Whitfield Pickle Co.

National Labor Relations Board - Board Decisions

Jul 1, 1965

153 N.L.R.B. 1162 (N.L.R.B. 1965)

1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our members that:
WE WILL NOT cause or attempt to cause Armstrong Contracting & Supply
Corporation, or any other employer within our territorial jurisdiction, to dis-
criminate against employees or prospective employees in violation of Section
8(a)(3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees or prospective
employees of Armstrong Contracting & Supply Corporation, or any other
employer within our territorial jurisdiction, in the exercise of the rights guar-
anteed in Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(a)(3) of the Act.
WE WILL make whole Paul H. Galka for any loss of pay he may have suffered
as a result of our discriminatory action against him.
WE WILL notify, in writing, Armstrong Contracting & Supply Corporation,
that we have no objection to the hiring and employment of Paul H. Galka by
that Company.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named Union, or any other labor organization.
LOCAL 30, INTERNATIONAL ASSOCIATION OF HEAT AND FROST
INSULATORS AND ASBESTOS WORKERS, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York, Telephone
No. 842-2100.
Whitfield Pickle Company and United Bakery and Confectionery
Workers, Local 441, Retail, Wholesale & Department Store
Union , AFL-CIO. Case No. 15-CA-2555. Judy 1, 1965
DECISION AND ORDER
On April 30 , 1965, Trial Examiner Louis Libbin issued his Decision
in the above-entitled proceeding , finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action , as set forth in the attached Trial Examiner 's Decision.
Thereafter , the Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
153 NLRB No. 95.
WHITFIELD PICKLE COMPANY 1163
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire rec-
ord in this case, including the Trial Examiner's Decision and the
Respondent's exceptions and brief, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders
that the Respondent, Whitfield Pickle Company, Montgomery, Ala-
bama, its officers, agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order .2
' We find no merit in the Respondent ' s contention that the Trial Examiner 's credibility
findings are erroneous . As the clear preponderance of all the relevant evidence does not
demonstrate that the credibility findings are incorrect , we hereby adopt them Standard
Drywall Products, Inc., 91 NLRB 544, enfd. 188 F 2d 362 (C A 3).
2 The telephone number for Region 15, appearing at the bottom of the Appendix at-
tached to the Trial Examiner's Decision , is amended to read: Telephone No. 527-6391
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Upon charges filed on October 5, 1964, by United Bakery and Confectionery
Woikers, Local 441, Retail , Wholesale & Department Store Union , AFL-CIO,
herein called the Union, the General Counsel of the National Labor Relations Board,
by the Acting Regional Director for Region 15 (New Orleans , Louisiana ), issued his
complaint, dated December 17, 1964, against Whitfield Pickle Company, herein called
the Respondent . With respect to the unfair labor practices , the complaint alleges
that Respondent engaged in unfair labor practices within the meaning of Section
8(a)(1) and ( 3) and Section 2(6) and ( 7) of the National Labor Relations Act,
as amended , herein called the Act , by discharging employee Nonnia Bell on Septem-
ber 29, 1964 , because of her union membership and activities . In its duly filed
answer , Respondent admits the discharge but denies, generally , all unfair labor prac-
tice allegations.
Pursuant to notice , a hearing was held before Trial Examiner Louis Libbin at
Montgomery , Alabama, on February 15 and 16, 1965 . All parties were represented
at the hearing and were given full opportunity to be heard , to examine and cross-
examine witnesses , to introduce relevant evidence , and to file briefs . On March 11,
1965, the General Counsel and Respondent filed briefs which I have fully considered.
For the reasons hereinafter stated, I find that the Respondent violated Section 8(a) (1)
and (3 ) of the Act.
Upon the entire record I in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent Whitfield Pickle Company, an Alabama corporation, maintains its
principal office and plant in Montgomery, Alabama, where it is engaged in the
manufacture , sale, and distribution of pickles and pickle products . During the
12-month period preceding the issuance of the instant complaint , Respondent , shipped
products , valued in excess of $50,000, from its plant in Montgomery , Alabama, to
points located outside the State of Alabama.
1 I hereby note the obvious errors in the typewritten transcript of testimony
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the above admitted facts, I find, as Respondent concedes , that Respondent
is engaged in commerce within the meaning of Section 2 ( 6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the record shows , and I find, that United Bakery and Con-
fectionery Workers, Local 441, Retail , Wholesale & Department Store Union,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES 2
Self-organization among Respondent's employees began in early January 1964
On January 20, the Union sent Respondent a letter, informing it about the organiza-
tional campaign and listing five employees, including Nonnia Bell, as union solicitors.
Thereafter, Bell actively campaigned among her fellow employees in support of the
Union. On March 20, 1964, Bell acted as the union observer at a Board-conducted
election which resulted in the Union being certified as the employees' exclusive bar-
gaining representative . Nonnia Bell was elected president of the local union and
was on the negotiating committee and the employee grievance committee She
actively participated in the negotiation of a collective-bargaining agreement which
the parties executed on July 27. Bell was discharged on September 29, 1964.
The principal issue raised by the pleadings and litigated at this hearing is whether
the discharge of Nonnia Bell was discriminatorily motivated in violation of Section
8(a)(1) and (3) of the Act.
A. Background
The Respondent's conduct, following the Union's organizational campaign in
January 1964, has already been the basis of a prior unfair labor practice proceeding
before the Board. On March 5, 1965, the Board issued a Decision and Order in
which it affirmed the Trial Examiner and found that Respondent violated Section
8(a)(1), (3 ), and (4) of the Act (151 NLRB 430). More specifically, the Board
found that Respondent violated Section 8(a)(1) of the Act by (1) the conduct of
John Brown, a supervisor to the grading department, in interrogating employee
Marguerite Goodwin at her work station relative to her knowledge and participation
in union activities and in warning her to leave the Union alone if she wanted to
keep her job, (2) the conduct of L. B. Whitfield III, Respondent's assistant vice
president, on two occasions shortly before and after the election, in informing Nonnia
Bell that she was not permitted to discuss the Union with the employees or to solicit
for the Union during the employees' own time and that employees were not per-
mitted to distribute union literature in nonworking areas during nonworking time,
and (3) the further conduct of the said Whitfield in telling Nonnia Bell about 2 or
3 weeks after the election that while the Union might have won the election "we
haven't signed anything and don't intend to sign anything." The Board further found
that on February 21, 1964, Respondent violated Section 8(a)(3) of the Act by
discriminatorily discharging employee Marguerite Goodwin and that the reason
of excessive absences was advanced as a pretext to cloak the discriminatory motiva-
tion, and violated Section 8(a)(4) of the Act by refusing to reinstate her in March
because she had filed an unfair labor practice charge with the Board.
B. Nonnia Bell's union and concerted activhties,
Respondent's knowledge thereof
Nonnia Bell was employed by Respondent in the packing department since June
1958. In early January 1964 she was instrumental in having Union Representative
Parker contacted, and attended a meeting with him at the home of a fellow worker.
Thereafter, she took a leading part in the Union's organizational campaign and
actively solicited employee signatures to union authorization cards. By letter dated
January 20, 1964, Respondent was informed that she was one of the five employees
authorized to solicit on behalf of the Union
A few days before the election of March 20, Bell was in the combination ladies'
dressing-lunch room during lunch period. She got up and gave a union talk to the
employees, informing them that it would not be long before they had an election and
that she would appreciate it if they would all participate in the election. During her
talk, L. B. Whitfield III, Respondent's assistant vice president who was commonly
referred to as L. B. Whitfield or L. B., came into the dressing-lunch room and sat
9 Unless otherwise indicated , the factual findings are based on evidence and credited
testimony which is either admitted or undenied.
WHITFIELD PICKLE COMPANY 1163
down . When Bell finished talking and left the dressing -lunch room , L. B. Whitfield
told her that she had violated the law of private property by talking about the Union
on Respondent 's premises and warned her not to do it again.
Bell acted as the union observer at the election held on March 20, 1964, and won
by the Union. Shortly thereafter, L. B. Whitfield again warned Bell against talking
about the Union or distributing union literature at any time or place on company
premises.
Bell was elected president of the local union and was on the negotiating and griev-
ance committees She took an active and vocal part in the negotiations for a contract
which was executed by the parties on July 27. She also testified on behalf of the
Union in the prior unfair labor practice hearing held on July 7, 1964.
The Respondent conceded that it was aware of Bell's leadership in the Union, her
union activities, and the offices which she occupied.
C. The discharge of Nonnia Bell
Nonnia Bell was discharged on Tuesday, September 29, 1964, under the following
circumstances:
Her husband owned and operated a cafe in Montgomery. Because he worked late
on Sunday evenings , Mrs. Bell opened the cafe on Monday mornings about 5 a.m.
Her husband then came to the cafe about 7 a.m. and operated it the rest of the day.
Because there was no one at home to take care of their youngest daughter, who was
4 years old at the time of the instant hearing, he brought her to the cafe at 7 a in .
and Mrs. Bell then took her to the babysitter' s home and went to work at Respondent's
plant by 8 a.m.
On Monday morning, September 28, Mrs. Bell opened up the cafe at 5 a in as
usual. When her husband arrived with their daughter, the latter was sick and had a
"slight temperature." Mrs. Bell told her husband that she would stay home with her
daughter. She then called the dressing room at Respondent's plant and told employee
Eula Gray, who answered, to tell Forelady Daisy Wells that Nonnia would not be in
that day because her daughter was sick. Gray relayed this message to the forelady.
Later that day, Mr. Bell telephoned his home and requested Mrs. Bell to come down
and pick him up at the cafe. As there was no one at home to take care of her sick
daughter, who was feeling a little better, Mrs Bell took her daughter with her to
pick up her husband at the cafe. All three then left the cafe about 3 p.m. through
the front door, went to the parking lot, and drove home.
The following day, September 29, Bell went to work and found that her timecard
had been pulled. She went into the office and saw Superintendent Ribbik, Assistant
Vice President L. B Whitfield, and Vice President Herring there. Whitfield told Bell
to see Ball, who was Respondent's attorney and vice president. When Bell asked why
he wanted her to see Ball, Whitfield replied, "Well, I had rather not tell you. I had
rather for him to tell you."
Bell then went to see Attorney Ball at the latter's office. Ball told her, "I am going
to have to let you go " Bell asked for the ieason and what authority Ball had to dis-
charge her. Ball replied that he was the spokesman for the Company and that there
was "no specific thing" for which he was letting her go but that it was just so many
things." Ball then mentioned that she had been soliciting membership on their prop-
erty, that ever since the Union was in, she had tried to run the plant and `tried to
boss" them, that she was headstrong; and that she had worked at the cafe on Monday
Bell denied having worked at the cafe on Monday. Ball stated that he had witnesses
to prove it and that she had run out the back door She denied the accusation,
explaining that there was no back door. Ball concluded that she would be better of
if she would draw her unemployment insurance.
A few days later, at her request, she received from Ball a letter, which stated that
her employment with Respondent had been terminated on September 29, 1964, with-
out giving any reasons for the termination.
D. Respondent's asses ted reasons for the discharge
Joseph Alred, Respondent's secretary-treasurer and member of its negotiating com-
mittee, was the one who made the decision to discharge Nonnia Bell. When asked
by Respondent's counsel on direct examination why he discharged Bell, he testified
that "we discharged Mrs. Bell because of her absence without authority and her
actions in the plant ...." He further testified that after she returned to work "from
having presumably been off on duties of taking care of her brother," she reported the
following Monday "that she was out with a sick child, and we found that the same
situation existed that had existed before, that she was working in this cafe, then, I
decided that it was time we definitely made up our minds to do something about it";
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he "recognized that anything that we did in Mrs. Bell's case was most likely to
bring on an unfair labor charge"; and that he asked Ball, who was Respondent's vice
president and "handled our labor relations," to "consider the facts and if [he] thought
they were worthwhile that [he] go ahead and discharge her." On cross-examination
and further direct examination, he finally detailed Bell's alleged misconduct which he
claimed had previously been reported to him and which, he testified, he considered at
that time as constituting the reasons for her discharge This allegedly consisted of the
following:
1. Threatening employees while soliciting for the Union
This had reference to a report made to Superintendent Ribbik in January 1964,
shortly after Respondent had received the Union's letter listing Bell as one of the
solicitors. Ribbik called Bell into his office, and stated that he had received a report
that she had threatened bodily harm to employees in connection with signing union
cards. Bell denied having threatened anyone and asked Ribbik who had made that
accusation. Ribbik replied that he would rather not say, and warned that he would
fire her if he received another similar report. Ribbik testified that it was an oral
report, and that the report did not contain the name of the person who allegedly had
been threatened. Ribbik admittedly made no investigation into the validity or accu-
racy of the oral "report," but did make a written notation that Bell was warned against
threatening bodily harm to employees. There is no evidence that Bell did in fact
make such threats.
2. Verbal altercation with another employee while working
Prior to the election of March 20, Bell had a verbal altercation with an antiunion
employee, Winnie Luster, while they were on the packing line. Luster was the one.
however, who threatened Bell with bodily harm. Foreman Parrish warned each of
them to settle their personal differences off the premises on their own time, and
reported the incident to Ribbik, who gave them the same warning. The next day, Bell
apologized for the incident to Ribbik and promised that it would not happen again.
Luster, however, was not reprimanded for threatening Bell physically while on the
packing line. On the contrary, she was encouraged to carry out her threat by L. B.
Whitfield. Thus, one afternoon before the election L. B. Whitfield, Luster, and two
other employees were sitting in front of the dressing room on company premises when
Bell walked by. Luster asked Whitfield, "L B. can I beat the ... out of that ... going
yonder." and motioned to Bell Whitfield replied, "Yes, let her hit the first lick and
then you can beat her up." Luster was still employed by Respondent at the time of
the instant hearing.
3. Leaving her place on the packing line without permission
After the execution of the contract on July 27, there was an occasion when Acting
Forelady Henderson told employee Ruth Borsage that she was wanted in the office.
Not knowing why she was being summoned, Borsage told Bell that she would have to
accompany her. Bell asked Henderson what it was all about, and Henderson replied
that she did not know. Believing that a matter relating to the work was involved,
Bell felt that as a member of the grievance committee it was her duty to accompany
Borsage. She did so without obtaining permission from her foreman, John Brown.
It turned out that the reason why Borsage had been called to the office had nothing to
do with the work or the plant. The incident was immediately reported to Ribbik who
told Bell that she could be charged with insubordination for leaving her post without
permission. Bell apologized, explaining that she had accompanied Borsage because
she thought a grievance was involved and she was on the grievance committee. Bell
added that she had a lot to learn about the Union, that she had gone about it in the
wrong way, and that she would not do it that way again. Ribbik replied that he too
had a lot to learn about the Union. The next day Bell also apologized to Acting
Forelady Henderson.
4. Unauthorized absence from the plant
Bell was scheduled to take her 2 weeks' vacation with pay, commencing Monday,
August 10, 1964, and had received permission to take a third week without pay, as
provided in the union contract. On Wednesday, August 5, Bell was informed that her
brother was in the hospital as a result of a serious automobile accident. She informed
the plant of the accident and reported that she would not be in Thursday and Friday
before the commencement of her vacation because of her brother's injuries. During
her 3 weeks' vacation, Bell sat with her brother at the hospital and during the last
week stayed each night from 11 p.m. to 7 a.m., filling in as a nurse.
WHITFIELD PICKLE COMPANY 1167
At the end of her 3 weeks' vacation, her brother's condition was still critical and
she did not know if he would survive. At that time, she went to Ribbik's office, told
him about her brother's critical condition, and asked for a leave of absence until her
brother got better or until they could work something else out. She explained that
because she was sitting up with him all night at the hospital, she did not feel that she
could come in the next morning and give a full day's work. Bell asked for a month's
leave of absence. Ribbik replied that he would be more than glad to give it to her
but to keep in contact with the plant once a week and let them know when she might
be back to work.
Bell did contact the plant at least once a week by telephone and left messages with
her forelady, Daisy Wells, or with employees Eula Mae Gray and Rose Respass to
relay to the forelady, following the usual and established pi actice when an employee
is absent. Respondent's records show that on September 18, Forelady Wells was
informed that Bell would try to come to work the following Monday.
When Bell arrived at the plant on Monday morning, September 21, she could not
find her timecard and was told by the office secretary to get in touch with Frank
Whitfield. She telephoned Frank Whitfield, who informed her that her card was
missing because she had "quit." She replied, "That's crazy, Frank. You know I
haven't quit my job." Whitfield then told her to come to his office the next morning.
On Tuesday morning Bell arrived in Frank Whitfield's office. Secretary-Treasurer
Aired was also present. In response to Bell's query as to why her card had been
pulled, Aired stated, "Well, Nonnia, you have quit." She denied having quit and
explained that she had asked Ribbik and had been granted a leave of absence Alred
stated that he was informed that the leave of absence was "only a week." Bell replied
that Ribbik told her she could have a month but to keep in touch with them each
week, and offered to get a statement from the doctor or the night nurse to show that
she had been taking care of her brother during that period. Aired then told her to
call back later in the day and that in the meantime they would have a meeting on it.
When Bell called the plant later, she was mfoimed that she could return to work
if she got a statement from the doctor to the effect that she had been taking care of
her brother at night. The next afternoon she attended a grievance committee meeting
at the plant with Ribbik and Whitfield. She asked Ribbik if she could return to work
the following day. When, in response to his question, she stated that she had the
doctor's certificate, he told her to be sure to bring it. On Thursday morning, Septem-
ber 24, Bell gave the sealed doctor's statement to Ribbik, and asked if that was suffi-
cient. After reading the statement, Ribbik replied, "Yes, it was just fine." Bell then
punched her timecard and went to work.
The only respect in which the above findings are disputed relates to the leave of
absence granted by Superintendent Ribbik. He denied giving Bell a month's leave of
absence in addition to the 2 weeks' paid vacation and 1 week's vacation without pay.
He admitted that Bell asked for a month's leave of absence but testified that he told
her that "We could grant her I week leave of absence and take it on a week to week
basis and to notify [Ribbik] the Friday before whether she would be available to
work the following Monday." He further testified that he had instructed her to call
him personally and that since she had not contacted him personally, she was absent
without authorization beginning with the week of September 7
From my observation of the demeanor of the witnesses while testifying under oath,
Bell impressed me as a more credible witness. Moreover, the probabilities point
more strongly in favor of Bell's version. The strongest factor in that respect is
Respondent's admission that in Bell's case it did not follow its established practice of
sending a letter to an employee absent for an unexplained length of time, directing
the employees to report by a certain date or be discharged. Indeed, it is admitted
that no representative of Respondent made any attempt to contact Bell while she was
absent to determine when she would be returning All this would indicate Respond-
ent's awareness that Bell's absence was authorized. In addition, Ribbik himself
testified at one point that he might have told Bell that she could also check with
Forelady Wells. And the undisputed evidence shows that the established practice at
that time was for an absent employee to inform her supervisor either directly or
through another employee. Indeed, Forelady Wells herself admitted that "as long as
I am informed by 8 o'clock by somebody, I am satisfied." She further testified that
while she makes out an absentee record of the call, she does not make a record of all
calls. Ribbik admitted that the daily absentee reports made out by Forelady Wells
were handed to him, that he had talked to the forelady to see if she had heard any-
thing about Bell, and that he knew at the time that Bell would not be in. Upon con-
sideration of all the foregoing, I do not credit Ribbik's testimony to the extent that it
conflicts with that of Bell. I find that Ribbik had authorized Bell to take the leave of
absence which she had requested, that the only condition which he attached was that
she contact the plant once a week, and that Bell had complied with this condition by
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
following the customary and established practice. I find that Bell had 2 weeks' vaca-
tion with pay beginning August 10, 1 additional authorized week of vacation without
pay beginning August 24, and 3 weeks' authorized leave of absence without pay
beginning August 31.
5. Soliciting union membership in violation of the contract
Article HI of the collective-bargaining agreement executed by the parties on July 27,
1964, provides that "the Union and its members agree not to coerce or intimidate
any employee and not to solicit employees for membership in the Union on the
Employer's time or premises."
On the afternoon of the day before her return to work, Bell attended a grievance
committee meeting with Ribbik at the plant. After the meeting, she walked to her
car in the parking area which is part of Respondent's premises. Before driving off,
she saw and spoke to James Debardeleben, one of Respondent's employees in the
shipping department.
Assistant Vice President L. B. Whitfield testified that on that occasion, which was
about 3.30 or 4 p.m., he saw Bell talking to employee Debardeleben and hand him
"one of those little cards that you sign for membership to the Union." He reported
this incident to Aired. On cross-examination, Whitfield admitted that he was about
30 yards away at the time, that he could not see what was on the card or hear what
was said, that he could not say that he knew it was a card, and that he did not ask
Bell what she had handed to this employee or ever talk to her about this incident
The undisputed and credited testimony shows that Debardeleben was already a
union member at that time, having signed a union membership and authorization
card prior to the election, that after the execution of the contract, he was put on a
committee to collect union dues from Respondent's employees, and that on the occa-
sion in question Bell handed him a small receipt book which was used in the collec-
tion of dues.
I find that on the occasion in question Bell was not soliciting union membership
or engaging in any conduct in violation of the contract but that she was engaging
in a protected union and concerted activity not prohibited by the contract.
6. Speeding on Respondent's premises
Frank Whitfield testified that that same afternoon he observed Bell driving on the
premises at a speed which he estimated to be above the posted 10-mile limit and that
she also failed to stop at the stop sign. On September 25 Bell was asked to sign a
form letter, signed by Whitfield, informing her of the alleged violations and request-
ing observance of the posted signs in the future. She refused to sign and indicated
a desire to discuss the matter with Whitfield The speeding incident was then
reported to Aired.
Frank Whitfield admitted that he had seen other employees also exceed the posted
speed limit, and that some of them had almost had a serious accident and were repri-
manded, but that all of them were still working for Respondent. When Alred was
asked if a report was made to him every time an employee exceeded the 10-mile
speed limit, he answered in the negative and explained that "it was reported to me
about her (Bell) because this was a special case with us" and that they were keeping
real accurate records on her.
7. Working at husband's cafe while absent from work
During the period in September when Bell was on her authorized leave of absence,
as previously found, Frank Whitfield went to police headquarters on three occasions
and asked one of the plainclothes detectives to go by Bell's cafe to see if Mrs. Bell
was working there. He showed the detectives a picture of Mrs. Bell so that they
would be able to identify her, and waited at police headquarters for their return.
Detective Ward reported that "she wasn't working but she was standing there." Detec-
tives Shows and Arnette reported that they had been served by her. There is no
showing that she worked in the cafe continually instead of sitting up with her brother
all night, as she had claimed.
The General Counsel does not deny that Mrs. Bell may have helped her husband
occasionally in the cafe during that period. Mrs. Bell was not deceiving Respondent
by such conduct She had requested the leave of absence because she was sitting up
with her brother all night at the hospital and did not feel that she would be able to
WHITFIELD PICKLE COMPANY 1169
come in the next morning and give a full day's work. It is significant that neither
at the time when she first reported back for work after her leave of absence nor at
any subsequent time, did any representative of Respondent mention to her that she
had been seen working in her husband's cafe or accuse her of any improper conduct,
or false pretenses, or of having misled Respondent about attending her sick brother.
On the contrary, Alred and Ribbik were fully satisfied with the justification for her
absence when it was verified by the doctor's letter which she was required to obtain
prior to her returning to work.
As previously found, on Monday, September 28, she reported to employee Eula
Mae Gray that she would be unable to come to work that day because her small
daughter was sick. It is admitted that Gray relayed this message to Forelady Wells.
That afternoon, Frank Whitfield went to police headquarters and again asked Captain
Shows to go to the cafe to see if Mrs. Bell was there. Captain Shows testified that
he went down there and "just stuck my head in the door" and "saw her standing
behind the counter" but "did not see her doing any work or anything." He then went
back to police headquarters and reported what he had seen to Frank Whitfield. About
3 p.m. Frank Whitfield went to the restaurant and, according to his testimony, saw
her behind the counter through the glass window. He went in the restaurant, did
not see her or her husband there, went back to his car, and as he got in the car saw
Mr. and Mrs. Bell drive out from the rear parking lot. He admitted that a child
could have been with them in the car, although he did not see one.
There is no dispute that Mrs. Bell was at the cafe that afternoon. As previously
noted, she was called by her husband to come down to get him and had to take her
sick child with her. She credibly testified, without contradiction, that she and her
daughter waited there some time because her husband had trouble checking the
receipts for the day, and that she was wearing a pair of pants and a shirt which was
her customary attire for work at the plant and which she had put on that morning
when she had fully intended to go to work. She admitted seeing Frank Whitfield
when she left the cafe with her husband and child.
The foregoing facts demonstrate that there was a perfectly valid and innocent
explanation for her presence at the cafe, which was in no way inconsistent with or
contradictory to the reason she had given the plant for not being able to come in
that day. Had Respondent been interested in ascertaining the truth, it could readily
have done so by first asking her for an explanation. At least, it would then have been
in a position to evaluate whether she had in fact made any false representation.
Instead, without saying anything to her, Alred immediately asked Attorney Ball to
discharge Bell if he believed that they now had enough on her to sustain the discharge.
E. Concluding findings
Nonnia Bell was the leading, vocal, union advocate and supporter from the very
commencement of the union organizational campaign. She early incurred Respond-
ent's displeasure by pursuing her union activity during nonworking time on company
premises. After the Union won the election, she continued her forceful union lead-
ership in the office of president and as a member of the negotiating and grievance
committees in which she took an active part. Admittedly aware of Bell's union
activities and positions, Respondent resented her aggressiveness and zealousness in
carrying out what she regarded as her official functions. Thus, at the time of her
discharge, Attorney Ball accused her of trying to run the plant and "to boss them"
ever since the Union came in.
The record discloses no complaints by Respondent about Bell's work or her con-
duct during the 6 years of her employment prior to the union organizational cam-
paign. Dissatisfaction with her conduct arose only after the commencement of self-
organization at the plant. I am convinced that Respondent's resentment against
Bell's pursuit of her union functions finally generated an intent to find some alleged
misconduct which would give the appearance of being a sufficiently valid reason for
discharging her. To this end, it began checking up on her through the use of city-
employed plainclothes detectives and also to keep specific and accurate records on
her conduct. Presumably, Respondent did not believe that Bell's conduct in working
in her husband's cafe on a few occasions during the daytime, while she was on a
leave of absence to take care of her sick brother at night, would be regarded as a
valid ground for discharge under all the surrounding circumstances. For not only
did Respondent never accuse her of any improper conduct in this respect, but it
796-027-66-vol. 153-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
never even mentioned it to her. Instead, it was completely satisfied when she sub-
mitted the doctor's statement that she had been taking care of her sick brother at the
hospital at night, the reason which she had given for the requested leave of absence.
As for the sudden specific and accurate recordkeeping on all her conduct, Aired
admitted that in Bell 's case reports were made to him about matters which would
not have been reported about other employees because Bell "was a special case with
us." On Monday, September 28, when Bell telephoned the plant and asked employee
Eula Gray to inform Forelady Daisy Wells that Bell would not be in that day because
her small daughter was sick, her absence was immediately reported to Frank Whit-
field, who had Eula Gray sign a written report of the message she had received.
Whitfield then went to police headquarters and again had a detective check on
whether she was working at her husband's cafe. Although the detective and Whit-
field saw her in the cafe later in the day, neither one admittedly saw her working
there. However, this information was immediately reported to Aired. Without
making any effort to ascertain the true facts, which would have disclosed a perfectly
valid and innocent explanation for her presence in the cafe at that time, as previously
found, Aired immediately authorized Attorney Ball to discharge Bell if he thought
they now had enough grounds to support it. This was the first time that an employee
had ever been discharged by Attorney Ball.
The only reasons given directly to Bell at the time of her discharge was that she
had tried to run the plant and "boss them" ever since the Union came in, that she
had solicited union membership on company property, and that she had worked at
her husband's cafe on the preceding day. The alleged solicitation of union member-
ship on the premises had reference to the unverified report of Assistant Vice President
L. B. Whitfield when Bell was in the parking lot after a grievance committee meeting.
As previously found, Bell was not soliciting union membership at that time, a fact
which could have been readily ascertained by interviewing employee Debardeleben.
Nor, also as previously found, was there anything improper about her being in her
husband's cafe the preceding day, when she came to pick him up and brought her
sick child along. However, Respondent was not interested in ascertaining the true
facts but was only intent on seizing upon what might be regarded as a valid reason
for the discharge.
It was only at the hearing in the instant case that Respondent for the first time
advanced the other alleged misconduct as additional reasons for her discharge, pre-
sumably in an effort to strengthen its defense to the discharge. Thus, it now included
the fact that she had failed to observe the posted 10-mile speed limit on the premises
on the afternoon of the grievance committee meeting. Frank Whitfield admitted
that, while other employees had also been reprimanded for exceeding the posted limit,
in no other case had "speeding" been used as a reason for discharge. Aired admitted
that no report is made to him every time an employee exceeds the speed limit, but
that the reason it was reported to him in Bell's case was because Bell "was a special
case with us" and they were keeping real accurate records on her. Respondent also
claimed that Bell had taken 2 weeks of unauthorized leave when her brother was ill
in the hospital and that she had worked in her husband's cafe during that period.
But it failed to follow the established company procedures in the case of an employee
absent for an unexplained length of time, nor did it regard her work in the cafe as
being so improper as to warrant even mentioning it to her at any time. Respondent's
conduct in these respects is fully explained by the fact that, as I have previously
found, her leave had in fact been authorized and her occasional short periods in the
cafe were neither improper nor inconsistent with the reasons advanced by her for
the requested leave of absence, as Respondent well knew. In any event, the whole
matter was concluded to Respondent's satisfaction when it accepted the doctor's
statement which it regarded as "just fine," as previously detailed.
To serve as an additional ground for the discharge, Respondent went to the extent
of resurrecting an incident in July which at that time was considered a closed matter.
This had reference to Bell, in her capacity of a member of the grievance committee,
leaving the packing line without permission to accompany an employee to the office
on what was in good faith believed to be a grievance. As soon as Bell learned that
no grievance was involved, she apologized to Superintendent Ribbik and promised
not to go about it in that way again. At that time, Bell and Ribbik agreed that they
both had a lot to learn about the Union. There was no showing or claim that Bell
had not kept her promise in this respect. Indeed, the pretextuous nature of the rea-
sons asserted by Respondent is strongly emphasized by the fact that it even deemed
it necessary to reach back to January and March 1964 for two additional incidents
in an effort to bolster its defense to Bell's discharge. The first incident had reference
to the unverified oral report that Bell had physically threatened an employee while
WHITFIELD PICKLE COMPANY 1171
soliciting, an accusation which Bell vigorously denied at the time. The other inci-
dent had reference to a personal verbal altercation on the packing line between Bell
and antiunion employee Luster, who was still in Respondent's employ at the time of
the instant hearing. As to the latter incident Bell, but not Luster, later apologized
to Superintendent Ribbik for any improper conduct in which she might have engaged.
In contrast to Respondent's conduct in reprimanding Bell on the basis of a mere
unverified report in the first incident, not only was antiunion employee Luster not
reprimanded for having threatened Bell with bodily harm in the second incident, but
was in fact later encouraged by Assistant Vice President Whitfield to carry out her
threat, as previously found. This disparate treatment further demonstrates Respond-
ent's animosity to Bell.
Considering all the foregoing in the light of Respondent's other unfair labor prac-
tices found by the Board to have occurred during the same organizational campaign,
I am convinced and find that the reasons advanced by Respondent for the discharge
of Bell were pretexts and, in some instances, also afterthoughts, and that Bell's dis-
charge was discriminatorily motivated in violation of Section 8(a)(3) and (1) of
the Act.3 Moreover, to the extent that Bell's conduct in handing employee Debarde-
leben a union receipt book to be used in the collection of union dues was a substan-
tial reason for the discharge, Respondent violated Section 8 (a) (1) of the Act on that
ground alone, despite the fact that other reasons may also have existed .4 As Bell was
in fact engaging in a protected concerted activity at the time, as previously found,
it is not a valid defense that Respondent may have in good faith believed that she
was soliciting union membership in violation of the contract .5
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I will
recommend that it cease and desist therefrom and take certain affirmative action which
will effectuate the policies of the Act.
Having found that Respondent violated the Act by discharging Nonnia Bell on
September 29, 1964, I will recommend that Respondent offer her immediate and full
reinstatement to her former or substantially equivalent position, without prejudice to
her seniority or other rights and privileges, and make her whole for any loss of earn-
ings she may have suffered as a result of the discrimination against her, by payment
to her of a sum of money equal to that which she normally would have earned as
wages from September 29, 1964, to the date of Respondent's offer of reinstatement,
less her net earnings during such period, with backpay and interest thereon to be
computed in the manner prescribed by the Board in F. W. Woolworth Company,
90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.
Because of the character and scope of the unfair labor practices herein found, and
the fact that the Board has on a prior occasion found that Respondent violated Sec-
tion 8(a) (1), (3), and (4) of the Act, I will recommend that, in order to effectuate
the policies of the Act, Respondent cease and desist from in any other manner inter-
fering with, restraining, and coercing employees in the exercise of their rights guar-
anteed by Section 7 of the Act .6
8 There is no merit to Respondent's contention that such a finding is not warranted
because, after Bell filed the instant unfair labor practice charge, Respondent was willing
to reinstate her without backpay If she would sign a written statement conceding that
she had been discharged for cause. It was clearly to Respondent's interest to make such
a settlement and thereby avoid the instant hearing and the risk of adverse findings and
a backpay order. Thus, Aired admitted that "if she had signed the statement, we wouldn't
be here today . . . because the charge would be dropped." Indeed, Respondent's conten-
tion Is completely refuted by its conduct in refusing to reinstate Bell, when she agreed
to forfeit any backpay but refused to sign the written statement.
4N.L.R.B. v. Whitin Machine Works, 204 F. 2d 883, 885 (C.A.) ; and The Catholic
Press Society, Inc., 151 NLRB 1181 (footnote 2).
5 N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21.
6 N.L R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 , 536 (C.A. 4).
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. United Bakery and Confectionery Workers, Local 441, Retail , Wholesale &
Department Store Union , AFL-CIO , is a labor organization within the meaning of
Section 2(5) of the Act.
2. By discriminating with respect to the hire and tenure of employment of Nonnia
Bell, thereby discouraging membership in the above -named labor organization, the
Respondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a) (1) and ( 3) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
RECOMMENDED ORDER
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , I hereby recommend that Respondent , Whitfield
Pickle Company, its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf of , United Bakery and
Confectionery Workers, Local 441, Retail , Wholesale & Department Store Union,
AFL-CIO, or any other labor organization , by discriminatorily discharging or refus-
ing to reinstate employees , or by discriminating against them in any other manner
in regard to their hire and tenure of employment or any term or condition of
employment.
(b) In any other manner interfering with, restraining , or coercing employees in
the exercise of their right to self-organization , to form, join, or assist the above-named
or any other labor organization , to bargain collectively through representatives of
their own choosing , to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain from any or all such
activities.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act:
(a) Offer to Nonnia Bell immediate and full reinstatement to her former or sub-
stantially equivalent position , without prejudice to her seniority or other rights and
privileges , and make her whole for any loss of earnings she may have suffered as a
result of the discrimination practiced against her, in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and , upon request , make available to the Board and its agents, for
examination and copying , all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine
the amount due as backpay.
(c) Notify the above-named employee if presently serving in the Armed Forces
of the United States of her right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act
of 1948, as amended, after discharge from the Armed Forces.
(d) Post at its plant in Montgomery , Alabama, copies of the attached notice
marked "Appendix ." 7 Copies of said notice , to be furnished by the Regional Direc-
tor for Region 15 (New Orleans , Louisiana ), shall, after being duly signed by author-
ized representatives of the Respondent , be posted by Respondent immediately upon
receipt thereof , and be maintained by it for a period of 60 consecutive days there-
after, in conspicuous places, including all places where notices to employees are cus-
tomarily posted . Reasonable steps shall be taken by said Respondent to insure that
said notices are not altered , defaced, or covered by any other material.
(e) Notify the said Regional Director , in writing, within 20 days from the date of
this Decision and Recommended Order, what steps the Respondent has taken to com-
ply therewith.8
7 In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board ' s Order is enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
'In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 11 1173
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in, or activities on behalf of, United
Bakery and Confectionery Workers, Local 441, Retail, Wholesale & Department
Store Union, AFL-CIO, or in any other labor organization, by discriminatorily
discharging or refusing to reinstate employees, or by discrimination against them
in any other manner in regard to their hire and tenure of employment or any
term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities.
WE WILL offer to Nonnia Bell immediate and full reinstatement to her former
or substantially equivalent position, without prejudice to her seniority or other
rights and privileges, and will make her whole for any loss of earnings suffered
as a result of the discrimination against her.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named or any other labor organization.
NOTE.-In the event the above-named employee is presently serving in the Armed
Forces of the United States we will notify him of his right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed Forces.
WHITFIELD PICKLE COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, T6024
Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, Telephone
No. 529-2411, Extension 6396, if they have any questions concerning this notice or
compliance with its provisions.
International Brotherhood of Electrical Workers, Local 11, AFL-
CIO;1 Building Trades Council of Long Beach, AFL-CIO'
(T. A. Thornburgh Co.; 3 Ben J. Hughes, Inc:) and John Berry.
Case No. fd1-CB-9318. July 1, 1965
DECISION AND ORDER
On February 9,1965, Trial Examiner Eugene K. Kennedy issued his
Decision in the above-entitled proceeding, finding that Respondents
had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take cer-
1 Hereinafter also referred to as IBEW.
2 Hereinafter also referred to as BTC.
S Hereinafter also referred to as Thornburgh.
Hereinafter also referred to as Hughes.
153 NLRB No. 67.