Baltz Brothers Packing Co.

National Labor Relations Board - Board Decisions

Jul 1, 1965

153 N.L.R.B. 1114 (N.L.R.B. 1965)

1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Decision issued by the Trial Examiner of the National Labor Relations Board:
Joseph Ahern, Joseph Atchley, Floyd Burdohan, Gary Miller, William Killinger,
Chester Rummell, Eloise Black, Kathryn Johns, Marion Bass, Cora Fasnacht,
Emogene Ferrell, Ethel J. Koon, Ann Pontine, Bernice Stanley, Alla J. Shell,
Ruby Toothman, and Margaret Spalding.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations, to
join or assist International Brotherhood of Bookbinders, Akron Bindery Work-
ers Union Local No. 5, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from engaging in such activities except
to the extent that such right may be affected by an agreement requiring member-
ship in a labor organization as authorized in Section 8(a)(3) of the Act.
All our employees are free to become, remain, or refrain from becoming or remain-
ing, members of any labor organization.
DANNER PRESS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE -We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 720
Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No Main I-
4465, if they have any questions concerning this notice or compliance with its
provisions.
Baltz Brothers Packing Company and Amalgamated Meat Cut-
ters and Butcher Workmen of North America , AFL-CIO,
Local #405. Cases Nos. 26-CA-1873 and 26-CA-1913. July 1,
1965
DECISION AND ORDER
On April 5,1965, Trial Examiner Eugene F. Frey issued his Decision
in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the Trial Examiner's Decision. He
also found that Respondent had not engaged in other unfair labor prac-
tices and recommended that the complaint be dismissed as to them.
Thereafter, the General Counsel filed exceptions to the Trial Exam-
iner's Decision and a supporting brief and the Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this proceeding to a three-
member panel [Chairman McCulloch and Members Fanning and
Brown].
153 NLRB No. 89.
BALTZ BROTHERS PACKING COMPANY 1115
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 Trial
Examiner's Decision, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner and orders that
Baltz Brothers Packing Company, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Rec-
ommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The issues in this case are whether Respondent, Baltz Brothers Packing Company,
during an organizing campaign of the above-named Union at its Nashville, Tennes-
see, plant (1) discharged two employees for union and other concerted activities,
in violation of Section 8(a)(3) of the National Labor Relations Act, as amended,
29 U.S.C. Sec. 151, et seq. (herein called the Act), and (2) coerced and restrained
employees by interrogations, promises and grants of benefits, threats of reprisal and
other coercive conduct, in violation of Section 8(a)(1) of the Act. The issues arise
on a consolidated complaint issued September 18, 1964,1 by the Board's General
Counsel through the Regional Director for the Region 26, and answer of Respondent
admitting jurisdiction but denying the commission of any unfair labor practices. A
hearing on the issues was held on due notice before Trial Examiner Eugene F. Frey
at Nashville, Tennessee, on November 16 and 17, 1964, in which all parties partici-
pated fully through counsel or other representative. On motion of General Counsel
at the close of his case-in-chief, I dismissed the allegations of the consolidated com-
plaint charging that Dennis Baltz on June 29, 1964, and James Osborne in July 1964
threatened employees with discharge and solicited an employee to inform on union
activities of other employees. I also granted Respondent's motion to dismiss said
complaint insofar as it charged that Dennis Baltz in mid-July 1964 threatened
employees with more arduous working conditions. At the close of the testimony, I
reserved decision on Respondent's motions to dismiss the remainder of the com-
plaint on the merits; those motions are disposed of by the findings and conclusions
below. General Counsel and Respondent presented argument on the above motions,
which was in effect oral argument on the issues. All parties were given opportunity
to file written briefs, and General Counsel filed a brief which has been duly considered.
Upon the entire record in the case, and and from my observation of the witnesses
on the stand, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Tennessee corporation with its principal office and place of busi-
ness in Nashville, Tennessee, where it is in the business of making and selling beef,
pork, and allied meat products. In the 12 months prior to issuance of the complaint,
Respondent had a direct inflow of products to its Nashville plant valued in excess of
$50,000. Respondent admits, and I find, that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
1 The complaint issued after Board investigation of charges filed by the above Union
on July 14 and September 18, 1964, in Case No. 26-CA-1873, and other charges filed by
It in Case No . 26-CA-1913 on August 27 and September 18, 1964.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION
The Union named above is a labor organization within the meaning of Section
2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The union organizing campaign
On June 19, 1964, the Union began an organizing campaign among Respondent's
employees by holding a meeting with employees, at which about 28 signed union
authorization cards. A second meeting was held the night of June 26 at the union
office in Nashville, and later meetings were held at that office on July 3 and July 9.
During the campaign a committee of employees Clifton Mitchell, Ernest Stephens,
Fred Collier, and Willie and Murray Sowell actively assisted the Union by soliciting
other employees to sign cards, and notifying them of the time and place of various
union meetings.
B. Employer reaction to the campaign
The June 26 meeting of workers was held at the union office on 12th Avenue, near
Church Street, in Nashville. Employees Robert Shelton and Clifton Mitchell attended
it. On Monday, June 29, Company Vice President and Personnel Director Dennis
Baltz remarked to Shelton, when passing him at work in the plant, that he heard a
"lawn party" had been held, and that Shelton had attended it. Shelton denied that
he had. The same day Vice President and General Manager Frank Baltz asked
Mitchell at his workplace if he had a good time at the "party." Mitchell replied
that he did not know what Baltz was talking about. Two or three days later, Baltz
told Mitchell he had heard that Mitchell was one of the "ringleaders " Mitchell made
the same reply as above, and Baltz said "you know what I'm talking about, all right."
Employees Charles Gooch and Ernest Stephens attended the first union meeting
of June 19. On Wednesday, June 24, Gooch went to see Frank Baltz to borrow
money, as he had often done in the past. Baltz asked him if he had signed a union
card. Gooch replied he had not (which was not true). Baltz then said, "You know
that you and Murray Sowell are the ringleaders in that thing back there," to which
Gooch replied that he knew nothing about the Union. Baltz commented that the
plant did not need a union He then loaned Gooch the money. On Monday, June 22,
Frank Baltz came upon Stephens and others as they were picking up ham loaves
which had spilled on the floor in the ham room. Baltz asked Stephens if he had gone
to a "night of fun" last Friday night. Stephens replied, "No, not me." Baltz com-
mented that if the employees would keep their products stacked properly and keep
their minds on their jobs instead of having so many "nights of fun," the products
would not have been spilled.
I find the above facts on credited testimony of the employees named in each
instance, as corroborated in part by admissions of Dennis and Frank Baltz. Testi-
mony of the latter officers in denial or conflict therewith is not credited because
(1) both men admitted that just before July 1 they learned from a former employee
that a "lawn party" (the worker reported it was a gathering out in the "country")
had been held by 25 to 30 Negro employees over the past weekend, and that in about
2 weeks they planned to walk off the job in order to get more money. Frank asked
the worker if the Union was involved, and the worker said no. Frank Baltz said he
was concerned about this because Respondent had experienced two similar walkouts
of smaller groups of Negro employees in September and December 1963, and he had
these walkouts in mind when he questioned Stephens and Mitchell about the "lawn
party" and "night of fun" as found above; and (2) Dennis Baltz admitted that some-
time in June some workers had told him other employees had union cards, to which
he replied he knew it, and that company officers had heard from workers that various
Negro employees, including Stephens, had been going to the "lawn parties," and that
he had questioned employees directly about who attended union meetings. Both
officials claimed their interrogation was based on a fear of possible consequences to
plant operation from another larger walkout, but while this fear was natural, it still
did not justify their repeated and far from casual interrogation of workers about their
concerted activities, including rhetorical statements amounting to questions designed
to elicit answers disclosing such activities. I find that the interrogations of specific
employees found above, and those of others admitted by Dennis Baltz, were improper
inquiries into employees' concerted activities well calculated to coerce and restrain
such activities, and thus violated Section 8(a) (1) of the Act. Likewise, the rhetori-
BALTZ BROTHERS PACKING COMPANY 1117
cal and direct statements of both officers to workers, indicating that they knew or
had learned of employee distribution of cards or attendance at union meetings, had
a tendency to impress upon workers that Respondent was closely watching their con-
certed and union activities, and thus violated Section 8(a)(1) of the Act.2 I also
find from the Baltz' admissions and their interrogation and other remarks to employ-
ees, as found above, that Respondent was aware of the union campaign and the
activities of various employees in it almost from the outset.
On Friday morning, July 10, President Robert Baltz made a speech to all workers
assembled in the plant cafeteria. He opened by saying he had heard that the workers
had been attending meetings lately, and was glad they were attending one held by
him. He then reviewed the Company's progress and growth in its business, and the
growth of the profit-sharing plan it operated for employees, said he was very proud
that many workers who walked to work when first hired were now driving good cars
and buying their own homes. He showed the employees figures of the increase in
distributions to them under the profit-sharing program, and said he wanted that to
continue, and felt that it would with their help and all working together. He said
he had heard that some workers wanted raises, and commented that "maybe I put
too much emphasis on profit-sharing," and that the Company was ready to give them
a raise, but was waiting for one of its meat suppliers to cut its price on meat. Revert-
ing to the Union, he said that he did not want the workers to "tear down what we
have built up," and that the Union could not give them anything, that "it would have
to be made here." He also said that voting the Union into the plant was "not the
whole answer," that they had to have a contract, which could "result in problems for
all of us," that while the law required him to bargain with the Union in good faith,
he did not have to sign a contract. He also said that if he had the job of Eugene
Singer, the union agent, he would be out working hard to sign up members, that he
did not condemn Singer for this, for it was his job, nor did he condemn a worker for
signing a union card, which was his privilege.3 I find that Respondent violated Sec-
tion 8(a) (1) of the Act by Robert Baltz' (1) remark that Respondent had heard
reports about workers' meetings, which tended to give the impression of surveillance
of their concerted activities, (2) assertions that, while he might have to bargain with
the Union, he did not have to sign a contract, and (3) promise of a wage raise.
Employee Murray Sowell attended the third union meeting for employees Thurs-
day, July 9, 1964, at 8 p.m. at the union office in an office building on 12th Avenue,
Nashville. While standing outside before the meeting, Sowell heard talk that some
company supervisor had been seen nearby, so he and a union agent walked up on the
Church Street viaduct, which crosses 12th Avenue near the union office. While there,
they saw Dennis Baltz and his wife drive slowly up 12th Avenue in a station wagon,
turn left on a side street, come the other way down 13th Avenue, cross Church
Street, and up past the union office. Dennis Baltz admitted he did this because he
had previous reports that Negro workers were holding meetings and might strike for
more money, and had just learned that all the Negro workers would hold a meeting
that night on 12th Avenue somewhere between Church and Broad Streets, so he
wanted to find out if the report was true, for he was concerned about the effect of
a walkout of that size on plant production,4 having in mind the effect of two smaller
walkouts of Negro employees in September and December 1963.5 Although
Respondent's concern about effect of a possible large walkout on production was
natural, I must find that Dennis Baltz' delibeiate and open surveillance of the site
of a union meeting of employees was conduct well calculated to coerce employees
in exercise of their protected union and concerted activities (even though he did
not spot any workers he knew at the site) and violated Section 8(a)(1) of the Act.
On July 10, Foreman Chester Jarman told employee Edgar Hamilton, "I understand
you are one of the union men." Hamilton said he did not know what Jarman was
talking about. Jarman said, "I heard you were going to some meetings," and asked
21 find no violation of the Act in Dennis Baltz' query of Gooch on June 23 as to his
absence fiom work on June 22, and his speculation about whether the job was too hard
for Gooch which might require some changes, these was no mention of Gooch's attendance
at the June 19 meeting, or of the Union
3 This conversation is found from credited testimony of Murray Sowell and admissions
of Robert Baltz Testimony of Baltz at variance therewith is not credited, in view of
other admissions of the Baltz brothers indicating other coercive and antiunion conduct
4 The plant at that time had a work foice of about 166 people, of whom 90 were legioes
6 These facts are based on credited testimony of Sowell and Dennis Baltz
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
how he liked the "party the other night." Hamilton denied going to any meetings
or party. Later that morning, Hamilton heard Robert Baltz' speech. At quitting
time that afternoon, Jarman sent Hamilton to the office to see Frank Baltz. In their
discussion Hamilton said Robert's speech was a "bunch of jive." Frank told him,
"I have been warned that you are for the Union, and that I should get rid of you,
but I have not done that." He also reminded Hamilton that he had been mighty nice
to him by helping him out with baseball clothes and other things. He said he knew
that Hamilton and other employees were buying their own homes, and that if the
employees "tear down what we have built up here, a lot of them could lose their
homes," that "it would be mighty bad if something were to happen and you were to
lose your home." 6 The same day employee William Sowell was summoned to the
office to talk with Dennis Baltz about some discrepancies in the freezer-stock inven-
tory he was required to keep, one of Dennis' duties was inventory control During
a 30- to 40-minute talk in the presence of Frank Baltz, Dennis reverted to Robert
Baltz' speech of that day, saying that he was not trying to "scare" Sowell about his
job, but he knew that Sowell was "working hard against us," and he wanted him to
work lust as hard for the Company. He said that if the Union got into the plant,
he could not give Sowell $2 an hour. Sowell, who had been working in the freezer
for over a year, complained that working there made his nose bleed, and asked for
a transfer out of it Dennis asked him if that was why Sowell wanted the Union in
the plant. Sowell did not answer, and Dennis remarked that if the Union did get in,
management would "not necessarily" take Sowell out of the freezer, but would make
him stay there that much longer. As Sowell left the office after the talk, Frank Baltz
asked him "how do you feel about it?" T, I find that Respondent further violated
Section 8(a) (1) of the Act by (1) Jarman's direct and rhetorical questions to Hamil-
ton about his union activities, (2) Frank Baltz' indication that Hamilton's union
activity was being watched and reported to Respondent, and (3) Dennis Baltz' similar
indication of surveillance to William Sowell, and his thinly veiled warnings of reprisal
in denial of a wage raise and alleviation of his working conditions if his Union came
into the plant.
The Wage Raises
I have found that Robert Baltz made a coercive promise of a general wage raise
in his speech of July 10. About July 15, employee William R. Henderson asked
Frank Baltz in the office for a raise. Frank asked Henderson if he had signed a union
card. Hendeison said, no Frank said he had heard that Henderson was one of the
"ringleaders for the Union." He said he had checked Henderson's record and saw
that he had been due for a raise, and would get it in his next paycheck. As Hender-
son left, Baltz told him to "think things over before you make any decisions." Hen-
derson got the raise in his next paychecks The record also shows that during July
and August 1964, Respondent gave its employees about 119 individual wage raises,
which were all authorized by Dennis Baltz on the basis of individual performance.
General Counsel argues that the above raises, particularly the group of 119, were
coercively granted to induce employees to forego union representation. However,
I find from uncontradicted and credited testimony of Respondent's bookkeeper, Mil-
rainey, and Robert and Dennis Baltz, that it was Respondent's normal practice to
give individual merit raises whenever an employee appeared entitled to it, and under
this practice it had been giving raises weekly to employees at about the same fre-
quency during 1964 before and after the union campaign, and that the grant of about
119 raises in July and August was not above that frequency. Respondent does not
aI find these conversations fiom a composite of ciedible testimony of Hamiltos, Jar-
man, and Frank Baltz, and I do not credit any of their testimony at variance therewith,
particularly in Jarman's case because he admitted having heard his workers talk about
a "pi.rty" they had held shortly before, and that he asked Hamilton how he liked the
party he attended the other night. In light of other information Respondent received
about Negro workers' "parties" as found above, I am convinced the "party" Jarman
referred to was the union meeting of July 9
7 Respondent knew that Sowell was dissatisfied with freezer work for some time, be-
cause it affected his nose, for Frank Baltz admitted that Sowell made this complaint to
him about a year before.
The talk with Sowell is found on his credible testimony, as corroborated in large part
by admissions of Dennis and Frank Baltz. Testimony of the latter in conflict therewith
is not credited, in part for reasons stated above
BThis conversation is found on credited testimony of Henderson and Frank Baltz ; testi-
mony of both at variance therewith is not credited.
BALTZ BROTHERS PACKING COMPANY 1119
normally give systematic or general across-the-board raises, and there is no substan-
tial proof that, after Robert Baltz' offer of a raise on July 10, Respondent gave a
general or uniform raise, or that it increased its frequency of individual raises.9
Hence I cannot conclude that the 119 merit raises in July and August in the usual
course were designed or reasonably calculated to coerce employees, even after Robert
Baltz' promise. I therefore grant Respondent's motion to dismiss paragraph 14 of
the complaint based on these raises. However, while Henderson's raise was appar-
ently a normal merit raise and as such not a coercive act, Frank Baltz' interrogation
about his union activity and intimation that Respondent knew he was a "ringleader,"
followed by the admonition to "think it over" before he made any decision (obviously
about supporting the Union), after Baltz told him the raise was past due and would
be given shortly, was well calculated to give a broad hint to Henderson that this
raise (which was discretionary) was being given on condition that Henderson think
carefully about continuing his adherence to the Union. I find that Frank Baltz'
interrogation of Henderson and intimation that Respondent knew of his prominent
union activity were coercive remarks violating Section 8(a)(1) of the Act, and in
this context his announcement to Henderson, and the later grant, of the raise were
likewise coercive.
The Discharge of Ernest Stephens
Ernest Stephens was hired by Respondent in September 1960. After working for
a year at various operations, he was put in the smokehouse, where he molded, sacked,
and hung hams under supervision of Foreman Thompson until his discharge on
July 10, 1964. The first issue is whether he was at that time a supervisor, or an
"employee" protected by the Act.
Prior to discharge, Stephens was in a crew of 9 or 10 who worked under Thompson
in the ham room and smokehouse. He was paid $1.70 an hour, which was 10 cents
an hour more than other crewmembers, and 10 cents less than Thompson He did
the same work as other crewmembers, but when Thompson was absent on his annual
week's vacation and on occasional single days three or four times a year, Stephens
was in charge of the crew, assigning work to them from worklists given to him daily
by the department supervisor, George Byrd, showing men how to do the work if
necessary, usually by doing it himself to set the pattern of work to be done, and
checking to see that the required work was put out. At the end of the day he would
make out smokehouse slips showing the inventory on hand and work accomplished
for company records, just as Thompson did when present. When Thompson was on
the job, he split the crew into two approximately equal parts several times a week
to work in two locations, in which event Stephens was put in charge of one segment,
unless he happened to be assigned to work in the same segment as Thompson, in
which case another man in the other segment would take charge of it.10 When in
charge of a segment, Stephens did the same work as the others but was also charged
with the duty of seeing that the men with him did their work and did not "goof off."
As supervisor, Thompson was a working foreman, who wore the same clothes, did
the same manual work, was paid on an hourly basis, and punched the same timeclock,
as his crewmen; and Stephens did likewise when he was in charge during Thompson's
absence, or while in charge of a segment of the split crew. On such occasions, the
other men in the crew regarded him as the foreman in full charge. This situation
had prevailed for about 11/2 years before his discharge, although Stephens' raise to
$1 70 an hour came in November 1963. Respondent's officers testified that Stephens
was an assistant supervisory foreman, who received more than other crewmen because
of that title and his added duties; they explained this to at least one crewman (Ozie
e Respondent produced its tecords of pay raises in 1964 under Government subpena,
but General Counsel did not adduce any facts from those records to show that Respond-
ent after July 10 gave a general wage raise , or grouped later merit raises in such manner
as to show any deviation from its normal raise practice which would connect it with the
July 10 promise. While I have credited testimony of Murray Sowell about Robert Baltz'
promise of a raise on July 10, I do not credit his vague testimony that the workers later
got it as a group, and General Counsel produced nothing from the company records at hand
to support Sowell Since Robert Baltz in his speech had mentioned periodic profit-
sharing payments, and the record shows those checks go out to all employees at the same
time after the close of a business quarter ( the second quarter had ended June 30), I am
convinced that Sowell was really referring to these payments in his vague testimony.
iJ When the crew was split , Stephens worked in the same segment with Thompson only
occasionally , when Thompson wanted to check his work, after complaints came from
other crewmen that Stephens was not doing his share.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Winters) when he complained about Stephens' receipt of higher pay though he
turned out less work. The Baltz brothers also testified that Stephens had power to
hire and fire employees, but I do not credit this, for they admit that he was never
told that he had this power, and never exercised it. Aside from his power to direct
men at their work under the circumstances stated above, there is no proof that
Stephens had any of the specific types of authority normally exercised by supervisors
within the wording of the Act. I find that his exercise of apparent supervisory author-
ity in place of Supervisor Thompson was regular, not sporadic, insofar as he acted
for the latter during his annual vacation, and on any other days when he might be
absent for any reason, and the employees knew and expected that he would take
Thompson's place and be "in charge" on such occasions; in this respect, his replace-
ment of Thompson was not irregular or unexpected. Further, his exercise of author-
ity over the same full crew as Thompson supervised is not inconsistent with a finding
of supervisory status. On the other hand, it appears that his direction of the crew
during Thompson's absences at most involved the relay to the crew of the day's
work program, already blocked out by Supervisor Byrd, assignment of the men to
do that work, and seeing that they did it by working at it with them and setting them
an example; there is no clear proof, or any evidence from which I can infer, that
if they "goofed off" while he was in charge, he could discipline or penalize them
himself, or that they had reason to believe that he had power to do such. His higher
rate of pay is not a significant badge of supervisory authority, because it was only
10 cents above that of other crewmen, and he received it as the last of a series of
10-cent raises during his employment, which is more indicative of a normal merit
raise than of a special raise to compensate for assumption of supervisory authority.
In all the circumstances, I must conclude that Stephens' duties and authority as
assistant foreman" were no more than those of a more experienced worker who,
by reason of his ability, long service, and experience, is at times detailed to train less
skilled workers, assign work to them as a routine matter upon orders of manage-
ment, and assist them by example and other working help to get the work done, but
without any authority to use independent judgment in accomplishing this objective
or to take or recommend disciplinary action for that purpose. I find that Stephens
was an "employee," not a supervisor, within the meaning of Section 2(11) of the Act
Respondent's main defense is that Stephens was discharged only for cause and that
his union activity had nothing to do with it. The record shows, and I find, that prior
to discharge, Stephens had been working most of the time with Ernest Malone,
Ernest Harris, and Winters, when the crew was split. In the past year, Thompson
had received frequent complaints from other crewmembers that Stephens was lag-
ging, not doing his share of the work; Winters and at least one other worker com-
plained particularly that, as assistant foreman getting paid more than the rest,
Stephens should set an example by turning out as much and as good work as the
others, but he often did not. On basis of these complaints, Thompson often assigned
Stephens to work with him when the crew was split, and after observing him, he fre-
quently told Stephens to speed up his work. On or about June 1, 1964, Thompson
had a serious argument with Stephens about his inability or refusal to process some
baked hams as ordered. When Stephens vigorously argued about it, Thompson
punched out his timecard, told him he was through, and reported the discharge at
once to Frank Baltz. The latter conferred with Dennis Baltz, and then both talked
to Thompson about it, and had Thompson bring Stephens to the office. After a long
talk about it, the Baltz brothers told Thompson to "get together, work something out"
with Stephens, and give him another chance. At the same time Dennis Baltz told
Stephens that if any further complaints about him came to his attention, he would
not again interfere with Thompson's action on it. Thompson took Stephens outside
the office, asked him if he wanted to work, and when he said he did, Thompson said
he would give him another chance, but that this was "the last chance I'll give you."
Stephens went back to work and improved for a while, but Thompson noticed that
he still lagged behind others in his work, and reported this to Dennis Baltz.
Shortly after this discharge and reinstatement, Stephens secretly contacted a friend
outside the plant who put him in touch with the Union, as a result of which the
June 19 meeting was held and the campaign started. It is clear from Frank Baltz'
remarks to Stephens on June 22 found above and admissions of Dennis Baltz that
Respondent knew as early as June 22 of Stephens' attendance at union meetings.
"The mere title means little in the face of the existence or lack of the specific indicia
of supervisory authority specified in Section 2(11) of the Act.
BALTZ BROTHERS PACKING COMPANY 1121
On July 7, 1964, Thompson, Stephens, Malone, and one Ernest Harris were work-
ing together in the upstairs ham room, sacking and hanging hams. Harris loaded
hams on a moving conveyor belt, from which the other three picked, sacked, and
hung them, Stephens and Malone worked on one side of the belt (with Malone near-
est to Harris), while Thompson worked alone on the other. Thompson noticed that
Malone was sacking and hanging faster than Stephens, so that Malone's loaded trees
were piling up behind those of Stephens, with the result that Malone could not move
his out of the way readily before getting empty trees, and had to leave his station to
help Stephens load his trees. Thompson told both men they were working too slow,
as at that point they had only 10 trees filled to his 6. Both replied they were doing
their best, and Stephens added that they were not as fast as Thompson. Thompson
called Malone aside to urge him to work faster, and Malone said he was doing his
share, but that Stephens was not keeping up. When Thompson talked to Stephens
about it, the latter repeated he was going as fast as he could. Thompson told him
to speed up, so that Malone could move his filled trees out of the way. At the same
time, Thompson told both men management had complained that the work was not
going fast enough, so they would have to "tighten up," and that he might have to
discharge someone if they did not. After working awhile longer, Thompson noticed
that Stephens was lagging again, so cautioned him twice to work faster. When he
continued to lag, Thompson stopped Stephens, said it seemed that he did not want
to do his work, that he had given Stephens another chance but he still lagged.12
Thompson took Stephens off the line, punched his card out, and Stephens went to
change his clothes. Thompson at once reported the discharge and reason for it to
Frank Baltz. After dressing, Stephens called and told Frank Baltz on the plant tele-
phone that Thompson had fired him, and he guessed it was for not keeping up. Baltz
said he would look into it, see what he could do about it, and that Stephens should
get in touch with him later. When Stephens later came to the plant for his final
check, Baltz told him he had talked to Malone who said that Stephens was not doing
his share of the work. Stephens replied that he never wanted to work for Thompson
again. Late in July, Stephens asked Frank Baltz for a letter of recommendation in
connection with his application to the county board of education for a job. Baltz
had the office manager give him the letter.
It is clear that, despite his long service, high pay, and position as assistant to
Thompson, Stephens had for some time been less than a satisfactory worker. While
Thompson at times cautioned all crewmembers to speed up, he often had to tell his
assistant the same thing, particularly after complaints from other workers, who
argued that the high-paid assistant should do as much or better than the rest. This
complaint was made clear to Stephens by Frank Baltz in the talk after his June dis-
charge, and at that time Stephens rather defiantly admitted that he had told Thompson
that he "would not keep up." 13 Management reversed Thompson's decision this
time only because Dennis Baltz had been impressed with Stephens' dependability
and work under his supervision in the past, at the same time, however, management
warned Stephens that this was his last chance. In light of these facts, Stephens' dis-
charge on the 7th after failing to heed repeated warnings from his foreman to keep
up, and management's failure to reverse Thompson's action again, is entirely con-
12 At that moment, Malone was about 9 hams behind Thompson in loading, while
Stephens was behind about 50 hams, or nearly 2 trees
13 This defiant attitude appears from credible testimony of Thompson and Frank and
Dennis Baltz, and admissions of Stephens that he made this answer because Thompson
was making more money than he, hence he felt he was not required to keep up Thompson,
the foreman, was the fastest man on the crew This could be expected of it supervisor,
however, it was also reasonable for management to expect that his assistant of long ex-
perience, paid more than other crewmen, should also set an example in production and
attitude for other crewmen, which Stephens clearly failed to do His deliberate malinger-
ing on this occasion is highlighted by the credible testimony of Malone and Winters, and
admissions of Stephens, that when workers in the ham room several times a week had
private races in sacking hams with a paid lunch as the prize, Stephens speeded up and
worked as fast as these two, and faster than most other crewmen , in contrast, he tended
to "loaf" at other times, often criticizing Winters for working too fast I am satisfied
that Stephens could easily keep up his work and even set an example if he wanted to, and
that his discharge in June was caused by his deliberate refusal to keep up, which was
in effect a flagrant insubordination, which could not have failed to have its effect on the
production and attitude of his coworkers
796-02T-66-vol. 153-72
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sistent with the lesser discipline plus final warning in June, and seems to be a normal
exercise of the Employer 's power to get rid of a highly paid employee who , despite
warning, refused to measure up to the work standards required of him. The potency
of this testimony is also enhanced by the admitted fact that on both discharges
neither the Union nor Stephens ' union activity was mentioned in any way , and that
his first discharge and reinstatement with warning came long before the union cam-
paign and Respondent 's knowledge of it.
Recognizing the force of these circumstances , General Counsel argues that the
reason given for the July discharge was a mere pretext to disclose the discriminatory
motive. He points to the circumstances that Stephens had long been a valuable and
dependable worker who had received at least six successive merit raises through
Dennis Baltz , that he was discharged in July without receiving up to three prior
warning letters in accordance with Respondent 's usual disciplinary practice , 14 with
no explanation by Respondent why this procedure was not followed in his case, and
that after his discharge Respondent gave him a good recommendation to assist him
in getting another job. From these circumstances , General Counsel argues that the
June discharge with prompt reinstatement was only a minor incident in a record of
long and satisfactory employment which Respondent now magnifies beyond its true
proportions to bolster its abrupt discharge of a valuable worker after it learned that
he had joined the Union . There are weaknesses in this argument . While Stephens'
past record while working under Dennis Baltz was apparently impressive enough to
cause that official to think highly of him , give him successive merit raises through
1963, and afford him another chance after his misconduct of June 1964 , the record
also shows that his performance under Thompson (who was a fast man himself and
apparently a strict supervisor ) left something to be desired , so that Thompson often
had to urge him to keep up his work. However, it was not until his derelictions
reached the point of deliberate disobedience and insubordination that Thompson got
fed up and discharged him. That this was no minor incident of misconduct is clear
from the fact that Stephens was saved only by the intercession of Dennis Baltz, but
Respondent still recognized the seriousness of his misconduct and the validity of
Thompson 's action by the warning that this was his last chance . Since both manage-
ment and the employees considered Stephens as having some supervisory functions,
I feel that the failure to use the warning-letter method of discipline before final dis-
charge in his case is not significant , because there is no proof that this routine was
applied to supervisors . The only action which lends support to General Counsel's
argument is the later grant of a good recommendation to Stephens , which Respondent
does not specincally try to explain away. Notwithstanding this, the salient fact is
that Respondent did not act to discharge one who was considered by all a supervisor
in the plant until his second act of insubordination after a warning , and this far out-
weighs any other circumstances which tend to indicate that Stephens was discharged
for union activity.15
Considering all these circumstances in the light of Respondent 's union animus
and unfair labor practices found above , I conclude that Respondent has still adduced
substantial proof adequate to rebut the prima facie case made by General Counsel,
and that the entire record raises at most a strong suspicion that Stephens was dis-
charged for discriminatory reasons. As suspicion is not proof sufficient to support
a finding of violation , I must conclude that General Counsel has not sustained the
ultimate burden of proof as to Stephens , and will therefore grant Respondent's
motion to dismiss as to him, and will recommend that the complaint be dismissed
accordingly.
The Discharge of Clifton Mitchell
After being hired by Respondent early in 1961, Mitchell worked at various jobs
in the plant , including at one time foreman of the cleanup crew. At his discharge
in July 1964 , he was working on that crew under supervision of Ralph Tayes. His
ii Credible testimony of Foreman Chester Jarman shows that when employees were
found malingering , "playing," or excessively late or absent , they get three warning letters
before they are discharged.
zv It is well settled that an employees ' known union adherence and prominence in union
activity does not grant him any right to special treatment in case of clear misconduct, or
immunity from discipline or discharge for such misconduct National Shirt Shops of
Delaware, Inc., at at., 123 NLRB 1213, 1223 ; Republic Cotton Mills ( Division of J. P.
Stevens Company , Inc ), 101 NLRB 1475, 1479 , 1480. It would seam that this prin-
ciple should apply all the more strongly to an employee who stands in a position of lead-
ership as a quasi -supervisor , and whose conduct can set an example and have more effect
on other employees than that of an ordinary rank -and-file worker.
BALTZ BROTHERS PACKING COMPANY 1123
duties were the general cleanup of the drip-cooler and other areas, movement of
meat in trucks from the cooler to other departments as needed, and cleanup of the
men's restroom at the end of each day.
As found above, Mitchell signed a union card at the meeting of June 26, 1964,
was questioned about it by Frank Baltz on the 29th, and was accused by that official
a few days later of being a "ringleader" in the union movement. I find that Respond-
ent knew of his union adherence and activity from and after June 26, 1964.
When Mitchell came to work at 7 a.m. on July 10, 1964, he first started to move
trucks of meat out of the cooler, as usual, preparatory to cleaning up the cooler floor.
After working at this awhile, he went to the restroom and stayed there awhile. While
making one of his periodic inspection rounds of the department, Tayes saw Mitchell
go into the restroom, and since he had just inspected the cooler and found that all
the meat was not moved out, nor the floor cleaned up, he entered the restroom after
Mitchell and saw him merely talking to employees from other departments. Saying
nothing to him, Tayes came out, noted the time and waited until Mitchell came out
8 to 10 minutes later, and then told Mitchell that he had heard he was not doing his
work, had been watching him for a week, and had caught him loafing in the
restroom, that he was not doing his work "to suit me," and told him to stop work,
change his clothes, and Tayes would punch him out. Mitchell did so without
argument or remark, then waited in the plant until Frank Baltz came in later and
told him Tayes had caught him in the restroom when he went there to get his gloves,
and fired him. Baltz said he would check on it, and told Mitchell to come in to see
him about 3 p.m. Tayes reported the discharge later that morning to management.
Robert, Dennis, and Frank Baltz discussed the incident privately and decided to
reinstate Mitchell, because they had found other workers loafing in the restroom, but
had not discharged them, hence they felt this incident was not good cause to fire
Mitchell; in addition, they were reluctant to discharge a dependable, trained worker,
because good employees were hard to get and costly to train. When Mitchell came
in that afternoon, Frank Baltz told him that Foreman James Osborne had seen
Mitchell and other workers sitting in a car in the parking lot, and noticed that
Mitchell had some kind of cards in his possession. Baltz asked Mitchell if he had
gone to a "party." Mitchell's answer does not appear. Baltz reminded Mitchell
that he had been good to him, loaning him money to make a down payment on his
home, and said he was proud to see Mitchell doing that well. Robert Baltz also said
he was glad to see his employees doing that well, and repeated some of the remarks
he had made to employees in his speech that morning. Frank Baltz also said the
Baltzes saw no sense in having a union in the plant when everybody appeared to be
happy, and that "we just might as well start over again if the Union comes in." He
also asked Mitchell why he should pay $5 or $6 a week to a union man who was try-
ing to cause trouble in the plant. Robert Baltz finally told Mitchell that they had
reconsidered his discharge, and told him to report for work Monday, July 13.
Mitchell did so, and worked thereafter until August 25, when he was discharged for
stealing and selling plant tools. He was not paid for the day he lost on July 10.16
I find that Respondent violated the Act by Frank Baltz' interrogation of Mitchell
about his attendance at a union meeting, and by his statement that a foreman had
seen him in a car with other workers, with cards in his possession, which tended to
indicate that employees' concerted activities were under employer surveillance.17
Respondent's defense is that Mitchell was properly discharged by his foreman for
loafing on the job. It appears from credible testimony of Tayes and admissions of
Mitchell that: Mitchell had in the past often indulged in "horseplay" such as talking
with workers in other departments and preventing them from doing their work, while
he should have been working in his own area. Frank Baltz had been compelled to
warn him about "horseplay," and Tayes had frequently reprimanded him for loafing
and "just goofing off." Tayes had also received complaints from other foremen
about Mitchell's failure to clean up their departments. Mitchell's continued pro-
pensity to such conduct had caused Tayes to watch his work more closely, and it is
clear that when he caught Mitchell in another flagrant instance of loafing on July 10,
with his normal work undone, he decided to fire him on the spot.
19 These findings are based on a composite of credited testimony of Mitchell , Tayes, and
Frank, Dennis , and Robert Baltz . Testimony of Tayes and Mitchell at variance there-
with is not credited for reasons noted hereafter The validity of the August discharge
is not in issue here
17I make no finding of violation from Robert's repetition of his speech , because the
record does not show which parts he stated.
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel disparages this defense by arguing that the entire testimony of
Tayes, the only witness to Mitchell's alleged loafing, should be discounted because
he was vague about the exact time he found Mitchell in the restroom and fired him,
the details of the amount of work done by Mitchell before discharge, and whether
or not he had gloves in his hand on leaving the restroom. He also attaches much
significance to Respondent's offer and subsequent failure to produce Mitchell's time-
card showing the exact punchout time, and to its failure to follow its usual practice
of three prior written warnings before the discharge of Mitchell. The variance from
normal disciplinary practice, when unexplained, is a circumstance which normally
tends to support a finding that the assigned cause was not the true reason for dis-
charge. However, the exact time of the visit to the restroom and discharge are not
important, as both men testified that it was during the morning. Further, Mitchell
did not deny or credibly explain, either to Tayes at time of discharge, in his interview
with the Baltz brothers, or in his testimony, the length of his stay in the restroom,
or the fact of his talking there with other workers As Tayes said he fired him for
the 10-minute loaf, and Mitchell told Frank Baltz he was "caught in the restroom"
after the discharge, it is unimportant whether he went to the restroom to get gloves
or for any other legitimate reason. General Counsel's real attack on the defense is
his theory that Respondent "undoubtedly hoped by firing him, talking to him about
the Union, and thereafter reinstating him, to dissuade him and others like him from
any further participation in union activities." However, even in the light of its other
coercive conduct, I find it hard to believe that Respondent in fact designed, staged,
and carried out this rather tortuous performance of discharge for feigned cause with
instant persuasion and reinstatement by top officials, all in 1 day, merely to coerce
a suspected or known "ringleader" in the union movement by a dramatic display of
its generosity.18 There is no positive proof to support this theory, hence I must
reject it as mere speculation. Its invalidity is further demonstrated by Mitchell's
admission and Frank Baltz' credible testimony showing that Mitchell in the past had
been criticized by Frank Baltz for "horseplay" and reprimanded several times by
Tayes for loafing and "just goofing off," which supports Tayes' testimony that Mitchell
was a chronic "trouble-maker" through his constant talking which affected his own
work and that of others, and that he had been repeatedly cautioned about it, and
supports the inference that when Tayes caught him in a flagrant instance of loafing,
he could tolerate it no longer and fired him out of hand. That top management had
no part in this action is inferable from the fact that Respondent reinstated him
shortly, not because he was not guilty of loafing but because they felt they could not
fairly discharge an otherwise dependable worker when they had not been discharging
others for the same offense, and the fact that top management thus overruled its fore-
man without consulting him beforehand. The same conclusion is supported by the
contrasting circumstance that, although Mitchell did not improve after his reinstate-
ment (according to Tayes), management did concern itself further with his conduct
until he was discovered stealing in August, when top officials, not Tayes, discharged
him for that.
While Respondent's unfair labor practices found above, its knowledge of Mitchell's
prominence in the union campaign, and its coercive remarks to him at the time of
the June reinstatement, raise some suspicion that it may have engineered the whole
performance of July 10 from discriminatory motives,la suspicion is not proof, and
I must conclude from a fair consideration of all the circumstances pro and con that
General Counsel has failed to sustain the ultimate burden of proving that Respondent
discharged Mitchell on July 10, 1964, because of his union activities. I therefore
grant Respondent's motion to dismiss as to him, and shall recommend that the com-
plaint be dismissed accordingly.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
18 While the complaint alleges a wide variety of coercive conduct, it does not charge that
Mitchell's reinstatement on July 13 was a coercive grant of benefit of otherwise violated
the Act.
10I have also taken into account Frank Baltz' admission that after the reinstatement
Frank asked Mitchell if he was "for or against us "
BALTZ BROTHERS PACKING COMPANY
V. THE REMEDY
1125
Having found that Respondent has engaged in certain unfair labor practices, I will
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and on the entire record in the
case, I make the following.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By interrogating employees about their union activities and sympathies, engag-
ing in surveillance of their union meetings and other concerted activities, making
remarks to them indicating that Respondent has been watching and receiving reports
about their union and concerted activities, advising them that it did not have to sign
a contract with their union after bargaining, promising and granting them wage
raises to induce them to forego union representation, threatening them with reprisals
such as denial of wage raises and improvement of working conditions for the same
purpose, Respondent has interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed by Section 7 of the Act, thereby engaging in unfair
labor practices within the meaning of Section 8(a) (1) of the Act
4. The above unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
5. Respondent has not engaged in any unfair labor practices by its discharge of
Ernest Stephens and Clifton Mitchell, nor by any other conduct alleged in the
complaint, except as found above.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law, and on the
entire record of the case, I recommend that Respondent Baltz Brothers' Packing Com-
pany, Nashville, Tennessee, its officers, agents, successors, and assigns, shall.
1. Cease and desist from-
(a) Interrogating employees about their sympathies for or activities on behalf of
the above-named Union, engaging in surveillance of their union meetings and other
concerted activities, making remarks to them which indicate that it has been watching
and receiving reports about their union meetings and other concerted activities,
advising them that it was not required to sign a contract with the above Union after
collective bargaining, promising or giving wage raises to induce them to forego union
representation, or threatening them with reprisals, including denial of wage raises and
improvement of working conditions, for the same purpose.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of any or all rights guaranteed to them by Section 7 of the
Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act.
(a) Post in conspicuous places at its Nashville, Tennessee, plant, including all
places where notices to employees are customarily posted, copies of the attached
notice marked "Appendix." 20 Copies of said notice, to be furnished by the Regional
Director for Region 26, shall, upon being duly signed by Respondent's representative,
be posted by it immediately upon receipt thereof, and be maintained for at least 60
consecutive days thereafter. Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 26, in writing, within 20 days from
receipt of this Decision, what steps Respondent has taken to comply herewith."'
2U In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
2' In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that the complaint herein be dismissed insofar as it
alleges that Respondent engaged in any conduct violative of Section 8(a)(1) of the
Act, other than as found above, and that Respondent violated Section 8(a)(3) and
(1) of the Act by discharge of Ernest Stephens and Clifton Mitchell.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees about their sympathies for or
activities on behalf of Local #405, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, or any other labor organization, engage
in surveillance of their union meetings or other concerted activities, make
remarks to them indicating that we have been watching and receiving reports
about their union meetings and other concerted activities, advise them that we
are not required to sign a contract with the above union after collective bargain-
ing, promise or give wage raises to induce them to forego union representation,
or threaten them with reprisals, including denial of wage raises and improvement
of working conditions, for the same purpose.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of any or all rights guaranteed to them by Section
7 of the Act.
All of our employees are free to become, remain, or to refrain from becoming or
remaining , members of the above-named union or any other labor organization.
BALTZ BROTHERS PACKING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No.
534-3161, or 3507 Federal Building, 700 West Capitol Avenue, Little Rock, Arkansas,
Telephone No. FR 2-4361, Extension 512, if they have any question concerning this
notice or compliance with its provisions.
Springfield Garment Manufacturing Company and Amalgamated
Clothing Workers of America , AFL-CIO. Case No. 17-CA-
2479. July 1, 1965
DECISION AND ORDER
On April 16, 1965, Trial Examiner Sidney S. Asher, Jr., issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in certain unfair labor practices as alleged in the com-
plaint and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner further found that Respondent had
not engaged in certain other unfair labor practices alleged in the com-
plaint. Thereafter, Respondent and the General Counsel filed excep-
tions to the Trial Examiner's Decision with supporting briefs.
153 NLRB No. 88.