Loggins Meat Co., Inc., 303 (1973)

LOGGINS MEAT CO., INC. 303

Loggins Meat Co., Inc.' and Amalgamated Meat Cutters and Butcher Workmen of North America, AFLCIO, Local Union No. 540. Case 16-CA-4908

October 9, 1973 DECISION AND ORDER

BY MEMBERS FANNING, KENNEDY, AND PENELLO On February 9, 1973, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, the Respondent and the General Counsel filed exceptions and supporting briefs, and the Charging Party filed exceptions.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and, conclusions to the extent consistent herewith.

The Administrative Law Judge found 8(a)(1) and (3) violations in the 3-day suspension of Johnnie Sanders on July 28, 1972, and her discharge on August 18, 1972. We do not agree that the General Counsel has established by a preponderance of the evidence that the Respondent either suspended or discharged Sanders because of her union activity.

The only evidence of union activity on the part of Sanders shown to have been known to the Employer is that on the day of the election, some 5 months before her suspension, Sanders wore a 'Vote Yes' button .2 However, many of the other employees wore such buttons and no reprisals were taken against them. In finding that Sanders' suspension was discriminatorily motivated, the Administrative Law Judge relies on Sanders' testimony that after she had returned to work she was told by Plant Manager Parker that she had 'harassed' three employees and named Linda Land as one of them. Elsewhere in her testimony Sanders identifies Land as one of the employees 'who, had slowed down on attending union meetings.' Sanders made no inquiry of Parker as to the nature of the alleged harassment. Neither did she seek any explanation from Land. There is no evidence that Sanders had solicited Land in connection with the Union, or that she had engaged in contacting support1 The name of Respondent appears as amended at the hearing2 Sanders testified that she handed out six or seven cards between January and her termination The dissent refers to Sanders' solicitation of other employees to sign cards for the Union, and the Administrative Law Judge has found that this was the reason for Respondent's treatment of Sanders.

But no evidence is recited to show Respondent's awareness of this activity.

ers of the Union that seemingly had lost or were losing interest. TheAdministrative Law Judge draws the inference that when Parker spoke of harassment he had reference to solicitation in behalf of the Union.' He then proceeded to draw the further inference, based on the skeletal testimony that Land had slowed down in her attendance of union meetings, that Sanders was suspended by the Employer in the mistaken belief that she had been soliciting Land to renew her support of the Union. We view this as no more than speculation.

Equally tenuous is the Administrative Law Judge's apparent theory as to Sanders' subsequent discharge.

Sanders testified that at the time of her discharge she was told by Plant Superintendent Clarkson that 'you have been heard to say you were going to slow down in your work and you did.' Sanders made no reply to that accusation at the time. She, merely departed without saying anything further. However, at the trial in this proceeding she denied that she had engaged in any work slowdown. Based on Sanders' denial at the hearing, the Administrative Law Judge concluded that the Respondent was mistaken when it believed that Sanders had slowed down in her work. Because some employees had previously discussed, a work slowdown at a union meeting, the Administrative Law Judge perceived some connection between that union activity and Sanders' alleged work slowdown.

However, according to the Administrative Law Judge, the employees had rejected the idea of a slowdown and there is no evidence that Respondent was even aware of the discussion of that topic at a union meeting. Nevertheless, he felt that Respondent's mistaken belief regarding Sanders arose in a 'context' of employees' union activities and concluded that the Burnup & Sims, Inc.,4 principle was applicable to this situation. We disagree.

In Burnup & Sims, Inc., the Supreme Court stated:

In sum, '§ 8(a)(1) is violated if it is shown that the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, and that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct.

It is clear in the instant case that Sanders was not 3 We believe the word harassment is capable of other interpretations than union solicitations. Thus, although not mentioned in the Administrative Law Judge's Decision, the record shows from Sanders' own testimony that, a few days before her suspension, it was brought to the Employer 's attention that she and another employee, Wanda Bennett, had engaged in an altercation arising out of Bennett's taking offense from remarks of Sanders with respect to another employee riding home with Mexicans and that 'WAmte girls should leave Mexicans alone.' 4379 U.S. 21, 23 (1964) 206 NLRB No. 31 engaged in a protected 'activity concurrently with Respondent's mistaken belief of misconduct. The connection between Sanders' earlier union activities and Respondent's subsequent belief that she had slowed down in her work is missing. Under Burnup & Sims there must coexist a protected activity and an employer's mistaken belief that the discharged employee had engaged in misconduct 'in the course of that activity.' Moreover, unlike, the Administrative Law Judge, we are not persuaded that the discharge of an employee at the start of the workday and without prior warning necessarily 'compels' a finding that there was a discriminatory motivation for the discharge. Nor do we find adequate warrant for such a conclusion in our colleague's dissent.

On the basis of the record before us, we find that the General Counsel has not established that either Sanders' suspension or discharge was violative of Section 8(a)(1) and (3). Accordingly, as the Administrative Law Judge found no violations of Section 8(a)(1) and (5), we shall dismiss the complaint in its entirety.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Lbor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety.

MEMBER FANNING, dissenting:

I do not agree with the majority's refusal to find, as the Administrative Law Judge did, that the suspension and later discharge of employee Johnnie Sanders were violations of Section 8(a)(3) and (1). I would, moreover, reverse the Administrative Law Judge's conclusion that Respondent did not violate Section 8(a)(5) of the Act.

In my opinion the General Counsel has established a prima facie case that Johnnie Sanders' suspension and discharge were discriminatorily motivated because of her membership in the activities on behalf of the Union. The Administrative Law Judge found that Sanders wore a 'Vote Yes' badge on election day,

March 10, 1972. This was brought to the'attention of coowner Ronnie Loggins when he asked Sanders' department leadman how many girls were wearing 'Vote Yes' badges.' Sanders and another girl were the only two in that department who were wearing such badges, and Sanders was standing 'right beside' Loggins at the time. The Administrative Law Judge also found that Sanders passed out cards throughout 5 By inadvertence the Administrative Law Judge found that Plant Superintendent Charles Clarkson, rather than Ronny Loggins, was involved in this incident the campaign. In addition the record shows that even after the election she (Sanders) gave' some cards to new employees, and she attended all union meetings.

Sanders received wage increases of 10 cents an hour in January and July. In his Remedy section the Ad= ministrative Law, Judge found that Sanders was later reinstated.

The varying reasons given to Sanders for both the suspension and the discharge by Respondent tend to indicate that the reason for its action was union animus. Originally Sanders was told that the reason for her July 28 suspension was 'some confusion that was going around.' Upon her return to work on August 3 a different reason, her alleged harassment of three employees, was given to her for the suspension. When Sanders was discharged on August 18 the purported reason,given her was 'all this confusion that has been going on.' Sanders denied knowledge of this, and Respondent told her that she had engaged in a slowdown. At the hearing it offered no evidence of a slowdown.

The shifting reasons for the suspension and the discharge, the lack of any warning that she might be discharged, and the Respondent's failure to offer any evidence that Sanders participated in a slowdown persuade me that the Administrative Law Judge rightly concluded-apart from reliance on N.L.R.B. v. Burnup & Sims, 379 U.S. 21 (1964), on the 8(a)(1) aspects of the Respondent's treatment of Sanders-that she was suspended and discharged in violation of Section 8(a)(3) and (1).6

The complaint alleged an 8(a)(5) based on negotiating in bad faith and withdrawing the authority of 6 The General Counsel has excepted to the failure of the Administrative Law Judge to credit the testimony of Sanders and of Ann Hunter concerning remarks made to them by coowner Randy Parker, which remarks are alleged as 8(a)( 1), as well as 8(a)(5), violations . Sanders was called in by Parker on August 3, after her suspension of July 28, and, as she testified, told that 'he had a bunch of complaints from the Labor Board, but...

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