Ore-Ida Potato Products, Inc.

National Labor Relations Board - Board Decisions

Jan 21, 1960

126 N.L.R.B. 271 (N.L.R.B. 1960)

ORE-IDA POTATO PRODUCTS, INC., ETC. 271
Ore-Ida Potato Products , Inc. and Oregon Frozen Foods Com-
pany and Fern Miller and Amalgamated Meat Cutters and
Butcher Workmen of America, AFL-CIO. Case No. 36-CA-
912. January 01, 1960
DECISION AND ORDER
On September 2, 1959, Trial Examiner Herman Marx issued his
Intermediate Report 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 there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, Respondents
filed exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provision of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Jenkins].
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 Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Ore-Ida Potato
Products, Inc. and Oregon Frozen Foods Company, Ontario, Oregon,
their officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership of any of their employees in Amal-
gamated Meat Cutters and Butcher Workmen of America, AFL-CIO,
or any other labor organization, by discharging or refusing to employ
any person or in any other manner discriminating against any em-
ployee in regard to his hire, tenure, or any term or condition of em-
ployment, except as authorized by Section 8 (a) (3) of the National
Labor Relations Act, as modified by the Labor-Management Report-
ing and Disclosure Act of 1959.
(b) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form,
'We have adopted the Trial Examiner's credibility findings for we are not convinced
by a clear preponderance of all the relevant evidence that his credibility resolutions are
incorrect Ainsworth Precision Castings Company, Division of Harsco Corp, 125).
NLRB 601.
126 NLRB No. 19.
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
join, or assist any labor organization, to join or assist Amalgamated
Meat Cutters and Butcher Workmen of America, AFL-CIO, to bar-
gain collectively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain from any or all such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act
of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Fern Miller immediate and full reinstatement to her
former or a substantially equivalent position without prejudice to her
seniority and other rights and privileges, and make her whole in the
manner, according to the method, and under the terms set forth in
the section of the Intermediate Report entitled "The Remedy."
(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 or appropriate to an analysis of the
amounts of backpay due and the rights of reemployment under the
terms of this Order.
(c) Post at their principal place of business in Ontario, Oregon,
copies of the notice attached hereto marked "Appendix A." 2 Copies
of said notice, to be furnished by the Regional Director for the Nine-
teenth Region, shall, after being duly signed by an authorized rep-
resentative of the Respondents, be posted by them immediately upon
receipt thereof and maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the said Respondents to insure that the said notices are not al-
tered, defaced, or covered by other material.
(d) Notify the Regional Director for the Nineteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondents have taken to comply therewith.
2In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
ORE-IDA POTATO PRODUCTS, INC., ETC. 273
WE WILL NOT discourage membership by any of our employees
in Amalgamated Meat Cutters and Butcher Workmen of Amer-
ica, AFL-CIO, or in any other labor organization , by discharg-
ing or refusing to employ any person, or in any other manner
discriminating against any employee in regard to his hire, tenure
of employment, or any other term or condition of employment
except as authorized by Section 8(a) (3) of the National Labor
Relations Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
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 any labor organization, to
join or assist Amalgamated Meat Cutters and Butcher Workmen
of America, AFL-CIO, to bargain collectively through repre-
sentatives of their own choosing , to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or
protection , and to refrain from any or all such activities , except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment as authorized in Section 8(a) (3) of the National
Labor Relations Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL offer to Fern Miller immediate and full reinstate-
ment to her former or a substantially equivalent position without
prejudice to her seniority and other rights and privileges, and
make her whole for any loss of pay she may have suffered as a
result of our discrimination against her.
All of our employees are free to become, remain , or refrain from
becoming or remaining members of any labor organization , except
to the extent that this right may be affected by an agreement in con-
formity with Section 8 ( a) (3) of the National Labor Relations Act,
as modified by the Labor°Management Reporting and Disclosure Act
of 1959.
ORE-IDA POTATO PRODUCTS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
OREGON FROZEN FOODS COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notico must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
554461-60-vol. 126-19
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STkTEMENT OF THE CASE
The complaint in this proceeding, issued by the General Counsel of the National
Labor Relations Board (herein called the Board), alleges that the Respondents,
Ore-Ida Potato Products, Inc. and Oregon Frozen Foods Company, discharged an
employee named Fern Miller on or about December 13, 1958, and have since refused
to reinstate her because she was a union member and engaged m activities protected
by Section 7 of the National Labor Relations Act, as amended (61 Stat. 136-163;
also referred to herein as the Act); and that by their conduct in the premises, the
Respondents violated Sections 8(a)(1) and (3) of the Act.'
Pursuant to notice duly served by the General Counsel upon Miller and each
Respondent, a hearing was held before me, as duly designated Trial Examiner, on
March 31 and April 1, 1959, at Ontario, Oregon. A labor organization named
Amalgamated Meat Cutters and Butcher Workmen of America, AFL-CIO (referred
to herein at the Intervenor or the Union), appeared at the hearing and moved for
leave to intervene in this proceeding as a party. The motion was granted. The
General Counsel, the Union, and the Respondents appeared through, and were
represented by, respective counsel. All parties were afforded a full opportunity
to be heard, examine and cross-examine witnesses, adduce evidence, file briefs, and
submit oral argument. I have read and considered the briefs filed with me since
the close of the hearing 2
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. NATURE OF TILE RESPONDENTS' BUSINESS; JURISDICTION OF THE BOARD
Ore-Ida Potato Products, Inc. and Oregon Frozen Foods Company (respectively
referred to herein as Ore-Ida and Oregon Foods) are Oregon corporations Each
maintains its principal office and place of business in Ontario, Oregon, where Ore-Ida
is engaged in the business of processing and shipping potato products, and Oregon
Foods in the business of processing and shipping corn products. The Respondents
share and use common office, production, and plant facilities in Ontario; employ
the same office and maintenance personnel; share the services of many production
employees; and have substantially the same officers. A majority of the shares in
each corporation is held by the same individuals, and "many" of the directors of
one enterprise serve on the board of the other. As the complaint alleges, and
the answer concedes, the Respondents constitute, and have been at all times material
to the issues in this proceeding, "a single employer within the meaning of Section
2(2) of the Act."
During the course of its business in 1958, each Respondent shipped products
valued in excess of $100,000 from its place of business in Oregon to purchasers
of such products located outside the State. By reason of such interstate shipments,
each Respondent has been, at all times material to the issues in this proceeding,
engaged in interstate commerce within the meaning of the Act. Accordingly, the
Board has jurisdiction over the subject matter of this proceeding.
1 The complaint, which was issued on March 3, 1959, is based upon a charge filed with
the Board by Fern Miller on December 22, 1958 (according to an admitted allegation of
the complaint, although a copy of the ch.uge in evidence specifies December 24, 1958, as
the filing date). Copies of the complaint and charge have been duly served upon each
Respondent
2 The transcript of the hearing contains garbled or otherwise erroneous transcriptions,
and misspelled words, at a substantial number of points The inaccuracies include the
imputation to me of statements made by another Thus at one point (p 250 of the
transcript) I am erroneously quoted as saying that I "would like to recall" a witness
This statement and various other related remarks imputed to me were actually made by
the attorney who appeared for the General Counsel My only participation in the
relevant discussion was to state that I would not delay the hearing for the production of
the document unless I could "clearly see (its) relevancy" Also, one may ante, in
passing, that the witness, Fern Miller, was not "duly sworn," as the transcript would
have it, but declined to take the oath because of religious considerations She was per-
mitted to testify upon her affirmation to tell the truth. In any case, notwithstanding the
state of the transcript, it does adequately reflect the material facts and issues presented
at the hearing, and, therefore, I deem it unnecessary, particularly in the absence of a
motion in the premises by any party, to enter an order correcting the record
ORE-IDA POTATO PRODUCTS, INC., ETC . 275
H. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of America , AFL-CIO, admits
persons employed by the Respondents to membership , and is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
One of the production facilities maintained by the Respondents at their plant is
a packaging room or department . A description of some aspects of the operation
of the department is appropriate to a resolution of the issues.
As its name suggests , the basic function of the department is to package products
produced in the plant. Much of the time, the department operates around the
clock, employing three successive shifts of employees . The packaging operations
relevant here are performed along a moving belt described in the record as a "line."
There are several lines in the department , each requiring the services of some 9
or 10 employees , including so-called "check weighers ," "casers," and a "wrapper
girl." In a typical line operation , "small boxes" containing the processed product
(french fried potatoes , for example ) move on the line first to the check weighers
whose function it is to weight the cartons in order to assure a proper weight.
The boxes then proceed to a machine which closes them. After this operation, the
containers move to another machine which wraps them in paper . It is the duty
of the wrapping girl, as one witness (Fern Miller ) testified , "to watch and see if
the paper is wrapping correctly and straight , the coloring ( of the paper ) is right,
that the wrapper (machine) is sealing . . . the carton and that it goes on down
to the caser ." If the paper is not of a prescribed color, or the wrapping machine
requires adjustment , it is the customary procedure for the wrapping girl to notify
her immediate supervisor ( Various employees known as "quality control girls"
also have the duty of checking the color of the paper. However, they are not
always available in the vicinity of the lines. Their headquarters are in an area
of the packaging department known as the U.S.D.A. office .) 3 Following the
wrapping operation, the containers move to the casers whose function it is to pack
them in larger cartons preparatory to shipment.
Each line is supervised by a so-called lineman who, since at least some time in
October or November 1958, has been vested with authority to transfer employees
on his line from one task to another , and to discharge them . In addition to his
supervisory functions , the lineman has the duty of having the prescribed paper
readily available for the wrapper, loading the paper into the machine , changing
the paper if discolored , and making such repairs to the machine as are within his
competence . The linemen on a given shift are subject to the supervision of a fore-
man who directs the work of the packaging department on his shift . There is no
doubt that the linemen and foremen are supervisors within the meaning of Section
2(11) of the Act.
Fern Miller entered the Respondents ' employ in June 1951 ,4 and, with some in-
terruptions (once for a period of about 11/2 years ) worked in the Respondents'
plant whenever it was in operation until she was discharged on December 13, 1958
(under circumstances to be described later ). From some point in June 1955 until
her dismissal, she was employed on the day shift in the packaging department, per-
forming "just about every job" there, although spending much the greater portion
of her time on the wrapping machine. On the day of her discharge she was work-
ing as a wrapping machine operator on one of the lines, and she had been so em-
ployed for a substantial period prior thereto. The day shift foreman of the pack-
aging department at the time of her dismissal was William J. Berry. Her immediate
supervisor was a lineman named Price Simon.
Simon entered the Company's employ in April 1958, working at miscellaneous
tasks such as stacking cases and cartons and operating a "machine that forms car-
tons," and became a lineman in mid-October, about 2 months before Miller's dis-
I The letters U.S D A. apparently stand for United States Department of Agriculture
which appears to have certain inspection functions related to the Respondents' products.
4 The evidence does not specifically establish that Miller was on the payroll of both
Respondents. However, that she was in the employ of both may fairly be inferred from
the fact that the packaging department whet e she worked for some years before her dis-
charge was used during her emnloyment to package both potato and corn products
Moreover, as noted earlier, the Res; indents concededly constitute a single employer for
the purposes of application of the Act
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge. He had had no previous supervisory experience. Initally, he worked as a
lineman on one of the night shifts, but about 10 days after he became a lineman, he
was assigned to the day shift and to the line on which Miller worked. Simon has
impaired vision in one eye , and has difficulty distinguishing colors with the other, and
discussed his visual handicaps with Miller after his assignment to the day shift.
Alluding to the fact that he "was new and inexperienced" and to his impaired vision,
he asked Miller to help him in distinguishing colors in wrapping paper, and in ad-
justing the wrapping machine.5
On December 12, 1957, upon petition of the Union, the Board directed that a
representation election be held among the Respondents ' production and maintenance
employees. About a month later, while the election was pending, the Respondents
sponsored and organized a so-called grievance committee, composed of employees
appointed by management representatives, with a view to dealing with the committee
in matters pertaining to employees' grievances. In the election, which was held on
January 21, 1958, a few days after formation of the committee, a majority of the
employees voted against the Union. The labor organization filed objections to the
results of the election. In a Decision and Order issued on July 9, 1958 (unpub-
lished) the Board, passing on the objections, found that the establishment of the
"grievance procedure shortly before the election," and other improprieties committed
by the Respondents between the time the election was ordered and the date it was
held, had "made a fair election impossible." The Board thereupon set the election
aside, and directed that another be held. (See Ore-Ida Potato Products, Inc., et al.,
121 NLRB 40.) The Board has also since held in another proceeding that the
Respondents violated Section 8(a)(1) of the Act by their conduct in forming the
grievance committee and by threatening an employee with "reclassification and a
reduction in wages in the event of a union victory in the (first) Board election."
(See Ore-Ida Potato Products, Inc., et a!., 123 NLRB 1037, decided May 6, 1959.)8
In August 1958, before the second election was held, the grievance committee
was "reorganized," and on that occasion, at least some of the committee members
were elected by the employees they represented. Miller and another employee were
chosen in that manner as the committee representatives of day shift packaging de
partment employees. Miller also was the Union's "official representative . in
the plant," as one witness (Maxine Merrill) testified, and was regarded by the Re-
spondents, as they concede in their brief, as one of the Union's "principal adherents
and organizers" in the establishment.? There is no doubt, too, that Berry was aware,
at the time of Miller's discharge, that she had been active on behalf of the Union.
The second election ordered by the Board was held on October 17, 1958. Miller
was one of three employees selected by the Union to represent it as election ob-
servers. The Union again failed to receive a majority of the ballots. So far as ap-
pears, no objections have been filed to the results of the second election.
In November 1958, several weeks after Simon's assignment to the day shift as a
lineman, various packaging department employees asked Miller, as a grievance com-
mittee member, to request the management to define the authority of linemen and,
specifically, to ascertain whether the latter were authorized to transfer an employee
5 Simon testified at one point that his color blindness is "very slight, . . . very, very
slight," and at another that he has no "more trouble than the average person" in deter-
mining whether the wrapping paper "is suitable or passable." This does not quite jibe
with other testimony he gave to the effect that he asked Miller to help him distinguish
"close shades of green and blue," and at another point that "I know something is wrong
with the paper but I don't know . what it is, I don't know what the color is after
I take it off" In any case, the point to note here is that Simon's evidence gives support
to Miller's testimony that lie solicited her assistance The relevant findings are based on
her testimony as she impressed use as a credible witness, in contrast to Simon who was
not, in my judgment, as objective and candid in his testimony as he should have been
O For the purpose of making findings relating to the representation proceedings, the
formation of the grievance committee, and the Board's decisions and orders mentioned
above, I have taken official notice of Ore-Ida Potato Products, Inc, et at, 121 NLRB 40,
and Ore-Ida Potato Products, Inc , et al , 123 NLRT: 1037.
7 In their brief (p. 2), the Respondents state - "The employee Fern Miller was an ob-
server at the last election and the company freely admits that they have always known
that she was interested in the union and was one of their principal adherents and
organizers and also allege that this enthusiasm and that this desire on her part to
continually discuss unionism and disturb fellow employees by these discussions is one of
the principal reasons she neglected her woik, became insubordinate, refused to follow
orders and left her post without authority " As will appear later, I do not agiee that
credible evidence establishes any such deficiencies in Miller's work performance
ORE-IDA POTATO PRODUCTS , INC., ETC. 277
from one station to another . Miller raised the question with Otis Williams, Ore-
Ida's vice president , at a meeting between the management and the grievance com-
mittee held on November 21, 1958. Williams replied that the linemen had had no
authority to transfer employees from one task to another prior to the second Board
election , but that since that time they had been vested with such power, as well as
the authority to discharge employees.
Later that day , Berry rebuked Miller for having sought clarification of the
linemen's authority at the meeting with the management , stating that she had no
right to do so without securing his prior approval, and that such behavior "in the
army" would be regarded as "insubordination ." She stated that she had no
connection with the army , and that she "had no intention of going over his head
or causing any trouble ," but that Williams had instructed the grievance committee
to transmit employees ' complaints and suggestions to the management and had said
that he (Williams ) would specify "who was responsible " for corrections .8 Prior to
this incident , Berry had been friendly with Miller, frequently discussing "working
conditions or . . . working problems" with her, but thereafter he manifested a
distant attitude , speaking to her only "when it was necessary ," as when he gave
her a work assignment.
It has been Berry's custom to visit a kitchen in the plant laboratory to drink coffee,
and while on such an errand on several occasions , prior to Miller's discharge, he
made some observations regarding her to Virginia Bennett, who is employed in the
Respondents' "quality control research . and experimental department ," and had
served as an observer , on the companies ' behalf, at the Board elections. On the
first of these occasions , about 2 weeks after Berry's rebuke to Miller ( and about
a week before the latter 's discharge ), the foreman told Bennett that there were
"approximately five and possibly eight in the packaging room" who were going to
be discharged , and that Miller and Bernice Johnson (who was employed as a caser
on the same line as Miller ) "had better watch their step " or "they would have to go."
In the course of a subsequent conversation in the laboratory kitchen, not long
thereafter , Berry remarked to Bennett that he "was going to clean up the union
representatives ," and in a talk with Bennett shortly before the discharge , Berry told
her that he was "waiting " for Miller and Johnson "to make a cabobble ["mistake," as
Bennett explained in her testimony ] and he was going to fire them both ." In one or
another of these conversations , Berry told Bennett that "there was too much
idleness back there [apparently meaning the packaging department ] and that he was
going to get those people lined out where they could get some work done and get
that place cleaned up back there ." He did not mention Miller as one of "those
people" who had engaged in "idleness." 9
B The discharge of Fern Miller and contentions relating thereto
Berry discharged Bernice Johnson in the packaging room at about 12:30 p.m.,
shortly before the lunch period , on December 13, 1958, telling Johnson to go to the
personnel office for her paycheck. Before leaving the room, Johnson informed
8 It is undisputed that Berry criticized Miller because she sought clarification of a
matter at the meeting with Williams According to Berry, lie told Miller to take up
"minor grievances " with him, and not "to take them to the office without (his) knowl-
edge"; and that " in the army " conduct such as Miller ' s "was insubordination " Also,
Berry 's version of the conversation implies that the question Miller raised with Williams
was whether the linemen had "authority to start and stop the line " Actually , there is
no evidence that that was a subject of discussion at the meeting of the grievance com-
mittee with Williams . Be that as it may , Miller impressed me as a forthright witness,
and Berry as an evasive and unreliable one (as will appear in some detail later ). Hence,
I have based findings as to Berry's conversation with Miller on the latter ' s testimony.
9 Findings concerning Berry's remarks to Bennett are based on Bennett 's testimony.
Berry testified • "I never told anybody at any time that I would fire anybody for belong-
ing to the union I said [to Bennett ] people who do not do their job, undesirable char-
acters without the best interest of the company at heart we didn't have a place for them
there " The foreman did not specify in which of the several conversations with Bennett
he made these alleged remarks . In any case , in evaluating Bennett's testimony, it is
important to bear in mind that she acted as an observer , on the Respondents' behalf, at
each Board election at the plant , and I think it quite unlikely that she would testify
falsely against the Respondents ' interest . In fact, she appeared to me to be a reluctant
witness Moreover , as will appear later , Berry gave unreliable testimony on a number
of material subjects I am unable to accept his denial , described above, and credit
Bennett ' s account of the remarks Berry made to her
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miller of the discharge, and the latter asked Johnson if she wanted "that address"
(an allusion to the address of an office of the National Labor Relations Board).
Although the address was not specified, Johnson understood what was meant, and
replied that she wished to have it. Johnson then started for the office, but recalling
that Berry had given her no reason for her discharge, she sought him out and asked
for the reason. He replied that she had been insubordinate and undependable.
The lunch period had begun by that time, and Johnson proceeded to the plant
lunchroom in search of Miller She located Miller there, and the latter gave her a
piece of paper which contained the address of the Board office. Berry, who had en-
tered the lunchroom immediately behind Johnson, was about a half dozen feet
away at the time. Some of the women employees including Miller, were weeping
because of Johnson's discharge, and the foreman told Johnson to go to the personnel
office. He then asked Miller whether she would like to see the personnel manager,
and she replied that that was up to Berry, whereupon the latter told her to go to the
personnel office. Although Berry did not say in so many words that Miller was
discharged, it is clear that that was what he meant, and that she so understood him.
In any case, it is undisputed that Berry discharged Miller in the lunchroom.
Miller followed Johnson to the personnel office. Johnson's paycheck was ready
for her. No closing check had been prepared for Miller, but one was drawn and
given to her later that afternoon
The basic question involved here is whether Miller was discharged, as the General
Counsel maintains, because of management's hostility toward her union and
grievance committee activities, or whether she was dismissed, as the Respondents
contend, for justifiable reasons pertaining to her work.1e
Both Simon and Berry testified in support of the Respondents' position, each
asserting in effect that the decision to discharge Miller was reached shortly before
the lunch period on December 13, 1958. Simon testified that as he was making a
minor adjustment on the wrapping machine at about 12:15 p in. on that date, he
noted that Miller was "talking to other employees" at another line "when she should
have been at her post"; that he summoned her to her line; and that he then sought
out Berry in the packaging room and recommended Miller's discharge. According to
Berry, after receiving Simon's recommendation, he was unable, because of some
chores, to notify Miller of her dismissal before the lunch period began, and, the
foreman testified, the reason he went to the lunchroom was to inform Miller of
her discharge.
In addition to describing Miller's alleged absence from the line on December 13
as the precipitating cause of the decision to discharge her, both Simon and Berry
imputed other shortcomings to her. Testifying that Miller was not a "good" worker,
Simon stated that he rebuked her on various occasions for making adjustments on
the wrapper, telling her that it was his job to make them; that she was frequently
tardy in coming to her work station in the morning and in returning from rest
periods; that she "jammed" the wrapping machine as much as "15 times" a day;
that she "talked and . . . couldn't concentrate on her work" and was indifferent
to it, leaving her line "many times" to speak to employees on another line; that
because of her shortcomings, quantity production on her line was substandard; that
the line's output increased after her dismissal; that he recorded shortcomings in
Miller's performance in a notebook he maintained for the recordation of his com-
plaints regarding the work of employees under his supervision; and that he reported
criticisms he had of Miller to George Ryan, the Respondents' personnel manager,
on some four or five occasions.
Berry, testifying in much the same vein as Simon, asserted that Miller "resented"
transfers from one task to another; that when so transferred, "she wouldn't do much
work," but "would stand and talk," with the result that her output was "a small
percentage of what the others did," and that she "slowed down" such other em-
ployees; that her inattention to duty caused her machine to jam "numerous times,"
resulting in the loss of "a lot of time"; that her morning tardiness was "very obvious,"
delaying the departure of the wrapper operator on the preceding (graveyard) shift,
or from time to time causing him (Berry) or another supervisor to substitute another
employee for Miller until her arrival; that her tardiness "seemed to get worse"
during the last several weeks of her employment; and that he admonished her for
inattention to duty and tardiness.
io The motivation for Johnson's discharge is not in issue in this proceeding, although it
may be noted, in passing, that the Respondents sent for her and reemployed her a few
days after her discharge ; and that, according to their personnel manager, George Ryan,
she was reinstated because the "offense" charged to her by Berry ("noncooperation," as
Ryan put it) was determined by Ryan and Williams to be "unfounded 11
ORE-IDA POTATO PRODUCTS, INC., ETC. 279
The Respondents also presented testimony of three graveyard shift employees on
the subject of Miller's tardiness. One of them was the wrapper operator whom
Miller was required to relieve. The substance of their testimony is that during a
period of some weeks preceding Miller's discharge she was frequently tardy in the
morning, thus delaying the departure of the graveyard shift wrapper operator on
her line.
In her testimony, Miller denied that either Simon or Berry had ever expressed
criticism of her work to her , asserting on the contrary (without contradition) that
in the spring of 1958 Berry had commended her for her work. She agreed that the
wrapping machine frequently jammed, but 'attributed this to the fact that the machine
in use for several months before her dismissal (having been substituted for a better
one that was needed for other purposes) was "worn out," with loose and slipping
parts; and she stated that she told the foreman about the difficulty with the machine,
but that he replied that the machine would have to do until the arrival of a new one.
Denying that she had ever been criticized or reprimanded for tardiness, Miller
testified that she was unable to state whether she had ever been tardy during the
last month of her employment, but that she never held up production and was no
tardier than the other employees; that because of production factors, the start and
end of lunch and rest periods were irregular for line employees, including herself;
that tardy return from such periods was a widespread problem among employees
in the entire packaging department because of a defective clock by which employees
measured their time, and the lack of a whistle or buzzer to signal the end of lunch
or rest periods; that the grievance committee complained to the management re-
garding the defective clock, recommending the installation of a whistle signalling
system; and that Williams promised to install a new clock. (The evidence of the
committee's complaint is undisputed. A new clock was installed at some point after
Miller's discharge.) Miller also denied that she held up production on her line, or
left it to visit elsewhere, stating that all employees on the line left it "quite often
to close boxes on the other lines." The sense of her testimony (and of other
witnesses) is that this was done when her line was not in operation as, for example,
when the wrapping machine broke down. On occasion, according to Miller, when
neither Simon nor any other supervisor was available, she stopped the wrapping
machine (and thus the flow of production on the line) when imperfections in the
wrapping paper appeared, in such instances taking a sample of the paper to the
U.S.D.A. office to find out from a "quality control" employee whether the paper
was suitable. If told that the paper should not be used, she waited at her machine
until Simon returned and changed the paper. She consulted the "quality control"
employee on these occasions, Miller testified, because Simon had asked for her
assistance in distinguishing colors, and both the lineman and Berry had told her
and other employees that the decision whether the paper was suitable was within
the province of the "quality control" personnel.
The General Counsel presented the testimony of six employees (Turner, Curry,
Johnson, Merrill, Hopkins, and Davies, all currently in the Respondents' employ) on
the subject of Miller's performance. Each of these witnesses had worked either at
Miller's line or near it for a substantial period prior to her discharge, and each
rebuts one aspect or another of the testimony Berry and Simon gave regarding
Miller's work. Some testified that she usually returned to her station on time from
lunch and rest periods; others that she returned no later than the other employees
on her line. One witness (Merrill) asserted that some of the employees who worked
on Miller's line were tardy in the morning more frequently than Miller, and that
some reported for work "much later than she." A number of the employees called
by the General Counsel stated that Miller performed her work competently; others
that they never heard any criticism of Miller's work; some that they never saw
Miller slow down production; and others that they never observed Miller leaving
her line needlessly. Almost all of these witnesses testified that the wrapping machine
used by Miller for some months prior to her dismissal broke down frequently, a
number of the employees stating that the machine did so because it was old and in
poor condition. One of the witnesses (Hopkins), a wrapper operator who has
worked in that capacity for about 4 years on a line near the one on which Miller
was employed, testified that she has frequently left her line to go to the U S D.A.
office to secure a "quality control" judgment as to the suitability of paper; that that
has been one of her functions; that Berry was aware of her practice; that she has
never been criticized for it; and that, although her lineman is vested with responsi-
bility for stopping her line, no one has ever told her that she has no authority to do
so, and she does it as circumstances, such as the unavailability of her lineman, may
xequire, using her judgment in thg matter.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Discussion of the issues and concluding findings
It may be pointed out as a preliminary to discussion of the issues that a determi-
nation of the motivation for Miller's discharge does not hinge on the question
whether Berry was aware at the time he discharged Miller that the slip of paper
Miller gave Johnson in the lunchroom contained a Board office address. One may
assume, as Berry claims, that he had no such knowledge, but a total view of the
record, including some evidence not previously mentioned, impels the conclusion
that the justifications for the dismissal put forward in the testimony of Berry and
Simon are nothing more than pretexts and afterthoughts to conceal an unlawful
motive for the discharge. Moreover, as will appear, there is good reason to believe
that certain records relating to Miller, variously signed by Berry and Simon and
maintained in the Respondents' files, were not made in the usual course of business,
but are mere improvisations setting forth afterthought reasons for the dismissal.
As a background to these conclusions, it is well to bear in mind that Miller worked
for the Respondents for the greater part of 7 years; and that there is no evidence
that they were in any way critical of, or dissatisfied with, her work prior to the
Board election in October 1958, in which she acted as an observer for the Union.
Indeed, it is a striking fact that although the Respondents, according to George
Ryan, their personnel manager, maintain a system of recording supervisory com-
plaints against employees on cards, they were unable to produce any such complaint
record pertaining to Miller antedating the second Board election. The cards pro-
duced, taken together, cover a span of some 6 weeks, substantially coinciding with
the period between Simon's assignment to the day shift, about 10 days after the
second election, and Miller's discharge.ii In short, the record amply warrants
an inference that the Respondents were satisfied with Miller's work for a substantial
number of years prior to the relatively brief period that Simon acted as her super-
visor, and with that in mind, one may proceed to a consideration of the credibility
of Berry and Simon, and of the reliability of records they made or signed on the
subject of Miller's work performance.
These records consist of four complaint cards signed by Simon alone; a fifth signed
by Berry, Simon, and a lineman named Leon Hammer; and a sixth executed by
Berry alone. Three of the cards signed by Simon alone are respectively dated
November 4 and 5, and December 2, 1958. The fourth of that group is a so-called
"general statement" card purporting to set forth criticism of Miller for the entire
period from October 27, 1958, the date of Simon's assignment to the day shift,
and Miller's discharge on December 13, 1958. The card signed jointly by Berry,
Simon, and Hammer is dated November 10, 1958 (and will be termed the joint
card, for convenience of reference). The card signed by Berry alone is dated
December 13, 1958. and purports to set forth his reason for Miller's termination.
All of the cards were prepared by Ryan or under his supervision (although he
denies, contrary to the fact, as I find below that that is true of all the cards).
There are some serious discrepancies in the evidence concerning the six cards
Alluding to the fact that he became personnel manager on November 20, 1958,
Ryan gave testimony to the effect that he had no role in the preparation and execu-
tion of the cards bearing earlier dates. He also testified that supervisors usually
bring a complaint to his office for recordation "as near . . . as possible" to the
end of the shift on which the given infraction occurs, and that the complaint cards
relating to a discharged employee are maintained after the dismissal for use in case
the Respondents become involved "in a situation such as today (this proceeding) and
need them."
Simon's testimony on the subject of the cards he signed departs widely from
that of Ryan. In effect contradicting Ryan, Simon stated that all five cards bearing
11 The complaint cards were produced by Ryan in response to a suhpena served, by the
General Counsel. Ryan testified that a search of the Respondents' records revealed no
complaint cards on Miller prior to one executed by Simon and dated November 4. 1958
(although, as will appear, it was actually signed after Miller's discharge which took
place about 6 weeks after the date of the card) Berry professed to have no recollection
whether he had ever filed a complaint against Miller before November 1958. and in my
judgment was evasive about the matter According to Ryan, complaint cards on in-
dividuals still in the Respondents' employ are screened every 6 months, and, upon such
review, cards are destroyed in given circumstances The fact still remains that there is
no evidence that any card on Miller has ever been discarded and that Ryan was unable
to produce any card relating to any period prior to the last 6 weeks of Miller's
employment.
ORE-IDA POTATO PRODUCTS, INC., ETC. 281
his signature were executed by him in Ryan's office and at Ryan's request, and that
Ryan had had them "drafted" for his signature. But an even more striking circum-
stance is that, according to Simon's testimony, he signed all five cards after Miller's
discharge, notwithstanding the fact that three of them (including the joint card)
bear dates over a month before the dismissal. Hammer, Simon stated, signed the
joint card at the same time as he. It is also noteworthy that in a sworn statement
given by Simon to a representative of the General Counsel prior to the hearing,
Simon stated: "I don't remember when I signed these cards but I think . . . I
signed them all the same time. I signed them I would say about a week after she
(Miller) was discharged. At any rate I am sure it was after the discharge." Like
Simon, Hammer testified that he signed the joint card after Miller's discharge.
Hammer also stated that the date of execution of that card "could have" been as
much as 11 days after the dismissal, and that he, Berry and Simon signed the card
in the presence of each other, and on the same occasion.
Berry's evidence relating to complaint cards he signed has an evasive and am-
biguous flavor that characterizes his testimony at a considerable number of points.
The Respondents were unable to produce any complaint card on Miller bearing
any earlier date than November 4, 1958; yet when asked whether he had signed
any card on Miller prior thereto, Berry replied, "There are so many employees and
so many dates I couldn't say"; and following -that, in response to an inquiry whether
he had ever filed a card regarding Miller, before the joint card, the foreman stated
that he is "in no position to recall all the dates and cards." As to the joint card
and his December 13 card, he said that he "couldn't say the exact date or time" of
his signatures, and, then asked to state "approximately when it was," he stated
that it was "[a]long in November or December." The complaint on the joint card,
Berry stated, was "turned in" before the discharge. Then, asked when he signed it,
he replied, "I don't know," but at a subsequent point, he stated that it was signed
"before" the discharge. Still later, he testified that "[t]o my guessing" the joint
card was signed before the dismissal, and the December 13 card after the discharge.
I do not believe Berry's "guessing" that he signed the joint card before Miller's
discharge, nor am I able to accept Ryan's claim to the effect that he played no role
in the preparation and execution of the cards respectively dated November 4, 5,
and 10 In short, all six cards, I find, were executed after Miller's discharge.12
The record will not yield a conclusion that the six cards were signed on or after
the date (December 24, 1958) on which the charge in this proceeding was served
upon the Respondents, although Hammer gave testimony to the effect that the joint
card could have been signed by him as late as that date, but there is nevertheless
ample reason to conclude that the cards are no more than afterthoughts improvised
'a There are four additional cards relating to Miller in evidence One, dated Novem-
ber 7, 1958, was signed by Hammer; another bearing no date (but, according to Ryan's
estimate, signed about November 22 or 23) was executed by a supervisor named George
Little ; and the other two, respectively dated November 17 and 21, 1958, were pur-
portedly signed by a supervisor named Garland Christiansen (whose signature was not
authenticated by any testimony) Little and Christiansen were not called as witnesses,
and their cards are hearsay It may also be noted that Berry's testimony contains no
claim that he took the Little and Christiansen cards into account in deciding to dis-
charge Miller As for Hammer's November 7 card (which alleges that Miller "started
line five minutes late," and "was visiting other employees, and not watching her work"),
the document is, in my judgment, as unreliable as the cards executed by Berry and
Simon after Miller's discharge. Like those cards, contrary to Ryan's testimony, notwith-
standing the date it bears, it was executed, as Hammer conceded, after Miller's dis-
missal. Although Hammer stated that the contents of the card are true (doing so by
blanket affirmation in response to a suggestive statement by counsel that the "facts stated
in the exhibit are correct"), he could not "give any reason" why he waited some
5 or 6 weeks (if not substantially more) following the alleged events set forth in the
card before executing a complaint card. Moreover, he contradicted himself as to what
prompted him to go to Ryan's office to sign the card, stating at one point that no one
sent him there and that he went "voluntarily," and, subsequently, that the idea of going
to the office did not originate with him and that "as nearly as I can recall," Berry told
him to go there In the light of what has been said above, and of the testimony (which
I credit) that Miller performed her work competently and attended to her duties, I am
unable to accept, as a basis for findings, Hammer's blanket affirmation that the "facts
stated in that exhibit are correct." Furthermore, the alleged "facts," I am convinced,
played no role in Berry's decision to discharge Miller
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at one point or another after the dismissal, whether before or after the service of the
charge, for such "need" as might arise "in a situation" such as this proceeding.13
Supporting that view there is, first, the hard fact that all five cards signed by Simon
were, as he admits, executed by him some time after Miller's discharge Moreover,
according to Ryan, a supervisor usually reports a complaint to his office "as
near . . . as possible" to the end of the shift on which the given infraction occurs;
yet there is no plausible explanation in the record why the complaint cards respec-
tively dated November 4, 5, and 10 (the joint card) and December 2 were not exe-
cuted, contrary to the practice Ryan describes, until some point after December 13;
nor why the "general statement" card, again at variance with the custom Ryan
described, deals with alleged shortcomings in Miller's work, as the card puts it,
"From 10-27-58 to 12-13-58." In that connection, I think it an instructive com-
mentary on the Respondents' position in this case that the November 4 card, which
alleges that Miller "was five minutes or more late returning from lunch" and thus
delayed the work of the line, was not signed by Simon until some 6 or more weeks
after the date on which the alleged incident occurred; and that the "general state-
ment" card charges Miller with jamming the wrapper "several times a day, actually
as many as 15 times during a shift," in the face of Miller's plausible explanation,
supported by the testimony of a number of employees (whom I credit) who worked
on or near her line, that the machine jammed because it was "worn out" and had
loose and slipping parts (It is undisputed that Miller, as she testified, "complained
to the foreman about that old wrapper," and that he replied that she would "have
to get by" with it until the installation of a new machine.) 14
How far the Respondents are grasping at straws to justify the discharge post hoc,
ergo propter hoc becomes even more evident upon an inspection, in the context
of the whole record, of the other three cards executed by Simon. The November 5
card reads: "Fern Miller Stated to Price Simon `It doesn't make any difference to
me whether we turn out ten pallets or twenty pallets.' (This is an example of her
attitude.) (Deliberately and willingly slowing down production.)" Simon, it may
be noted, testified that the parenthetic remarks on the card were "added (to his
alleged complaint) by whoever made the statement up." The identity of the
person responsible for the "added" material, whether Ryan or another, is of no
great moment. The important point to note is that neither the card nor Simon's
testimony imputing the relevant statement to Miller sets forth any context in which
it was made. Unlike Simon, Miller described the context, and from her undisputed
testimony in that regard, it is clear that the remark she made does not exemplify
an attitude of "[d]eliberately and willingly slowing down production." 15 The
"The General Counsel subpenaed and introduced the complaint cards during the course
of his case-in-chief (and at a considerable point before its close), and called Ryan and
Simon as witnesses in connection therewith Much of the evidence pertaining to the
cards was elicited during the General Counsel's case-in-chief. Thus, in the nature of
things, one cannot know what use, if any the Respondents would have made of the
cards had not the General Counsel introduced them and called Ryan and Simon as wit-
nesses . In any case, it may be noted that in their brief the Respondents, as support for
their position that Miller was discharged for justifiable cause, rely on testimony by
Berry and Simon describing alleged shortcomings in Miller's work that are also sum-
marized in various of the cards
14 A new wrapping machine was, in fact, installed, shortly after Miller's discharge, on
the line on which she had been employed, although there is conflict in the evidence as
to whether the installation took place on the next workday after the dismissal or a -few
days later. Berry claims that the replacement was made for production reasons un-
related to the quality of the old machine; that it is "as good" as the new one; and
that "the girls are asking" for the return of the old machine "because it does a better
job of wrapping." I deem it unnecessary to resolve the conflict as to the date of installa-
tion of the new equipment, or to pass on the truth of Berry's evaluation of its efficiency
as compared to the old, since the credible evidence persuades me that Miller performed'
her work competently ; that the Respondents actually never criticized her performance ;.
that the old machine jammed because it had defective parts ; and that the machine--
jamming had no connection with Miller's discharge.
' 's Describing the context in which the remark was made , Miller testified credibly that
several days before her discharge Simon complained to her that the day-shift check
weighers were older than those on the swing shift, and "couldn ' t work as fast" ; and
that she replied that there were no check weighers in any department who "could beat
the girls on our line," that I don't care whether we run ten pallets or twenty pallets I am
not going to race with another shift," that "[w]e have to try to put up quality boxes,"
and that "you [Simon ) have to admit that we are good and we do our share," To this),
ORE-IDA POTATO PRODUCTS, INC., ETC. 283
contents of the card, and of Simon's testimony to the same effect, have a specious
posture in my judgment. This is also true of the November 10 (joint) card, and
of the testimony of Berry, Simon, and Hammer in support of its contents. The
document charges that Miller closed down her line "in violation of a direct order
to keep line running until linemen could change overwrap"; that she did so to
go to the U.S.D.A. office to inquire "if overwrap was too discolored to use, which
was a problem for lineman to solve"; and that Miller was then warned "to refrain
from closing line down, and warned of penalty for insubordination as stated in
general Company policy." Actually, Simon, as he admitted, was absent on a
"break" period at the time involved. Hammer substituted for him and, according
to Hammer's account, on the occasion in question, he went to fetch some wrapping
paper, telling Miller "to keep running the wrapper" until his return. But it is undis-
puted that discolored paper appeared in the machine during his absence and that
Miller went to the U.S.D.A. office, as both she and Hopkins, the wrapper operator
on a neighboring line, had done on other occasions, when a supervisor was unavail-
able, in order to secure a "quality control" judgment as to the suitability of the
paper. Moreover, Simon had asked her to assist him because of his defective vision
and inexperience, and she had been told by her foreman and lineman, as she testi-
fied, that a decision as to the suitability of wrapping paper rests with the "quality
control" personnel. In the context of circumstances, and particularly bearing in
mind that what she did was plainly designed to facilitate production, and that the
joint card was not signed until some 5 or more weeks later, I think it a distortion
of the facts to say that what she did was "in violation of a direct order" and "insub-
ordination" (a misnomer which is reminiscent of Berry's assertion that Miller's
proper grievance committee activity of November 21 was "insubordination" as "in
the army"). Indeed, the allegation of "insubordination as stated in general Com-
pany policy" takes on a posture of absurdity in the light of Hopkins' undisputed
testimony that in her years as a wrapper operator she has frequently gone to the
"quality control" office to receive a judgment as to the suitability of paper; that
Berry has been aware of her practice; that she has never been criticized for it; and
that she uses her judgment in stopping her line, as circumstances may require, when
her lineman is not available. The contents of the December 2 card, and Simon's
similar testimony, to the effect that Miller made adjustments on the wrapping
machine and repeated such conduct after being "warned not to do so," similarly
sound a tenuous and implausible note.is The fact is, as the evidence establishes,
that Simon had had little experience as a lineman prior to his assignment to the day
shift, and that for that reason, and his impaired vision, he asked Miller to help
him and to show him how to make adjustments on the wrapping machine. Against
that background, I think it quite improbable that Simon would be critical or, in any
case, take a serious view of the "adjustments" to which he alludes, particularly
in the light of the evidence that the machine was defective and old, and subject to
frequent breakdowns.
The testimony of Berry and Simon imputing a history of inefficiency, insubordina-
tion, inattention to duty, and excessive tardiness to Miller is entitled to no greater
credence than the complaint cards they signed, for both the testimony and the
Miller testified without contradiction, Simon responded that "I'll say that much for you
that there isn't any line that is better than you girls, the girls on your line."
16 The alleged infraction of December 2 is recorded in Simon's notebook as having
occurred on November 19, 1958. It may also be noted that the claimed "insubordination"
recorded on the November 10 card is not entered in the book. Be that as it may, the
book, like the cards, has earmarks of unreliability. One notable one is that although
Simon claims he kept it as a record of infractions of all employees under his supervision,
Miller is the only employee mentioned in it. Interrogated about the matter, he pointed
to some evidence that pages had been torn out and explained that these were the pages
on which he had recorded shortcomings of other employees. But when asked to name
such employees, he refused to do so on the professed ground that he "couldn't see bring-
ing" up the name of a person involved in an infraction that had been "all cleared up."
It is also noteworthy that although the sense of testimony by Simon is to the effect that
the book was a substantially contemporaneous record of employees ' shortcomings, it
contains a "general statement" of alleged infractions for the period "10-27-58-
12-13-58," comparable to the card of that nature. Incidentally, the transcript, among
other inaccuracies, erroneously quotes me as alluding to the notebook as "a true docu-
ment" In the course of passing upon an objection. As is evident from the context, the
colloquy in question took place only a short while after the initial allusion to the book
by counsel, and long before it was offered and received in evidence, and there was obvi-
ously no occasion for the characterization of the book imputed to me in the transcript.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contents of the cards are basically cut from the same cloth . Moreover , contrary
to the claims of Berry and Simon , there is substantial evidence in the record, in the
form of testimony by employees who worked with or near Miller, to the effect
that she performed her work competently and attended to her duties, and that the
machine-jamming which Berry and Simon stress as causing production lags, was
the product of an old and defective wrapping machine. So far as the record shows,
only one of these employees (Merrill ) is an active adherent of the Union ( in fact,
there is no evidence that any of the others are even members of the organization),
and, assuming for that reason , for the sake of discussion, that she may be regarded
as an interested witness, the record presents no reason for the application of that
label to the others. In short, Turner, Curry, Johnson, Merrill, Hopkins, and Davies
impressed me as credible witnesses , and_I credit their testimony on the subject of
Miller's work performance , and her punctuality characteristics in returning to her
work station from lunch and rest periods. Moreover, against the background of
this credited evidence of Miller's fellow employees , and in view of the shortcomings
in the testimony of Berry and Simon, d credit Miller's testimony that neither Berry
nor Simon ever expressed any criticism of her work to her.
With respect to the morning tardiness imputed to Miller, in the light of a number
of matters to be noted below, I find credible Miller's testimony to the effect that
her tardiness rate was no higher than those of the other employees on her line, but
apart from that, there are clear indications in the record that tardiness was not a
factor in the decision to dismiss her.
Support for that conclusion may be found, first, in the tenor and content of a
sworn statement Berry gave representatives of the General Counsel several months
before the hearing. Although the affidavit purports to set forth deficiencies in
Miller 's work and Berry's alleged reasons for the discharge , there is no reference
in the statement to any tardiness by Miller.17 Significantly, in that connection, in
his affidavit, Berry specifically states that his reason for discharging another employee
(Howard Shepherd) was the latter's tardiness in returning to work from lunch and
rest periods The omission from the affidavit of any imputation of tardiness to
Miller may be contrasted with Berry's testimony that "the times" when Miller "wasn't
at her wrapper" in the morning to relieve the graveyard shift wrapper operator on
her line were "very obvious." Second, one would think that if Miller's punctuality
characteristics were substandard, Berry would have made out one or more complaint
cards about the matter; yet the Respondents produced no such cards, and it is evi-
dent that they have none.18 Third, although the Respondents maintained daily
records of Miller's morning reporting time, as they do in the case of the other pack-
aging department day-shift employees, they produced no such records, nor did
they explain their omission to do so; and one may thus entertain a doubt, to say the
least, that the records would support Berry's claim that Miller's tardiness rate
was higher than the average rate of the other employees on her line. Fourth, it is
well to note that the Respondents' answer states that Miller "was dismissed for
inefficiency, insubordination, failure to follow orders and a deliberate attempt to
slow down . operations and generally showing an attitude lacking in coopera-
tion or a full realization of her duties and obligations as an employee; . . . and
17 It may be noted, by the way, that the picture of extensive deficiencies in Miller's
work drawn by Berry and Simon in their testimony, and the reasons for the dismissal set
out in the affidavit, do not quite jibe with a statement Berry makes in the document that
he "would have no objections to Miller's reinstatement," and that "she was as good a
worker as there was in the place " In his testimony, Berry advanced the claim that he
signed the affidavit "under duress " It would serve no useful purpose to recite the testi-
mony he gave on the subject Suffice it to say that he was given an ample opportunity
to support his claim with facts, and that what resulted, basically, was an extensive
pattern of evasiveness and inconsistency, with manifestations of a disposition to distort
the meaning of words and ideas to serve what he conceived to be his interest of the
moment There is no warrant for believing his generalizations that lie was subjected to
"duress " If anything, the deficient quality of his testimony on the subject, and his
evasive demeanor in giving it, add weight to the reasons why I ani unable to accept his
testimony imputing insubordination, neglect of duty inefficiency, and excessive tardiness
to Miller, and his claim that he discharged her for justifiable cause
is Ryan produced only two complaint cards alleging tardiness by Miller Previous
reference has been made to these cards. As noted earlier, one was signed by' Hammer
and the other by Simon, after Miller's discharge, and some 6 or more weeks after the
alleged tardiness incidents described in the cards No additional comment on the cards
need be made here, except to note that each purports to describe a tardy return from
lunch. The Respondents produced no complaint cards alleging any incident of morning
tardiness or of a late return from a rest period
ORE-IDA POTATO PRODUCTS, INC., ETC. 285
that her discharge was the result of an accumulation of infractions and failures."
One may agree that the quoted allegations are technically broad enough to embrace
a defense that tardiness played a role in Miller's dismissal, but the fact nevertheless
remains that the Respondents undertook to specify alleged reasons for the dismissal
in their answer, as Berry did in his affidavit, and that the answer, like the affidavit,
does not even impute tardiness characteristics to Miller, let alone specify them as
a reason for the dismissal. In sum , I am persuaded that Miller was never repri-
manded for tardiness, as she testified; that tardiness was not a factor in her dis-
charge; and that the claims imputing tardiness characteristics to Miller are an after-
thought, like the complaint cards signed by Simon and the testimony of Berry and.
Simon imputing insubordination, inefficiency, inattention to duty, and responsibility
for machine-jamming to Miller, prior to December 13, 1958.19
As for the claim that Miller absented herself from her station, without leave,
shortly before the lunch period on December 13 (the precipitating cause of his dis-
charge recommendation, according to Simon), I see no reason, in the face of the
deficient quality of Simon's testimony, taken as a whole, to take his word over that
of Miller who denied that she was ever absent from her line needlessly or held up
production there. The denial, it should be home in mind, finds credible support
in the testimony of employees, who worked at or near her line, to the effect that
they never saw her leave her line needlessly or slow down production, and that
she performed her work competently. However, the choice between the conflicting
c,laims dos not rest merely upon a belief that Miller and various employees who
worked with or near her are more credible witnesses than Berry and Simon. As
will presently appear, there are factors outside the testimony of Miller and her fellow
employees that militate against acceptance of the claim that an unauthorized absence
by Miller from her station precipitated either a recommendation that she be dis-
charged or the decision to dismiss her.
Simon gave ,testimony to the effect that the alleged incident took place within
about 15 minutes before the line's lunch period (or at "approximately 12.25 p.m.," to
quote the December 13 complaint card which Berry signed some time after that date),
and according to both Berry and Simon, the latter recommended Miller's discharge
within a matter of minutes thereafter ("around 12:25, close to lunch hour time,"
Berry testified). Berry also stated that he "started to go get her card and dismiss
her" as Miller's line was "at the point of shutting down" for lunch, but that he
was delayed in informing her of her dismissal until after she went to the lunchroom
because it was necessary for him to unlock the medicine cabinet for an employee.
If the testimony as to the timing of the recommendation and what Berry did
before he entered the lunchroom is credible, it would tend to explain why he did
not discharge Miller, as he did Johnson, before the start of the lunch period, and
why Miller's closing paycheck, unlike that of Johnson, was not prepared before the
start of the lunch period. The difficulty with the explanation is that its whole
underpinning is materially weakened by the fact that in a written statement executed
by Simon and given to a representative of the General Counsel some time before
the hearing, Simon said, under oath: "Mr. Berry received my recommendations for
Fern's discharge a couple of hours before he discharged her on December 13, 1958."
[Emphasis supplied.] 20 In addition, the discrepancy between the affidavit and the
'B Actually , although the Respondents presented testimony imputing excessive tardiness
to Miller , it is not even clear that Berry makes any claim, in his testimony, that any
tardiness by Miller entered into his decision to discharge her According to Simon, the
precipitating cause of his alleged recommendation that Miller be discharged was that
while he was making it "minor adjustment " on the wrapping machine , Miller was absent
from her station "talking to other employees " on another line As Berry describes the
recommendation , Simon told him that Miller "was causing trouble" by absenting herself
from her station and being "over on the line talking " , that " the jam - ups had been
numerous as previously and production had been slowed doisn again " and that Miller
should be dismissed because she had been green "every opportunity to do a better job"
and had not improved Perhaps the intended implication of this testimony is that Berry
took alleged tardiness by Miller into account in deciding to discharge her, but whether
or not such an implication may be* read into Berry's description of the alleged recom-
mendation and the decision lie says he then formed , I find , for the reasons stated, that
the tardiness imputed to her had nothing to do with her dismissal.
2OAmong the deficiencies in the transcript , to which previous reference has been
made , it erroneously imputes the interrogation appearing on p 264 to rile As one may
gather from the general context , the questions on the page were put , and the related
allusions to Simon ' s sworn statement were made, by the General Counsel However, for
the reasons previously noted , I see no need for the entry of an order correcting the record.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony by Berry and Simon as to the time of the alleged recommendation casts
a large shadow over the credibility of the claim that Miller absented herself from
her line, without leave, on December 13, and that this precipitated a recommendation
by Simon that she be discharged. It is also noteworthy that neither Simon' s "gen-
eral statement" complaint card, although executed after Miller's discharge, and
purporting to criticize Miller's performance from "10-27-58 to 12-13-58," nor his
notebook makes any reference to an unauthorized absence by Miller from her line
(although stating that she talked "constantly"), or to any recommendation that she
be discharged. Nor is there any reference to Simon or a recommendation by him in
Berry's complaint card dated December 13, which purports to describe the alleged
unauthorized absence by Miller from her station and the claimed basis for Berry's
decision to discharge her. Why, one may pertinently inquire, did not Simon, Miller's
immediate supervisor, who claims he witnessed the alleged infraction ( an "im-
portant" one, according to Simon), execute a complaint card in accordance with the
customary practice Ryan describes? The question was in effect put to Simon and
produced the reply, "So many things happened that day," an explanation that appears
to me to be more evasive than enlightening. Putting this answer and the material
discrepancy concerning the time of the alleged recommendation alongside other
shortcomings in the testimony of Berry and Simon, and taking into account the
testimony of Miller and her fellow employees, I do not believe that Miller absented
herself from her station, as Simon testified and Berry's complaint card states, nor
am I able to credit the claim that Simon recommended Miller's discharge because
of such an unauthorized absence, or that it was a factor in the dismissal.
The sum of the matter, in the light of what has been said above concerning the
credibility of Berry and Simon, is that the reasons for Miller's discharge put forward
by the Respondents do not survive scrutiny. And the fact that the justifications do
not stand up under inspection gives support to an inference that the Respondents
have concealed the real reason for the discharge, and have done so because the
reason is unlawful.
The real reason emerges upon consideration of the setting of the discharge, viewed
against the background of the Respondents' hostility toward the free exercise by their
employees of rights guaranteed by Section 7 of the Act That attitude was mani-
fested by the Respondents' formation of the grievance committee, and by other
conduct, on the eve of the first election, which, as the Board has held, "made a fair
election impossible." Significantly, also, that holding does not appear to have
deterred the Respondents from assisting, if not indeed sponsoring, the reorganization
of the committee, and recognizing and dealing with it, as the representative of em-
ployees, while the second Board election was pending 21 Clearly, too, the Respond-
ents' attitude toward unionization and the free exercise of Section 7 rights is shared
by Berry, as is evident from the fact that he resented Miller's committee activity of
November 21-an activity that was manifestly within the scope of her functions as
a representative of employees in her department (and is protected by Section 7 of
the Act); 22 that some 2 or 3 weeks thereafter, shortly before Miller's discharge, the
foreman expressed a resolve "to clean up the union representatives" (an allusion that
obviously referred to Miller, whoever else was meant); and that shortly after that
he stated that he was "waiting" for Miller and Johnson "to make a cabobble "
Reading these statements together, as one should, and placing them beside the fact
that he was resentful of Miller's activity of November 21. and manifested coolness
toward her thereafter, in contrast to his prior attitude of friendliness. it becomes
clear that from the time he became aware of her November 21 committee activity,
21 There is undisputed evidence that in connection with the reorganization of the
committee in August 1958 Berry asked Miller and others, in turn, to serve on it; that
Miler and the others declined ; that various packaging department employees suggested
that a committee representative be selected by the ballot of employees ; that Berry agreed
to the suggestion, that the balloting was held on the plant premises during working
time : and that it resulted in the selection of Miller and Hopkins (who were "approxi-
mately tied" in the balloting results) as the committee representatives of the employees
involved As regards the Respondents' participation in the reorganization of the com-
nnttee, it may be noted that in an affidavit Berry gave representatives of the General
Counsel several months hefoie the hearing, the foreman states that lie "held the elec-
tion" that resulted in the selection of Miller and Hopkins as committee members
=a At least one of the functions of the committee was to discuss employees' complaints
and suggestions with management representatives such as WW"illia,ins at regular weekly
meetings
ORE-IDA POTATO PRODUCTS, INC., ETC. 287
and because of it and an underlying hostility toward "union representatives," Berry
was predisposed to discharge her.
That this attitude surfaced and resulted in Miller's discharge in the lunchroom
becomes clear upon an examination of the setting and sequence of events there:
The context in which Miller gave Johnson the slip of paper containing the Board
address was such that it would reasonably lead one to believe that the tender of
the paper was a gesture of support for Johnson, whether or not one knew the con-
tents of the paper. Miller and other women present were weeping at the time,
obviously because of sympathy for Johnson, and even Berry's testimony suggests
that he was resentful of this display, for he describes the scene as one of "people
crying and going on about how they had been discriminated against." He does not
identify who was "going on about" discrimination, but it is a fact that in the setting
in the lunchroom, Miller's tender of the slip of paper to Johnson had the appearance
of a direct gesture of sympathy for Johnson; that it came from a person whose
activity as a grievance committee member Berry had resented, and who was a target
of his recent threat "to clean up the union representatives"; that Berry saw the
transfer of the slip; and that his inquiry whether Miller would like to go to the
personnel office, a threatening implication of imminent discharge (and palpably so
intended by Berry and understood by Miller) came hard on the heels of the transfer
of the paper, and was obviously linked to it, whether or not Berry knew what the
slip contained For reasons previously stated, his claim that he had decided to
discharge Miller, upon a recommendation by Simon, before he entered the lunch-
room does not stand up. The setting in the lunchroom and the tenor of his remark
to Miller, viewed against the background of the fact that she was Johnson's repre-
sentative on the grievance committee and an active adherent of the Union, and that
Berry was hostile to Miller because of her November 21 committee activity and had
expressed a resolution "to clean up the union representatives" shortly before the
lunchroom incident, warrant an inference, and I find, that Berry regarded Miller's
act of handing Johnson the slip of paper as a gesture of support and as part and
parcel of what he terms "going on about" discrimination; that he resented this
action; that his resentment fed upon his preexisting hostility toward Miller as one
of the "union representatives," and her grievance committee activity of November
21; and that such resentment and hostility prompted him to ask Miller whether she
would like to go to the personnel office, and to send her there for her termination
when she replied that that was up to him.
The sum of the matter is that Berry discharged Miller because of her activities on
behalf of employees as a member of the grievance committee, and because of hos-
tility toward her as a "representative" of the Union; and that as a result of the dis-
charge, the Respondents discriminated against Miller in violation of Section 8(a) (3)
of the Act, and interfered with, restrained, and coerced employees in the exercise
of rights guaranteed by Section 7 of the Act, thereby violating Section 8(a)(a)( I) of
the said statute.
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the Respondents described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V.- THE REMEDY
Having found that the Respondents have engaged in unfair labor practices viola-
tive of Section 8(a)(1) and (3) of the Act, I shall recommend that they cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
The Respondents' unfair labor practices abridge basic rights guaranteed employees
by Section 7 of the Act.23 The rights involved are closely related to others guar-
anteed by Section 7. In view of the nature of the unfair labor practices found above,
and as the Respondents have committed other unfair labor practices, as the Board
found in Ore-Ida Potato Products, Inc., et al., 123 NLRB 1037, there is reasonable
ground to believe that they will abridge such other rights in the future unless appro-
priately restrained. Therefore, in order to make effective the interdependent guar-
antees of Section 7, I shall recommend an order below which will in effect require
21 N L.R R. v. Entwistle Mfg. Co., 120 F 2d 532 (C A 4).
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondents to refrain in the future from abridging any of the rights guaranteed
employees by said Section 7.24
Having found that the Respondents discharged Fern Miller on December 13,
1958, in violation of Section 8(a) (1) and ( 3) of the Act, I shall recommend that the
Respondents offer her immediate and full reinstatement to her former or a sub-
stantially equivalent position without prejudice to her seniority and other rights and
privileges , and make her whole for any loss of pay she may have suffered by reason
of the discrimination against her , as found above, by payment to her of a sum of
money equal to the amount of wages she would have earned , but for the said dis-
crimination, between December 13, 1958, and the date of a proper offer of rein-
statement to her as aforesaid ; and that the said loss of pay be computed in accord-
ance with the formula and method prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289, to which the parties to this proceeding are expressly
referred.25
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding , I make the following:
CONCLUSIONS OF LAW
1. The Respondents constitute , and have constituted at all times material to this
proceeding , a single employer within the meaning of Section 2(2) of the Act.
2. Amalgamated Meat Cutters and Butcher Workmen of America, AFL-CIO, is,
and has been at all times material to this proceeding , a labor organization within
the meaning of Section 2(5) of the Act.
3. By discriminatorily discharging Fern Miller , as found above, the Respondents
have engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
4. By interfering with , restraining , and coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act, as found above, the said Respondents
have engaged in and are engaging in unfair labor practices within the meaning of
Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
u May Department Stores d/b/a Famous -Barr Stores v N L R B , 326 U S. 376 ;
Bethlehem Steel Company v N L R B, 120 F. 2d 641 ( C A, D C ).
21 In accordance with the Board 's past interpretation, the expression "former or a
substantially equivalent position" is Intended to mean "former position wherever possible,
but if such position is no longer in existence , then to a substantially equivalent position "
The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
Benne Katz , Alfred Finkel , and Murray Katz, d/b/a Williams-
burg Steel Products Company and Architectural and Engi-
neering Guild , Local 66, American Federation of Technical
Engineers , AFL-CIO. Case No. 2-CA-5368. January 22, 1960
DECISION AND ORDER
On July 13, 1959, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that pit cease and desist therefrom and
take affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief, and the General
Counsel filed a brief.
126 NLRB No. 39.