Ingram Farms, Inc.,

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1051 (N.L.R.B. 1981)

INGRAM FARMS. INC.
Ingram Farms, Inc. and Larry L. Twilley. Case 10-
CA-15819
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On February 27, 1981, Administrative Law
Judge J. Pargen Robertson issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed cross-exceptions and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,' find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 3
' Respondent excepts to the Administrative Law Judge's ruling grant-
ing the General Counsel's motion, made when the formal papers were in-
troduced at the hearing, to amend the complaint to include an allegation
that Respondent violated Sec. 8(a)(1) by interrogating two of its employ-
ees concerning the instant case. We find the Administrative Law Judge's
ruling proper. The interrogation concerning this case was intrinsically re-
lated to the case, and the General Counsel moved to amend the com-
plaint at the earliest reasonable opportunity after learning of the interro-
gation, which took place I week before the hearing. Respondent was not
prejudiced by the Administrative Law Judge's ruling, as he offered Re-
spondent additional time to prepare its defense and Respondent did not
avail itself of the opportunity.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
While Respondent cites portions of Larry Twilley's testimony that may
seem to have been evasive, those portions do not bear on the facts neces-
sary to a finding of a violation here, and do not require the Administra-
tive Law Judge to discredit other portions of Twilley's testimony. We
would note that as Respondent denied Twilley permission to "swap
loads" with employee Bailey on April 25, 1980, contrary to the existing
company practice in this regard, it is irrelevant to a finding of unlawful
discharge whether Twilley was sick, or whether or not Twilley told
Foreman Charlie Link that he was sick.
I The General Counsel excepts to the Administrative Law Judge's fail-
ure to find that Respondent, on April 17, 1980, threatened Twilley with
discharge for his union activity. The Administrative Law Judge's Deci-
sion quotes the relevant unrebutted testimony by Twilley that, when
Twilley received his discriminatorily issued written reprimand, General
Foreman R. C. Phillips told Twilley that he (Twilley) would have been
terminated if he were in the Union. This is the same Phillips who the
Administrative Law Judge found interrogated and threatened other em-
ployees in violation of Sec. 8(a)(1) of the Act. We agree with those find-
ings, and agree with the General Counsel that the unrefuted testimony of
Twilley indicates that he was threatened with discharge in violation of
Sec. 8(a)(1). Therefore, we will modify the Administrative Law Judge's
Conclusions of Law and recommended Order accordingly.
258 NLRB No. 137
In affirming the Administrative Law Judge's
conclusion that Respondent discharged Larry
Twilley in violation of Section 8(a)(3) and (1) of
the Act, we note the following in addition to the
ample evidence relied on by the Administrative
Law Judge. Respondent's general manager, Bill
Baggett, admitted that his asserted reason for dis-
charging Twilley had shifted in the course of this
litigation. When pressed as to what factors he con-
sidered at the time of the discharge, Baggett was
evasive and attempted to shift responsibility for the
decision to Charlie Link, Respondent's foreman at
the time of the discharge and the principal person
involved in the events leading to Twilley's dis-
charge. As the Administrative Law Judge noted,
Respondent did not call Link as a witness although
Link was apparently available and in fact Baggett
and Respondent's attorney, in preparing Respond-
ent's defense, had consulted with Link shortly
before the hearing. At the hearing, Baggett testified
that he had relied on Link's recommendation in
discharging Twilley, and Respondent introduced
into evidence a report supposedly prepared by
Link at Baggett's request. In these circumstances,
including the lack of explanation for Link's failure
to testify, we infer that, if Link had testified, his
testimony would not have supported Respondent's
position. See Interstate Circuit, Inc. v. United States,
306 U.S. 208, 226 (1939); Warehouse Union Local
No. 860, a/'w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(Capel Klang Companies), 231 NLRB 838, fn. I
(1977). In light of Baggett's testimony, we find that
Respondent's asserted reason for discharging Twil-
ley-that he had refused to carry the load to Al-
bertville on April 25-was pretextual.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the Administrative
Law Judge's Conclusion of Law 4:
"4. Respondent, by issuing a written warning to
employee Larry L. Twilley on April 17, by threat-
ening employee Larry L. Twilley with discharge
on April 17, and by discharging employee Larry L.
Twilley on April 27, 1980, violated Section 8(a)(1)
of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
In accordance with his dissent ill Olripi .%lediual (£orrorato n. 250
NL. R 146 (1980), Memher Jcnkin, ss ould aard i11i rcst oni tic hctkpa,
due h;ased on the formula cet forth therein
1051
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fied below, and hereby orders that the Respondent,
Ingram Farms, Inc., Cullman, Alabama, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph l(b):
"(b) Issuing written reprimands to, threatening to
discharge and discharging, and thereafter failing
and refusing to reinstate its employee because of
the employee's union activities."
2. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs accordingly:
"(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees
concerning their activities on behalf of Team-
sters, Chauffeurs, Warehousemen and Helpers,
Local 612, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any labor or-
ganization.
WE WILL NOT promise our employees bene-
fits if they refrain from selecting a union as
their bargaining representative.
WE WILL NOT issue written reprimands to
employees because of their union activities.
WE WILL NOT threaten to discharge our em-
ployees because of their union activities.
WE WIL L NOT discharge or fail and refuse to
reinstate our employees because of their union
activities.
WE WILL NOT threaten employees that em-
ployees would be better off leaving the Union
alone.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of rights guaranteed them in Sec-
tion 7 of the National Labor Relations Act, as
amended.
WE WILL offer Larry L. Twilley immediate
and full reinstatement to his former job or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges.
WE WILL make Larry L. Twilley whole for
any loss of earnings he may have suffered as a
result of our discrimination against him, with
interest.
WE WILL remove from our records refer-
ences to a written warning issued to Larry L.
Twilley on April 17, 1980.
INGRAM FARMS, INC.
DECISION
STATIIEMINI 01: I HE CASI:
J. PARGEN ROBERTSON, Administrative Law Judge:
This case was heard on December 17, 1980, in Cullman,
Alabama. The charge was filed on May 6, 1980. The
complaint, which issued on June 20, 1980, alleges that
Respondent engaged in instances of 8(a)(1) activity and
that Respondent warned and discharged employee Larry
L. Twilley in violation of Section 8(a)(3) of the Act.
Upon the entire record, my observation of the wit-
nesses, and after due consideration of the brief filed by
Respondent, I hereby make the following:
FINDI)INGS '
A. The 8(a)(l) Allegations
1. The allegations relating to General Foreman R.
C. Phillips2
(1) Jerry Brock, who is currently employed by Re-
spondent, testified that he had a conversation with R. C.
Phillips around December or January 1980 at the old
Goldenrod plant. Brock testified that Phillips asked him
if he had signed a union card. Brock testified that Phil-
lips also "asked me did any other drivers sign them
[union cards], and I told him yeah, I thought just about
all of them."
R. C. Phillips did not testify. I found Brock to be a
straightforward witness and I credit his testimony. I find
that Phillips' comments to Brock constitute interroga-
tions concerning Brock's and other drivers' union activi-
ties, in violation of Section 8(a)(l).
(2) David Cordes, who is presently employed by Re-
spondent, testified that during late January 1980 he was
driving through Cullman with another employee in a
company vehicle when they were stopped by R. C. Phil-
lips. Cordes testified that Phillips asked him who had
signed the union cards. Cordes testified that Phillips
wanted to know why they had signed (the union cards)
I Respondent,. which is engaged in the processing of chickens at its
place of business located in Cullmanl. Alabama, amended its answer at the
hearing to admit all the commerce allegations in the complaint On the
basis of those allegations. and Respondent's admission. I find that Re-
spondent is and has been at all times material herein an employer en-
gaged i commerce within the meaning of Sec. 2(6) and (7) of the Act.
'Respondent amended its answer at the hearing to admit that at all
times material herein Phillips was an agent of Respondent, acting on its
behalf, and a supervisor within the meaning of Sec. 2(11) of the Act.
1052
INGRAM FARMS. INC.
and that Cordes replied that it was just a bunch of little
things added together. Phillips then said that Couch and
Hershel, two other employees, had told him that "we all
signed them. And he told me that he thought we would
be better off to have left it alone."
I found Cordes to be a straightforward witness. In
view of the fact that Phillips did not testify, I credit the
testimony of Cordes. I find that his testimony demon-
strated that he was interrogated about his and other em-
ployees' union activities and that he was threatened that
the employees would have been better off to have left
the Union alone, in violation of Section 8(a)(1) of the
Act.
2. The allegations relating to Charles Link"
Tommy Bailey, who is presently employed by Re-
spondent, testified that he had a conversation with Fore-
man Charles Link about a month before the April 4 elec-
tion at The Omelet Shop in Cullman. Bailey testified that
Link "asked me was I going to sign a union card, and I
told him I wasn't sure yet. Well, [Link] talked. He said
we [would] probably be better off if we didn't join the
Union, you know. He said we [would] probably benefit,
all of us would. He figured we might be $17 or $18 a
load, and maybe an insurance benefit, you know."
The testimony of Bailey, whom I found to be a credi-
ble witness, was not rebutted. I find his testimony dem-
onstrated illegal activity in the form of interrogation, and
a promise of improved benefits, in an effort to persuade
employees not to join the Union.
3. Interrogation by an unnamed agent
Employee Tommy Bailey testified that on the evening
of December 10, 1980, he was told to report to Respond-
ent's "scale house" by his foreman:
Q. Why don't you relate to us what happened
when you walked in? What was the first thing said
and what happened? Go through it all.
A. Well, they had talked to one other driver
before they got to me, and when they got through
with him they wanted to talk to me. We went in
the office and sat down.
Q. Who spoke first?
A. I believe the lawyer.
Q. What did the lawyer say?
A. He said he wanted to talk to me.
Q. Tell me exactly what he said, to the best of
your recollection.
A. Well, he said he wanted to talk to me about
that and we got started talking; asking questions.
Q. Wanted to talk to you about what?
A. Well, Larry Twilley and what happened out
there that morning.
' Respondent denied the complaint allegations that Link as. at materi-
al times, a supervisor and agent. However, the record cidence demlon-
strated that Link was employed by Respondent as live haul manager at
material times. Several witnesses, including Respondent's general ma;n-
ager. testified that Link discharged empl(yees in his role as live haul
manager. Other testimony demonstrated that Link possessed the authority
to hire and fire On the basis or that evidence. I find that ink as, a
supervisor as defined in Sec. 2( 11) of the Act at all material imc,.
Q. What else, if anything, did the lawyer say?
Q. Maybe I can help you just a little bit. Do you
recall anything being said about an affidavit?
A. Oh, yeah.
Q. What?
A. He asked me did I have one, and I told-
Q. Who asked you that?
A. I believe the lawyer did.
Q. What was said?
A. He asked me did I have one and I told him I
wasn't sure, but if I did it was at home. But I wasn't
sure if I had one or not.
Q. What else, if anything, was said about the affi-
davit?
A. He asked me-you know, that other guy-
I've forgot his name, that talked to us out there
whenever he got it-but he asked me what was
said, which I didn't remember, you know, much of
it. I told him as best I could, as far as I could re-
member, you know.
Q. Do you remember anything else that Mr. Ta-
liaferro or Mr. Baggett said during the conversa-
tion?
A. They just asked me questions about what I
said out there, and everything, you know, and what
happened out there that morning back in April.
Q. During the conversation did Mr. Taliaferro or
any company official tell you that your attendance
at this meeting was voluntary?
A. There wasn't nobody that asked me did I have
a choice or what. I mean, Bobby said they wanted
to talk to me before I went out with my second
load. Well, I set my trailer down and went in there
and talked to them when they got through with the
other driver.
Q. Did Mr. Taliaferro or any company official
tell you that there would be no reprisals?
A. No.
Employee David Cordes testified that he was inter-
viewed by the company attorney on December 10, 1980.
Cordes testified as follows:
Q. Where did this conversation take place?
A. In Ingram's Night Manager's office.
Q. Was anybody else present?
A. Bill Baggett.
Q. Do you know Mr. Baggett's title?
A. No, I don't.
Q. Start from the beginning and tell the Judge
what happened.
A. Well, I come in to work at five or five thirty-
six-
Q. Was that in the evening?
A. Yeah. The p. m.
JuL)(,;I ROBERTSON: Did you say "a.m." or
"p.m."?
TlEi WITNtSS: p.m.
A. (Continuing) And I was told then that they
wanted to talk to me.
Q. Who told you that?
1053
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. R. C. Phillips.
A. Well, I was asked if I had give an affidavit to
the National Labor Relations Board, and I told him,
yes. And he wanted me to tell him to the best of
my knowledge what was in it.
Q. You say "he", are you referring to Mr. Mark
Taliaferro, Jr.?
A. Yes.
Q. Go on.
A. Well, I told him to the best of my knowledge
what was in it. He wanted a copy of it to run him
off a copy.
Q. What did you say?
A: I told him he could have a copy of it.
Q. Did you give Mr. Taliaferro a copy of the af-
fidavit?
A. Yes.
Q. When?
A. The next night.
Q. Why didn't you give it to him that night?
A. I didn't have it with me.
Q. How do you know-what did you do with
the affidavit that you obtained?
A. I left it with the papers that R. C. Phillips
would have picked up the next morning to carry to
the office to give to Bill Baggett to have a copy run
off.
Q. Now, during the course of your conversation,
did Mr. Taliaferro or any company official tell you
that your attendance at the meeting, or your discus-
sion of testimony, was voluntary?
A. No.
Q. Were you told by Mr. Taliaferro or any com-
pany official that there would be no reprisals?
A. No I wasn't.
Respondent called its general manager, Bill Baggett,
who testified as follows concerning the December 10,
1980, interviews:
Q. Were you present with me on the evening of
December the 10th?
A. Yes, I was.
Q. Did I talk to some drivers that evening?
A. You did.
Q. And the Dispatcher?
A. Yes.
Q. And Bobby Hancock?
A. Yes, and Bobby Hancock.
Q. Were you present when I talked with the
drivers?
A. I was present.
Q. Can you tell the Judge what I told the drivers
prior to questioning them that evening?
A. You told them that they didn't have to talk;
you know, we were forcing anybody to talk to us
[sic]. And if they were summoned and appeared as
witnesses, you would see their affidavit, but if they
would voluntarily let you see it in preparation for
your case, you would appreciate it.
Q. Were these-and I don't mean the exact
words-but was that the substance of what I told
each of them, basically?
A. Yes.
Q. Did we threaten anybody that evening?
A. No, we didn't twist any arms or threaten any
families, or anything like that to get them to talk to
us.
Q. Didn't discharge a single one of them?
A. Nobody was discharged.
For reasons mentioned below, I am unable to fully
credit the testimony of General Manager Baggett. To the
extent their testimony differs, I shall credit employees
Bailey and Cordes.
The landmark case on this issue is Johnnie's Poultry Co.
and John Bishop Poultry Co., Successor, 146 NLRB 770,
774-776 (1964). There, the Board held:
Despite the inherent danger of coercion therein,
the Board and courts have held that where an em-
ployer has a legitimate cause to inquire, he may ex-
ercise the privilege of interrogating employees on
matters involving their Section 7 rights without in-
curring Section 8(a)(1) liability. The purposes which
the Board and courts have held legitimate are of
two types: the verification of a union's claimed ma-
jority status to determine whether recognition
should be extended, involved in the preceding dis-
cussion, and the investigation of facts concerning
issues raised in a complaint where such interroga-
tion is necessary in preparing the employer's de-
fense for trial of the case.
In allowing an employer the privilege of ascer-
taining the necessary facts from employees in these
given circumstances, the Board and courts have es-
tablished specific safeguards designed to minimize
the coercive impact of such employer interrogation.
Thus, the employer must communicate to the em-
ployee the purpose of the questioning, assure him
that no reprisal will take place, and obtain his par-
ticipation on a voluntary basis; the questioning must
occur in a context free from employer hostility to
union organization and must not be itself coercive
in nature; and the questions must not exceed the ne-
cessities of the legitimate purpose by prying into
other union matters, eliciting information concern-
ing an employee's subjective state of mind, or other-
wise interfering with the statutory rights of employ-
ees. When an employer transgresses the boundaries
of these safeguards, he loses the benefits of the
privilege.
In defining the area of permissible inquiry, the
Board has generally found coercive, and outside the
ambit of privilege, interrogation concerning state-
ments or affidavits given to a Board agent. For such
questions have a pronounced inhibitory effect upon
the exercise by employees of their Section 7 rights,
which includes protection in seeking vindication of
those rights free from interference, restraint, and co-
ercion by their employer. Moreover, interrogation
concerning employee activities directed toward en-
1054
INGRAM FARMS, INC.
forcement of Section 7 rights also interferes with
the Board's processes in carrying out the statutory
mandate to protect such rights. We note, in this
connection, that under the safeguards attending a
hearing on unfair labor practices, counsel for Re-
spondent parties are entitled to the availability,
upon request, of the affidavits of General Counsel
witnesses for use in cross-examining those witnesses.
The Board has continued to find improper a request
for an employee's affidavit to the NLRB.4 Additionally,
the Board has continued to insist that an employee must
be unequivocally assured there will be no reprimands. 5
In the instant case the credited evidence demonstrated
that the employees were interviewed without being ad-
vised that their participation was voluntary, and without
being advised that there would be no reprisals if they
elected not to participate in the interview. Each employ-
ee was asked if he had given an affidavit to the NLRB
agent. Tommy Bailey was interrogated about what was
said during his interview with the Board agent. David
Cordes was asked to supply a copy of his affidavit to the
Board. Under those circumstances, I find that the inter-
views were unlawful. 6
B. The 8(a)(3) Allegations
The General Counsel alleges that Respondent violated
Section 8(a)(3) by reprimanding Larry Twilley on April
17, and by discharging Twilley on April 27, 1980.
Larry Twilley was hired by Respondent during 1975.
At his discharge on April 27, 1980, he was employed as
a truckdriver hauling live chickens.
The evidence demonstrated that Twilley was the em-
ployee who originated the union campaign among Re-
spondent's 13 drivers. He obtained and distributed au-
thorization cards to the drivers. Apparently, Twilley did
not personally witness each card signing, but he was the
one employee who distributed all the cards.
Twilley testified that he initiated the organizing cam-
paign in December 1979 or January 1980.
On February 20, 1980, Twilley testified on behalf of
the Union, at the representation hearing conducted by
the Regional Office.
On April 4, 1980, an election was conducted by the
Regional Office. The Union prevailed in that election.
On April 17, 1980, Twilley received a written warning
for destroying three tires on his 14-wheel tractor trailer.
Although other employees, including Twilley, had
driven on flats and, in some of those instances, damaged
tires beyond repair, Twilley and others testified that his
written warning was the first issued by Respondent for
such an infraction.
On April 27, 1980, Twilley was discharged for refus-
ing to take a load on an assigned trip. On the morning of
April 25, Twilley was directed to take a load of chickens
to Albertville by Foreman Charles Link. Twilley asked
to be excused from the trip, but his request was denied.
Subsequently, at Twilley's request, another driver,
'Anserphone, Inc., 236 NLRB 931, 936 (1978).
sA & R Transport, Inc., 237 NLRB 1084, 1089 (1978).
' See also Tamper. Inc., 207 NLRB 907. 936, 937 (1973); Roadway Ex-
press. Inc., 239 NLRB 653 (1978).
Tommy Bailey, offered to take the Albertville trip.
Bailey offered to either exchange a shorter trip to which
he was assigned, for the Albertville trip. or to take both
the Albertville run and the shorter run. Foreman Link
refused to permit either of Bailey's offers. Thereupon,
Twilley, who testified that he had complained to Link
that he was feeling bad, left without taking the Albert-
ville trip. When he next reported for work on April 27,
Twilley was told that Respondent concluded he had quit
his employment when he refused the Albertville run.
Conclusions
The timing of the actions against Twilley are of initial
concern. Although there was evidence that Twilley re-
ceived a written warning in March 1980, 7 there was no
showing that he had received any disciplinary action
prior to the union campaign.
Additionally, Twilley was the one employee most di-
rectly involved with organizing the employees behind
the Union. I find cause for concern in Respondent's posi-
tion at the hearing regarding Twilley's union activities.
Several witnesses, including Respondent's current live
haul manager, admitted that Twilley was the "main
force" behind the Union. As shown above, Respondent
did not deny that its supervisors interrogated employees
about their union activities. Respondent's general man-
ager even admitted that it was the responsibility of Gen-
eral Foreman R. C. Phillips to find out about union cards
being signed. Respondent did not dispute the testimony
of employee David Cordes that the general foreman told
him that two of the truckdrivers had told the foreman
that all the other drivers had signed authorization cards.
Under those circumstances, it is difficult to conclude that
Respondent did not know about Twilley's role in the
union campaign. However, when Respondent's general
manager was asked about Twilley and the Union, he of-
fered testimony which was confused and vacillating.
Consider, for example, the following exchange between
counsel for General Counsel and General Manager Bag-
gett:
Q. And you knew that Larry Twilley was an
active union supporter, didn't you?
A. No, I didn't know he was an active union sup-
porter.
Q. You knew he testified at the R-Case hearing?
A. Certainly. I saw him.
Q. You saw him at the hearing.
A. Yes. I saw Tommy Bailey.
Q. So, you knew Larry Twilley was one of the
main adherents.
A. I knew he was active.
Q. You knew he was active in the union then. So,
there was no question in your mind and there was
no question in any supervisor's mind where Larry
The unrehbutted evidence proved that Twilley was not advised of the
March warning. Twilley testified that he was unaware of the arnilg
until it was produced at the hearing herein The warning allegedly result-
ed from Twilley driving his truck into a muddy area and permitting the
truck to stick in the mud
1055
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Twilley stood with respect to the union, isn't that
correct?
A. That's correct.
Also, the evidence shows that Twilley's case was han-
dled in a novel manner regarding both the April 17
warning and his discharge.
As to the warning, testimony demonstrated that this
was the first written warning issued because employees
destroyed tires by driving on flats. The General Counsel
offered testimony from Twilley and other employees that
they had driven on flats and destroyed tires but did not
receive written warnings. It is true that no evidence was
offered to prove that anyone had destroyed three tires
on one occasion. On one occasion, Twilley had two
blowouts ruining both tires. He was not warned on that
occasion which occurred around the time of the election.
Twilley admitted that he did destroy three tires on April
16. Respondent appeared to contend that Twilley had
knowingly driven on three flats. However, no strong evi-
dence was offered in that regard.
Twilley testified that he first learned of the flats when
someone advised him over his C.B. radio that his truck
was smoking. Twilley testified that he pulled over at his
next opportunity. According to Twilley, he had a heavy
load on that occasion which prevented him from notic-
ing the flats. Twilley explained that normally flats would
cause the load to pull harder. However, in that particular
instance he assumed the heavy load was causing the
added pull. Therefore, according to Twilley, he was un-
aware of the flats until he was advised the truck was
smoking.
Twilley testified without rebuttal that he was called
into the office on the evening following the tire inci-
dent-the evening of April 17. Twilley testified:
And they called me in the office. I say, "they";
Charlie Link and R. C. Phillips. And R. C. said that
they had come up with a new system. That they'd
had a lot of tires tore up and those tires cost around
a hundred and fifty dollars apiece. And the new
system was what they call a pink slip; that they was
going to give three warnings.
The first one was a warning; the second one was
a warning with a three-day layoff, and the third one
you're gone.
And I asked him, I said, "R. C., I'm a poor
fellow but I rather pay for those tires than have
that against me; why not let me pay for them?"
And he said, "No, we don't want you to pay for
them."
And I said, "Well, you know of the union and
all. Have you notified the union of it?"
He says, "You're not in the union yet." Says, "If
you were, we'd terminate you."
And I said, "Well, how about posting it on the
bulletin board, and why start with me?" I said,
"Why not post it on the bulletin board and start it
for all of us instead of just now with me?"
And he said, "No, there ain't but one time to
start and we're going to start now."
So, he asked me to sign the warning, and I did.
As to the April 25 incident which led to Twilley's dis-
charge, Twilley reported for work at 6 p.m. on April 24.
He ran consecutive runs until 4:28 a.m. According to
Twilley's testimony, he was feeling bad when he
weighed in at 4:28 a.m. He was told by Foreman Link to
get a loaded trailer and go to Albertville.
The evidence revealed that the Albertville run is
longer than many of the normal runs. The Albertville
round trip requires a minimum of 3 hours.
According to Twilley, he told Link that he felt bad,
that he did not feel like going. Despite Twilley's protest,
Link insisted that he take the Albertville trip. Twilley
then suggested that one of the other drivers would be
willing to take the Albertville run. Link responded that
there was no one available. Twilley then picked up the
weigh ticket preparatory to leaving for Albertville.
As Twilley walked out, driver Tommy Bailey arrived.
At Twilley's request, Bailey volunteered to take the Al-
bertville trip. Bailey and Twilley approached Link, and
Bailey suggested that he could either exchange his as-
signed run-which required approximately hour per
round trip-with Twilley, or he could take both trips.
Link rejected Bailey's suggestion saying that Twilley had
to take the Albertville trip. Twilley asked why. Link re-
sponded simply, "I got my reasons."
In its brief, Respondent took issue with Twilley's testi-
mony that he informed Link that he did not feel well.
However, no direct evidence was offered to rebut Twil-
ley's testimony in that regard. The dispatcher, Euel
Mauldin, testified that he did not hear Twilley say he
was ill. However, Link was not called,8 and the evidence
failed to demonstrate that Mauldin was in position to
hear all of Link and Twilley's conversations, Therefore,
I credit Twilley's testimony that he told Link he was ill.
The General Counsel offered evidence proving that
drivers were customarily permitted to swap loads and to
take time off. Larry Twilley, Tommy Bailey, and David
Cordes all testified that Respondent permitted the em-
ployees to swap loads. General Manager Baggett testified
that Charles Link told him that he did not permit load
swapping. However, Baggett admitted that the drivers
were told that "any swapping would be allowed as long
as it was not detrimental to t'ie Company." Also, the
current live haul manager admitted that drivers routinely
swapped loads and passed up loads when it was all right
with the supervisor.
The testimony of Twilley and employees Bailey and
Cordes that they were unaware of any other instance
where Link had refused a request to swap was unrebut-
ted. General Manager Baggett admitted that he was un-
aware of any other instance where Link refused to allow
a swap.
Respondent offered testimony that it was important to
get the Albertville load out early on April 25. According
to the testimony, another Albertville run driven by
Bobby Hancock had left before Twilley returned at 4:28
a.m. Under the established practice, Hancock would be
' Respondent did not contend that Link, who is no longer employed
by Respondent. was unavailable. In fact, testimony of General Manager
Baggelt demonstrated that Link was available and had been consulted
during Respondent's prehearing preparation.
1056
INGRAM FARMS. INC
required to wait at Albertville for the second load. If the
second load arrived at Albertville by 6 a.m., both Han-
cock and the second load would be serviced immediate-
ly. Since the second load did not arrive because of the
incident with Twilley, Hancock was forced to wait at
Albertville until he was finally weighed out at 9:10 a.m.
However, in that regard, the evidence does not show
that if Bailey had been permitted to exchange runs with
Twilley, he would not have arrived at Albertville before
6 a.m. In fact, from the time shown on the record, it ap-
pears that Bailey could have made the trip by, or shortly
after, 6 a.m. Therefore, I find the record unconvincing
that Link had a sound business basis for refusing Twil-
ley's request.
Twilley testified that when he reported for work on
April 27, his timecard was missing. He contacted Gener-
al Foreman Phillips. Charles Link and General Manager
Baggett were called in. Link told Twilley that Twilley
had quit. Twilley responded, "Charlie, you know that's a
lie." Link stated, "Yeah, when you didn't carry that load
up yonder I assumed you quit." Twilley responded, "No,
I didn't quit.... I told you a dozen times that I felt
bad; that I didn't feel like going." Subsequently, Twilley
asked Link to reconsider, but Link refused.9
The record does not show that Respondent had any
basis to question Twilley's assertion that he was sick on
the morning of April 25.10 In view of its past practice of
permitting employees time off and permitting employees
to swap loads, I find that Respondent treated Twilley
with disparity. I find Respondent's asserted business basis
for Link's disparate action in denying Twilley's request,
to be insufficient to overcome the burden established in
Wright Line, a Division of Wright Line, Inc., 251 NLRB
1083 (1980).
The credited version of Twilley's terminal interview
establishes that he did not resign. In view of my findings
above, it is apparent, and I find, that Respondent had no
nondiscriminatory business basis to discharge Twilley. In
view of the other elements which I have discussed
above-timing and knowledge of Twilley's role in the
union campaign-plus Respondent's union animus which
was established by its 8(a)(1) activity, I am persuaded
that Respondent actually discharged Twilley because of
his union activity.
As to Twilley's April 17 warning, I sympathize with
Respondent's concern for damaged property. However,
the timing and obvious disparity of that action convince
me that the action was motivated by Twilley's union ac-
tivity. The past practice of not issuing written repri-
mands for similar infractions convinces me that Respond-
ent would not have warned Twilley absent his union ac-
tivities. See Wright Line, supra.
9 Although Baggelt testified, he did not deny Twilley's version of the
terminal interview Neither Phillips nor Link testified Therefore. I credit
Twilley's testimony
"' In that regard. Twilley testified that he continued to feel ill until
April 28 when he sisited Dr Hollis C Keel Dr. Keel diagnosed his ill-
ness as "upper respiralors infection"
CONCLUSIONS OF LAW
1. Respondent, Ingram Farms, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Teamsters, Chauffeurs, Warehousemen and Helpers,
Local 612, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent, by interrogating its employees concern-
ing the employees' union activities, by promising them
benefits if they did not select the Union as their bargain-
ing representative, and by threatening its employees that
the employees would have been better off to have left
the Union alone, violated Section 8(a)(1) of the Act.
4. Respondent, by issuing a written warning to em-
ployee Larry L. Twilley on April 17, and by discharging
employee Larry L. Twilley on April 27, 1980, violated
Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom, and to take certain affirma-
tive action designed to effectuate the policies of the Act.
As I have found Respondent unlawfully discharged
Larry L. Twilley, I shall recommend that Respondent be
ordered to offer him immediate and full reinstatement to
his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his se-
niority or other rights and privileges previously enjoyed.
I shall further recommend that Respondent be ordered to
make Larry L. Twilley whole for any loss of earnings he
may have suffered as a result of the discrimination
against him. Backpay shall be computed as described in
F. W. Woolworth Company, 90 NLRB 289 (1950), with
interest as described in Florida Steel Corporation, 231
NLRB 651 (1977)."
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 12
The Respondent, Ingram Farms, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed them in
Section 7 of the Act in violation of Section 8(a)(1) of the
Act by interrogating its employees concerning its em-
ployees' union activities, by promising its employees
" See, generally. lsi Plumnbinlg & Ifearig Co., 137 NLRB 716 (1962).
I! In the event no exceptions are filed as provided h Sec. 102.46h of
the Rules and Regulations of the National Labor Relations Board. the
findings, conclusions. and recommended Order herein shall, as provided
by Sec. 102 48 of the Rules and Regulations, he adopted bh the Board
and become its findings, conclusions. and Order. and all ohjections there-
to shall he deemed %li ed for all purpose,
1057
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefits if they refrain from selecting the Union as their
bargaining representative, and by threatening its employ-
ees that the employees would have been better off to
have left the Union alone.
(b) Issuing written reprimands and discharging and
thereafter failing and refusing to reinstate its employee
because of the employee's union activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights to self-organization, to form, join, or assist a labor
organization, or to refrain from any and all such activi-
ties.
2. Take the following affirmative action designed and
found necessary in order to effectuate the policies of the
Act:
(a) Offer Larry L. Twilley immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges previ-
ously enjoyed, and make Twilley whole for any loss of
earnings he may have suffered as a result of the discrimi-
nation against him in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Remove all reference in their records to the April
17, 1980, warning issued Larry L. Twilley.
(c) Post at its facility in Cullman, Alabama, copies of
the attached notice marked "Appendix."'3 Copies of said
notice on forms provided by the Regional Director for
Region 10, after being duly signed by an authorized rep-
resentative of Respondent, shall be posted by it immedi-
ately upon receipt thereof, and be maintained for 60 con-
secutive 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 said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
1' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1058