Marshall Durbin Poultry Co.

National Labor Relations Board - Board Decisions

Sep 15, 1993

312 N.L.R.B. 110 (N.L.R.B. 1993)

110
312 NLRB No. 24
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We grant the General Counsel’s unopposed motion to correct the
transcript.
2 The General Counsel has excepted to the judge’s ruling during
the hearing requiring him to provide to the Respondent’s counsel the
General Counsel’s pretrial notes of an interview with one of his wit-
nesses. We find it unnecessary to pass on the propriety of the
judge’s ruling. Even if erroneous, the General Counsel has failed to
show that the ruling was prejudicial to his substantive rights. Spector
Freight System, 141 NLRB 1110, 1112–1113 (1963).
3 The Respondent and the General Counsel have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces
us that they are incorrect. 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.
4 The General Counsel requests that the Board issue a broad order
against the Respondent because of the serious nature of the viola-
tions committed by the Respondent in this case and because the Re-
spondent has demonstrated a proclivity to violate the Act and dis-
regard employee rights, as shown by the recent Board decision in
Marshall Durbin Poultry Co., 310 NLRB 68 (1993). We find merit
in the General Counsel’s request and shall provide a broad cease-
and-desist order herein.
Marshall Durbin Poultry Company and United
Food and Commercial Workers International
Union, AFL–CIO. Case 15–CA–11528
September 15, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On July 31, 1992, Administrative Law Judge J.
Pargen Robertson issued the attached decision. The
Respondent filed exceptions and a supporting brief and
a brief in answer to the General Counsel’s cross-excep-
tions. The General Counsel filed an answering brief to
the Respondent’s exceptions, cross-exceptions and a
supporting brief, and a reply brief to the Respondent’s
answering brief.
On December 23, 1992, the National Labor Rela-
tions Board remanded the proceeding to the judge to
make further credibility resolutions and to address cer-
tain contentions raised by the Respondent in its excep-
tions.
On February 12, 1993, the judge issued the attached
supplemental decision. The Respondent filed excep-
tions and a supporting brief. The General Counsel filed
an answering brief and cross-exceptions.
The National Labor Relations Board has considered
the decision, the supplemental decision, and the record
in light of the exceptions1 and briefs and has decided
to affirm the judge’s rulings,2 findings,3 and conclu-
sions and to adopt the recommended Order as modi-
fied.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Mar-
shall Durbin Poultry Company, Hattiesburg, Mis-
sissippi, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(c).
‘‘(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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
violated the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten our employees that it is futile
for them to select the United Food and Commercial
Workers International Union, AFL–CIO or any other
labor organization, as their bargaining representative.
WE WILL NOT threaten our employees with plant
closure if our employees select the Union, or any other
labor organization, as their bargaining representative.
WE WILL NOT interrogate our employees about their
activities on behalf of United Food and Commercial
Workers International Union, AFL–CIO or any other
labor organization.
WE WILL NOT threaten to discharge our employees
because they testify in Board proceedings.
WE WILL NOT discharge our employees because they
testify in Board proceedings.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL offer immediate and full reinstatement to
Annette Strickland to her former job or, if that job no
longer exists, to a substantially equivalent position
without prejudice to her seniority or other rights and
privileges.
WE WILL make Annette Strickland whole for any
loss of earnings she suffered by reason of our discrimi-
nation against her with interest.
111MARSHALL DURBIN POULTRY CO.
WE WILL rescind our discharge of Annette Strick-
land and WE WILL notify her in writing that we will
not use her discharge against her in any manner.
MARSHALL DURBIN POULTRY COMPANY
David A. Nixon, Esq., for the General Counsel.
Sidney Lewis, Esq., of New Orleans, Louisiana, for the Re-
spondent.
Jeffrey S. Wheeler, Esq., of College Park, Georgia, for the
Charging Party.
DECISION
J. PARGEN ROBERTSON, Administrative Law Judge. This
matter was heard in Hattiesburg, Mississippi, on January 13
and 14, 1992. An amended complaint issued on December
20, 1991. The charge was filed on May 13, 1991, and
amended on October 30 and on December 13, 1991.
The complaint, as amended, alleges that Respondent vio-
lated Section 8(a)(1) and (4) of the National Labor Relations
Act (Act) by comments to its employees and by discharging
an employee.
Respondent admitted the commerce allegations of the
complaint. It admitted that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. Respondent admitted that during a representative 12-
month period, it purchased and received at its Hattiesburg,
Mississippi facility products, goods, and materials valued in
excess of $50,000 directly from points outside the State of
Mississippi. Respondent admitted that at material times, it
was a Delaware corporation, with a facility located in Hat-
tiesburg, Mississippi, where it engaged in the processing and
nonretail sale of poultry products.
Respondent admitted that the Union is, and has been at
material times, a labor organization within the meaning of
Section 2(5) of the Act.
I. THE 8(A)(1) ALLEGATIONS
A. Luke Moody
1. Threat of discharge
General Counsel alleged that Luke Moody threatened to
discharge an employee in late April or early May 1991 be-
cause she had testified in an earlier unfair labor practice pro-
ceeding.
Annette Strickland testified that there was a conversation
on her line including Supervisors Luke Moody and Floyd
Washington. In addition to Strickland employees Sharon
Holloway and Myrtle Temple were present. Luke Moody
told Floyd Washington that there are some people on this
line that you need to get rid of and he pointed to Strickland
and said, ‘‘[H]er ass especially.’’
Record evidence illustrated that Floyd Washington started
working for Respondent on May 6, 1991. That was 2 days
before Annette Strickland was discharged.
Myrtle Temple testified substantially along the lines of
Strickland’s testimony regarding the comments by Luke
Moody as did Sharon Holloway. Temple testified that after
saying to Washington that he had some troublemakers on
that line, Moody pointed to Annette Strickland and said you
need to watch her and get rid of her.
Sharon Holloway recalled Luke Moody telling Floyd
Washington that he had some troublemakers on that line and
that Moody pointed to Annette Strickland and said ‘‘espe-
cially that one and that we needed to do our best to get rid
of her ass.’’
Foreman Luke Moody admitted that he trained Foreman
Floyd Washington during May 1991 but he denied that he
told Washington that Strickland was trouble or that Washing-
ton should get rid of her.
The dates when Moody trained Washington was confirmed
by Supervisor Jim Sanders who testified from records that
Floyd Washington started working for Respondent at Hatties-
burg on May 6, 1991.
2. Findings
I do not credit the testimony of Luke Moody. His testi-
mony differed from that of several other witness including
some of Respondent’s witnesses in this and a prior proceed-
ing. According to Moody the only supervisory person he
ever talked to about allegations that he improperly credited
Annette Strickland with time she did not work, was the plant
manager. That testimony differs from evidence showing that
he was confronted first by management regarding
Strickland’s allegations and then he was included in a meet-
ing in which Strickland and Sharon Holloway were asked to
repeat their allegations against Moody in his presence. I was
not impressed with Moody’s demeanor and I do not credit
his testimony.
I do credit the testimony of Strickland, Temple, and Hollo-
way showing that Moody told Floyd Washington to get rid
of Strickland. In view of the entire record it is reasonable to
conclude that Moody was recommending Strickland’s dis-
charge because of her allegations in the prior unfair labor
practice proceeding. According to Moody’s recollection, he
knew nothing about her allegations until he was told that the
allegations were made in the unfair labor practice proceed-
ings. I find that his open recommendation in front of three
employees constitutes a violation of Section 8(a)(1) in view
of the connection between his recommendation and
Strickland’s testimony involving Moody in the prior unfair
labor practice proceedings.
B. Marshall Durbin
1. Threat of futility to select the Union
Threat of reprisal
General Counsel alleged that around September 1991,
Marshall Durbin threatened employees with reprisals; that
Respondent would never negotiate or deal with the Union;
and that it would be futile for them to select the Union.
Myrtle Temple testified that she attended a speech by Mar-
shall Durbin in September 1991:
He started out by telling the employees that he was
Marshall Durbin, Jr., and that he was there because
they had a little problem about the union trying to come
in, and he got to talking. And he told that he had a
place in his heart for each and every one of his employ-
ees in the Hattiesburg plant.
112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
He talked a good bit about Tupelo and how the
union had come in up there and how bad it was for the
employees and everything, and finally they got the
union out. He said that he would not allow the union
to come in to his Hattiesburg plant, because it was bad,
and it was the same union that was in Tupelo that was
trying to come into the Hattiesburg plant.
He said that if the union did come in, he would not
go to the bargain table and bargain with anything that
the union had a say-so with, and then he said that he
didn’t think that the union would even let us have an
election, and that they would turn their backs on us and
walk off, and then the union supporters would be fired.
Michele Pittman who works for Respondent in packing
and stuffing, testified that she attended one of the speeches
given by Marshall Durbin. Pittman recalled that Durbin said
he was 100 percent against the Union and he would not bar-
gain with them. According to Pittman, Durbin was speaking
soft and low but she testified that she could hear the above
comment.
Gladys Johnson, a stuffer for Respondent, testified that she
was at one of Durbin’s speeches. Johnson said that Durbin
spoke low and his voice was shaky and she could bearly hear
him. Johnson said that she heard Durbin say that if the
Union came into the Company, he would not sit down and
bargain with them at the bargaining table if he didn’t want
to.
Sharon Holloway attended a speech by Marshall Durbin in
September 1991. She recalled that he told the employees that
they were not going to negotiate at all with the Union and
before he would let the Union in he would shut it down.
Mary Jones who works for Respondent on a cut-up line,
testified that she attended a meeting conducted by Marshall
Durbin in the plant during September 1991. She testified that
she heard Durbin say that before he would allow a union in
the Hattiesburg plant he would shut it down.
On cross-examination Mary Jones testified that Durbin ap-
peared to be reading his talk but he did not appear to be
reading when he made the comment noted above that he
would shut it down.
Mary Ann Fairley testified that she attended one of Mar-
shall Durbin’s speeches and she recalled that he said that be-
fore he let the Union come in he would shut it down.
Marshall Durbin Jr., Respondent’s president, testified that
he gave two talks to groups of employees on September 17,
1991. He testified that he read verbatim from a text. The text
was received in evidence. He denied that he threatened em-
ployees with reprisals in response to their support of the
Union; that he told the employees that he would never deal
with the Union and, according to his testimony, he told the
employees they would negotiate in good faith if the Union
was selected. Durbin denied that he told the employees that
it would be futile for them to select the Union.
Respondent’s vice president, Scott Varner, and Director of
Human Resources and Planning Fincher Allen testified they
were familiar with the written text prepared for Durbin’s
speech and that Durbin read the speech verbatim.
Jim Sanders testified that he attended Durbin’s speech and
that Durbin followed the text.
2. Findings
I am convinced that the employees that testified about
Durbin’s speech were truthfully telling what they thought
Durbin had said. The text of the speech shows that Durbin
came close to saying the things recalled by the witnesses.
However, in view of the testimony from Durbin, Varner,
Allen, and Sanders, that Durbin followed the text of the
speech, I am convinced that is correct. The room was noisy
and it was undoubtedly difficult to hear and concentrate on
Durbin’s speech. The testimony of General Counsel’s wit-
nesses illustrates the difficulty of understanding the speech
and their testimony shows by the fact that few recall Durbin
making similar statements, the unlikelihood that Durbin actu-
ally departed from the text. Therefore, as to this issue I credit
Respondent’s witnesses. I find from an examination of the
credited evidence which includes the text of the speech, that
Respondent did not violate Section 8(a)(1) in this regard.
C. Scott Varner
1. Threat of futility to select the Union
General Counsel alleged that around October 1991 Scott
Varner threatened employees that it would be futile for them
to select the Union.
In October 1991, Mary Jones, a cut-up line employee,
went into Scott Varner’s office to get a copy of the Tupelo,
Mississippi Durbin plant’s collective-bargaining contract.
Fincher Allen was also in the office with Scott Varner. Ac-
cording to Jones, Varner told her that Marshall Durbin does
not have to give the employees anything.
Okay. (Scott Varner) was telling me that he wanted
me to have the facts, that Marshall Durbin—he said
something about a five-cent raise every five years and
a ten-cent raise for people that had been there ten years
or something like that. He said that Marshall Durbin
does not have to give us any—he doesn’t have to give
us anything; he doesn’t owe us anything, and he does
that to show the employees that he appreciates them,
and he recognizes the—you know, that they have been
there that long.
(Varner) said that Marshall Durbin does not have to
sit down at the bargaining table with no union rep-
resentative and agree with anything. . . .
(Varner) said how the union had made a mess of
things in Tupelo and the one in Alabama, and that is
why they are closed.
Sharon Holloway testified that she attended a meeting con-
ducted by Scott Varner in October 1991 and that along with
some employees, Neil Keith and Charles Kendrick were
present. Holloway testified that Varner was telling them of
the bad points of unions and Varner told them ‘‘that Mar-
shall Durbin was a man of his word, and if he say he will
shut the plant down before he would let the union in, he
would shut it down.’’
Carolyn Bradley attended one of Scott Varner’s meetings
in October 1991. Bradley also identified Charles Kendrick,
Neil Keith, and Fincher Allen as being present. She recalled
that one of the men, she did not recall which one, said he
had been knowing Marshall Durbin for a long time, and if
113MARSHALL DURBIN POULTRY CO.
he says he will close it down before he lets the Union in,
he will.
Vice President Scott Varner admitted that he did hold
meetings with employees during October 1991 regarding the
upcoming union election. Varner denied that he told anyone
that Respondent would shut down the plant if the Union
came in. In fact, according to Varner, that question was oc-
casionally asked by employees and he told those employees
they were going to operate the plant regardless of the elec-
tion outcome. Varner testified that he told the employees that
if the Union came in Respondent would sit down in good
faith and bargain with the Union.
Director of Human Resources and Planning Fincher Allen
testified that he was present during about 90 percent of
Varner’s meetings with employees and that Varner never told
employees that he would not bargain with the Union and
Varner never told employees that the plant would close if the
Union came in.
2. Findings
I was impressed with the demeanor of Mary Jones and
Sharon Holloway and I credit their testimony. Unlike the sit-
uation involving the speeches of Marshall Durbin, Scott
Varner did not meet with a large group of employees nor did
he read from a text. Varner met with small groups of em-
ployees. I was impressed with the recollection of Jones and
Holloway. Here, the employees were in a situation where it
was necessary to pay more attention to the comments of the
supervisor than was the case with Durbin’s speeches. Jones
and Holloway were required to converse with Varner.
The credited testimony of Jones and Holloway proves that
Varner stressed to them that it would be futile to select the
Union since Durbin would not bargain and he also indicated
to both that the Hattiesburg plant would close before Durbin
would let the Union in. I find that Varner’s comments con-
stitute violations of Section 8(a)(1) of the Act. Southern Illi-
nois Petrol, 277 NLRB 160, 170 (1985); Hilty Tank Corp.,
273 NLRB 979, 988 (1984).
D. Interrogation
1. Jim Sanders
General Counsel alleged that on October 2, 1991, Jim
Sanders illegally interrogated Respondent’s employees about
their union activities.
On October 2, 1991, Mary Jones was called into Jim
Sanders’ office. Also there was Supervisor Ken Barber. Jones
asked why she had been called in and Sanders told her that
they just wanted to talk about what she wanted to talk about.
She asked what was everyone than had been called in talking
about. Sanders replied insurance, benefits, things like that.
Mary Jones then said but you all want to talk about the
Union. Sanders replied yes. The conversation continued:
I said, what do you want to know. He said, well, Jim
Sanders said if the union were to go on strike, would
you walk the picket line with them? I said, yes, I did.
He said, well, who is going to pay your bills? Who
is going to feed your family? Who is going to pay your
car note? I said, well, the union will. He said, that is
a lie. He said, the union cannot do that. He said, If the
union—he said, I am looking out for your best interests.
He said, If the union could guarantee you $8 an hour,
I would say, go for it, because I am looking out for
your best interests. But he said, but there is no way that
they can do that.
Jim Sanders admitted discussing the Union with Mary
Jones but he denied asking her if she would walk a picket
line.
2. Findings
As I indicated above Mary Jones presented a good de-
meanor. She admitted that she did not recall much of Mar-
shall Durbin’s speech. However, she testified in detail about
her meeting in Sanders’ office. She testified on cross that
Sanders told her that regardless of which way she voted it
would not affect his job in any way.
I credit Jones’ testimony and do not credit the testimony
of Jim Sanders. Sanders demonstrated that his recollection of
significant events was not good. For example Sanders was
unable to recall the details of his being given the responsibil-
ity of maintaining the absentee records of his employees
around January 1991. Sanders appeared evasive on cross. I
was not impressed with his demeanor.
The credited testimony of Jones proves that Sanders inter-
rogated her about matters which revealed not only her pref-
erence for the Union but the extent to which she would go
in support of the Union.
Jones was not shown to have been a known union advo-
cate. I find that Respondent violated Section 8(a)(1) of the
Act. Kona 60 Minute Photo, 277 NLRB 867 (1985); WXON-
TV, 289 NLRB 615, 619 (1988); Heck’s Inc., 277 NLRB
916, 922 (1985); Southern Illinois Petrol, 277 NLRB 160,
170 (1988); Sunnyvale Medical Clinic, 277 NLRB 1217
(1985).
II. THE 8(A)(4) ALLEGATIONS
A. The Discharge of Annette Strickland
General Counsel alleged that Respondent discharged An-
nette Strickland on May 8, 1991, because she had testified
in an earlier unfair labor practice proceeding.
Respondent admitted that it discharged Annette Strickland
on May 8, 1991.
In a previously held unfair labor practice hearing General
Counsel called some 13 nonsupervisory employees of Re-
spondent, as witnesses in his case including Annette Strick-
land. Annette Strickland was called as a witness on April 25,
1991, in Cases 15–CA–11268 and 15–CA–11372–2.
The parties stipulated that Annette Strickland and another
witness for General Counsel, Sharon Holloway, were both
called to testify about essentially the same matters.
Annette Strickland testified that she was employed by Re-
spondent on the CVP line from January 1990 until her dis-
charge on May 8, 1991.
As shown above, Strickland testified that there was a con-
versation on her line including Supervisors Luke Moody and
Floyd Washington. In addition to Strickland employees Shar-
on Holloway and Myrtle Temple were present. Luke Moody
told Floyd Washington, who was being trained to take over
as foreman, that there are some people on this line that you
114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
need to get rid of and he pointed to Strickland and said,
‘‘[H]er ass especially.’’ As shown above, both Myrtle Tem-
ple and Sharon Holloway testified in accord with Strickland
and I credited their testimony and discredited the denial of
Luke Moody.
Jim Sanders testified from records that Floyd Washington
was hired on May 6, 1991. Luke Moody admitted that he
trained Washington to become foreman over the line Annette
Strickland worked on.
Jim Sanders, Respondent’s packing and shipping super-
visor, testified that he made the decision to terminate Annette
Strickland.
Strickland was discharged on May 8, within 2 days after
Foreman Luke Moody told new Foreman Floyd Washington,
to get rid of Strickland, and within a few days after Strick-
land testified against Respondent on April 25, 1991.
Sanders testified that it is Respondent’s practice to auto-
matically terminate any employee that receives 11 absence
occurrences during a 12-month period. The 12 months are
measured back from the last occurrence. In determining oc-
currences, consecutive absences count as one occurrence, as
does a single absence standing alone. Being late for work
counts as one-third of an occurrence unless the employee
was over half the shift late, in which case it would count as
an absence. There was no grace period for tardy. One minute
late counted as being late.
Sanders admitted that he was cross-examined during a pre-
vious unfair labor practice hearing around April 1991, about
a complaint from employees Annette Strickland and Sharon
Holloway, that Supervisor Moody had credited Strickland
with time that she had not worked because he was seeking
sexual favors from Strickland.
Sanders testified that he talked with Annette Strickland on
the phone on the day of her discharge. Strickland told him
that her car had been stolen and she asked Sanders if she
could get a vacation day. Sanders told her no, that vacations
had to be scheduled but that if she came in before 11:20, it
would only count a third or if she came in after 11:20 it will
count as an absence. Sanders also recalled something was
said about another absence would terminate her and he be-
lieved that was said by him. Sanders said that he may have
checked Strickland’s record while she was on the phone.
Annette Strickland testified regarding her call to Sanders
on the morning of May 8. Her account of the conversation
was similar to Sanders’ account. Strickland testified that after
talking with Sanders she phoned the police and subsequently
discovered her car had been repossessed rather than being
stolen. She phoned her husband and she and her husband
went to the bank and were successful in getting enough
funds to retrieve her car. Immediately upon getting her car
back Strickland drove to the plant but it was about 2:30 p.m.
The parties stipulated that Annette Strickland did have va-
cation time available when she made the request of Sanders
on May 8.
As admitted by her, Strickland did not report for work be-
fore 11:20 on May 8. She did not arrive until after 2 p.m.
When she arrived she met with Sanders in personnel. Sand-
ers testified that Annette Strickland asked if she was fired.
Sanders repeated what he had told her on the phone that she
would have been charged one third point if she had arrived
before 11:20 but that since she did not arrive for work until
after that time, she was being charged for a full absence.
Sanders ‘‘got down the books.’’ Then told Strickland ‘‘that
she was over on days, and—let’s see—and that she was ter-
minated.’’
Annette Strickland testified that after Sanders told her that
she was terminated she told him that she had not missed 10-
2/3 days as the record showed. She argued that even if it did
show those missed days she should have one coming off in
April and one coming off in May. Sanders replied, ‘‘Well,
we don’t have to get into all of that. I said you are dis-
missed, so he got up and told Kathy to give a check and he
told Tom to go and get my other check for Monday and
Tuesday . . . .’’
Respondent contends that the policy regarding granting
immediate vacation time was changed in September 1991 but
that before that time their policy was not to grant vacation
time pursuant to an immediate request. Respondent’s counsel
stated, however, there was nothing in writing regarding the
change in policy.
Respondent’s personnel manager, Charles Kendrick testi-
fied that the policy at the Hattiesburg plant during the period
May to September 1991 was to deny vacation request unless
the vacation had been previously scheduled. Request for im-
mediate emergency vacation time was denied in accord with
that policy. According to Kendrick and Scott Varner, how-
ever, that policy was changed by Vice President Scott Varner
during September 1991 when, in response to questions from
employees during meetings about the upcoming election,
Varner told the employees there was no reason why they
should be denied vacation time for emergencies. Kendrick
testified that the policy was not contained in writing and was
not included in the policy manual.
Foremen Glendell Hilton Lee and Tom Thorla testified
that before September 1991 the policy was to not grant vaca-
tion under immediate emergency conditions. In September
Lee heard from employees that they had been told in a meet-
ing that the policy was to permit immediate vacation in an
emergency. She checked with Jim Sanders and was told that
the policy had changed. Lee testified that before that time
her employees did not request immediate vacation in emer-
gencies, but afterward she had several such requests which
she granted.
Tom Thorla testified that for some time before Jim Sand-
ers came to Hattiesburg, the policy was to grant immediate
emergency vacation but that later the policy was changed to
one of not permitting vacations unless the vacations had been
scheduled in advance.
The parties stipulated there is nothing in writing regarding
the policy of considering vacation request for vacation on the
day of the request.
General Counsel offered evidence regarding the policy re-
garding request for immediate vacation time both before and
after September 1991.
Myrtle Temple testified that she had a conversation with
Jim Sanders about June 25, 1990. Temple asked Sanders why
he did not answer her phone page that morning because she
had unsuccessfully tried to phone him three times. Sanders
told her he did not hear but what was the problem. Temple
told Sanders that she wanted a vacation day off because she
wanted to go to a funeral with her daughter but that since
she had come to work she would like to take off at lunch.
Sanders told her that she had plenty of vacation days left and
he gave her permission to take the day off and be with her
115MARSHALL DURBIN POULTRY CO.
daughter. Temple testified that before that occasion she had
several occasions when she had to phone in and ask for the
day off due to her daughter being sick. Temple testified that
she was always given the day off on those occasions.
On cross-examination Temple testified that Respondent’s
funeral policy applied to family members and the funeral in-
volved in her request to Jim Sanders was a friend of her
daughter. She recalled that she was charged with vacation
time on that occasion and that Jim Sanders had written vaca-
tion for that day on her timecard.
Jim Sanders testified that he would have noted any excep-
tions to the immediate vacation prohibition and he noted
only one such case and that involved Annette Fairley. That
occasion is discussed below. Sanders did not recall the inci-
dent recalled by Myrtle Temple.
In accord with my findings above, I found Myrtle Temple
to be a credible witness. She demonstrated good recall for
events during both direct and cross-examination. I credit her
testimony and discredit the testimony of Jim Sanders which
conflicted with Myrtle Temple. Sanders was evasive on cross
and demonstrated a poor recall of such important issues as
how he came to take over the absentee records for his em-
ployees during January 1991.
Flora Jean McGilvery, a packer with Respondent, testified
that she attended a meeting of employees, Personnel Man-
ager Charles Kendrick, Neil Keith, and Fincher Allen, at the
plant shortly after lunch in September or October 1991. Dur-
ing that meeting employee Valecia Twilley asked if the em-
ployees were allowed to take vacation time in case of emer-
gency. Neil Keith replied that the vacation days are ‘‘yours
to take. You know, if you wake up and something come up,
like an emergency or something, you can call in and ask for
a vacation day.’’
Shortly after that meeting, McGilvery had a conversation
with Jim Sanders at work on her line. McGilvery told Sand-
ers that she did not realize that you can call in and take a
vacation day in case of emergency. Sanders replied, ‘‘yes,
that was part of policy, you know; you ask to speak to me
and I will give you that day off, you know, if an emergency
was to come up as your child—or something come up that
can’t be prevented.’’
Rena McCuller, an employee on the CVP line, testified
that she phoned her Supervisor Ken Barber on two occa-
sions, in late November and in December 1991, and asked
for emergency leave on each of those days and her requests
were granted.
On cross-examination McCuller was asked if she had ever
called before November 1991 and asked for immediate emer-
gency leave. McCuller answered that she had but she did not
recall the date and she testified that she was not aware of
any change in the policy of emergency leave during Septem-
ber or October 1991.
Mary Ann Fairley, an employee classified as poultry bag-
ging, testified that she asked and received emergency leave
on four occasions during November 1991 from her Super-
visor Ken Barber. Fairley was not aware of a change in pol-
icy regarding emergency vacation. November 1991 was the
first occasion she had to ask for immediate vacation time.
Carolyn Bradley testified that she has worked for two
years on the CVP line. She first had occasion to ask for im-
mediate vacation time on a day in May 1991. She called and
talked with her Foreman Floyd Washington before starting
time and was granted her request to be off that day on vaca-
tion. Subsequently Bradley had another occasion in Septem-
ber 1991 to ask for an immediate vacation day. On that occa-
sion she asked Ken Barber. Again her request was granted.
Michael Haines Bennett testified that he has worked for
Respondent for 4 years. In the summer of 1989 Bennett
phoned his foreman, Billy Johnson, before his shift and
asked for a vacation day off because his brother had been
stabbed. Johnson granted Bennett’s request.
Billy Johnson who worked for Respondent from 1980 until
1990 testified that while he was a foreman in 1989 he asked
the plant manager about the policy regarding granting vaca-
tion time following a request for immediate time off. The
plant manager told him the policy was to take care of the
good employees and grant vacation days when the employee
called in. That plant manager, Malcolm McDonald, has re-
mained plant manager through all material times.
Johnson testified that after that conversation he had nu-
merous occasions in which he granted vacation time imme-
diately upon an employee phoning in for emergency leave.
Johnson testified that on one occasion employee Myrtle
Temple phoned in and asked for immediate leave and he
granted her request. He then told his Supervisor Jim Sanders
and Sanders told him that was fine, no problem.
Johnson testified that on every occasion since 1987 when
one of the employees he supervised, asked for immediate va-
cation time, he granted the request.
I credit the testimony of Flora Jean McGilvery, Rena
McCuller, Mary Ann Fairley, Carolyn Bradley, Michael
Haines, Bennett, and Billy Johnson. All presented good de-
meanor and their testimony was almost entirely unrebutted.
B. Findings
Much of the evidence regarding the allegation that Annette
Strickland was discriminatorily discharged, was not con-
tested. Neither Strickland nor Sanders appeared credible in
many regards. However, I credit their testimony which was
in substantial agreement, regarding the events of May 8.
In consideration of whether an employee has been
discriminatorily discharged in violation of Section 8(a)(4) the
test is that which is oftentimes applied in alleged violation
of Section 8(a)(3) of the Act. I must first consider whether
General Counsel proved a prima facie case. Then if I find
that he has, I must consider whether Respondent has proved
that the employee would have been discharged in the absence
of protected activities. Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982); NLRB v. Transportation Management Corp., 462
U.S. 393 (1983); Delta Gas, 283 NLRB 391 (1987), enfd.
840 F.2d 309 (5th Cir. 1988); Southwire Co. v. NLRB, 820
F.2d 453 (D.C. Cir. 1987); Yaohan of California, 280 NLRB
268 (1986). See also Northport Health Services v. NLRB,
961 F.2d 1547 (11th Cir. 1992), for a discussion of the three
tests required by Wright Line.
In the instant case in consideration of whether General
Counsel proved a prima facie case the evidence proved that
Respondent strongly opposed its employees’ union activities.
The evidence also illustrated that Annette Strickland testified
in unfair labor practice proceedings on behalf of General
Counsel and in opposition to Respondent, on April 25, 1991.
Subsequently on either May 6 when Floyd Washington start-
ed working for Respondent, or on May 7, the last day An-
116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nette Strickland worked, Foreman Luke Moody told Wash-
ington that Strickland was a troublemaker and that Washing-
ton should get rid of her. On May 8, Strickland was dis-
charged.
The record shows evidence of disparity. On several occa-
sions both before and after May 8, employees were permitted
vacation time off, immediately following requests under
emergency conditions on the day they made the request for
vacation.
Respondent did not show that a particular employee, other
than Strickland, was ever told they could not take immediate
vacation under emergency conditions and no employee was
ever disciplined under the absentee policy after requesting
immediate vacation under emergency conditions. Jim Sanders
admitted that on one occasion he did grant immediate vaca-
tion time to employee Annette Fairley. On July 1, 1991, An-
nette Fairley phoned and asked for vacation that day. Fairley
had been involved in an auto accident in which she struck
and killed a pedestrian. Jim Sanders testified that Annette
Fairley also testified for General Counsel in the prior pro-
ceeding. Additionally, as shown above, I credit evidence
showing that Sanders and other supervisors in his department
granted requests for immediate vacation time.
In view of the full record, especially the matters noted
above, I find that General Counsel proved a prima facie case
of discriminatory discharge of Annette Strickland.
Respondent in arguing that Annette Strickland would have
been discharged in the absence of her protected activities,
contended that she was discharged in strict accord with its
absentee policy.
As to Respondent’s position, there appears to be only one
area of dispute. Respondent contends, and General Counsel
disputes, that it was the policy for those employees that
worked under the supervision of Jim Sanders during the pe-
riod from January to September 1991, to not grant vacation
requests made on the day the employee wanted off.
As shown above, General Counsel offered evidence that
employees were granted immediate vacations on the day of
their requests both before and after May 8, 1991.
In support of its position Respondent pointed out that Su-
pervisors did not receive many requests for immediate vaca-
tion time until after the policy of granting immediate vaca-
tion was announced in September 1991 and that employees
expressed surprise by asking and being told that they could
receive immediate vacation time for emergencies during
meetings in September and October 1991.
There was some support in the record as Respondent con-
tends. However, there was no direct evidence that Respond-
ent ever changed its policy to one of never granting requests
for immediate vacation time. Jim Sanders testified on three
occasions and he never did testify how he instituted a new
policy of never granting requests for immediate vacation
time.
On cross-examination Sanders was asked for details on
how he came to assume responsibility for the absentee
records for his employees around January 1991. Sanders was
unable to recall the details of how he assumed that respon-
sibility.
Sanders was not asked nor did he testify, as to if, when
or how he instituted a policy of automatically denying re-
quests for vacation time on the day of the request. The
record contains no direct evidence that policy was changed
by Sanders or anyone else.
Instead, as mentioned above, Respondent pointed to some
indirect evidence which allegedly shows the policy during
May 1991 was one of not granting immediate requests for
vacations. Employees did ask and were told during Septem-
ber and October 1991 that they could receive emergency va-
cation time on the day of their request. Afterward, according
to Jim Sanders, there was an immediate increase in the num-
ber of requests for immediate vacation time.
I find that evidence that employees may not have always
asked for immediate vacation time before September, does
not establish that Respondent had a policy of not granting
immediate requests.
I make that finding in view of the fact that the evidence
shows that employees were granted immediate vacation time
during the period of the alleged no vacation policy.
There was one document in which some reference is made
to the no immediate vacation policy in addition to the docu-
ments regarding Annette Strickland’s discharge. In a docu-
ment dated July 3, 1991, Jim Sanders refers to that policy
as well as mentioning that Annette Fairley told him that she
knew that she was not supposed to call in and ask for vaca-
tion on the spur of the moment.
However, the incident involving Annette Fairley occurred
after Annette Strickland was fired and after an unfair labor
practice charge had been filed over her discharge. Obviously,
that information could have caused Annette Fairley to think
that she was not allowed to receive vacation time on a spur
of the moment request and it may have influenced Sanders
to try and document a questionable policy.
A similar consideration may be applied to why employees
may have been surprised to learn in September and October
1991 that they could receive emergency vacation time. In
May 1991, Annette Strickland had been fired after asking for
but not being given, a days vacation because her car had
been taken. Obviously that event would logically led employ-
ees to believe that Jim Sanders would not grant vacation time
for an emergency.
Therefore, I find that the record evidence failed to prove
that Jim Sanders’ had an established policy of denying re-
quests for emergency vacation time on May 8 when he fired
Annette Strickland.
Additionally, Respondent argued that other employees tes-
tified in the earlier proceedings and that one of those em-
ployees, Sharon Holloway, actually testified about the same
matter testified to by Annette Strickland, and another, An-
nette Fairley was granted an exception to the no immediate
vacation rule, but that Respondent did not discharge those
employees. Respondent contended that illustrated that it did
not fire Strickland because of her testimony in view of the
fact that it did not fire any of the other employees that testi-
fied.
In response to that the record illustrated that only Strick-
land was vulnerable to discharge under the absentee rule.
The record did not show that any of those other employees
were vulnerable to discharge. None was shown to be at the
point where one additional absence would establish grounds
for discharge.
I find that Respondent denied Strickland’s request for an
emergency vacation and used that denial as a pretext in jus-
tification of her discharge. See also Northport Health Serv-
117MARSHALL DURBIN POULTRY CO.
1 See Marshall Durbin Poultry Co., 310 NLRB 68 (1993).
ices v. NLRB, supra; Shattuck Dunn Mining Corp. v. NLRB,
362 F.2d 466, 470 (9th Cir. 1966); Clark & Wilkins Indus-
tries, 290 NLRB 106, 107 (1988).
CONCLUSIONS OF LAW
1. Marshall Durbin Poultry Company is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. United Food and Commercial Workers International
Union, AFL–CIO is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent, by threatening its employees with dis-
charge because they testified in an NLRB hearing; by threat-
ening its employees that it is futile for them to select the
Union as their bargaining representative; by threatening its
employees with plant closure if they select the Union; and
by interrogating its employees about their union activities has
engaged in conduct violative of Section 8(a)(1) of the Act.
4. Respondent by discharging and refusing to rehire its
employee Annette Strickland because she gave testimony in
an NLRB unfair labor practice proceeding, engaged in con-
duct violative of Section 8(a)(1) and (4) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
As I have found that Respondent has illegally discharged
its employee in violation of sections of the Act, I shall order
Respondent to offer Annette Strickland immediate and full
reinstatement to her former position or, if that position no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges. I fur-
ther order Respondent to make Strickland whole for any loss
of earnings she suffered as a result of the discrimination
against her and that Respondent remove from its records any
reference to the unlawful actions against its employee Strick-
land and notify Strickland in writing that Respondent’s un-
lawful conduct will not be used as a basis for further person-
nel action. Backpay shall be computed as described in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as de-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
[Recommended Order omitted from publication.]
David A. Nixon, Esq., for the General Counsel.
Sidney Lewis, Esq., of New Orleans, Louisiana, for the Re-
spondent.
Jeffrey S. Wheeler, Esq., of College Park, Georgia, for the
Charging Party.
SUPPLEMENTAL DECISION
J. PARGEN ROBERTSON, Administrative Law Judge. On
December 23, 1992, the National Labor Relations Board
(Board) issued an order remanding the decision in this matter
(JD(ATL)–27–92) for consideration of issues set out in its
order. Subsequently I set the deadline for receipt of briefs
from the parties on the issues raised in the Board’s remand.
The Board in its order remanding this matter, raised ques-
tions regarding the finding in the decision that employee An-
nette Strickland was discharged in violation of Section
8(a)(1) and (4) of the National Labor Relations Act (Act).
In that regard the Board questioned whether the finding
that Annette Strickland was treated disparately was supported
by substantial evidence. Specifically the Board questioned
whether substantial evidence supported the finding that Su-
pervisor Jim Sanders acted in a disparate manner by refusing
to grant Strickland immediate vacation time pursuant to her
request on May 8, 1991.
Strickland was discharged on May 8, 1991, allegedly
under Respondent’s absentee policy. The policy, which is not
in dispute, called for the discharge of any employee that re-
ceived 11 or more absentee occurrences. Annette Strickland
had 10-1/3 occurrences on her record on May 8 when she
phoned Respondent and requested emergency vacation that
day because her car had been stolen. Supervisor Jim Sanders
denied her request for emergency vacation and it is that ac-
tion by Sanders which is called into issue and which is of
concern to the Board as expressed in its remand.
Respondent contended that Supervisor Jim Sanders en-
forced a policy of denying employees requests to take a va-
cation day on the same day a request was made, from Janu-
ary to September 1991. The Board pointed out in its order
that that policy was supported by testimony of Supervisor
Jim Sanders, Personnel Manager Charles Kendrick, and Fore-
men Glendell Lee and Tom Thorla.
In consideration of the Board’s Order, the record evidence
and briefs originally filed as well as briefs filed in regard to
issues raised in the remand, by Respondent and General
Counsel, I issue this supplemental decision setting forth the
resolution of credibility issues, findings of fact, conclusions
of law, and a recommended Order.
In consideration of the alleged illegal discharge of Annette
Strickland, I first considered whether General Counsel
proved prima facie that one of the reasons for the discharge
was protected activity. If I found in support of General
Counsel then I was required to consider whether Respondent
proved that it would have discharged Strickland in the ab-
sence of her protected activities. Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982); NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983).
In my decision I found that General Counsel proved a
prima facie case on finding that Respondent strongly op-
posed its employees’ union activities; that Annette Strickland
was discharged on May 8, which was a few days after she
testified in Board proceedings against Respondent on April
251 and 1 or 2 days after Foreman Luke Moody told Fore-
man Floyd Washington that Strickland was a troublemaker
and that Washington should get rid of her; and on evidence
showing disparity in its treatment of Strickland as opposed
to its normal practice.
In its remand, the Board, in agreement with Respondent,
stated:
118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We agree with the Respondent’s statement in its ex-
ceptions that the judge, in finding that no policy existed
of denying same day requests for vacations, failed to
address the evidence of witnesses who testified, without
contradiction, that there was such a policy. Because the
judge failed to credit or discredit this testimony, we
cannot determine whether the record supports his find-
ing that the Respondent discriminatorily discharged
Strickland.
As pointed out by the Board, four of Respondent’s wit-
nesses testified that it was Respondent’s policy to deny same
day requests for vacation time.
Foreman Glendell Hilton Lee, an admitted supervisor that
worked under the supervision of Jim Sanders, was asked by
Respondent’s counsel what was the policy during the January
to September 1991 period, regarding requests for same day
vacations and Lee answered that the policy was to deny
those requests.
Foreman Tom Thorla, an admitted supervisor that worked
under the supervision of Jim Sanders, testified that Respond-
ent’s policy since 1987 was to deny requests for same day
vacation time.
Personnel Manager Charles Kendrick testified that from
the time he was first employed by Respondent in May until
September 1991, it was Respondent’s policy to deny same
day requests for vacation time.
Supervisor Jim Sanders testified that Respondent’s policy
since he was employed in 1989 was to deny same day re-
quests for vacation time.
In consideration of whether the above testimony is credi-
ble it is important to restate the issue. Respondent argued
that Supervisor Jim Sanders enforced a policy of denying im-
mediate vacation time from January to September 1991 and
that the policy that Sanders enforced was unique to the area
supervised by Sanders.
By limiting the time of enforcement to the January to Sep-
tember 1991 period and by limiting the area of enforcement
to the employees under the supervision of Sanders, Respond-
ent placed several restrictions on General Counsel. For exam-
ple, Respondent argued that evidence of disparity must be
limited to the January to September period. If that argument
is adopted, for example, the testimony of former Foreman
Billy Johnson as to disparity would be irrelevant because
Johnson was discharged before the alleged applicable period.
Moreover, if the policy was limited to Sanders’ supervision,
then evidence of Respondent’s policy was not relevant.
Unfortunately from Respondent’s position, there is abso-
lutely no evidence in the record to support its argument.
Even Supervisor Jim Sanders did not testify in support of
that argument. He testified that Respondent’s policy since he
was employed in 1989 was to deny same day requests for
vacation time. Additionally, Foreman Tom Thorla, who
worked under the supervision of Sanders testified that it was
Respondent’s policy to deny same day requests for vacation
time since 1987 when he was told of that policy by his su-
pervisor at that time. Foreman Glendell Lee also failed to
support Respondent’s argument. Lee was asked what was the
policy from January to September 1991 and she responded
that the policy during that time was to deny same day re-
quests for vacation time. Lee was not asked if there was a
change in policy in January 1991.
Finally, Personnel Manager Kendrick was limited in his
testimony to the time he was employed by Respondent.
Moreover, according to Kendrick it was Respondent’s policy,
not solely that of Supervisor Sanders, to deny same day re-
quests for vacation time from the time of his employment in
May until September 1991.
As to the question of was the no immediate vacation pol-
icy peculiar to the employees supervised by Jim Sanders, that
argument along with the argument that Sanders started the
policy in January 1991, was not supported by any evidence
in the record. Both Jim Sanders and Tom Thorla testified to
the contrary. According to Sanders he understood Respond-
ent’s policy since he was employed in 1989 to require denial
of requests for immediate vacations. Sanders testified that he
is the first one that gets to the plant in the packing depart-
ment each morning and that he has received some phone
calls requesting immediate vacation. Sanders testified that
since 1989 he has uniformly denied those requests with the
exception of one made by Annette Fairley after she had an
auto accident on the way to work in July 1991. Sanders did
not name any specific employees that were denied immediate
vacation time.
The only matter claimed by Sanders to have occurred in
January 1991 was his taking over the responsibility of main-
taining the absentee records and handling such things as dis-
ciplinary actions under the absentee policy for employees
under his supervision. He made no claim that he changed
policy when he assumed those additional duties.
I find that the record does not support Respondent’s con-
tention that Jim Sanders enforced a unique policy in his area
of responsibility in Respondent’s Hattiesburg facility, of de-
nying same day requests for vacation time from January to
September 1991.
There remains a question as to whether Respondent or
Sanders had a policy in place before January 1991 of refus-
ing to grant same day vacation requests.
I do agree with Respondent that its employees were told
in September 1991 that its policy was to allow same day re-
quests for emergency vacation time. That point is not dis-
puted. There is a dispute as to whether that announcement
which was made in a series of employee meetings, rep-
resented a change in policy for the Hattiesburg facility.
Clearly, it did represent a change from the practice applied
to Annette Strickland.
Due to that factor which was specifically discussed by the
Board in its remand order, I do not rely on testimony that
Respondent granted requests for same day emergency vaca-
tion time where the requests were made after the September
1991 employee meetings.
I now find that the credited evidence in the record proved
that it was not Respondent’s practice during May 1991 when
Annette Strickland was discharged, to deny same day re-
quests for emergency vacation time. I specifically discredit
the testimony of Glendell Hilton Lee, Tom Thorla, Charles
Kendrick, and Jim Sanders to the extend their testimony
shows that Respondent’s policy on May 8 was to deny same
day requests for vacation time.
Annette Strickland’s May 8 request was for emergency va-
cation. Lee, Thorla, Kendrick, and Sanders testified about the
general practice regarding immediate vacation requests as op-
posed to requests for immediate vacation due to an emer-
gency.
119MARSHALL DURBIN POULTRY CO.
2 Johnson was employed by Respondent as a foreman until his dis-
charge in May 1990. Johnson testified without rebuttal that he talked
with Plant Manager McDonald about requests for immediate vaca-
tion time because that question came up in 1989 regarding the eight
hour holiday pay policy. I specifically credited Johnson’s testimony
in the underlying decision.
Lee, Thorla, Kendrick, and Sanders testified as to different
times when the alleged practice of denying immediate vaca-
tion time was in place and there was no evidence showing
when Respondent implemented that policy.
Moreover, standing against the above was unrebutted testi-
mony from a former foreman, Billy Johnson,2 that Plant
Manager Malcolm McDonald told him in 1989 that it was
Respondent’s policy when faced with a request for imme-
diate time off to take care of the good employees and grant
vacation days when the employee called in. During all mate-
rial times Plant Manager McDonald was the person in au-
thority over all the supervisors at Respondent’s Hattiesburg
facility. I credit Johnson’s testimony in that regard on the
basis of my observation of his demeanor and in view of the
fact that Plant Manager McDonald did not contest Johnson’s
testimony. Johnson’s testimony as to that occasion was as
follows:
I asked Mr. McDonald what was the company’s pol-
icy concerning giving people vacation days upon the
date that they called in. Malcolm (McDonald) said that
it was the company’s policy that they would—we
would take care of the good employees, and people
who were becoming in peril with their absenteeism
would be put on vacation days when they called in.
The record contained no evidence that employees were
ever told of the implementation of a policy of refusing to
grant same day vacation requests. Moreover, the parties stip-
ulated that there was no writing before May 1991, in Re-
spondent’s records, setting out the alleged policy of denying
same day requests for vacations.
Respondent in its remand brief agreed there was no evi-
dence as to specific occurrences of an employee being denied
a same day requests for vacation time. Respondent argued it
would have been like producing the proverbial needle in the
haystack to produce such evidence.
In fact Respondent called four supervisors. Obviously
those supervisors were in as good a position as any employee
or former employee under their respective supervision, that
had been denied a same day request for vacation time, but
none of those supervisors testified as to a specific incident
of denying a same day request other than the incident involv-
ing Strickland.
In addition to the fact that there was no evidence of or
when the alleged policy was first implemented, there was
unrebutted testimony that Respondent’s plant manager at
Hattiesburg told a supervisor in 1989 that Respondent’s pol-
icy was to grant immediate vacations for their good employ-
ees when the employee was ‘‘in peril,’’ and Respondent’s
vice president Scott Varner expressed surprise when Hatties-
burg employees asked him about their entitlement to emer-
gency vacation time during employee meetings over the
union campaign in September 1991. Varner knew the policy
in Respondent’s other plants was to grant immediate emer-
gency vacation and he thought that was the policy at Hatties-
burg. He told the employees they could take immediate vaca-
tion time in an emergency.
Additionally, I credited the testimony of Myrtle Temple
that Jim Sanders granted her vacation time on the day of her
request after she explained to him that she wanted to take
her daughter to the funeral of her daughter’s friend. In the
original decision I discredited the testimony of Jim Sanders
that he did not recall that incident which occurred around
June 25, 1990.
I also credited the unrebutted testimony of Carolyn Brad-
ley that she was granted a same day request for vacation
time in May 1991 by her foreman, Floyd Washington. Wash-
ington worked under the supervision of Jim Sanders. Wash-
ington was the foreman of Annette Strickland at the time of
her discharge on May 8, 1991.
Respondent argued that there was no evidence showing
that Jim Sanders knew of Carolyn Bradley’s receipt of same
day vacation time in May 1991. However, Sanders admit-
tedly reviewed the absentee calendars for all his employees
at that time and he would have seen that Bradley was absent
for 1 day and she had been granted a vacation on that one
day. If he was monitoring the records as he testified, he
would have been aware that the records did not show a prior
request for vacation time submitted by Bradley. Moreover,
Floyd Washington, the foreman that granted the vacation
time, worked under the direct supervision of Sanders and
Bradley’s testimony illustrates that Washington had not been
informed of the alleged policy by Sanders.
I find that the credited evidence failed to show that it was
Respondent’s policy from January until September 1991, to
deny same day requests for emergency vacation time. I credit
testimony, as noted above, that it was Respondent’s policy
to ‘‘take care of the good employees, and people who were
becoming in peril with their absenteeism,’’ by granting vaca-
tion time on the day the employee called in. At the time of
her discharge Annette Strickland was in peril with her absen-
teeism. She was previously charged with 10-1/3 occurrences
and 1 additional absence would subject her to discharge.
There was no showing of how Respondent determined which
employees were ‘‘good employees,’’ nor was there proof that
Strickland was not a ‘‘good employee.’’ In fact Supervisor
Sanders was asked if Strickland was an acceptable employee
in all respects except attendance and he responded yes.
Respondent argued that the fact that employees asked and
were surprised to learn during September employee meetings,
that they could receive same day requested vacation time
under emergency conditions, shows that the policy before
then was to deny such requests.
As mentioned above, Vice President Scott Varner testified
that in meetings he conducted in September, several employ-
ees asked him if employees could take a day’s vacation in
an emergency. Varner admittedly answered that he did not
see why not since that was the policy that Respondent had
in all its other plants.
Those September meetings occurred after Annette
Strickland was denied her request for immediate vacation
time due to an emergency and fired in May 1991. I do not
find it remarkable that employees would believe from that
time forward that Respondent would not grant same day re-
quests for emergency vacation time. Because of that incident
I do not believe that the employees’ questions and responses
when Scott Varner told them they should receive immediate
120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vacation time in emergencies, shows that Respondent’s pol-
icy and practice during and before May 1991 was to deny
requests for emergency vacation time.
Respondent argued in its remand brief that there was no
evidence showing that employees were aware of Strickland’s
discharge after she was denied emergency same day vacation
time. In fact Respondent went through two union organizing
campaign’s in 1990 and 1991. On April 25, 1991, Strickland
testified in an unfair labor practice hearing that involved mat-
ters during the 1990 campaign. On May 6 or 7, 1991, Fore-
man Luke Moody told Strickland’s new foreman that Strick-
land was trouble and that he should get rid of her. A day
or two later, Strickland was denied emergency vacation time
and fired. It is unrealistic to believe that employees in the
plant did not know something of what was going on espe-
cially after the NLRB Regional Office issued a complaint al-
leging that Strickland was discharged in violation of the law,
on June 28, 1991.
Moreover, Director of Human Resources Fincher Allen ad-
mitted on cross-examination that he was present in meetings
conducted by Scott Varner in the previous union campaign
during the fall of 1990. When asked about discussions during
those meetings Allen testified first that he didn’t remember
the absentee policy being as big an issue then, and finally
he testified that the absentee policy may have come up.
Allen’s testimony tends to undercut Respondent’s argu-
ment as to the import of the employees questions in Septem-
ber 1991 regarding the absentee policy. Allen obviously did
not recall whether that issue came up during the fall of 1990.
Apparently it did not come up then if Scott Varner’s testi-
mony is credible because Varner testified that he was sur-
prised when the employees questioned the policy regarding
immediate emergency vacations during September 1991
meetings, because the policy in all the other plants was to
grant emergency vacation and he thought that was the policy
in Hattiesburg until corrected after his first day’s meetings.
If the employees had questioned Varner on that issue in
1990, it stands to reason that he would not have been sur-
prised by their renewing that concern in 1991.
In view of the employees not questioning that policy in
1990, one must wonder why it was such a hot topic one year
later when, according to Varner, the employees brought up
that subject in almost every one of the meetings. Allen esti-
mated there may have been 50 employee meetings in a 6-
week period in the fall of 1991.
Obviously something occurred between the employee
meetings in the fall of 1990 and a year later. I have found
herein that Jim Sanders, by his own testimony, did not
change the policy as alleged by Respondent, in January
1991. Therefore, the most likely candidate for such an occur-
rence is the discharge of Annette Strickland after Jim Sand-
ers refused her request for emergency vacation. That occur-
rence would explain why, according to Vice President
Varner, the employees repeatedly brought up the question of
could they receive immediate emergency vacation time.
I am also aware that much of Respondent’s argument is
based on evidence regarding same day requests for vacation
time and that issue may differ from same day requests for
vacation time under emergency conditions. In that respect it
is clear that Strickland’s belief that her car had been stolen
along with the difficulty she encountered that day in retriev-
ing her car after she discovered it had been repossessed rath-
er than stolen, would qualify as an emergency at least to the
extent Sanders learned before granting other requests includ-
ing his granting Myrtle Temple permission to take vacation
time to accompany her daughter to the funeral of a friend
and the emergencies he recognized in granting Annette
Fairley’s requests. Fairley requested immediate vacation time
following her auto accident and additionally after she re-
turned to work.
Jim Sanders’ conference with employee memo dated July
3, 1991, shows that after Fairley returned to work after being
granted immediate emergency vacation following her acci-
dent, she again asked Sanders for vacation time off because
too many people were asking questions about her accident
and she could not handle it. Sanders denied her vacation time
because she had already started work that day but he granted
her time off ‘‘without charge,’’ and Sanders reminded
Fairley that was the second or third time in 3 weeks that he
had let her go home. That memo written by Sanders shows
that rather than one exception to his alleged no immediate
vacation policy, he effectively granted at least 3 days of im-
mediate vacation to Fairley. Sanders granted Fairley’s request
for a day’s vacation on the day following her accident. He
let Fairley go home without charge the next day and, accord-
ing to his memo that was the second or third time in 3 weeks
that he let Fairley go home. Additionally, as mentioned in
the underlying decision, Sanders memo was self-serving. He
wrote the memo 5 days after the complaint issued alleging
Strickland was illegally discharged.
Respondent also takes issue with testimony by former
foreman, Billy Johnson, and Johnson’s prehearing affidavit
as to immediate vacations allegedly granted by Johnson in
1989. I find there is no substantial conflict between John-
son’s affidavit where he mentions one occasion of granting
immediate vacation to Myrtle Temple as opposed to his testi-
mony as to more occasions of granting Temple immediate
vacation.
I specifically credited the testimony of Johnson in the un-
derlying decision. I continue to credit his testimony. John-
son’s testimony illustrates an additional conflict with the tes-
timony of Jim Sanders as well as that of Tom Thorla. Both
Sanders and Thorla testified that Respondent’s policy of no
immediate vacation time, was in place in 1989. As shown
above, I discredit testimony that Respondent had such a pol-
icy especially as to emergency situations, when it discharged
Annette Strickland. Additionally, in the underlying decision
I specifically credited the testimony of Johnson that on one
occasion he told Jim Sanders that he had granted immediate
vacation time to Myrtle Temple and Sanders replied that was
fine, no problem.
In view of the full record and especially the matters noted
above, I find that the record supports a finding that General
Counsel proved prima facie, that Respondent was motivated
by Strickland’s protected activities in discharging her on
May 8, 1991.
I find, in view of the above, that Respondent’s asserted
grounds for its discharge of Annette Strickland were
pretextuous and Respondent failed to prove that it would
have discharged Strickland in the absence of her protected
activities. See Northport Health Services v. NLRB, 961 F.2d
1547 (11th Cir. 1992).
In reaching the above findings and determinations, I do
not rely of any evidence regarding Respondent’s actions fol-
121MARSHALL DURBIN POULTRY CO.
3 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.
lowing requests for immediate vacation, at any time after
Scott Varner told employee that Respondent could grant im-
mediate vacations in September 1991. I find that credited
evidence failed to prove that Jim Sanders followed a dif-
ferent practice than other departments at Respondent’s Hat-
tiesburg facility and evidence which I have credited estab-
lished that it was Respondent’s and Jim Sanders’ practice in
May 1991 to grant same day requests for emergency vaca-
tion.
Additionally, the Board held that I must make a deter-
mination of whether the relevant examples of disparity con-
stitute substantial evidence and not isolated events. The evi-
dence shows that employees were routinely granted emer-
gency vacations on the day the requests were made. I base
that finding on the record which shows that in every case
shown in the record (excepting of course the May 8 request
of Annette Strickland), the employees’ requests were granted
and on the unrebutted evidence that the Plant Manager told
former Foreman Billy Johnson that it was Respondent’s pol-
icy to reward its good employees by granting their requests
for immediate vacation time. I have specifically discredited
evidence showing that Respondent’s policy was other than
what was told to Billy Johnson by Plant Manager Malcolm
McDonald. Therefore, my findings are not based on isolated
events but on showing that it was Respondent’s policy to
grant emergency same day requests for time off and that Re-
spondent consistently followed that policy with the exception
of the case of Annette Strickland. I find that Strickland was
shown to have been denied her May 8 request for emergency
vacation time even though she was eligible for vacation time,
because of her protected activity of testifying against Re-
spondent in an NLRB hearing and that Respondent failed to
prove that Strickland would have been denied her request in
the absence of her protected activities.
Respondent also argued that to the extent there was dispar-
ity shown in the record, the employees that received more
favorable treatment were either union supporters or people
that testified in the prior unfair labor practice hearing. As to
that issue Respondent recognized itself that there was no evi-
dence showing other disciplinary action for its refusal to
grant immediate vacation time because there could be no dis-
cipline absent the employee being at or beyond 10 absentee
occurrences. That covers the difference between Annette
Strickland and other employees including Myrtle Temple and
Annette Fairley. Strickland was in a position of peril. She
was the only one shown to qualify under the policy enun-
ciated by Plant Manager McDonald, i.e., ‘‘we would take
care of the good employees, and people who were becoming
in peril with their absenteeism would be put on vacation days
when they called in.’’
Annette Strickland testified on April 25, 1991, that Super-
visor Jim Sanders had refused to discipline her former fore-
man, Luke Moody, after she told Sanders that Moody grant-
ed her time she did not work in the hope that she would
grant Moody sexual favors. Employee Sharon Holloway also
testified along the line of Strickland’s testimony. Other em-
ployees including Annette Fairley and Myrtle Temple testi-
fied in those proceedings as shown in Marshall Durbin Poul-
try Co., 310 NLRB 68 (1993). However, Strickland was the
only one shown to have specifically attacked actions of Su-
pervisor Jim Sanders at a time when she was in peril of dis-
charge. Thirteen days after her testimony Sanders was pre-
sented with an opportunity to take advantage of Strickland
being ‘‘in peril.’’
CONCLUSIONS OF LAW
1. Marshall Durbin Poultry Company is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. United Food and Commercial Workers International
Union, AFL–CIO is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent, by threatening its employees with dis-
charge because they testified in an NLRB hearing; by threat-
ening its employees that it is futile for them to select the
Union as their bargaining representative; by threatening its
employees with plant closure if they select the Union; and
by interrogating its employees about their union activities,
has engaged in conduct violative of Section 8(a)(1) of the
Act.
4. Respondent by discharging and refusing to rehire its
employee Annette Strickland because she gave testimony in
an NLRB proceeding, engaged in conduct violative of Sec-
tion 8(a)(1) and (4) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6), (7), and (8) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
As I have found that Respondent has illegally discharged
its employee in violation of sections of the Act, I shall order
Respondent to offer Annette Strickland immediate and full
reinstatement to her former position or, if that position no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges. I fur-
ther order Respondent to make Strickland whole for any loss
of earnings she suffered as a result of the discrimination
against her and that Respondent remove from its records any
reference to the unlawful discharge against its employee An-
nette Strickland and notify Annette Strickland in writing that
Respondent’s unlawful conduct will not be used as a basis
for further personnel action. Backpay shall be computed as
described in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as described in New Horizons for the Retarded,
283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Marshall Durbin Poultry Company, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge because they
testified in an NLRB hearing; threatening its employees with
122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 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.’’
futility and that it may close its plant if they select the Union
as their bargaining representative; and interrogating its em-
ployees about their union activities.
(b) Discharging its employees because of their protected
activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Annette Strickland immediate and full reinstate-
ment to her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her se-
niority or any other rights or privileges previously enjoyed,
and make Strickland whole for any loss of earnings plus in-
terest, she suffered by reason of its illegal actions.
(b) Rescind its discharge of Annette Strickland and re-
move from its files any reference to its discharge of Strick-
land and notify Annette Strickland in writing that this has
been done and that evidence of its unlawful actions will not
be used against her in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, and timecards, personnel
records, reports, and all other records necessary to analyze
the amount of backpay due under the terms of this Order.
(d) Post at its facility in Hattiesburg, Mississippi, copies
of the attached notice.4 Copies of the notice, on forms pro-
vided by the Regional Director for Region 15, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.