Golden Flake Snack Foods

National Labor Relations Board - Board Decisions

Jan 31, 1990

297 N.L.R.B. 594 (N.L.R.B. 1990)

594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Golden Flake Snack Foods and Donald James
Shanks and Carl Blackburn. Cases 10-CA-
23641 and 10-CA-23641-2
January 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On May 31, 1989, Administrative Law Judge
Hutton S Brandon issued the attached decision
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed cross-excep-
tions, a supporting brief, and a brief in opposition
to the General Counsel's exceptions
The National Labor Relations Board has delegat-
ed its authority in this case to a three-member
panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions 2 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Golden
Flake Snack Foods, Birmingham, Alabama, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order
'The Respondent, and inferentially the General Counsel, have except-
ed to some of the judge s credibility findings The Board s established
policy is not to overrule an administrative law judge's credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrrect Standard Dry Wall Products, 91 NLRB
544 (1950), enfd 188 F 2d 362 (3d Or 1951) We have carefully exam
ined the record and find no basis for reversing the findings
2 In adopting the judge's findings that the Respondent did not, as al-
leged, violate Sec 8(a)(3) and (1) of the Act by discharging employees
Carl Blackburn and Donald James Shanks Jr, we reject the General
Counsel s claim that a different result is warranted here based on Super
visor Joseph Taylor's 8(a)(1) conduct in threatening Shanks with dis-
charge if he did not withdraw his support from the Union In this regard,
we note that Taylor is a relatively low-level supervisor, that Taylor was
not Shanks' immediate supervisor at the time the Respondent discharged
Shanks, and that there is no record evidence showing that Taylor had
any Involvement in the Respondent's discharge decisions Additionally, in
the section of his decision entitled "Arguments and Conclusions," the
judge has stated in the third sentence of the fourth paragraph that [I]n
determining the existence of a prima facie case the General Counsel s evi-
dence must be viewed in isolation apart from Respondent s defense (Ci-
tation omitted ) We note in this regard that It is the evidence as presented
at the hearing, drawn from whatever source, which precisely determines
whether or not there is a prima facie case of unlawful conduct
Member Devaney finds It unnecessary to pass on whether Taylor's re
marks to Shanks discussed above were unlawful because any violation in
that regard would be essentially cumulative to the 8(a)(1) threat of dis-
charge found in Supervisor Hardin s conversation with employee Jimmie
Sue Smith and because the language in par 1(a) of the judge s cease and
desist order is sufficiently broad to cover this kind of conduct He does
rely on Taylor's remarks as establishing part of the Respondent s animus
toward its employees union activity
Mary L Bulls, Esq , for the General Counsel
Charles A Adams, Jr. Esq (Kullman, Inman Bee &
Downing), of New Orleans, Louisiana, for the Re-
spondent
DECISION
STATEMENT OF THE CASE
HUTTON S BRANDON, Administrative Law Judge
These cases were tned at Birmingham, Alabama, on
March 29, 1989 The charge in Case 10-CA-23641 was
filed on September 2, 1988, 1 by Donald James Shanks,
Jr, an individual (Shanks) and amended on October 11
The charge in Case 10-CA-23641-2 was filed on Sep-
tember 12 by Carl Blackburn, an individual (Blackburn)
The complaint and order consolidating the cases for
hearing issued on October 14 alleging that Golden Flake
Snack Foods (Respondent or the Company), violated
Section 8(a)(3) and (1) of the National Labor Relations
Act (the Act), in discharging Shanks and Blackburn on
September 1 and 8, respectively The issue presented by
these allegations is whether the discharges were respon-
sive to the union activities of Shanks and Blackburn The
complaint also alleges that Respondent independently
violated Section 8(a)(1) of the Act by coercively interro-
gating employees regarding their union activities and
threatened them with discharge for such activities Re-
spondent's timely filed answer puts in issue the factual
basis for these allegations
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent,
I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent is a Delaware corporation with an office
and place of business located at Birmingham, Alabama,
where it is engaged in the manufacture of snack foods
During the calendar year preceding issuance of the com-
plaint Respondent purchased and received at its Birming-
ham facility goods valued in excess of $50,000 directly
from suppliers located outside the State of Alabama On
these admitted facts Respondent admits, and I find, that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act The com-
plaint also alleges, Respondent further admits, and I also
find that Teamsters, Chauffeurs, Warehousemen & Help-
ers, Local Union 612 (the Union), is a labor organization
within the meaning of Section 2(5) of the Act
II THE UNFAIR LABOR PRACTICES
A Background
Based on the testimony of Shanks, which was undis-
puted in this respect, activity in support of union organi-
zation among Respondent's employees began in or about
June and consisted of the circulation among the employ-
I All dates hereinafter are in 1988 unless otherwise indicated
297 NLRB No 86
GOLDEN FLAKE SNACK FOODS 595
ees of a petition seeking assistance of the Union This ac-
tivity culminated in a letter dated August 29 being sent
by a business agent of the Union to Mark McCutcheon,
Respondent's Birmingham plant manager In the letter
which Respondent acknowledges was received on
August 30 the Union advised Respondent of the exist-
ence of the organizational campaign and provided Re-
spondent with a list of 71 employees including Shanks
and Blackburn, the alleged discnminatees in this pro-
ceeding, who were "actively involved" in the campaign
The letter was not Respondent's first notice of union
activity McCutcheon testified that he learned from Su-
pervisor John Lewis during the week before the letter
that employees were meeting under the "tree" in a
nearby park and signing some "petition" Similarly,
Ronnie Hardin, 2 night-shift production manager in the
chip department, testified that he learned of union activi-
ty on August 29 from an unnamed supervisor who had
heard of it over the immediately preceding weekend
It is undisputed that Respondent opposed the organiza-
tional efforts of its employees Its response to the Union's
• letter was McCutcheon's calling of each employee
named in the letter into his office individually and, in the
presence of Aubrey Loftis, Respondent's vice president
of manufacturing, reading to each the following prepared
statement
We received a letter from the Union with your
name on it
We want you to understand that you are still ex-
pected to follow all the policies of the Company, do
a good job, & follow the rules This does not give
you any special privileges
B The Discharges
1 Shanks
Shanks was initially employed by Respondent in July
1986 and worked as a utility operator on the second
shift, under the general supervision of John Smyth, prod-
uct manager of the pork skin department Shanks testi-
fied that while there was no production in his depart-
ment on his shift it was his responsibility to clean four of
six machines in the department used in the pork skin
snack preparation It appears that Shanks was not a
model employee, since he received a verbal warning on
April 4 for leaving his work area, a wntten warning on
April 20 for improperly reporting off work and failing to
make progress on cleaning his machines, and a final writ-
ten warning on July 12 for failing to clean his machines
satisfactorily and failing to get along with his fellow em-
ployees The final warning stated that Shanks understood
that "further disregard of company rules will result in
termination"
2 The complaint alleged that 'Ronald Harding is a supervisor within
the meaning of Sec 2(11) of the Act and attributed a violation of Sec
8(a)(1) of the Act to him as discussed infra Respondent's answer denied
both allegations However, Respondent at the hearing stipulated to Har-
din's supervisory status under the Act I conclude that the complaint's
references to 'Harding" were an Intended but misspelled reference to
Hardin
Shanks testified that he began activity in support of
the Union in June and described that activity as trying to
"get people to sign a list to send to the Union" The fact
that he was listed in the Union's August 29 letter to Re-
spondent has already been noted On August 30 he was
called to the office of Smyth who told him that the "in-
spector" had written the whole department up and that,
under the circumstances, Smyth would write "every-
body" up However, noting that Shanks was already on
final warning, Smyth, still according to Shanks, told
Shanks he would give him every chance and would
await McCutcheon's final word on the matter 4
Shanks also testified that later in the same evening,
Joseph Taylor, production manager of Respondent's chip
department and a former supervisor of Shanks, yelled at
Shanks on the production floor and asked him if he
wanted to be a "goddamn Teamster" Shanks replied
that he wanted to be treated fair and equal The two
thereafter talked for a "long time," according to Shanks,
who also alluded in the discussion to his anticipated ter-
mination Taylor told Shanks that if Shanks went up
"front" with Taylor to talk to McCutcheon and Loftis
and took his name off the union list Taylor would help
any way he could and would get it straightened out and
save Shanks' job
Around 10 p m that same day Shanks was called to
the office of McCutcheon where he met with McCut-
cheon and Loftis Shanks testified that Loftis said the
Company had received a list in the mail from the Union
and remarked, while looking through the letter, that
Shanks name was on it and asked Shanks if he thought it
was a party list Shanks replied that he knew what he
signed Loftis then asked Shanks if he believed in the
Union, a question which the General Counsel relied on
to establish the complaint allegation that Loftis engaged
in unlawful interrogation of employees regarding their
union activity in violation of Section 8(a)(1) of the Act
Shanks replied that he did not know, to which Loftis re-
sponded that he must believe in it because his name was
on the list Loftis then remarked that Respondent had an
open-door policy and that if Shanks had a problem the
door was wide open Shanks concurred but pointed out
the employee view was that the door was wide open so
that if they didn't like their job they could "hit the
door" Thereupon McCutcheon interrupted and stated
that all he wanted to tell Shanks was that he had no spe-
cial privileges, he got no more pay, there was no union
there yet, and Shanks was no different from anybody
else Shanks was then released to return to work
2 it is undisputed that Respondent's preparation of pork skin food
products was subject to periodic inspections by employees of the United
States Department of Agnculture (USDA) Failure of such inspections
could result in a cessation of production It is likewise undisputed that on
the morning of August 30 the USDA inspector halted production start up
for more than an hour until certain machinery including machinery for
which Shanks was responsible which had failed inspection was recleaned
4 While the General Counsel urges that ulterior motivation was shown
by Smyth in deferring to McCutcheon rather than discharging Shanks
immediately, the fact is that under Respondent's disciplinary procedure
no employee could be discharged without the approval of the plant man-
ager
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On August 31, according to Shanks' testimony, he saw
McCutcheon in the breakroom where Shanks inquired
about his discharge McCutcheon replied that he had
Shanks' file and was going to take it home with him,
study it, and let Shanks know something the next day
The next day prior to reporting on his regularly sched-
uled shift Shanks telephoned McCutcheon and pressed
him for a decision regarding Shanks' termination
McCutcheon thereupon told Shanks that he was in fact
terminated While it does not appear that Shanks was
shown any discharge papers, Respondent produced the
standard form utilized by Respondent for recording
warnings and executed by Smyth on August 31, showing
the termination of Shanks for the failure to clean his ma-
chine properly on August 30 which resulted in the failed
USDA inspection and consequent production loss 5
2 Carl Blackburn
Blackburn had been employed by Respondent for 17
years at the time of his discharge on September 8 At the
time of his termination he worked in the skin department
on the first shift under Smyth He testified that he
became aware of the union campaign but apparently his
activity in the campaign was limited to the signing of the
employee petition submitted to the Union His name was
on the list submitted by the Union to Respondent in the
August 29 letter
Like the other employees listed in the Union's letter
Blackburn was called to McCutcheon's office on August
30 where he met with McCutcheon and Loftis Accord-
ing to Blackburn's version of this meeting, McCutcheon
held up the list and asked Blackburn if his name was on
it Blackburn replied that it was, and McCutcheon told
Blackburn that Blackburn was in a bad situation under
the circumstances, an apparent reference to Blackburn's
precarious status under Respondent's attendance policy
discussed below McCutcheon added that Blackburn
would not have any special treatment and would not be
treated any different from anyone else
The following day Blackburn was called into Smyth's
office, where Smyth told Blackburn he was in a bad situ-
ation and that the only thing that could help Blackburn
was to take his name off the union list Smyth said that
"that" was a "no-no" there Blackburn did not respond
and returned to work after Smyth completed his re-
marks
Blackburn made no effort to withdraw his name from
the list and on September 8 he was called to McCut-
cheon's office where he was told by McCutcheon in
Smyth's presence that Blackburn's record had been re-
viewed and that he was no longer employed by Re-
spondent In further discussion, McCutcheon in response
to Blackburn's questions explained that Blackburn had
failed to clock in and clock out, failures which added
points to his record under Respondent's "occurrence"
point system utilized in enforcement of its attendance
policy Blackburn claimed he had in fact clocked out on
the day in question, but exhibited confusion in his testi-
mony regarding the exact date he allegedly failed to
5 Smyth testified herein that the estimated cost to Respondent of the
lost production was approximately $8000
clock out Respondent's records indicate it was Friday,
September 2 Blackburn testified he asked to see his time-
card He claimed he was shown a copy of the card, but
since McCutcheon only held it up Blackburn could not
see it plainly While Blackburn did not testify regarding
any exchaqge between himself and McCutcheon about
his failure to clock in, and although it is not clear that he
understood from McCutcheon's remarks what day he
had allegedly failed to clock in, Blackburn testified that
he had clocked in and that any failure of the time to
appear on his card "that morning" was attributable to
the timeclock's not hitting the card clearly Respondent
claimed that the failure to clock in occurred on Wednes-
day, August 31
Respondent's attendance policy was instituted on Feb-
ruary 1 It awarded penalty points to employees on an
"occurrence" basis with one point for each absence (con-
secutive day absences being treated as one occurrence),
one quarter point for each occurrence of tardiness of be-
tween 2 to 7 minutes, one half-point for each occurrence
of tardiness in excess of 8 minutes, and one half-point for
each failure to clock in or out Discipline was imposed
on the basis the points acquired with counseling follow-
ing three to four occurrences within a calendar year, a
verbal reprimand following 6 ccurrence points, a wntten
reprimand following 8 points, a final warning following
10 points and discharge upon acquisition of 12 points A
hardship exclusion was allowed for repetitive absences
associated with the same illness or circumstance causing
the absence even if the absences were not consecutive It
is undisputed that Blackburn had received a "final"
warning on August 18 after he had accumulated 10-1/4
points The warning stated that "further disregard of
Company rules will result in termination" Thereafter,
and prior to August 31, he accumulated 11-1/4 points
C The Alleged Unlawful Threat of Discharge
The complaint alleged that Respondent independently
violated Section 8(a)(1) of the Act through Supervisor
Hardm's threatening employees with discharge for union
activity on or about August 26 The General Counsel
relied on the testimony of employee Jimmie Sue Smith
to establish the violation Smith testified that sometime in
the week prior to August 30 she had a discussion with
Supervisor Hardin in the office of Supervisor John
Lewis In that discussion Hardin remarked that he had
heard that the employees had a meeting about a union
"out under the tree" Smith testified that she replied that
they were talking about a baby shower for an employee,
to which Hardin responded that he hated to see her lose
her job over it
D Respondent's Evidence
With respect to the alleged independent violations of
Section 8(a)(1) of the Act, Loftis denied asking Shanks if
he believed in the Union or if Shanks believed the union
list was as party list According to Lofts, who was sup-
ported by McCutcheon, he was present only to insure
that McCutcheon read the prepared statement set forth,
supra Moreover, he testified that Shanks, who refused to
sit down and who carried a wrench in his hand, accused
GOLDEN FLAKE SNACK FOODS 597
them of calling him in to fire him for not cleaning up his
machine, but Loftis was not aware at the time of any
problem with respect to Shanks' clean up
Similarly, while acknowledging a conversation with
Smith in the office about a meeting under the trees
Hardin testified that Smith was in the office having come
there to ask if she could leave work since she had com-
pleted her assigned tasks Hardin admittedly asked her if
she had gone to the meeting "a couple of nights before,"
and remarked that he had heard there had been some
complaints about the Company's "occurrences" system
at the meeting Smith had , conceded that she had gone
but said they had planned a "maternity party" for an em-
ployee's wife Hardin denied that he talked to her about
the Union in any way, and related that he learned of the
union effort only on August 29
In connection with the discharge of Shanks, Taylor
admitted having a conversation with Shanks for about 7
minutes on August 30 According to his version, Shanks
expressed his concern that he was going to get fired and
Taylor assumed he was talking about getting fired be-
cause of the union letter Taylor responded that Shanks
would not be fired for that to which Shanks replied that
his department had already been closed down 2 hours
that morning Taylor was not aware of that and after
Shanks had referred to having received a third warning
Taylor concluded that Shanks was not referring to a dis-
charge for union activity but a discharge associated with
the close down that morning Taylor denied that the
Union was mentioned in the conversation with Shanks,
denied that he told Shanks he could save his job for him,
and testified he had no authority to go over the head of
the plant manager, McCutcheon
McCutcheon testified that it was he who decided upon
the termination of Shanks after having taken Shanks' file
home on the evening of August 30 and after having con-
sulted Respondent's labor attorney When Shanks tele-
phoned him the following day and insisted upon know-
ing whether he was discharged McCutcheon told him of
his discharge According to McCutcheon, the discharge
was consistent with the progressive disciplinary proce-
dure utilized by Respondent and under which other em-
ployees had been disciplined The discharge followed
McCutcheon's final warning on July 12 threatening ter-
mination for further disregard of company rules
With respect to the discharge of Blackburn, Smyth
denied in his testimony for Respondent that he ever pro-
posed to Blackburn that he get his name off the union
list as a way to avoid discharge for excessive "occur-
rences" Both Smyth and McCutcheon related that
Blackburn was discharged for exceeding the allowed
number of "occurrences" by virtue of his having failed
to clock in on August 31 and out on September 2 Black-
burn's timecards for the dates in question were submitted
in evidence by Respondent and bear out Respondent's
contentions regarding Blackburn's failure to clock While
timecards received in evidence of certain other employ-
ee's in the department on August 31 show the clock was
only lightly stamping that day, as Blackburn contended,
Blackburn's card showed no mark at all where his clock
in would normally appear Blackburn's testimonial con-
tention that his timecard for Friday, September 2, did
not show a clock out at his normal quitting time was due
to the fact that there was no production work done on
that day and he only worked half a day, was rebutted by
Respondent's production records showing that Respond-
ent did operate at full production that day
Further, with respect to Blackburn, McCutcheon testi-
fied that the "occurrence" policy was uniformly and
consistently applied, and that he had no discretion in its
application In support of this position, Respondent en-
tered in evidence the discharge and warning records of
eight other employees discharged before and after Black-
burn for acquiring 12 or more "occurrences" Three of
these employees, like Blackburn, had been listed in the
Union's letter to Respondent The discharge papers on
one employee received in evidence described the dis-
charge as "automatic" upon 12 "occurrences"
E Arguments and Conclusions
For the most part the issues in this case are factual and
require the making of credibility resolutions Considenng
initially the alleged independent 8(a)(1) violations, and
specifically the testimony of Jimmie Sue Smith, I am
convinced that Smith was telling the truth She appeared
to be very candid, and acknowledged her lack of recall
concerning the date Further, as a current employee still
subject to possible retaliation from the employer she was
not likely to relate an untrue story Federal Stainless
Sink, 197 NLRB 489, 491 (1972), Georgia Rug Mill, 131
NLRB 1304, fn 2 (1961), modified on other grounds 308
F 2d 89 (5th Cir 1962) Hardm's version of his com-
ments to Smith struck me as less plausible It is clear that
it was he who broached the subject of the employee
meeting to Smith I find it unlikely that Hardin would be
aware that one subject of the employee meeting was em-
ployee complaints regarding the "occurrence" system
without also knowing another subject was union organi-
zation, a subject frequently associated with employee dis-
content Further, I find it difficult to believe that Hardin
was prompted to raise the subject of the employee meet-
ing by idle cunosity or by an effort to make small talk
Crediting Smith, 6 I find Hardin in fact referred to the
employee discussion of the Union under the tree and did
express the hope that Smith would not lose her job over
the matter The expression of such a hope constituted the
voicing of recognition, and hence the implicit threat, that
Smith's involvement in union activity could lead to her
discharge I find the threat unlawful and violative of
Section 8(a)(1) of the Act as the complaint alleged
The complaint, as related above, alleged that Respond-
ent violated Section 8(a)(1) through Loftis' interrogation
of Shanks The allegation is based on the meeting be-
tween Loft's, McCutcheon, and Shanks In this instance
I credit Loftis and McCutcheon where their testimony
6 In making this credibility resolution I accord little weight to Smith's
failure to reveal Hardin's remark to Respondent's counsel in a pretrial
interview Such failure could be attributable to a number of factors in-
cluding the way questions were propounded It could also be be attribut-
able to Smith s attaching little significance to Hardin s statement to her
However, her personal reaction to the statement is not determinative of
the violation alleged for it is well established that it is the tendency of the
remark to coerce, not actual coercion, which violates the law
598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
contradicts Shanks Shanks testified in a defensive some
times belligerent manner As one who stood to personal
ly gain from the outcome of this proceeding I perceived
in him a tendency to exaggerate Further, I find it highly
unlikely that Loftis would have inquired of Shanks about
his union beliefs if he already knew Shanks was on the
Union s organizing list Further the testimony of Lofts
and McCutcheon was mutually supportive Finally
Loftis was not cross examined and there was nothing
either in the content of his testimony or in the manner in
which it was delivered which would serve to justify the
conclusion that it was either inaccurate or untruthful I
therefore conclude no unlawful questions were directed
at Shanks
Even if I were to find that Loftis did question Shanks
regarding his union beliefs I would still not find the
questioning unlawful This is because at that point
Shanks had been identified to Respondent by the Union
and also because the questioning was unaccompanied by
threats or other coercive conduct Considering these fac
tors and all the circumstances, I am inclined to the belief
that Loftis questions would not have had a tendency to
coerce Shanks See Sunnyvale Medical Clinic 277 NLRB
1217 (1985) Rossmore House 269 NLRB 1176 (1984)
affd 760 F 2d 1006 (9th Cir 1965) Accordingly I
would find no violation of Section 8(a)(1) in such ques
tioning, even if it occurred and I shall recommend that
this allegation of the complaint be dismissed
Turning to the allegations of unlawful discharges, it is
incumbent on the General Counsel to make a prima facie
showing sufficient to support the inference that the union
activity of Shanks and Blackburn was a motivating
factor in Respondent s decision to discharge them On
such a showing the burden shifts to Respondent to dem
onstrate that the same action would have taken place
even in the absence of the union activity Wright Line,
251 NLRB 1083 (1980) enfd on other grounds 662 F 2d
899 (1st Cir 1981), cert denied 455 U S 989 (1982) In
determining the existence of a pnma facie case the Gen
eral Counsel s evidence must be viewed in isolation apart
from Respondent s defense Bah Blinds Midwest, 292
NLRB 243 (1989) I conclude as the General Counsel
argues that the required prima facie showing was estab
lished with respect to both discharges Thus Respondent
at the time of the discharges was aware not only of the
union activity among its employees generally but also
that Shanks and Blackburn were union supporters The
record also shows that Respondent opposed union repre
sentation of its employees to the degree revealed in its
willingness to coerce employees as reflected in Hardm s
remarks to Smith found above In addition the remarks
attributed to Taylor by Shanks and Smyth by Blackburn
if believed show not only Respondent s union animus
but also Respondent s willingness to consider leniency
for rule infractions if employees withdrew their union
support In short a discharge which might be otherwise
warranted could be avoided by withdrawal of union sup
port Accordingly, withdrawal of such support was made
the linchpin for job retention and therefore a motivating
factor in the discharges
Respondent argues that job retention of Shanks and
Blackburn was not conditioned on their repudiation of
their union activity However if Shanks and Blackburn
are credited the Respondent s argument is seriously un
dermmed Weighing the testimony of Shanks against that
of Taylor I credit the former Although I earlier indicat
ed Shanks could not be regarded as particularly accurate
impassive or unbiased his testimony about Taylor s com
ments impressed me as honest 7 On the other hand Tay
lor s explanation of his remarks struck me as vague, tenu
ous and wholly unconvincing His contention that he as
sumed that Shanks was talking about being fired for his
union activity when the word union was by his version
never mentioned in the conversation was particularly un
persuasive This credibility resolution sustains the Gener
al Counsel s prima facie showing that Shanks union ac
tivity was a factor in his discharge since It is clear
Shanks did not repudiate his union support prior to his
discharge Moreover, I find that Taylor s remark to
Shanks independently violated Section 8(a)(1) of the Act
as an unlawful threat that a discharge would be effectu
ated if Shanks did not forego his union support Al
though not specifically alleged it is clear that Taylor s
threat was fully litigated in connection with Shanks dis
charge, a matter which was alleged as unlawful The
Board has long held that violations of the Act not specif
wally alleged in a complaint may be found so long as
the issue is closely connected to the subject matter of the
complaint and has been fully litigated The Timken Co
236 NLRB 757, 758 (1978)
Blackburn s testimony regarding Smyth s remarks also
requires a credibility resolution Initially it appears
strange that Smyth who was supervisor of both Shanks
and Blackburn would tell one but not the other that the
only thing that could help would be to remove his name
from the union s list It also appears odd that Blackburn
would not respond to such a comment by Smyth Con
sidenng these factors and Smyth s rather straightforward
and persuasive denials that he ever discussed with Black
burn the fact of Blackburn s name being on the union
list I would be inclined to credit Smyth That inclination
ends in resolution when Blackburn s testimony is consid
ered as a whole Blackburn was a most unconvincing
witness who appeared willing to shade or shape his testi
mony in whatever respect he deemed most beneficial to
his case This was most clearly demonstrated with re
spect to the 8(a)(3) allegation discussed below I there
fore credit Smyth where his testimony contradicts Black
burn s This conclusion does not without more affect
the prima facie showing of an unlawful discharge in
Blackburn s case for Taylor s threat to Shanks found
above implies that withdrawal of union support was a
factor which Respondent would consider in imposing
discipline on any employee including inferentially
Blackburn
Respondent s evidence rebutting the discriminatory
nature of Blackburn s discharge must be regarded as
overwhelming McCutcheon acknowledged no discretion
in the application of the occurrence program and the
documentary evidence presented supports his contentions
7 Nothing is more common than to believe some and not all of what a
witness says Edwards Transportation Co 187 NLRB 3 4 (1970) enfd
per curiam 437 F 2d 502 (5th Cir 1971)
GOLDEN FLAKE SNACK FOODS 599
in this regard The records produced revealed that em-
ployees were consistently discharged by Respondent for
acquiring 12 or more "occurrence" points No exceptions
were shown by the General Counsel in the application of
the program since its inception And the General Coun-
sel took no issue with respect to the accuracy of Re-
spondent's records with respect to the points acquired by
Blackburn before August 18, including computation of
the credit for the limited exclusion form obtained by
Blackburn for his July absences And perusal of Black-
burn's time cards received in evidence shows, as Re-
spondent contends, that Blackburn did not clock in or
out on the dates Respondent alleged thus warranting his
accumulation of the "occurrence" points which resulted
in his discharge Blackburn's testimony regarding the
failures to clock in and out on the dates in issue was in-
consistent, contradictory and, at best, confused In any
case, it was totally unbelievable With regard to his fail-
ure to clock in, Blackburn when shown his timecard
claimed at first that he could see where the clock hit, but
then he retracted that testimony He then testified that
certain other employees clocked in at the same time and
had the same problem and they called it to Smyth's at-
tention Shown the time cards of certain of these other
employees he named he was forced to admit that they
did not clock in when he did Moreover, while the clock
stamped their cards lightly they were stamped while his
was not He admittedly did nothing himself to call the
problem to Smyth's attention in order to insure that he
would not be penalized for a failure to clock, even
though he was dangerously close to accumulating too
many "occurrence" points One can only conclude that
he failed to clock as Respondent contends
With respect to his failure to clock out Blackburn tes-
tified that when shown the card by McCutcheon he
could not see a clock out stamp within a circle drawn by
Smyth where the stamp would normally appear In his
preheanng statement to the Board he claimed he could
see a figure within the circle That statement had been
signed within a few days,of his discharge At the hearing
Blackburn claimed apparently for the first time that he
had not worked a full day on the Friday he was charged
with a failure to clock out He testified he rarely worked
a full day on Fridays, so that the last clock time appear-
ing on the card, a morning time, was the time he clocked
out This claim too was contradicted by his prior Board
statement to the effect that he was uncertain that he had
clocked out on that Friday, so he told two employees
(who would not have been there if the plant had not
worked a full day that Friday) that he was going back to
check his card When he reentered the plant he clocked
out his card Blackburn was forced to concede on cross-
examination, however, that the plant worked a full day
on Fridays preceding a holiday, and that the Friday in
question preceded the Labor Day holiday Considering
these contradictions, I do not credit Blackburn's testimo-
ny where his testimony differs from any other witness I
conclude he failed to clock at the times claimed by Re-
spondent
Since it appears that Respondent consistently dis-
charged other employees in the same manner under the
occurrence system I am compelled to conclude that Re-
spondent has sustained the burden shifted to it under
Wright Line that Blackburn would have been discharged
even in the absence of his union activity and support I
therefore find no violation of the Act with respect to his
discharge
Discrimination with respect to Shank's discharge pre-
sents a closer question because it did not fall under the
"occurrence" system, and, although he had received a
prior final warning, his discharge could not be consid-
ered "automatic" McCutcheon's review of Shank's file
and his considering Shank's discharge over the night of
August 31 clearly reflects a degree of discretion on
McCutcheon's part On the other hand, Shanks "final"
warning of July 12 specifically stated that his "further
disregard of company rules will result in termination"
And Shanks again on August 30 breached the rules by
failing to clean his machine properly, an offense of the
same type for which he had been previously disciplined
in the July 12 warning There is no question that Shanks
was guilty of the offense charged, and the General
Counsel does not argue otherwise Accordingly, this is
not a case of a manufactured or pretextual basis for disci-
pline or discharge
Shanks was not the only one whose poor work result-
ed in the failure to pass the USDA inspection Respond-
ent produced evidence that two other employees were
similarly responsible It is Respondent's discipline of
these other two employees, Little and Morgan, neither of
whom was on the union list, which convincingly demon-
strates that Respondent would have discharged Shanks
even in the absence of his union activity It is true that
Little and Morgan only received verbal warnings where-
as Shanks was discharged However, the warnings issued
them were their first warnings, while, as noted, Shanks
had already received his final warning Under Respond-
ent's progressive discipline procedure a decision to
impose any discipline at all would have resulted in
Shanks' discharge Respondent's unwillingness to forego
discipline was shown by its justifiable discipline of Little
and Morgan Indeed, Smyth told Shanks initially when
informing him of the offense, and even before Smyth re-
ferred the matter to McCutcheson for consideration, that
all involved in the clean up failure would be disciplined
In view of the seriousness of the offenses involved, the
absence of evidence that Respondent overlooked, con-
doned or forgave similar offenses in the past, there is no
basis for concluding that the discipline of Little and
Morgan was to give the appearance of legality to the dis-
charge of Shanks Moreover, there was no evidence that
Respondent had ever failed to discharge an employee for
a subsequent offense following a final warning Accord-
ingly, notwithstanding Taylor's remarks to Shanks and
the existence of some discretion on the part of McCut-
cheon in making discharge decisions, I conclude that Re-
spondent has demonstrated that Shanks would have been
discharged in the absence of his union activity, or, more
specifically , even if he had withdrawn his name from
the union list In light of such demonstration the General
Counsel's prima facie case has been rebutted, and I find
Respondent did not violate Section 8(a)(3) and (1) in
Shanks' discharge
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1 Respondent, Golden Flake Snack Foods, is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
2 The Union, Teamsters, Chauffeurs, Warehousemen
& Helpers, Local Union 612, is a labor organization
within the meaning of Section 2(5) of the Act
3 Respondent, by threatening employees with dis-
charge if they engaged in activities on behalf of the
Union or did not withdraw their support from the
Union, engaged in, and is engaging in, unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act
4 Respondent did not engage in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act
in discharging Donald James Shanks, Jr or Carl Black-
burn
5 Respondent did not engage in unfair labor practices
in any other manner alleged in the complaint
6 Respondent's unfair labor practices set forth above
in paragraph 3, occurring in connection with Respond-
ent's business, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce within the meaning of Section
2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to recommend
an order that Respondent cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed8
ORDER
The Respondent, Golden Flake Snack Foods, Birming-
ham, Alabama, its officers, agents, successors, and as-
signs, shall
1 Cease and desist from
(a) Threatening its employees with discharge if they
engaged in activities on behalf of the Union or did not
withdraw their support from the Union
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights under Section 7 of the Act
8 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules and Regulations be
adopted by the Board and become its findings, conclusions, and Order,
and all objections to them shall be deemed waived for all purposes
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at its Birmingham, Alabama facility copies of
the attached notice marked "Appendix " 9 Copies of such
notice, to be furnished by the Regional Director for
Region 10, after being signed by Respondent's authorized
representative, shall be posted by Respondent immediate-
ly on receipt and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted Reasonable steps shall
be taken by Respondent to ensure that said notices are
not altered, defaced, or covered by any other material
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board' shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board'
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties were afforded the
opportunity to present evidence, it has been found that
we violated the National Labor Relations Act in certain
respects, and we have been ordered to post this Notice
Section 7 of the Act gives employees these nghts
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 protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
WE WILL NOT threaten our employees that they will
be discharged if they engage in activities on behalf of, or
do not withdraw their support from, Teamsters, Chauf-
feurs, Warehousemen & Helpers Local Union 612, or
any other labor organization
WE WILL NOT in any like or related manner interfere
with, coerce or restrain our employees in the exercise of
their rights guaranteed them in Section 7 of the Act
GOLDEN FLAKE SNACK FOODS