Frosty Morn Meats, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1960

127 N.L.R.B. 1586 (N.L.R.B. 1960)

1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other unfair labor practices may reasonably be anticipated. It will therefore be
recommended that the Respondent cease and desist from in any manner infringing
upon the rights guaranteed its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Cutter Boats, Inc., is an employer within the meaning of Section 2(2) of the
Act and is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 215, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization within the meaning of Section
2(5) of the Act.
3. All over-the-road truckdrivers employed by Cutter Boats, Inc., at its Tell City,
Indiana, plant excluding all other employees, guards, professional employees, and
supervisors as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act.
4. On March 11, 1959, and all times thereafter Local 215, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, was, and
now is, the representative of the majority of the Respondent's employees in the
appropriate unit described above for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing on March 13, 1959, and thereafter to bargain collectively with the
above-mentioned labor organization as the exclusive representative of all its em-
ployees in the above-described appropriate unit, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the
Act.
6. By unilaterally instituting the changes in the terms and conditions of employ-
ment of employees in the above-described appropriate unit as herein related, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) of the Act.
7. By discriminating with respect to the tenure of employment of its employees
by laying them off in order to discourage the free exercise of rights guaranteed by
Section 7 of the Act and to discourage membership in behalf of the above-mentioned
organization, the Respondent engaged in unfair labor practices within the meaning
of Section 8 (a) (3) and (1) of the Act.
8. By the commission of other independent acts of interference, restraint, and
coercion of its employees in the exercise of the rights guaranteed in Section 7 of
the Act, as herein related, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
10. Any allegations of the complaint as to which specific findings of violation
have not been made in this proceeding have not been sustained.
[Recommendations omitted from publication.]
Frosty Morn Meats , Inc.' and Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO. Case No.
15-CA-1508. June 09, 1960
DECISION AND ORDER
On March 18, 1960, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
'The name of the Respondent appears as amended at the hearing.
127 NLRB No. 175.
FROSTY MORN MEATS, INC. 1587
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices and recommended that the complaint be dismissed with re-
spect thereto.2 Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Jenkins].
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 In-
termediate Report, the Respondent's exceptions and brief, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the exceptions and
modifications noted below.
The Trial Examiner found, and we agree, that Respondent inde-
pendently violated Section 8 (a) (1) of the Act and that it discharged
Sam Judkins in violation of Section 8(a) (3) of the Act. The Trial
Examiner also found that Respondent unlawfully discharged Hughie
Shaw. For the reasons given below, we do not adopt that finding,
although accepting the credibility resolutions made by the Trial
Examiner 3
As appears from the Intermediate Report, Respondent had a rule,
known to Shaw, against knocking more than two cattle at a time.
Shaw's own testimony, which was credited by the Trial Examiner,
shows that on the morning of November 6, 1958, he was knocking four
cattle at a time. This was observed by Camp, who asked Shaw,
"Haven't I told you about knocking four cattle?" Shaw admitted
that Camp had, but stated that he had "done it because Mr. Holley
[foreman of the kill department] told me to do it." Camp repeated
that he had told Shaw not to knock so many cattle and told Shaw he
was being discharged for disobeying a company order. Shaw insisted
that he was following instructions issued by Holley, whereupon Camp
summoned Holley who denied that he had issued the instructions
attributed to him by Shaw. Camp remarked that that was all he
wanted to hear, and Shaw was discharged.
The Trial Examiner poses the decisive issue in Shaw's case as being,
"did Shaw knock four cattle on the morning in question in accordance
with Holley's instructions." In our opinion, this is not the vital issue.
2 No exceptions were filed to the Trial Examiner 's finding, which we adopt, that J. W.
Camp, manager of Respondent 's plant, did not engage in surveillance on Novem-
ber 8, 1958.
, 3 As the clear preponderance of all the relevant evidence does not show that the Trial
Examiner 's credibility resolutions are incorrect , there is insufficient basis for disturbing
them: Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (CA. 3).
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Even if Holley had sanctioned the knocking of more than two cattle
at a time, the critical issues, we believe, are (1) whether Camp believed
that Shaw was violating the company rule in question without justi-
fication therefor, and (2) whether Camp discharged Shaw for that
reason ' In the former connection, Camp himself saw Shaw knocking
four cattle and Shaw admitted that he was thereby violating Camp's
orders to the contrary. While Shaw insisted that he was acting pur-
suant to instructions from Holley, Holley denied this and Camp
accepted his denial. So far as the record shows, it was not unreason-
able for Camp thus to credit Holley. In Camp's eyes, therefore,
Shaw, without justification, had violated the company rule against
knocking too many cattle at one time. As to whether Camp dis-
charged Shaw for this infraction of the company rule, consideration
should be given to the purpose of the rule, which is to prevent financial
loss to Respondent, for an excess of cattle in the knocking box results
in bruises to carcasses which must then be trimmed or may have to
be condemned, depending upon the extent of injury. In view thereof,
Shaw's infraction was not an inconsequential matter to Camp and we
cannot say he was not discharged therefor .5 Under all the circum-
stances, we are not satisfied that the complaint's allegations in Shaw's
case are supported by a preponderance of the evidence. We shall
dismiss the complaint insofar as it alleges that Shaw was discharged
in violation of the Act.
ORDERS
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Frosty Morn
Meats, Inc., Montgomery, Alabama, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, or any other labor
organization of its employees, by discharging or refusing to reinstate
4 See N L .R.B. v. John S. Swift Company , Inc., 227 F. 2d 641 (C.A 7).
5 The Intermediate Report suggests that the knocking of more than two cattle at a
time was a common practice which Camp condoned . The record does not establish that
fact. The only evidence which satisfactorily shows that Camp witnessed the knocking
of more than two cattle without complaint was given by employee Tom Wilson who testi-
fied to a single occasion occurring about 3 years prior to the hearing. We are unwilling
to attach overriding significance to this isolated incident , the circumstances of which are
not fully described in the record.
6 Because we believe that a discriminatory discharge , as in the instant case, goes to
the very heart of the Act , and also because we believe that it may be anticipated from
Respondent 's past conduct that Respondent may commit other violations of the Act in
the future , we shall adopt the Trial Examiner 's recommendation for a broad cease and
desist order herein. And , as Alabama has a "Right to Work Law," we shall delete from
the Trial Examiner 's recommended order the proviso "except to the extent that such
right may be affected by an agreement authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act of 1959."
FROSTY MORN MEATS, INC. 1589
any of its employees, or in any other manner discriminating in regard
to their hire or tenure of employment, or any term or condition of
employment.
(b) Interrogating its employees concerning their union member-
ship, affiliation, or sympathy with the above or any other union in a
manner constituting interference, restraint, or coercion in violation
of Section 8 (a) (1) of the Act.
(c) Threatening its employees with discharge or other economic
reprisals for their union membership or activities.
(d) Spying on or keeping under surveillance union meetings or
activities of its employees, or requesting employees to report on the
Union or union activities of its employees.
(e) In any other manner, interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organization's, to join or assist the above-named or any
labor organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain
from any and all such activities.
2. Take the following affirmative action which the Boards finds will
effectuate the policies of the Act :
(a) Offer to Sam Judkins immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges previously enjoyed, in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(b) Make whole Sam Judkins for any loss of pay he may have
suffered by reason of the discrimination against him in the manner
set forth in the section of the Intermediate Report entitled "The
Remedy."
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records, and reports,
and all records necessary to analyze the amount of backpay due under
the terms of this Order.
(d) Post at its plant in Montgomery, Alabama, copies of the
notice attached hereto marked "Appendix." I Copies of said notice,
to be furnished by the Regional Director for the Fifteenth Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous
places, including places where notices to its employees are customarily
T In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an
Order."
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posted . Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered , defaced, or covered by any other
material.
(e) Notify the Regional Director for the Fifteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and it hereby
is, dismissed insofar as it alleges that the Respondent violated the
Act by surveillance by J. W. Camp on November 8, 1958, and by the
discharge of Hughie Shaw on November 6, 1958.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-CIO, or
any other labor organization, by discharging or refusing to rein-
state any of our employees, or in any other manner discriminating
in regard to their hire or tenure of employment, or any term or
condition of employment.
WE WILL NOT interrogate our employees concerning their mem-
bership, affiliation, or sympathy with the above-named or any
other labor organization, in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1) of the Act.
WE WILL NOT threaten our employees with discharge or other
economic reprisals for their union membership or activities.
WE WILL NOT spy on or keep under surveillance union meetings
or activities of our employees, or request our employees to report
on such activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist the above-
named or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any and all such
activities.
WE WILL offer to Sam Judkins immediate and full reinstatement
to his former or substantially equivalent position without preju-
dice to his seniority and other rights and privileges and make
him whole for any loss of pay suffered as a result of the discrimi-
nation against him.
FROSTY MORN MEATS, INC. 1591
All our employees are free to become, remain, or refrain from be-
coming or remaining members of Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO, or any other labor
organization.
FROSTY MORN MEATS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges, as amended, duly filed, the General Counsel of the National Labor
Relations Board, through the Regional Director for the Fifteenth Region (New
Orleans, Louisiana ), issued a complaint dated June 25, 1959, alleging that Frosty
Morn Meats, Inc.,' herein called the Respondent or the Company , has engaged in
unfair labor practices in violation of Section 8(a)(3) and (1) of the National
Labor Relations Act, as amended . The answer of the Respondent admits certain
allegations of the complaint but denies the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before the duly designated Trial Examiner
at Montgomery, Alabama, on December 1, 2, and 3, 1959. All parties were rep-
resented at the hearing and were afforded opportunity to adduce evidence, to ex-
amine and cross-examine witnesses , to present oral argument , and to file briefs. The
General Counsel and counsel for the Respondent filed briefs on January 13, 1960,
which I have fully considered.
Upon the entire record, and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE RESPONDENT 'S BUSINESS
The pleadings show that the Respondent , an Alabama corporation, has its prin-
cipal office and place of business in Montgomery, Alabama, where it is engaged in
the business of slaughtering beef and the processing of beef byproducts incidental
to its slaughtering business . During the year 1958 the Respondent slaughtered and
processed beef and byproducts valued in excess $5,000,000 of which more than 35
percent were sold and shipped from its plant in Montgomery, Alabama, directly to
customers located in places outside the State of Alabama. I find the Respondent is
engaged in commerce as defined in the Act.
R. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO,
herein called the Union , is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The issues are whether : ( 1) company officials unlawfully interrogated employees
regarding their union affiliation or sympathies, (2) the Company engaged in sur-
veillance of union meetings and activities of its employees , and (3 ) it discrim-
inatorily discharged two employees.
B. The Company's operations
The Company's plant consists of two principal departments , the kill floor and
the shipping department . In the kill floor operation cattle are taken from holding
'At the hearing , I granted, without objection , the General Counsel's motion to amend
all pleadings to show the correct name of the Respondent to be Frosty Morn Meats, Inc.
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pens through a chute to the knock box where they are killed, then processed through
cleaning or dressing procedures, weighed, wrapped in shroud clothes, and placed
in the cooler. The shipping department operations commence with the last trimming
and shaping of beef halves through the aging process to the final shipment to
customers. The plant is federally inspected and must maintain Federal standards
as to quality of products and cleanliness of operations. The Company employs
about 40 employees. Most of the laborers were colored and their work was strictly
physical, requiring little or no educational qualifications. At all times material here,
J. W. Camp was, and is, manager of the plant, J. T. Bigger was assistant manager
in charge of the shipping department, and Harold T. Holley was foreman of the
kill department.
C. Organizational activities; acts of interference, restraint, and coercion
Sam Judkins, one of the alleged discriminatees, testified he was first employed in
July 1958 in the shipping department under Bigger, and was discharged on Novem-
ber 4, 1958. The Company contends he was hired on September 6, 1958, and
produced certain personnel and payroll records to support its contentions.2 In any
event, Judkins stated that one Sunday, about 2 weeks before his discharge, he was
working on the load-out crew, which usually consisted of five or six men. On this
occasion one of the men, Gene Majors, complained about having to work on Sunday
and Judkins said the only way they could put a stop to this practice was to organize.
Another man in the crew asked if he knew of any way they could organize and
Judkins stated he was willing to try, that he would see "the union man " On his
work break that day, Judkins, went to a nearby lunch stand where he met Emmet
Causey, an employee at the Swift plant and vice president of Local 215 of the
Union. Judkins spoke to Causey about organizing the employees and Causey said
he would obtain union cards and meet him the next day during his break, which he
did. Judkins and three of the employees signed cards, Wymon, Luther Hail, and
William McKeithen, and he also gave some cards to Robert Lee and Hughie Shaw
for signature and distribution among the employees on the kill floor. Later, Judkins
made arrangements for a meeting of the employees to be held on Saturday evening,
November 1, at the Carpenters hall. As some of the men did not know the location
of the hall, Judkins suggested, and the word was passed along, that they gather at
the Pekin Theatre and then drive to the hall. When Judkins, Shaw, Lee, and other
employees went to the vicinity of the Pekin Theatre, a colored area, they saw
Bigger standing in front of one of the stores. The men then drove to the meeting
place.
Causey stated that in the latter part of October Judkins spoke to him about
organization, that he gave him some union cards, and that he arranged the meeting
held on November 1. According to Causey, Judkins and Shaw spoke in favor of
the Union and about 15 men signed union cards. A second meeting of the em-
ployees was held on November 8.
Counsel stipulated Bigger was present in the vicinity of the Pekin Theatre on the
evening of November 1 for the purpose of observing a meeting of some of the
employees and he did see some of the employees on that occasion.
The following Monday, November 3, Camp called many of the employees to his
office for personal, private interviews.
Thus, Tom Wilson, employed for about 3 years and still working on the kill
floor, testified he attended the union meeting of November 1, signed a card, and
on the afternoon of November 3 was called to Camp's office. Camp showed him a
union card and said Wilson did not have to tell him he had signed a card because
he knew Wilson had signed one. Continuing, Camp "said there wouldn't be any
union. He said if we have to vote, if we ever have a vote, to vote for Tom and not
for the boys up the street; he said, because when I get out of a job the boys up
the street won't give me anything." Wilson understood Camp's expression "the
boys up the street" to mean the employees at the Swift plant located nearby and who
were unionized. While Wilson had talked to Camp on previous occasions, this
was the first time Camp ever brought up the subject of the Union.
Warren Ross, employed on the kill floor for about 2 years, attended the union
meeting and later signed a card. Shortly after the meeting Ross asked Camp if he
could have the day off and Camp told him to come to the office. There, Camp
showed him a union card and inquired if he had seen such a card or signed one.
2 These records included Judkins' application for employment, withholding exemption
certificate, and timecard, each bearing the date of September 6, 1958. On cross-examina-
tion Judkins insisted that he was first hired in July, not September. I do not consider
the date of initial employment material to the issues in the case.
FROSTY MORN MEATS, INC. 1593
Ross replied he had seen a union card but had not yet signed one . Camp said he
understood "some of the fellows are trying to get up a union here, and it 's not going
to do them any good . It's not going to do you any good . You are a good worker
and you are too good a boy to get tied up in anything like this." Camp, after
referring to an election , stated he was not telling Ross how to vote , "but when you
vote, be sure to vote right, because you know who buys your groceries and you
know who's paying your rent." As he was leaving Camp told Ross no one need
know of their talk. He then told Ross to have Holley send Willie Belser to the
office. Ross admitted he had previously talked to Camp about personal and
financial matters.
Belser, who had been employed by the Company for about 3 years, attended the
union meeting and signed a card . When he reported to Camp 's office, Camp showed
him a union card and asked if he had ever seen one. Belser said he had seen one
when he worked for Swift . Camp stated he was not asking Belser to tell him any-
thing about the Union , "I know who has signed and who hasn 't," but he was
reminding him that when it comes time to vote, to vote right and remember it was
Camp , not the Union, who was feeding him. Belser had been in Camp's office on
other occasions , for instance to borrow money, but this was the first time he had
been called there or had any discussion with Camp concerning organization.
Robert Lee , an employee for 3 years on the kill floor, was present at the union
meeting and signed a card . Lee was called to the office where Camp inquired if
he had seen a union card or if he had signed up . Camp had a union card on his
desk. Lee admitted he had signed a card and when Camp asked if he knew what
he had signed Lee answered , he did not , he just signed it. Camp said the men at
Swift would not do anything for him, in fact the Swift men were making only 25
hours a week , and that he , Camp , had always treated his employees right. Lee
had talked to Camp at other times about pay increases and money.
Alton Simmons was employed by the Company for about 3 years. He was
employed at the plant when the Company took over around 1954 or 1955, subse-
quently left, and was rehired by Camp . During the period of organization he
worked on the kill floor and left his employment about 9 months prior to the
hearing, or around March 1959. Simmons was informed of the union meeting
of November 1, 1958, by Shaw, went to the Pekin Theatre where he met with
the other employees , attended the meeting , and signed a union card. On the
following Monday, Holley instructed Simmons to report to Camp at the office,
which he did. Camp asked Simmons who had attended the meeting and Simmons
gave him the names of the employees attending , including Judkins and Shaw.
Simmons further stated that Camp told him "to keep up with the boys and see
what they do" and let him know what the employees were doing. He also gave
Simmons $1 and his telephone number written on a slip of paper, which Simmons
identified and which was received in evidence . Simmons said he called Camp at
that number. There is no doubt, as argued in the Company's brief, that Simmons
related a rather confusing account of his telephoning Camp concerning the union
meeting or the activities of the employees . Simmons himself admitted he was con-
fused on that point. Thus, Simmons testified he telephoned Camp Saturday night,
after the meeting , but almost immediately changed his testimony by stating he called
Camp on Monday night. Simmons had nothing specific to report to Camp on
Monday night and, according to his version of the conversation , Camp inquired
whether he had heard anything else about the meeting and he answered, "No."
Simmons did not attend the second union meeting and there is no evidence he made
any other telephone calls to Camp.
After completing his testimony Simmons was recalled by the General Counsel
for the purpose of clarifying his testimony concerning the slip of paper handed him
by Camp . Counsel for the Company objected to this procedure for the reason that
Simmons had completed his testimony and that his recall was caused by the fact
that company counsel had obtained a telephone directory and a city directory, which
were placed on the trial table and were plainly visible . I overruled the objection.
Simmons then admitted that the piece of paper he had identified previously as bearing
Camp 's telephone number was simply a message received at the plant for Simmons
to call a given number , which was the telephone number of his neighbor . Simmons
explained Camp had given him two slips of paper at their meeting of November 3,
and it was the other slip that contained Camp 's number . He further stated that
he gave both these slips to the General Counsel but he could not recall whether both
slips were returned to him . No paper of the character described by Simmons was
produced at the hearing.
Peter Robison worked for the Company about 4 years and, while he had been
fired four times since November 1958 , he was still working at the time of the
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing. Robison stated that one evening during the week of November 3, 1958,
Camp approached him while working and asked him to go to the union hall and join
the Union. Robison replied, "No, that would be like throwing something at a wild
hog and then tell him to sooie." Camp then asked Robison to go to the union hall
and see who was there. Robison went to the hall where he saw Causey and inquired
if any of the Frosty Morn workers were holding a meeting. Causey, after making
a check, informed Robison the only meeting being held that night involved the
Swift employees. Robison returned to the plant and advised Camp of his conver-
sation with Causey. Camp told Robison to go back to work. About a week later
Camp asked Robison to talk to McKeithen to find out whether McKeithen had
signed up for the Union. Robison spoke to McKeithen and informed Camp that
McKeithen did not talk as though he had joined the Union.
William L. McKeithen was employed in the shipping department for about 16
months and some 3 or 4 weeks prior to the hearing he quit, or was fired, for refusing
to carry half a carcass from the hook to the truck. On the night of October 31,
1958, McKeithen was working on the kill floor when Camp asked him to find out if
Shaw or Judkins were organizing a union and to let him know the next day.
McKeithen promised to do so. Camp then stated, "If they are organizing a union,
I will fire them; because there isn't going to be no union at Frosty Morn." Camp
added he would not mention McKeithen's name to anyone. The next day
McKeithen asked Shaw and Judkins if they were organizing a union and they said
they did not know anything about the Union. McKeithen reported this conversa-
tion to Camp, who remarked that Shaw and Judkins "are lying. . . They are the
ones organizing the union. . I'll fire them." Camp also stated he would shut
down the plant rather than have the Union. Camp then told McKeithen to ask
Simmons about the Union. McKeithen did not have an opportunity to speak to
Simmons the next day and when he reported this to Camp, Camp told him to
make the same inquiry of the other men. The following day McKeithen spoke to a
number of men on the kill floor but was unable to obtain any information regarding
the Union. McKeithen informed Camp that the men would not tell him anything
about the Union "because they figured I'd tell you." Camp replied, "They are lying.
I'm going to start firing all of them, because there ain't going to be no damn union
at Frosty Morn. I'll close it down first."
Around the first part of December 1958, Camp told McKeithen if he could get
him a union card he would give him a present. McKeithen tried to obtain a card
but was unable to do so and so informed Camp. In March 1959, Camp inquired if
McKeithen had heard anything of the Union. McKeithen said he thought it was
all over and Camp stated he did too.
Camp, as a witness for the General Counsel, said he first learned of organiza-
tional activities around December 1, 1958, when Simmons voluntarily came to his
office and stated he had attended a union meeting with Swift workers, who were
organized, and that cards were passed out to the Company's employees. Camp
asked what kind of cards were distributed and Simmons replied the cards were to be
signed and he signed one without reading it. Camp said it was his privilege to sign
a card or attend a union meeting or to do whatever he wished. Simmons stated
he was sorry he had signed the card and thought he should tell Camp. Camp did
not believe Simmons mentioned the date of the meeting. He denied Simmons gave
him the names of other employees who attended.
Within the next few days, as appears below, practically all of the employees were
called to the office and individually interviewed by Camp.
Camp related another instance, he presumed it occurred after the above meeting,
when Simmons telephoned him to say that he wanted to tell Camp something about
the Union. Camp replied Simmons did not have to tell him anything regarding the
Union, that he was not to report on the Union or union activities, and what he did
after working hours was his own business.
When testifying on behalf of the Company, Camp was asked by his counsel, in
connection with the above-mentioned meeting, whether he sent for Simmons or if
Simmons voluntarily came to his office. Camp did not give a direct answer but
stated, "I talked to Simmons . . . when I was calling the employees in and talking
to them." Camp's testimony concerning the meeting was substantially the same
as set forth above, although he stated the meeting could have taken place between
November 15 and December 1. Camp denied he requested Simmons to attend a
union meeting or report on union activities. He also denied Simmons gave him the
names of the employees attending the union meeting or that he threatened to shut
down the plant if the Union came in. Camp said he had loaned Simmons money
on many occasions and he may have loaned him a dollar at the meeting in question.
However, he denied that he gave Simmons a dollar with the request that he telephone
FROSTY MORN MEATS, INC . 1595
him and denied that he handed Simmons a slip of paper bearing his telephone
number. Camp testified Simmons called him at the plant but he could not remember
the approximate date. On that occasion Simmons said he wanted to tell him some-
thing about the Union and Camp replied he did not have to do so. Simmons stated
he just called to report something. Camp, believing this "was some sort of a trick,"
told Simmons that if he wished to talk he could come to the office. The conversa-
tion then ended and there is no testimony that Simmons thereafter came to the office
to report on the Union.
Within a few days after his conversation with Simmons regarding the Union,
Camp called practically all of the employees to his office for individual interviews
or talks. Camp said it was his custom to try to talk to all of the employees "within
one or two days, almost every week, if it wasn't anything except, `How are you
getting along with your job.' " He also asked the employees for suggestions re-
garding their work. In the course of the instant interviews with the employees Camp
said two of the men brought up the subject of the Union, Robert Lee and Curtis
Vaughn.3 According to Camp, when these individuals came to his office they ex-
pressed the opinion or thought they were being called in because of the Union, but
he told them that was not the purpose of the visit. Camp denied he questioned any
of the employees concerning their union membership or activities, or the union
membership or activities of other employees, or that he requested any of them to
attend union meetings and report thereon, or that he threatened to shut down the
plant in the event the Union came in.
Camp was asked by his counsel, referring to the testimony of Lee and others
that he had shown them a union card while interviewing them, whether he had a
union card, and Camp answered;
A. What happened, Mr. Godbold-and to the best of my recollection, you
are the first one who has ever asked me if I had a union card, to the best of
my recollection-and I imagine they are talking about a union card that was
all wrinkled up and was thrown on the floor on the way back to the Kill Floor.
Q. Did you find it on the floor?
A. And I picked it up, just like I pick up a piece of loose paper, and throw
it in the trash can.
Q. Did anybody give that union card to you?
A. No, sir.
Q. Did it have a name on it or was it blank?
A. No name, no nothing; it was all wrinkled up.
Q. Did you show that to Robert Lee?
A. I don't remember if I showed that to Robert Lee or not, Mr. Godbold.
Again , when asked if he had had any discussions with the employees on the
subject of "voting right" or voting in an election, Camp responded:
A. Mr. Godbold, if I did, it's possible-if I can't remember that far back-
actually my memory is not that good that I can remember a year or a year and
a half ago exactly what was said . But I have never told any of my employees
to do anything other than what they wanted to do themselves-not what I
wanted to do or not what some outsider wanted them to do, but to do what
they wanted to do themselves.
Q. Have you told some of these employees to do what was best for them-
selves and not for the boys up at Swift?
A. To my knowledge , I don 't think I mentioned the name of Swift . I might
have said "the boys on the outside," or "down the street," or something like
that; but to my knowledge, I didn't mention Swift.
Admittedly, at the time of the interviews there was no question concerning the
representation of the employees, either by way of demand for recognition by the
Union or a representation petition.
D. The discharges
Judkins testified that on Monday morning, November 3, 1958 , he, Hall , Majors,
Johnny Gates, and another employee, Leon, finished loading a truck at which time
all of the men, except Judkins, took their work break. Gates told Judkins to sweep
up the cooler before taking his break. This was usual procedure, so Judkins
got a broom and began sweeping the floor in the front cooler. All of the crew went
to the coffee stand but Hall who remained in the area. While Judkins was sweeping
3 Vaughn did not testify at the hearing.
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bigger came into the cooler and asked if Gates was around . Judkins said Gates
was on his break, that Gates had told him to sweep up and then take his break.
Bigger instructed Judkins to come to the office when he was finished . After sweeping
the cooler, Judkins went to the office where he saw Camp and Bigger. Bigger asked
Judkins to come outside and took him into the other cooler where he told Judkins,
"Sam, I'm going to have to let you go." Judkins inquired if he had his money ready
and Bigger said it was ready , that he should get his things, bring in his card, and
pick up his money . Judkins followed these instructions and was paid off . Judkins
said Bigger gave no reason for his discharge and he did not ask the reason for his
being discharged.
Luther Hall was employed in the shipping department for about 21/2 years and
left the Company in September 1959. Hall was present on November 3 when Gates
told Judkins to clean up the cooler and he saw Judkins go into the cooler. Hall
then went into the office to pick up a seal , returned to the truck , and sealed the
door. This operation took about 10 or 15 minutes and when Hall came back he
saw Judkins in the office with his helmet, gloves, and timecard. Hall noticed
the cooler floor was clean and then went on his break . Upon returning to the crew
he heard Judkins had been discharged. Hall said the "floor is swept when it gets
dirty" or whenever Bigger or Gates, who was Bigger 's assistant or senior man, told
them to sweep . Hall had swept the floor , on instructions from Gates , on many
occasions.
The evening of Judkins' discharge, or the following evening, Bigger asked Hall
what was going on about the Union, or if he had heard anything , and Hall said he
did not know anything about it. Bigger inquired if he was a member of the Union
and he told him, no . Bigger stated they would not have a union at the plant.
About a week after Judkins' dismissal, Gates told Hall that Camp wanted to see
him at the office . Hall reported to Camp , who informed him that he was the
manager and that he was strict about plant rules. Camp further stated that he
knew who had attended the union meeting, as well as those who signed cards, and
that there would be no union at the plant and before he would have a union he would
close the doors. This was the only time , during his employment , that Hall had
been called to the office by Camp. However, after Hall quit his job and was at the
plant to pick up his pay, Camp called him in the office and spoke to him, apparently
for the purpose of changing his mind about quitting the Company.
Bigger testified Judkins was employed as a laborer and worked in the coolers and
loaded beef . On Tuesday morning, November 4, Bigger told Judkins to clean up
the dock after he had finished loading a trailer. At that time the rest of the crew
took their break and Bigger returned to his office which adjoins the loading dock. A
few minutes later Bigger looked out the window and when he did not see Judkins
cleaning up the dock he went to the cooler but did not see him . Bigger then walked
through another cooler , the offal , and saw Judkins coming from the dressing room.
Bigger waited until Judkins came into the cooler and then told him , "Sam, you
haven't cleaned up like I told you. It seems like you are not going to do like we
want you to and do a good job, and I think you better be on your way; we don't
need you any more." Judkins asked for his time and Bigger instructed him to get
his things and to bring his timecard to the office where his check would be ready
for him. Bigger said Judkins was fired for "insubordination" and he so stated on the
company records. This was the first time Judkins had failed or refused to follow
Bigger's instructions to clean up.
According to Bigger , Government regulations require the Company to maintain
a clean plant and ordinarily they clean up 2 or 3 times a day and always after
loading a trailer.
Bigger testified that one time, within the preceding week, Gates reported he had
instructed Judkins to sweep up before taking his break but Judkins went on his break
without doing so. Bigger further stated that Judkins, whom he considered a tem-
porary worker, was a good worker and had a good attitude in the early stages of
his employment but after 3 or 4 weeks his attitude changed, he would not cooperate,
he was a poor group worker, and he became impudent and moody. Bigger added
that Judkins also had financial troubles but he did not consider these problems when
he discharged him. He denied having any knowledge of Judkins' union membership
or activity or that he had attended a union meeting.
Bigger denied he ever had any conversation with Hall concerning the Union or
union activities.
Gates has been with the Company for about 3 years and worked in the coolers
and on the dock with Judkins. He was the senior employee in point of service, was
one of four or five white employees at the plant, and carried out routine orders
from Bigger. Gates stated that after loading a truck it was customary for the men
FROSTY MORN MEATS, INC. 1597
to take a break while one man stayed on and cleaned up. On the day of Judkins'
discharge the men were loading a truck and when they finished Bigger , in line with
the above practice , told Judkins to clean up . Gates and the men then went on their
break. Gates said he did not think Judkins cleaned up and as far as he knew he
was fired for that reason . According to Gates, the men rotated on the cleanup job
and about 2 or 3 days previously he instructed Judkins to sweep up before his break
and he failed to follow these instructions. Gates reported the incident to Bigger.
Gates said Judkins was employed for 2 or 3 months and at first he was a good
worker but later he slowed down . He had no complaints about Judkins' work, other
than the sweeping incident and the fact that at times he pushed cattle on the rail
without watching if anyone was in front of him.
Gates said McKeithen was cursing one day while loading a truck and when he
told him to stop , McKeithen replied he always cursed and would curse whenever he
wished. Gates stated that at times McKeithen complained the large quarters of
beef were too heavy to handle by himself and Gates told him to double up with
someone else.
Willie Gene Majors was employed in the offal cooler room and on the dock
from July 1958 to March 1959, when he left and ieturned in October 1959. Majors
stated that on the day of Judkins' discharge they were loading a truck and as the
job was about completed Bigger came on the dock and asked Judkins, "Will you
please clean up the dock , Kid?" Majors and the other men then took their break
and when they returned, in about 15 minutes , he noticed the dock had not been
swept . Bigger told Majors to sweep it, which he did. Majors said Judkins was a
good worker at first but later became sullen and pushed the beef too fast.
The Discharge of Shaw
Shaw testified he was hired in May 1958 as a temporary employee in the shipping
department ( he was paid on a daily basis ) and some 3 weeks later he was regularly
employed as a cattle knocker on the kill floor. He worked under Holley and re-
mained on this job until November 6, 1958, when he was dismissed.
During May 1958, Camp asked Shaw if he had previously worked at the plant
and he replied that he had.4 Camp said he understood that he had been fired for
trying to organize a union and Shaw answered that was not true. Camp remarked
he did not need any union to tell him how to run his job and Shaw agreed with him.
Shaw first learned of organizational activity when Judkins informed him they
were planning to establish a union and inquired if he was interested . Shaw said he
was interested and Judkins told him the employees were holding a union meeting
the next evening, November 1, at the Carpenters hall. He also told Shaw the
men would meet at the Pekin Theatre and then drive to the union hall. Shaw
met the men at the Pekin Theatre, drove to the union hall, attended the meeting,
and signed a union card.
In describing his job as cattle knocker, Shaw stated he would drive the cattle from
the holding pens, just outside the kill floor, up a chute into the knock box or kill box,
hit each animal with a sledge hammer so as to kill or stun it , raise the door of the
knock box so the animal rolled out on the kill floor , and then hang the hind legs
with a chain in order that the animal could be hoisted on a pulley to the blood box.
The knock box is a concrete box with thick side walls and no top and, on the inside
measures about 37 inches wide and 7 or 8 feet long. As I recall Shaw indicated it
was around 4 or 5 feet high. The cattle are led in at one end through a chute, Shaw
would stand on the box and hit down on the animal , then open the door and let it
roll on the floor.
Shaw was working as usual the morning of November 6 , knocking small calves.
After knocking four calves at one time, Camp came over and asked, "Haven't I
told you about knocking four cattle?" Shaw admitted that he had and when Camp
inquired why he had knocked four cattle, he answered, "I done it because Mr. Holley
told me to do it. Mr Holley is my foreman." Camp said he had told him not
to do it and to come with him. Shaw followed Camp to the clock, punched out,
and went to the dressing room. There Camp said he was being fired for disobeying
a company order. Shaw denied this and repeated that Holley had instructed him
to knock four calves and he followed Holley's instructions whether they weic right
or wrong. Camp said Holley did not tell him to do that and when Shaw replied
that he had, Camp asked if Shaw was calling him a liar. Shaw denied that he was
calling him a liar and Camp told him to shut up. Shaw stated he would not shut
up because he felt he was right. Camp left, returned with Holley, and asked Shaw to
' Shaw said he worked a few days around 1955 or 1956.
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
repeat his remarks in front of Holley. Shaw reiterated his statement that Holley
had told him to knock four calves, which Holley denied. Camp said that was all
he wanted to hear. Shaw made no reply and went to the office. After waiting
about 5 minutes Camp called him in and Shaw stated he had been fired and did not
want a sermon. Camp commented they could be friends and he did not want
Shaw to feel he had been mistreated. Shaw said he had not been mistreated in the
past but he was now because Camp had a poor excuse for firing him and he must
have some other reason. Shaw remarked he should be firing Holley. Camp then
handed him his check, or checks, and he left the plant.
Shaw was fully aware of the rule that ordinarily the knocker hits only two
cattle at one time. Concededly, both Camp and Holley had informed him of the
rule. In explaining the procedure, and the purpose of the rule, Shaw testified that
the knock box will hold two large cattle, standing, and when the animals are hit they
fall to the floor. Consequently, if more cattle are in the box, or are driven in, they
will trample the fallen animals causing them to become bruised and damaged.
The bruised or damaged portions of the animals must be trimmed or cut out. Shaw
further stated that the knock box will hold three poor cows or four or five small
cattle, standing, which may be knocked at the same time without danger of the
animals trampling on the fallen ones.
Shaw related an instance, sometime prior to his discharge, when he was knocking
two cattle and Holley complained he was not keeping up with the men on the kill
floor. Shaw said he could not keep up when he had to knock, get down to hang the
animals, and then drive the cattle into the chute. Holley told him to knock three
poor cattle, which he did. On another occasion Camp instructed him to hit only
two cattle because if he knocked more he would cost the Company $800 or $900 a
day. Shaw said he understood and asked if it was all right to knock three poor
cows and Camp replied it was "Okay." Sometime later Camp told him to knock
only two cattle at a time. Holley instructed Shaw that when knocking calves to
get as many animals in the box as he could so he then knocked four calves at a
time. Shaw stated he was knocking calves in the above manner the morning of
his discharge. He denied he was not keeping up with the production line that
morning or that Halley had made any complaint in that respect.
Following his discharge Shaw asked Camp for his job on a number of occasions
and Camp told him if business picked up he would get in touch with him. Shaw
admitted that subsequent to his discharge he had borrowed money from Camp.
Belser testified that at times Holley put him on the knock box and generally he
knocked two cattle at a time. He also stated the number of cattle knocked at one
time depended upon the size of the animals and varied from one, for a big steer, to
four, for small animals. On occasions, but not too often, Holley told Belser to
knock more than two cattle, which he did.
Wilson acted as knocker at times and stated Holley told him to knock two good
steers or three or four small cattle at one time. He knocked cattle in that manner
in the presence of Camp and Holley, neither of whom said anything to him. Wilson
stated he also heard Holley tell Shaw, about 2 weeks before his discharge, to knock
two large cows and as many small cows as he could get into the knock box
Lee was employed as cattle knocker and when he was transferred to another job,
Shaw replaced him. Lee stated Holley told him not to knock more than two good
cattle, or four or five small cattle, at one time. Lee said, "There's no telling" how
many times he knocked more than two cattle. He also stated he had seen Holley,
Shaw, and other knockers hit more than two cattle at a time. Lee knew Camp had
spoken to the knockers once or twice about hitting more than two cattle, but they
resumed the practice as soon as he left.
Judkins knocked cattle occasionally and one time, when he was helping Shaw, he
knocked more than two cattle. Although Camp and Holley were present they
apparently said nothing to him.
Holley stated, as foreman of the kill floor, he supervised all operations thereon, at
times he left the area to go to the coolers and the shipping department, and regularly
went to the holding pens to separate the lots and grades of cattle to be sent in for
slaughter.
On the morning of Shaw's discharge, Holley, in line with his usual practice,
knocked about 12 cattle so that production could commence when the kill floor
crew reported for work. When Shaw came in he started knocking. Shortly there-
after, Holley saw Shaw put too many cattle in the knock box, so he went over and
told him he was not supposed to put more than two cattle in the box and knock
them, and he did not want him to knock more than two animals. Later, just before
break time, 9:45, he saw Shaw knock more than two cattle and again he told
Shaw to knock only two animals at a time. During the break Holley reported to
FROSTY MORN MEATS, INC. 1599
Camp that it looked like Shaw wanted to keep putting too many cattle in the knock
box and that Shaw did not want to do what he had told him. Camp replied Holley
was running the kill floor and to go back there and do what he was supposed to do.
Camp further stated Holley had been instructed many times that no man was
supposed to put more than two animals in the knock box and to fire Shaw. Holley
returned to the kill floor but said nothing to Shaw, who resumed knocking after the
break. Between 10:30 and 11 o'clock Camp was on the floor and saw Shaw put too
many cattle in the box. Camp called him over and stated; "Shaw, haven't I told
you time and time again not to put over two cattle at the time in the box?" Shaw
answered: "Yes, sir, you sho has. I'se done wrong." Camp told Shaw to
come to the office and get his time and both left the floor. Later, Camp called
Holley to the office and, in Shaw's presence , asked if he had told Shaw to put more
than two cattle in the knock box. Holley denied he had ever made any such state-
ment and the meeting ended. He also stated that some 2 weeks before he had
spoken to Shaw "about the same thing."
Holley said at times a third animal would stick his head in the knock box and if
he would not back out the only thing to do was to hit all three animals. Holley
conceded the rule against knocking more than two cattle could have been violated
when he was away from the kill floor, but he did not think it was violated while he
was on the floor. According to Holley the rule applied to all cattle, large or small .5
Holley admitted that up to November 6, 1958, Shaw was the only man fired for
violation of the rule. Since that date another worker, James Lee Hall, was dis-
charged for knocking four cattle, the discharge occurring on December 2, 1959,
the day before Holley testified.
Holley denied that Judkins ever worked as a cattle knocker.
Camp testified the Company had a rule against putting more than two cattle
in the knock box at the same time. The purpose of the rule was, and is, to prevent
cattle from trampling on the fallen animals and the resultant damage to the
carcass Where such damage occurs the Federal inspector, after the hide has been
removed, trims out the damaged portion and where the meat is being processed
under U.S. Government contracts the inspector may reject the carcass.
On the morning of November 6, Holley came to the office and informed Camp
that he was having trouble with Shaw, in that he saw Shaw knocking more than
two cattle on two occasions. Camp asked why he had come to the office, that Holley
was the foreman, and that he knew the company rule. Camp did not tell Holley
to discharge Shaw.
About 15 minutes later Camp went on the kill floor and saw four cattle lying in
front of the knock box. He could not say Shaw had knocked the four cattle at one
time, but the situation was an unusual one . Camp then walked closer to the knock
box and saw Shaw drive in two cattle, which he knocked, and, without raising the
door, drive in two more cattle and knock them. Camp called Shaw over and inquired,
"How many times have I told you not to knock more than two cattle at once," and
Shaw answered that he knew better. Camp asked why he did it and pointed out
that Holley had caught him doing the same thing twice that morning. Shaw replied,
"I don't know, I just did it." He then told Shaw to get his timecard and belongings
and come to the office for his money. Shaw came to the office and said he did not
believe he would be fired for what he had done and when Camp asked why, Shaw
stated Holley had told him to do it. Camp remarked Shaw was changing his story
and Shaw said he got to thinking about it and he did not think he would be fired.
Camp sent for Holley and when he came in, Camp inquired if he had told Shaw to
knock more than two cattle. Holley denied he had given any such instruction. Shaw
then left the plant.
Camp, on the basis of company records, testified that on the morning of November
6, up to the time of Shaw's discharge, 30 large and 22 small cattle had been killed.
He stated no calves or veal were killed in the knock box that morning.
Edwin Gregory was employed by the Company for about 26 months and in
November 1958 he worked as a tamper on the kill floor, some 25 feet from the kill
box. Gregory acted as knocker occasionally and was aware of the rule or practice
against knocking more than two cattle at once.
On the morning of November. 6, he saw Shaw put more than two cattle in the
knock box at three different times. The first time this happened he observed Holley
speaking to Shaw but he could not hear the conversation. The second time he heard
6 Holley stated that calves, 250 pounds live weight or under, are not killed in the
knock box, except occasionally on customer order. He classified or graded cattle accord-
ing to live weight as follows • veal, 250 to 350 or 400 pounds ; baby beef, around 450 to
550 pounds, and all animals over 550 pounds as cattle or stock cattle.
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Holley warn Shaw about putting too many cattle in the box. The third time he
heard Camp ask Shaw if he did not know better than to put in more than two cattle
and Shaw said that he did. When Camp inquired why he had done so, Shaw stated
he did not know. Shaw made no mention of Holley having told him to knock
more than two cattle. Gregory stated Shaw was knocking "calves, small stuff,"
weighing 500 or 600 pounds, that morning and once he hit four calves at the same
time. On one other occasion, around a week before, Gregory saw Shaw knock
more than two cattle. Gregory said he never saw anyone knock more than two
cattle, except Shaw.
James Lee Hall, a rebuttal witness for the General Counsel, testified he was em-
ployed by the Company on two separate occasions, the last time being for a period
of about 9 months, ending December 2, 1959. On that date Hall was fired by Holley
for knocking three or four small cattle. Hall said that in the past Holley had told
him to knock three small cattle and that he had followed that practice, without any
reprimand or warning from Holley. In fact Holley himself did the same thing.
Some 4 months before his discharge, Camp caught him hitting three large cows and
warned him not to hit more than two cattle at once. Camp made no distinction
between large and small cattle.
E. Alleged surveillance by Camp
Causey set up a second union meeting for 8 o'clock the evening of November 8,
at the Carpenters hall. The hall is located on a public highway and there are a
number of stores in the vicinity including a Piggly Wiggly. Around 7:30 that evening
Causey, Judkins, and few more employees were standing in front of the hall when
Camp, accompanied by a lady, drove by in a car plainly bearing the Company's name.
Causey said he drove slowly past the hall four times and the last time he stepped
toward the curb and shouted, "What the hell are you looking for?" Camp did not
stop but continued on his way.
Judkins testified Camp passed the hall twice, on his way toward the Piggly Wiggly,
where he turned around, and on his return from the store. Causey shouted the above
remark to Camp as he drove by the second time.
Camp stated he and his wife drove past the union hall, in a company car, on
their way to the Piggly Wiggly store. When they found the store closed they turned
around and again passed the hall on their way home. On the latter occasion Causey
walked toward the road shaking his fist and shouting at him as he passed by. Camp
did not understand Causey's remark.
Concluding Findings
The issues here are purely factual and the question of whether the Company has
engaged in the unfair labor practices alleged in the complaint depends upon the
resolution of certain conflicts in the testimony. Undoubtedly, the evidence adduced
by the General Counsel, if accepted, fully supports his contention that the Company
has engaged in flagrant violations of the Act.
From the testimony detailed above, I find 6 that one Sunday in the latter part of
October 1958, Judkins discussed organization with a few of the employees, the sub-
ject having arisen in the course of their discussion of having to work on Sundays.
Latet that day, Judkins, at the suggestion of the men, contacted Causey, obtained
union cards the next day, solicited workers to sign the cards, and arranged for the
union meeting to be held on Saturday, November 1. Both Judkins and Shaw spoke
in favor of the Union at the meeting, which was attended by some 15 employees, all
of whom signed cards.
The Company conceded that Bigger was in the vicinity of the Pekin Theatre, the
place where the employees had agreed to gather and leave for their meeting, for
the purpose of observing the meeting and that he did see some of the employees.
On the basis of the stipulation of counsel, as well as the prior testimony of witnesses
for the General Counsel to the same effect, I find that the Company, by Bigger's
unlawful surveillance of the meeting, thereby interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed them in Section 7 of the Act,
in violation of Section 8(a)(1) thereof.
Wilson, Ross, Belser, and Lee, who had attended the union meeting, signed cards,
and were still working, testified that on the following Monday, November 3, they
were called to the office, individually, for interview by Camp. Ross and Lee stated
e In making the findings herein I do not rely upon any so-called background evidence,
Nor have I considered or relied upon the testimony of Robison to support any of my
findings.
FROSTY MORN MEATS, INC. 1601
that Camp showed them a union card (Lee said it was displayed on his desk) and
asked if they signed one. Ross denied he had signed a card, while Lee admitted he
had signed one without knowing what it was. Similarly, Camp exhibited a card to
Wilson and Belser . Camp declared he did not have to ask Wilson if he had signed
up, for he knew that he had. As to Belser, Camp stated he would not question him
regarding the Union since, "I know who signed and who hasn't." Camp also brought
up the subject of an election although at that time there was no question whatever
concerning the representation of the employees. Nevertheless, he urged them, gen-
erally, that when it came time to vote to remember it was Camp, not the Union,
who was buying their groceries and paying their rent, and to vote for themselves and
not for the Union or "the boys up the street." Camp warned Wilson there would
be no union at the plant and cautioned Ross the Union would not benefit him and
that he was too good a boy to get mixed up in anything like that. The above indi-
viduals freely admitted they had previously talked to Camp about their personal and
financial problems but they uniformly testified this was the first time Camp had ques-
tioned them regarding the Union or organizational activities, or even discussed the
subject with them.
Camp's efforts to explain the foregoing meetings and his interrogations, threats,
and warnings directed against these employees is so completely false and misleading
as to be entitled to no weight whatsoever. Initially, Camp testified he first learned
of union activity among the employees around the first of December, when Simmons
volunteered the information. Later, he changed the date to around November 15,
and in their brief counsel simply said he learned of organizational activities some-
time in November or December. The positive testimony of Wilson, Ross, Belser,
and Lee fixing November 3 as the date of the meetings, interrogations, and threats,
plus the admission by Bigger that he spied on the employees the night of the union
meeting, November 1, completely refutes Camp's claim that he was unaware of any
union activities at the plant until the middle of November or early December. I so
find.
Camp conceded he called practically all of the workers to his office upon learning
of organizational activities. He sought to justify this action on the ground that it
was his custom to talk to the employees almost every week even though he had
nothing to talk about. It seems clear that the interviews of November 3 followed
this rather unusual custom, for Camp was unable to relate any topics or questions
discussed with the men in the course of their talks, other than he spoke to Lee about
the way he was sticking cattle. In general, Camp denied that he interrogated the
employees regarding their union membership or activities, or that he uttered any
threats or warnings or requested them to report on the Union. Indeed, when Lee
and Vaughn expressed the opinion they were being summoned to the office because
of the Union, Camp said that was not the purpose of the interviews.
The testimony of Wilson, Ross, Belser, and Lee leaves no doubt that the purpose
of the interviews was to find out whether the employees were members of the Union
or sympathetic toward the Union, and to warn them against participating in such
activities. Thus, Camp exhibited a union card to each of these individuals, ques-
tioned Ross and Lee if they had signed cards, and announced to Wilson and Belser
he knew who had signed cards. He then brought up the subject of an election and
urged the employees to vote right. The testimony of these witnesses was direct,
clear, and unequivocal and was not shaken on cross-examination In these circum-
stances Camp was placed in a position when he could easily deny or affirm these
accusations, or if necessary offer some plausible explanation thereof. Instead of
being frank and honest in this situation he elected to be evasive and elusive and in
his efforts to avoid direct answers to questions by his own counsel he wound un
with an unbelievable and untruthful version of his conduct. The gist of Camp's
testimony concerning the union card, quoted above, is that he found a card,
threw it in the trash, but he could not remember if he had shown it to any of the
employees. Again, he could not recall if he mentioned the subject of voting to the
employees, but if he did, he simply told them to vote the way they wanted.
Un'ike their treatment of other witnesses for the General Counsel, company coun-
sel do not attack the veracity of Wilson, Ross, Belser, and Lee. Nor do counsel in
their lengthy and painstaking brief make any effort to defend or uphold Camp's
incredible testimony on these important phases of the case. Indeed, counsel ignored
his testimony bearing on the union card incident and gloss over the voting remarks
with the comment that no one testified Camp said not to vote for the Union. This
is about all they could do under the circumstances.
From my observation of Camp I had no difficulty in appraising him as a person
who simply refused to testify in a straightforward manner and when faced with
facts which placed him in an unfavorable position he sought to extricate himself
500940-61--vol. 127-102
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by relying upon a poor memory and garbled, meaningless explanations . I there-
fore, reject his testimony in all respects , except when it is consistent with credited
testimony . I accept and credit the testimony of Wilson, Ross, Belser, and Lee and
find that the Company, by engaging in the acts and conduct related by them, thereby
violated Section 8(a)(1) of the Act?
The General Counsel offered the testimony of Simmons and McKeithen to show
that Camp had requested employees to report on union activities
In brief, Simmons said he was called to the office on November 3, and, at Camp's
request , he gave him the names of the employees who had attended the union meet-
ing of November 1, including Judkins and Shaw. Camp also asked Simmons to
report on the union activities of the men and handed him a dollar. That night
Simmons telephoned Camp although he had nothing to report. Evidently Simmons
did not thereafter contact Camp and he did not attend the second meeting
Camp asserted he first heard of union activities from Simmons when the latter
voluntarily came to his office with information around December . Later, his tes-
timony was to the effect that Simmons was called to the office the same as the other
men and it was then that he volunteered the information . Camp denied he asked
Simmons to report on the activities of the employees . He also denied he gave
Simmons a dollar during his interview , although he may have loaned it to him, and
he denied giving Simmons his telephone number on a slip of paper. However,
Camp admitted Simmons did telephone him, on a date he could not even approxi-
mate, to report on union activities . Although Camp advised Simmons he did not
have to report on the Union , and believed the call to be a "trick," still he told
Simmons to come to the office if he wanted to talk to him. As appears above,
nothing happened after their telephone conversation.
In substance , McKeithen testified that on the night of October 31, Camp requested
him to find out if Judkins or Shaw were organizing a union and he agreed to do so.
Camp declared he would fire them if they were organizing . The next day , Novem-
ber 1, McKeithen spoke to Judkins and Shaw and then informed Camp they had
stated they knew nothing of the Union. Camp said they were lying , that they were
organizing , and that he was going to fire them . He then instructed McKeithen to
seek information on the Union from other employees , which he attempted to do
without success.
Camp was not questioned concerning McKeithen 's testimony , although he gen-
erally denied that he asked any employee to report on union activities.
Company counsel characterized Simmons and McKeithen as disgrunted former
employees and their testimony was nothing but a prefabricated story.
Undoubtedly , Simmons was confused at first as to the time he telephoned Camp
but he satisfactorily explained the date of his call. His testimony concerning the
manner in which Camp gave him his telephone number, be it reasonable or sus-
picious, is not too important in the light of all the evidence . Actually, Camp ad-
mitted calling Simmons to his office the same day the other employees were called in.
He also admitted Simmons informed him of the union movement and that he may
have loaned him a dollar. Again , Camp admitted that Simmons did telephone him
to report on union activities and while he professed no interest in the matter , never-
theless, he told Simmons to come to the office and talk to him. Certainly , there is
no conflict on these essential points. It is true , of course , that Camp denied Sim-
mons supplied him with the names of the employees who weie active in promoting
the Union . I have already found Camp advised Wilson and Belser that he knew who
had signed union cards, consequently , the testimony of Wilson and Belser supports
Simmons' assertion that he gave this information to Camp. I accept Simmons'
testimony and find that he furnished Camp with the names of the employees who
signed union cards and that Camp requested Simmons to report on the organiza-
tional activities of the employees.
McKeithen 's testimony is in accord with the findings that Camp obtained infor-
mation regarding the identity of proponents of the Union, so I accept his testimony
and find that Camp requested him to report on the union activities of the employees.
By engaging in the acts and conduct found above, I find that the Company
violated Section 8(a) (1) of the Act.
Luther Hall also testified concerning interrogation and threats subsequent to
Judkins' discharge on November 4. Thus, on that date, or the next day, Bigger
questioned Hall in respect to his union membership , what the Union was doing,
7 The Company argues that the foregoing conduct was protected under the doctrine an-
nounced in Blue Flash Express , Inc, 109 NLRB 591, and followed in other cases. It is
sufficient to say that the type of conduct found herein does not fall within the Blue
Flash rule . ( See Griggs Equipment, Inc, 125 NLRB 1152 )
FROSTY MORN MEATS, INC. 1603
and warned him there would be no union at the plant. About a week later Camp
summoned Hall to his office to inform him that he knew who had attended the
union meeting and who had signed cards. Camp further declared that there would
be no union at the plant and rather than have a union he would close the plant
doors. Both Bigger and Camp denied making any such statements. I found Hall
to be a reliable witness who testified in a fair and impartial manner. He had
voluntarily left the Company prior to his appearance as a witness, he had no
personal interest in the proceedings, and his integrity is not challenged by the
Company. I, therefore, accept his testimony and find that the Company, by
unlawfully questioning him respecting his union membership, by warning there
would be no union at the plant, and by threatening to shut down in the event of
organization, thereby violated Section 8 (a) (1) of the Act.
The Discharges
The General Counsel, of course, has the statutory burden of proving by a fair
preponderance of the credible evidence that (1) the Company had knowledge of
Judkins' and Shaw's union membership or their engaging in concerted activities and
(2) their discharges were motivated by unlawful considerations. The basic issues,
therefore, are factual rather than legal. At the outset it must be noted that im-
mediately preceding the discharges the Company pursued a pattern of antiunion
conduct which, as found above, included spying, interrogation of employees, warn-
ings there would be no union at the plant, and threats to fire Judkins and Shaw for
they were the leading proponents of organization. Manifestly, in determining mo-
tivation, the discharges must be considered in the light of these events.
On the basis of the accepted testimony of Wilson, Belser, Simmons, and Mc-
Keithen, I find that the Company, through Camp, was fully aware of the fact that
Judkins and Shaw had signed union cards and were openly promoting the Union.
The remaining issue is whether the discharges of Judkins and Shaw were violative
of the Act.
In respect to Judkins, the witnesses were in disagreement as to whether it was
Gates or Bigger who instructed Judkins to sweep up and also as whether he was
told to sweep only the cooler, or the platform, or both. However, I do not consider
these discrepancies too significant, for there is no question Judkins was told to
clean up and, while he swept the cooler, he did not sweep the platform. In
effectuating the discharge, Judkins said Bigger simply stated he had to let him go,
whereas Bigger testified he informed Judkins he was being discharged for failing
to clean up. Bigger admitted this was the first time Judkins had failed to follow
his instruction and that he was discharged solely for "insubordination." The sum-
mary discharge of Judkins the day after the interrogation of the employees and the
open expression of hostility to organization, plus the specific threats to fire Judkins
and Shaw, convinces me that the Company seized upon the sweeping incident merely
as an excuse to get rid of an active adherent of the Union and to discourage the
idea of organization among the employees. Realizing the flimsiness of its excuse
for firing Judkins, the Company argues that it is well known "that an employer will
discharge an inefficient worker or troublemaker for infraction of rules where an
efficient worker . . . might be forgiven." To bolster this argument the Company
adduced tes'imony from Bigger, Gates, and Majors to the effect that although at
first Judkins was a good worker and had a good attitude he later became sullen and
moody, at times pushed beef too fast, and during the week prior to his discharge
he failed, on one occasion, to sweep up for Gates. In addition, the Company claims
Judkins was having financial troubles which resulted in a few bill collectors tele-
phoning or coming to the plant. There is no evidence Camp or Bigger ever com-
plained to Judkins about these matters. On the contrary, Bigger made it clear
that he discharged Judkins for "insubordination" exclusively, and that no other
factors were considered by him in terminating Judkins.
The evidence shows that on the morning of November 6, Shaw knocked four cattle
at one time and was immediately discharged by Camp for the reason that he had
violated plant instructions against knocking more than two cattle at the same time.
There is no question that instructions of this nature had been given to the men.
It is equally clear, from the uniform testimony of Belser, Wilson, Lee, Judkins, and
James Lee Hall, that it was common practice to knock three or four small cattle
at once in the presence of Camp or Holley, without complaint or reprimand.
Holley conceded that in his absence the men may not have followed instructions
but he did not believe any violations occurred while he was on the kill floor. The
Company admits Shaw was the first employee ever fired for violation of these
instructions. The second discharge for this offense took place on December 2,
1959, when James Lee Hall was terminated.
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Actually the discriminatory character of Shaw's discharge does not hinge upon the
existence or interpretation of the instructions or rules, for Shaw was fully aware of
the same and admittedly he knocked four cattle at one time. Here the issue is a
narrow one, namely, did Shaw knock four cattle on the morning in question in
accordance with Holley's instructions. The testimony on this phase of the case is
highly conflicting. Thus, Shaw testified that when Camp asked why he had
knocked four cattle he answered Holley had told him to do so. Camp asserted
Holley gave no such instructions and ordered Shaw to punch out and get his things,
which he did. While in the dressing room Camp advised Shaw he was being fired
for disobeying a company rule. Shaw denied the accusation and repeated he had
merely followed Holley's instructions. After some words, Camp brought Holley
in and asked Shaw to repeat his statement in front of Holley, and he did so. Holley
denied he had given any such instructions to Shaw and Camp remarked that was
all he wanted to hear. Shaw was thereupon discharged.
Holley's testimony is to the end that he warned Shaw twice that morning about
hitting more than two cattle and then reported the incidents to Camp. Camp did
nothing more than remind Holley that he was the foreman and to go back to the
kill floor and do what he was supposed to do. Some 15 minutes later Camp saw
Shaw knock four cattle. He thereupon inquired of Shaw, "How many times have I
told you not to knock more than 2 cattle," and Shaw answered he knew better.
Holley testified to the same effect and that Camp then told Shaw to get his time.
However, Camp stated he also mentioned that Shaw had received two warnings that
morning and Shaw replied he "just did it." Camp further related that while in the
office, Shaw said he had not expected to be fired because Holley had told him to
knock four cattle. When Camp accused him of changing his story, Shaw said he
just got to thinking and he did not think he would be fired. Camp thereupon
called Holley to the office and asked him if he had told Shaw to knock more
than two cattle. Holley denied he had given any such instructions. The meeting
then ended and Shaw left the plant.
Shaw's version of his discharge, even apart from timing and preceding events, is
far more persuasive and convincing that the account related by Holley and Camp.
If, as Holley stated, Shaw ignored his successive warnings of violation of important
instructions it would surely seem reasonable that Holley would have fired him at
once, as was done in Judkins' case. Instead, Holley merely informed Camp of
Shaw's derelictions and then 15 minutes later when Camp caught Shaw violating
company instructions a third time, he summarily dismissed him. This strikes me as
a rather unusual and incongruous situation. Be that as it may, from my observation
of the witnesses while testifying I do not believe that Shaw was so headstrong or so
arrogant a person that he would deliberately ignore two quick warnings about im-
proper knocking of cattle and then openly violate his instructions a third time, all
within the space of a few hours. On the contrary, Shaw impressed me as an indi-
vidual who would obey work orders issued by Holley or Camp and there is no
evidence or contention that the Company had experienced any previous trouble or
difficulty with Shaw insofar as his work was concerned. Accordingly, I accept and
credit Shaw's testimony and find that he was discharged under the circumstances
described by him .8
Of course, it is well established the Act does not interfere with the normal right
of an employer to discharge his employees but is diiected solely against abuse of
that right by interfering with the countervailing right of self-organization guaranteed
ernnloyees under the provisions thereof.9 From the foregoing findings I have no
difficulty in further findings that the Company's discharge of Judkins and Shaw
for pretextuous reasons, simultaneously with their organizational activities and fol-
lowing threats of dismissal, was motivated by a desire to eliminate active proponents
of the Union and was part of a plan to discourage employees from becoming mem-
bers of the Union or participating in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.10 By thus discharging Judkins and
Shaw the Company violated Section 8(a) (3) and (1) of the Act.
e Since I have rejected Holley's testimony. I, likewise, rciert Gregory's assertion that
he overheard Holley warn Shaw about knocking too many cattle.
9 Phelps Dodqe Corp. v. N L.R B., 313 U.S. 177, 187 ; N L R B. v. T. A. MeGahey, Sr.,
at at, d / h/a Columbus Marble Works , 233 F. 2d 406, 413 (C.A 5).
TO N.L R B v Avondale Mills, 242 F 2d 669, 671 (C.A 5) ; N L.R B. v. Armstrong Tire
and Rubber Company, Tire Test Fleet Branch , 228 F. 2d 159, 161 (C.A. 5) ; N.L .R.B. v.
S S. Coachman & Sons, Inc., 203 F. 2d 109, 111 ( C.A. 5).
FROSTY MORN MEATS, INC. 1605
In my opinion the evidence with respect to Camp's driving past the union meeting
place on November 8, 1959, is insufficient to support a finding that he thereby en-
gaged in surveillance of the meeting.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section 1, above, have
aclose, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that the Company has engaged in and is engaging in certain unfair
labor practices affecting commerce , I shall recommend that it cease and desist there-
from and take certain affirmative action in order to effectuate the policies of the
Act.
It has been found that the Company, by discharging and refusing to reinstate
Sam Judkins and Hughie Shaw, discriminated against them in respect to their hire
and tenure of employment in violation of Section 8(a)(3) of the Act. I shall,
therefore, recommend that the Company cease and desist therefrom and from in-
fringing in any other manner upon the rights guaranteed in Section 7 of the Act. I
shall recommend that the Company offer to Sam Judkins and Hughie Shaw imme-
diate and full reinstatement to their former or substantially equivalent positions with-
out prejudice to their seniority or other rights and privileges." I shall further rec-
ommend that the Company make whole each of the above-named employees for
any loss of earnings they may have suffered because of the discrimination against
them, by payment of a sum of money equal to the amount each normally would
have earned as wages from the date of his discrimination to the date of the offer
of reinstatement, less his net earnings during said period, with backpay computed
in the customary manner.12 I shall further recommend that the Board order the
Company to preserve and make available to the Board upon request payroll and
other records to facilitate the checking of the amount of backpay due and the right
of employment.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Frosty Mom Meats, Inc., is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Amalgamated Meat Cutters and Butcher Workmen of North America,
AFL-CIO, is a labor organization as defined in Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Sam
Judkins and Hughie Shaw, thereby discouraging membership in Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-CIO, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
4. By the foregoing conduct, by engaging in surveillance of union meetings or
activities, by interrogating employees regarding their union membership or activities,
by requesting the employees to report on organizational activities, by warning the
employees there was no union at the plant, and by threatening to discharge employees
or to close the plant in the event it became organized, the Respondent has interfered
with, restrained, and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act and thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8(a) (1) of the Act, as alleged in the complaint, by alleged surveillance
of the union meeting of November 8, 1958, by J. W. Camp.
[Recommendations omitted from publication.]
1 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
32F. W. Woolworth Company, 90 NLRB 289.