
21 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
22 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
would have earned from the date of her unlawful discharge
to the date of an offer of reinstatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).20
It is also recommended that Respondent be ordered to post
appropriate notices, to remove from its personnel records all
references to its unlawful discharge of Cassandra Carmichael,
and to notify her in writing that such expunction has been
made and that evidence of her unlawful discipline will not
be used as a basis for future personnel actions against her.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended21
ORDER
The Respondent, Forestwood Farms, Inc., Birmingham,
Alabama, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in United Food and Com-
mercial Workers Union, Local 1657, AFL–CIO, or any other
labor organization by discharging employees because of their
protected, concerted activities, or by discriminating against
them in any other manner with respect to their hire, tenure
of employment, or terms and conditions of employment.
(b) In any other like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Cassandra Carmichael full reinstatement to her
former position, or, if such position no longer exists, to a
substantially equivalent position, without prejudice to her se-
niority or other rights and privileges, and make her whole for
any loss of earnings she may have suffered by reason of Re-
spondent’s unlawful discharge of her on August 28, 1991, in
the manner described in the remedy section of this decision.
(b) Remove from its personnel records or other files any
reference to its discrimination against Cassandra Carmichael,
and notify her in writing that such action has been taken and
that evidence of her unlawful discharge will not be used as
a basis for future personnel actions against her.
(c) Preserve and, upon request, make available to the
Board or its agents for copying all payroll records, social se-
curity payment records, timecards, and all other records nec-
essary to analyze the amount of backpay due under the terms
of this recommended Order.
(d) Post at its office and place of business in Birmingham,
Alabama, copies of the attached notice marked ‘‘Appen-
dix.’’22 Copies of the notice, on forms provided by the Re-
gional Director for Region 10, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discourage membership in United Food and
Commercial Workers Union, Local 1657, AFL–CIO, or any
other labor organization, by discharging employees because
of their protected, concerted activities, or by otherwise dis-
criminating against them.
WE WILL NOT in any other like or related manner interfere
with, restrain, or coerce employees in the exercise of their
rights under Section 7 of the Act.
WE WILL offer Cassandar Carmichael full reinstatement to
her former position, and make her whole, with interest, for
any loss she may have suffered because of our unlawful dis-
charge of her.
WE WILL remove from our records all references to our
unlawful discharge of Cassandra Carmichael, and notify her
in writing that we have done so and that evidence of her dis-
charge will not be used as a basis for future personnel ac-
tions against her.
FORESTWOOD FARMS, INC.