Cross Poultry Co.

National Labor Relations Board - Board Decisions

Sep 8, 1964

148 N.L.R.B. 885 (N.L.R.B. 1964)

CROSS POULTRY COMPANY 885
NOTE.-We will notify the above-named employee, if presently serving in the
Armed Forces of the United States, of his rights to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing 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 Bulk-
ley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465,
if they have any questions concerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 65 AND TO ALL EMPLOYEES OF
A. NABAKOWSKI CO.
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, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause A. Nabakowski Co., or any other
employer, to discriminate against James A. Pastor and Ronald E. Vaughan or
,any other employee in violation of Section 8(a) (3 of the Act because such em-
ployee has not passed a journeyman qualifying test established by Sheet Metal
Workers International Association, Local No. 65, AFL-CIO, or for any other
reason.
WE WILL, together with A. Nabakowski Co., jointly and severally make
James A. Pastor and Ronald E. Vaughan whole for any loss of earnings they
may have suffered as a result of our unlawful request that they be discharged.
WE WILL NOT in any like or related manner restrain or coerce employees in
the exercise of rights guaranteed by Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized by Section
8(a)(3) of the Act.
SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION , LOCAL No 65, AFL-CIO,
Labor Organization.
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 Director, 720
Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone -No. Main
1-4465, if they have any questions concerning this notice or compliance with its
provisions.
C. H: Cross d/b/a Cross . Poultry Company and 525, Amal-
gamated Meat Cutters & Butcher Workmen of North America
AFL-CIO. Cases Nos. 11-0-4-2274 and 11-CA-2306. Septem-
ber 8, 1964
DECISION AND ORDER
On June 19, 1964, Trial Examiner Leo F. Lightner issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that he cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Decision. There-
148 NLRB No. 90.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after the Respondent filed exceptions to the Trial Examiner 's Decision
and a brief in support thereof.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its po%vers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
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 and the entire record in the case, including the
exceptions and brief , and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the Recommended
Order of the Trial Examiner and orders that Respondent, C. H. Cross
d/b/a Cross Poultry Company, his agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order, with the following addition :
The following is added, as paragraph 2(b), to the Trial Examiner's
Recommended Order, and the subsequent paragraphs are renumbered
as paragraphs 2 (c), 2 (d), and 2 (e) :
"Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement
upon application 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."
' Respondent 's request for oral argument is denied because in our opinion the record,
including the exceptions and brief, adequately sets forth the issues and the positions of
the parties.
The Respondent operates a poultry processing plant in North Carolina . It is not
subject to the Poultry Products Inspection Act, Title 21 U S. Code Ann. Ch. 10, and its
products may therefore not be sold or resold outside of that State. The dollar value of
Respondent's sales at wholesale within the State to purchasers who are themselves en-
gaged in commerce was stipulated and clearly justifies the Trial Examiner ' s holding that
Respondent 's operations meet the indirect outflow standard of Siemens Mailing Service,
122 NLRB 81, and thereby affect commerce. See also Taylor Baking Company, 143
NLRB 566, and Michael Benevento and John Benevento d/b/a M . Benevento Sand &
Gravel Co , 138 NLRB 110. However, Respondent contends that the statutory prohibi-
tion against the sale of its poultry outside the State estops the Board from asserting
that such sales affect commerce within the meaning of Section 2 (7) of the Act The
contention is without merit . Though Respondent's products may never enter the stream
of interstate commerce they nevertheless affect such commerce through their competition
/with federally inspected poultry which crosses State lines , see Wickard v. Filburn, 317
U S. 111, and because a labor dispute at Respondent 's plant would tend to burden the
operations of its customers who are engaged in commerce by cutting off a source of
supply. See N L R.B v. Reliance Fuel Oil Corporation, 371 U.S. 224.
CROSS POULTRY COMPANY 887
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Leo F. Lightner in Raleigh,
North Carolina, on March 2, 1964, on the consolidated complaint of the General
Counsel, as amended, and the answer of C. H. Cross d/b/a Cross Poultry Company,
herein referred to as Respondent, as amended.' The issues litigated were whether
the Respondent violated Section 8(a)(1) and (3) and Section 2(6) and (7) of the
Labor Management Relations Act, 1947, as amended, 61 Stat. 136, herein called the
Act. The parties waived oral argument and briefs filed by the General Counsel and
Respondent have been carefully considered. During the hearing the Trial Examiner
reserved rulings on several motions including Respondent's motions to dismiss the
complaint. These motions are disposed of in accordance with findings and conclu-
sions herein set forth.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is an individual proprietorship , owning and operating a plant in
Raleigh, North Carolina, where it is engaged in the processing of poultry products.
During the year ending December 31, 1963, a representative period, Respondent
produced, sold, and distributed poultry products valued in excess of $500,000.
It is undisputed that during'the year ending December 31, 1963, Respondent sold
poultry products of a value in excess of $300,000 to North State Provision Company,
Inc, at Ahoskie, North Carolina. During the same period Respondent produced and
sold poultry products of a value in excess of $50,000 to Colonial Stores, Inc., at its
Raleigh, North Carolina, division. North State Provision Company, Inc., is a cor-
poration with its principal office and place of business at Ahoskie, North Carolina,
where it is engaged in the wholesale business of distributing and selling beef, veal,
pork, poultry, and other products. During the *same period North State Provision
Company, Inc., sold and shipped products of a value in excess of $50,000 from its
Ahoskie, North Carolina, place of business to points outside the State of North
Carolina. Colonial Stores, Inc, is a Virginia corporation engaged in the operation
of market type stores retailing groceries, meat, produce, poultry, and other products.
It has stores and other facilities in Virginia, North Carolina, and other States. Dur-
ing the year ending December 31, 1963, gross sales of Colonial Stores, Inc., were in
excess of $10,000,000, and during the same period of time its sales through its
Raleigh, North Carolina, division facility were in excess of $500,000.
It is undisputed that no poultry produced by Respondent is sold outside the State
of North Carolina. It is also undisputed that Respondent had no direct or indirect
inflow. General Counsel acknowledges that Respondent is not engaged in commerce
within the meaning of Section 2(6) of the Act but contends that Respondent is en-
gaged in activities affecting commerce within the meaning of Section 2(7) of the Act.'
Respondent asserts that its products are not federally inspected and that it is pro-
hibited, for that reason, from selling its products beyond the State of North Carolina.
Respondent contends that its purchasers are on notice that its poultry cannot be
transferred for sale outside the State of North Carolina. Accordingly, Respondent
contends that its activities do not have an impact on commerce.
In the Siemons case,2 the Board said:
it will best effectuate the policies of the Act if jurisdiction is asserted over
all nonretail enterprises which have an outflow or inflow across State lines of at
least $50,000, whether such outflow or inflow be regarded as direct or indirect.
For the purposes of applying this standard, direct outflow refers to goods shipped
or services furnished by the employer outside the State. 'Indirect outflow refers
to sales of goods or services to users meeting any of the Board's jurisdictional
standards except the indirect outflow or indirect inflow standard.
1 The charge in Case No. 11-CA-2274 was filed on October 16 , 1963. The charge In
Case No. 11-CA-2306 was filed on December 2, 1963 . A consolidated complaint was
Issued on January 31, 1964, and amended on February 13, 1964.
2 Saeinons Mailing Servsce, 122 NLRB 81, 85.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the Catalina Island case,3 the Board said •
Implicit in the Board's promulgation of its jurisdictional standards is the recog-
nition that in ordinary circumstances the meeting of a gross dollar volume test
will necessarily entail activities "affecting commerce" within the purview of Sec-
tion 2(7) of the Act. Nevertheless, the Board recognizes that the Federal
Government is a government of limited jurisdiction and that some showing of
legal jurisdiction must be made in every case brought before its tribunals, be
they Federal district courts, courts of appeals, the Supreme Court, or independ-
ent administrative agencies. Neither the Guss case [P. S. Guss, d/b/a Photo
Sound Products Manufacturing Company v. Utah Labor Relations Board, 353,
U.S. 11, nor any other case, has overturned the basic concepts on which our
constitution is predicated. It is possible, although highly improbable, that an
enterprise meeting the gross dollar standards of the Board would not come within
the broad definition of "affecting commerce," even though that term has been
judicially determined to indicate an intention on the part of Congress to exercise
Federal jurisdiction to the fullest possible extent. For this reason, we agree
with the Trial Examiner that the gross dollar volume test, standing alone, is in-
sufficient to confer upon the Board the jurisdiction contemplated by the Act.
Some proof must be made of legal jurisdiction.
In the . Southern Dolomite case,4 the Board noted that the Trial Examiner
proceeded,
.. . on the assumption that under the Catalina Island and related cases the
gross dollar volume test, standing alone, is insufficient to confer upon the Board
jurisdiction contemplated by the Act, and that [since] no proof of the Board's
statutory or legal jurisdiction had been made, the Trial Examiner found that it
would not effectuate the policies of the Act to assert jurisdiction in this case . . .
However, jurisdiction in the instant case is not asserted on the basis of any
standard stated exclusively in terms of the gross dollar volume of business. It
is asserted on the ground that the operations of the Respondents meet the re-
quirements of the $50,000 indirect outflow-inflow test. The Board has recog-
nized the inherent distinction between these standards. Under the first standard,
the operations of an employer could satisfy the gross dollar volume test, and
yet be purely local in character. Hence, some proof of legal or statutory juris-
diction would be necessary. No such situation could conceivably arise where
jurisdiction is asserted on the basis of the outflow-inflow test. Under the sec-
ond standard the very meeting of the standard establishes legal jurisdiction
within the meaning of Section 2(6) or (7) of the Act. In establishing this
standard, the Board had already concluded in the light of its experience that
when the operations of the employer meet this standard, they substantially affect
commerce within the meaning of the Act. Accordingly, the Board requires no
further proof of legal or statutory jurisdiction in these cases:
In the Southern Dolomite case, the Board further said:
Nor is it necessary in asserting jurisdiction under the outflow-inflow standard
that there be additional evidence that the operations of the employer have a
substantial and direct relation to interstate commerce. The Board in establish-
ing this standard has already determined that outflow-inflow which amounts to
$50,000, or more has a substantial and direct impact on commerce sufficient to
warrant assertion of jurisdiction. Similarly, it is unnecessary in proceeding
under this standard to inquire into the nature of goods or services furnished by
the employer to its customers and as to whether they are utilized directly or in-
directly in the goods or materials crossing State lines. The new standard re-
quires that the employer's product merely be used in the operations" of the
interstate enterprise. The Board defined the indirect outflow as "sales of goods
or services to users meeting any of the Board's jurisdictional standards, except
the indirect outflow or indirect inflow standard " Accordingly, we find it im-
material to establish whether or not dolomite becomes an ingredient in fruits
and produce which are shipped out-of-State .5
3International Longshoremen & Warehousemen 's Union, et al. (Catalina Island Sight-
seeing Lines ), 124 NLRB 813, 814-815
AR. E. Smith and Florence B Smith, a partnership, d/b/a Southern Dolomite, 129•
NLRB 1342
5 See also Labor Relations Commission, Commonwealth of Massachusetts ( New England
Forestry Service, Inc ), 138 NLRB 381.
CROSS POULTRY COMPANY 889
Accordingly, I find Respondent is engaged in activities affecting commerce within
the meaning of Section 2(7) of the Act and that it would effectuate the policies of
the Act to assert jurisdiction and to resolve the substantive issues raised by the
complaint.
H. THE LABOR ORGANIZATION INVOLVED
Local 525, Amalgamated Meat Cutters & Butcher Workmen of North America,
AFL-CIO, herein called the Union, is a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Issues
The principal issues raised by the pleadings, as amended, and litigated at the hear-
ing are: (a) whether the Respondent interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act in violation of
Section 8(a)(1), in October 1963, by interrogation and threats; 6 or (b) whether
the discharges of Nellie Sample on October 3, Edith Mitchell on October 9, and
Glennie Badger Coley, on October 29, 1963, and the failure and refusal to reinstate
said employees thereafter, were discriminatorily motivated and were unfair labor
practices in violation of Section 8(a)(3) and (1) of the Act. Respondent gen-
erally denied the commission of any unfair labor practices. In his answer,
Respondent affirmatively asserted that the discharges were for cause by reason
,of the employees having violated specified rules.
Background and Sequence of Events
Except as noted there is no dispute as to the sequence of events herein set forth.
The principal events occurred between September 20 and October 29, 1963. Charles
H. Cross, owner and manager , Mrs. Charles Cross, assistant manager, and Jerry
Murphy, foreman, are admittedly supervisors within the meaning of Section 2(11)
of the Act.
On Friday, September 20, 1963, at the end of a break period, there was a work
stoppage at Respondent's plant. It appears that Respondent, at that time, employed
between 125 and 150 employees. Several employees estimated the number who
engaged in the stoppage as approximating 75 percent. President Cross first testified
the number was in excess of 60 , and later, admitting he might be underestimating,
set the figure at 25. It is undisputed that President Cross and Foreman Murphy
went out to talk to the group, to inquire as to the reason for their failure to return
to work. Nellie Sample 7 credibly testified that she advised Cross that the em-
ployees desired a 15-cent-an-hour raise, to which Cross responded that when he
could afford to give a raise he would give it, but at that time he could not afford
it. Coley inquired why Cross could not grant the raise.8 It may be inferred that
some, but not all, of the employees returned to work.
Nellie Sample, Edith Mitchell, and Glennie Badger Coley, discriminatees herein,
together with William Black and Nellie Chavis, left the Respondent's plant and
went to a State labor board office. The group next contacted a Mr. Barbour, iden-
tified as president of the Union. The group was advised that. they should return
to work. The group returned to Respondent's plant and had a conference with
Cross and Murphy about 4 p.m. Black, as spokesman for the group, explained
that they were sorry they had walked out and asserted that they wished to return
to work .9 It is undisputed that all of the employees reported for work on Monday,
September 23, 1963.
On Sunday, September 22, 1963, Mitchell, Chavis, Black, Sample, and Coley
went to Greensboro and talked to Simmons and another union representative. While
they were there they signed union authorization cards and were given cards to solicit
signatures from other employees. Sample, Mitchell, and Coley each credibly testi-
fied that thereafter they circulated the cards and obtained signatures at the plant.
8 The allegations of paragraph 10(b) relative to interrogation by Foreman Jerry
Murphy were withdrawn.
7 Identified as Nellie Gray McLain in Respondent 's answer.
8 Cross acknowledged that he was advised that the group wanted a raise and that he
responded that he was not able to give them a raise, but would when he could Cross
;however could not specify any particular individual to whom he spoke at that time
9 ,Cross acknowledged meeting with five employees in the late afternoon , but was unable
to identify the participants
890 DECISIONS OF NATIOI AL LABOR RELATIONS BOARD
Interference, Restraint, and Coercion
Corine Hinton was employed by Respondent in 1962. Her particular job was
stuffing chickens. It may be inferred that she was still employed at the time of her
testimony, March 2, 1964. Hinton credibly testified that on October 2, 1963, she
was sent to the office to talk to Mrs. Cross. Mrs. Cross opened the conversation
by asking Hinton, "What are you trying to do to us?" Hinton responded, "Nothing,
Mrs. Cross." Mrs. Cross then advised Hinton that she had been advised that
Hinton was the leader of the Union. Hinton denied the assertion. Mrs. Cross
then stated, "Well, one thing about it, the Union ain't going to come in down here,
before the Union comes in down here, we will close this plant, and I can sit down
on the green grass and make my living because, Corine, I don't have no children."
Hinton related that, during her conversation with Mrs. Cross, Charles Cross asked
her who the two girls were that she had taken out to talk to"Sample the day previous.
Hinton related that on October 1, during a break period, she had taken two girls,
who were new employees, out to talk to Sample and have them sign union cards.io
Cross then advised Hinton he had the names of the two girls.
Hinton related that during the conversation on October 2, Charles Cross asked
her if there was going to be a union meeting that night. Hinton denied knowledge
of such a meeting. However, Hinton testified that there was a meeting that evening
at Edith Mitchell's home." ,
Emma Mae Roberson was still employed by Respondent when she testified on
March 2, 1964. Roberson related that she had a conversation with Mrs. Cross
during the week of October 14 to 18, "a week after Edith Mitchell was fired."
Roberson was advised that she was to go to the office to talk to Mrs. Cross. Mrs.
Cross advised Roberson that Mrs. Cross had heard that Roberson was the leader
of the Union. Roberson denied that she was the leader of the Union. Thereupon,
Mrs. Cross inquired if she knew who the union leader was. Roberson denied
knowledge. Mrs. Cross advised Roberson that she had fired "three of them"
identifying Mary Jean Chavis and Sample. Mary Jean Chavis was identified as a
sister of Sample. Mrs. Cross advised Roberson that she intended to keep on firing
"until she got down to the bottom of it."
Discharge of Nellie Sample-October 3, 1963
It is undisputed that Nellie Sample was employed by Respondent in the summer
of 1962 and was discharged on October 3, 1963. Her assignment, while working,
was stuffing chickens.
Sample related the events immediately preceding her discharge. On the morning
of October 3 she was working alongside an employee named Betsy Green. The
two were talking when Charles Cross came up and told Green to move to a place
further down the line. Green looked at him and smiled and Cross said, "Girl, there
is no use to laugh, move on down the line." Thereupon, Green moved down the
line. Sample called over to Green and asked her if,she had been laughing. Green
responded she had not been laughing. Mrs. Cross, in the words of Sample, "walked
up to me and asked me what it was to me." Mrs. Cross then told Sample to move
down the line. Sample looked at Mrs. Cross but did not say anything. Mrs. Cross
then said, "If you can't do what I tell you to, take off." Sample asked Mrs. Cross
if she was fired. Mrs. Cross responded, "Yes you are fired." Staten, another
employee who had accompanied Mrs. Cross, took the stabber out of Sample's hand
and started doing the work Sample had been doing. Sample testified that this
was done by Staten with no instructions from Mrs. Cross. Sample then turned
to Charles Cross and asked him she was fired. Cross responded, "No you are,not
fired, you just don't do your work right." Shortly thereafter, Mrs. Cross, upon
request, gave Sample her pay. Inferentially, during break time, Sample asked
10 Sample related that while she was talking to two girls and having them sign union
cards, after Hinton had brought the two girls to her, she saw Charles Cross passing by
and observing what they were doing
n On cross-examination Hinton became confused and placed the time of these events as
November 2, 1963 Since all of the events occurred at the same time and were related to
the activity of Sample, during Sample's employment which was terminated on October 3,
and since the employees did meet at Mitchell's home on October 2, I find that Hinton's
initial testimony that the events occurred on October 2 was more accurate than her later
testimony that it was November 2
Mrs. Cross, while present at the hearing, was not called as a witness. Charles Cross
appeared as a witness and testified prior to Hinton. He was not,thereafter recalled and
did not deny Hinton's assertions , which I have found credible.
CROSS POULTRY COMPANY 891
Charles Cross again if she was fired and he advised her that she did not do her work
work right. She then advised Charles Cross that if she was not fired she would
return to work after break time . Charles Cross responded that he would not put
her back to work. Sample denied being sent home the prior day either for talking
or for leaving the line. She acknowledged that Foreman Murphy, on either Octo-
ber 1 or 2, sent her home 15 minutes before the end of the workday because she
did not move down the line when he told her to do so. She acknowledged advising
Murphy that she was working in the same place in which she had always worked.
She denied advising Murphy that she was not going to move, but acknowledged
telling him that she was standing in the same place that she had always stood.
Sample denied being warned on several occasions about staying in line.
Sample's testimony relative to the circumstances of her discharge stands un-
disputed. Sample denied that any reference was made to company rules by either
Charles Cross or Mrs. Cross at the time of her discharge.
Discharge of Edith Mitchell-October 9, 1963
Edith Mitchell was hired by Respondent in September 1962. Her assignment
was pulling guts and cutting buttholes. She was discharged October 9, 1963.
Mitchell related that on Tuesday, September 24, during a break period, she was
obtaining the signature of an employee named Johnson on a union card when Fore-
man Murphy passed by-and observed her activity.
Mitchell related the circumstances under which she was discharged. Mitchell
asserted that she had changed places with a new girl on October 9, because the new
girl's hands were sore, and she was unable to keep up with her work. About 10
minutes after work started Charles Cross came to her work station and asked why
she was there. Mitchell explained to Charles Cross that the other girl's hands
were sore and she could not keep up and was leaving too many chickens to be
pulled. Charles Cross told Mitchell to move. She asked Charles Cross to wait
and he made a whistling sound and motioned with his thumb. Mitchell told Charles
Cross she was not a dog and he did not have to whistle at her. Charles Cross
called Annie Belle Wilson and told her to work where Mitchell was standing.
Mitchell stooped to pick up her gloves and cloth, in order to comply with Charles
Cross' direction, and at that time Charles Cross told her, "That's all." Mitchell
then inquired if she could get her pay and Charles Cross advised her to come back
on Friday. Mitchell insisted on obtaining her pay and he directed her to go to
the office.
Mitchell acknowledged that on the day of her discharge her assignment was to
pull guts, that chickens were getting by without guts being pulled, and that it was
for this reason that Charles Cross told her to change positions. However, Mitchell
denied that Charles Cross explained that he was trying to get the line straightened
out. Mitchell also denied that Charles Cross instructed her to change places with
the learner, who was also pulling guts. Mitchell denied advising him that she would
not change position as instructed, asserting that she advised him that she had to
watch every chicken and could not watch everyone of them. Mitchell asserted
that she did not have time to pick up her gloves when Charles Cross advised her,
"That's all." 12
Mitchell related, that, while she was waiting outside the office for her pay,
Charles Cross, Mrs. Cross, and Charles Cross' sister were in the office. When
Charles Cross' sister opened the door to give Mitchell her pay Mitchell overheard
Mrs. Cross say, "There is three and two more to go." Mitchell testified that prior
to October 9, Sample and Black had been severed from employment, Nellie Chavis
and Coley were still employed.
Mitchell related that she had organized two union meetings, the first on Septem-
ber 26 at the home of Chavis, and the second on October 2 at Mitchell's home.
"Mitchell denied being given a copy of the rules of Respondent when she wa s first em-
ployed. She asserted the only rule she was advised of was talking too much while work-
ing on the line She acknowledged she was advised of this by Foreman Murphy the day
she was hired , and warned about . talking too loud three or four times during her employ-
ment She denied being told about talking, by Murphy , in the last week of her em-
ployment I credit her denial Mitchell denied having refused to obey Charles Cross
when he told her to move I credit her denial Mitchell denied having been moved to
a different work station earlier the same morning Mitchell denied that Murphy had
moved her from one work station to another the prior day because she was talking or
playing Foreman Murphy did not appear as a witness Charles Cross did not testify
relative to the circumstances leading up to the discharge of Mitchell.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Discharge of Glennie Badger Coley-October 29, 1963
Coley was initially employed by Respondent on July 15, 1962, and was discharged
on October 29, 1963. Her principal assignment was cutting oil bags.
Coley related a conversation with Foreman Murphy on an unspecified date during
the effort to obtain employee signatures . Murphy told Coley the employees did not
know what they were doing. Coley responded they were trying to get "the damn
union cards signed "
Coley related that on October 29 she started at her usual assignment of cutting oil
bags. About 30 minutes later Foreman Murphy sent for her to come up front to
cut bong holes . She continued on this assignment about 15 to 20 minutes when
Murphy assigned her to pulling craws. A few minutes later Murphy sent her to cut
gizzards . This was the first day on- which she had been assigned to four different
jobs in one morning. The first break period commenced about 9:30 a.m. and was
supposed to last 30 minutes . Coley related that the neck cutter broke and they were
given an extra break period until it was fixed. Work resumed at 11 a.m. There-
after about 1 p.m. she requested Staten to replace her so she could go to the bath-
room. Staten responded he did not have time . A few minutes later she asked Luther
Johnson to replace her and he declined . Coley's undisputed testimony was that
among the duties of Johnson and Staten , identified as handymen , was the duty of
relieving employees on the line when it became essential for an employee to go to
the bathroom . Coley asserted that at 1.50 p.m. her line stopped because the chickens
had piled up on the second line. She left her work station to go to the bathroom
and encountered Foreman Murphy and Charles Cross. Murphy asked her who was
working in her place and she responded that no one was , that there were no chickens
over there . Murphy advised her, "Well, damn , go back anyway." She advised
Murphy that she had to go to the bathroom and continued toward the bathroom.
Murphy then told her, "Damn , if you go, damn , take it with you." Upon her return
from the bathroom she inquired of Murphy if his statement meant that he was firing
her. Murphy responded , "Hell no." She then asked him what he meant by stating
that if she went to the bathroom she should take it with her, because he knew she
could not take the bathroom with her. Murphy then advised her that he was talking
about her job and that he was firing her. Upon her inquiry about her pay Murphy
requested Charles Cross to pay her off. She proceeded to the office . While she was
waiting for her pay, Charles Cross advised her that Murphy had not fired her. Coley
repeated what had been said by Murphy, with Charles Cross standing nearby, and
Coley was then given her pay by Charles Cross.
Coley denied seeing Respondent's rules posted on the bulletin board , a fact estab-
lished by other witnesses . However, Coley admitted seeing a notice posted on a
window near the break room which advised employees that any employee who left
the line without permission to go to the bathroom would be discharged . Coley saw
this sign about a week after the walkout of September 20.
It was stipulated that'Respondent 's records reflected some 500 personnel entries
between August 1962 and November 1963. In this period only four'p-ersons were-
purportedly discharged for failure to obey Respondent's orders: Sample , Mitchell,
Coley, and Victor Hines, the latter on October 18, 1963. All others were separa-
tions because the employee had another job, except seven: three did not like the
work; two' did not wish to work regularly ; one for fighting on the job;' and one
deceased.
Respondent 's Defense
Respondent , in its answer , asserted that the three named employees were dis-
charged for violation of company rules identified as Nos. 4; 6, and 10. Respondent
asserted that the employees were warned on several occasions that they were violat-
ing rules by leaving their places of work during working hours and continuing to
talk on the job during working hours at places other than their work station, and
that they were warned that they would be discharged if they continued leaving their
work and engaging in conversations in the plant other than at their places of work:
Respondent has introduced no evidence to support these assertions.
In its brief Respondent urges that Nellie Sample's testimony establishes that she
was discharged because she refused to move down the line in accordance with in-
structions from her supervisor . Respondent urges that Mitchell was told by Charles
Cross to change places "on several occasions" and refused to do so and was fired for
that reason . Respondent urges that Coley went to the bathroom , leaving the-line
CROSS POULTRY-COMPANY 893
without permission when she was aware of the fact that an employee would be dis-
charged for such conduct. Respondent characterizes Coley's conduct as a flagrant
violation of the rules.
Concluding Findings
It is undisputed that on Friday, September 20, 1963, there was a work stoppage
during which a substantial number of Respondent's employees sought to obtain a
15-cent an hour wage increase. Being unsatisfied with the explanation given by
Charles H. Cross, Respondent, five employees, including Sample, Mitchell, and
Coley, left the plant to seek advice relative to such a wage increase. It may reason-
ably be inferred that the wage increase sought was related in some nebulous manner
to the minimum wage law. Having been advised so to do, the five returned to Re-
spondent's plant, late the same afternoon, and had a conference with Cross and
-Foreman Murphy, seeking reinstatement. They were advised to report on Monday.
On Sunday, September 22, the same five went to Greensboro, joined the Union,
-and were given authorization cards for the other employees to sign. It is patent that
the three dischargees circulated cards in the plant thereafter and Sample and Mitchell
were observed by Charles Cross and Foreman Murphy obtaining signatures. I have
found that Coley's activity was known to Murphy.
I have found, supra, that on October 2 Mrs. Cross interrogated Hinton relative to
her, activity in the union drive and advised her that if the Union came in they would
close the -plant. It is well established that such interrogation, and such a threat to
close the plant, is, in each instance, conduct constituting interference, restraint, and
'-coercion- and violative of the provision of Section 8(a)(1) of the Act. I find
-accordingly.
I have found, supra, that on October 2 Charles Cross interrogated Hinton relative
to the identity of two employees he saw signing union cards the day previous, also
relative to Hinton's knowledge of a union meeting which was scheduled for the same
evening. It is well established that such interrogation constitutes interference, re-
straint, and coercion and is violative of the provisions of Section 8 (a)( I) of the Act.
,I so find.
I have found, supra, that after the discharge of Mitchell, on October 9, 1963,
Mrs. Cross interrogated Roberson, inquiring as to whether she was the leader of the
Union, also if she knew the identity of the leader of the Union. -I have-also found
that Mrs. Cross at that time advised Roberson that she had fired three employees
for union activity and that she intended to continue firing until she got "to the bot-
tom of it." I find the questioning of Roberson constituted interrogation and that
Mrs. Cross' statements relative to firing employees for union activity constituted
threats. Said interrogation and threats, each, constituted interference, restraint, and
coercion and were violative of the provisions of Section 8 (a) (1) of the Act. I so find.
The evidence establishes the abruptness of the discharge of Sample. The timing
,of the discharge was 1 day after the interrogation of Hinton by Respondent and
Mrs. Cross, and 2 days after Sample was observed by Charles Cross obtaining signa-
tures on union cards. The union animus of Respondent is established by the con-
duct and statements of the Respondent and Mrs. Cross on the day preceding the dis-
charge. While it may be urged that Sample did not respond with alacrity upon
Mrs. Cross' direction for her to move, it has frequently been stated that the existence
.of a reason for a discharge is no defense if it was not-"the moving cause." 13 The
testimony of Roberson that Mrs. Cross advised her that Sample had been fired for
union-activity stands undenied. -
The discharge of Mitchell, on October 9, occurred under circumstances similar to
those existing at the time of the discharge of Sample. It was abrupt,-without warn-
ing, in an atmosphere of animus and stands without explanation by the Respondent.
In numerous cases the Board has found a discharge discriminatorily motivated by
reason of the unconvincing character of the reasons adduced to support the dis-
charge, including the timing of the discharge.14 In this instance there is no testi-
mony by Charles Cross or Mrs. Cross relative to the circumstances which caused
the discharges. Respondent's records reflect no other discharges under similar cir-
cumstances in the preceding 14 months. -
The discharge of Coley is not without apparent reason . It is evident from Coley's
testimony that she sought relief, unsuccessfully, in order -to go to the bathroom.
13 Tells, Incorporated v N L.R.B , 162 F. 2d 457, 460 (C A. 9). '
14 Pacemaker Corporation, 120 NLRB 987 , 991 ; United Fireworks' Mfg. Co., Ino., 118- -NLRB 883_ 888.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have found that she was aware of Respondent 's rule that she was not to leave her
work station, for that purpose, without obtaining relief. On the basis of demeanor,
I find Coley a credible witness. I have found that the line on which she was work-
ing was not in operation at the time she left her work station . I have also found
that she disregarded Foreman Murphy's direction for her to return to her work
station, and proceeded to the bathroom. It is thus patent that she was not only
violating a company rule but was also violating an express order of Foreman
Murphy. However, in contrast, the record establishes that three of the five who
had sought outside aid on September 20, and thereafter brought the union move-
ment into the plant, commencing September 23, had been, in the interim, severed
from Respondent's employment. In addition, Mrs. Cross had expressed Respond-
ent's intent to continue firing those active in the union movement until she got to the
bottom of it. The resultant question is the motivation for the discharge.
There are numerous cases in which the Board and courts have held that member-
ship in, or activity on behalf of , a union does not immunize employees from
discharge. Similarly, it is not the function of the Board to determine the reasonable-
ness or unreasonableness of Respondent's conduct in'dtscharging employees. The
sole question to be resolved is whether Respondent's purported reason for discharge
was, in fact, pretextuous, and whether the discharge, in fact, was discriminatorily
motivated.
Speaking for the court, Medina, C J., has said: "The unexplained coincidence
of time with respect to the principal events was really no coincidence at all, but
rather part of a deliberate effort by the management to scotch the lawful measures
of the employees before they had progressed too far toward fruition.. . - If em-
ployees are discharged partly because of their participation in a campaign to estab-
lish a union and partly because of some neglect or delinquency , there is nonetheless
a violation of the . . . Act." N.L.R.B. v. Jamestown Sterling Corp., 211 F. 2d
725 (C.A.2).
The abruptness of a discharge , and its timing, have been found to be persuasive
evidence as to motivation. N.L.R B v. Montgomery Ward & Co., Inc., 242 F. 2d
497, 502 (C.A. 2); N.L.R.B. v Southern Desk Company, 246 F 2d 53, 54 (C.A. 4).
In view of the above facts, and upon the entire record as a whole, I find that
Respondent's purported reasons for the discharges of Nellie Sample, October 3;
Edith Mitchell, October 9; and Glennie Badger Coley, October 29, 1963, were
pretextuous , and that the real reason and "moving cause" was the known union
and concerted activities of said employees , and said discharges constituted dis-
crimination with respect to the hire and tenure of employment of said employees
to discourage membership in the Union and were in violation of Section 8(a)(3)
and (1) of the Act.
In arriving at my findings of credibility herein, I have considered all of the
testimony, the demeanor of the witnesses, the interest of each witness in the out-
come of the litigation , or lack of such interest , candor or lack thereof, and the
failure to refute testimony.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III , above , occurring in con-
nection with the Respondent's operations described in section I, above , have a close,
intimate, and substantial relationship to trade, traffic, and commerce among the
several States , and, such of them as have been found to constitute unfair labor
practices , tend to lead to labor disputes obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in certain unfair
labor practices, it will be recommended that he cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act,
Respondent having discriminatorily discharged Nellie Sample on October 3, Edith
Mitchell on October 9, and Glennie Badger Coley on October 29, 1963, because of
their union and concerted activities , I recommend that Respondent offer to each
of them immediate and full reinstatement to the former or substantially equivalent
position, without prejudice to their seniority and other rights and privileges, and
make each of them whole for any loss of pay each may have suffered by reason
of Respondent 's discrimination against each , by payment to each of a sum of money
equal to that which each would normally have earned as wages from the date of
the discharge of each , to the date when, pursuant to the recommendations herein
,CROSS POULTRY COMPANY 895
contained, Respondent shall offer each of them -reinstatement, less the net earnings
of each during said period. Said backpay shall be computed on a quarterly basis
in the manner established by the Board in F. W. Woolworth Company, 90 NLRB
289. Interest on backpay shall be computed in the manner set forth in Isis Plumb-
ing & Heating Co., 138 NLRB 716.
It is also recommended that Respondent be ordered to make available to the
Board, upon request, payroll and other records to facilitate checking of the amount
of earnings due.
In view of the nature of the unfair labor practices committed, the commission
of similar and other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to cease and desist from in any
manner infringing upon rights guaranteed to its employees by Section 7 of the Act.
Upon the foregoing findings of fact, and upon the entire record in the case, I make
the following: -
CONCLUSIONS OF LAW
1. Respondent is engaged in activities affecting commerce within the meaning of
Section 2(7) of the Act.
2. Local 1535, Amalgamated Meat Cutters & Butcher Workmen of North America,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
- 3. By engaging in the conduct set forth in the section entitled "Interference,
Restraint; and Coercion," to the extent herein found, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of
the Act.
4. By discriminating with respect to the hire and tenure of employment of Nellie
Sample, Edith Mitchell, and Glennie Badger Coley, by discriminatorily discharging
them, as found supra, thereby discouraging the free exercise of the rights guaranteed
by Section 7 of the Act, and discouraging membership in and activities for the above-
named labor organization, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (3) and (1) ,of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, and pursuant to Section 10(c) of the Act, I recommend
that Respondent, Charles H. Cross d/b/a Cross Poultry' Company, his agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf of, Local 525, Amalga-
mated Meat Cutters & Butcher Workmen of North America, AFL-CIO, or any other
labor organization of his employees, by discharging, and thereafter failing and re-
fusing to reinstate, employees, or in any other manner discriminating against them
in regard to their hire and tenure of employment or condition of employment.
(b) Threatening economic retaliation if any employee engages in organizational
activities.
(c) Interrogating employees in the manner violative of Section 8 (a) (1) of the Act.
(d) In any other manner interfering with, restraining, or coercing his employees
in the exercise of the Tight of self-organization, to form labor organizations, to join
or assist the above-named Union, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in any other con-
certed activity for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer to Nellie Sample, Edith Mitchell, and Glennie Badger Coley immediate
and full reinstatement to their former or substantially equivalent position, without
prejudice to their seniority or other rights and privileges previously enjoyed, and
make them whole for any loss of pay they may have suffered by reason of Respond-
ent's discrimination against them, in accordance with the recommendations set forth
in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due and the right of employment under the terms of the Recom-
mended Order herein.
896 DECISIONS OF NATIONAL LABOR `RELATIONS BOARD
(c) Post at his place of business in Raleigh, North Carolina, copies of the attached
notice marked "Appendix." 15 Copies of said notice, to be furnished by the Regional
Director for Region 11,'shall, after being duly signed by the Respondent, be posted
by Respondent immediately upon receipt thereof, and be maintained for 60 consecu-
tive days thereafter, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by Respondent to
'insure that such notices are -not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 11, in writing, within 20 days from
the date of receipt of this Trial Examiner's Decision, what steps -Respondent has
taken to comply with the foregoing Recommended Order.
It is further recommended that unless, within 20 days from the date of the receipt
of the Trial Examiner's Decision„the Respondent shall notify the said Regional
'Director, in wriitng, that it will comply with the foregoing Recommended Order,is
the National Labor Relations Board issue an Order requiring Respondent to take the
aforesaid action.
15 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," will be substituted for the words "a Deci-
sion and Order.". .
16 In the event 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 therewith."
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, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in, or activities on behalf of, Local 525,
Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO,
or any other labor organization of our employees, by discharging, or failing
or refusing to reinstate, employees, or in any other manner discriminating
against them in regard to their hire or tenure of employment or any term or
condition of employment.
WE WILL NOT threaten economic retaliation if any employee engages in or-
ganizational activities.
WE WILL NOT interrogate any employee in a manner violative of the provisions
of Section 8(a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to join or assist the
aforementioned 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 any and all such activities. -
WE WILL offer to Nellie Sample, Edith Mitchell, and Glennie Badger Coley
immediate and full reinstatement to their former or substantially equivalent
position, without prejudice to their seniority and other rights and privileges,
and make them whole for any loss of ,pay suffered as a result of the discrimina-
tion against them.
All our employees are free to become, to remain, or to refrain from becoming of
remaining, members of a labor organization of their own choosing.
C. H. CROSS D/B/A CROSS POULTRY COMPANY,
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 applica-
tion 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.
LOCAL 1367, INT'L LONGSHOREMEN'S ASSOCIATION 897
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, 1831
Nissen Building, Winston-Salem, North Carolina, Telephone No. 724-8356, if they
have any questions concerning this notice or compliance with its provisions.
Local 1367, International Longshoremen 's Association, AFL-
CIO; South Atlantic and Gulf Coast District , International
Longshoremen 's Association, AFL-CIO and Local 1368, Inter-
national Longshoremen 's Association, AFL-CIO and Galveston
Maritime Association , Inc.; Houston Maritime Association,
Inc.; Master Stevedores Association of Texas , Parties to the
Contract . Case No. 23-CB-476. September 11, 1964
DECISION AND ORDER
On January 31, 1964, Trial Examiner Thomas N. Kessel issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices within the meaning of the Act and recommending that they cease
and desist therefrom and take certain affirmative action, as set forth in
the attached Decision. He also found that Respondents had not en-
gaged in and were not engaging in other unfair labor practices which
were alleged, and recommended that the complaint be dismissed as to
them. Thereafter, the Respondents, the General Counsel, and the
Charging Party filed exceptions to the Trial Examiner's Decision; all
of the parties except the Respondent District also filed briefs in sup-
port of their exceptions.
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 Ex-
aminer's Decision , the exceptions and briefs, and the entire record in
this case,' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the additions and modifica-
tions set forth below.
We agree with the Trial Examiner's conclusion that (1) by main-
taining and enforcing the 75-25 percent work distribution between
Locals 1367 and 1368, respectively, based upon race and union mem-
bership, in successive collective-bargaining agreements with the several
employer associations,2 and (2) by maintaining and enforcing the "no
1 The 'Charging Party's request for oral argument is hereby denied as , in our opinion, the
entire record in this case, including the exceptions and briefs , adequately set forth the
issues and positions of the parties.
2 Galveston Maritime Association, Inc., Houston Maritime Association, Inc., and Master
Stevedores Association of Texas, hereinafter collectively called the Association.
148 NLRB No. 44.
760-57T-65-vol. 14 8-5 8