Keeshin Poultry Co.

National Labor Relations Board - Board Decisions

Dec 12, 1951

97 N.L.R.B. 467 (N.L.R.B. 1951)

KEESHIN POULTRY COMPANY 467
D. The alleged interference, restraint, and Coercion
The complaint alleged that the Respondent had "threatened and warned
its employees to refrain from assisting, supporting, becoming members of, or
remaining members of the UMW."" The General Counsel conceded that this
allegation was based largely upon the evidence relating to the discharge of Jenifer
and the refusal to reinstate the eight other employees named in the complaint.
In view of the findings and conclusions set forth above, however, the under-
signed concludes and finds on the record herein that the Respondent did not
interfere with, restrain, or coerce its employees in violation of the rights
guaranteed in Section 7 of the Act.
Upon the foregoing findings of fact and upon the entire record in the case,,
the undersigned makes the following :
CONCLUSIONS OF LAW
1. The Respondent, The Office Towel Supply Company, Incorporated, is en-
gaged in commerce, within the meaning of Section 2 (6) and (7) of the Act.
2. The C. I. 0. and the UMW are labor organizations within the meaning of
Section 2 (5) of the Act.
3. The Respondent has not engaged in unfair labor practices as alleged in.
the complaint, within the meaning of Section 8 (a) (1) and (3) of the Act.
Recommendations
Upon the basis of the foregoing findings of fact and conclusions of law, the-
undersigned recommends that the complaint be dismissed in its entirety.
20 At the hearing, the undersigned granted a motion by the General Counsel to delete
from the complaint an allegation that the Respondent had "coerced, persuaded and solicited
employees individually to return to work and abandon their concerted activities and desert
the UMW."
KEESHIN POULTRY COMPANY and AMALGAMATED MEAT CUTTERS AND'
BUTCHER WORKMEN OF NORTH AMERICA , AFL. Cases Nos..
32-CA-156 and 32-RC-2,9,9. December 12, 1951
Decision , Direction and Order
On June 8, 1951, Trial Examiner David F. Doyle issued his Inter-
mediate Report in the above-entitled consolidated proceedings, find-
ing that the Respondent had engaged in and was engaging in certain
unfair labor practices in violation of the Act, and recommending that
it cease and desist therefrom 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 alleged unfair labor practices, and recommended
dismissal of this allegation of the complaint. The Trial Examiner
recommended, further, that the challenge to the ballot of Charles P_
Iierd be overruled and his ballot opened and counted, and that.
if the Union did not thereafter withdraw its objections to the election
held on December 6, 1950, among the Respondent's employees,
97 NLRB No. 70.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this election be set aside.' Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief:
The Board 2 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 exceptions and brief, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following additions and
modifications : 3
1. We find, in accord with the conclusion of the Trial Examiner,
that the Respondent discriminatorily discharged Charles P. Herd on
October 3, 1950, in violation of Section 8 (a) (3) and 8 (a) (1) of the
Act. The facts surrounding Herd's discharge are largely undisputed.
As found by the Trial Examiner, the Union began an organizational
campaign at the Respondent's plant on October 2, 1950. That after-
noon, Herd met with Gilker and Buckner, representatives of the
Union, and assisted them in passing out handbills to employees of
the Respondent outside the plant. Among the individuals to whom
they gave handbills were Foremen Shaddox and Breeze and chicken
buyer Winkleman. That evening, Herd and a group of employees,
including Breeze and Winkleman, were present at a restaurant when
Herd, in response to a question from another employee, stated that
he thought that the Union was "a good thing." 4 During the noon
1 The tally of ballots reveals that , of 85 ballots cast, 42 were for the Union , 42 were
against the Union , an 1 ballot , that of Charles P. Herd, was challenged
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
jMembers Houston, Murdock , and Styles].
3 The Intermediate Report contains several misstatements of fact and inadvertences,
none of which affects the Trial Examiner 's ultimate conclusions or our concurrence therein.
However, we note the following corrections (1) Herd worked until approximately 12:12
p. in., not 12 12 a. in, on October 3; (2) although the Trial Examiner found that Herd
testified that Mundy warned Herd about his smoking in August 1950 , Herd did not mention
the date of this warning; ( 3) Herd testified that he spoke to Sanders about smoking in
the plant approximately 1 month before Burr 's warning to him, and about 3 months before
he was discharged , rather than a month before his discharge , a5 the Trial Examiner found;
(4) Fletcher testified that he had seen many employees smoking in the cooling room,
including employee Williams , whom the Trial Examiner mistakenly referred to as Wilson ;
and (5 ) the Trial Examiner incorrectly stated that Herd admitted to having received
three warnings about his smoking during a 10-month period , whereas Herd testified that
he had received only two warnings during the 10 months that he worked in the cooling
room. We note, in addition , that the Trial Examiner made no mention of the testimony
of Thomas Sanders, the United States Department of Agriculture inspector assigned to the
Respondent ' s plant. We have considered Sanders' testimony , but for the reasons stated
in paragraph 1, infra, we do not rely on it.
4 Winklenian testified that he was out of town on the afternoon of October 2 and did not
return until approximately 6 or 7 o ' clock that evening , and that he received a handbill from
Gilker and Buckner a day or so later . The record establishes , however , that Gilker and
Buckner passed out handbills at the Respondent 's plant only on October 2. winkleman also
testified that, although he was present at Paul 's Cafe on the evening of October 2 , he heard
no talk about the Union According to the credited testimony of Fletcher and Charles
Williams , however, Winkleman was present during the time that Herd was talking , in favor
of the Union.
KEESHIN POULTRY COMPANY 469
hour of the following day, Plant Manager Larkin summarily dis-
charged Herd, stating as the reason therefor that Herd was smoking
on the job .5
The Respondent contends that it discharged Herd, not because of
his union activities, but for the reason given him at the time, namely,
that he was smoking in the cooling room in violation of plant rules
prescribed by the United States Department of Agriculture,.
Although it is undisputed that, at the time of Herd's discharge, the
Respondent's plant was subject to a Department of Agriculture regu-
lation which prohibited smoking "in any room where exposed edible
products [were] prepared, processed, or otherwise handled," it is
equally clear that, until Herd's discharge, the Respondent had not
disciplined even one of the many who had disregarded this regulation.
Indeed, it is apparent from the credited testimony of employees
Glenola Williams, Roy Fletcher, Charles Williams, and Wesley John-
son on this issue that most of the employees, including Herd, Fletcher,
Charles Williams, Minch, and Jones, had smoked throughout the
plant, except in the eviscerating room when eviscerating operations
were going on, and that Foremen Shaddox, Breeze, and Burr, chicken
buyer Winkleman, Plant Manager Larkins and Sanders, the plant
inspector for the Department of Agriculture, had smoked in the
cooling room. Moreover, the Respondent had never posted the De-
-partment of Agriculture regulation nor did it post any "No Smoking"
signs about the plant until more than 2 months after Herd's discharge.?
The Respondent admits that, until Herd's discharge, it had not
rigidly enforced the no-smoking rule. It contends, however, that, in
the late summer or early fall of 1950, it was informed by representatives
of the Department of Agriculture that it would have to enforce this
regulation more strictly in order to get things "in shape" for the Jan-
uary 1, 1951, change-over of sanitary requirements prescribed in the
Department's regulations. Therefore, the Respondent argues, in
order to effectuate these instructions and to correct the general dis-
regard of the no-smoking rule, it decided to discharge Herd, the only
employee who had consistently violated the rule against smoking.
We find no merit to this contention.
In its brief , the Respondent contends that Herd 's immediate attempt to "alibi" about his
smoking when Larkin told him he was being discharged shows that Herd knew that he was
being discharged for smoking on the job Larkin 's testimony establishes , however, that
Herd had inquired , and Larkin had informed Herd, of the reason for his discharge before
Herd attempted to excuse his conduct.
e Larkin admitted having smoked in the cooling and eviscerating rooms while operations
were going on.
7 Larkin testified that the only notice of this regulation given to the employees occurred
on August 8, 1949 , the day the eviscerating and cooling rooms started to operate . At that
time Buchanan, regional director for the Department of Agricultuie, announced to the
employees that there would be no smoking in either the cooling or eviscerating room.
986209-52-vol. 97-31
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
First, with respect to the Respondent's position that Herd was the
worst offender against the smoking rule," the record establishes that
smoking by both employees and supervisors was widespread through-
out the plant. Thus, Larkin testified that, before Herd's discharge,
he had seen other employees smoking in the plant and had warned them
personally, but that, although he was in the cooling room almost
daily, he had never seen Herd smoking. Moreover, although Larkin
had received two complaints about Herd's smoking, Larkin had
never warned Herd personally about this matter. Second, even
assuming, as the Respondent contends, that it suddenly became neces-
sary, in the fall of 1950, to require stricter adherence to the Depart-
ment of Agriculture's smoking regulations, we are satisfied that the
Respondent took no steps before Herd's discharge and for more than
2 months thereafter to effectuate this policy of more rigid compliance.
Thus, the Respondent did not post any "No Smoking" signs until about
the first of January 1951, nor did it ever specifically notify its
employees of its allegedly more rigid requirements. Further, even
after Herd's discharge and after "No Smoking" signs had been posted
throughout the plant, the Respondent continued to be lax about enforc-
ing the Department of Agriculture's smoking regulations. Thus,
although Breeze, Lovell, and Larkin saw employees Wesley Johnson,
Clyde Nida, and Charles Williams smoking, they merely warned them,
and did not take the extreme disciplinary measure allegedly deemed
.necessary in Herd's case. On the basis of these facts, and particularly
the Respondent's laxity, both before and after Herd's discharge, in
enforcing its no-smoking rule, it appears highly improbable that the
Respondent would have discharged Herd for smoking on the job were
it not for Herd's active participation in the Union's organizational
campaign.
As the Trial Examiner properly found, Herd's union activity was
open and public and, by the evening of October 2, such activity was
known to Foremen Breeze and Shaddox and chicken buyer Winkle-
man. Moreover, we find, as did the Trial Examiner, that Plant Man-
ager Larkin was aware of Herd's union activity before he discharged
Herd on October 3. Thus, the record establishes that Winkleman,
Breeze, and Shaddox had already informed Larkin of the Union's
8 The only testimony that would support a conclusion that Herd was the worst offender
against the smoking rule is that of Thomas Sanders , the Department of Agriculture inspector
assigned to the Respondent's plant. In all crucial respects, however , including the dates
and number of complaints made about Herd's smoking and the question of whether "No
Smoking" signs were posted in the plant before Herd' s discharge, Sanders' testimony is
contrary to that of virtually all the other witnesses . Moreover, despite the testimony of all
the witnesses to the effect that smoking was widespread before Herd 's discharge , Sanders
maintained that he had never seen anyone except Herd smoking in the plant. For these
reasons, we deem Sanders ' testimony unreliable and attach no significance thereto.
KEESHIN POULTRY COMPANY 471
distribution of handbills at the plant on the afternoon of October 2.9
In view of Herd's open participation in the union campaign and the
small size of the Respondent 's plant, it is reasonable to infer, and we
find, as the Trial Examiner did , that Larkin also knew, before he
discharged Herd, that Herd was the leading union proponent in the
plant 10
We conclude, therefore , on the basis of the entire record, including
the singling out of Herd , the leading union adherent, for discipline
more severe than was ever meted out to other similar offenders, the
timing of Herd 's discharge , immediately following the start of the
Union 's organizational campaign, and the Respondent 's independently
unlawful conduct, indicative of antiunion animus, discussed below,
that the Respondent seized upon Herd's smoking as a pretext and dis-
charged Herd, on October 3 , 1950, because of his activities on behalf
of the Union.
2. We also find , in agreement with the conclusions of the Trial
Examiner, that the Respondent independently violated Section 8 (a)
(1) of the Act by the following preelection statements and conduct
of its supervisors : 11 (1) Breeze's statements to Glenola Williams,
Charles Williams, and Wesley Johnson that , if the Union won the
election, the Respondent would close the plant and all the employees
would be out of work; ( 2) Breeze's warning to Roy Fletcher to
"leave this union business alone" for his own good; ( 3) Shaddox's
interrogation of Fletcher as to how the union campaign was pro-
gressing ; (4) Larkin's interrogation of an applicant for employment
with respect to her union sympathies ; and (5 ) surveillance of the
Union's meeting of October 19, 1950, by Larkin and others of the
9 The Respondent contends that Winkleman could not have informed Larkin of such
activity on the evening of October 2 as winkleman himself was not yet aware of it.
As pointed out in footnote 4, supra, however, we have found that Winkleman received
a handbill from Union Representatives Gilker and Buckner on the afternoon of October 2
and that he was present at Paul's Cafe on the evening of October 2 when Herd spoke
in favor of the Union Moreover, at the hearing Larkin admitted having stated, in an
affidavit to a Board field examiner , that Winkleman did inform him of such activity on
the night of October 2 . Breeze testified that he had told Larkin about the Union's
organizational activities before Herd was discharged.
The Trial Examiner found, further, in accord with the credited testimony of Glenola
Williams, that Shaddox had also informed Larkin of the union activity at the plant during
the morning of October 3. We find no merit in the Respondent's contention that the
Trial Examiner 's finding in this respect is completely contrary to written records intro-
duced into evidence by the Respondent . The purchase record referred to establishes merely
that on October 3, 1950, the Respondent purchased approximately , 5,000 chickens from
a farm in Hiwasse , Arkansas It does not show , as the Respondent contends , that this
purchase was made during the morning of October 3 or that Shaddox was present at the
farm when the purchase was made.
io Danion Coil Company , Inc., 96 NLRB 1435; F W Woolworth Company, 90
NLRB 289
11 Foremen Breeze and Shaddox and their superior , Plant Manager Larkin, are part of
the managerial hierarchy charged with the responsible direction of the rank -and-file
employees at the Respondent's plant In addition , both Breeze and Shaddox testified
that, at the time these statements were made , they possessed the power to hire and fire
employees . We find , therefore , that Breeze , Shaddox, and Larkin are supervisors within
the meaning of the Act.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's supervisors. Unlike the Trial Examiner, however, we
find that Breeze's question asked of Fletcher and Glenola Williams
as to what they expected to have left of their pay after the' Govern-
ment and the Union each got its cut was not violative of Section 8
(a) (1) of the Act'2
3. We have found, in accord with the conclusion of the Trial Exam-
iner, that the Respondent discriminatorily discharged Charles P. Herd
on October 3, 1950, in violation of Section 8 (a) (3) and 8 (a) (1) of
the Act. Like the Trial Examiner, therefore, we shall overrule the
challenge to Herd's ballot in the election held on December 6, 1950, and
shall direct that his ballot be opened and counted. In the event that
Herd's ballot was cast for the Union, thereby giving the Union a
majority of the votes cast despite the preelection misconduct by the
Respondent found herein, we shall certify the Union as the bargaining
representative of the Respondent's employees.13
In the event, however, that Herd's ballot was cast against the
Union, or proves to be invalid for any reason, we shall set aside the
election held on December 6, 1950, and shall direct a new election when
the Regional Director advises the Board that the circumstances permit
a free expression by the employees of their desires with respect to
representation.14
Direction
IT IS HEREBY DIRECTED that the Regional Director for the Fifteenth
Region shall, pursuant to the Rules and Regulations of the Board,
within ten (10) days from the date of this Direction, open
and count the ballot of Charles P. Herd, and thereafter shall prepare
and serve upon the parties a supplemental tally of ballots, including
therein the count of said challenged ballot.
Order
Upon the entire record in these cases and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Rela-
tions Board hereby orders that the Respondent, Keeshin Poultry
Company, Rogers, Arkansas, 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, or in any other labor
'' As no exceptions have been filed to the Trial Examiner 's failure to find, as alleged
in the complaint, that the Respondent further violated Section 8 (a) (1) of the Act by
informing its employees that it would have given a raise in pay if the Union had not
begun its organizational campaign ; we deem it unnecessary to pass upon this issue.
13 Unlike the Trial Examiner , we find it unnecessary to provide for the Union 's with-
drawing its objections to the election held on December 6, 1950 , in the event that it has
won this election Cf. Meridian Grain & Elevator Company, 74 NLRB 900.
" F. W Woolworth Company, footnote 10, supra.
KEESHIN POULTRY COMPANY 473
organization of its employees, by discharging and refusing to reinstate
any of its employees or by discriminating in any other manner in
regard to their hire or tenure of employment or any term or condition
of their employment.
(b) Interrogating its employees with respect to union activities;
interrogating applicants for employment concerning their union sym-
pathies ; threatening to close its plant if the Union should win an
election; threatening its employees with reprisals if they continue to
engage in union activities ; and engaging in surveillance of its em-
ployees' union meetings.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL, or any other 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 or all of such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in
amended Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Charles B. Herd immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges.
(b) Make whole Charles P. Herd, in the manner set forth in the
section of the Intermediate Report entitled "The Remedy," for any
loss of pay he may have suffered as a result of the Respondent's dis-
crimination against him.
(c) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary to an analysis of the amount
of back pay due under the terms of this Order.
(d) Post at its plant in Rogers, Arkansas, copies of the notice at-
tached hereto and marked "Appendix A." 16 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 main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
'a In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words, "A Decision and Order ," the words , "A Decree
of the United States Court of Appeals Enforcing."
474 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 writ-
ing, within ten (1'0) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges vio-
lations of the Act -different from those found in this Decision, Direc-
tion, and Order, be, and it hereby is, dismissed.
IT IS FURTHER ORDERED that objections numbered 4 and 5 of the
Union's objections to conduct affecting the results of the election
conducted on December 6, 1950, be, and they hereby are, overruled.
IT IS FURTHER ORDERED that, in the event that the Union has lost the
election conducted on December 6, 1950, among the employees of
Keeshin Poultry Company, Rogers, Arkansas, this election be, and it
hereby is, set aside 16
Appendix A
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 Re-
lations Act, as amended, we hereby notify our employees that :
AVE WILL NOT discourage membership in AMALGAMATED MEAT
CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL, or in
any other labor organization of our employees, by discharging
or refusing to reinstate any of our employees or by discriminating
in any other manner in regard to their hire or tenure of employ-
ment or any term or condition of their employment.
WE WILL NOT interrogate our employees with respect to their
union activities; interrogate applicants for employment concern-
ing their union sympathies; threaten to close our plant if AMAL-
GAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMER-
ICA, AFL, should win a Board-conducted election; threaten our
employees with reprisals if they continue po engage in union activ-
ities; or engage in surveillance of our employees' union meetings.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organiza-
tion, to form labor organizations, to join or assist AMALGAMATED
MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL,
or any other labor organization, to bargain collectively through
11 In the event that this election is set aside , we shall direct that a new election be held
among the Respondent ' s employees after the Regional Director has advised the Board that
the circumstances permit a free choice of representatives.
KEESHIN POULTRY COMPANY 475
representatives of their own choosing, to engage in concerted ac-
tivities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in amended Section 8 (a) (3) of
the Act.
WE WILL offer to Charles P. Herd immediate and full reinstate-
inent to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges previously
enjoyed, and will make him whole for any loss of pay he may have
suffered as a result of our discrimination against him.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members of the above-named union or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with amended Section 8 (a)
(3) of the Act. We will not discriminate in regard to hire or tenure
of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such
labor organization.
KEESHIN POULTRY COMPANY
(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 and Recommended Order
STATEMENT OF THE CASE
On October 24, 1950, the Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL, herein called the Union, filed a charge with the Regional
Director for the Fifteenth Region ( New Orleans , Louisiana ) herein called the Re-
gional Director in Case No. 32-CA-156 alleging that Keeshin Poultry Company,
herein called Respondent or the Company , had committed unfair labor practices
at its plant in Rogers , Arkansas , within the meaning of Section 8 ( a) (1) and (3)
and Section 2 (6) and ( 7) of the National Labor Relations Act, 61 Stat. 136,
herein called the Act.
On April 11 , 1951, the National Labor Relations Board, herein called the Board,
remanded Case No. 32-RC-299 (in which the Regional Director conducted an
election among the employees of the Respondent 's plant at Rogers, Arkansas,
on December 6, 1950, pursuant to a stipulation for certification upon consent
election ) for the purpose of adducing testimony concerning substantial and
material issues of fact raised by the Union ' s objections to the election.
The Board 's order also adopted the recommendation of the Regional Director
that disposition of the challenged ballot await the result of a hearing in Case
No. 32-CA-156.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 22, 1951, the General Counsel of the Board' on the basis of the
charge above mentioned , issued his complaint against the Respondent alleging
that the Respondent had engaged in and was engaging in unfair labor practices
within the meaning of Section 8 ( a) (1) and (3) and Section 2 ( 6) and (7)
of the Act. With respect to the unfair labor practices the complaint alleged
in substance that the Respondent ( 1) on October 3, 1950, terminated the employ-
ment of Charles P. Herd and thereafter failed and refused to reinstate him
because of his membership in and activities on behalf of the Union and-because
he engaged in concerted activities with other employees for the purposes of
collective bargaining and other mutual aid and protection ; ( 2) through its agents,
foremen , and superintendent , interfered with , restrained, and coerced its em-
ployees in the exercise of their rights to organize , form, join , or assist labor
organizations and to bargain collectively through representatives of their own
choosing by (a) interrogating prospective employees concerning membership in
the Union , ( b) advising employees not to participate in union activities,
(c) threatening employees that if the plant was organized the Respondent would
close the plant, ( d) interrogating employees as to their union sympathies and
inquiring about the progress of the Union 's organizational campaign , ( e) stating
to employees that the Company would have given a raise in pay if the Union had
not begun the organizational campaign, and ( f) practicing surveillance upon a
union meeting held October 20, 1950. '
The Regional Director 's report on challenged ballots and objections dated
March 22, 1951, states that the Union 's objections were based on the following-
conduct of the employer:
1. The Company through its supervisors exercised surveillance on union
meetings.
2. The Company made threats to close the plant and threats of reprisal against
employees who were union sympathizers.
3. The Company screened employees and applicants for employment as to their
feeling toward the Union.
4. The Company 's plant manager made two captive audience speeches which
contained statements in violation of the National Labor Relations Act.
5. The Company made other threats both to employees and nonemployees
which were in violation of the National Labor Relations Act.
6. The same report on challenged ballots and objections states that Charles P.
Herd was challenged by the observer for the Company on the ground that his
name did not appear on the list of employees eligible to vote. The investigation
of the Regional Director disclosed that Herd is a former employee who was dis-
charged on October 3, 1950, and that the Union contends that such discharge
was discriminatory and has filed a charge in Case No. 32-CA-156.
On March 30, 1951 , the Respondent timely filed its answer to the complaint.
This answer admitted the jurisdictional facts of the Respondent 's business as
alleged in the complaint but specifically denied the commission of any unfair
labor practice . On April 10 , 1951 , the General Counsel amended the complaint
and thereafter the Respondent interposed a timely answer to the amendment.
On April 11 , 1951, the Regional Director ordered that Cases Nos. 32-CA-156'
and 32-RC-299 be consolidated and issued a notice of hearing to the parties
stating that a hearing on the issues herein would be conducted by a Trial
Examiner on the 17th day of April 1951 , at Rogers , Arkansas.
Pursuant to this notice a hearing was held on April 17-18, 1951 , at Rogers,
Arkansas, before David F . Doyle, the undersigned Trial Examiner duly desig-
x The General Counsel and his representative at the hearing are referred to herein as
the General Counsel.
KEESHIN POULTRY COMPANY 477
•nated by the Chief Trial Examiner. The Respondent, the General Counsel, and
the Union were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues was afforded all parties.
At the opening of the hearing the Respondent moved to separate the hearing
in Case No. 32-RC-299 from that in Case No. 32-CA-156 on the ground that
the hearing of the two cases would result in confusion and serve no useful pur-
pose. This motion was denied on the ground that the issues and transactions
upon which the issues were based were very similar if not identical and on the
ground that consolidation of the cases had been properly effected.2 The Respond-
ent also moved to invoke the rule for the exclusion of witnesses from the hearing
room. This motion was also denied on the ground that there appeared to be no
adequate reason for the invocation of the rule. At the close of the hearing
Respondent moved to dismiss the complaint and the objections to the conduct of
the election for the failure or lack of proof. The undersigned reserved ruling
on these motions. They are hereby denied for the reasons set forth in this
Report.
Upon the conclusion of the hearing the undersigned advised the parties that
they might argue orally and file briefs with the Trial Examiner. The Respond-
ent thereafter submitted a brief. The Union and the General Counsel did not.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Keeshin Poultry Company, is an Illinois corporation engaged
in the processing of poultry, with its principal office in Chicago, Illinois. Re-
spondent operates several plants, including the plant at Rogers, Arkansas. In
the course and conduct of its business at its Rogers plant, Respondent purchased
in the 12-month period prior to March 22, 1951, live poultry and other raw mate-
rials in excess of $700,000, of which amount approximately 10 percent was
purchased and shipped from points outside of the State of Arkansas. In the same
period, the Respondent at its Rogers plant processed, sold, and distributed
finished products in the form of dressed poultry of a value in excess of $900,000,
of which amount approximately 90 percent was shipped from the plant to and
through States of the United States other than the State of Arkansas. The
Respondent concedes and the undersigned finds that the Respondent is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL,
-is a labor organization within the meaning of Section 2 (5) of the Act'
III. THE UNFAIR LABOR PRACTICES 4
A. Background, undisputed facts
For several years past, the Respondent has conducted its business of killing
.and processing poultry for market at Rogers, Arkansas. Prior to October 1950,
N. L R. B. v. La Salle Steel Co., 178 F. 2d 829-832 (C. A. 7).
This finding is based on the pleadings.
4 All dates in this section of the Report are in 1950 unless otherwise noted.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees , who on that date numbered approximately 95, -had not been
organized by any of the unions. A few months prior to October in that year, the
Union inaugurated an organizational campaign in the poultry processing industry
in northwest Arkansas. - -
Operations at the Company 's plant are conducted in three principal depart-
ments . One department is referred to as the killing or picking room, in which
live poultry is .killed , the feathers plucked, and the fowl washed. The second
department is known as the cooling room, in which the poultry is weighed for
size and placed for a period of approximately 2 hours in cold water to cool it.
The third department is called the eviscerating room, in which the viscera of the
poultry is removed and the poultry butchered and packed These rooms are
connected by two chains which act as an assembly line. One chain begins at the
place where the chickens are killed and carries the chickens past the workers
who pluck them, through the mechanical washer and ends at the cooling room.
Charles P. Herd was an employee of the Company up to October 3, 1950. For
some time prior to that date, his job was in the cooling room His duties re-
quired that he stand in the cooling room at the place where the chain entered
the cooling room from the picking room and to remove from the moving chain
the chickens which were attached to the chain by means of a metal clamp or
shackle. When he removed each chicken he passed it to a female employee who
weighed the same and placed it in a cooling tank according to size. In the cooling
room other workers, after the chickens were cooled, placed them on the second
chain which ran into the eviscerating room.
The operations of the plant are under the inspection of the United States De-
partment of Agriculture . For some time prior to October 1950, Thomas E.
Sanders was the poultry inspector assigned by the Department of Agriculture
to the plant . It was his duty to inspect the sanitary conditions under which the
poultry was processed . The regulation applicable to the Respondent 's plant is
entitled "Rules and United States Specifications , United States Department of
Agriculture, Production and Marketing Administration, Poultry Branch, Part 70,
Subpart A, Section 70.16 (P-4) reprinted in Federal Register of November 15,-
1949, effective January 1, 1950." The section here involved reads as follows :
"Neither smoking nor chewing 'tobacco shall be permitted in any room where
exposed edible products are being prepared , processed or otherwise handled."
Section 70 . 3 (H) reads as follows: "The provisions of Section 70.16 and 7017
shall not become applicable to the production of dressed poultry and domestic
rabbits , as such, until one year after the effective date in this part. During such
one-year period dressed poultry and dressed domestic rabbits which have been
produced in other than official plants may be brought into official plants for
grading, inspection , and processing thereof. , After such one-year period, only
dressed poultry and dressed domestic rabbits from an official plant may be
brought into another official plant for any grading , inspection and processing
thereof." - -
It was undisputed that the plant of the Respondent was an official plant within
the meaning of the above section. It was undisputed that Herd, the employee
named in the complaint , was discharged by Oral F. Larkin , superintendent of
the plant, on October 3, 1950.
B. The content -tons of the parties
It is the contention of the Union that Herd was fired because he participated
in union and other concerted activities . It is the contention of the Respondent
that Herd was fired because he was caught smoking in the cooling room, a place
where smoking was prohibited . The Company denies that it committed the
other acts alleged in the complaint and in the objections to conduct of election.
KEESHIN POULTRY COMPANY
C. Testimony presented by General Counsel -
479
James Gilker ,, international representative of the Union , testified credibly
that the organizational compaign of the Union at the Respondent ' s plant was
begun by Everett Buckner , another union relresentative , and himself on Octo-
ber 2 , 1950. On that date the union organizers engaged in passing out handbills
to which were attached authorization cards and envelopes addressed to the
Union to employees of the Fox Deluxe Foods Company, another poultry concern
about a block from the Keeshin plant. While the union representatives were
passing out handbills, Charles P Heid, the dischargee, engaged them in conversa-
tion. Herd was favorably disposed to the Union. After some conversation,
the union representatives agreed to meet Herd near the Keeshin plant about
4': 30 p. in and to pass out handbills to the employees of the Respondent, and to
the employees of the Crown Poultry Company, which was located across the
street from the Keeshin plant. Pursuant to this arrangement, Gilker and
Buckner met Herd and engaged in passing out handbills to the employees of the
two plants between 4 : 30 and 6 p. in . At that time employees of both plants
were quitting. Gilker, who was in the middle of the street giving handbills to
employees of both plants, noticed that more employees were leaving the Crown
plant than were leaving the Keeshin plant. He asked Herd if the Keeshin plant
had another exit. Herd stated that it did, and that someone should be at the
other exit to pass out handbills At that time Herd was assisting the union
representatives by standing with them in the street and by identifying the em-
ployees as being from Crown or Keeshin Gilker explained to Herd that he was
fully occupied in front of the plants and he asked Herd to take some hand ills
to pass out to the employees who used the second exit Herd agreed to do his
and taking some handbills proceeded to the rear of the plant. After few
minutes Gilker joined Herd at the rear of the plant. They both stood in the
road handing out the literature. Herd, who knew the employees, called to some
of them by name. He also took some handbills to employees who were getting
into their cars in the parking lot. When Herd was not engaged in this activity
he stood and discussed their activities with Gilker.
Several men of Keeshin 's "chicken pick -up crew" were standing on company
property Gilker and Herd called to them and asked them to come over and
accept handbills, They approached Gilker and Herd, accepted handbills, and
stood around for several minutes talking about the union activity. James O.
Shaddox, foreman of the pickup crew, was among this group. He asked Gilker
what the latter was doing and Gilker told him that the Union was organizing
the plant and that the handbills were a part of the process. Shaddox accepted
a handbill, read it, and talked favorably concerning the Union. Gilker asked
him about the men who worked under him. Shaddox said several of his crew
had gone home, so Gilker gave him several handbills and Shaddox said that he
would give them to the men in his crew and get them to sign up.
Among the men to whom Gilker gave a handbill was John W. Breeze, foreman
of the picking room. Gilker did not know Breeze by name at that time, but
one of the employees of Keeshin who was there informed him of Breeze 's identity
after Gilker gave him the handbill . Gilker also gave a handbill to Lawrence
A. Winkleman, the chicken buyer for Keeshin, who stood beside his truck for
several minutes and read the handbill.
The operation of handing out handbills occupied about 45 minutes , during all
of which time Herd was with Gilker assisting him.
On the next day, October 3, 1850, Herd was discharged . A few days thereafter,
Gilker went to the Keeshin plant and requested Larkin , the plant manager, to
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstate Herd on the ground that Herd had been discharged for union activity.
Larkin refused, stating that he had discharged Herd for smoking in violation of
the rules.
Gilker further testified that on or about October 19 a union meeting, attended
by Keeshin employees, was held at the Rogers city hall. About 125 people at-
tended the meeting. When the meeting broke up, about 9 p. in., some of the
employees who had started out of the building returned and told Gilker that
2 of the Respondent's foremen were standing in front of the building near the
exit. Gilker went outside and found Richard W. Burr, foreman of the eviscerat-
ing room, and Shaddox, foreman of the pickup crew, standing in front of the
building. He told the foreman that they had no business standing in front of
the meeting place and that it was an unfair labor practice for them to be there.
In explanation, they said, "We just came over to see how many you had at the
meeting. . . . We were just down eating a steak on the Company and we
thought we'd drop by and see how you made out with the meeting."' They
continued to stand in front of the building until the people who had attended the
meeting had gone, then they left. On cross-exaniinatioe, Gilker testified that
when he told the foremen that they should not be in front of the meeting place
they said they didn't know that. He stated that they did not argue with him
about the point, nor did they go away immediately.
Gilker's testimony is credited fully. Most of his testimony is undisputed and is
corroborated by the testimony of Herd, later reviewed. Burr and Shaddox,
who testified, admitted with an explanation their presence at the city hall
on the night of the union meeting. Gilker, by his bearing and demeanor as a
witless, impressed the undersigned very favorably.
Ck:zrles P. Herd, the dischargee, was presented as a witness by the General
Counsel. He testified that he had been employed by the Respondent for
approximately 2 years prior to his discharge on October 3. He had performed
various jobs for the Respondent, but for some time prior to his discharge had the
job of taking chickens off the picking line in the cooling room. He explained
that the chickens came into the cooling room hanging from the chain by their
feet. His job was to squeeze the clamp holding the chickens and to hand the
chickens to a woman employee who weighed them for size and then placed them
in a cooling tank The chickens left the cooling room by means of a chain which
carried them into the eviscerating room.
Herd stated that he first saw Gilker and Buckner shortly before 4: 30 p. m. on
October 2, 1950. The union representatives were passing out handbills. He
went up to the men and talked to them, telling them that he knew most of the
people there and they asked him to identify the employees as belonging to either
Keeshin or Crown. Gilker asked Herd if there was a rear exit to the Keeshin
plant. When he replied that there was, Gilker asked him to take some of the
handbills and catch the people leaving by the rear door Herd took some hand-
bills and went to the west exit and passed them out. He stayed there engaged
in helping the union men from about 4: 30 until 6 when he returned to work.
While he was passing out the bills, Shaddox, foreman of the pickup crew, asked
Herd what all the activity was about. Herd told him that the men were passing
out handbills for the Union and gave him one. Herd also gave Shaddox hand-
bills for all of his pickup crew.
On that evening Herd worked from 6 until 8 p. m. When he finished he
went to Paul's Cafe, which is near the Keeshin plant. A group of employees
6 Transcript page 34.
KEESHIN POULTRY COMPANY 481
including Foreman Breeze were seated at a table in the cafe drinking coffee
and talking. Herd sat on a stool at the lunch counter. Roy Fletcher, one
of the employees seated at the table, asked Herd his opinion of the union. Herd
told the group at some length of his experience as a member of the Brotherhood
of Railroad Trainmen. He said, "Whenever you got a contract signed up
by both parties and both parties live up to it, its a good thing . . . it gives
us a chance for better working hours, paid vacations, and overtime, and we
can't afford to pass it up in my opinion."' He also explained to the employees
how the grievance procedure had worked in the Brotherhood of Railroad
Trainmen. At the time he made the statements, Foreman Breeze was in the
group of employees.
On October 3 Herd went to work around 7: 30 a. in. and worked until
approximately 12: 12 p. in. At noon the employees began to quit work for
lunch, by permitting the chains to clear. Herd stated that he had seen "Doe"
Sanders cross the street, so he asked J. D. Minch, another employee, to light
a cigarette for him. Herd while at work wears a rubber coat and rubber
gloves. At that time Larkin, plant manager, came running through the door
into the cooling room. As he approached Herd, he hollered "Dick" about
three times. When Foreman Richard Burr came to him in response to his
call, Larkin talked to him for a moment, then turning to Herd, slapped him
on the shoulder and said, "Herd, hit the clock." Herd started to explain to
Larkin that "Doe" Sanders, the Department of Agriculture inspector, had told
the employees that they could smoke in the cooling room when the eviscerating
line wasn't running, but Larkin said, "Don't argue, hit the clock." Herd then
said , "0. K.,sir," and left the cooling room and punched out.
Herd testified that at the time he lit the cigarette, Foreman Breeze was
at the picking line and that the foreman saw him smoking and immediately went
out the back door, and that Larkin came into the cooling room in about 3
minutes and discharged him.
Herd testified that in August of 1950, Bill Mundy, then the foreman of the
eviscerating room, had told him that "Doe" Sanders was "raising cain about
smoking." On another occasion, Dick Burr, who became foreman of the
eviscerating room about September 1, 1950, had also told him, "You ought to be
careful, Doe is raising cain back there about smoking." Herd testified that
about a month before his discharge, he had spoken to "Doe" Sanders and asked
him what objection he had to smoking and that the inspector had said that
he had no objection whatsoever as long as the eviscerating line was not
running. Herd testified that he had seen many other people smoking in the
cooling room, including employees Minch, Fletcher, Nida, Jones, and Foremen
Breeze and Shaddox. He also had-observed Winkleman and Larkin smoking
in the cooling room.
Herd stated that be had smoked in the cooling room when "Doe" Sanders
was present as long as the eviscerating line was not running. He stated that
"whenever I felt like I could sneak it and get by, I did."
Herd stated that at the time he lit up his cigarette the eviscerating chain might
have been running.
He testified that he knew smoking was not allowed, even though no "No
Smoking" sign was posted in the cooling room, picking' room, or eviscerating
room.'
9 Transcript page 128
'It is established by the testimony of all witnesses , except one , that there were no
"No Smoking" signs in any of these rooms until some weeks after Herd ' s discharge. In
this connection note testimony of Foreman Richard Burr who testified that sometime
after Herd 's discharge , he placed signs saying "No Smoking" in these rooms.
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On cross-examination, Herd testified as follows : 8
Q. (By Mr. Enfield) Now, did you know that there was a rule against
smoking in the eviscerating room and in the cooling room?
A. I knew Doe objected to it, but I knew the company didn't.
Q. How do you know the company didn't?
A. Because the company did the same thing, that is, the management
did the same thing I was doing. ,
Q. I will ask you about whether you had been warned previously about
smoking?
A. I had.
Q. About how many times?
A. A couple.
Q. All right. I will ask you, then, if you had been warned a couple of
times why didn't you quit it?
A. Because the company employees kept doing it.
Q. The company employees?
A. The company employees and the company management
Q. Were they working in that room?
A. I don't know They were in there inspecting chickens.
Q But you did know there was a rule, did you not, against smoking?
A. I knew that the inspector did, but I knew the company didn't.
Q. You stated on direct examination that you smoked in there whenever
you could sneak it and get by.
A. I did.
Q. Doesn't that imply that you knew there was a rule that you knew
you were doing wrong when you smoked?
A. I have told you as plain as I can speak that I did know there was a
rule agin it, but Doe-
Q. Did you know that Doc would close the line down for that?
A. They told me Doc was raising Cain and said be careful of your
cigarettes.
Q. None of them told you to quit it?
A. No, sir.
Q. You will swear to that?
A. I done swore to it.
* * * * * *
Q. I mean, you said that you would have a smoke whenever you could
sneak it and get by. -
A. From Doe. That's the only one I was worried about. Doe Sanders is
the only one I was worried about because the company officials did the same
thing I done.
Q. Did Mr. Larkin see you smoking in there?
A. He certainly had.
Q. You think he saw you smoking before the time you were discharged?
A He should have a number of times.
Q. You mean because you were smoking in there when you weren't
supposed to?
A. Not all the time, but I was.
Q. Well, sign or no sign you knew that you weren't supposed to smoke
in there, didn't you?
8 Transcript page 143, et aeq.
KEESHIN POULTRY COMPANY 483
A. I knew any of us were
no,
supposed to smoke in there including me,
yes, sir.
Q. Actually, as a matter of fact, you didn't care much, did you?
A. No more than Mr. Larkin did for having a cigarette. I never tried
to hide it from anybody. Doc would see my cigarette sitting up there if
he wanted to look.
Q. I believe you stated on direct examination that you knew that smoking
was not allowed in that department when the eviscerating line was running.
A. I knew that Doc objected. The Company didn't care.
Q. I believe your direct statement on direct examination was, I knew
that smoking was not allowed.
A. I probably said it. I do know that Doe didn't like us to smoke in
there, but I do know that the Company didn't care
Herd also testified that the last occasion on which any supervisor warned
hint about smoking was about 3 weeks before his discharge when Foreman
Burr talked to him. Later in the day, on October 3, Herd went back to the
plant and asked Larkin for a, written statement as to why he was fired. Lar-
kin said to him, "You know, don't you? Herd replied, "Well, it is customary,
if I get a job with some one else that is the first thing they will ask me."
Larkin gave Herd a written statement that he was discharged for smoking
in a zone prohibited by the rules of the United States Department of Agri-
culture. Later in his testimony, Herd testified that approximately 3 months
before he was discharged, he had a conversation with Doc Sanders in which
Sanders said that as far as he was concerned, he didn't care who smoked in
the cooling room as long as the eviscerating line was not running.
Herd also testified that during the years he was an employee of the plant
no one had been tired for smoking °
Herd impressed the undersigned as a truthful witness. He testified with
frankness and candor His testimony is largely undisputed I credit his
testimony.
Glenola Williams, who had been employed for approximately 4 years in the
picking room, also testified as a witness. She testified that her husband ob-
tained a handbill from the union organizers on October 2 and that shortly
thereafter on an occasion when she and her husband had the handbill in the
plant, Foreman Breeze, who was passing, stopped and asked them what they
would have left of their pay if the Union took its cut and the Government took
its cut. Two or three days after this incident, in another conversation Breeze
said to the witness that if the Union carne info the plant, all the employees
would be out of a job.
This witness also testified that she was present in Paul's Cafe on October 2,
shortly after 8 o'clock, when a group of employees, including Herd and Fore-
man Breeze, congregated at the cafe. All the employees were talking about
the Union and the handbills that had been passed out that day. Foreman
Breeze told the employees about a union to which he had belonged, and said
that he had been kicked out of that union because he didn't attend meetings.
He stated that the Union wasn't any, good for any of the employees. Herd,
who was present, told the group about'a union to which he had belonged and its
manner of adjusting grievances. Herd said that a union was a good thing
to have in the plant.
9 There is no testimony in this record of any other employee ever having been fired for
smoking.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This witness testified that the next mor ing at approximately 10 o'clock
she went to the main office of the plant tout some merthiolate on a scratch'
on her finger. The first-aid kit for the use of the employees was kept in the
main office. When she went in the main office she saw Larkin, plant manager,
and, Foreman Shaddox talking in Larkin's office. Larkin had a copy of the
union handbill in his hand The men were talking and looking at the hand-
bill but she did not hear what was said . After she had obtained medication
for her finger, she went back to work.
This witness also testified that employees smoked throughout the plant with
the exception of the eviscerating room while eviscerating operations were in prog-
ress. She stated that before Herd's discharge, she had seen employees Herd and
Fletcher, Foremen Shaddox and Breeze, chicken buyer Winkleman, and Plant
Manager Larkin, all smoke in the cooling room. She stated that after Herd's
discharge, signs were posted in the eviscerating and cooling rooms saying "No
Smoking," andin the picking room saying, "No Smoking while handling poultry."
Before Herd's discharge there were no signs anywhere in the plant.
On cross-examination, the witness said that she understood that there was a
rule against smoking while eviscerating was going on. While she was employed
with the Company she had never known an employee to be warned about smok-
ing. At the time Herd was discharged, only part of the chain into the eviscerat-
ing room had been cleared of poultry. She stated that on some occasions the
eviscerating line was running when employees or officials smoked in the cooling
room, but that she had never seen smoking in the eviscerating room while
operations were in progress.
Roy Fletcher, another employee, testified that he had been employed by the
Company for 2Y2 years. He was among those present at Paul's Cafe on the
night of October 2. In the course of the conversation at the cafe, Herd spoke in
very favorable terms of the Union. At the time he made his remarks, Winkleman,
the chicken buyer, was present. He testified that on another occasion while he
was standing near the time clock, Foreman Breeze had said to him, "Just what
in the dickens are you guys going to have left after the Government gets their
cut and the Union gets their cut? What's your payroll going to look like." On
another occasion, a few days later, Foreman Breeze stopped the witness outside
the plant and said to him, "Roy, come over here a minute, I want you to leave
this Union business alone." Fletcher said , "0. K." Breeze said, "Now I'm
telling you for your own good, leave it alone." On another occasion, Foreman
Shaddox and chicken buyer Winkleman stopped the witness in the parking lot
and asked him how the union business was going. Fletcher replied that he didn't
know much about it and that he guessed they knew as much about it as he did.
Winkleman and Shaddox then said that they had heard there was going to be
an election. Fletcher said that he hadn't heard anything about that yet. At that
point, Winkleman said that he didn't give a "damn" which way it went as it
didn't affect his job either way.
Fletcher testified that he went to a union meeting on or about October 19 at
the city hall at Rogers and that just before the meeting broke up, he went out
to his car. Foremen Shaddox and Burr were standing in front of the city hall
at the entrance. As he went out he spoke to them and they spoke to him. They
asked him how the meeting was going and he said that it was going "pretty good."
When Fletcher returned a few moments later, Gilker was talking to the two
foremen ; he did not hear their conversation except that Gilker was telling the
foremen they should not be there.
Fletcher testified that there were no "No Smoking" signs anywhere in the plant
prior to Herd 's discharge . He stated that he had smoked in the cooling room on
many occasions and that he had seen any number of employees smoke in the
KEESHIN POULTRY COMPANY 485
cooling room. He testified that he had seen employees Wilson, Minch, Herd, and
Jones, and Foremen Breeze and Shaddox, and chicken buyer Winkleman, and
Plant Manager Larkin smoke in the cooling room. The witness testified that he
"could go on and name nearly all the men, and women, too, as far as that is con-
cerned, who make a practice of smoking at various times as having smoked in
the cooling room." He stated that he had seen Foreman Burr smoking cigars in
the cooling room and that he had seen many persons smoking in the cooling room
while the picking and eviscerating lines were running. He testified that Doe
Sanders, the inspector, often came into the cooling room on inspection trips
while the eviscerating chain was not running and that he sometimes smoked
on those occasions.
Fletcher said that on one occasion Foreman Breeze spoke to him about smoking,
saying, "Roy, for God's sake watch those cigarettes. If Buchanan ever catches
you smoking, there is nothing that I or Mr. Larkin can do to help you hold your
job " The witness explained that Dr. Buchanan is the superior officer in charge
of the entire district for the Department of Agriculture. At the very next recess,
Fletcher asked Sanders, the inspector, what the deal about smoking in the cooling
room was when the eviscerating operations were not being carried on. He testi-
fied that Sanders said, "Well, shoot, as long as I am not eviscerating chickens,
as far as I am concerned personally, I don't care who smokes in here or how
much they smoke." Fletcher testified that he smoked during recess except on
some occasions when he sneaked a smoke while the eviscerating chain was
running. He knew that there was a rule against smoking when the eviscerating
line was operating. Like himself, most of the men sneaked smokes when they
felt like it. He stated that he understood that if Dr. Buchanan caught anyone
smoking while the eviscerating line was running, they would be fired. The em-
ployees feared Dr. Buchanan on the matter of smoking but did not fear any
action by the foremen.
During his cross-examination this witness was questioned as to the attitude
of Foreman Breeze on the occasion when Breeze stopped the witness outside of
the plant. The witness replied that Breeze appeared to be "sort of angry with
my activity toward the Union." When asked if he had a reason to feel that
Breeze was angry, he answered, "One man making the statement that Charlie
Herd made and `Bode' Breeze hearing it, and then Charlie Herd getting fired
the next day, put the fear in most employees."
He stated that none of the supervisors had ever threatened to fire him for
smoking in the course of his employment 10
Fletcher testified in a straightforward manner. He impressed the undersigned
as a reliable witness. Much of his testimony was later corroborated by witnesses
for the Respondent, notably Breeze and Shaddox. I credit his testimony.
Charles Floyd Williams, an employee in the picking room for 31/2 years, testi-
fied credibly that he was present at Paul's Cafe when Herd spoke very favorably
of the Union. Foreman Breeze and Winkleman, the chicken buyer, were present
on that occasion. A week or two before the election Williams asked Foreman
Breeze what he thought of the Union and Breeze told him about his experience
when he was kicked out of a union to which he belonged. A few days before the
election Williams and another employee were talking about the Union. Breeze
joined in the conversation and said, "Well, I don't know what's going to happen,
I believe they'll shut the thing down, just shut the thing down."
After the election the Company put "No Smoking" signs in the picking room.
Sometime after this sign was put up, Larkin saw the witness smoking while
11 There is no testimony in this record that any foreman ever threatened any employee
with discharge because of smoking prior to Herd's discharge.
986209-52-vol. 97-32
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was handling a chicken on the line. Larkin told Williams that if he ever
saw him smoking again he would fire him.
This witness said that he had seen all the employees who were steady hands
smoking in the cooling room. Most of Williams' testimony was corroborated
by other employees. I credit his testimony.
Wesley Johnson, an employee for about a year and a half in the picking room,
testified credibly. His foremen were "Bodie" Breeze and "Bud" Lovell. About
a month after Herd was discharged, he had a conversation with Breeze and
Lovell in the picking room. On that occasion he asked Breeze what he thought
about the Union, if he thought it would. take effect. Breeze replied, "Well, I
doubt it, if it does, it won't be only you all out of a job, I will too." Johnson
asked Breeze why the employees would be out of a job and he replied, "that
Keeshin would shut the plant down."
This witness also testified that before Herd was discharged the employees
smoked in both the picking and cooling rooms. He said that he had seen
Fletcher, Larkin, and Herd smoking in the cooling room and that the chains
to the eviscerating room were running when Herd and Fletcher were smoking.
When he saw Larkin smoking in the cooling room, the chain was not running.
According to this witness, at the time Herd was discharged the only sign about
smoking was in the eviscerating room." About 3 weeks after Herd's discharge,
"No Smoking" signs were put up throughout the plant. On one occasion when
he came from the rest room smoking, Breeze said to him, "Stop sticking your
neck out, throw that cigarette down." This witness also testified that before
Herd was discharged, no one had been reprimanded for smoking. After Herd
was fired, the employees continued to smoke throughout the plant. The witness
did not know about any smoking in the eviscerating room.
Mary Lucille Powell testified that she was no longer employed by the Re-
spondent but had worked in the eviscerating department at the plant in August
1949. At that time she worked for the Company for a period of 1 to 2 months.
This witness testified that during her period of employment, she had seen smoking
in the plant. However, the undersigned gives no weight to this testimony
because of its remoteness in point of time to the incidents herein involved.
Millie Hummell, an employee of the Crown Poultry Company, testified to a
conversation that she had with Plant Manager Larkin in October 1950. She
testified that on this occasion, about 1 week after the handbills were passed out,
she went to the Keeshin plant to obtain some chicken manure for her garden.
She saw Winkleman and Larkin in front of the Keeshin plant. When she
addressed her inquiry to Winkleman, he referred her to Larkin. Larkin,ex-
plained to her that the Company had no chicken manure at the plant but that
if she went to the Keeshin farm with her own truck that she would be able
to obtain some there. Larkin then said that he had heard the Union was trying
to organize the employees at the Crown plant. The witness answered that the
Union was trying to organize the plant. At that point, Larkin said, "We don't
have to run."
On cross-examination this witness stated that Larkin said, "They don't
have to run." When this discrepancy was pointed out to her she explained
that she "figured" Larkin meant Keeshin.
This witness stated that she had talked to Mr. Gilker, the union represen-
tative, and that the above was all that she could remember of her conversation
with Larkin.
This witness appeared hazy and unsure as to events about which she offered
testimony. I deem her testimony to be unreliable.
"This witness is the only one' who testified that there was a "No Smoking" sign'
anywhere.
KEESHIN POULTRY COMPANY
D. The defense
487
Oral F. Larkin, plant manager, testified that on October 2 he was in Chicago
attending a convention. In the evening he flew home from Chicago, arriving
at Joplin, Missouri, and that he drove to the Keeshin plant with a friend,
arriving at the plant at approximately 11 o'clock It was a very stormy and
rainy night. Pursuant to an arrangement previously made, he was met at the
plant by Winkleman who drove Larkin home, a distance of some 4 miles, in a
company pickup truck. In the course of this drive, which occupied approxi-
mately 15 minutes, Winkleman and he talked about operations at the plant,
the price of poultry, and of occurrences at the convention in Chicago.
Larkin stated that Winkleman did not tell him anything about Herd, and that
lie didn't recall that anything was said about the Union or union activities around
the plant in the course of this drive. He denied that he gained any knowledge
,of union activities at the plant at that time.
About 9: 30 the next morning he went to the plant and spent the morning
taking care of an accumulation of correspondence and phone calls. In the course
of the morning, he talked to the foremen about routine matters connected with
the operations of the plant, but that no one mentioned to him the union activities
or Herd's part in them. He testified that'he did not talk with Foreman Shaddox
in his office on that morning but did talk with Shaddox around 2: 30 to 3 in the
afternoon, at which time he gained his first knowledge about Herd's union
activity. °
Larkin testified that he fired Herd just about noon. As to the manner of
Herd's discharge, Larkin testified as follows:'
A I finished sort of cleaning up my desk and walked back in the plant
and walked around to see how much feed we had on hand, walked into the
killing room and came back in my office and put on a white coat. We have
to put on white coats to go up in the eviscerating department. I keep one
in the office usually I went up in the eviscerating department, through
the cooling room into the eviscerating room. I think if I remember, which
I always do. It isn't so much of a recollection of what 1 did as more a
matter of habit I go through the cooling room and check the quality of
poultry for a minute, look at maybe three or four or five tanks of poultry
that is there and see how they looked and walked on in the eviscerating room
through the cooling room. I stood in the eviscerating room, looked around
there, looked how the chickens looked, how they are finished ready to pack,
looked at the finished packages. We are a little bit proud of our pack and
I like to try to keep the quality up,'and I do that most every day. So, when
I walked out of the eviscerating room into the cooling room just angle-
ways behind Mr Herd, I saw him smoking. I stepped back into the door
of the eviscerating room and caught'the eye of the eviscerating room fore-
man, Mr Burr, and motioned to him and he came down to me, and I says,
"Dick, get me a man to take Herd's place for the rest of the morning." I
said, "I am going to fire him for smoking."
He had me a man down there, and I had this man and I says, "Mr. Herd,
you are through. You just go punch the clock and get your time."
He stammered slightly and said, "Well, what for?"
I said, "You are smoking, aren't you?"
He started to put tip some sort of argument. I said "I don't want any
argument." I said, "you are through because you have been properly
warned."
u Transcript page 213.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q Now, Mr. Larkin, prior to that time had you ever seen Mr. Herd smok-
ing before?
A. No, sir.
Q Had it been reported to you? -
A. Yes, sir.
Q. Had he been given warnings before about smoking?
A. Yes, sir.
Larkin testified that at the time he fired Herd the eviscerating line was run-
ning, that it was partly empty, the line not having completely cleared. Larkin
testified that the regulations of the United States Department of Agriculture,
set forth previously in this Report, were familiar to him and were applicable to
the Respondent's plant. When questioned about the regulations, he pointed out
that they do not require the posting of signs or of notices concerning smoking-
He stated he had never personally warned any employee about smoking, and was
not sure whether he had directed the foreman to warn Herd. He had spoken
to the foreman about the smoking that he knew was going on in the cooling room,
because Sanders had spoken to him about it on several occasions Larkin
pointed out that the picking room has a different status than the cooling and
eviscerating rooms as regards sanitary regulations. By the regulations, em-
ployees of the cooling and eviscerating rooms must use their own rest rooms
which cannot be used by other employees, and they must punch a time clock,
other than the clock punched by other employees. He explained that there was
no enforcement of smoking regulations in the picking room as the last operation
performed in that room is a thorough washing of the poultry by the mechanical
washer. After that operation the poultry goes into the cooling room for process-
ing leading to packaging. Herd's job was performed on the poultry after the
chickens had been washed.
Larkin testified that on some occasions he had unconsciously gone into the
cooling room with a cigarette in his hand. He also talked to Foreman Burr-
about tightening up smoking regulations because the United States Department
of Agriculture had asked that things be put in shape for the change in sanitary
conditions required by the regulations as mentioned above. He had told Burr-
that anyone caught smoking would be fired. Prior to Herd's discharge he had
seen people smoking and had warned them.
Larkin also testified that on or around October 19 he and the foremen of the-
Company had the monthly foremen's dinner at a restaurant near Rogers.
As he and the foremen drove homeward, someone suggested that they stop,
and see what was going on at the union meeting which was being held at the-
city hall in Rogers. They drove to the neighborhood of the city hall and parked
their car. Larkin and two of the foremen stayed in the car but Foremen Burr
and Shaddox alighted and- walked down the street and finally stood in front
of the entrance to the city hall. From where he sat in the car, Larkin could
see who came out of the building. He saw Roy Fletcher come out of the build-
ing. The foremen were in front of the city hall for approximately 5 minutes. _
When they returned, Shaddox said that they had seen Gilker who had said that
they shouldn't be there, so the foremen left.
Larkin testified that on one occasion he had asked an applicant for employment
if she belonged or had ever belonged to a union. At the time the Company
didn't need any people so he didn't refer her to any of the foremen who do-
the hiring. This occurred at the time the organizatioilal drive was "hot." The
applicant said that she did not believe in unions and that was all the conversa--
tion he had with the woman. He said he did not know who this woman was and"
KEESHIN POULTRY COMPANY 489
that was the only occasion on which he inquired as to the union affiliation of a
prospective employee . He denied that he had committed any of the acts set
forth in the complaint.
Larkin denied that he had a conversation with Foreman Shaddox at approxi-
mately 10 in the morning of October 3. He testified that at that time Shaddox
'had gone out with his crew to pick up some chickens at the home of Oliver
Cowgur. Cowgur lives at Niwasse , Arkansas , some 20 miles from the Keeshin
plant. The record of purchases made October 3 was introduced in evidence as Re-
spondent 's Exhibit No. 1, and it shows that a large quantity of live chickens was
purchased from Cowgur on that day.
On cross-examination Larkin admitted that he had made two statements to
Joseph Bailey , a field examiner for the Board , one on December 7, 1950, and a
second on February 2, 1951. Larkin admitted that in the December 7 statement
he had said of Winkleman, "He drove me to my home which was 4 miles from
Rogers. No one was with Winkleman. I had left my car at home. I had told
Winklemanl to get my car and leave it at the plant but he did not do this, and
drove me out in the company pickup. Winkleman told me that some union
people had passed their first handbills out on October 2 and told me that they
had started on us. He did not mention Charles P. Herd, who formerly worked
in the cooling room." '3 Larkin also stated that on the morning of October 3, he
talked to Foremen Burr and Breeze but that they did not tell him that the
Union had passed out handbills.
Counsel for the General Counsel, at this point , again exhibited to Larkin
his statement on December 7, in which Larkin said, "I came to the plant the
next morning around 9 a. in. to 9: 30 a. in. and caught up on my work . I talked
to all the foremen about generalities and the convention that I had attended in
Chicago." ( Emphasis supplied .) Larkin maintained despite this statement
that he had talked to all the foremen except Shaddox , and that none of them
told him about the union activity or Herd's participation therein.
Larkin testified that prior to the advent of the Union at the plant, he had
talked to Mr. Keeshin in Chicago as to the company policy in regard to the
Union. He stated that Keeshin told him that if the Union came in, he was not
to worry about it. Larkin also talked to the foremen about the possibility
of the Union entering the plant and he cautioned them to be careful in what
they said about the Union because he knew what happened at the Swanson
Poultry Company."
Larkin testified that he knew that Mundy and Burr had warned Herd about
smoking and that on October 3, he, himself , found Herd smoking. He had
never received a report of anybody else smoking. Larkin testified that he
thou,tht there was a "No Smoking " sign in the eviscerating room prior to
October 3, and that he knew there were no "No Smoking" signs in the cooling or
picking rooms. The Company had no objection to smoking in the picking room
but at the time that the plant was opened Dr. Buchanan of the Department
of Agriculture had said that the cooling room was a part of the eviscerating
room and that there was to be no smoking in the cooling room.
James Otis Shaddox, foreman of the pickup crew, testified that he first saw
Larkin on October 3 about 3: 30 in the afternoon. During the morning he was
at Hiwasse with his crew, picking up chickens at the home of Oliver Cowgur.
He returned to the plant a few minutes before 11 a. in. and was in the front
"Transcript page 267.
14 This reference to the Swanson Poultry Company is unexplained in the record. Nor
is it again referred to.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office just long enough to turn in his trip tickets to the office girl. About 3
o'clock in the afternoon he went to the front office and saw Herd seated in the
office. When he saw Larkin, he asked him what was wrong with ' Herd, and
Larkin told him that Herd had been fired . Shaddox then said to Larkin, "Man,
you've got yourself in trouble. Why, I seen Herd talking to them Union guys
last night and handing out bills. Well, I've got one of them bills out there in
the car, I'll go out and get,it and show it to you." Shaddox got the handbill
from his car , showed it to Larkin , and told him that he had seen Herd in con-
versation with the union men.
Shaddox testified that he was with the other foremen and Larkin at the
monthly meeting of foremen on or about October 19. After having dinner, while
the foremen were driving to Rogers , someone suggested that they go to the
meeting place of the Union. He explained that they decided to drive there out
of curiosity, "just to see what kind of a crowd they had down there " On cross-
examination Shaddox confirmed Gilker 's testimony that Gilker had given him
some handbills on October 2 at the time Herd was with Gilker.
The witness stated that he usually accompanied the pickup crews when they
went outside the plant , but that occasionally when something special happened at
the plant, he sent the crews to pick up chickens without accompanying them.
John W. Breeze, foreman of the killing or picking room, testified that on October
2 he was given some handbills by the union organizers and that he noticed Herd
in the company of the union representatives . He was also in Paul's Cafe that
evening but ,he did not remember whether Herd was there or not. As to his con-
versation with Larkin , on October 3, he testified as follows :
Q. At the time that he came back, did you talk to him about the union
activity going on around in the plant?
A. Nothing more than I said the handbills are being strung' around. I
guess you won't have to look for one.
Q. Do you remember when you spoke to him about that?
A. No, I don't, whether it was in the morning, evening, or when it was.
Q. Do you know whether it was before or after Charlie Herd was fired?
A. Well, it was before Herd was fired. (Emphasis supplied.)
Q. Before Herd was fired you talked to Mr. Larkin?
A. In that, just what I got through saying in regard to the handbills.
Q. Where was that?
A. Right there in the plant, not in the office.
Q. What was the occasion of the conversation?
A. He just wanted to know how everything was getting along. I told him
everything was all right as far as I knew.
Breeze also testified that he had told Herd and Fletcher not to smoke in the
cooling room . He admitted that on one occasion he had stopped Roy Fletcher
outside the plant and told Fletcher that he wanted him to leave the Union alone ;
that he was telling Fletcher for his own good. Prior to that occasion he had
spoken to Fletcher about the Union in the plant. He had asked Fletcher what
he was going to have left of his pay after the Union and the Government each
took their cut. He denied that he had ever told any employee that Keeshin would
close the plant if the Union came in, or that he had interrogated any employees
as to their union affiliation . He denied that he had ever talked about the Union
to Wesley Johnson.
On cross-examination the witness stated that he was not sure whether it was
the morning that Herd was fired that he told Larkin about the handbills being
passed out but that he was sure it was in the morning.
KEESHIN POULTRY COMPANY 491
Richard W. Burr, foreman of the eviscerating room, testified that on October 3
Larkin came to the door of the eviscerating room and said, "Get a man to replace
Herd , I caught him smoking." Burr procured the replacement. Burr testified
that at that time the eviscerating chain was still running and the packing crew
was still working packing chickens. He stated that he had warned Herd about
smoking several times but had specifically warned him when Doc Sanders in-
structed him to stop smoking on one occasion. At the time that he spoke to Herd
about smoking at the request of Sanders, he told Herd to stop smoking. On other
occasions he was not sure of what he had said to Herd about not smoking, but
he thought it was, "You want to watch your smoking, Charlie," or something to
that effect. He had never told Herd that he would be fired if caught smoking.
Burr testified that he had told several other employees not to smoke in the cooling
room, and that the employees knew that they were not to smoke in that place.
It was only after Herd was discharged that he learned that Herd was active for
the Union.
This witness.stated that there was no "No Smoking" sign in the eviscerating
room'or cooling room until after Herd was discharged; that some weeks after
October 3 he, himself, put signs up in both those rooms.
Burr testified that he was with the foremen on the night of the union meeting
when they stopped at Rogers city hall. After dinner, someone suggested that
they drive to the city hall, "and see what's going on at the union meeting," so
they did so. Burr and Shaddox got out of the car and went up in front of the
city hall. Gilker came out of the city hall and said to the foremen, "Don't you
fellows know that you're not supposed to be here?" They told him they did not
know that. Gilker then told them that their presence violated the At, so the
foremen told him, "0. K." and left immediately.
Burr, Herd's immediate supervisor, testified that he was unable to say whether
he had ever talked to Larkin about Herd's smoking.
Burr testified with frankness and candor. I credit his testimony.
Ernest L. Lovell testified that at the time of the hearing he was the killing room
foreman ; that he became an employee of the Respondent on October 14, 1950, and
a foreman in February 1951. He denied that he had ever talked about the Union
with any of the employees. He was with the other foremen on the night of
their visit to the union meeting. He stayed in the car with Larkin on that
occasion.
Lawrence A. Winkleman, chicken buyer for the Respondent, testified that he
was with a group of employees at Paul's Cafe between 9 and 10 p. in. on October
2, but that he had not heard any conversation about the Union. Both Herd and
freeze were present at that time He stated that the first he knew of the Union's
attempt to organize the plant was on October 3 when he went past the plant and
Gilker and Buckner gave him a handbill." He had no conversation with them
at the time.
This witness testified that attending the foremen's dinner were Plant Manager
Larkin, Foremen Breeze, Burr, Shaddog, and himself.1e
Concluding Findings
Though there is a sharp conflict of testimony on many points, several important
features of the case are very clear. It is beyond question that the regulations
"The witness was evidently mistaken as to date , as the union organizers passed out
handbills only on October 2.
Ie Note that Breeze testified he did not attend the dinner or subsequent meeting and that
Lovell said that he attended The witness was evidently mistaken as to these two
foremen.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the United States Department of Agriculture cover the cooling room of the
Respondent 's plant. However, from the testimony of all the witnesses, it is
equally apparent that the rules of the Department of Agriculture were not
enforced by the Company prior to October 3, also that the duties of Dr. Sanders
in the eviscerating room of the plant prevented him from enforcing the rules else-
where in the plant during working hours. When the plant was in operation,
his attendance in the eviscerating room was required. -Eviscerating could not be
conducted in his absence. Therefore, violations of the regulations not committed
in his immediate presence went uncorrected. There is no contention in the case
that the Company had any rules of its own against smoking which supplemented
the Department of Agriculture's regulations. It is also not questionable in view
of Foreman Burr's testimony that prior to October 3 there were no "No Smoking"
signs in the eviscerating, cooling, or picking rooms. Prior to Herd's discharge
no employee had been fired for violation of the smoking rule nor, indeed, had any
employee, including Herd, been threatened with discharge by either a company
official or a Department of Agriculture official, for violation of the smoking rule.
It is also clear that smoking by employees and supervisors was widespread in
the entire plant and in the cooling room. Unquestionably Herd, whose duties
kept him in the cooling room , was a leading offender against the smoking rule.
He admits to three warnings over a 10-month period . The conduct of the Com-
pany prior to October 3 amounted to condonation of these offenses.
With these points clearly in mind, we may approach an analysis of Herd's
discharge . The question is was Herd discharged by Larkin on October 3 because
he was smoking in violation of the rules or because he had participated in union
and concerted activity? Counsel for the parties have introduced much evidence
as to the circumstances surrounding the discharge which may afford an answer
to that question. In the testimony introduced to prove these circumstances there
is a sharp conflict. It is clear that Herd's participation in the union activity on
October 2 was open and public. As employees and supervisors left the plant he
gave them handbills . He spoke favorably of the Union at Paul's Cafe in the
'presence of Breeze and Winkleman . Under these circumstances , there is no
'question in my mind but that Herd's activities and sympathies were generally
well known to Respondent 's management prior to noon of October 3.
Opposed to this very general and widespread knowledge on the part of manage-
ment, evidence was introduced that Larkin, the individual who did the actual
firing, was not in a position to know and did not know at noon on October 3 that
Herd had engaged in union activities , because Larkin was away attending a
'convention at Chicago until late on the night of October 2. Larkin testified that
he had no knowledge of either union activity at the plant or of Herd's part in
this activity prior to the time he discharged Herd. He testified that during the
'time that he rode with Winkleman from the plant to his home on the night of
October 2, Winkleman did not mention Herd to him, or did not mention that union
organizers had passed out handbills in front of the plant . Winkleman, in his
testimony , bears out Larkin . This testimony strikes me as being highly incred-
ible. Both Larkin and Winkleman have been in the poultry industry in northwest
Arkansas for a long time and they are officers in responsible positions with the
Respondent . They were aware of the union efforts to organize the industry and
during Larkin 's absence the campaign to organize the Respondent had begun.
It is hard to believe that Winkleman did not tell Larkin of the union activity
as soon as the men met on October 2, or in the course of their ride together.
Larkin further testified that on the following morning he gave his attention to
,an accumulation of correspondence and routine affairs and that though he saw
all his foremen with the exception of Shaddox , none of them told him of the
KEESHIN POULTRY COMPANY 493
union activity or of Herd's part in it. The union activity at the plant had not
been accomplished by stealth or furtiveness . Two union organizers and an em-
ployee had stood at the entrance of the plant , passed out handbills , hailed workers,
and discussed the merits of unionization with Foreman Shaddox. Yet, according
to Larkin , no one told him about this activity . I find this testimony so incredible
that it merits close scrutiny . When scrutinized , it appears that in the statement
given by Larkin to Field Examiner Bailey on December 7, 1950, Larkin stated
that Winkleman told him on the night of October 2 that some union people had
passed out handbills and that the Union had started on the Respondent. That
statement is entirely credible as it fits a reasonable pattern of conduct of
reasonable men. It was natural and to be expected that Winkleman would tell
Larkin of the union advent at the plant.
Foreman Breeze , in his testimony , also stated that before Herd was discharged
he told Larkin that the Union had handbilled the employees and that he would
not have to look far to find the handbills . This testimony of Breeze , coupled
with Larkin ' s statement of December 7, further weakens the testimony of
Larkin that he did not know of the union activity before he discharged Herd.
Glenola Williams testified that she saw shaddox and Larkin perusing a
handbill in Larkin's office at 10: 30 in the morning of October 3. Larkin and
Shaddox admit that together they did peruse a handbill in the offce but they
stated that this occurred after Herd was fired, about 3: 30 in the afternoon. In
effect, they stated that Glenola Williams testified correctly in every particular
except as to the hour of their conference. I cannot accept the Respondent's
contention on that point . Mrs. Williams , by her bearing and demeanor, im-
pressed the undersigned very favorably . She is young, highly intelligent, and a
long service employee. She testified clearly and , I am convinced , accurately.
Larkin and Shaddox both admit that they actually did the things which Mrs.
Williams said they did; that Mrs. Williams was correct in all particulars except
one, the time of the conference . Respondent introduced as an exhibit a record
of purchases of chickens on October 3, which shows that on that day a quantity
of chickens was purchased from Oliver Cowgur. Shaddox testified that he
was at a Cowgur's house with his crew that morning, returning to the plant a
few minutes before 11 a. m. The probative value of the purchase record
depends entirely upon the testimony of Shaddox. He testified that he usually
accompanied his crew on a pickup but when something special occurred at the
plant he did not accompany his crew. The conflict of testimony between Mrs.
Williams on the one hand and Larkin and Shaddox on the other , I resolve in
favor of Mrs. Williams . She was proven correct in all particulars of the
Shaddox-Larkin incident and I am convinced that she was correct about the only
particular in dispute, the time. Larkin's statement of December 7, in which
he said that on the morning of October 3, he talked to all the foremen, is additional
support for this finding . Larkin's failure to omit Shaddox from the foremen to
whom he talked that morning may have been an inadvertence as Larkin inferred
in his testimony, or the statement may have been a truthful statement made at
a time when the Respondent did not realize that Mrs. Williams had seen the men,
and would later testify to her observations.
The interest of these witnesses is also worthy of some scrutiny. Larkin's in-
terest is evident; he is the official in charge of the plant and would naturally
desire to see his course of conduct vindicated . Mrs. Williams evidently is favor-
ably disposed to the Union but so far as it can be determined has no other
interest . Shaddox appears to me to be far from disinterested . It was he who
talked to Herd and Gilker about the Union when they were distributing hand-
bills. He spoke favorably of the Union and accepted a quantity of the handbills
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ostensibly for his men. However, the next thing we know of Shaddox, he and
Larkin are perusing the handbills in the plant office. Shaddox explained that he
happened to think of these handbills while talking to Larkin, but there is another
construction that can be placed on this conduct-that Shaddox feigned an interest
in the Union, gained knowledge of the Union and obtained the handbills, not for
his men but for the information of Larkin. It was Shaddox too who stood in
front of the union meeting place and was evidently one of those most anxious
to learn of the progress of the Union. It was also Shaddox who stopped Roy
Fletcher and asked him how the Union was coming along. This course of con-
duct evinces an unusual interest in the affairs of the Union and far exceeds
the normal curiosity of a disinterested witness The continuous prying of Shaddox
into the affairs of the Union, which were none of his business, evinces the interest
of a partisan and casts a suspicion on his testimony
Considering the demeanor and bearing of the witnesses, their interest in the
proceeding, and the substance of their testimony, I credit the testimony of Mrs.
Williams and do not credit the testimony of Larkin or Shaddox on this point.
I find, therefore, tliat prior to Herd's discharge, Larkin had knowledge of the
union activity from three different sources: (1) From Winkleman on his drive
home on the night of October 2; (2) from Foreman Breeze the next morning;
and (3) from Shaddox about 10 a. in. Thus the main contention of Larkin's
testimony has been disproven.
Inasmuch as this is a relatively small plant, 95 employees, and that Herd's
participation in union activity was open, public, and well known to the supervi-
sory staff, I conclude and find that these facts give rise to the strongest type of
inference that Larkin also gained knowledge of Herd's participation in the union
activities from the foreman prior to his discharge of Herd.
An examination of the Respondent's contentions bears out this finding. Ac-
cording to Larkin, he returned from Chicago and did not know of the union
activity in the plant. He decided to go through the plant on a routine inspection
trip. He arrived at the cooling room at approximately 12 minutes after the noon
hour ; by that time some of the employees in the eviscerating room and cooling
room were discontinuing work. The eviscerating line had not fully cleared
Under these circumstances, he observed Herd smoking in the cooling room and
being mindful of the previous warnings given to Herd, he determined on the spot
to fire Herd. The last reprimand about smoking given to Herd had been some
3 weeks before Nothing had occurred which had provoked management to a
drastic tightening up of the smoking regulations. Larkin admitted that no one
had ever been fired or threatened with discharge for smoking-yet he decided
to fire Herd on the instant. It was only after that, about 3: 30 in the afternoon
that he heard to his surprise that Herd had participated in handing out hand-
bills and had assisted the union men in their organizational activity the evening
before -
The Respondent's version of the discharge contains no inherent plausibility.
Men act only from motives and with reason. An individual's course of conduct
only changes at the promptings of motive and for a reason, whether it be good
or bad Avaricious persons only under the influence of motive become generous.
Generous persons only under the influence of motive become avaricious.
Law breakers do not become law-abiding citizens except because of strong motive
and sound reason. Applying this general rule of conduct to this discharge, the
version of the Respondent does not stand up. Here, we have a Company which
did nothing to effectively enforce among its employees a no smoking rule of the
Department of Agriculture. No one had been fired for violation of the rule.
No one had been warned that they would be fired for a violation of the rule.
By custom and usage, the employees smoked when they chose, and if a smoking
KEESHIN POULTRY COMPANY 495
employee was observed by a foreman, at most he was told to watch his smoking,
or exhorted not to be caught by the Government inspector There is no question
but that the Company had been "indulgent" to its employees, and extremely
careless, if not indifferent to the smoking regulations. Suddenly, the indulgent,
careless, or indifferent employer became the severe and scrupulous enforcer of
the rule, and fired an employee who had lit a cigarette at the noon hour when
the eviscerating line was not entirely clear. The Respondent's attitude toward
the regulation suddenly changed from the utmost laxity to extreme severity.
What was the reason for the change? No new complaint from the Department
of Agriculture had brought the change; no new incident among the employees as
to smoking had provoked the Company to act at long last. The only unusual
incident which had occurred in the routine operations of the plant was that the
Union had launched its organizational campaign with the assistance of the very
employee who was now caught smoking at the noon hour. Immediately he was
discharged.
It may be argued on behalf of the Respondent that over a period of years
it had been "indulgent" about the no smoking rule; and that extreme indulgence
had been extended to Herd who was the leading offender against the rule ; and
that the Company decided to enforce the rule strictly, with the result that Herd
was the first cme to suffer the penalty for a violation. This argument does not
withstand examination. The law forbids discrimination against an employee
because of his union affiliation. Discrimination may take the form of strictly
enforcing disciplinary measures against union employees, and being "indulgent"
concerning the same rules to nonunion employees. In this case Herd received
indulgence until he participated in union activities, then he was held to a strict
enforcement of the rule and discharged. Upon the evidence in this record,
I cannot escape the conclusion that, but for his union activity Herd would
still be employed by the Respondent, the happy recipient of the Company's
indulgence
I find that Charles P Herd was discharged by the Respondent because he
had engaged in union and concerted activities and that he was not discharged
because he had violated the regulations against smoking. I find that the Com-
pany used his violation of the no smoking rule as a pretext to terminate the
services of the most active union adherent among its employees. I find that
his discharge and the Company's refusal to reinstate him constitute a violation
of Section 8 (a) (1) and (t) of the Act.
Having found that Herd's discharge was an unfair labor practice it follows
that he was eligible to vote in the election of December 6, 1950. I find there is
no legal basis for the Company's challenge to his ballot. This challenge is not
sustained.
There can be no doubt that the Company violated Section 8 (a) (1) of the Act
in some of its conduct covered by the testimony. The foremen of the Respond-
ent admitted that on or about October 19 they went to the vicinity of the union
meeting at the city hall in Rogers, Arkansas, for the purpose of seeing how
many employees attended the meeting and how the union was progressing.
Two of them left their car and took a position where they could observe all the
employees leaving the meeting place. As Gilker testified, that action had the
effeot of intimidating the employees who were reluctant to leave and pass under
the scrutiny of the foremen. Gilker testified that the foremen stayed there
until the employees left the meeting place. The foremen stated that they left
their position before the city hall after Gilker protested. Whether they were
there a short time or a long time is of minor importance. The important fact
is clear and admitted that they had gone to the meeting place to learn about
the Union's progress in organizing the employees and to determine how many
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and which employees were at the meeting. The organizational efforts of the
employees were not a proper concern of this Respondent . Under the Act the
employees are given the right to organize without interference by the Company,
and without their meetings being under the surveillance of company officials.
The Company must accept responsibility for this action because Larkin, the
plant manager, sat in the automobile and joined in and sanctioned the action
of the foremen . Larkin termed this conduct a "frolic." He regarded it as being
a minor incident , arising only from the good spirits and the natural curiosity
of the foremen . The Company also inferred through the testimony of the fore-
men that the foremen did not know any better . I cannot accept the viewpoint
that this was a minor incident , a "frolic," or an act done through ignorance-
The effect of the action was to intimidate the employees . They immediately
sought the assistance of Gilker . It was only natural that after Herd's dis-
charge, the employees feared that the surveillance by the foremen would lead to,
some form of reprisal against them by the Company. I find that this surveil-
lance of the meeting by the foremen is a violation of Section 8 (a) (1) of the Act.
Foreman Breeze admitted that on one occasion he had stopped employee
Fletcher outside the plant and told him to get out of the Union for his own
good. On another occasion , Breeze asked Fletcher what he was going to have
left out of his pay after the Union and the Government took their cuts. This
admitted conduct clearly constitutes a violation of Section 8 (a) (1) and needs
no further comment.
In view of these admissions and the credible testimony of Mrs. Williams,
I find that Breeze also asked Mrs. Williams the same question he admittedly
asked Fletcher , namely, what are you going to have left of your pay after the
Union and the Government get their cuts, and that on another occasion he told
Mrs. Williams that if the Union came in the plant all the employees would be
out of a job.
I also find in accordance with the credible testimony of Wesley Johnson, that
Breeze also told him that if the Union came in all the employees would be out
of a job.
I also find in accordance with the credible testimony of Fletcher that Foreman
Shaddox stopped Fletcher and asked him how the Union's campaign was pro-
gressing . This conduct by Breeze and Shaddox are additional violations of
Section 8 ( a) (1) of the Act.
Larkin admitted that on one occasion he had interrogated an applicant for
employment as to whether she had ever belonged to a union or not. He explained
that the 'Company was not hiring at that time so he did not refer the woman to
any of the foremen. However , the undisputed fact remains that he had interro-
gated an applicant for employment about her union affiliations and that con-
stitutes another violation of Section 8 (a) (1).
When each violation of the Act in this case is considered separate and apart
from the others , the defense of the Respondent has some surface plausibility,
but when the various actions of the Respondent and the Respondent 's explana-
tions are considered in totality , the surface plausibility vanishes . The Company
attempts to explain its conduct by the following defenses : ( 1) It defends its
discharge of Herd on the ground that he was smoking in violation of the rule ;
(2) it defends its surveillance of a union meeting on the ground that it.was
a "frolic" and occurred because of the curiosity and ignorance of the foremen ;
(3) it defends one of Breeze 's statements to Fletcher on the ground that Fletcher
was "rubbing it into Breeze" ; ( 4) it defends Larkin's interrogation of the
applicant for employment on the ground that the Company wasn't hiring at
that time , anyway. Each action has some explanation . but if we examine this
conduct closely we observe a pattern of antiunion conduct which includes (1)
KEESHIN POLTLTRY COMPANY 497
the discharge of the leading union adherent; (2) the surveillance of the Union's
meeting; ( 3) threats and warnings of economic reprisal by the Company if the
employees embraced the Union ; ( 4) interrogation of employees as to how the
union organizational campaign was progressing and the interrogation of
applicants for employment as to their union affiliation . Viewed in this broad
aspect, I discern in this conduct of the Company a clear intent and purpose to
frustrate its employees in their efforts to organize pursuant to their rights under
the Act.
Upon a preponderance of all the evidence I find that the Respondent has inter-
fered with, coerced , and restrained its employees in the exercise of their rights
guaranteed by Section 7 of the Act by (1) interrogating its employees concerning
union activities , and applicants for employment as to their union affiliations or
sympathies ; ( 2) threatening its employees with economic reprisal that the plant
would close if the employees joined the Union; ( 3) practicing surveillance upon
a union meeting of its employees in violation of Section 8 (a) (1) of the Act.
I find that the Company did not advise its employees that the Company would
have given a raise in pay if the Union had not come along as alleged in paragraph
VII (e ) of the complaint. The evidence is that Foreman Lovell made a state-
ment to employees similar to that alleged but that it occurred after his pro-
motion to foreman in February 1951 , some months after the discharge and the
election here involved . Also counsel for the Respondent contends that the state-
ment means that the Company could not grant a pay increase in the course of
the union campaign without running the risk of a charge of unfair labor prac-
tices by the Union. The statement allegedly made is of an ambiguous nature,
open to the construction placed upon it by Respondent . For that reason I have
made the above finding and will recommend that that allegation of the complaint
be dismissed.
Findings on Objections
Objection 1-The Company through its supervisors exercised surveillance on
union meetings . For reasons heretofore stated, I find that this objection has
been sustained.
Objection 2-The Company made threats to close the plant and threats of
reprisal against employees who were union sympathizers . I find that this
objection has been sustained . The statements of Foreman Breeze that the plant
would close in the event the Union was successful in its organizational cam-
paign and Breeze's conduct in telling Fletcher to get out of the Union for his
own good are the basis of this finding.
Objection 3-The Company screened employees and applicants for employ-
ment as to their feeling toward the Union . I find that this objection has been
sustained . While no "screening" of employees has been proven, yet Larkin
admitted that he had interrogated one applicant for employment as to union
affiliation.
Objection 4-The Company 's plant manager made two captive audience
speeches which contained statements in violation of the National Labor Relations
Act. There is no evidence in this record of any such conduct by the Company.
I therefore find that this objection has not been sustained and will recommend
that the objection be dismissed.
Objection 5-The Company made other threats both to employees and non-
employees which were in violation of the National Labor Relations Act. I
have found that the Company made threats to its employees in Objection 2.
1 have also disregarded the testimony of Millie Rummell, a nonemployce , because
of the dubious character of her testimony . Because part of this objection has
been established in Objection 2 and the testimony of Hummell disregarded,
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD •
I find that this objection has not been sustained and will recommend that the
objection be dismissed.
In this posture of the case two remedies are afforded to the Union : (1) That
Herd's ballot in the election of December 6, 1950, be opened and counted ; and
(2) that the election of December 6, 1950, be set aside, on the grounds of the
objections now found to be sustained.
The counting of Herd's ballot may be decisive of the election. At that time
the Union may decide to withdraw its objections, having won the election
despite the unfair labor practices of the Company, found herein.
However, in the event exceptions are filed herein, the Board upon review may
disagree with my findings in regard to the discharge of Herd. For that reason,
my findings as to the objections are necessary. With these considerations in
mind I will recommend that Herd's ballot in the election of December 6, 1950,
be opened and counted, and that thereafter if the Union does not withdraw its
objections, the election be set aside by the Board.
1V. 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 I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent engaged in unfair labor practices, it will
be recommended that it cease and desist therefrom and take certain affirmative
action which will effectuate the policies of the Act.
It has been found that the Respondent discriminated in regard to the hire
and tenure of employment of Charles P. Herd. It will be recommended that
the Respondent offer him immediate and full reinstatement to his former or
substantially equivalent position," without prejudice to his seniority rights and
privileges, and make him whole for any loss of pay he may have suffered by
reason of the Respondent's discrimination against him. Consistent with the
policy of the Board,'B it will be recommended that the loss of pay be computed
on the basis of each separate calendar quarter or portion thereof, during the
period from the Respondent's discriminatory action to the date of a proper offer
of reinstatement. The quarterly periods, hereinafter called quarters, shall begin
with the first day of January, April, July, and October. Loss of pay shall be
determined by deducting from a sum equal to that which this employee normally
would have earned for each quarter or portion thereof, his net earnings' if in ,
any other employment during the period. Earnings in one particular quarter shall
have no effect upon the back-pay liability of any other quarter. It is also
recommended that the Respondent be ordered to make available to the Board,
upon request, payroll and other records to facilitate checking the amount of
back pay due 2°
It has been found that the Respondent has interfered with, restrained, and
coerced its employees by (1) interrogating its employees as to the progress of
11 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
is F W Woolworth Co, 90 NLRB 239.
19 Crossett Lumber Company , 8 NLRB 440 ; Republic Steel Corporation v N. L R B.,
311 U. S. 7.
20 F. W. Woolworth Co., supra.
GENERAL SHOE. CORPORATION 499
the Union's organizational campaign and applicants for employment as to their
union affiliation; (2) practicing surveillance upon the union meeting attended by
its employees ; and (3) threatening to close its plant if its employees affiliated
with or supported the Union. It will, therefore, be recommended that the
Respondent cease and desist from such activities and take certain affirmative
action designed to effectuate the policies of the Act.
The Respondent's infractions of the Act, herein found, disclose a fixed purpose
to defeat self-organization and its objectives. Because of the Respondent's un-
lawful conduct and its underlying purposes, I am persuaded that the unfair
labor practices found are related to the other unfair labor practices proscribed
by the Act and that the danger of their commission in the future is to be
anticipated from the course of the Respondent's conduct in the past. The pre-
ventive purpose of the Act will be thwarted unless the remedial order is coex-
tensive with the threat. In order, therefore, to make effective the interdependent
guarantees of Section 7, to prevent a recurrence of unfair labor practices, and
to minimize strife which burdens and obstructs commerce, and thus to effectuate
the policies of the Act, it will be recommended that the Respondent be ordered
to cease and desist from infringing in any manner upon the rights guaranteed
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. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL,
is a labor organization within the meaning of Section 2 (5) of the Act
2 By discriminating in regard to the hire and tenure of employment of Charles
P. Herd, thereby discouraging membership in the Union, the Respondent engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(3) of the Act.
3. By interfering with, restraining, and coercing its employees in the ex-
ercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent's unfair labor practices interfered with the free choice
of the employees' bargaining representative in the election conducted on De-
cember 6, 1950.
[Recommended Order omitted from publication in this volume.]
GENERAL SHOE CORPORATION (MARMAN BAG PLANT) and INTER-
NATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE NO. 155,
PETITIONER. Case No. 10-RC-1000. December 12, 1951
Supplemental Decision and Order
On November 28, 1950, pursuant to the Decision and Direction of
Election 1 issued by the Board herein on November 6, 1950, an election
' Not published in printed volumes of Board decisions.
97 NLRB No. 71.