Baltz Brothers Packing Co.

National Labor Relations Board - Board Decisions

Dec 16, 1975

221 N.L.R.B. 1173 (N.L.R.B. 1975)

BALTZ BROS . PACKING CO.
Baltz Brothers Packing Company and Wiley Horton.
Case 26-CA-5460
December 16, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On September 3, 1975, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
i The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
inc., 91 NLRB 544 (1950), enfd . 188 F2d 362 (C.A 3, 1951) We have
carefully examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge: This
proceeding was heard before me in Nashville, Tennessee,
on May 19, 1975, pursuant to charges filed by Wiley
Horton on February 10, 1975, and an amended charge
filed on March 17, 1975, and complaint issued' on March
21, 1975. The complaint alleges that Wiley Horton was
discharged because of his activities on behalf of the
Amalgamated Meat Cutters' Union and further alleges
that Respondent violated Section 8(a)(1) and (3) of the Act
by interrogation, surveillance, and other acts. All parties
appeared and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce
evidence, General Counsel and Respondent subsequently
filed briefs. Upon the entire record and my observation of
the testimonial demeanor of the witnesses, I make the
following:
i All dates refer to 1974 unless otherwise indicated
FINDINGS AND CONCLUSIONS
1. JURISDICTION
1173
Respondent is a Tennessee corporation doing business in
the State of Tennessee with an office and place of business
located in Nashville, Tennessee, where it is engaged in the
processing and sale of meat and meat products. During the
representative past year its purchases in interstate com-
merce (from States outside of Tennessee) exceeded
$50,000. I find that at all material times Respondent has
been and is an employer engaged in commerce within the
meaning of the Act and that assertion of jurisdiction here is
proper.
The Amalgamated Meat Cutters' Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Issues
The basic issues are:
1. Whether the Company assigned to Wiley Horton
more arduous duties and subsequently terminated him
because of his activities on behalf of the Union.
2. Whether the Company violated Section 8(a)(1) of the
Act by threatening employees because of their union
activities, or by withholding financial benefits from them
unless they agreed to inform the Company concerning the
union membership or activities of fellow employees.
On November 8, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, District
405, filed a representation petition in Case 26-RC-4926.
An election was held on January 17, 1975, at which 40
votes were cast for the petitioner and 203 were cast against
the Union. The election results were certified by the Acting
Regional Director for Region 26 on January 27, 1975. In
1965 the same petitioner filed a petition in Case 26-RC-
2334 and the results in the earlier election were the same
not as to number but as to the ultimate result as is reported
above. The Company employs approximately 275 employ-
ees who would be within the appropriate bargaining unit.
The Union did not file objections to the election.
B. Description of the Company's Business
An important part of the Company's operations consists
in the boning of beef from carcasses of animals slaughtered
on the plant killing floor. A part of this process involves the
boning of scrap beef which is what is left of the carcass
after the choice cuts have been removed. Both operations
are performed by beef boners who are compensated on a
piece-rate basis. The carcass beef boning is performed in
the plant boning room and scrap beef is boned in the room
called the "drip cooler." Both the_ boning room and the
drip cooler are refrigerated and the Company attempts to
maintain a temperature of 40° and 46°, respectively, in
each room. Near the drip cooler is another room in which
pork carcasses are boned. The regulations of the Tennessee
221 NLRB No. 193
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Department of Agriculture, which inspects the processing
of this plant, prohibit the boning of beef and the boning of
pork simultaneously in the same room.
Wiley Horton was employed at the plant in June 1971 as
a beef boner to bone scrap beef. After working 11, days,
Horton voluntarily terminated his employment. Subse-
quently, in June 1972, Horton was again employed as a
beef boner and assigned' to bone carcass beef in the beef
boning room with a fellow employee named Bobby
Randolph, the other beef boner. Both Horton and
Randolph boned carcass beef as their principal job but
when the supply of beef carcasses became scarce, Horton
was assigned, from time to time, to bone the scrap beef in
the drip cooler. The boners on piece work are paid on a
percentage basis so much per 100 pounds of beef boned.
When Horton' began to work on June 19, 1972, he was put
to work in the carcass beef boning room.
C. Union Activities
Horton testified that he was working in the beef boning
carcass room when the union campaign started in August
or September. He went to the first union meeting and
signed a statement that he would work on the union
organizing committee . He further testified that at the first
meeting, which 18 or 20 employees attended, there were
three foremen,' Robert Shelton, Robert Loekridge, and
Earnest Harris, present. According to Horton, the foremen
were sitting at the table with Horton during the meeting
when he signed the union card. Horton attended the first
union meeting when he'was working in the boning room
boning carcass beef for several months without interrup-
tion. The Company was overloaded with beef at that time
and had been since July. The General Counsel points out
that it was not until after the first union meeting that
Respondent complained about Horton's lack of pro-
duction.
For its part, the Company through its foreman-,, Robert
Atkins, testified that Respondent first learned of the
Union's interest in representing its employees when the
Union handbilled the plant after Horton had been assigned
to the drip cooler and after Respondent received a letter
from the Union notifying it that the Union was requesting
a bargaining conference. The record also shows that Frank
Baltz, Respondent's vice president, testified that there was
"some rumbling" in the plant about the Union, but he
claimed ' that the Company didn't know anything definite
about the Union's organizational campaign until it
received a letter from the Union and pamphlets_ were
distributed outside the gates. There is no dispute that
Shelton, Lockridge, and Harris were ,agents of the
Respondent and supervisors within the meaning of Section
2(11) of the Act. Based on the admitted presence of three
of its supervisors, the General Counsel contends that the
Company was aware of Horton's union activities before his
reprimand for lack of production and transfer to the dnp
cooler. General Counsel also points out that the Respon-
dent before ' August was overloaded with beef and that
Horton 'was working in the carcass beef boning room and
during this period had received no complaints about his
production. It is contended that immediately after Respon-
dent became aware of Horton's union activities he received
complaints about his production. One of the allegations in
the complaint is that when Horton was transferred to the
drip cooler this was discriminatory and was imposed upon
him as a penalty because of his activities on behalf of the
Union. The dnp cooler is the place which is used to store
meat . The temperature in the drip cooler is about the same
as in the boning room, but there are six large fans blowing
in this room. According to the testimony of Horton, there
are no fans in the boning room but it contains refrigeration
units. As Horton described it, the fans in the drip cooler
make working conditions in that room unbearable. On 'the
other hand, Atkins testified that the temperature in the drip
cooler is approximately 40 degrees, whereas in the boning
room the temperature is about 46 degrees. There are fans
in both rooms, however, but the drip room is three times as
large as the boning room. There are four fans in the dnp
cooler and three in the boning room. The flow of work that
goes through the plant has some variations. There is an
annual seasonal fluctuation because during the months, of
July, August, September, October, and November, the
workflow is very heavy for carcass boning. In August 1974
it appeared to Plant Superintendent Atkins 'that a backlog
of carcass beef was building no in the beef cooler. Horton
and his fellow employee, Randolph, were the two^bon'ers
who were boning carcass beef at this time. Although
Horton had never equaled the production of Randolph, in
July 1974 his production was not unsatisfactory, as is
indicated by his earnings at this time. 'The record shows
that in August 1974 Horton's production began to decline
substantially as compared to that of Randolph and the
plant began to experience a backlog in beef carcasses
awaiting boning. In September, Atkins spoke with Horton
and urged him to improve the quantity of this production.
According to the testimony of Atkins, he began to observe
that Horton was away from the ' boning room' talking to
employees on the kill floor, the sausage kitchen, and on the
dock of the sausage room during the workday. Atkins said
that obviously a piece-rated employee who was compensat-
ed only for the work that he produces would produce much
less if he is away from his work station. This, at the same
time, would also result in,the reduction of his earnings.
Because the Company was running behind in its inability
to keep up with the heavy influx of carca sses during the
month of September, a boner by the name of Tony Haines,
who had worked with Horton at another company, was
employed by Atkins to assist in the boning operation and
he was assigned to the boning of scrap beef. During the
month of September, Horton's production continued to
decline compared with Randolph. Atkins testified that, as
the result of the inadequate production which was being
accomplished by Horton, he began to keep a daily score of
the number of carcasses boned by Randolph and Horton.
This score among other things covered the week from
September 23 to 28, 1974. Atkins testified that he observed
the boning efforts of Haines and concluded that Haines
was a better boner than Horton. Therefore,' on or about
October 5, Atkins told Horton that he would be assigned to
the boning of scrap beef in the drip cooler and Haines was
transferred to the boning room as a full-time carcass beef
boner. The record shows that within 1 week after the
assignment of Haines to the beef boning room the backlog
BALTZ BROS. PACKING CO. 1175
of beef carcasses waiting to be boned, had been either
eliminated or substantially reduced. The drip cooler is the
subject matter of one of the allegations in the complaint. It
is alleged"that being transferred to the drip cooler created a
great physical burden on Horton and although it is not
denied that his earnings decreased it is urged by the
General Counsel that this decrease in the production was
occasioned by the very poor working conditions that
existed in the drip cooler room. The record shows, that
Horton had previously suffered" from a stomach ulcer and
was absent from work on October 28, 29, 30, and 31, due to
the fact that he was hospitalized. He was again absent
November 1, 5, 6, 7, and 8. On November 8, Horton spoke
to Atkins advising him that he was sick and he had to see a
doctor. He asked for a layoff slip because he stated that he
was too sick for work. Atkins testified that since the plant
had ample work for all employees he refused ' to give
Horton a layoff slip and told him that he was needed at the
plant . Horton responded that he was unable to work and
Atkins gave him a separation slip indicating that he had
voluntarily terminated his employment.
It would be helpful to elucidate the difference between
boning scrap and boning carcass beef. Atkins testified that
the job of scrapingbeef involves the cuts of beef that come
out of the sales cooler consisting of flanks, plights, and
briskets, which are all on carcass beef. In answer to a
question directed to him, Atkins testified as to the
difference in the two kinds ofjobs as follows:
Q.
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Tell me what the difference in the two-
They are cut out of the carcasses of beef.
How much beef?
They are cut out of the beef into pieces.
When you have scrap , are you cutting scraps off
the bones?
It has the meat on it.
The bones has some meat on it?
It has meat on it.
How much would you say it has on it , where did it
come from? Mr. Atkins where did the scrap beef
come from before it came to the drip cooler?
It came out from the beef sales cooler.
What has been done to it there?
Broken down.
Into what?
Different cuts.
What was the scrap boner doing to it after it got to
the drip cooler?
Removing the meat from the bones.
What was to be done with the meat?
It goes to the sausage manufacturing weiners and
bologna.
Is there any specific cuts that he has to make in
taking the meat off the bones in this scrap?
No, sin
Can he just cut it off there anyway he wants to?
As long as he cleans the bone.
As long as he cleans the bone , it doesn't make any
difference as to how?
No two boners bone alike.
But there's a pattern to this?
No, sir.
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Is it true" that the carcass boners in the beefing
boning room, can they cut it anyway they want
to?
According to their skills.
Do they have any specific cuts they must make?
No, sir. _
What happens to the meat in the beef boning room
when it leaves there? . -
It goes to sausage manufacturing and some of it is
boxed.
Some of it boxed for what purpose?
For sale.
What kind of cuts are we talking about now?
Full carcass cuts.
They are the kinds that goes to sales?
Sales.
Some of its , goes to the sausage room you say?
Yes, sir.
What portion goes from the beef boning room to
the sausage room?
A. Depending on our production and sausage manu-
Q.
facturing.
Could you tell me something about this?
It could be from 2 to 6 thousand pounds a day
depending on production.
Q. , Any special cuts?
A. As long as it is full carcass beef.
Q. What do you mean full carcass beef?
A. You can not separate a front from an arm quarter.
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It has to be mixed.
It has t' be mixed?
Yes.
Even if it is going to the sausage room it must be
mixed?
Yes, sir.
Mr. Atkins, isn't it true that in the beef boning
room where they bone the carcass beef that they
have to make some special cuts, some special
steaks - cut? Don't they have to cut off a'special
portion of the hind of the quarter?
A. In the beef boning room.
Q. Yes, sir.
A. Only at seasonal times. Save spice rounds.
Q. How is that?
A. Save spice rounds, seasonal , maybe for one month
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out of the year.
What month would that be?
Usually October or November.
Would you describe this cut you're talking about?
You have. to cut the round with the bone in it= off
of the hind quarter, take a -saw and cut the shank
portion off and the butt portion off of the round.
Atkins was asked if it took great skill to bone scrap meat.
His answer was "No, sir, there's no skill to it."
During the testimony of Horton, he was asked on direct
examination how he would be paid as between boning
carcass beef and scrap beef„ especially at the drip cooler.
He answered, "I boned scrap by the pound too, same as
scales- were the same cattle, but the weight was less. You
can't get as much weight out of scrap as you can, out of
cattle."
1176 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
Q.
A.
Q.
But you were still on the piece work basis?
Right.
Did you work anywhere else during this period of
time?
he bones the first quarter, he then lets the hindquarter
down and bones it. Atkins testified' further that Horton did
not have a rail behind him to allow his hindquarters to
swing until he boned- the first quarters. Horton would cut
his front quarter off and then let his hindquarter down and
bone both quarters. According to Atkins, there is no
advantage in having a swing rail because- the complete
carcass must be boned before the boner starts on another.
For his part Horton testified that he discussed changing the
,set up in the boning room with Atkins when he first. went
to work there in 1972. However, he said he later told
Atkins that the way the place was set up it' was impossible
to fix a swing rail for him and dust requested some new
boards for his table. Horton continued testifying that
Randolph could bone faster than he could because he
would cut as much as 10 cattle and swing the hindquarters,
just boning forequarters. Horton said Randolph's setup
was faster because when he worked on Saturdays by
himself he used Randolph's side of the table and was able
to bone faster.
The General -Counsel points out in his brief that Atkins
admitted that during some weeks in July Horton boned
almost as much beef as Randolph. Horton-testified that
prior to August 1974 he received no complaints 'about his
work. Approximately 1 week before he was transferred to
the drip cooler, Atkins told him that he needed to bone
more beef because Randolph was cutting more beef than
he was and the Company was overloaded. Horton told
Atkins that he had never cut as much beef as Randolph
and Atkins had never said anything to himabout, it before.
Atkins admitted that he had never warned or counseled
Horton about poor production before the transfer. A week
later Horton was transferred to the drip cooler, allegedly
because of his decline in production.
In commenting on information from the exhibit quoted
above, the General Counsel stated in his brief:
Respondent introduced payroll records of its beef
boners for the weeks ending July 6 through December
8, 1974. Close scrutiny of Respondent's ,Exhibit 2 not
only reveals that there is no basis for Respondent's
contention, but on the contrary, shows- that Horton's
production for the applicable weeks was up to par, if
not above. Horton's production allegedly- declined
between mid-August and mid-September. However his
average income from Respondent's Exhibit 2 for the 6
weeks between mid-August and' mid-September was
approximately $200 per week exactly as Horton had
testified before Respondent's Exhibit 2 was introduced.
In any event an overall evaluation of both the record
information and the testimony reveals that Horton was a
lower producer than Randolph. This is amply demonstrat-
ed in the record.
A. Yes, sir.
Q. When and under what circumstances?
A. Well they would send me to the tram cellar to bone
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hams and that was on the clock.
Why would they `send you there?
Well, they said they needed help down'there.
How often did you do this?
Let's see. I would say during the cattle shortage, I
would say maybe 4 or 5 months out of a year.
Off and on during that period of time?
And then sometimes I Would be in the ham cellar
and I would have to go to the kill floor.
When you were working in the ham cellar and the
kill floor, how were you being paid now?
Three'dollars an hour.
You were on the clock?
Right.
Judge Seff: What did you average when you were
were in the boning room on piece rate?
A. I would average from $5 to $7 an hour:
Judge Seff: Q. How many days a week did- you work?
A. Five, mostly. Sometimes I worked on Saturday but
Q.
not often.
What was your weekly average take-home pay
during that period Mr. Horton?
A. Average, I would say beef boning was about $200,
Q.
A
a little over $200 a week.
And what about when you were boning scrap?
About $140. $135 or $140.
In the General Counsel's brief, he stated that Horton
could'not bone as much scrap beef as he could carcass beef
and some pieces of scrap beef do not weigh a pound,
therefore, you cannot get as much weight boning scrap
beef. The brief continues : Horton also testified that when
he was boning carcass beef his average take-home pay was
better than $200 a week.
It is interesting to note that according to Respondent's
Exhibit 1, which consists of a tabulation of the earnings of
Wiley Horton as against Bobby Randolph, starting with
the period of August 3 and ending on November 9,
Horton's pay came to $1,613.95. During the same period of
time Randolph earned $3,957.65. It should be noted that
the smallness of Horton 's earnings is at least in part
explained by the fact that for the week ending October 26,
1974, he earned .nothing and during that same week
Randolph earned $338.94. And furthermore, on November
2, 1974, Wiley earned $41.26 and . for the same week
Randolph earned $361.89 . For the week ending November
9, 1974, Horton earned $14.53 while Randolph ' earned
$360.87 . It should be pointed out that these figures were
questioned by the General Counsel . In- this connection,
Atkins testified that there'is no difference in Horton's and
Randolph's job and they both received the same rate of
pay. He also testified that Randolph, after pushingthe beef
carcass out of the storage cooler, cut his front quarter off
first (the carcass is hanging by the hind quarter) and
pushes the hindquarter on down the rail behind him. After
D. 'Discharge of Wiley Horton
The information with _ respect to some - aspects of
Horton's discharge is succinctly set forth in the General
Counsel's brief as follows:
BALTZ BROS . PACKING CO.
Robert Atkins testified that on the day before Horton
left the employ of Respondent , he returned to the plant
from sick leave and told them that he (Horton) would
not be able to work in the drip cooler. It was too cold,
and asked Atkins for a layoff slip . Atkins allegedly told
Horton that he had beef to bone and he could not give
him a layoff slip. Horton supposedly wanted the layoff
slip so he could draw unemployment compensation.
Atkins then testified that the above mentioned conver-
sation took place on the day Horton was terminated.
Horton discussed the layoff slip with Atkins and left. A
few minutes later Horton returned and told Atkins that
he could not work in the drip cooler and Atkins gave
him his separation notice.
Horton testified that he worked in the drip cooler 3 or 4
weeks before becoming ill on a Friday. Atkins asked him if
he wanted to work Saturday and Horton told Atkins he
needed the work but he was sick and had to see a doctor.
He told Atkins he was aching all over and having chills.
Horton's weight had dropped from his usual 145 pounds to
126 pounds . Horton went to see his doctor the following
Monday. His doctor put him in the hospital and he
remained there for 7 days. Horton returned to work in the
drip cooler and worked a day and a half before he became
ill again. He then asked Atkins if he could bone the scrap
beef in the pork room . Atkins told him he could and
Horton moved his beef in the pork room . The next
morning Horton reported to work and began boning scrap
in the pork room . The State of Tennessee inspector came in
that morning and told Horton that he could not bone beef
with pork . Horton told the inspector that he was sick and
had just gotten out of the hospital and asked the inspector
if he could turn off three of the six fans in the drip cooler.
The inspector said it was all right with him but Horton
would have to see Robert Atkins.
Horton asked Atkins about turning off the fans and
Atkins replied that the inspector -did not allow them to turn
off the fans . Horton then asked Robert Baltz,about turning
off the fans . Horton told Baltz that he was sick, aching all
over but he believed he could make it if he could turn off
three of the fans . Baltz told him that if he turned the fans
off the refrigeration units would freeze up. Horton then
told Baltz that he would have to go back and try to work
again . Horton said, "Robert, I have done tried it two days,
I can't go back in there . I'm almost dead now." Atkins then
asked Horton, "Why don 't you just go ahead and quit."
Horton said, "Robert, I am sick, I don't want to quit. I
have got to work somewhere but I am sick." This
conversation took ,place on a Wednesday.
The following Friday Horton returned to the plant to
pick up his wife and talk to Frank Baltz . Horton told Baltz
that he had been back to the doctor and just wasn 't able to
work in the cooler. Baltz told him to take off until he
became able to-work . Horton went back outside to wait for
his wife . Robert Atkins sent for Horton and told him that
he did not need him anymore, he had a man to do the job.
Horton told Atkins, "Robert, I told you I am sick. I have
been back to the doctor ." After Atkins told Horton he did
not need him anymore, Horton asked him if he was going
1177
to give him a separation slip. Whereupon Atkins had the
separation notice prepared and gave it toahim. -
Atkins testified that Horton had worked in the drip
cooler on several occasions prior to October 1974. He
testified further that at no time in 1974 neither before nor
after his assignment did Horton complain about the
temperature in the drip cooler.
The General Counsel's brief argues that the Respondent
attempted to establish that Horton's illness was not related
to his assignment to the drip cooler by eliciting testimony
concerning an ulcer condition that he had prior to the
assignment . However, Horton gave unrebutted testimony
that, until he was transferred to the drip cooler, he had not
missed a day of work because of illness in over a year. In
conclusion the General Counsel argued that Horton's
discharge was actually the result of his being assigned to
the drip cooler and motivated by the same reasons that
inspired Respondent to make that assignment . General
Counsel asserts the assignment was due to Horton's union
activities. -
I am convinced that, based on the testimony in the
record, Horton was indeed sick just prior to his being
terminated. However , the record is devoid of any convinc-
ing evidence that his discharge was motivated by his union
activities. In any event , the record does not support this
contention by the General Counsel.
E. The 8(a)(1) Violations
Horton testified that on the first - day the Union
handbilled the plant he was sitting outside on breaktime
when Stanley Belcher, the, son-in-law of Dennis Baltz,
asked him if the , people handbilling the plant were his
friends. Horton told Belcher he didn 't know, they might be.
Before he returned to work , Robert Atkins came out and
called him. Atkins said, "I don 't want you talking to
anybody, Blue Cross, White Cross or anybody else around
here ." Horton said, "What do you mean, Robert? When
I'm on my break I can 't talk to anybody?" He said, "I
don't want you talking when you come inside that gate, to
nobody." Horton replied, "I couldn 't understand it all this
time."
The record shows that Horton then was asked , "Q. Did
you say anything else? A . Yes, sir. I said, `Why don't you
explain to me?' He said , `Wiley, if you don't watch out
yourself, you ain't going to have no job.' "
The record shows that this conversation took place after
Horton had been assigned to work in the drip cooler.
Atkins testified that at the time the Union handbilled the
plant or shortly thereafter he told Horton he "didn't want
him discussing any matter with other employees that he
was to stay at his work station , cafeteria or dressing room."
Atkins placed this conversation at the time just prior to his
hiring of Haines and also when Horton was working in the
boning room boning carcass beef. The General Counsel
points out that Haines was hired in September, that the
Union handbilled the plant according to Atkins' own
testimony in November.
Jesse Williams, a former employee of Respondent,
testified that during the union campaign he asked Atkins
about borrowing $100. Atkins initially said that he didn't
think the Company would-let Williams have the money but
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he would check on it. Later the same day, Atkins returned
and told Williams that, "he will help me if I help him."
Williams said, "If ,you help me; I will help you." Atkins
loaned Williams the money. The next day Atkins asked
Williams if he got the money and shortly thereafter called
him into his office -and asked him if he had anything to tell
Atkins. Williams said no and asked Atkins what he meant.
Atkins said, "You know what I mean." Wilhams left at this
point. Williams testified that he knew what Atkins, was
talking about because Atkins had asked him about the
Union a couple of days earlier. Williams also testified, that
2 or 3 days after he got the money Atkins called him in .his
office and asked him who was in the Union. The same
week Atkins asked Williams to go to some of the union
meetings , find out who was going to the meetings, and
bring the information to him. Williams said he went to
several meetings but he didn't give Atkins any information.
Williams voluntarily left the employ of Respondent in
January 1975.
On cross-examination, Williams testified that he still
owed Respondent the money. Atkins -admitted loaning
Williams $100 after the union campaign started but denied
asking Williams about the Union -and denied that he asked
Williams to go to any union meetings. In this connection
the General Counsel calls attention to the fact that, being
an ex-employee of Respondent and still in debt to, it,
Williams had nothing to gain and took the risk of exposing
himself to civil liability by appearing at the hearing.
General Counsel contends that the fact that Williams
appeared and testified against his ex-employer, under the
circumstances , entitles his testimony to much weight.
Williams made a poor witness for the General Counsel.
He was diffident, spoke softly, and my overall impression
of him was that he was, not a convincing witness. I do not
credit his testimony.
After Horton's termination on November 8, 1974, Jesse
Williams testified, sometime in either December 1974 or
January 1975 Robert Atkins conditioned a requested loan
of $100 from the Company upon Williams' agreement to
inform Atkins on union activities of company employees.
'Specifically, Williams testified that he was to attend a
union meeting and inform Atkins of what took place at this
meeting. These assertions by Williams were flatly denied
by Atkins. Respondent calls attention to the fact that an
election was held at the plant on January 17, 1975, and the
employees overwhelmingly rejected representation by the
Union. No objections were filed by the Union as to any
conduct of the Company which occurred prior to the
January 17, 1975, election. It would appear that this
allegation of 8(a)(1) conduct by Atkins does not coincide
with the, timing of the election and the fact that no
objections were filed. I recommend that this allegation of
the complaint be dismissed.
to be established by the evidence, Norton's assignment
and subsequent termination would not be unlawful
unless the Company knew that he was engaged in
activity on behalf of the Union or other concerted
activity for mutual aid or protection.
As the Court of Appeals for the Fourth Circuit has
observed: ". . . standing alone, proof of the Compa-
ny's general antiunion policy will ordinarily not suffice
to support a conclusion that a particular employee was
discriminatorily discharged absent direct or circum-
stantial evidence that the Company knew or had reason
to suspect him of union membership." Citing N.L.R.B.
v. Overrate Transportation Company, 308 F.2d 284, 297
(4th Cir. 1962).
Here the only way that the General Counsel can
establish umon knowledge on the part of the Company
of Horton's activities is by virtue of a legal presumption
arising from the uncorroborated testimony of Horton
that three supervisors attended a umon meeting. Of
course, this at best raises only a suspicion of Company
knowledge. Thus, we are faced with the uncorroborat-
ed, self-serving testimony of the witness of his union
activity.
As has been noted supra, the record contains no proof,
direct or indirect, with respect to this argument advanced
by the Respondent. All that can be said with 'certainty is
that both the discharge of Horton and the information with
respect to the three supervisors create a suspicion of
company knowledge and company, engagement in 8(a)(1)
activity. Mere suspicion is not sufficient upon which to
base an unfair labor practice finding.
Respondent argues that the General Counsel has failed
to' establish by a preponderance of the credible evidence
that the Company was conscious of Horton's union
sympathies and activities., Furthermore, it is pointed out
that the General Counsel failed to establish that the
Company was motivated by antiunion considerations. The
conclusion, therefore, made by Respondent is that Nor-
ton's assignment as a scrap boner and subsequent
termination were not discriminatory under the provisions
of the Act.
It would appear that Horton's own testimony refutes the
allegation in the complaint that the assignment of the drip
cooler created a more arduous condition which resulted 'in
his illness . Horton' s own testimony indicates that he was
able to go out of the drip cooler and bone carcasses in the
pork room.
Respondent's brief then quotes the following from the
record:
F. The' Company's Knowledge of Horton's Union
Activities
Respondent argues in its brief:
Q•
Even should we concede arguendo that the Company A.
was motivated by antiunion considerations on October
5, 1974 or November 8, 1974, which we have shown not
Would you tell us then, if you are able to bring the
scrap beef out of the drip cooler where the fans
were and come over to the pork boning room any
time you wanted to, how it was the fans in the
drip cooler made you sick?
I don't know. I can't say how the fans made me
sick. All I know, I can't work under six fans
blowing on me.
BALTZ BROS . PACKING CO.
Q•
A.
Q.
A.
Q.
But from what you tell us now , and what you told
us when you were testifying for Mr. Garrett, you
were able to come out of the drip cooler any time
you wanted to and bring the scrap beef over to
the pork boning room and bone it over there?
That is right.
And you got away from the fans?
Right.
So the drip cooler then is not what made you sick
then, was it?
A. I don't know.
From the above testimony , the Respondent concludes that
the illness which Horton sustained was not caused by the
assignment to him of the boning of scrap beef.
Concluding Findings and Analysis
The most that can be said in support of the General
Counsel 's contention that Horton was discrimmatorily
discharged because of his union activities is that the timing
of the Company 's action certainly creates suspicion.
However, suspicion is insufficient upon which to base a
finding which might thereafter result in the conclusion that
violations of the Act occurred . I conclude and find that
Horton was discharged for cause and was not discrimina-
torily discharged.
2 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
1179
With respect to the allegations concerning Williams'
testimony that he was told by the Company they would
lend him some money if he would ` attend union meetings
and report back to them what activities took place at this
meeting, it should be stated that Williams proved to be a
very unconvincing witness. His memory was hazy and
inconclusive . I do not credit his testimony.
Whatever else may be said about the evidence that was
adduced at the hearing, it is clear from the record that the
General Counsel failed to sustain his case by a preponder-
ance of credible evidence . This conclusion concerns all the
allegations in the complaint . Under these circumstances, I
recommend that the complaint be dismissed in its entirety.
III. CONCLUSION OF LAW
It has not been established that Respondent committed
any of the unfair labor practices alleged in the complaint.
ORDER2
Upon the basis of the foregoing findings of fact and
conclusion of law, and upon the entire record in this case,
it is recommended that the complaint be dismissed in its
entirety.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."