Field Packing Co., Inc.

National Labor Relations Board - Board Decisions

Oct 9, 1975

220 N.L.R.B. 1188 (N.L.R.B. 1975)

1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Field Packing Co., Inc . and District Union Local 227,
Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO. Cases 25-CA-6680
and 25-CA-6794
October 9, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On June 16, 1975, Administrative Law Judge Jerry
B. Stone issued the attached Decision in this pro-
ceeding . Thereafter , General Counsel and the Charg-
ing Party filed exceptions and supporting briefs, and
the Respondent filed a brief in support of the Ad-
ministrative Law Judge 's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three -member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaints in Cases 25-CA-6680 and
25-CA-6794 be, and they hereby are, dismissed in
their entirety.
on December 31, 1974. The original charge in case
25-CA-6794 was filed on January 6, 1975. The amended
charge in Case 25-CA-6794 was filed on February 10,
1975.1 The order consolidating Cases 25-CA-6680 and 25-
CA-6794 and the complaint in Case 25-CA-6794 issued
on February 10, 1975.
The issues 2 in this proceeding concern whether Respon-
dent violated Section 8(a)(4) of the Act by discriminatorily
discharging David Havener on December 19, 1974, be-
cause he had filed charges or given testimony under the
Act; whether said discharge was discriminatorily motivat-
ed in violation of Section 8(a)(3) of the Act because of
Havener's union or protected concerted activity; whether
Respondent was discriminatorily motivated in the dis-
charge of David Murphy on November 7, 1974, in viola-
tion of Section 8(a)(3) of the Act; and whether by the said
discharges and various other acts the Respondent had vio-
lated Section 8(a)(1) of the Act.
All parties were afforded full opportunity to participate
in the proceeding . Briefs have been filed by the General
Counsel and the Respondent and have been considered.;
Upon the entire record in the case and from my observa-
tion of witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The facts are based upon the pleadings and admissions
therein.
Field Packing Co., Inc., the Respondent is, and has been
at all times material herein , a corporation duly organized
under, and existing by virtue of, the laws of the State of
Kentucky.
At all times material herein, the Respondent has main-
tained its principal office and place of business at Owens-
boro, Kentucky, herein called the facility, and is, and has
been at all times material herein, engaged at said facility
and location in the processing, sale, and distribution of
beef, pork, and related products.
During a representative 1-year period, the Respondent,
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 credibili-
ty 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 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge : This consoli-
dated proceeding, under Section 10(b) of the National La-
bor Relations Act, as amended , was heard pursuant to due
notice on February 26, 27, and 28 , 1975, at Owensboro,
Kentucky.
The charge in Case 25-CA-6680 was filed on November
12, 1974. The complaint in Case 25-CA-6680 was issued
i All charges referred to herein were served on the Respondent on the
same date as filed . The Respondent denies that the amended charge in Case
25-CA-6794 was served on Respondent on February 10, 1975 . An affidavit
of services of such charge and a return receipt card clearly established prop-
er service of such charge on February 10, 1975.
2 The pleadings raised issues as to the status of certain individuals as
supervisors . It is not necessary, however, to resolve such issues in this pro-
ceeding.
i At the hearing it was stated that official notice would be taken of certain
national economic conditions . An appendix to Respondent 's brief, relating
to such economic conditions and such official notice , has been excerpted,
marked as ALI Exh. 7 and received into the record as an explanatory exhib-
it. A letter , dated May 21 , 1975, from the Union 's counsel reflects that the
Union has no objection to the order of May 14, 1975. Said letter is marked
as ALJ Exh. 6 and is received into the record . With respect to the motions
to correct the record , I have noted the use of the word "management" in the
record in dialogue of counsel concerning the examination of Personnel
Manager Wardlow as a 43-B witness (Federal Rules). My understanding
was that the word "managing" was used at such time . The facts as a whole,
however, reveal that Wardlow 's position and duties warranted the right of
opposing counsel to examine him as a "43-B" witness. Substantially, how-
ever, the questioning of Wardlow comported with normal questioning and
did not proceed to the latitude granted
220 NLRB No. 184
FIELD PACKING CO., INC. 1189
in the course and conduct of its business operations, pur-
chased , transferred , and delivered to its facility goods and
materials valued in excess of $50,000 which were transport-
ed to said facility directly from States other than the State
of Kentucky.
During the same 1 -year period, the Respondent, in the
course and conduct of its business operations , processed,
sold, and distributed at said facility products valued in ex-
cess of $50,000 which were shipped from said facility di-
rectly to States other than the State of Kentucky.
Based upon the foregoing and as conceded by the Re-
spondent, it is concluded and found that the Respondent is
now, and has been at all times material herein , an employ-
er engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Ii. THE LABOR ORGANIZATION INVOLVED
The facts are based upon the pleadings and admissions
therein. It is concluded and found that District Union Lo-
cal 227, Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, is, and has been at all
times material herein , a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues;" Supervisory Status
The status of certain supervisors and agents are not in
issue and are based upon the pleadings and admissions
therein.
Thus , it is concluded and found that at all times material
herein, the following named persons occupied positions set
opposite their respective names , and have been , and are
now, agents of the Respondent at its facility , acting on its
behalf, and are supervisors within the meaning of Section
2(11) of the Act:
Herman Dant
Thomas Deaton
Elgan Wardlow
William R. Young
Charles Field
Philip Williams
Jewell Richards
Oscar Hayden
Foreman, Kill Floor
Assistant Plant Manager
Personnel Manager
President
Chairman, Board of Direc-
tors
Foreman , Sausage
Assistant Plant Superin-
tendent
Foreman, Shipping Room
The Respondent contends that it has been denied a right of discovery,
that preheanng rulings relating to interrogatories , and apparently that in
hearing rulings denying the production of witness statements until after
witnesses testified denied it a constitutional right to due process These
contentions have been reiterated in Respondent 's brief . I am not persuaded
and find no basis to reconsider or reverse preheanng or hearing rulings as
contended against . The pleadings put the Respondent on proper notice of
the issues involved . Respondent has had the right to cross-examine witness-
es and to present witnesses and evidence otherwise, and has had the right to
examine preheating statements after witnesses have testified . Applicable
Board law and rules and regulations have been followed with respect to
such rulings as indicated therein . It is clear that due process has been ac-
corded.
Robert Drew Assistant Foreman
William Payne Foreman, Packing
Kenneth Galloway Foreman, Packed Meat
Joseph Ryland Vice President of Produc-
tion
The issues of whether Joseph Boehman, Ronald Farmer,
Richard Rice, and Louis Lamb are supervisors or not are
in dispute. It is not necessary, however, to dispose of such
supervisory issues in order to dispose of the unfair labor
practice issues in this case.
B. Interference, Restraint, and Coercion Issues
The facts,5 contentions, and conclusions concerning the
issues relating to alleged interference, restraint, and coer-
cion may be summarized as follows:
1. The Respondent has rules concerning employee con-
duct which have been in effect preceding the critical inci-
dents in this case. These rules were posted or reposted on
September 30, 1974, either just before, coincidental with, or
immediately following the commencement of union activi-
ty by certain of Respondent's employees.
2. Union activity by some of the Respondent's employ-
ees commenced on September 30, 1974. Thus, employee
Havener credibly testified that employee Stevens spoke to
him about the Union and that he and several others went
to the union hall and signed union cards on September 30,
1974.
3. The Respondent, on October 4, 1974, transmitted a
letter to its employees in which the Respondent told the
employees that it had been receiving complaints from em-
ployees about being bothered at home by union represen-
tatives, and of hearing threats being made by a person who
was interested in the Union.
The facts reveal that thereafter a number of complaints
were made by employees or supervisors to the Respondent
concerning certain incidents?
On or about October 23, 1974, Foreman Hayden ob-
served employee Stevens speaking to some of Hayden's
employees s Hayden told Stevens, who was coming
through his department as a shortcut to the restroom, that
he did not want Stevens talking to Hayden's men while
they were working. Stevens told Hayden that he had not
started the conversation, that Hayden's men had called
him over.9 Hayden told Stevens that this didn't matter, this
was his department and he didn't want Stevens talking to
5 The facts are based upon a composite of the credited aspects of the
testimony of all witnesses and exhibits . Where credibility is in issue, the
determination thereof is referred to.
6 The letter, carefully read, does not suggest that employees report on the
union activity of other employees.
7 There is evidence that at least one employee in the past had made a
complaint to Respondent against another employee.
8 The facts are based upon a composite of the credited aspects of
Hayden's and Stevens ' testimony. As to specific detail, Hayden appeared
the better witness. Steven's testimony , however, is not inconsistent with
Hayden's version excepting as might be argued from omission therein. To
the extent of this possible interpretation , Steven's testimony is discredited
since it does not appear as complete and reliable in such regard . I discredit
Hayden's testimony to the effect that employees did not often use a shortcut
route through his department to the restroom.
9 Stevens credibly testified to the effect that he had worn a union button
at work prior to the time of the events involved herein.
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the men. Stevens left and went to the restroom. Stevens,
apparently a short time later, returned from the restroom
and was on the way back to his own department. Stevens
again spoke to some of Hayden's employees. Hayden ap-
proached Stevens and told Stevens that he had told him
not to talk to his men while they were working, that he
didn't want Stevens going through his department to go to
the restroom, that he would have to go the other way and
walk around. Stevens told Hayden in effect that going
through Hayden's department was the shortest way to the
bathroom, that he would come through any time he was
ready. Foreman Hayden replied to Stevens and told him
that he was not going to do so. Stevens told Hayden that he
didn't "scare." Hayden then told Stevens in effect that he
had better "scare."
Later the next day, Stevens' foreman told him to go to
the conference room. In the conference room Personnel
Manager Wardlow told Stevens that what he was telling
him was a verbal warning, that he had heard that week that
Stevens had been stopping people in their departments and
talking to them and that this time he had been observed
doing so by a foreman. Stevens asked Wardlow if what he
had done wasn't a common thing that happened all of the
time. Wardlow told Stevens that as far as he was concerned
it was not going to happen as much as it had. Stevens told
Wardlow that he had been verbally threatened by a fore-
man and wanted to know what Wardlow was going to do
about it. Wardlow told Stevens in effect that this was be-
side the point.
Employee Charles Jean complained to Personnel Man-
ager Wardlow about an incident that occurred around No-
vember 5, 1974. Jean complained, and signed a written
statement to such effect, that employee Stewart had inter-
rogated him at work, had stopped him while he was walk-
ing through a department, and had tried to get him to sign
a union card.10 During his discussion with Wardlow, Jean
revealed that he had taken Stewart's union pin (button) off
and told Stewart that if he wanted it he knew where to get
it. Wardlow told Jean in effect that he should not take
personal items from other employees. Jean's written state-
ment so reflected. Wardlow spoke to Stewart about the
incident, and Stewart essentially verified the facts, except-
ing perhaps as to whether it was a union card that he want-
ed to give Jean. ll Wardlow told Stewart in effect that he
should have been working and not interfering with other
employees at work.
Around November 27, 1974, employee Green com-
plained to Personnel Manager Wardlow about an incident
which occurred on or about November 27, 1974. Green
10 Stewart testified with respect to the incident complained about.
Stewart's testimony was conclusionary and to the effect that he stopped
Jean to give him a message from someone else. Havener testified to that
effect that he was present for part of the conversation and that Stewart had
his hand in his pocket at all times. Jean did not testify. I note, however,
Havener's testimony about Stewart's having his hand in his pocket tends to
corroborate the version of the event as set forth in Jean's statement. Thus,
Jean's statement indicated that Stewart reached into his pocket for a union
card.
ii Stewart's testimony was to the effect that he disputed the facts.
Stewart's testimony was conclusionary and not in detail. To the extent in-
consistent with the facts found, Stewart's testimony is discredited as being
unreliable.
complained, and gave a written statement to such effect,
that employee Stevens had interrupted her at work, had
called her names (describing her as being dumb), and had
threatened her by inviting her out to the parking lot. Ward-
low sent for Stevens and spoke to Stevens in the conference
room. Wardlow read to Stevens the statement he had from
Green. Stevens told Wardlow that he had had a conversa-
tion with Green, that it had been triggered by remarks
Green had made to his aunt and others as to why he was
for the Union, that Green had been harassing an employee
in the department, that he might have called Green
names,12 that he had not threatened Green, that he had
merely told her that he would appreciate it if she quit say-
ing things "like this." Wardlow questioned Stevens as to
the details. Stevens indicated that some of the details were
true and some were not. Wardlow offered to bring Green
in, but Stevens told Wardlow that this would not solve
anything. Wardlow asked Stevens to give him a written
statement of his version. Stevens declined to do so unless
he received a copy of what he signed. Wardlow told Ste-
vens that he would have to give him a warning about inter-
rupting Green at work, about name calling, and about
threatening Green.
Around midnight November 28 or early November 29,
1974, employee Charles Jean made several telephone calls
to employee David Havener. Jean invited Havener to meet
him in 15 minutes to straighten some matters out. Jean told
Havener in effect that he had lied or would be lying if he
said that Stewart had not tried to get him (Jean) to sign a
union card in the incident on November 5, 1974. Jean told
Havener that if he (Jean) lost his job he would come and
get Havener. Jean also accused Havener of making threat-
ening telephone calls to Jean's home and of harassing
Jean's wife. Jean further accused Havener of spreading ru-
mors about him at the plant. Havener indicated to Jean
that he would not meet him. Jean told Havener in effect
that he would be waiting for him when Havener reported
to work the next day.
On the morning of November 29, 1974, Havener drove
into Respondent's parking lot before time to report to
work. Jean and employee Morris were sitting in Jean's car
in the parking lot. A short time after Havener had parked
his truck and while Havener was locking the door to his
truck, Jean came over and spoke to Havener and told him
that they had a few things to settle. Jean commenced to
fight Havener. Havener attempted to defend himself by
ducking and grabbing Jean.13
An employee named Harry Colley was able to stop the
"fight" momentarily. Finally, Leadman Ronald Farmer
was able to persuade Jean to stop his attack on Havener.14
Havener picked up his hat and coat and walked to the
12 Stevens in his testimony denied that he told Wardlow that he had called
Green any names. I credit Wardlow's testimony over Stevens' in this re-
spect.
13 Essentially , Havener was the only witness present who testified as to
the details of the incident . Morris testified in answer to very limited ques-
tions concerning the incident. Jean was not presented as a witness by either
side.
14 The General Counsel alleges that Farmer is a supervisor within the
meaning of the Act. Farmer' s duties reveal him to be on the borderline of
leadman or supervisor status. However, it is not necessary to determine
whether Farmer is or is not a supervisor . The facts do not establish that
FIELD PACKING CO., INC. 1191
guardshack . Havener then told the guard that someone had
just jumped him and that he would like the guard to call
the police station . The guard did so . Two policemen came,
spoke to Havener, and told him in effect that he would
have to go to the station to swear out a warrant for Jean's
arrest . Havener did so later.
On Monday , December 1, 1974, Personnel Manager
Wardlow had both Jean and Havener in his office. What
occurred is revealed by the following credited excerpts
from Wardlow's testimony.15
A. I told them they broke Rule 29 for fighting on
company property. We would not tolerate it, fight-
ing on company premises at that particular time.
They were fighting before they even punched in;
out on the parking lot. I don't know who started the
fight or anything else. The only thing I knew there
was a fight.
A. I talked to David Havener prior to giving him the
warning and I heard so many conflicting stories
about it, as a matter of fact, I asked Mr. Havener
here about what happened and he said Mr. Jean
started the fight and I asked Mr. Jean about it and
he said Mr. Havener started the fight and I asked
Morris about it and he said Mr. Havener started the
fight and I called the guard out front and asked him
what happened and he didn't say anything, he just
said that he heard there was a fight. He didn't say
who started it and there was another employee in
the shipping room, he didn't know anything about it
and I checked into it as thoroughly as I possibly
could.
Wardlow gave both Jean and Havener written warnings
about the fight. Ultimately, the criminal charges initiated
by Havener against Jean were amended to charges of dis-
orderly conduct. Jean either pled guilty, pled nolo conten-
dere, or was found guilty, and was fined $50, given a 10-
day sentence suspended for a year, and taxed with court
costs . These facts mean virtually nothing. Whether Jean
had started or had not started the fight is not the issue in
such a case. Provocation is only a question for consider-
ation in mitigation in such cases.
Havener , after the above disposition of the criminal
charges, saw Wardlow and attempted to get Wardlow to
remove the verbal warning against him concerning the No-
vember 29, 1974, fight. Wardlow told Havener in effect
that the warning had not been given him for starting the
fight but rather for being in a fight on company property,
however, that there were two people who said Havener had
started the fight.
In addition to the foregoing facts, employee Morris
made complaints to the Respondent about an incident in-
volving Havener on December 18 and 19, 1974, and em-
ployee Fulkerson made a complaint about an incident on
December 19, 1974.16
Farmer was present at such a time as to enable him to know who was at
fault in said f' lit.
16 I found Wardlow to appear to be a thoroughly frank, forthright, and
truthful witness as to his testimony to these events . I credit his testimony
over Havener's where in conflict.
The facts in this case do not warrant a conclusion that
the manner with which the Respondent handled com-
plaints constitutes inducement of employees to make com-
plaints concerning their fellow employees' union or con-
certed activities. The Respondent's conduct, although it
might not have reflected a perfect or even correct decision
as to the incidents, appears to be reasonably based.
1. Contentions and conclusions
(a) The General Counsel alleges and contends, and the
Respondent denies, that in October and November 1974
the Respondent solicited, induced, and ordered certain em-
ployees to report on the union activities and concerted ac-
tivities of their fellow employees. The General Counsel
does not contend that there is direct factual evidence to
support the allegations as referred to. Rather, the General
Counsel's theory of violative conduct rides upon an idea of
inducement by "manner." Thus, the General Counsel con-
tends that the manner in which the Respondent handled
various employee complaints constituted an inducement to
employees to report on the Union and protected concerted
activities of their fellow employees.
Considering all of the facts relating to the employee
complaints and Respondent's handling thereof, I am per-
suaded, conclude, and find that the facts are insufficient to
reveal that the Respondent "induced," "solicited," or "or-
dered" employees to report on the union or concerted ac-
tivities of employees. Simply stated, the Respondent's ac-
tions concerning its handling of employee complaints do
not come close to the degree of unreasonableness that
might warrant an inference in support of the General
Counsel's "inducement" theory. Accordingly, it will be rec-
ommended that the allegation of unlawful conduct relating
to inducement, soliciting, or ordering of employees to re-
port on union or protected concerted activities be dis-
missed.
(b) The General Counsel alleges and contends in effect
and the Respondent denies that the Respondent issued un-
specified warnings to employees because they joined or
gave assistance or support to the Union, or because the
Respondent thought they had done so.
The General Counsel contends that the warnings given
to Stevens concerning the incident with employee Green
and with Foreman Hayden, and the warning given to Stew-
art concerning the incident with Jean were because Stevens
and Stewart had worn union buttons and because such
employees were giving support to the Union. Considering
the overall facts, I am persuaded and conclude and find
that the facts are insufficient to support a finding of viola-
tive conduct as alleged. As I view the facts, the preponder-
ance of the facts reveal that the Respondent gave Stevens a
warning because he was reluctant to follow orders to avoid
interrupting Hayden's men at work, and that the Respon-
dent gave Stevens a warning because it reasonably believed
16 There was also testimony concerning the specific incidents complained
of by Morris and Fulkerson . I credit the testimony of Morris and Fulkerson
over Havener's where in conflict as to these events. Simply speaking, Mor-
ns' and Fulkerson's testimony had more of a ring of truth than did
Havener's.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he had engaged in name calling and had threatened
employee Green. As to Stewart, the facts preponderate for
a finding that the Respondent gave Stewart a warning be-
cause it reasonably believed that Stewart had interrupted
Jean at work and had caused an incident , at least in part.
The facts do, however , reveal clear knowledge by the Re-
spondent that Stewart had worn a union button . The facts
also reveal that Stevens had worn a union button , at least
on occasion . Assuming Respondent 's knowledge that the
employees involved had worn union buttons, such does not
automatically make a reprimand constitute itself to be for
improper reasons . The overall facts preponderate for a
finding that the reprimands or warnings were not for im-
proper reasons . Accordingly, the allegations of unlawful
reprimands will be recommended to be dismissed.
(c) The General Counsel alleges in effect and contends,
and the Respondent denies, that the Respondent , by Fore-
man Hayden , threatened employee Stevens with unspeci-
fied reprisals if he did not refrain from becoming or re-
maining a member of the Union or giving any assistance or
support to it.
Considering the facts set forth above with respect to this
issue , I am persuaded and conclude and find that the facts
preponderate for a finding that Hayden warned Stevens
that he would take action if Stevens did not stay out of his
department and refrain from talking to his men in an at-
tempt to see that his men would not be interrupted at work.
Such conduct is not violative of the Act. It will be recom-
mended that the allegations of unlawful conduct in such
regard be dismissed.
(d) The General Counsel alleges in effect and contends,
and the Respondent denies, (1) that Charles Jean was an
agent of the Respondent; (2) that the Respondent induced
employees to harrass , intimidate, coerce, and/or physically
injure other employees who supported the Union and con-
doned or gave the impression that it condoned such con-
duct, for the purpose and/or with the effect that these em-
ployees would abandon the Union and refrain from giving
any assistance or support to it; and (3) that the Respon-
dent, by Charles Jean, harassed , intimidated, coerced, and
physically injured employees who supported the Union for
the purpose and/or with the effect that these employees
would abandon the Union and refrain from giving any as-
sistance or support to it.
The facts relating to these issues essentially consisted of
the facts pertaining to the Jean-Stewart incident on No-
vember 5 , 1974, and the Jean-Havener fight on November
29, 1974. The General Counsel does not contend and there
is no direct evidence that Jean was an agent of the Respon-
dent. Nor does the General Counsel contend nor is there
direct evidence that the Respondent induced employees to
harass, intimidate , coerce , or physically injure employees
who supported the Union. The General Counsel contends
in effect that the manner with which the Respondent han-
dled complaints concerning the Jean-Stewart and Jean-Ha-
vener incidents constituted conduct which constituted Jean
an agent of the Respondent, and which induced employees
to engage in unlawful conduct toward employees who were
for the Union. In my opinion, the preponderance of the
evidence is not sufficient to make findings in support of the
General Counsel's contentions . Respondent 's handling of
the complaints concerning the Jean-Stewart and Jean-Ha-
vener incidents is not so unreasonable as to reveal that
Respondent had constituted Jean to be its agent , condoned
his acts, or was inducing employees to engage in unlawful
acts . It follows that the allegations of Jean's agency status
and unlawful conduct , as set forth above , are not support-
ed by the facts . Accordingly, it will be recommended that
such allegations be dismissed.
4. At some point of time , apparently around the last of
November 1974, Foreman Galloway spoke to Havener
about "rumors ." Havener's testimony as to the timing of
events was somewhat vague . Thus, Havener, who signed a
union card on September 30, 1974, later commenced wear-
ing a union button prior to October 23, 1974 . Havener's
testimony revealed in effect a guess that the conversation
with Galloway about "rumors" occurred a month or so
after he commenced wearing a union button . Galloway's
testimony reveals in effect that conversations concerning
"rumors" occurred . Galloway , however, could not fix the
time of such rumors.
Havener's testimony as to the conversation he had with
Galloway in which the "rumors" were referred to is re-
vealed by the following excerpt from the record.
A. Well I was just working in the department when he
walked up and he said he had been hearing rumors
about me and he said he put a stop to them and I
tried to, you know, find out what they were and he
just, you know, wouldn't tell me. He wouldn't go
into any detail about them.
Galloway testified to the effect that he had two conver-
sations with Havener concerning rumors . The first conver-
sation concerned Havener's bringing up a "rumor" that
Charles Jean was out to get Havener. As to the second
conversation , Galloway testified in effect that an employee
had told him that there were some rumors about Havener,
that the employee did not know the details of the "ru-
mors ." Galloway testified in effect that he had a conversa-
tion with Havener as is revealed by the following excerpts
from Galloway's testimony.
A. Yes sir. We had-it was one morning and he was
running his power equipment and I asked him if
there was any truth to a couple of rumors that were
going around and, to my knowledge , I didn't know
what it was and I thought that, perhaps , he could fill
me in on it and he said, he didn 't know either and
well, if there was anything I could do to stop it. I
would , or we would talk to someone else or one of
the Company officials.
Havener's credited testimony also reveals in effect that
there were "rumors" or beliefs being expressed by employ-
ees who were both for or against the Union. Some of the
rumors concerned employee Jean and the actions he might
take. At one point Jean apparently believed that Havener
was making threatening telephone calls to Jean's home.
Considering the testimonial demeanor of the witnesses
and the logical consistency of the evidence, I credit
Galloway's version of the events over Havener's. Galloway
appeared , as to the testimony to this event, to be a more
frank, forthright, and complete witness and to have more
accurate recall of events.
FIELD PACKING CO., INC. 1193
2. Contentions and conclusions 3. Contention and conclusion
The General Counsel contends in effect that the Respon-
dent, by Galloway, created the impression of surveillance
of employee union or protected concerted activities by the
remarks to Havener concerning "rumors." The overall
facts do not support this contention.
I note that Havener was wearing a union button at the
time of the conversation. The evidence also reveals that
there were various rumors and beliefs concerning threats.
It is clear that the use of the word "rumors" by Galloway,
under such circumstances , does not constitute evidence
with the surrounding facts to warrant a conclusion that the
Respondent was creating an impression of surveillance of
employee union or protected concerted activities. Accord-
ingly, it will be recommended that the allegation of unlaw-
ful conduct in such regard be dismissed.
5. (a) William Young, the Respondent's president,
made a speech to employees on October 24, 1974. The
speech may be characterized as a strong speech expressing
opposition to the Union. The General Counsel contends
that Young threatened the employees that the plant would
be closed if they did not refrain from becoming or remain-
ing members of the Union or giving any assistance or sup-
port to it.
Young, in his speech, referred to the Union's arguments
about job security, referred to the closing of a local plant,
Elm Hill Packing Company, after the Union got in, and to
a National Labor Relations Board decision to the effect
that it was "O.K." for Elm Hill Packing Company to go
out of business . Young then said, as is revealed by the
following excerpt from his speech.
Now we don't want to close Field Packing Company
down or go out of business like Elm Hill Packing
Company did when the union got in, but I tell you
now, just as seriously as I can, and I hope you will
really listen.... "If this union ever got into this plant
and called a strike like they have at Emge, DuQuoin
and many other packing plants, Mr. Field would turn
the key in this plant and refuse to operate at any time
during the union strike". Again I tell you, we would
never open this plant during the strike, after we once
closed it.
(b) On or about November 27, 1974, Personnel Director
Wardlow and employee Stevens engaged in a discussion
about the Respondent and a question of the Union.
Stevens testified to the effect that Wardlow said in the
discussion "that Mr. Field had already stated, you know,
that he would close the doors if a union would come in
...." Wardlow testified to the effect that he had a discus-
sion with Stevens, testified in detail about such discussion,
and denied that he made the statement attributed to him
by Stevens concerning a statement by Field to the effect
that Field would close the doors if a union would come in.
I found Wardlow to appear to be a truthful witness and his
testimony to appear more reliable than Stevens'. I credit
Wardlow's testimony over Stevens' as regards the conflict
in testimony indicated above.
The General Counsel contends and alleges, and the Re-
spondent denies, that the Respondent by Young in the Oc-
tober 24, 1974, speech, and by Wardlow in his conversation
with Stevens on November 27, 1974, threatened its employ-
ees that the plant would be closed if they did not refrain
from becoming or remaining members of the Union or giv-
ing any assistance or support to it.
The credibility resolution between the conflict in Ste-
vens' and Wardlow's testimony resolves the issue concern-
ing the alleged threat on November 27, 1974. I conclude
and find that the alleged threat was not made.
The speech by Young, on October 24, 1974, was hardhit-
ting but does not reveal that Young threatened the employ-
ees with plant closure if the employees did not refrain from
becoming members of the Union or giving any aid. Rather,
the speech can reasonably be interpreted to reveal that the
Respondent would continue to operate if the Union got it,
that if there were a strike, however, the Respondent would
not operate during the strike. Accordingly, it will be recom-
mended that the allegations of threats to close the plant for
unlawful reasons be dismissed.
6. As indicated, on November 27, 1974, Personnel Man-
ager Wardlow and employee Stevens engaged in a conver-
sation about the Respondent and the Union. As to this
conversation, I have already credited Wardlow's testimony
over that of Stevens' as to whether Wardlow told Stevens
in effect that Field had already stated that he would close
the plant if the Union came in. Stevens also testified to the
effect that Wardlow made remarks about hiring and lay-
offs, and about the sausage kitchen not being expanded.
Stevens' testimony to such effect is revealed by the follow-
ing excerpts from the record.
Q. All right, do you recall anything else that he said at
that time?
A. No, not right off hand.
Q. Do you recall him mention anything about hiring?
A. Well, yes, he said normally at this time of the year
we would be hiring and he said, here this year we
have had to lay off.
Q. Okay, do you remember anything else he said?
A. No.
Q. You remember any mention of the sausage kitch-
en?
A. Yes, he said something about the sausage kitchen
not being expanded.
Wardlow in his testimony denied that he made remarks
about layoffs, hiring, or cancellation of expansion plans.
While I found Wardlow to appear to be a truthful witness,
I believe Stevens in his testimony that remarks about hir-
ing, layoffs, and the sausage kitchen were made. I credit
Stevens' testimony as excerpted above.
4. Contentions and conclusions
The General Counsel alleges and contends, and the Re-
spondent denies, that the Respondent, by Wardlow, threat-
ened its employees that the Respondent would reduce its
business, that it had canceled expansions at the facility,
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that it was laying off employees, or gave the impres-
sion that it would engage in such acts if the employees did
not refrain from becoming or remaining members of the
Union or giving any aid and support to it.
Considering all of the facts, I am persuaded and con-
clude and find that the facts do not support the allegations
of unlawful conduct. There is no evidence that Wardlow,
directly or indirectly, attributed the problem concerning
hiring or layoffs or failure to expand the sausage kitchen to
the Union or employee support of the Union. Rather, the
facts indicate the argument of an economic nature by
Wardlow as to the problem faced by the Respondent. Ac-
cordingly, the allegations of unlawful conduct in such re-
gard will be recommended to be dismissed.
7. On a day in mid-November 1974, employees Jerry
Morris, Charles Jean , and Retha Davis, during the noon
hour break commencing around 12 noon, were at the gate
entrance and exit for the plant, and distributed or attempt-
ed to distribute antiunion literature or buttons to fellow
employees.
The evidence reveals that Davis, Morris, and Jean were
at such gate several minutes before the 12 noon whistle
blew. The evidence also reveals that Davis left her depart-
ment, apparently to go to the gate , around 10 minutes be-
fore 12. The evidence further reveals that Morris left his
truck a few minutes early and clocked out at such time.
There is no evidence to reveal whether or not employees
Davis or Jean clocked out from work prior to the noon
break time . In such regard , however, the evidence reveals
that employees normally stop work around 5 or 10 minutes
before the noon break and prepare to leave for lunch. The
evidence also reveals that the policy of clocking out is flexi-
ble as regards a question of a few minutes on such occa-
sions and that employees who have reason to do so are
normally allowed to clock out early for a few minutes by
the foreman."
The evidence as to who prepared or furnished the litera-
ture or buttons is limited in nature . Such evidence goes to
the point only of showing that employees prepared or fur-
nished the buttons . The evidence reveals that part of a
"Field" sticker was glued on the buttons . The "Field"
sticker is used by the Respondent on some of its products.
The "Field" stickers are kept on open shelves in the back
of the packing department . Although Respondent's cross-
examination of Havener did not establish such point, the
logic of the cross-examination raised the question of
whether some Field stickers are sometimes discarded be-
cause of damage.
5. Contentions and conclusions
The General Counsel alleges and contends , and the Re-
spondent denies, that the Respondent permitted and in-
duced certain employees to prepare and/or distribute an-
tiunion literature and buttons during working time,
notwithstanding the fact that other employees were not
permitted to engage in union or concerted activities during
working time.
17 The facts are based upon the credited testimony of Havener, Stevens,
and Morris.
Considering all of the facts , I am persuaded and con-
clude and find that the evidence is insufficient to support a
finding of violative conduct as alleged . Thus, the evidence
is insufficient to reveal that employees , involved in the
preparation or distribution of antiunion literature or but-
tons during working time , engaged in such activities during
working time . It is clear that the evidence reveals that Mor-
ris did not engage in such activities during working time
since he had clocked out. There is no evidence , one way or
the other, as to whether Jean and Davis had clocked out.
Further, at most, if such employees left a few minutes earli-
er and on company time , the time involved is minimal. The
only evidence conceivably related to use of company prod-
ucts is the use of part of a gummed sticker . The evidence
does not reveal whether such stickers were from discarded
damaged stickers or not . However , if the employees had
secured such stickers on their own, the value of such stick-
ers appears to be so minimal that the use thereof in a con-
donation sense would appear insignificant . I note , howev-
er, there is no evidence to reveal that responsible company
supervisors furnished such stickers to the employees for
their use. Considering all of the facts, I note that it is im-
proper to substitute speculation for proof . Simply speaking,
the facts in this case do not support a finding of violative
conduct as alleged with respect to the issues concerning the
distribution of antiunion literature and buttons by employ-
ees. It will be recommended that the allegations of violative
conduct as to such issues be dismissed.
8. The facts are undisputed that the Respondent, by
President Young, told its employees on December 14, 1974,
that the largest wage increase it had given in the past was
20 cents per hour, that this year the increase was going to
be better and that the increase would be 40 cents per hour.
The facts are clear that such increase (40 cents per hour)
was given for all employees, effective on or about Decem-
ber 29, 1974.
The facts are also undisputed that the Respondent, by
Charles Field chairman of the board of directors, told the
employees that he was giving the employees a 60-cent-per-
hour raise for 1 week because it was the 60th anniversary
of the Company.
The facts are clear that the Respondent customarily an-
nounced wage increase annually around Christmas time.
Respondent's past wage increases are herein set forth.
RECAP
WAGE INCREASES
12/16/56
12/22/57
12/28/58
12/20/59
12/25/60
12/24/61
12/23/62
12/22/63
12/27/64
1/2/66
2/25/66
1/1/68
12/29/68
From .10 to .14
All class .10
From .08 to .13
From .06 to .09
All class .05
From .06 to .08
From .05 to .08
From .05 to .08
From .09 to .13
From .08 to .13
From .05 to .14
From .14 to .26
All class .15
FIELD PACKING CO., INC. 1195
12/28/69 All class .15
1/3/71 All class .20
1/2/72 From .12 to .19
12/31/72 From .16 to .21
12/30/73 All class .20
8/8/74 All class .10
12/29/74 All class .40
It is noted from the foregoing that the Respondent, ef-
fective as of August 8, 1974, had given employees a 10-
cent-per-hour increase.
Young credibly testified to the effect that the size of the
1974 year-end increase was determined upon consideration
of current wage trends in the industry. Young was cross-
examined concerning prior wage increases and credibly
testified to the effect that such increases also involved con-
sideration of fringe benefits. The facts are also clear that
during 1974 the county as a whole was facing twin prob-
lems of inflation and recession.
The facts are clear that employees were aware of past
separate bonuses keyed to the theme of the respective anni-
versaries. Thus, for the 50th anniversary a special bonus
was given. It is clear that the employees had a reasonable
expectation of a special bonus for the 60th anniversary.
There is no evidence of statements by the Employer to
the employees to indicate that the general wage increase or
special bonus was given to dissuade them from union activ-
ity. Considering all of the facts relating to the general wage
increase and special bonus, I am persuaded , conclude, and
find that the facts are insufficient to support a finding of
violative conduct, as alleged , concerning such general wage
increases and special bonus . Accordingly, it will be recom-
mended that the allegations of violative conduct , as regards
such issues, be dismissed.
C. The Alleged Discriminatory Discharge of Murphy
1. David Murphy , an alleged discriminatee, was dis-
charged on November 7, 1974 . Prior to that time he had
worked for the Respondent for 2 years , was considered a
good employee , and had received one oral warning and
one written warning for lateness and missing days with the
last warning being in January 1974. Murphy was married
in August 1974, and around that time was told in effect
that the Respondent considered that he was doing excel-
lent work . It is clear in this case that the warnings for late-
ness and missing work had no bearing upon the reasons for
Murphy's November 7, 1974, discharge.
Murphy became aware of union activities, signed a
union card on October 3, 1974, and between that date and
his discharge talked to other employees about the Union
(some of whom signed union cards ) and attended some
union meetings . Murphy also wore a union button for half
of a day on November 5, 1974 , while at work . During such
time Supervisors Dant and Deaton were near and around
him and looking at him. I find that they observed that he
was wearing a union button.18
161 credit Murphy 's testimony to such effect. Dant denied that he ob-
served Murphy wearing a union button . I discredit such denial . Deaton did
not testify on this point although he testified in the proceeding.
Murphy's duties involved working part of the time on
the kill floor and part of the time in the cutting rooms. In
the cutting room Murphy's duties involved taking half a
hog and sawing the rib cage in two and cutting the ham
bone. One of the problems related to such work was the
occurrence of abscesses in the meat. Abscesses are indi-
cated by a puffy area or by pus running from the abscess
where it has been broken. Murphy had been trained and
was knowledgeable as to how abscesses should be re-
moved. Thus, Murphy's and Dant's credited testimony re-
veals that when an abscess was discovered on the cutting
line, the line was supposed to be stopped, the abscess re-
moved and discarded, and the meat sent on down the line.
On November 7, 1974, Murphy was working on the cut-
ting line. As to one piece of meat that Murphy was working
on, Murphy made his regular cuts. Murphy observed a
puffy area on the meat and made a cut as is revealed by the
following credited excerpts from his testimony.
Q. All right, would you describe what happened-
why you cut this piece of meat?
A. It was a pork loin and on the bone side it was
puffy coming on down through the loin and I took a
saw and sawed it down through it because it was
puffy and it looked to me like it had had an abscess.
Q. What did you discover?
A. There wasn't any abscess.
When the piece of meat reached the end of the line,
Leadman Boehman made the statement that Murphy had
destroyed the piece of meat. Later that day, Boehman re-
ported the incident to Foreman Dant, as is revealed by the
following credited excerpts from Dant's testimony.
A. David-Joe Boehman came to me and said that
David Murphy had deliberately ruined a pork loin
sawing it from end to end.
Dant and Boehman then went to examine the pork loin
as is revealed by the following credited excerpts from
Dant's testimony.
A. So him and me went to the vat where he had laid it
to the side in the cutting room and observed it. The
only way it could have been cut, it would have had
to have been deliberately cut.
Q. Why do you say that?
A. Because he shouldn't make no cut in that area. All
his job was to cut the ham off. He had completely
cut the hog and in place of going on to the next hog
on the belt, he had taken a hand saw and reached
over and took the rib and cut it at an angle from
end to end.
Dant credibly testified to the effect that, if there had
been an abscess on the meat, Murphy had not made the
cut properly as is revealed by the following credited ex-
cerpts from Dant's testimony.
Q. Now, if there had been an abscess, how should you
remove it or would he remove an abscess in the loin
itself?
A. Well, removing it like that, if you were to cut into
an abscess, then you really had messed up because
you have got to shut the line down to stop and move
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hog and the inspector would want you to clean
it up, clean the belt up and that would cost a lot of
labor.
: s s 11
A. 23 people on the Hog Kill and so if we see an
abscess, if we know it is an abscess , we cut way
above and way below to take it out and in most
cases , we ain't too sure that that part should be tak-
en off . We take it away to a little table and check it
and if it is really an abscess , most of the time, it will
be condemned but you sure don't want to bust one
on the conveyor belt.
Q. Was Murphy knowledgeable as to the removal of
abscess?
A. Yes, he was trained on that, on the final trim but
you would only get them when you saw through
them with a knife but where he cut, he made a cut
that wasn't even close to it.
A short time later the incident was reported to Personnel
Manager Wardlow . Wardlow spoke to the foremen and
some other employees and examined the pork loin. Later
Dant saw Murphy and told him that he was wanted in the
conference room.
Dant took Murphy to the conference room where they
met with Personnel Director Wardlow, Leadman Boeh-
man, and Plant Manager Deaton . The pork loin was on a
table. Wardlow asked Murphy what had happened. Mur-
phy told Wardlow that he had thought that the meat had
had an abscess and that this was why he had cut it. Ward-
low asked Murphy if he had ever cut one like this before.
Murphy told him that he had one time before, that he had
cut one half way through but not completely through.
Wardlow questioned Murphy about the procedures as is
revealed by the following credited excerpts from Murphy's
testimony.
A. And he asked me what was the known proce-
dure-he asked me what was the normal procedure
taking out an abscess , had I taken it on myself or
would the foreman do it and I told him most of the
time the foreman were not around and we had to do
it ourselves.
Q. And then what was said , if anything?
A. He asked me again what happened and I told him
that I thought it was an abscess and I asked him if
he would rather for me to shut the line down and
find the foreman to come and look at it himself or
to go ahead and save time and take it on myself to
do it.
Q. Did he make any response to that?
A. No.
Q. What was said next? If anything?
A. He just kept asking me over and over why I did it.
Q. And what did you tell him?
A. I told him-he asked me about four times and I
told him, I've told you why I did it about four times
and that's all I know.
Wardlow then proceeded to discharge Murphy as is re-
vealed by the following credited excerpts from Murphy's
testimony.
Q. Okay, and then what happened if anything?
A. He said , well, it looks like we are going to have to
part company now. He told Joe Boehman and Her-
man Dant to have me get my stuff together and get
out as soon as possible.
Murphy then went to the break room and washed up.
Later in the lockerroom Murphy gave his identification
card to either Wardlow or Dant. Apparently around this
time Murphy and Dant were alone for a few minutes. Dant
told Murphy that he was sorry it happened this way, that
he hated to see him go, that he should not have burned 19
the pork loin, that he could not do anything about it, and
that they had made up their minds 20
In addition to the above facts, it is noted that the Re-
spondent has a rule against abuse , misuse , or deliberate
destruction of company property, tools, equipment, or the
property of employees in any manner. Further, the parties
litigated the question of comparative or contrasting treat-
ment of employees who had engaged in acts within the
purview of the said rule.
Thus, evidence was presented to reveal that the Respon-
dent had terminated employees engaging in acts such as
deliberately throwing away meat and deliberately wasting
meat by cutting off sides. Thus, the Respondent had termi-
nated employees Lloyd and Shanks for such acts. After the
discharge of Murphy, the Respondent terminated an em-
ployee named McGee for carelessness in work resulting in
waste.
In early September 1974, prior to the union campaign,
an employee named Harper carved an obscene word into a
slab of bacon weighing 14 to 16 pounds. The letters were 6
to 8 inches in depth and went three-fourths of the way
through the meat 2 Foreman Payne noticed the bacon with
the obscene word before it was processed into slices. Payne
showed and gave the bacon to Foreman Galloway. Gallo-
way, thereafter, took the bacon to Assistant Plant Superin-
tendent Richards. The next day Richards took the bacon
to Foreman Dant, Harper's supervisor . Foreman Dant pro-
ceeded to try to find out who had cut the obscene word
into the bacon. When Dant questioned Harper, Harper
told him that he was the one who had cut the obscene word
in the bacon, that he hadn't meant to destroy the bacon.
Dant told Harper in effect that the bacon would have to go
into the reject vat and be made into sausage . Foreman
Dant told Harper that he was warning him, that he was not
to ever again "cut no more bellies." Dant reported what he
had found to Assistant Plant Superintendent Richards.
Foreman Dant then returned and told Harper to cut the
bacon up and put it into the reject vat. Harper cut the
bacon up and put it into the reject vat .22
19 An expression used apparently to mean that the pork loin had been
destroyed.
20 Dant's and Murphy's testimony on this point differs slightly. I am per-
suaded that the truth consists of a composite of their testimony . The testi-
mony of either witness is discredited to the extent that it might constitute a
denial of that portion of facts not alluded to in such testimony.
21 The testimony referred to the letters as being 6 to 8 inches high. It
apears obvious that the letters were cut into the meat.
There is a dispute between the version of events by Harper and the
FIELD PACKING CO., INC.
Later, Personnel Manager Wardlow was informed about
the obscene word cut into the bacon and about Dant's
warning to Harper . Wardlow called Foreman Galloway
and was told by Galloway that the bacon had been saved
and processed as bacon and not as sausage . Wardlow then
sent for Harper and discussed the obscene word problem
and a question as to absenteeism . What occurred is re-
vealed in effect by the following credited excerpts from
Wardlow's testimony:
A. Yes sir. He admitted to me he admitted that he
wrote the word on there , he said, yes I wrote in on
there. I didn't know it would hurt the bacon at all
and I just was horse playing around and wrote it on
there and he was very apologetic about it. Of course
I had word that he had come forth and told the
foreman that he did it. The foreman didn't know
who did it in the first place.
Q. The foreman went down and tried to find out who
did it?
A. Yes, from my understanding, yes.
Q. And Mr. Harper reported that he had done it?
A. He readily admitted that he was horse playing
around and that he wouldn't do it anymore. I gave
him a warning.
Contentions and conclusions
The General Counsel contends in effect that the totality
of the evidence reveals that the Respondent's treatment of
the Harper bacon incident and the Murphy pork loin inci-
dent reveals disparate treatment and that the discharge of
Murphy on November 7, 1974, was discriminatorily moti-
vated. The Respondent contends that the evidence does
not reveal that it was discriminatorily motivated in its dis-
charge of Murphy but reveals that it discharged Murphy
because it believed Murphy had deliberately ruined the
pork loin.
Considering all of the foregoing facts and all of the evi-
dence in this case , I am persuaded and conclude and find
that the evidence is insufficient to reveal that the Respon-
dent was discriminatorily motivated in the discharge of
Murphy on November 7, 1974. In sum, the evidence re-
veals that Murphy was a union adherent and that the Re-
spondent, a few days before his discharge became aware of
his union support. However, the facts reveal that Murphy
had cut the pork loin in such a way that it was damaged
and that such cut was not made in the way to be reason-
ably expected for cutting out abscesses. Under such cir-
cumstances , the Respondent could reasonably believe that
the cut had deliberately been improperly made. The ques-
tion of disparate treatment requires a consideration of the
precise nature of the conduct for which action has been
composite version of events by Galloway and Dant. Richards did not testi-
fy. There is also an inconsistency between the version of events by Galloway
and Dant . I credit Harper's testimony over Galloways' and Dant's where
such is in conflict . Considering all of the facts and the logical consistency of
the evidence, I am persuaded that Galloway or Dant, in an attempt to
protect Harper from discharge , conveyed to those higher up that the bacon
had been saved and processed as bacon and not as sausage.
1197
taken. The evidence reveals that the Respondent had dis-
charged employees for destruction of property or for ac-
tions causing damage or loss. Respondent 's treatment-of
Harper for the cutting of an obscene word into bacon as
compared to Murphy's action reveals disparate treatment.
However, the facts reveal a basis for Respondent's belief
that Harper had not deliberately intended to destroy the
bacon and that such bacon had not been destroyed. Under
such circumstances, I am persuaded that the incidents do
not reveal that considerations of employee union activity
played a part in motivation for different treatment. In sum,
I find that the facts are insufficient to reveal that the Re-
spondent was discriminatorily motivated (in violation of
the Act) in the discharge of Murphy on November 7, 1974.
Accordingly, the allegation of conduct violative of Section
8(a)(3) and (1) of the Act, as regards Murphy's discharge,
shall be recommended to be dismissed.
D. The Alleged Discriminatory Discharge of David Havener
The Respondent discharged David Havener on Decem-
ber 19, 1974. Prior to his discharge, Havener had worked
for the Respondent for around 4 years. The issue in this
case boils down to whether or not Havener was discharged
for his union activity. The Respondent contends that Ha-
vener was discharged for nondiscriminatory reasons, mis-
conduct.
Prior to the events connected with the 1974 union orga-
nizational campaign, Havener had been reprimanded in
1972 and 1973 in effect for using abusive and provocative
language. The record reflects in effect that in 1972 and
1973 the Respondent considered Havener to be hotheaded
and to have problems with fellow employees, and to use
abusive and provocative language toward fellow employ-
ees. It should be noted that at the time when Respondent
had such problems with Havener he was working in a de-
partment composed of both males and females. Subse-
quent to the 1973 reprimand and until the events of late
1974, the Respondent encountered no problems with Ha-
vener. In part this appears to be explained by the fact that
Havener, in the meantime, had been transferred to a de-
partment composed only of males. The overall facts reveal
that the language used by the employees in this department
was salty, profane, and vulgar. It appears that such lan-
guage , directed to friends and in a friendly manner, was
tolerated. However, such language, when directed in a hos-
tile manner toward strangers or opponents, is often provoc-
ative.
Havener commenced his union activity on or around
September 30, 1974. On September 30, 1974, Havener
signed a union card and thereafter talked to other employ-
ees about the Union, solicited other employees to sign
cards, and in general was an active union adherent. Also,
around the middle of October 1974, Havener and some 10
to 15 employees commenced wearing union buttons at
work.
After the discharge of Murphy and in connection with
charges filed with the Board thereto, Havener aided in the
investigation of such charges and gave an affidavit to the
Board related thereto.
On November 28, 1974, employee Jean telephoned Ha-
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vener, accused Havener of making threatening and harass-
ing telephone calls to his home, and in effect announced
intentions of settling the matter at the Respondent 's park-
ing lot the next morning. On November 29, 1974 , employee
Jean approached Havener and started a fight. The credited
facts reveal that Jean was the aggressor throughout this
encounter and that Havener merely held on and defended
himself.
This matter came to the attention of the Respondent.
Personnel Director Wardlow investigated the incident by
talking to the participants and other witnesses . Excepting
for employees Morris, Havener, and Jean , it is not revealed
that any other witness was present or in a position to see
the whole encounter or be able to pin responsiblity for who
started the encounter . Leadman Farmer , however, was
present at some point. Employee Harold Colly was also
present at some point of time during the encounter.
Wardlow received conflicting reports from Havener and
the other witnesses . Havener placed the blame for the
event on Jean . The other employees blamed Havener for
starting the event . Wardlow issued reprimands to both
Jean and Havener.23
Havener filed criminal charges of assault and battery
against Jean . These charges were disposed of by amend-
ment and pleas or findings to the effect that Jean was guil-
ty of disorderly conduct.
On December 12, 1974, Havener reported the disposition
of the criminal charges to Personnel Manager Wardlow
and asked that the reprimand to him for the November 29,
1974, encounter be removed. Wardlow told Havener in ef-
fect that the reprimand was given to him for being involved
in the fight, not for starting the fight , and that other wit-
nesses claimed that Havener had started the fight.
Employee Morris had testified on behalf of employee
Jean in the criminal case brought by Havener against Jean
concerning the fight on November 29, 1974. On December
18, 1974, Havener encountered Morris in an elevator at the
plant, engaged in some name calling, accused Morris of
having lied at the trial, and threatened in effect to whip
Morris.
On December 19, 1974, Havener pulled a vat in front of
Morris at work , engaged in more name calling , and in ef-
fect told Morris that his testimony had helped hang Jean
and that Jean had better not lay a hand on him or Jean
would have to go to jail.
Also, on December 19, 1974, Havener engaged in some
name calling directed to an employee named Fulkerson.
Prior to this time and for about a month, Havener had
been calling Fulkerson names and in effect arguing with
him that he should be for the Union because the Union
had saved his job at another plant when Fulkerson alleged-
ly had pulled a knife on a foreman.
Morris reported complaints about the incidents between
him and Havener to his foreman and ultimately to Ward-
23 Jean had received an earlier reprimand for an incident on November 5,
1974, wherein the Respondent was advised that employee Stewart had inter-
rupted Jean at work and attempted to get him to sign a union card and Jean
had torn a union button off of Stewart.
24 Such disposition does not aid in determining who started the fight or
encounter.
low. Morris gave a written statement concerning the events
to Wardlow. Employee Austin, who worked with Morris,
also gave a written statement concerning the December 19,
1974, incident between Morris and Havener . Fulkerson
also made a complaint and gave a written statement to
Personnel Manager Wardlow concerning the incident in-
volving him and Havener.
Personnel Manager Wardlow sent for Havener, dis-
cussed the above complaints and the other reprimands that
Havener had previously received , and discharged Havener
on December 19, 1974.
Wardlow testified in effect to the substance of his discus-
sions with Havener and his reasoning for the discharge of
Havener as is revealed by the following excerpts from his
testimony.25
A. Well, sir, I read all the complaints after he was
brought up to the conference room and I asked him
for his statement on each one of the complaints I
read and we had discussed it and I said , just give me
a moment-I am going to look through these files
and maybe talk to you a minute or so, after I looked
through the file; I had his personnel folder there
and well-during the conversation the statement
that Jerry Morris had said, David Havener said he
helped hang his . . . buddy, I remember asking Da-
vid Havener specifically, did you say to Jerry Mor-
ris that he helped hang his ... buddy and Mr. Ha-
vener said, no sir, I did not, I don't use the word
... or ... and I said, well sir, what did you say
and he said I just said you helped hang your buddy,
so, it was during my reading of the statements that I
came upon some other warnings in the file and just
by looking down at the warnings it said on there
that Mr. Havener had used the word . . . and .. .
in 1972 and 1973. So that's the first thing I asked
Mr. Havener, I said, Mr. Havener you told me you
didn't use those words but I see where you got a
warning back in 1972, where you did use those
words calling a fellow employee those names, and
he said , ahh, it don't matter , and I said, well, I am
just looking over your statement and I said, now
another thing, Payne wrote one of these statements
up and he looked over the table at Bill Payne and
pointed a finger at him and he said that man's
trying to get me fired. They've been trying to get me
fired for years. He said he don't like me and I said,
well, Mr. Havener you have not worked in Mr.
Payne's department for a long time and I don't see
how you could say that. Anyway, let's get back to
these complaints so then I quickly reviewed again,
number one , the man had more or less lied to me
about using that language, that he was hotheaded
and had been corrected for it and these last two
days I've got these three statements even before I
had time to talk to him about it and as I said before,
he was on the warpath, every time I turned around
somebody was running into my office giving me a
statement about him , so, under those conditions
and considerations that there was a lot of talk and
25 Vulgarity is deleted.
FIELD PACKING CO., INC. 1199
pressure that the Union put on employees for hand-
outs down there and also that I heard a lot of other
reports verbally from people that he was trying to
start trouble with so I just decided to terminate the
man.
Contentions and conclusions
The General Counsel contends that the Respondent dis-
criminatorily discharged Havener on December 19, 1974,
because of his union or protected concerted activities in
violation of Section 8(a)(3) and (1) of the Act and because
he gave testimony in support of the NLRB charges con-
cerning Murphy in violation of Section 8(a)(4) and (1) of
the Act. The Respondent contends that the discharge of
Havener was not for discriminatory reasons but because of
Havener's misconduct.
As to the 8(a)(4) and (1) allegations, the facts reveal that
Havener aided in the investigation and gave an affidavit in
support of the charges with the National Labor Relations
Board concerning the discharge of Murphy . However,
there is no evidence that the Respondent had knowledge of
Havener's giving such affidavit or aiding in such investiga-
tion. Accordingly, the allegations of conduct violative of
Section 8(a)(4) and ( 1) in such regard will be recommended
to be dismissed for lack of proof.
Considering all of the facts in this case concerning the
issues of whether the Respondent discriminatorily dis-
charged Havener on December 19, 1974, because of his
union or protected concerted activities , I am persuaded,
conclude, and find that the evidence is insufficient to sup-
port findings of violative conduct in such regard.
The facts reveal that Havener was a strong union adher-
ent and that Respondent was aware of his support of the
Union. Excluding the question whether the Respondent
engaged in violative conduct with respect to the discharge
of Havener, there is no evidence that the Respondent has
engaged in conduct violative of the Act. The Respondent,
by speeches and letters , however, has clearly revealed its
strong opposition to the Union's organizational efforts.
The facts reveal that the Respondent had a reasonable
basis to believe that Havener was hotheaded , prone to
make abusive and provocative remarks to other employees,
and had made abusive and provocative remarks to other
employees.
A critical question in this case is whether the treatment
the Respondent accorded employee Jean for certain acts
compared to the treatment accorded Havener reveals such
disparate treatment as to require or warrant a finding that,
under all the circumstances , the Respondent was discrimi-
natorily motivated in the discharge of Havener.
The overall facts reveal the Respondent sought informa-
tion and statements from the participants and witnesses to
the various events involved. Insofar as the evidence in this
case reveals , the Respondent exercised proper diligence in
an attempt to obtain the facts to make its decisions con-
cerning reprimands and action . The Respondent was faced
in most of the incidents with reports conflicting in nature
and ultimately revealing a necessity in effect to evaluate a
belief of truthfulness or reliability of the statements made
to Personnel Manager Wardlow by witnesses and partici-
pants. As to the events concerning Jean, the Respondent's
actions do not appear unreasonable.
Although the reports and statements to the Respondent
concerning Jean's conduct directed toward Stewart on No-
vember 7, 1974, were conflicting, the overall facts reveal
that the thrust of what occurred was clear . The overall
thrust of such facts reasonably revealed mitigating circum-
stances, that Stewart's actions in interrupting Jean at work
for the purpose of presenting him a union card was in a
sense provocative since Jean was readily identifiable as op-
posed to such an idea. The reprimand of Jean for tearing
off Stewart's union button appeared reasonable.
The reports and statements to Personnel Manager Ward-
low concerning the November 29, 1974, fight incident
(Jean and Havener) were conflicting. There appeared to be
more witnesses who reported that Havener caused the fight
than that Jean caused it. Havener, however, reported that
Jean had started, caused, and was the aggressor in said
fight. The Respondent's investigation of the incident ap-
pears to be reasonably complete. In the end, the Respon-
dent was faced with a question of resolving in effect a cred-
ibility dispute if it wished to assess the blame of who was at
fault. Under all the circumstances, reprimands to both
Jean and Havener appear to have been proper. 26
The reports and statements concerning the incidents be-
tween Havener and Morris and Havener and Fulkerson
reveal conflicting reports. Again the Respondent was faced
with the necessity of making a credibility determination.
Considering the facts, the Respondent's determination of
who was at fault does not appear to be incorrect.
Considering all of the foregoing, the facts reveal a rea-
sonable basis for the Respondent to have believed that
Jean had engaged in an act of provocation on November 7,
1974, when he tore a union button off of Stewart, but that
Stewart had triggered such act by a mild act of provocation
of his own. The Respondent was aware on November 29,
1974, of the foregoing, had conflicting evidence as to
whether Jean or Havener caused a fight on that day, and
could reasonably have serious doubts as to whether Jean
had acted provocatively on such occasion.
As to Havener, however, the Respondent was aware
that, as to the November 29, 1974, incident, Havener had
been warned to avoid such type incidents, and was aware
on December 19, 1974, that Havener was involved in other
incidents on December 18 and 19, 1974, which were pro-
voked by Havener (with Morris and Fulkerson).
Thus as to Jean, the Respondent could reasonably ques-
tion whether Jean had engaged in an act of provocation
toward fellow employees following an earlier reprimand.
As to Havener, the Respondent could reasonably believe
that Havener, on December 18 and 19, 1974, engaged in
provocative acts toward fellow employees after his earlier
warnings. Under such circumstances, the overall facts do
not reveal disparate treatment of a nature to warrant a
belief that such treatment was because of discriminatory
motivations.
26 I have considered the disposition of criminal charges against Jean con-
cerning the events. Since provocation is not a defense to such criminal
charges and merely goes to mitigation, Respondent 's failure to change its
actions is not revealing of improper action.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Considering all of the foregoing , I am persuaded and
conclude and find that the evidence is insufficient to reveal
that the Respondent discriminatorily discharged Havener
on December 19, 1974. Accordingly, the allegations of con-
duct violative of Section 8(a)(3) and (1) of the Act in such
regard shall be recommended to be dismissed.
Upon the basis of the foregoing findings of fact and
upon the entire record in this proceeding , I make the fol-
lowing:
is a labor organization within the meaning of Section 2(5)
of the Act.
3. The facts are insufficient to reveal that the Respon-
dent has violated Section 8(a)(4), (3), or (1) of the Act.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 27
CONCLUSIONS OF LAW
1. Field Packing Co., Inc., the Respondent, is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. District Union Local 227, Amalgamated Meat Cut-
ters and Butcher Workmen of North America, AFL-CIO,
The complaint in this matter is dismissed in its entirety.
27 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions and Order , and all objections thereto shall be
deemed waived for all purposes.