Bagley Produce, Inc.

National Labor Relations Board - Board Decisions

Dec 28, 1973

208 N.L.R.B. 20 (N.L.R.B. 1973)

20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bagley Produce, Inc. and Freedom Through Equality,
Inc. Case 30-CA-2252
December 28, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On August 22, 1973, Administrative Law Judge
Fannie M. Boyls issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Secti,-,n 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order as herein modified.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that Respondent,
Bagley Produce, Inc., Milwaukee, Wisconsin, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order as so
modified.
1. Delete from paragraph 1(a) the words "includ-
ing union activities."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I We find it unnecessary to reach the question whether Respondent
violated Sec 8(a)(3) of the Act in view of the substantial evidence that
Respondent violated Sec 8(a)(1) and the sufficiency of the Remedy
Therefore, we have amended the Order and the notice tc conform with the
above
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge , refuse to reinstate, or
otherwise discriminate against any of our employ-
ees because they have engaged in protected
concerted activities for their mutual aid and
protection.
WE WILL NOT in any other manner interfere
with , restrain , or coerce our employees in the
exercise of their rights guaranteed under Section 7
of the National Labor Relations Act.
WE WILL offer to each of the employees listed
below immediate and full reinstatement to the job
she held immediately before February 7, 1973, or,
if the job no longer exists, to a substantially
equivalent position, without prejudice to her
seniority and other rights and privileges, and WE
WILL make each whole for any loss of earnings she
may have suffered as a result of her discharge,
plus 6-percent interest:
Lena Roby Marilyn Wesley
Ollie McDowell Vergie Dennis
Ethel Jones Virgie Jeanes
Maria Hall Cora Tatum
Barbara Harrison
BAGLEY PRODUCE, INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Commerce Building, Second Floor,
744 North Fourth Street, Milwaukee, Wisconsin
53202, Telephone 414-224-3861.
DECISION
STATEMENT OF THE CASE
FANNIE M. BOYLS, Administrative Law Judge: This case,
initiated by a charge and amended charge filed respectively
on March 1 and April 24, 1973, and a complaint issued on
April 26, 1973, was tried before me in Milwaukee,
Wisconsin, on June 6, 7, and 8, 1973. The complaint alleges
and Respondent's answer denies that Respondent had
violated Section 8(a)(3) and (1) of the Act by discharging
10 employees because they engaged in protected concerted
activities and/or because they engaged in activities on
behalf of Teamsters "General" Local No. 200, affiliated
with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America. At the
conclusion of the hearing counsel for the General Counsel
and for Respondent argued orally upon the record.
Thereafter Respondent also filed a bnef.
Upon the entire record in this case, from my observation
of the demeanor of the witnesses, and after a careful
consideration of Respondent's bnef, I make the following:
208 NLRB No. 13
BAGLEY PRODUCE, INC. 21
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent is a Wisconsin corporation engaged at
Milwaukee, Wisconsin, in the processing and precooking
of poultry. During the calendar year 1972, which is a
representative year, Respondent purchased goods valued
in excess of $50,000 in interstate commerce, directly from
points outside Wisconsin. Upon the basis of these admitted
facts, I find that Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters "General" Local No. 200, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called the
Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Statement and Issues
The nine employees here involved, who walked out of
Respondent's plant on February 7, 1973, following an
unsuccessful attempt to get immediate wage increases,'
and one other employee, Cora Tatum, who joined the
group later were not represented by a labor organization at
the time of their walkout but thereafter on the same
morning signed cards for Teamsters Local 200. The
General Counsel contends that their discharge in the
afternoon of the same day was in violation of Section
8(a)(1) of the Act because it interferred with, restrained,
and coerced the employees in the exercise of their rights
protected under Section 7 of the Act to engage in
concerted action for their mutual aid and protection and
that the discharges were additionally in violation of Section
8(a)(3) of the Act because they constituted discrimination
in employment to discourage membership in the Union.
Respondent defends its discharge of the employees by
asserting that the employee's action in walking out was
individual, not concerted, action, that it was not protected
concerted activity and that Respondent properly dis-
charged nine of the employees for walking off their jobs
and refusing to work that day and the other employee
because of excessive absenteeism and her refusal to work
on February 7.
Respondent also asserts that the complaint should be
dismissed because the party filing the charges was not
shown to have had any interest in the proceeding or any
right to initiate this proceeding.
B. The Procedural Issue
Following their discharge the employees here involved
went to the National Association for the Advancement of
Colored People (NAACP) for advice. They were referred
by that organization to an attorney, Nelson G. Alston, staff
attorney for an organization called Freedom Through
Equality, Inc. After interviewing the employees, Alston
referred them to one of the attorneys for the National
Labor Relations Board and filed a charge and an amended
charge in their behalf as staff counsel for Freedom
Through Equality, Inc.
Respondent's contention, reasserted in its brief, that the
Charging Party was not qualified to file a charge was
rejected at the commencement of the hearing and the
ruling then made is now reaffirmed. Respondent's objec-
tion is completely answered by the ruling of the Supreme
Court in N. L. R. B. v. Indiana & Michigan Electric Company,
318 U.S. 9, 17-18 (1943), wherein it stated:
The Act requires a charge before the Board may
issue a complaint, but omits any requirement that the
charge be filed by a labor organization or an employee.
In the legislative hearings Senator Wagner, sponsor of
the Bill, strongly objected to a limitation on the classes
of persons who could lodge complaints with the Board.
He said it often was not prudent for the workman
himself to make a complaint against his employer, and
that strangers to the labor contract were therefore
permitted to make the charge. The charge is not a
proof. It merely sets in motion the machinery of an
inquiry. When a Board complaint issues, the question is
only the truth of its accusations . The charge does not
even serve the purpose of a pleading.
C. The Subsidiary Facts
Respondent is a family owned corporation run by
Andrew Loehndorf, the president, and his two sons, James
Loehndorf, the vice president and treasurer, and Richard
Loehndorf, the secretary, with the assistance of Donald
Ledrowski, the comptroller and office manager, and three
supervisors over the cooking , sizing, and cutting rooms,
respectively. Richard, usually called Dick or Dickie
Loehndorf, is the plant manager and in general control of
the day-to-day operations and the hiring of personnel.
Respondent's business consists of the precooking and
processing of iced chickens which are delivered to it in
truckloads. It employs about 65 production, maintenance,
and truckdriving employees. About 40 employees are
employed in the cutting operations. Cutting is done with
knives, with machines, and with saws. Ten women, the
employees here involved, worked on the saw cutting line,
the most difficult and highest paid operation performed by
the women employees.
It has been Respondent's policy, according to Plant
Manager Loehndorf, to review wages and grant increases
after the first of the year-usually between mid-January
and the last week in February. A general 4-percent wage
increase had been given to all the employees on February
26, 1972. Prior to February 1973 several of the cutters had
inquired of Plant Manager Loehndorf about an increase in
their pay. In November 1972, one of them, Barbara
Harrison, told Loehndorf that she had increased her
production from 60 to 80 boxes a day and thought it was
time she got a raise. He told her to wait because "at the
beginning of the year," everyone would get a raise . Also in
I Lena Roby, Ollie McDowell, Ethel Jones, Maria Hall, Barbara (Vigie Jeanes' first name is incorrectly spelled "Vergie" in the complaint )
Harrison , Marilyn Wesley, Vergie Dennis, Vigie Jeanes, and Hilda Cruz
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November two other cutters, Ollie McDowell and Ethel
Jones, asked Loehndorf when they were going to get a
raise. He responded that they would get a raise when they
cut more boxes of chickens. They returned sometime in
January and Jones told Loehndorf that she was cutting
more boxes and wanted a raise. He told McDowell and
Jones that he had always been fair to them and would give
them a raise but did not say when.
When by February 6 no raise was forthcoming, several
of the cutters during their 2:30 p.m. break period decided
to meet after work that day at a tavern next door to the
plant for the purpose of making plans to seek raises. Six of
them met at the tavern dust after 3:30 p.m., their quitting
time , for that purpose.z They decided that they would meet
in the plant lunchroom the next morning about 15 minutes
before their 7 a.m. starting time and ask Richard
Loehndorf for a 15-cent raise in pay and that they would
not settle for less than a 10-cent increase. It was also agreed
that Barbara Harrison would do the talking for the group.
As had been agreed upon, the cutters gathered in the
plant lunchroom before 7 a.m. on February 7 for the
purpose of making their demand for wage increases. About
7 a.m., Harrison requested the cutting room supervisor,
Mike Colon, to notify Richard Loehndorf that they wanted
to talk to him. Loehndorf arrived shortly thereafter and
asked what their problem was. Harrison responded that the
cutters wanted a 15-cent raise in their pay. There is some
conflict in the testimony as to exactly what was said
thereafter and in what sequence. I doubt that any one
witness was fully accurate in relating all the details and
some clearly had better memories than others. However,
after a careful analysis of all the testimony, and upon a
preponderance of the credible evidence, I find that the
following is a substantially accurate summary of what then
transpired. Loehndorf assured the cutters that they would
get a raise within the next few weeks but that he could not
give them one without first talking the matter over with his
father and brother. He stated also that he was too busy
working on a machine to talk to them about a raise at that
time and, requested them to punch in and go to work.
Harrison expressed the view that since Loehndorf had the
authority to hire and fire them and give them days off, he
should also have the authority to attempt to give them a
raise. She stated that the cutters wanted to know about the
raise that day and that they would not work unless they
were assured of a raise. Loehndorf told the group that if
they did not have enough faith and trust in him to let him
talk the matter over with his father and his brother first
they could just take the day off.
As the cutters started making preparations to leave the
plant, Loehndorf called Harrison to his office. She, in turn,
requested the other cutters to accompany her and learn
"from the horse's mouth" what Loehndorf had to say.
Loehndorf told the cutters that he had been lenient and
fair with them in the past and he did not understand why
they wanted to put him in the position he was in by taking
the action they were about to take. He told them that he
had been putting in 100 hours a week on the machine he
2 Barbara Harrison, Ollie McDowell, Vergie Dennis, Lena Roby, Ethel
Jones, and Maria Hall
3 The tavern served food as well as alcoholic and nonalcoholic
was then working on and that he was tired and had not had
time to sit down and talk to his father and brother about a
raise but that he would do so. Harrison told him that she
expected an answer before the day was over. McDowell
asked if the cutters could sit in the lunchroom and wait
until his father and brother arrived. Loehndorf said "no."
He told them that if they were not going to work, or if they
did not trust him to be fair with them, they should "just
take the day off."
Seizing upon the latter statement as a purported
direction, the cutters in a gay mood started leaving the
plant. Office Manager Ledrowski observed them laughing
and joking. He heard Harrison say, "They gave us the day
off" and others said, "We've got the day off-let's go." As
they were leaving, one of them, Jones, told some of the
others, "When I get back in the morning ... I bet you I
have a raise ." The others responded, "We'll wait and see."
All of the saw cutters who left the plant that morning
except Hilda Cruz adjourned to the tavern next door.
While at the tavern they decided to try to obtain the
assistance of a labor organization and made-an appoint-
ment to see someone at the office of Teamsters Local 200.
Since Harrison was the only cutter who had a car available
for transportation and all could not ride in her car, another
cutter, Ollie McDowell, telephoned Cora Tatum, a cutter
to whom McDowell had loaned her car that day in order to
enable Tatum to keep an appointment with her doctor, and
requested Tatum to bring the car to the tavern. Tatum did
so and accompanied the other cutters to the union office.
There they were told that the Union could not help them
unless over 50 percent of the employees signed union
authorization cards. They then took a stack of cards with
them and arrived back at the tavern about 11 a.m. There
each of them signed a card. They also obtained signatures
on cards from some of the other employees who ate lunch
at the tavern during their 11:15 a.m. lunchbreak.3 In
addition, one employee identified only as "Willie" took a
few cards back to the plant with him in order to get them
signed by several of the Puerto Rican women who did not
speak English and seldom came to the tavern. He returned
some signed cards to Harrison about 11:30 a.m. and she
placed them with a stack of other signed cards on the bar.
Among those who came to the tavern and sat at the bar at
the 11:15 lunchbreak were Mike Colon, supervisor of the
cutting room, where the cutters here involved worked, and
Don Miller, supervisor of the sizing room. Harrison asked
Colon how many employees worked at the plant, but did
not explain the reason for her question. He replied that
there were about 30 or 35.4 At that time Harrison had
about 23 signed union cards in her possession and she told
the other cutters that they had enough cards signed. She
called the union hall and made an appointment for 2 p.m.
She drove some of the cutters home but returned to the
tavern in time to talk to any employees who might come to
the tavern at the 12:30 lunchbreak. None came at that
time.
In the meantime, during the morning of February 7, after
Andrew Loehndorf and his son James arrived at the plant,
beverages Some of the employees had breakfast as well as lunch there
4 This was apparently the approximate number of employees in the
cutting department at that time
BAGLEY PRODUCE, INC.
several meetings were held by them with Richard Loehn-
dorf and the office manager, Ledrowski, to discuss the
walkout and raises for the employees. It was decided
during the morning that raises would be granted to all the
employees, including the cutters who had walked out, but
the amount of the raises-which it was finally decided
would be 10 cents an hour-was not determined until
about 12:30 p.m. that day.5 This decision was announced
to all the employees later that day.
Having learned from Supervisor Colon that the cutters
were at the tavern during his luncheon period, Andrew
Loehndorf, Respondent's president, about 1 p.m., called
the tavern and asked if any of the girls were there. He was
told that Barbara Harrison was there and she was then
called to the telephone. According to Harrison's credited
testimony, corroborated by Richard Loehndorf's initial
account when testifying under Rule 43(b) in response to
the General Counsel's questions, Andrew Loehndorf told
her that he wanted to talk to the girls, but that since she
was the only one there he would like to talk with her. He
asked if she would come to the plant. She replied that she
was waiting for Ollie McDowell, whom she was expecting
in 15 minutes or a half hour, and asked if he could wait
until McDowell arrived. He said "All right." When
McDowell did not arrive within a half hour, Harrison
called Andrew Loehndorf back, informed him of this fact,
and asked if he could wait a few minutes longer. He replied
that if she could not come "right away" she should forget
it. She then told him she would bethere in a few minutes.6
Harrison thereupon telephoned McDowell and told the
latter what Andrew Loehndorf had said to her. McDowell,
having loaned her car to Cora Tatum for an appointment
with her doctor, could not come to the tavern and advised
Harrison to see Loehndorf alone. Either before or after
calling McDowell, Harrison also called employee Dennis
about Andrew Loehndorf's request to talk to her. Dennis
advised her not to go alone. McDowell had already
5 The above findings in this paragraph are based on the testimony of
Richard Loehndorf given in response to questions by the General Counsel
when examining him at the commencement of the hearing. Thus, Loehndorf
was questioned and answered as follows
Q.
A
Did you discuss it [the raise ] in the mornmg7
Well, we had a few words about the girls getting a raise, yes
r t s « s
Q What was the figure?
A I would say the final figure came about 12:30, around there
Q.
plant?
A
Q.
A.
Q.
A.
Q.
A.
t * s s s
And, the raise would be effective for all the employees in the
Yes.
Including the cutters?
Yes.
Including the cutters who walked out that day?
Yes
And, the raise would have been how much?
Well, we decided to give the plant a 10-cent per hour raise.
I do not credit later inconsistent and contradictory testimony given by
Richard Loehndorf and by Office Manager Ledrowski.
6 Andrew Loehndorf did not testify. Donald Ledrowski, Respondent's
office manager, who says he listened to the conversation over an extension
telephone in his office, testified that Andrew Loehndorf told Harrison over
the telephone that he wanted her to come back to work-this apparently in
support of a theory, which developed as the hearing progressed, that the
cutters were fired because they refused to come back to work when called
23
telephoned another cutter, Jones, and asked her to go with
Harrison to see Andrew Loehndorf, but Jones had no
means of transportation and could not go. Harrison finally
went to the plant alone but did not arrive until about 3
p.m. When she walked into the office where Richard and
Andrew Loehndorf and Don Ledrowski were waiting, she
asked "What did you want?" Richard Loehndorf replied
that telegrams were in the process of being sent to all the
cutters informing them that they were being dismissed for
having walked off their job.7
Harrison then returned to the tavern and telephoned the
other cutters about what had happened. She suggested that
they all report to the plant at 6:45 the following morning to
inquire as to why they were fired when they were told they
could take the day off. Most of them did report to the plant
at that time. Richard Loehndorf denied telling them to
take the day off. Cora Tatum asked why she was fired
when she had been out sick the day before. Loehndorf
replied that he had heard she was with the other girls at the
tavern on the day before and had therefore concluded that
she "was in with them" and so "must go, too." 8
One of the 10 cutters, Hilda Cruz, was reinstated on
Friday, February 9. She telephoned her supervisor, Colon,
on the night of February 7, after receiving the discharge
telegram, and explained to him that she had walked out,
after punching in that morning, because she had been told
by the other cutters that there was no work to be done. She
told Richard Loehndorf the same thing on Friday. He
believed her and put her back to work. She had not come
back to the plant on February 8 because of illness.
D. Analysis and Conclusions
The complaint alleges that Respondent discharged the
cutters "because they engaged in protected, concerted
activities, and/or because of their activities on behalf of
and that Harrison appeared to have been drinking alcoholic beverages (a
charge denied by Harrison) and that she was in no condition to work when
she finally came to the plant. Ledrowski impressed me as being overly
anxious, in this as well as other aspects of his testimony, to support any
theory which, in his view, might help Respondent's case. Richard Loehndorf
indicated in response to questions by the General Counsel when called
under Rule 43(b), that his father asked Harrison "to come over to talk to us
. Just to come over to talk, and see if we can talk about what
happened." He explained, "We were going to tell them that we were going
to give them a raise " He later changed his testimony by asserting that his
father asked Harrison "to come on back to work " I find Harrison a far
more credible witness than either Ledrowski or Richard Loehndorf and
credit her testimony, supported by Richard Loehndorf's initial testimony,
rather than his later testimony and Ledrowski's regarding what was said
during the telephone conversations between Andrew Loehndorf and
Harrison.
7 All the cutters were sent identically worded telegrams that afternoon
stating
You are hereby notified that you are dismissed from the employment of
Bagley Produce, Inc, because of refusal to work at 7 a.m on
Wednesday, February 7th. 1973 Your checks will be ready between
12:30 and 1.30 p.m. on Thursday, February 8th, 1973
8 The findings in the above paragraph are based on the credited
testimony of Harrison and Tatum. Supervisor Mike Colon had reported to
Loehndorf after lunch on the day before that he saw Tatum in the tavern
with the other cutters Tatum, as already noted, had in fact come to the
tavern to deliver the car which McDowell had loaned her to meet a 1 p.m
doctor's appointment that day, and she accompanied the cutters to the
union office then returned with them to the tavern before leaving with
McDowell's car
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union," in violation of Section 8(a)(1) and (3) of the
Act.
There is persuasive evidence in the record that Respon-
dent discharged the employees, in substantial part, because
it learned, between the time Andrew Loehndorf called the
tavern and talked to Harrison and the time she arrived at
the plant, that the cutters had signed union cards. To be
sure, there is no direct evidence that Respondent's officials
knew prior to discharging the employees that they had
engaged in union activities, and the two who testified
denied that they had such knowledge, but there is strong
circumstantial evidence to support this conclusion. Harri-
son and the other cutters signed their union cards at the
tavern and obtained signatures of a number of other
employees who came there for lunch about 11:15 a.m. One
of the employees who came to the tavern for lunch,
identified only as Willie, was asked by Harrison to take
some cards to the plant and have them signed by some of
the Puerto Rican employees who did not normally eat at
the tavern. He did so and return the signed cards to
Harrison during his luncheon period. She placed them on
the stack of other cards on the bar where she was sitting.
Among those who came to the tavern for lunch during the
11: 15 luncheon break were Don Miller, supervisor over the
sizing room, and Mike Colon, supervisor over employees of
the cutting room including the cutters who were then in the
tavern. Harrison, observing him at the other end of the bar
from where she was sitting, approached him and ascer-
tained from him his estimate of the number of employees
working at the plant. She then announced to some of the
other cutters, "We have enough cards now." At that time
she had about 23 signed cards. There is no evidence that
Colon was in hearing range of Harrison's remark about
having enough cards or that he actually saw any union
cards.9 Moreover, Harrison had cautioned "Willie" not to
let any of the "office people" see him distributing the cards
she gave him. Nevertheless, with as many as about 23 cards
being signed in so short a period of time and with two of
Respondent's supervisors present at the tavern when some
of them were being signed, it would be suprising if this did
not come to the attention of one of Respondent's officials
at some time during the afternoon.
Strongly supporting an inference that Respondent did
learn of the union activities and was motivated, at least in
part, by that fact in discharging the, cutters is the
circumstance that management representatives, despite the
expressed reluctance of Richard Loehndorf to take them
back, decided about 12:30 p.m. on February 7, to grant
raises to all plant employees, including the cutters who had
walked out, and Andrew Loehndorf, about 1 p.m., called
the tavern for the purpose of having the cutters who might
be there come back to the plant and talk over the 10-cent
raise Respondent was willing to give them, then suddenly
changed his mind before Harrison arrived. Since the
9 Colon was called as a witness by the General Counsel, who sought to
interrogate him under Rule 43(b) When I ruled that Colon had not been
qualified as a Rule 43(b) witness, only a few questions were asked him
Colon testified that when he returned to the plant he told Richard
Loehndorf only that the cutters, including Cora Tatum, were at the tavern
and in response to Loehndorf's question as to whether they were drinking he
replied that there were glasses in front of them. Richard Loehndorf testified
that, in addition to Colon, one of the employees whom he could not identify
cutters had requested a 15-cent raise, Respondent could
not, of course, know whether they would accept a 10-cent
raise and return to work on that basis. It is reasonable to
assume that Respondent's representatives intended to try
to persuade them to accept the latter amount and return to
work. Why, then, did Respondent's officials change their
minds during the afternoon about seeking to induce the
employees to come back at a 10-cent increase in pay? Why,
prior to Harrison's arrival, were telegrams being prepared
and transmitted, telling the cutters that they were being
dismissed for "refusal to work" that morning? Why did
Respondent's officials give contradictory and inconsistent
explanations at the hearing as to the reasons for terminat-
ing the cutters, such as: because they refused to work that
morning; because they refused to come back to work when
called (although no attempt was made to reach other
employees when it was learned that only Harrison was at
the tavern); and because Harrison, when she finally arrived
at the plant about 3 p.m. (while the discharge telegrams
were already being transmitted) had liquor on her breath
and was in no condition to work between then and the 3:30
quitting time.i0 I am convinced that the only reasonable
answer to these questions is that Respondent learned,
during the interim between Andrew Loehndorf's first talk
with Harrison and her arrival at the plant, that the cutters
had signed union cards and that Respondent was motivat-
ed, at least in part, by this factor in deciding to dismiss
them. The discharges were therefore in violation of Section
8(a)(3) and (1) of the Act.
Even if I should be mistaken, however, in finding that
Respondent knew of the cutters' union activities prior to
discharging them and was motivated, at least in part by
that factor, the discharges were nevertheless in clear
violation of Section 8(a)(1) of the Act.
There can be no question but that the walkout of the
cutters on the morning of February 7 was concerted action
on their part as a consequence of or in connection with
their attempt to discuss and obtain an immediate wage
increase. It grew out of a "labor dispute" within the
meaning of Section 2(9) of the Act and the cutters
remained employees within the meaning of Section 2(2) of
the Act. Although they purported to interpret Loehndorf's
statement to them as a grant of the day off, they, of course,
did not believe that he was willingly giving them a day off
from work. As employee McDowell acknowledged, and as
must have been apparent to the other cutters, Loehndorf
appeared unhappy and disturbed when they started
walking out. The fact that the employees deliberately
sought to misinterpret Loehndorf's remarks to mean what
they believed was to their advantage does not, however,
alter the fact that they were acting in concert to accomplish
their purpose-the prompt granting of a wage increase. It
is clear that they intended-even before being so advised
by the union agent whom they consulted later that
told him that the cutters were in the tavern
io In view of the patently unreliable character of the testimony of
Richard Loehndorf and Don Ledrowski, I am inclined to credit the
testimony of Harrison (who, on the whole, 'impressed me as reliable) that
she had imbibed nothing but a "soda pop " However, regardless of whether
she had been drinking something stronger, that factor obviously could have
had nothing to do with the decision, already made, to discharge her.
BAGLEY PRODUCE, INC
morning-to return to work on the following day and
hopefully with their purpose accomplished. One of them,
Jones, as already noted, remarked to the others as they
were walking out, "When I get back in the morning . . . I
bet you I have a raise," and several replied that they would
wait and see. But even if they had not intended to return to
work the next morning, they unquestionably were engaging
in a protected concerted activity for their mutual aid and
protection and could not lawfully be discharged because of
their walkout.
If, as Respondent asserts, it discharged them for walking
out and failing to return to work before any replacements
were hired, Respondent manifestly violated Section 8(a)(1)
of the Act. It might be argued that the employees acted
unwisely or unreasonably in walking out without giving
Richard Loehndorf time in which to consult with his father
and brother about their demands, even though he was
unwilling to let them wait in the lunch room until the
father and brother arrived or to assure them of prompt
action on their demands. But, as the Supreme Court
pointed out in N.L.R.B. v. Washington Aluminum Co., 370
U.S. 916 (1962), "It has long been settled that the
reasonableness of workers' decisions to engage in concert-
ed activity is irrelevant to the determination of whether a
labor dispute exists or not" and the employees are
protected under Section 7 of the Act when they engage in
such concerted activity growing out of their labor dis-
pute.ii Respondent accordingly interfered with, restrained,
and coerced them in the exercise of those Section 7 rights
and thereby violated Section 8(a)(1) of the Act insofar as it
discharged them for engaging in the walkout.
Respondent alleges that the case of Cora Tatum must be
judged on a different basis from that of the other cutters.
She was absent from work on February 7 when the other
cutters walked out and therefore could not have been
discharged for walking out. During the preceding week she
had been absent from work for 4 days with the "flu" and
was still not feeling well when she reported to work on
Monday, February 5. For that reason she was permitted to
do less strenuous work than her regular saw cutting work.
Toward the end of the day she told Richard Loehndorf
that she would not be at work the -next day unless she was
feeling better. She did not feel better and stayed at home,
making an appointment with her doctor for 1 p.m. on the
following day, February 7. As already noted, during the
morning of February 7, at McDowell's request she brought
McDowell's car to the tavern and accompanied the other
cutters to the union office, then returned with them to the
tavern and was observed by Supervisor Colon and others
who came there for lunch at 11: 15 a.m. She received the
same kind of telegram which the other cutters received,
informing her that she was dismissed "because of refusal to
work at 7 a.m. on Wednesday, February 7." When she
returned to the plant with the other cutters the next
morning to-inquire why she was fired, Richard Loehndorf
asked her if she had not been over at the tavern with the
other cutters on the preceding day and refused to accept
her explanation that she had merely brought McDowell's
car to her and had a doctor's appointment at 1 p.m.
11 See also N.L.R B v. Mackay Radio & Telegraph Co., 304 U S 333, 344
(1938), and N L.R B v. Leprmo Cheese Company, d/b/a Lepnno Manufactur-
25
Respondent contends that, despite what was said on the
telegram dismissing Tatum, she was in fact discharged for
excessive absenteeism, about which Richard Loehndorf
had talked to her on the Monday preceding her discharge,
and the fact that she was in the tavern with the other
cutters when she could have been working. A comparison
of her attendance record with that of the other cutters
discloses that her attendance record is no worse than that
of most of the other cutters and not as bad as that of
several others. One of them, Harrison, was given a 3-day
suspension from work in 1972 for failing to report for
work. I do not for a moment believe that Tatum's recent
absences while recovering from a bout with the "flu" had
anything to do with her discharge and am confident that, if
Respondent had regarded her absences as sufficiently
serious, it would have given her a disciplinary layoff, as it
had given Harrison in 1972, rather than discharging her. It
is manifest from all the evidence that Respondent
discharged Tatum along with the other cutters because it
believed that she was making common cause with them in
their concerted attempt to get prompt wage increases and
that her discharge, like theirs, was in violation of Section
8(a)(1), if not also Section 8(a)(3) of the Act. It is not
important whether these discharges be considered a
violation of Section 8(a)(1), Section 8(a)(3), or of both
sections of the Act, for, in any event, the order necessary to
remedy the unfair labor practices found would be
substantially the same.
CONCLUSIONS OF LAW
1. By discharging employees Lena Roby, Ollie McDow-
ell, Ethel Jones, Maria Hall, Barbara Harrison, Marilyn
Wesley, Vergie Dennis, Vigie Jeanes, and Hilda Cruz
because they engaged in protected concerted activities,
including union activities, Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act.
2. By discharging employee Cora Tatum because it
believed that she was making common cause with the other
cutters in their concerted action to obtain wage increases,
Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act, my recommended Order will require that it
cease and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act.
All of the 10 cutters named in the complaint (except
Cora Tatum who was absent from work for health reasons)
walked out of the plant on the morning of February 7 in
connection with their concerted effort to obtain an
immediate wage increase and it is clear from the record
that 9 of the 10 would not have worked that day even if
they had not been discharged during the afternoon. But for
mg Company, 424 F.2d 184 (C.A 10), cert. denied 400 U S. 915 (1970).
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their unlawful discharge, it is a reasonable assumption that
all (except Cruz, who was ill on February 8) would have
returned to work on February 8. Cruz apparently would
have been reinstated on,February 8 had she reported for
work then since Respondent was willing to accept her
explanation made to her supervisor the evening before that
she walked out only because she was told by some of the
cutters that there was no work to be done. She was
reinstated when she reported for work on Friday, February
9. No backpay or reinstatement order is necessary,
therefore, to remedy her unlawful discharge. To remedy
Respondent's unlawful discharge of and refusal to reinstate
the others, however, Respondent will be required to offer
each reinstatement to her old job or, if the job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority and other rights and privileges,
and to make each whole from February 8, 1973, to the date
she is offered reinstatement, the backpay to be computed
in the manner set forth in F. W. Woolworth Company, 90
NLRB 289, with interest added thereto in the manner
prescribed in Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact, conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended:
ORDER 12
Respondent , Bagley Produce, Inc., its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging, refusing to reinstate , or otherwise
discriminating against any employees for engaging in
protected concerted activities , including union activities,
for their mutual aid and protection.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
12 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to each of the employees named below
reinstatement to her former job or, if the job no longer
exists, to a substantially equivalent position , without
prejudice to her seniority and other rights and privileges,
and make each whole for her lost earnings in the manner
set forth in the section of "this Decision entitled "The
Remedy."
Lena Roby Marilyn Wesley
Ollie McDowell Vergie Dennis
Ethel Jones Vigie Jeanes
Maria Hall Cora Tatum
Barbara Harrison
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and- reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its Milwaukee , Wisconsin , plant copies of the
attached notice marked "Appendix." 13 Copies of the
notice on forms provided by the Regional Director for
Region 30, after being duly signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof , and be maintained
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
13 In the event that the Board 's 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 "