Marshall Durbin Poultry Co.

National Labor Relations Board - Board Decisions

Jan 11, 1993

310 N.L.R.B. 68 (N.L.R.B. 1993)

68
310 NLRB No. 14
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent and the General Counsel have each excepted
to some of the judge’s credibility findings. The Board’s established
policy is not to overrule an administrative law judge’s credibility
resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Prod-
ucts, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing
the findings.
We grant the General Counsel’s unopposed motion to correct the
transcript of the hearing.
The Respondent mentions that a number of unfair labor practices
the judge found were not included in the complaint—specifically,
that employee Temple received a warning on April 30, that em-
ployee Chisholm received a writeup on May 7, and that employees
McGilvery and Hayes received warnings on June 18; and that all
these actions were taken for discriminatory reasons. We find that
these violations were closely related to complaint allegations and
were fully litigated. See Baytown Sun, 255 NLRB 154 fn. 1 (1981).
We find no merit in the General Counsel’s exception to the
judge’s failure to find that the Respondent violated Sec. 8(a)(1)
when Supervisor Billy Johnson told employee Ollie Wilson that he
knew that she had attended a union meeting and that she better know
what she was doing. This statement was not alleged as a violation
in the complaint, and the matter was not fully litigated at the hear-
ing.
In finding that the Respondent unlawfully reduced Cole’s and
Temple’s hours in March 1990, the judge miscalculated the time al-
lotted to employee Bonner who assumed work duties formerly per-
formed by Cole and Temple. The correct amount of time Bonner
spent on these duties was 2 hours and 45 minutes. This error does
not undermine the judge’s conclusion.
2 The judge failed to include in his discussion any reference to the
facts supporting Conclusion of Law 6 that the Respondent violated
Sec. 8(a)(1) when Supervisor Robert Gaines informed employees
that their raises were withheld because of their union activities. Em-
ployee Eloise Phillips testified that employee Ruby Walker asked
Gaines why the Hattiesburg employees had not received a raise
when the other plants had received one. Gaines responded that it was
‘‘thanks to the union you all didn’t get a raise.’’
3 The Respondent also claims that the allegation was untimely and
not closely related to any prior charge allegations. The judge, in an
unpublished ruling, held that the reduction-in-hours allegation ‘‘may
be closely related to the allegations previously pleaded.’’ We find
no merit in the Respondent’s contention. As the Board held in Well-
Bred Loaf, 303 NLRB 1016 fn. 1 (1991), a sufficient nexus between
the charge and the complaint is established when all the allegations
involve ‘‘part of an overall plan to resist organization,’’ citing Nick-
les Bakery of Indiana, 296 NLRB 927, 928 fn. 7 (1989). That is the
case here.
Marshall Durbin Poultry Company and United
Food and Commercial Workers International
Union, AFL–CIO and Billy Johnson. Cases 15–
CA–11268 and 15–CA–11372–2
January 11, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 4, 1992, Administrative Law Judge Law-
rence W. Cullen issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, and a
brief in answer to the General Counsel’s exceptions.
The General Counsel filed exceptions and a supporting
brief, a brief in answer to the Respondent’s exceptions,
and a reply brief to the Respondent’s answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs, and has
decided to affirm the judge’s rulings, findings,1 and
conclusions2 as modified and to adopt the rec-
ommended Order as modified and set forth in full
below.
1. The Respondent excepts to the judge’s finding
that it violated Section 8(a)(3) of the Act by reducing
Hattiesburg employees’ working hours in the spring of
1990.
The Respondent faults the judge’s reasoning on two
principal grounds.3 We find no merit in either one.
The judge credited testimony that agents of the Re-
spondent had revealed the Respondent’s intention to
reduce the number of chickens processed, i.e., ‘‘the
kill,’’ at the Hattiesburg plant in order to ‘‘starve’’ the
employees there and defeat the Union. The General
Counsel introduced documentary evidence summa-
rizing the kill at both the Respondent’s Hattiesburg fa-
cility and its nonunion plant at Jasper, Alabama. This
evidence showed a substantial reduction at Hattiesburg,
but not at Jasper; and the judge cited this discrepancy
in rejecting the Respondent’s claim that any reduction
at Hattiesburg was attributable to a cold wave affecting
chicken breeding areas. The Respondent argues that
the Jasper plant is not comparable because there was
no showing that it received chickens bred in an area
affected by the cold wave. In fact, as the General
Counsel correctly argues, the record reflects that the
breeding ground for the Jasper plant was encompassed
by the same cold wave that supposedly reduced the
number of available chickens for Hattiesburg.
The Respondent also argues that the judge erred by
focusing on the kill rate, when the key statistic in a re-
duction-of-hours case is employee hours worked. The
Respondent maintains that the judge ignored records
that showed that the hours worked ‘‘remained steady
in February 1990,’’ that reduced hours in March were
‘‘negligible,’’ and that reduced hours in April were at-
tributable to two 1-day plant closings. We do not agree
with the Respondent’s assessment of the evidence. The
General Counsel alleged that the statements revealing
an intent to reduce the kill rate were made in February,
and that the effectuation of that intent occurred in
March and April. It is therefore irrelevant whether re-
ductions were shown in February. As for the 1-day
plant closings, those were means of reducing employee
work hours, not evidence against a finding that hours
were reduced. Finally, when we have evidence of an
announced intent to discriminatorily reduce production
69MARSHALL DURBIN POULTRY CO.
4 All subsequent dates are in 1990 unless indicated otherwise.
5 In light of this conclusion, we find it unnecessary to pass on the
General Counsel’s claim that the judge erred in failing to find that
Varner waived the attorney-client privilege by testifying, on direct
examination, about advice he received from the Respondent’s attor-
ney regarding withholding the wage increase from Hattiesburg em-
ployees.
and evidence of such reduced production, we decline
to treat even minor reductions in employee working
hours as merely ‘‘negligible.’’ We leave to compliance
a determination of the precise amount of lost working
time attributable to the reduction in kill.
2. The General Counsel excepts to the judge’s fail-
ure to address a complaint allegation that the Respond-
ent violated Section 8(a)(1) when, in mid-April 1990,4
its supervisor, Bobby Boutwell, told employee Ruth
Powell that he thought they were on short hours be-
cause of the Union. The General Counsel argues that
the record establishes such a violation. We find merit
to this exception. Powell’s testimony regarding this
conversation was uncontradicted. Boutwell’s statement
placing the blame on the Union for a reduction in
working hours is coercive and therefore violated Sec-
tion 8(a)(1). Bay State Ambulance Rental, 280 NLRB
1079, 1084 (1986).
3. The General Counsel excepts to the judge’s find-
ing that the Respondent did not violate the Act by
withholding a wage increase from Hattiesburg employ-
ees until after the Union withdrew its petition for an
election. We find merit to this exception.
In February or March 1990 employees at all the Re-
spondent’s plants except the Hattiesburg facility re-
ceived a wage increase. The Union withdrew its elec-
tion petition on May 3, 1990. Subsequently, Hatties-
burg employees received an increase.
According to the vice president of processing, Scott
Varner, in late 1989 or early 1990 Respondent’s man-
agement discussed giving a wage increase to employ-
ees at all six of its plants, including the Hattiesburg
plant, but later, on the advice of counsel, the Respond-
ent decided to withhold the increase from Hattiesburg
employees because of the Union. In a February 26,
1990 meeting with Hattiesburg employees, Varner stat-
ed that the Respondent could not give them a raise be-
cause of the Union. After the Respondent implemented
the wage increase at other locations, Varner told Su-
pervisor Billy Johnson that he hoped Hattiesburg em-
ployees were ‘‘giving [union activists] Temple and
Cole hell’’ about the loss of the wage increase. In ad-
dition, as noted in footnote 2, supra, Supervisor Gaines
told employees that it was ‘‘thanks to the union you
all didn’t get a raise.’’
It is well established that as a general rule an em-
ployer must grant benefits ‘‘as he would if a union
were not in the picture.’’ Great Atlantic & Pacific Tea
Co., 166 NLRB 27, 29 (1967). Here, the testimony re-
cited above clearly establishes that because of the
union campaign, the Respondent withheld a wage in-
crease from the Hattiesburg employees.
The judge nevertheless found that no violation of the
Act occurred, apparently reasoning that this case fell
within a limited exception the Board has fashioned for
employers whose pattern of granting wage increases
has been haphazard. See H.S.M. Machine Works, 284
NLRB 1482, 1484 (1987). However, in order to fall
within the exception to the general rule, an employer,
among other things, must not seek ‘‘to put the onus for
[delaying the wage increase] on the union.’’ Borman’s,
Inc., 296 NLRB 245, 248 (1989). We find that
Varner’s statement that he hoped employees were
‘‘giving [union activists] hell’’ and Gaines’ statement
that ‘‘thanks to the Union you all did not get a raise’’
show that the Respondent used the wage withholding
as a campaign tactic and sought to place the onus for
the withholding on the Union. Accordingly, we con-
clude, contrary to the judge, that the Respondent’s
withholding of a wage increase from the Hattiesburg
employees violated Section 8(a)(3) and (1) of the Act.5
4. We agree with the judge that the Respondent vio-
lated Section 8(a)(1) by discharging Supervisor Billy
Johnson for refusing to commit unfair labor practices.
For the following reasons, however, we find that John-
son is not entitled to reinstatement and full backpay.
The Respondent claimed that it discharged Johnson
in May 1990 for a specific incident of sexual mis-
conduct at work. The judge found the incident did not
occur. Subsequent to the discharge, Johnson filed a
charge with the Equal Employment Opportunity Com-
mission. In the course of investigating the charge, the
Respondent learned that Johnson had previously en-
gaged in repeated on-the-job sexual misconduct, which
the judge found did occur.
The judge found that Johnson’s course of conduct of
sexual harassment warranted barring his reinstatement.
But, because he found the Respondent tolerated sexual
misconduct by employees and other supervisors, the
judge recommended that Johnson receive backpay until
he obtains substantially equivalent employment else-
where. The judge recommended this unusual remedy in
order to make ‘‘both the Respondent and Johnson . .
. shoulder responsibility for their conduct.’’
In its exceptions, the Respondent contends, inter
alia, that even if the Board upholds the judge’s finding
that Johnson’s discharge was unlawful, the judge erred
as a matter of law in holding that Johnson is entitled
to full backpay. The Respondent also argues that the
judge erred as a matter of fact in finding that the Re-
spondent tolerated similar sexual misconduct. We find
merit in the Respondent’s contentions.
As the Respondent points out, the judge’s finding
that while reinstatement is not warranted, Johnson is
entitled to full backpay is contrary to our decisions in
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 We note that Axelson overruled cases inconsistent with this reme-
dial approach. Hillside Avenue Pharmacy, 265 NLRB 1613 (1982),
cited by the judge, addresses a different issue, i.e., employee mis-
conduct directly precipitated by the employer.
7 The specific backpay period and the consequent amount owed to
Johnson are matters that we leave to the compliance stage of this
proceeding.
John Cuneo, Inc., 298 NLRB 856, 856–857 (1990),
and Axelson, Inc., 285 NLRB 862, 866 (1977). Under
this precedent, if an employer satisfies its burden of
establishing that the discriminatee engaged in unpro-
tected conduct for which the employer would have dis-
charged any employee, reinstatement is not ordered
and backpay is terminated on the date that the em-
ployer first acquired knowledge of the misconduct.6
Applying this precedent, we conclude that the Re-
spondent has satisfied its burden. Since 1989 the Re-
spondent’s upper management has had a policy of not
tolerating sexual misconduct by its supervisors. The
key individuals responsible for administering this pol-
icy are located at the Respondent’s corporate head-
quarters in Birmingham, Alabama. These corporate of-
ficials are Scott Varner, senior vice president, and
Robert Keith, assistant director of human resources.
The record shows that when allegations of sexual
misconduct by supervisors are brought to the attention
of these individuals, they promptly investigate the mat-
ter and take appropriate disciplinary action, including
discharge. Thus, in 1989 when Assistant Director of
Human Resources Keith received information of sexual
harassment allegations against Supervisor John
Hession, Keith went to the Hattiesburg plant to inves-
tigate. When Hession admitted the allegation was true,
Keith terminated him immediately.
We do not adopt the judge’s finding that the Re-
spondent tolerated sexual misconduct by its super-
visors. The incidents relied on by the judge either oc-
curred before 1989 or were not shown to have been
brought to the attention of the individuals listed above.
Because the record shows that these high-level offi-
cials are the effective decisionmakers with respect to
the Respondent’s sexual harassment policy, any dis-
parate treatment analysis must focus on their handling
of misconduct similar to that of Supervisor Johnson.
Here, there is no evidence that the Respondent’s
corporate management tolerated sexual harassment by
supervisors. To the contrary, there is unrebutted evi-
dence that upper management terminated another su-
pervisor for the same type of misconduct. Accordingly,
under Cuneo and Axelson, the proper remedy is a
make-whole order from the time of Johnson’s unlawful
discharge to the time the Respondent learned of the
sexual misconduct that the judge found had occurred.7
AMENDED CONCLUSIONS OF LAW
1. Insert the following as Conclusion of Law 9 and
renumber the remaining paragraphs accordingly.
‘‘9. Respondent violated Section 8(a)(1) of the Act
through its supervisor, Bobby Boutwell, by telling em-
ployee Ruth Powell in April 1990 that they (the em-
ployees) were on such short hours because of the
Union.’’
2. Substitute the following for renumbered Conclu-
sion of Law 11.
‘‘11. Respondent violated Section 8(a)(3) and (1) of
the Act in February 1990 by delaying the grant of a
wage increase to Hattiesburg employees because of
their support for the Union.’’
ORDER
The National Labor Relations Board orders that the
Respondent, Marshall Durbin Poultry Company, Hat-
tiesburg, Mississippi, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Interrogating its employees concerning their
union activities and those of their fellow employees.
(b) Threatening its employees with the futility of
their support for the Union, plant closure, discharge,
and loss of wages and benefits, because of their sup-
port for the Union.
(c) Threatening its employees with following up on
their work and planting company property on them in
order to discharge them.
(d) Soliciting its employees to abandon their support
for the Union with the promise that they would get
back in the good graces of their Employer, in reference
to animus toward them by the Employer because of
their past support of the Union and/or testimony given
on behalf of the Union at a National Labor Relations
Board representation hearing.
(e) Threatening its employees with discharge and
with calling the sheriff if they remain on the premises
after their working hours in order to discourage their
support of the Union.
(f) Issuing disciplinary warnings to its employees
because of their support of the Union and/or because
of their giving testimony on behalf of the Union at the
National Labor Relations Board representation hearing.
(g) Telling its employees that they were working
shorter hours because of the Union.
(h) Transferring its employees to more onerous work
and harassing its employees because of their support of
the Union and/or because of their giving testimony on
behalf of the Union at a National Labor Relations
Board representation hearing.
(i) Reducing the work hours of its employees be-
cause of their support of the Union and/or because of
their giving testimony at a National Labor Relations
Board representation hearing.
(j) Discharging its employees because of their sup-
port of the Union and/or because of their giving testi-
71MARSHALL DURBIN POULTRY CO.
8 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
mony on behalf of the Union at a National Labor Rela-
tions Board representation hearing.
(k) Engaging in disparate treatment of its employees
who support the Union by permitting the wearing of
antiunion insignia while prohibiting the wearing of
prounion insignia and by threatening its employees
with adverse consequences if they continue to wear
prounion insignia.
(l) Barring prounion employees from the breakroom
and nonwork areas of the plant and from the parking
lot after the conclusion of their work hours while per-
mitting other employees to remain in these areas after
the conclusion of their work hours.
(m) Discharging its supervisors because of their re-
fusal to commit unfair labor practices.
(n) Delaying the grant of a wage increase to its em-
ployees because of their support of the Union.
(o) Threatening its supervisors and/or employees
with discharge in order to restrain them from testifying
before the National Labor Relations Board.
(p) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the unlawful warnings issued to its em-
ployees Barney Chisholm, Myrtle Temple, Rebecca
Cole, Patricia Walker, Charlene Ann Jones, Gussie
McGilvery, and Cecilia Hayes.
(b) Rescind its unlawful discharges of its employees
Charlene Ann Jones and Ruth Powell and its unlawful
transfer and reduction of hours of its employee Ruth
Powell and offer them full reinstatement to their
former positions (the net room position in the case of
Ruth Powell), or to substantially equivalent positions if
their former positions no longer exist and make them
whole for all loss of wages and benefits with interest
as set out in the ‘‘Remedy’’ section of the administra-
tive law judge’s decision, and restore all rights and
privileges including seniority to them.
(c) Make whole Billy Johnson for his lost earnings
and benefits from the date of his discharge until the
date on which the Respondent first learned of his prior
misconduct constituting a lawful basis for discharge,
with interest thereon to be computed in the manner set
forth in the ‘‘Remedy’’ section of the administrative
law judge’s decision.
(d) Make whole its employees for all loss of earn-
ings and benefits, with interest thereon as computed in
the ‘‘Remedy’’ section of the administrative law
judge’s decision, as a result of the delay in giving the
Hattiesburg employees a wage increase.
(e) Remove from its files any reference to the un-
lawful actions taken against its employees Barney
Chisholm, Myrtle Temple, Rebecca Cole, Patricia
Walker, Charlene Jones, Ruth Powell, Gussie
McGilvery, and Cecilia Hayes, and its former Super-
visor William (Billy) Johnson and inform them in writ-
ing that this has been done and that these unlawful acts
will not be used against them in any manner.
(f) Make whole employees Myrtle Temple and Re-
becca Cole for all loss of wages and benefits sustained
by them with interest as described in the ‘‘Remedy’’
section of the judge’s decision as a result of the unlaw-
ful reduction in their work hours.
(g) Make whole its employees at the Hattiesburg
plant for all loss of earnings and benefits with interest
as described in the ‘‘Remedy’’ section of the judge’s
decision as a result of the unlawful reduction in their
work hours.
(h) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(i) Post at its facility in Hattiesburg, Mississippi,
copies of the attached notice marked ‘‘Appendix.’’8
Copies of the notice, on forms provided by the Re-
gional Director for Region 15, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to members
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(j) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate our employees concerning
their union activities and sympathies and those of their
fellow employees.
WE WILL NOT threaten our employees with plant
closure, discharge, loss of wages or benefits, with-
holding pay raises, calling in the sheriff, and the futil-
ity of their support of the Union.
WE WILL NOT threaten employees with following up
on their work and planting company property on them
in order to discharge them.
WE WILL NOT tell our employees that they are work-
ing shorter hours because of the Union.
WE WILL NOT delay giving our employees a wage
increase because of their support for the Union.
WE WILL NOT issue disciplinary warnings to, dis-
charge, transfer to more onerous positions, harass or
reduce the work hours of our employees, in our plant
and adjacent premises because of their support of the
Union and/or because of their giving testimony on be-
half of the Union at a representation hearing conducted
before the National Labor Relations Board.
WE WILL NOT engage in disparate treatment of our
employees by prohibiting them from wearing prounion
insignia while permitting other employees to wear
antiunion insignia, by threatening employees with ad-
verse consequences if they continue to wear antiunion
insignia, and by barring prounion employees from the
breakroom and nonwork areas of the plant and from
the parking lot after the conclusion of their work hours
while permitting other employees to remain in these
areas after the conclusion of their work hours.
WE WILL NOT solicit our employees to abandon their
support of the Union by promising that they will get
back in the good graces of the Employer if they do so.
WE WILL NOT discharge our supervisors because of
their refusal to commit unfair labor practices.
WE WILL NOT threaten our supervisors and/or em-
ployees with discharge in order to restrain them from
testifying before the National Labor Relations Board.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind our warnings issued to our em-
ployees Barney Chisholm, Myrtle Temple, Rebecca
Cole, Patricia Walker, Charlene Ann Jones, Gussie
McGilvery, and Cecilia Hayes.
WE WILL rescind our reduction of work hours, and
transfer of our employees Ruth Powell to more oner-
ous work and our discharge of our employees Ruth
Powell and Charlene Ann Jones and will offer them
full reinstatement to their former positions (the net
room position in the case of Ruth Powell) or to sub-
stantially equivalent positions if their former positions
no longer exist and will make them whole for all loss
of wages and benefits sustained by them as a result of
our unlawful actions taken against them, with interest,
and will restore to them all rights and privileges pre-
viously enjoyed by them.
WE WILL rescind our reduction of the work hours of
our employees Rebecca Cole and Myrtle Temple in
March 1990 and thereafter and of our employees at the
Hattiesburg, Mississippi plant in the spring of 1990
and will make them whole for all loss of earnings and
benefits sustained by them as a result thereof, with in-
terest.
WE WILL make Billy Johnson whole for any loss of
earnings and benefits sustained by him as a result of
his discharge, with interest, from the date of his dis-
charge until the date on which we learned he had en-
gaged in prior misconduct.
WE WILL make our employees whole for any loss of
earnings and benefits, with interest, because we de-
layed giving them a wage increase.
WE WILL remove from our files any reference to the
transfer of Ruth Powell, warnings issued to Barney
Chisholm, Myrtle Temple, Rebecca Cole, Patricia
Walker, Charlene Jones, Gussie McGilvery, and
Cecilia Hayes, to the discharges of Ruth Powell,
Charlene Jones, and William (Billy) Johnson and will
inform them in writing that this has been done and that
the transfer, warnings and discharges will not be used
against them in any manner, because of their support
of the Union and or because of their giving testimony
in a proceeding before the National Labor Relations
Board or their engagement in other protected concerted
activities or because of their refusal to commit unfair
labor practices.
MARSHALL DURBIN POULTRY COMPANY
David A. Nixon, Esq., for the General Counsel.
Sid Lewis, Esq., and Elmer E. White III, Esq. (Kullman,
Inman, Downing & Bonte), for the Respondent.
Hubert Coker, of Fulton, Mississippi, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me on 7 separate days between Janu-
ary 14 and April 25, 1991, at Hattiesburg, Mississippi, pursu-
ant to an amended consolidated complaint issued by the Re-
gional Director of Region 15 of the National Labor Relations
Board (the Board) on December 28, 1990, as subsequently
amended and a further comprehensive consolidation of com-
plaint allegations filed by counsel for the General Counsel on
April 4, 1991, and is based on various charges and amended
charges filed by the United Food and Commercial Workers
International Union, AFL–CIO (the Union or the Charging
Party) and on a charge in Case 15–CA–11372–2 filed by
73MARSHALL DURBIN POULTRY CO.
1 R. Exh. 57 is received and made a part of the record.
The General Counsel’s and Respondent’s motions to correct their
briefs and the General Counsel’s motion to substitute new pages
125, 126, and 127 for original pages in its brief are granted.
The General Counsel’s motion to strike portions of Respondent’s
brief is denied.
Billy Johnson, an individual, on October 9, 1990. The origi-
nal charge in Case 15–CA–11268 was filed by the Union on
June 25, 1990, with an amended charge filed by the Union
on December 26, 1990, a second amended charge filed by
the Union on January 11, 1991, a third amended charge filed
by the Union on January 23, 1991, a fourth amended charge
filed by the Union on January 31, 1991, and a fifth amended
charge filed by the Union on February 6, 1991. The amended
consolidated complaint alleges that Respondent Marshall
Durbin Poultry Company (the Respondent) committed var-
ious violations of Section 8(a)(1), (3), and (4) of the National
Labor Relations Act (the Act). The complaint is joined by
the answer of Respondent in which it denies the commission
of any violations of the Act.
On the entire record in this proceeding, including my ob-
servation of the witnesses who testified and after due consid-
eration of the positions of the parties and briefs filed by the
parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, Respondent admits, and I find that
at all times material Respondent has been a Delaware cor-
poration, with an office and place of business in Hattiesburg,
Mississippi, where it has been engaged in the processing and
nonretail sale of poultry products, that during the 12-month
period ending July 31, 1990, Respondent, in the course and
conduct of its business operations, purchased and received at
its facility in Hattiesburg, Mississippi, products, goods, and
materials valued in excess of $50,000 directly from points
outside the State of Mississippi and is now and has been at
all times material an employer engaged in commerce within
the meaning of Section (2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that
the Union is now, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the Act.1
III. THE ALLEGED UNFAIR LABOR PRACTICES
In early 1989 the Union commenced an organizational
campaign among Respondent’s employees at its Hattiesburg,
Mississippi facility. The violations of the Act are alleged to
have taken place since January or early February 1990 and
up until the time of the most recent complaint allegations.
During this period Respondent is alleged to have committed
various violations of Section 8(a)(1), (3), and (4) of the Act.
The General Counsel alleges in its comprehensive consoli-
dated complaint, Respondent admits and I find that at all
times material the following individuals were supervisors of
Respondent within the meaning of Section 2(11) of the Act:
President Marshall Durbin, Plant Manager Malcolm McDon-
ald, Senior Vice President Scott Varner, Vice President
Fincher Allen, Assistant Director Human Resources Robert
Neil Keith, Personnel Manager Mel Dupre, Assistant Per-
sonnel Manager Cathy Obery, Sales Manager Levon
Williamson, Assistant Sales Manager Allen Wilburn, Sales
Secretary Susan White, Supervisors Jim Sanders, James
Gurlach, and Otha Hinton, Head Foreman Ken Chandler
Raymond Fleming, Foremen Billy Johnson, Wayne Stewart,
Bill Helton, Ora Mae Marshall, Robert Boutwell, Junior
Madison, Robert Gaines, Tim Thorne, Al Bessie, Al Mason,
Scott Seabrook, Billy Ray Barnes, and Chuck Halbrook.
In March 1989 several of the Respondent’s employees
(Myrtle Temple, Rebecca Cole, Ollie Wilson, Ruth Powell,
and Cynthia Bonner) met with a union representative at an
old fishing camp to discuss organizing a union among Re-
spondent’s employees at Respondent’s Hattiesburg, Mis-
sissippi chicken processing plant. Subsequently, the Union
filed a petition for an election and a hearing was held on
February 22, 1990, at which employees Myrtle Temple, Re-
becca Cole, Charlene Ann Jones, Ruth Powell, and Patricia
Walker appeared and testified on behalf of the Union. An
election was ordered to be held on May 3, 1990. However,
prior to the election, the Union withdrew its petition and the
election was canceled. The complaint alleges numerous vio-
lations of the Act by the Respondent including interrogation,
threats, solicitation of employees to vote against the Union,
disciplinary warnings, assignment to more onerous work, dis-
charges, a constructive discharge, reduction of working hours
and overtime, and withholding of wage increases. The Gen-
eral Counsel contends that since Respondent became aware
of the union campaign and the supporters of the Union
among its employees it undertook an unlawful campaign to
defeat the Union in the upcoming election, which encom-
passed the various complaint allegations and which targeted
and carried out unlawful retaliatory actions against those em-
ployees who had been identified as union supporters and had
testified on the Union’s behalf at the representation hearing
and also included the discharge of its supervisor, William
(Billy) Johnson, for his refusal to commit unfair labor prac-
tices. The Respondent denies all violations of the Act and
contends that each of the various actions taken by it were
taken for sound business reasons and were not motivated by
any unlawful motive proscribed by the Act.
Interrogation and Threat of Ruth Powell by Plant
Manager Malcolm McDonald
Ruth Powell testified that in January or February 1990,
Plant Manager Malcolm McDonald talked to her in the net
room. McDonald said they had always been friends and
asked if she could tell him about the union talk going on in
the plant. She told him she was sorry but she could not give
him any information on that. He had his opinion, she had
one, and the employees on the line had one and that she
couldn’t help him. She testified further that 2 days later
McDonald told her that he thought they had a good company
and asked whether she remembered when he had been gone
from the plant for 17 weeks. She said she did and he said
he was in another one of the Company’s plants and they had
a union there and that union had left the plant running and
if one came in the Hattiesburg plant, it would leave here run-
ning. McDonald testified he did not recall a conversation
with Powell in January 1990 in which he inquired about
union talk in the plant. He testified he talked with Powell but
did not ask questions or make inquiries of her. He just let
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
her know the Company did not feel the Union was in the
best interest of the employees and that she did not agree or
disagree.
I credit the specific testimony of Powell over that of
McDonald and I find that McDonald’s questioning of Powell
concerning the Union constituted unlawful interrogation and
that his comment to her that the Union would leave the plant
running as had another union at another plant was a threat
of the futility of the employees’ support of the Union. I find
that both the interrogation and threat were violative of Sec-
tion 8(a)(1) of the Act.
Interrogation and Threat of Rebecca Cole by McDonald
Rebecca Cole, a scale operator, testified that on September
10, 1989, McDonald told her there were rumors of a union
trying to come in. She replied there were rumors of one kind
or another up and down the plant. He then asked if she knew
anything about the rumor and she replied nothing than what
she had heard about the rumor. He then said she had better
be careful and that if she got mixed up in the union, she
might be fired.
Cole testified further that on February 19, 1990, McDon-
ald called her into his office and said he wanted to talk to
her about the Union, how bad it would be for the employees
and the Company, and that if the Union came in the parties
would have to go to the bargaining table and the Company
would not have to agree to anything and if the employees
went on strike, they would not get a paycheck, their insur-
ance would be no good and they could not get food stamps.
He asked if she had received any promises or guarantees and
she replied she had not. Cole testified further that on Feb-
ruary 28, 1990, McDonald told her in his office that she had
better be careful about this union stuff or she would lose her
job. She could be fired.
McDonald testified he had a conversation with Cole on
September 10, 1989, and he told her the Company did not
want a union and she listened but did not have much re-
sponse. McDonald testified he had a conversation with Cole
in his office on February 19, 1990, as he had received re-
ports that Cole was soliciting authorization cards for the
Union while she was on the job working. He called her into
the office and told her of these reports and does not recall
if she admitted it or not. He told her she could get in trouble
doing this while she was working. She said, ‘‘From this day
on you won’t hear any more about it,’’ and he has not. He
denied at any time in 1989 or 1990 ever telling Cole that
Durbin would not agree to any union proposals. He has
never threatened Cole or anyone else associated with the
Union. He does not recall a third conversation with Cole on
or about February 28, 1990.
I credit the specific testimony of Cole as set out above
over that of McDonald. While the September 1989 interroga-
tion and threat were time barred insofar as a finding of a vio-
lation, they constitute evidence of Respondent’s animus to
the Union and its supporters. I find the interrogation of Cole
and threat of futility of the employees support of the Union
on February 19, 1990, and the threat of February 28, 1990,
that Cole could lose her job because of her support of the
Union were violative of Section 8(a)(1) of the Act.
Johnson’s Conversations with Cole and Temple in
February and May 1990
Cole testified that in late April or early May her super-
visor, William (Billy) Johnson, told her McDonald had sent
him to the cooler to check boxes of chickens weighed by her
and Temple to find fault with their work as a way to get rid
of them. Cole testified that on another occasion in April
Johnson told her that Personnel Manager Mel Dupre had
asked him to plant something on her and Temple so that
when they left the plant, the guard would stop them and they
could be discharged for stealing. She also testified that in
early May Johnson told her that McDonald had told him to
make a list of names of employees wearing union buttons
and to turn it in and that McDonald wanted him to harass
them.
Temple testified that in late February Johnson came to her
work station and told her to be careful as McDonald had sent
him to the cooler to go behind her and Cole’s work and try
to find fault with their weighing so that Respondent could
write them up so they could be discharged. He told her
‘‘You and Becky [Cole] watch your ass.’’ On April 20 John-
son told her to be careful as Dupre had called him into his
office and wanted him to plant something on her and Cole
so the guard could find it when they left the plant so they
could be discharged. She thanked Johnson and told him she
would be careful. On May 3 Johnson told her McDonald had
called him into his office and told him to see how many em-
ployees on his line were wearing union buttons and to take
down their names and turn them into the office as they (man-
agement) were going to find a way to ‘‘get rid of their damn
asses.’’ She told Johnson the prounion employees had a right
to wear the ‘‘workers helping workers’’ buttons if the
antiunion employees could wear ‘‘Hell No’’ buttons. She tes-
tified that the antiunion buttons had been worn for 2 months
whereas she wore her union button only 2 weeks.
Johnson testified that in early March 1990 McDonald told
him to go out in the plant and harass Cole and Temple and
check their scales and boxes and do anything to find some-
thing wrong in order to give them a reprimand and to dis-
charge them if he found enough. Johnson checked three
boxes of chicken off Cole and Temple’s lines but found
nothing wrong and wrote this on a piece of paper and gave
it to McDonald. Johnson testified that on April 20 Dupre
waved him into his office and told him, ‘‘We need to plant
something on Becky [Cole] and Merle [Temple] so we can
call the guard and have him check them so we can fire them
for stealing.’’ He told Dupre he could not do that so he
would have to find someone else and he left the office. John-
son also testified to a conversation with McDonald in mid-
April when he had gone to McDonald’s office for a social
visit. He asked McDonald what would happen to Temple and
Cole and all the other prounion employees ‘‘after this union
mess was over.’’ McDonald leaned back in his chair and said
‘‘the company had built these peoples’ houses, bought them
cars, fed their children and bought their clothes and that the
company was going to get rid of every one of them.’’
McDonald further said the Company had to be careful how
they did it and that they wanted to move Temple and Cole
off their scales but Hank (the Company’s attorney) said they
had to wait until he gave them the word. Johnson also testi-
fied that on May 3 about 8:30 a.m. in McDonald’s office,
McDonald told him that Varner had said a number of em-
75MARSHALL DURBIN POULTRY CO.
ployees on his line were wearing union buttons. McDonald
said he thought about six employees were wearing them and
told Johnson to go out on his line and write their names
down and bring the list back to him because ‘‘he wanted to
know who the son of bitches were.’’ He then went to Tem-
ple, Cole, and McGilvery and wrote their names down on a
list and explained what McDonald wanted. He wrote down
the names of those who refused to take the buttons off. He
did not write down the names of those who took the buttons
off. He then took the list into McDonald’s office and laid it
on his desk as McDonald was on the telephone. McDonald
denied having made any of the above statements to Johnson
as did Dupre. Both McDonald and Varner testified they had
been ordered by the United States Department of Agriculture
to remove the buttons and that all buttons were ordered by
Respondent to be removed regardless of whether pro or
antiunion. McDonald acknowledged a conversation with
Johnson in which McDonald placed in late 1989 or early
1990 concerning Johnson checking the weights of chickens
weighed by Cole and Temple in which he told Johnson to
check the weights and testified Johnson did so and reported
back that everything was okay. McDonald contended that
such checking is routine. McDonald denied having any hit
list of any employees Respondent wanted to discharge be-
cause of union activities. He discussed the Union with John-
son many times but does not recall any specific conversa-
tions.
I credit the specific and detailed testimony of Temple,
Cole, and Johnson as set out above. I find that their testi-
mony was mutually corroborative and consistent throughout,
with the exception of the date placed by Cole of the threat
by Johnson, I find that this threat actually occurred in Feb-
ruary or March 1990. Although it is clear that Johnson’s
statements in each instance were intended to warn and pro-
tect Cole and Temple they were nonetheless violative of Sec-
tion 8(a)(1) of the Act. I thus find that by the threats issued
by Johnson to Cole and Temple in February or March 1990
that McDonald had told him to check their work in order to
find a reason to fire them, by the threats issued by Johnson
to Cole and Temple in April 1990 that Dupre had told him
to plant company property on Temple and Cole in order to
fire them, by the threat issued by Johnson to Cole and Tem-
ple in May 1990 concerning McDonald’s order to take down
the names of employees wearing prounion buttons and turn
them into McDonald, Respondent violated Section 8(a)(1) of
the Act. I further find that by the disparate treatment ac-
corded employees who wore prounion buttons while toler-
ating the wearing of antiunion buttons, Respondent violated
Section 8(a)(3) and (1) of the Act. In this regard, I do not
credit the testimony of McDonald and Varner that the wear-
ing of buttons was discontinued solely because of the orders
of the United States Department of Agriculture.
Systematic Interrogation of Employees
Johnson and former Supervisors James Gurlach and Robert
Boutwell testified that in March 1990 Senior Vice President
Scott Varner, Assistant Director of Human Resources Neil
Keith, and Vice President Fincher Allen met with Respond-
ent’s supervisors and instructed them to interrogate the em-
ployees under their supervision concerning their union sym-
pathies and to write their responses in spiral notebooks sup-
plied by Respondent. All three supervisors did so and re-
ported the responses back to Respondent in individual meet-
ings with Varner, Keith, and Allen, and Varner used a com-
puter printout sheet with the employees’ names thereon and
assigned them ratings based on their pro or antiunion sym-
pathies. Johnson produced at the hearing his original note-
book with the entries on which he had spilled ink and from
which he had copied the notations to a new notebook which
he turned in to Respondent’s management. Varner denied
having ordered supervisors to interrogate the employees.
Keith, who testified on other matters, was not questioned
concerning this allegation and Allen, although present at the
hearing, was not called to testify.
I find that Respondent through its agents, Varner, Keith,
and Allen, did direct its supervisors to interrogate the em-
ployees under their immediate supervision concerning their
union sympathies and report the information obtained back to
them and that Supervisors Johnson, Gurlach, and Boutwell
did so. Initially I credit the testimony of Johnson, Gurlach,
and Boutwell whose testimony I found to be specific, forth-
right, and mutually corroborative. It should also be noted that
I found Boutwell’s testimony to be particularly impressive.
Here was a supervisor who had only the day prior to testi-
fying resigned his job with Respondent to accept another po-
sition and who was as noted by the General Counsel in his
brief, reluctant to testify and who took great pains in his tes-
timony not to cast any unfair light on the Respondent’s ef-
forts to suppress the union campaign but who nonetheless
testified in a most candid manner. Boutwell testified with
specificity about the orders he received to interrogate his em-
ployees and to report back their sympathies to Respondent’s
management. His testimony as well as that of Gurlach (who
concededly was discharged as a supervisor) was convincingly
corroborative of Johnson’s testimony concerning the system-
atic interrogation of Respondent’s employees. I do not credit
Varner’s denial and find as asserted by the General Counsel
that Respondent’s failure to question Keith or to call Allen
to the stand concerning this matter supports the inference
that they would not have corroborated Varner’s denial there-
of. I thus conclude that the Respondent violated Section
8(a)(1) of the Act by its systematic interrogation of its em-
ployees in March 1990 concerning their union sympathies.
Alleged Threats by Varner at Meetings with Employees
Rebecca Cole testified she attended a meeting held by Re-
spondent with its employees in second processing at which
Vice President Scott Varner spoke and said that if the Union
came in the parties would have to go to the bargaining table
and the Respondent would not have to agree to anything and
if the employees went on a strike, they would not receive
their pay or food stamps or unemployment. He also told the
employees that although they were due for a raise, they
would not get one because of the Union and that at the bar-
gaining table, they would lose their vacation and holidays.
Myrtle Temple testified she attended a February 26, 1990
meeting of all packing (second processing) employees with
Vice President Varner who told the employees Respondent
could not give them a raise because of the Union. Varner
also said that if the Union came in the plant would close.
He also said Marshall Durbin (the owner) would have the
last say or bottom line and that the Respondent could not
give the employees a better insurance policy because of the
Union. Varner also said he would not have a third party (the
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union) in his plant. Varner also said that if the employees
went on strike, they could not draw unemployment or get
food stamps and would not have any insurance. He also told
them if the Union came in, they would start from scratch and
could go back to $3.35 an hour (minimum wage) and that
they would lose their vacation and holiday pay.
Eloise Phillips, a 20-year employee who works in the
packing department, testified she attended a meeting held by
Varner in March 1990 with the employees. Varner told the
employees that if the Union came in, they would be taking
the employees’ money for dues and all the employees’ bene-
fits would be taken back and they would start from scratch.
She further testified that Varner said that if the employees
went on the picket line, they could be replaced and could not
be sure they would get their jobs back and that before Re-
spondent would let a third party came in, they would close
the plant down.
Varner testified he read from a script prepared by Re-
spondent’s counsel and did not deviate from it and denied
making any threats of loss of pay, raises or benefits, plant
closings, or futility of support for the Union or discharge.
Charlene Jones testified that on April 13, 1990, she at-
tended a meeting held by Vice President Scott Varner with
the employees on the frontlines, the picking line, the
backline, and the rehang area. Varner told the employees the
Union was trying to come in and if it did, the employees
would have to start from a blank piece of paper and could
not get a raise. The parties would be deadlocked and the em-
ployees would not have any benefits. Varner testified he read
from a text submitted as evidence at this hearing.
I credit the foregoing testimony of Cole, Temple, Jones,
and Phillips and find that Varner threatened the employees
with futility of their support for the Union, loss of benefits,
loss of pay raises and plant closure if they continued to sup-
port the Union and that Respondent violated Section 8(a)(1)
of the Act thereby.
Solicitation by Johnson of Employees to Abandon
the Union
Johnson testified that on March 1, 1990, employee Ollie
Wilson who was supervised by him in the box room (where
boxes are made) came to him and told him she had heard
Respondent’s management had a hit list and that he replied
he did not know that this was true. Wilson went on to say
she wanted to withdraw her support of the Union. She had
signed the petition for the Union. Johnson testified he talked
to Plant Manager Malcolm McDonald who checked with
Vice President Scott Varner and then told Johnson to tell
Wilson and other employees who she had indicated also
wanted to withdraw their support of the Union, to write a let-
ter to the Union stating they did not understand what they
were signing and that they wanted to withdraw their support
for the Union and to send the letter registered mail return re-
ceipt requested. Johnson instructed the employees to give
him the receipt which he would give to McDonald so the
employees could get back in Respondent’s good graces. On
one occasion in March Varner asked him how things were
going in this regard and Johnson replied ‘‘great’’ and told
him he had several letters. He then asked Varner what good
it would do to have the employees sign the letters. Varner
replied he just wanted to know who the ‘‘sons of bitches’’
were and that he wanted to use Johnson’s department which
was the largest in the plant as a sample of employee opinion.
McDonald acknowledged having received copies of re-
ceipts from Johnson concerning the matter but denied giving
Johnson any instructions in this regard. Varner testified that
on or about March 1, 1990, he had questions from super-
visors and employees about what the employees should do
to remove their names from anything they had signed and
‘‘we’’ told them to contact the Union. In response to ques-
tions as to how the employees would know their names were
removed, ‘‘We’’ told them to get ‘‘signed postage.’’ He ac-
knowledged a conversation with Johnson in March con-
cerning this wherein he told Johnson the employees would
have to request from the Union that their names be removed.
He denied telling Johnson to tell the employees to obtain a
postal receipt which would be placed in their personnel files.
I credit the testimony of Johnson over that of McDonald
and Varner and find that although Wilson approached John-
son initially, he went further than merely giving her informa-
tion. On Varner’s orders as conveyed by McDonald, he told
the employees to obtain receipts of their mailing of letters to
the Union withdrawing their support in order to get back in
Respondent’s good graces. This constituted solicitation of the
employees abandonment of the Union with an implied prom-
ise of job security if they do so or otherwise stated a reprieve
from adverse consequences or unspecified reprisals that
might flow from not being in Respondent’s good graces and
was violative of Section 8(a)(1) of the Act.
March 15, 1990 Solicitation by Supervisor Johnson
Rebecca Cole testified that on March 15, 1990, her super-
visor, William (Billy) Johnson, said he would be glad when
all of this union stuff is over. She said she would also. He
said that if the employees went on strike it would be hard
on the single parent family. She told him it would hurt her
also. He told her if Myrtle Temple and she would go to the
office and apologize to McDonald and tell him they were
taking their names off (the petition) or forgetting about it,
they would probably save their jobs. Cole’s testimony was
unrebutted as Johnson was not questioned concerning this
conversation.
I credit Cole’s unrebutted testimony and find that the invi-
tation to Cole that she and Temple seek out McDonald and
tell him they were abandoning the Union as a way to save
their jobs was a threat of discharge if they continued to sup-
port the Union, however, well intentioned it may have been
on Johnson’s part. I find that Respondent violated Section
8(a)(1) of the Act.
The Reduction of Hours for Rebecca Cole and
Myrtle Temple
In the fall of 1989 then-Foreman Scott Seabrook was
brought in from another plant to review the costs of Re-
spondent’s second processing operation which had been in-
creasing. He implemented several changes one of which was
to decrease the amount of time for each of the scalers (in-
cluding Cole and Temple) prior to the start of the processing
lines and after the shutdown of the lines. Formerly, the scal-
ers, who weigh the chickens, had been allotted more working
time prior to the start of the line and after the shutdown of
the line each day to set up and test the scales and to write
77MARSHALL DURBIN POULTRY CO.
and date cards which were filled in with the weight as they
were weighed during the processing of chickens on the line.
As the scalers were one of the last steps on the line they also
had time after the startup of the line each day before the first
chicken came to them to fill out the cards. Additionally there
were also slack periods and downtimes of the lines when no
chickens were being processed. Cole worked on the whole
bird line which was concededly not as busy as the other lines
as there were not as many whole birds processed as cutup
chickens processed on the other lines including the line on
which Temple worked. Cole conceded there was downtime
or slack periods and testified she helped Temple on occa-
sions when there was no work on the whole bird line which
was normally finished for the day substantially before the
cutup lines. When Seabrook ordered a reduction in the off
line time prior to and after the running of the line, this re-
sulted in a loss of paid time for the scalers. Temple and Cole
testified that they worked the reduced time as directed by
Seabrook until shortly after Thanksgiving when he left to go
to another plant when they, on their own initiative, went
back to their old hours. Temple testified her supervisor,
Johnson, was aware of this and raised no objections.
During this period, James Sanders had been hired by the
Respondent as second processing supervisor and was ori-
ented into the system by Seabrook who left to manage an-
other of Respondent’s plants. Sanders testified that when he
initially came to Respondent’s plant he was not familiar with
its system and that as a result of this and his orientation into
the system, he did not initially note Temple’s and Cole’s re-
turn to their original hours after their hours had been cut by
Seabrook. Additionally employee Rosemary Williamson (a
scaler) testified that she and other scalers had complained to
their supervisor, James Daniels, that Cole and Temple were
being allowed to work excessive over the line time while the
other scalers were restricted to the time set by Seabrook. Ac-
cordingly, Sanders testified that in January 1990 he directed
Cole and Temple to work the reduced hours. Apparently
Cole and Temple balked at this contending that they could
not set up and test their scales and do their cards in the allot-
ted times. This apparently prompted a meeting between
Varner, McDonald, and Sanders and Cole and Temple on
March 22 in which according to Cole and Temple, Varner
told them to either accept 5 minutes before the startup of the
line or work solely during the line time and Respondent
would have another employee set up and test the scales and
prepare the cards. Sanders testified Varner offered to let
Temple and Cole start at 6:50 a.m. and work 15 minutes
after the startup of the line and to make cards ‘‘during the
day or take master card time, which is punch in and punch
out with the line, and somebody else make all the labels.’’
Temple and Cole testified they were allotted only 5 minutes
before startup of the line at 7:25 a.m. to prepare the cards.
Cole and Temple contended it would be impossible to pre-
pare the cards in this time and chose not to prepare the cards
and to work only line time. The Respondent then assigned
Cynthia Bonner who had been working as a ‘‘floater’’ as
needed on various jobs, to set up and test the scales from
6:45 to 7:20 a.m. for Cole and Temple, make their cards
from 7:20 to 9 a.m. and date their cards for 30 minutes after
the shutdown of the lines. The records show that Cole and
Temple worked significantly less hours than the other scalers
in the spring of 1990 although 1 week of hours were reduced
as a result of Temple’s vacation time. In June 1990, Temple
was asked by Sanders to go to the vacuum pack line (a new
concept in packing implemented by Respondent which was
then being started up). She agreed and her hours have stead-
ily increased until by the fall of 1990 she was working more
hours than she had in the fall of 1989. Additionally, each of
the lines were moved to a newly constructed section of Re-
spondent’s plant and Cole was moved to a different line with
substantially more hours in the fall of 1990.
Analysis
The General Counsel contends that Cole and Temple were
singled out for disparate treatment because of their support
of the Union and their giving of testimony on behalf of the
Union at the representation hearing in February 1990. With
respect to the reduction of Cole’s and Temple’s hours in Jan-
uary by Sanders to revert to those to which they had been
reduced by Seabrook in 1989, I find no violation of the Act
as the evidence as a whole supports a finding that the origi-
nal reduction of their hours by Seabrook applied to all scal-
ers and was motivated by business reasons. Sander’s direc-
tion to them in January to return to the reduced hours or-
dered by Seabrook after they had reverted to their original
hours on their own initiative was no more than a return to
the status quo prior to Cole and Temple ignoring Seabrook’s
orders and reverting to their original hours in contravention
of Seabrook’s reduction of the hours of scalers in the fall of
1989. I find, however, that their testimony of the miniscule
time allotted to them before and after the line time in March
by Varner should be credited. Thus, their choice to no longer
set up and prepare cards was coerced or no choice at all in
view of the significant reduction of time to do so. The Re-
spondent contends that Cole and Temple were given ample
time before to set up and test the scales and do the cards
and had ample slack or lull time on the line during the day
to do the cards and after the line time and that by being
given a choice were accorded favorable treatment in view of
their long tenure as employees. I credit Cole’s and Temple’s
testimony as set out above and find that they were only allot-
ted 5 minutes before the line time to set up and test the
scales and prepare the cards. I note as contended by General
Counsel in his brief that Bonner who was then assigned the
task of setting up and testing the scales and preparing and
dating the cards was allotted 3 hours and 25 minutes to do
so. I conclude that the reduction of Cole’s and Temple’s al-
lowable time to date cards to the minimal amount testified
to by them was no real choice. Accordingly, I conclude that
the General Counsel has established a prima facie case that
Respondent reduced the hours of Cole and Temple in March
1990 in violation of Section 8(a)(3), (4), and (1) of the Act
and that the Respondent has failed to rebut the prima facie
case by the preponderance of the evidence and that Respond-
ent thus violated Section 8(a)(3), (4), and (1) of the Act.
Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982); NLRB v. Transportation Management Corp., 462
U.S. 393 (1983); Roure Bertrand Dupont, Inc., 271 NLRB
443 (1984).
78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The General Reduction in Hours
Johnson and former Supervisor James Gurlach both testi-
fied that in February 1990 they were on the same bowling
team as Assistant Sales Manager Allan Wilburn. Both John-
son and Gurlach testified that Wilburn arrived at the bowling
alley and told them that they would be having some short
days coming up as the Respondent was cutting back on the
number of chickens being processed because of the Union.
Johnson further testified that the following day he questioned
Sales Manager Levon Williamson about the reason for the
reduction of kill (number of chickens to be processed) and
that Williamson replied, ‘‘Why Billy Johnson you know the
reason it is because of the Union is the reason.’’ Levon
Williamson, who was called by the General Counsel is no
longer employed by Respondent but is now a broker in the
poultry industry. He acknowledged that he might have made
the statement attributed to him by Johnson or one similar
thereto and testified that his superior, Sales Manager Jim
Moore had told him the kill was being reduced because of
the ‘‘trouble’’ in Hattiesburg which he (Levon Williamson)
assumed meant ‘‘union trouble.’’
Johnson also testified to a conversation with Plant Man-
ager Malcolm McDonald in mid-April 1990 when McDonald
told him the Respondent was going to ‘‘starve’’ the employ-
ees out to defeat the Union as they had done in a prior union
campaign at another of Respondent’s plants. The Respond-
ent’s records show that there was a substantial reduction in
kill which occurred in the spring of 1990. McDonald and
Varner attributed this reduction to weather and other factors
which reduced the number of chickens available to be proc-
essed by the Respondent, including a cold front that went
through the areas in which the chickens were raised in De-
cember 1989 which did not impact the chickens available
until the spring of 1990 because of the 3-month growth pe-
riod of time required to produce a chicken ready to be proc-
essed. Wilburn denied having made the comments attributed
to him.
Analysis
I credit the testimony of Johnson and Gurlach that Wilburn
made the statement concerning the reason for the reduction
in kill at the bowling alley. I also credit Johnson’s testimony
concerning Williamson’s statement to him about the reason
for the reduction in kill and concerning the statement made
to him by McDonald relating Respondent’s intent to
‘‘starve’’ the employees out to defeat the Union. I also found
Williamson’s testimony to be credible and note that although
Williamson is no longer employed by Respondent he is now
a broker in the poultry industry and he took great pains so
as not be make any unintentional adverse inferences against
Respondent. Although I note that a cold front did go through
the Respondent’s production area in December 1989, this did
not appear to affect production at Respondent’s facility in
nearby Jasper, Alabama, which would also have experienced
the cold front in its production area. I find that the General
Counsel has thus established a prima facie case that the re-
duction in kill and consequent loss of hours by employees
at Respondent’s Hattiesburg plant was caused at least in part
by Respondent’s efforts to deprive its Hattiesburg employees
of work and wages to retaliate for their support of the Union
and demonstrate who controlled their livelihood. I find the
prima facie case has not been rebutted by the Respondent.
I thus find that Respondent violated Section 8(a)(3) and (1)
of the Act by the reduction of working hours of its employ-
ees in the spring of 1990. Wright Line, supra; Transportation
Management Corp., supra; and Roure Bertrand, supra.
The Withholding of a Wage Increase at the
Hattiesburg Facility
The General Counsel called Scott Varner, Respondent’s
vice president of processing. Varner testified that in late
1989 and early 1990 he discussed with other members of
management the conferral of a general wage increase to all
of its plants including the Hattiesburg facility. However, ac-
cording to Varner, on advice of legal counsel that Respond-
ent would violate the Act because of the union activities of
Hattiesburg if it included the Hattiesburg facility in the gen-
eral wage increase, the Respondent withheld the wage in-
crease from the Hattiesburg facility in February and March
1990 when the wage increase was given to the other facili-
ties. Ultimately the wage increase was not given to employ-
ees at the Hattiesburg facility until after the Union withdrew
its petition for an election by an order dated May 3, 1990,
issued by the Regional Director. Former Supervisor William
(Billy) Johnson testified that in March 1990 Varner stated he
hoped the employees gave Myrtle Temple and Rebecca Cole
hell about the loss of the wage increase. Varner testified that
in response to the employees inquiries as to why Hattiesburg
was not getting a raise and Respondent’s other facilities
were, that Respondent posted Respondent’s Exhibit 19 on the
bulletin board which appears to be comments from a legal
publication that unilateral wage increases during organizing
campaigns have been held illegal, citing case citations there-
after.
The General Counsel contends that the withholding of the
wage increase until May or June 1990 shortly after the Union
withdrew its petition for an election was a violation of Sec-
tion 8(a)(3) of the Act relying in part on the comments at-
tributed to Varner by Johnson and citing Gates Rubber Co.,
182 NLRB 95 (1970); and Red’s Express, 268 NLRB 1154,
1158 (1984), for the proposition that ‘‘It is well settled that
the employer’s legal duty is to proceed as he would have
done had the Union not been on the scene.’’ The Respondent
cites Medical Center v. NLRB, 756 F.2d 41 (6th Cir. 1975);
and Ohmite Mfg. Co., 290 NLRB 1036 (1988), in which no
violation was found when employers delayed wage increases
to avoid the appearance of interference with an ongoing elec-
tion campaign. The Respondent relies on the testimony of
Varner that the wage increase was not scheduled, was not
uniformly given each year and was dependent on profitability
and the financial picture of Respondent and was not decided
upon until February or March.
Analysis
I find that the Respondent’s withholding of the wage in-
crease until after the withdrawal of the election petition by
the Union in May 1990 was not violative of Section 8(a)(3)
and (1) of the Act. In the Gates Rubber Co., supra at 95,
cited by the General Counsel, the Board stated, ‘‘there was
a policy that print shop employees, who were unrepresented,
would be granted whatever wage raises were negotiated’’
with the Union. In that case, the employer contended it could
79MARSHALL DURBIN POULTRY CO.
not give the print shop employees the raise because of a
pending representation election and that it was temporarily
withholding the increase from the print shop employees
pending the outcome of the election. The Board, in finding
a violation of the Act stated (id. at 95), ‘‘It is well settled
that the employer’s legal duty is to proceed as he would have
done had the union not been on the scene. Here the Re-
spondent withheld increases which would normally have
been granted but for the presence of the Union and pending
of the election and advised employees that their wage in-
creases were being withheld for this reason.’’ In Red’s Ex-
press, supra at 1155, also cited by the General Counsel in
upholding the results of an election, the Board stated:
It is well established that the granting of a wage in-
crease or other benefits during the critical period pre-
ceding an election is not per se grounds for setting
aside an election. The crucial determinant is whether
the wage increase or other benefits were granted for the
purpose of influencing the employees’ vote in the elec-
tion and were of a type reasonably calculated to have
that effect. As a general rule, an employer’s legal duty
in deciding whether to grant improvements while a rep-
resentation proceeding is pending is to decide that ques-
tion as it would if the union were not on the scene.
In Red’s Express, the Board found that ‘‘undisputed testi-
mony supports the Employer’s contention that it had decided,
prior to the commencement of the union campaign, to restore
the 10-percent wage cut as soon as a monthly operating ratio
of 90 percent was attained.’’ The Board concluded that the
wage increase was not designed to interfere with the election.
In Ohmite Mfg. Co., cited by the Respondent, the adminis-
trative law judge found with Board approval no violation of
the Act when the employer delayed a wage increase to avoid
the appearance of impropriety or unduly influencing a pend-
ing election. In that case the specifics of the raise as in the
instant case had not been finalized. See also Medical Center
v. NLRB, supra, also cited by Respondent.
In the instant case the wage increase was not scheduled,
was not finalized as to its particulars, i.e., such as the amount
thereof and the dates to be granted prior to the advent of the
pending union election. Varner testified and I credit this tes-
timony that he was advised to delay granting of the wage in-
crease pending the election so as to avoid any possibility of
an unfair labor practice or any undue influence of an elec-
tion. The legal comments posted on the bulletin board merely
stated that in a number of cases employers have been found
to violate the Act when they unilaterally imposed wage in-
creases during the critical period in a pending election. I
credit Johnson’s testimony that Varner told him he hoped the
employees were giving Temple and Cole ‘‘hell’’ about the
delay of the wage increase. However, this statement to a su-
pervisor did not render unlawful the decision to delay the
wage increase until after the election. I also do not regard
the comments by Varner at his meetings with employees
concerning the union campaign as requiring a delay of a
wage increse as determinative of this issue.
The Disciplinary Writeup of Patricia Walker
Patricia Walker was called on behalf of the Union to tes-
tify at the representation hearing held on February 22, 1990,
and was thus identified as a union adherent. On April 6,
1990, Walker was written up on a record of discipline form
while in her fifth month of pregnancy for leaving the line
where she worked as a trimmer allegedly without permission
with the notation ‘‘Pat leaves the line without telling her su-
pervisor.’’ Walker testified initially at the hearing held in the
case in January 1991 concerning the writeups and discharge
of employee Charlene Jones. Subsequently when the hearing
was reconvened in April 1991 Walker testified concerning
the above writeup given to her on April 6, 1990, following
an amendment to the complaint in this case which included
this allegation following the filing of additional charges by
the Union in January 1991.
Walker testified that on April 6, 1990, at 10 a.m., she
called employee Tressie Thomas to the line and asked Thom-
as to ask Walker’s foreman, Raymond Fleming, to allow
Walker to have a break to go to the restroom as Fleming was
not in the immediate area. Thomas, who fills in for other em-
ployees as needed, left and talked to Fleming, and then re-
turned and took Walker’s place on the line and Walker went
to the restroom and returned in 5 minutes. At 2 p.m. that day
she was called into a meeting with Dupre, Chandler, and
Obery. Chandler told her she was written up for leaving the
line without asking her foreman for permission. She told him
she had sent Thomas to ask her foreman, Fleming, for per-
mission and she asked what the difference was if she, her-
self, asked Fleming for permission or asked Thomas to ask
him for permission. Chandler did not reply. Dupre said they
did not want people taking breaks to be in the breakroom.
She replied she had gone to the restroom. After the meeting
she returned to the line and asked Thomas if she had asked
Foreman Fleming for permission for Walker to leave the line
and Thomas replied that she had and that he had said she
could do so. As set out above at the time of this incident
Walker was in her fifth month of pregnancy. She testified
that in January 1990 she had asked Chandler for permission
to go the the doctor during the workday because she was
pregnant and he had given her permission to do so. Walker
testified she had never received any other writeups and had
not been previously counseled about leaving the line except
in 1989 when she was counseled by Chandler but not written
up. She testified that the normal procedure to obtain permis-
sion to leave the line was to request it of the foreman or if
he is not available in the immediate area, an employee on
the line could send another employee to find and ask the
foreman and that this procedure had been in effect since late
1989. She had left the line without permission prior to this.
She was not aware of any other employees who had received
warnings for leaving the line.
Tressie Thomas who also works as a trimmer testified the
normal procedure for an employee to obtain permission to
leave the line is to ask the foreman and if he is not available
in the immediate area, the employee asks another employee
to find and ask him for permission. She had made requests
on behalf of other employees to a foreman when she has
been on the floor. She has made such requests for Ann
Jones, Gussie McGilvery, and Patricia Walker. Thomas testi-
fied that when Walker asked her to request a break of her
foreman, Fleming, she did so and he granted the request and
Thomas took Walker’s place on the line. The break was sup-
posed to be for 5 minutes but she does not recall how long
Walker was gone. She later heard in the breakroom that
Walker had been written up. She acknowledged that in her
80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
January 31, 1991 affidavit given to a Board agent she stated
that she did not remember Walker ever asking her to ask her
foreman for a break and she also stated she was not aware
of the length of Walker’s break and still does not remember
the length of the break. She further acknowledged that in a
later affidavit given by her on February 27, 1991, she stated
Walker had taken a break for the normal break period of 5
minutes. She also testified that there is a bell employees can
ring for a supervisor in order to take a break. The General
Counsel also called Shirley Perkins who is a trimmer on line
1 who testified that 3 weeks ago (prior to the hearing in
April) she needed to go to the restroom and sent an em-
ployee to find Foreman Chet Evans and the employee could
not find him and she rang the bell and when Evans came,
he told her not to ring the bell again. She acknowledged on
cross-examination that she had rung the bell before but not
unless there was an emergency.
The Respondent called Supervisor Chandler who is over
the entire first processing production area consisting of the
live deck, the picking department, and the eviscerating de-
partment. There are four eviscerating lines and there is a dif-
ferent foreman assigned to each line. Chandler identified the
April 6 warning issued to Walker. He recalls a conversation
with her foreman but not with Walker concerning this. Walk-
er’s foreman had told him several times that Walker was
continually getting someone to take her place to get off the
line and at times he would see another employee in Walker’s
place and did not know where Walker was. Walker is a good
employee and this was Walker’s only writeup for leaving the
line. He has written up other employees for leaving the line
and identified four warnings issued to other employees for
walking off the line.
Former Personnel Manager Dupre testified that on April 6,
1990 Walker was brought into his office and told she had
been leaving the line without the foreman’s knowledge and
without checking with him. She said she had told a fellow
employee and ‘‘we’’ said that’s not good enough because the
foreman has to have someone to take your place and she said
if that is what you want me to do, that is what I will do.
He also testified that Walker is a good employee. Neither
Foreman Raymond Fleming nor Assistant Personnel Manager
Cathy Obery was called to testify.
Analysis
I find that the General Counsel has established a prima
facie case of a violation of Section 8(a)(3), (4), and (1) of
the Act by the issuance of the writeup to Patricia Walker on
April 6, 1990. Initially, as set out elsewhere in this decision,
Respondent’s animus toward the Union and its supporters
has been established. It is also established that Walker testi-
fied on behalf of the Union at the representation hearing held
in February 1990 and was identified by McDonald as a ‘‘ring
leader’’ of the Union’s campaign. The Respondent concedes
that Walker was a good employee but contends there were
complaints by her foreman that she was habitually leaving
the line without permission. I credit Walker’s testimony and
the corroborative testimony of Thomas that at Walker’s re-
quest Thomas requested and received permission from Fore-
man Raymond Fleming for Walker to leave the line to go
to the restroom. While I note the inconsistencies in the affi-
davits of Thomas, I do not find that this renders her testi-
mony at the hearing as unworthy of belief as I found her tes-
timony to be credible. I also find that Respondent’s failure
to call Foreman Raymond Fleming to testify leaves the testi-
mony of Walker and Thomas unrebutted and supports an in-
ference that Fleming’s testimony would not have supported
Respondent’s position. I further credit the testimony of
Walker that she had earlier apprised Chandler of her preg-
nancy in January and was in her fifth month of pregnancy
in April 1990. I also credit the testimony of Walker, Thomas,
and employee Shirley Perkins that it was routine to ask an-
other employee to contact the foreman if he were unavailable
to allow the employee on the line to make a personal request
of him. I also find that the evidence supports a conclusion
that the ringing of the bell was generally not to be utilized
for this type of request but rather was utilized for emergency
situations. Thus I find that the Respondent has not rebutted
the prima facie case established by the General Counsel and
find that the writeup of Walker was violative of Section
8(a)(3), (4), and (1) of the Act. Wright Line, 251 NLRB
1083 (1980); NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983); Roure Bertrand Dupont, Inc., 271
NLRB 443 (1984).
The April 12 Disciplinary Writeup of Temple
Myrtle Temple, a scaler, who had been employed by Re-
spondent for 22-1/2 years at the time of the hearing testified
that on April 12, 1990, she walked into the personnel office
and Dupre, Varner, and Cathy Obery were there and Dupre
handed her a writeup and said he had a complaint about her
harassing an employee and ‘‘bad talking employes’’ and told
her this was her first writeup and if she received a third
writeup she would ‘‘be out the gate.’’ He asked whether she
understood what he was saying. She said, ‘‘Yes and I know
where it is coming from.’’ Dupre told her he would like to
hear her side of the story. She told him she did not have a
story to tell him because she did not have a witness. He
asked her to sign the writeup and she refused and asked if
that was all and he said yes. She then said, ‘‘Thank you’’
and left. She did not read the writeup. Temple testified she
did not harass or ‘‘bad talk’’ an employee at any time in-
cluding April 12, 1990. She had a conversation with Bonner
on that date when she asked Bonner if she would relieve her
for a break. Bonner then went to the box room where she
did cards. About 20 minutes later Bonner came out of the
box room and started up the line to give employees breaks.
Temple asked Bonner if she was was going to give her a
break. Bonner told her she had to go up the line first and
give breaks and then she was going to take a break. Temple
testified she said ‘‘OK’’ and had no other conversation with
Bonner on that date or during the week of April 9 to 13. She
testified further that no member of management or supervisor
had any discussion with her prior to calling her into the of-
fice and telling her she was being written up on April 12.
However, she also testified that prior to her writeup of
April 12 McDonald had talked to her in her work area in the
presence of Johnson and told her she was talking too loud
as he could hear her halfway to the cooler. She said, ‘‘Mal-
colm [McDonald] I am not talking.’’ He told her to lower
her voice as ‘‘These people are trying to work and cannot
keep their mind on working with your loud talking.’’
Johnson testified that in the second week of April 1990 he
had a conversation with Renee Bonner in the breakroom.
Bonner told him she and Temple had had a misunderstanding
81MARSHALL DURBIN POULTRY CO.
about a restroom break, that Bonner had gone to personnel
and Varner was there. Johnson asked her if everything was
taken care of and she said ‘‘yes.’’ Later that day, he received
a page to go to the personnel office and his arrival he found
Varner and Cathy Obery engaged in a conversation. Obery
then left the room. Varner then said he wanted Johnson to
get Temple there and give her a writeup because Bonner had
been there crying because Temple had been harassing her
about the Union. He asked Varner if Bonner had said that.
Varner said he knew it was union related and that he wanted
Johnson to write Temple up. Johnson told him he had just
spoken to Bonner and she had said everything was okay.
Varner then said, ‘‘I want you to write her up.’’ Johnson told
him he could not do that because he did not know if it was
true. Varner then said, ‘‘I will write her damn ass up my-
self.’’ At that time Dupre came in and Varner told Johnson
to tell Temple to come to personnel. Dupre then scribbled a
note and handed it to Johnson to give to Temple, which he
did and Temple then left. Temple returned in about 10 min-
utes and told him that Varner had written her up for
harassing Bonner. Temple contended this was a lie and told
him she had not signed the writeup. Johnson did not see the
writeup. The April 12 writeup signed by both Dupre and
Varner states that Temple was ‘‘Harassing—Intimidating
other employees.’’ The memo also states under supervisor’s
comments ‘‘Merle [Temple] has on several occasions caused
morale problems by loud, overbearing talk while on the
line.’’ It also states, ‘‘This warning was given after Renee
Bonner came to personnel crying—saying that Merle threat-
ens her every time she goes by there, saying things like
when we get a union in here, we will get your job.’’
Varner testified that on April 12, he instructed Johnson to
write Temple up for harassing Bonner and Johnson said he
would take care of it. Varner also testified that on April 12
he was present at the time Dupre gave Temple the writeup
and that immediately before this Dupre told him, Dupre was
bringing Temple to the office as Renee Bonner had com-
plained that every time she went near Temple, Temple would
yell at her and Dupre said he would talk to Temple. Dupre
then went to get Temple and she came into the office and
the writeup was given to her. Dupre told Temple there had
been several complaints of her talking loud in the plant and
harassing employees and that in this instance she was being
written up. Dupre read the writeup and Temple refused to
sign it and commented that she knew why he was doing this.
Although the Respondent called both Dupre and Bonner in
its case, it did not question either about this incident. Addi-
tionally Obery was not called as a witness. McDonald testi-
fied he had a conversation with Temple in April about her
disrupting the work of other employees by engaging in loud
talking as he had several complaints. He went in the plant
and told her to stop and she said okay.
Analysis
I find that the General Counsel has established a prima
facie case that the writeup of Temple by Respondent was
motivated in part because of her support of the Union and
in part because of her testimony on behalf of the Union in
the representation hearing in February 1990. In reaching this
decision, I have considered the animus toward union sup-
porters and those who testified on behalf of the Union gen-
erally and the record as a whole. I have also considered the
threat issued by McDonald to Johnson that the Respondent
would rid itself of Temple and Cole and the other union sup-
porters. I have also considered the long-term employment of
Temple without previous discipline on her record. I find
Johnson’s testimony concerning this incident to be clear and
credible as was Temple’s testimony concerning this incident
although I find there was friction between her and Bonner
to cause Bonner to complain to personnel. I do not find,
however, that the complaint from Bonner was the real reason
for the writeup. Rather I find that Varner seized on this inci-
dent as a pretext for writing up Temple, a strong union sup-
porter who had testified on behalf of the Union. As noted by
the General Counsel, I also find Varner’s earlier statement
that he told Johnson to writeup Temple and that Johnson said
he would take care of it not only to conflict with Johnson’s
credible testimony that he did not do so, but also to conflict
with Varner’s later testimony that Dupre had generated the
writeup as a result of a visit from Bonner. I also find that
Respondent’s failure to question Dupre and Bonner con-
cerning this incident and its failure to call Obery supports an
adverse inference that their testimony would not have sup-
ported that of Varner. I thus find that the Respondent has
failed to rebut the prima facie case established by the Gen-
eral Counsel and that Respondent’s April 12 writeup of em-
ployee Temple was violative of Section 8(a)(3), (4), and (1)
of the Act. Wright Line, supra; Transportation Management
Corp., supra; and Roure Bertrand, supra.
The April 30 Disciplinary Writeups of Cole
and Temple
Cole and Temple were both given a written warning by
Second Processing Supervisor Sanders on April 30. How-
ever, neither was informed that they were being written up.
Cole and Temple both testified they had been unaware of the
disciplinary writeup until it was called to their attention dur-
ing the course of the hearing. The disciplinary writeup for
Cole states, in pertinent part:
Statement of Problem: Improper dates on product la-
bels.
Employee’s Comments: Rebecca [Cole] stated that
since she did not make the labels that she could not be
held responsible for the labels being incorrect. After ex-
plaining her job to her, she had no further comment.
Supervisor’s Comments: I informed Rebecca that
even though she did not make the labels she still has
a responsibility to the Company and to her job that the
labels she is using are correct.
Although the writeup was signed by both Sanders and
Dupre, Cole testified she had a conversation about the labels
on this date with Sanders but not with Dupre. Sanders told
her the labels had the wrong date and said she and Temple
should have noticed them. She told Sanders that she and
Temple had not dated the labels (a task that was then being
performed by Bonner following Respondent’s transfer of this
work from Temple and Cole to Bonner on March 23) and
they had merely written in the weight and number of chick-
ens per box in their capacity as scalers and she had not paid
attention to the dates.
Temple testified that on April 30 she met with Sanders
and Dupre and Bonner in a conference room. Sanders told
82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
her the USDA grader had found labels on grade A boxes
with the wrong dates and that Temple was responsible for
the accuracy of the labels and dates on the boxes. She told
Sanders that Varner had taken this job away from her and
that Bonner now made labels and dated the cards. He told
her it was her responsibility to see they were right and to
check all the cards that go on the boxes from now on.
With respect to three warnings issued on April 30, 1990
(one to Cole, one to Temple, and one to Bonner), James
Sanders, the second processing supervisor testified there was
a problem with incorrect dates on the labels. Several pallets
of boxes had been run with the date for the preceding day
as leftover cards from the previous day were used. He spoke
with Cole, Temple, and Bonner in the conference room at the
same time to try to come up with a solution. He had written
this up as a disciplinary notice before he talked with the em-
ployees and after talking with them, he decided they were
right and he did not think they deserved the writeup and they
did not see it. However, he kept it in their files as docu-
mentation and did not tell any of these three employees that
the documentation was in their files. He testified he utilized
disciplinary forms for making notations until later advised by
management that another form was available for this pur-
pose.
Analysis
I find the General Counsel has established a prima facie
case that Respondent violated Section 8(a)(3), (4), and (1) of
the Act by the issuance of the disciplinary warnings to Cole
and Temple on April 30. I also find that the Respondent has
failed to rebut this case by a preponderance of the evidence.
Initially as set out above Respondent’s animus toward Cole
and Temple as a result of their support of the Union and
their giving testimony on behalf of the Union at the represen-
tation hearing has been amply demonstrated in this hearing.
I credit Cole and Temple as to their versions of the conversa-
tions between Sanders and themselves concerning this inci-
dent which were essentially corroborated by Sanders. How-
ever, I do not credit Sander’s explanation that he initially
wrote up the writeups before meeting with Cole and Temple
as the writeups themselves reflect his conversations with
Cole and Temple and must have been written after his meet-
ing with Cole and Temple. I also do not credit the contention
of Sanders that the writeups were mere memorializations of
the conversations as they were also signed by Dupre the per-
sonnel manager which indicates that he also received them
and acquiesced in their placement in the employees’ per-
sonnel files. I also find it unlikely that Sanders would have
mentally changed the discipline of Bonner to a mere memori-
alization as Bonner made the errors in dating the labels for
which Sanders, according to his testimony, was initially pre-
pared to discipline Cole and Temple for not catching the er-
rors. Accordingly, I do not credit Sanders’ explanation. I find
Respondent violated Section 8(a)(3), (4), and (1) of the Act
by the issuance of written warnings to Cole and Temple on
April 30. Wright Line, supra; Transportation Management
Corp., supra; and Roure Bertrand, supra.
Incidents involving former employee Barney Chisholm
Chisholm was employed by Respondent from July 1985
until his discharge in July 1990. Chisholm was an active
union supporter. Chisholm testified he talked with Union
Representative Hubert Coker on the road outside the plant in
December 1989 at a time when Coker was handing out union
literature to employees. He himself later handbilled the plant
on behalf of the Union. He also attended union meetings in-
cluding one on February 15, 1990. He also talked to other
employees about signing union cards for 6 or 7 months prior
to his discharge by Respondent on July 17, 1990. Chisholm
testified he is going blind. His discharge is not alleged as a
violation. Chisholm worked in first processing and finished
work several hours earlier than employees in second process-
ing. As a result of his failing eyesight he is unable to drive
a car and generally waited for several hours in the company
breakroom or on the company parking lot for his ride home.
Chisholm testified that in early May 1990 he was in the
personnel office talking to personnel secretary Cathy Obery
after the conclusion of his workday and Personnel Manager
Dupre told him, ‘‘Barney we have warned you. After you get
off work, you cannot sit in the break room or the parking
lot.’’ The next day his supervisor, Ora Mae Marshall, called
him off the line to McDonald’s office and McDonald, Dupre,
and Chandler were present and McDonald told him when he
finished work, he could not sit in the breakroom or go in the
parking lot but had to wait by the side of the road or go to
a grocery store about a mile away. McDonald told him he
was going to put up a sign stating that when employees get
off work, they must go to the side of the road or to the gro-
cery store and could no longer stay on company premises.
McDonald told him if he breathed a word of this conversa-
tion, he would be called back in the office and fired. The
following day he went back into McDonald’s office and in-
quired about the sign and McDonald denied having said any-
thing about a sign. No sign was ever put up.
Chisholm testified that one day in the following week he
came from the road to go to the breakroom to get a drink
of water about 2:30 p.m. after the end of his workday and
the guard asked his name. He replied, ‘‘Barney’’ and the
guard told him that whenever he finished work he had to go
beside the road and could not go back in the breakroom and
sit down. He told the guard he was hot and wanted a drink.
The guard told him Chisholm would suffer the consequences.
Chisholm then went back in and observed four or five other
employees who were finished with their workday sitting in
the breakroom. The normal practice had been for employees
to wait for their rides in the breakroom and to talk and drink
coffee and smoke. Prior to these incidents he had waited for
his rides on Respondent’s premises for periods of between 30
minutes to 2-1/2 hours for the 5 years he was employed by
Respondent. He either sat in a friend’s or his sister-in-law’s
car or in the breakroom. He sometimes went in to the plant
to get a drink or to use the restroom. He generally did not
go into the production area of the plant except to get the car
keys or to pick up a chicken his sister-in-law had ordered.
On one occasion McDonald told him in May 1990 not to go
into the production area and he did not do it anymore. He
does not recall any warnings about talking to employees
while they were on the clock. In December 1989 McDonald
saw him sitting in a friend’s car and told him he could not
sit there anymore. Other employees routinely waited for their
rides in the breakroom. In the first incident Mel Dupre told
him he would call the sheriff and have him picked up if he
came back inside the premises after he said he was coming
83MARSHALL DURBIN POULTRY CO.
back in if it was hot or raining. On one occasion when he
was standing by the road with Union Representative Coker,
two employees from the night shift came up and asked if he
was for the Union. He replied, ‘‘Maybe, maybe not.’’ They
told him he would be sorry. The next day McDonald called
him into the office and told him he had been called at home
about the incident. McDonald asked if he had been threat-
ened by these employees. McDonald told him he could be
for or against the Union, that McDonald did not care.
McDonald testified that from June 1989 to May 1990 he
had conversations with Chisholm concerning his presence in
the plant after he had finished his work shift. He testified to
two specific conversations. One occurred in the latter part of
1989 in his office. McDonald testified that Chisholm who
worked in first processing would be through an hour or two
prior to second processing and would sit in the breakroom
with no comment from management until Chisholm began to
go into the production area and walk up and down the cut-
up lines and talk to employees. These employees used knives
in their work and disruption of them could result in an acci-
dent. Consequently, McDonald told him in the first meeting
not to go into this area and talk to the employees and Chis-
holm said that he understood and would not do so. The sec-
ond meeting occurred 6 to 8 weeks later or could have been
in April or May. In that meeting he and Dupre met with
Chisholm in the personnel office. There had been a disturb-
ance in front of the plant when two maintenance men were
coming to work and a man handing out pamphlets tried to
put one in their car and they stopped their car and were
going after the man who said he needed a witness and Chis-
holm came running up and the men asked Chisholm if he
was for the Union and Chisholm said yes and the men said
we will take care of you also but on reflection they got back
in their car and went into the office and told McDonald
about it. He told the men ‘‘we’’ had to protect everyone on
the company’s premises whether they are for or against the
Union and told them to ‘‘back off’’ and he would talk to
Chisholm. Dupre and he discussed the incident and McDon-
ald told Chisholm to leave the Company’s premises after he
had cleaned up at the end of his shift. Chisholm said he had
to wait for his ride and he and Dupre told Chisholm it would
be best if he left the premises. He denied ever telling Chis-
holm he was going to put up a sign telling employees not
to remain on the premises after their shift.
On May 7, 1990, Respondent issued a disciplinary writeup
to Chisholm signed by McDonald, Dupre, and Chandler for
‘‘Staying on Company property after getting off work—sec-
ond or third time this has been mentioned to Barney.’’ The
warning also contained the comments ‘‘Barney stay[s]
around bumming cigarettes, shooting the bull, etc. He knows
he will be written up again if he continues to violate this
rule.’’ First Processing Supervisor Chandler testified that
Chisholm used to borrow cigarettes from other employees
and that when Chisholm joined them or tried to talk to them
they moved away as they did not want to talk to him. The
Respondent contends it was merely attempting to resolve an
ongoing problem in which Chisholm was disrupting other
employees by talking to them while in production and in the
breakroom and by borrowing cigarettes from them and cites
an earlier warning issued to Chisholm in June 1989 for inter-
rupting employees on the production line. The General Coun-
sel contends that Respondent engaged in unlawful threats,
disparate treatment and issued the disciplinary writeup be-
cause of Chisholm’s open support of the Union.
I credit Chisholm’s testimony and find that it and the
record as a whole including the testimony of Johnson who
testified he was told to run off prounion employees Temple
and Cole as well as Chisholm from the breakroom after work
establishes that Chisholm was treated disparately because of
his support of the Union. I thus conclude that the threat of
arrest of Chisholm if he remained on Respondent’s premises
following the completion of his shift and the threat of re-
prisal by the guard, an agent of Respondent, were violative
of Section 8(a)(1) of the Act. I find that the exclusion of
Chisholm from the premises after the end of his shift, the
May 7, 1990 disciplinary writeup, the refusal to permit him
to discuss the alleged rule prohibiting employees remaining
in the breakroom or parking lot after the end of the workday,
and the preclusion of prounion employees from campaigning
on its premises while antiunion employees were permitted to
do so, each violated Section 8(a)(3) and (1) of the Act as I
find the restrictions on Chisholm’s activities and the issuance
of a warning to him were motivated by Respondent’s illegal
purpose to stem the union campaign. I find the Respondent
failed to rebut the prima facie case by the preponderance of
the evidence. Wright Line, supra; Transportation Manage-
ment Corp., supra; and Roure Bertrand, supra.
The May 17 Writeups of Temple and Cole
On May 17, 1990, Supervisor Sanders wrote up Temple
and Cole on disciplinary forms for assertedly weighing boxes
of chickens with ‘‘missing giblets in whole birds.’’ The
writeups, which were also signed by Dupre and Supervisor
Thomas Tholar, also stated under ‘‘Supervisors Comments’’
that a knowing failure to report any recurrence in the future
will result in termination and were placed in Temple’s and
Cole’s personnel files without their knowledge. It is noted in
the writeup of Temple that she had reported the missing gib-
lets and Sanders admitted at the hearing that she had done
so.
Cole testified she was unaware of the disciplinary writeup
issued to her by Sanders. On May 17 Sanders talked to her
in his office with Supervisor Tholar. Sanders said they were
having complaints because of giblets missing from boxes.
She told him giblets are always missing from boxes because
when chickens fall off the line, sometimes the giblets fall out
and the packers do not put them back in. Sanders told her
to be careful and if they saw a number of giblets missing,
to make sure they put them back in. She agreed to do so,
although it was not her responsibility as a scaler to check to
see if giblets are missing. Temple also testified she had no
knowledge that she had been written up by Sanders on May
17, 1990.
Sanders testified that the writeups were not disciplinary
writeups but were rather memorializations placed in the per-
sonnel files of Temple and Cole as were similar ones placed
in the personnel files of packers Diane Dawkins and Carrie
Barnes. Sanders testified that after talking with the employ-
ees, he decided not to discipline them. Sanders testified that
Temple had called him to her scale and said the birds had
no giblets in them. He pulled a box out and confirmed this
and then went to the stuffing lines and checked the birds
which he found had giblets in them. He then went to the of-
fice and discussed the matter with McDonald. He prepared
84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a writeup (a record of discipline) for the packers and the two
scale operators (Temple and Cole) because he understood
from talking to Temple that she knew of this and had run
the birds through without giblets and was only now telling
him about it and he felt the packers should be disciplined for
packing the chickens in the box without the giblets in them.
Therefore, he prepared the writeups prior to talking to the
employees (as is his custom) on record of discipline forms.
He did not consider this a written warning but put it in their
personnel files so that a year or two later he would have a
record of it. He did not tell the employees he had written
them up or ask them to sign it as there was no need to tell
them. He used the disciplinary forms because these were the
only forms he had at the time. There are now four new
forms including a conference form which was what he had
intended these writeups to be.
Analysis
I find the General Counsel has established a prima facie
case that the May 17 warnings issued to Temple and Cole
were disciplinary in nature and violative of Section 8(a)(3),
(4), and (1) of the Act. As set out above Respondent’s ani-
mus toward Cole and Temple because of their status as union
supporters and because of their testimony on behalf of the
Union at the representation hearing in February 1990 has
been established. I do not credit Sanders explanation that
these warnings were not intended to be disciplinary in nature
but rather conclude that they were contrived and constituted
further unlawful actions taken against Temple and Cole. I
thus conclude that the Respondent has failed to rebut the
prima facie case established by the General Counsel of viola-
tions of Section 8(a)(3), (4), and (1) of the Act. Wright Line,
supra; Transportation Management Corp., supra; and Roure
Bertrand, supra.
The Writeups and Discharge of Charlene Ann Jones
Charlene Ann Jones was employed by Respondent in 1976
until June 18, 1990, when she was discharged for having
three disciplinary writeups which according to Respondent
mandated her discharge. Jones had prior to her discharge
been employed on the eviscerating line for 7 years as a heart
and liver cutter. Jones appeared and testified on behalf of the
Union at the representation hearing held on February 22,
1990. She also testified that she attempted to obtain the sig-
natures of other employees on behalf of the Union and had
several conversations at her apartment and at the homes of
other employees on behalf of the Union. She also attended
11 union meetings held between November 1989 and late
April 1990. She testified concerning a conversation with her
foreman, Bill Helton, in November 1989 when he ap-
proached her on the eviscerating line where she worked and
asked if she had heard the news. She asked, ‘‘What news?’’
and he replied about the Union. She told him she had never
been in a union before and didn’t know anything about a
union. He said the Union had not done anything for him and
did not want anything but your money. He told her if she
had a question about the Union, to let him know. She asked
whether the Union would be a third party if it were success-
ful. He said Marshall Durbin (Respondent’s owner) would
never let a third party in.
As a heart and liver cutter on the eviscerating line, Jones’
job was to remove the hearts and livers of the chickens and
to remove the gallbladder and lungs without bursting the
gallbladder which will soil the chickens and cause them to
be downgraded and portions thereof to be damaged necessi-
tating that they be trimmed. Jones testified she had not been
warned before February 22 for excessive gall bursting but
after that date when she testified at the representation hear-
ing, management started ‘‘constantly riding me for gall,’’ al-
though her frequency of bursting gall did not increase after
that date. She testified that the heart and liver cutters on each
side of her and the three ones across from her on another
line burst gall as frequently as she did. She testified that on
an average of 10 or 15 times a day, the birds already had
gall on them from employees on the line in front of her. She
acknowledged that she (as did all the cutters when they got
behind) would cut in front of the person to her right (who
was Gussie McGilvery in her case) and that McGilvery had
never complained about this to her, nor had any of her other
coworkers. The line moved from left to right. There were no
injuries of any employees on the line as a result of her cut-
ting in. Four times a day her supervisor Bill Helton would
stand behind her for 5 to 10 minutes at a time and watch
to see how many galls she was bursting. Although her per-
formance did not change after February 22, Helton talked to
her three or four times a day about the gall thereafter. He
said there was a lot of gall on the line and he couldn’t do
her job and his also. On April 10, 1990, she met with First
Processing Supervisor Chandler and was given a reprimand
by Chandler who said her workmanship was poor and she
was bursting a lot of gall on the birds and she told him at
that time that the galls had already been burst down the line
before the birds came to her. He told her he was going to
have to tighten up on the gall.
On June 18, 1990, Bill Helton met with her in the employ-
ment office and said ‘‘we’’ had 135 burst galls on the chick-
ens and he could not do her job and his also. She told him
‘‘we’’ (the cutters) did not burst all the gall on the birds, that
they had come to them in that condition. She told him she
was doing the best job she could and she had not burst all
the gall alone. Later on the same day at 12:15 or 12:20 p.m.
she was called to the personnel office and met with Per-
sonnel Manager Dupre and with First Processing Supervisor
Chandler and Cathy Obery, the personnel secretary. Dupre
told her he had reviewed her records and that she had three
writeups and that it was company policy to terminate em-
ployees for three writeups within a 12-month period. Chan-
dler said he had been watching her and told her she was a
safety hazard and was cutting up the line. She told him they
all cut up the line when they get behind. He also told her
she was mixing hearts and livers and she said she only did
so when the machine was working and ‘‘they’’ (the super-
visors) told her to mix hearts and livers in the same cup.
On cross-examination Jones was questioned about Re-
spondent’s Exhibit 6, a record of discipline of May 31, 1988,
signed by Helton and former Personnel Manager Ricky Ray-
burn, that stated that guts and lungs and gall are being sent
to the chiller and that customers are complaining about the
product. Helton noted on the document that he gave her oral
comments on the line and there was no improvement and
that there would be a reprimand, suspension, or termination
if there was no improvement. She testified she does not re-
85MARSHALL DURBIN POULTRY CO.
member him telling her this. She was also questioned con-
cerning Respondent’s Exhibit 7, which is a record of dis-
cipline of her of October 4, 1988, signed by her. She remem-
bers this warning which states, ‘‘Poor workmanship, job not
being properly done, causing product waste. Employee has
been repeatedly told about poor work, this date. No improve-
ment.’’ She recalls the warning but she told Helton there are
12 employees on the cleaning lines and that he could not tell
her livers from anyone else’s. She was also questioned con-
cerning Respondent’s Exhibit 8, which is a warning dated
April 24, 1986, for throwing all hearts in the drain for at
least 5 minutes. She acknowledges being told this but told
them it was not true. She was also questioned concerning
Respondent’s Exhibit 9 a reprimand dated December 18,
1984, given her by Chandler for leaving the line without per-
mission. She may have been reprimanded by Chandler for
taking three breaks other than scheduled breaks but cannot
recall. At the time of her discharge trimmers Cecilia Hayes
and Gussie McGilvery were each taken into the office sepa-
rately but she is not aware if they were written up.
Gussie McGilvery who has been employed as a heart and
liver cutter and is a 14-year employee, testified as follows:
She worked on the right of Jones on the heart and liver line
for a 6-month period prior to Jones’ termination. At times
Jones cut in front of her to cut galls as did other employees
who also worked on occasions on her immediate left as the
line moves from left to right. She did not notice any problem
with Jones cutting in front of her or bursting gall. Another
employee, who now works on her immediate left cuts in
front of her more than Jones did. When gall was burst, all
three of the cutters were blamed. Other employees on the
line include two drawhands and two inspectors and two trim-
mers. Anyone can burst gall before it gets to the heart and
liver cutters and many times the gall has been burst before
the chicken gets to the heart and liver cutters. Every day
some chickens come down the line with burst galls. There
is an eviscerating machine on the line which pulls the intes-
tines out of the chicken before the draw hand and the draw
hands finish what it does not complete. McGilvery recalls the
day when Jones was discharged. Prior to Jones’ termination
Helton said on more then one occasion that he was keeping
tabs and that the trimmers were keeping tabs on burst galls
before they got to Jones. She does not know whether tallies
are still being kept by Respondent on burst galls.
On cross-examination McGilvery testified she has worked
4 or 5 years as a heart and liver cutter. She works on line
1. There are four lines with three heart and liver cutters per
line. Jones worked on all four lines one time or another and
had worked next to her for about 6 months prior to her ter-
mination. She cuts every third bird. The bird is hanging by
the legs and she cuts the liver from the gall and leaves a
piece of liver on the gall so she does not touch the gall. She
then cuts the liver off and then cuts the heart from the lung
with a 6- to 8-inch long sharp scissors. When the gall bursts
it can get on the heart and liver cutter and sometimes around
the work station. If an employee cuts in front of her, she is
cutting in front of McGilvery’s hands. She acknowledged
that Helton talks about burst gall almost daily. She has been
written up for bursting galls. Usually all three heart and liver
cutters are written up at the same time. She does not know
how many writeups she received in the last year.
Cecilia Hayes, a heart and liver cutter, who has been em-
ployed by Respondent for over 4 years testified as follows:
On June 18, 1990, she worked on the left of Jones and
McGilvery worked on Jones’ right. All three of them burst
galls and received a writeup for bursting galls on June 18,
although there was not an unusually high number of burst
galls on that day. At least 2 days a week there are more
burst galls than on the day Jones was terminated and em-
ployees have not been written up on these days. The se-
quence of the line originates with drawhands then trimmers
and then heart and liver cutters. She has observed drawhands
and trimmers burst galls. She leans over in front of cowork-
ers 10 to 15 times a day while cutting hearts and livers and
her supervisor, Ora Mae Marshall, has observed her do so
and has never talked to her about it. All 12 of the heart and
liver cutters on the four lines lean over and cut in front of
each other and none has been criticized for doing so. Much
of the gall that the heart and liver cutters get warned for
bursting has not been burst by them.
Patricia Walker, a trimmer who has been employed since
1974, testified as follows: As a trimmer she works alongside
a United States Department of Agriculture (USDA) inspector
and trims off defective and contaminated parts which are
thrown in the barrel. Trimmers work on the line right before
the heart and liver cutters and keep a tally of burst galls. She
has kept a tally since January 1990. If she has time, she cuts
the gall off. If not, she just lets it go down the line. On June
18 all trimmers made a tally for the day. The tallies are
turned in to the foreman and the trimmers have no access to
them. The tally lists the total number of birds with gall prior
to passing before the trimmers but not beyond the trimmers.
She could observe Jones’ work station from her work station
on the next line. She observed Foreman Bill Helton watching
Jones after ‘‘we went to the Labor Board meeting’’ twice a
day for 5 to 10 minutes every day until Jones was dis-
charged. She does not know of any employee other than
Jones written up for cutting in front of other employees.
Walker burst gall in her job and has never been warned for
doing so. Gall was a problem all the time. She never re-
ceived any warnings for her performance on her trimming
job.
Bill Helton, a line foreman for 7 years who had supervised
Jones as a heart and liver cutter for 4 years testified as fol-
lows: The job of a heart and liver trimmer (cutter) is to har-
vest the heart and liver from the viscera of the chicken by
pulling it down from the chicken’s viscera, cutting the heart
and liver from the bile sac and lungs. It is then sent to the
flume which is a pipe with water in it that goes to a pump
that pumps it to a chiller which chills the product. Helton did
not participate in the decision to discharge Jones. His super-
visor, Chandler, issues the writeup which goes to personnel.
He described the sequence of the line as follows: The first
person on the line is a venter backup. The next two people
are drawhands followed by two U.S.D.A. trimmer helpers
and then the three heart and liver cutters. Next is a gizzard
machine backup person. Next there are two craw pullers, a
mirror station trimmer, and a house inspector. If the heart
and liver trimmers burst the bile sac, they get gall on the
birds which is poor job performance. Waste product should
be dropped in the drain. Only clean products are to go to the
chiller. If an employee does not do her job, he will orally
warn her and also the people next to her. On June 18 he ob-
86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
served Jones on several occasions with the bile burst on the
birds. He wrote Jones up and probably wrote up the other
two heart and liver trimmers. One hundred burst galls per
day for all three heart and liver trimmers is an acceptable
level. On the day of Jones discharge there were probably 200
birds that had to be cleaned up from the heart and liver trim-
mers which is an unacceptable level. He observed Jones four
to five times that day before writing up a reprimand. When
he observes a problem he observes the employee for 10 to
15 minutes. He has no specific recall of the day in question.
He talked with all of the three heart and liver trimmers sev-
eral times, not specifically just Jones. He specifically recalls
having a lot of gall problems on June 18 and recalls at least
10 conversations he had with heart and liver trimmers on that
date to address the problem. He observed the rack being
filled up with birds to be cleaned and this caused him to talk
to the employees. After his warning to the employees on
June 18 did not seem to have solved the problem, he told
his Supervisor Chandler of the problem later that morning.
At 10 or 10:30 a.m. he spoke to Chandler again and told
Chandler he believed a writeup was in order and Chandler
agreed and he (Helton) wrote up all three heart and liver
trimmers and gave the writeups to Chandler including the
one issued to Jones. Chandler signed the writeups and said
he would take them to personnel. The Respondent keeps
records of burst galls. He does not keep records of burst
galls. He does not know why Jones was terminated and the
other two employees who received the writeups were not.
There is a rule that three writeups are grounds for termi-
nation.
On April 30, 1990, Helton spoke to Chandler about Jones’
work performance as she was a danger to the person next to
her as she was working down the line with a pair of scissors
and then cutting the hearts and livers and not bringing them
back properly or dropping them in the drain properly. The
big factor was the danger to the person next to her (Gussie
McGilvery). He told Jones about this four or five times on
April 30. He had first observed Jones performing her work
improperly in the early morning about 7 o’clock. Chandler
told him he had observed Jones doing the same thing and
they needed to correct the problem. He had three conversa-
tions with Chandler that day about this problem and in the
third conversation, he told Chandler it would be necessary to
write Jones up for her job safety performance and Chandler
did so. Jones is the only employee with whom he has had
a problem with working up the line. No other employee
under his supervision has been terminated for bursting too
many galls, working up the line or having excessive waste
product. He acknowledged that there are machines on Jones’
line (the eviscerator) which can burst galls. There have been
problems with the eviscerator in the past. The main one was
with pulling the lungs out of the chicken or tearing breast
meat. Although the eviscerator will burst gall, usually an ad-
justment of the tension of the belts on it will correct this.
Ken Chandler, an 18-year employee and the supervisor
over first processing which includes 110 employees and 8 su-
pervisors, testified as follows: The eviscerating department
takes everything out of the chickens. There are four evis-
cerating lines and there is a separate foreman for each line.
Heart and liver trimmers reach up and pull the viscera (the
heart and liver) down, make three cuts, and separate the heart
and liver with a pair of very sharp curved scissors. During
his 18 years, there have been many accidents with these scis-
sors ranging from slight to very serious cuts. The rack has
14 spaces for birds which are usually hung for lungs and gall
on the outside skin. Gall bursting means the green bile from
the gallbladder has burst and soiled the product which then
must be trimmed and becomes a downgraded bird (i.e., from
‘‘A’’ to ‘‘parts missing’’). Gall bursting is a daily occur-
rence. Roughly 30,000 birds are run through each evis-
cerating line each day. One hundred burst galls is an average
day. Anything over 100 to 150 is a bad day. He can tell if
it is a bad day by looking down the line at the house inspec-
tors’ racks as they will be full and if you see green bile on
the outside of the birds, there is gall on them. If the rack
gets loaded, the mirror trimmer rings a bell or it may be no-
ticed visually. During the spring and summer of 1990 line
1 on which McGilvery, Jones, and Thomas worked had prob-
lems with burst galls. Respondent keeps track of burst galls
by having the venters or drawhands mark down any burst
gall that comes to the trimmers and on the other end of the
line at the house inspector, a separate sheet and anything
coming to her is marked down. You take the difference and
see where the burst galls are coming from. During this pe-
riod the heart and liver trimmers were bursting the most
galls. These tally sheets are thrown away at the end of the
day. When he was there observing the heart and liver cutters,
the gall bursting would decrease. The policy with issuing
written warnings is to talk to the employees until it reaches
a point where there is no change and employees do not re-
spond, at which point a written warning is issued as a last
resort. During this period of time Jones also had a problem
with cutting in front of another employee (Gussie
McGilvery) and Helton informed him the problem was con-
tinuing. The April 30 warning issued to Jones was for poor
workmanship and safety hazard for mixing hearts and livers
and working up the line in front of another employee. Jones
was the only employee consistently cutting in front of other
employees and was mixing hearts and livers as a result of
not working in front of her station. She was reaching as one
of the flumes was back and the other a little ahead of her.
She continued to have this problem after April 30. Warnings
were issued to Gussie McGilvery, Charlene Jones, and
Cecilia Hayes on June 18 for burst gall on line 1. After he
wrote these warnings he took them to personnel. He told Per-
sonnel Manager Dupre there was still a problem with Jones
cutting in front of McGilvery and told him it may be Jones’
third warning. He then went back to work. Later that day
Dupre told him it was Jones’ third written warning within a
12-month period which mandates discharge under Respond-
ent’s written policy. He had a subsequent conversation with
Jones when he went back to give her check to her. There
have been several personnel managers in the last few years
and at times there was no one manning the office. He was
unaware that McGilvery had three written warnings in her
file within a 12-month period until the initial hearing in this
case in January 1991. McGilvery is a good employee. They
were not having the problems with her that they were with
Jones. All of McGilvery’s warnings were group warnings. It
just didn’t stick in his mind. He was also unaware until this
hearing that Florestine Thomas and Sherry Collins had three
written warnings within a 12-month period and neither one
was terminated for this. He has terminated other employees
for three written warnings within a 1-year period.
87MARSHALL DURBIN POULTRY CO.
Chandler testified further: He issued the disciplinary write-
up for Jones on April 30. On June 18 he told Dupre around
9 a.m. that he had an employee who was not responding and
the only course would be a written reprimand and Dupre
agreed and then brought Jones into his office and wrote her
up and as it was her third written warning, he terminated her.
He told her the problem was the safety hazard of cutting in
front of other employees and this was causing her to drop
hearts and livers in the wrong cup. Jones said she was not
the only one doing it. He does not remember if Jones said
anything when he told her, she was terminated. He had first
observed Jones’ safety hazards over a 2- or 3-week period
prior to the April 30 date. He observed Jones continually cut-
ting in front of another employee trying to perform her work
and always trying to talk to the other employee and this
caused the other employee (Gussie McGilvery) to have to
move to the side. He saw her do it three or four times a
week. She would normally do it until someone told her about
it and then would get back in her own position. He told
Helton to go down to talk to Jones and Helton agreed it was
a problem which he also had noticed and Helton went down
to talk to Jones immediately. The situation did not improve
and he talked to her after Helton did. He and Helton talked
to Jones several times concerning the problem over a 2- or
3-week period prior to April 30. He walked up to Jones and
told her she should quit cutting in front of another employee
as it was a safety hazard. Chandler wrote the warning issued
to Jones on April 10, 1990, based on his personal observa-
tions of Jones, conversations with foremen, charts from trim-
mers and house inspectors and visual inspections of the work
station. He cannot remember specific conversations with
foremen prior to the issuance of this writeup.
Former Personnel Manager Mel Dupre testified as follows:
He was involved in the termination of Charlene Jones. Chan-
dler came into his office on June 18 and said they needed
to give that line (line 1) of heart and liver cutters a written
reprimand. Chandler said he had talked to these employees
about quality control and it was not getting better so he
wanted to give them all a written reprimand and in addition
Jones was a safety problem cutting in front of the next trim-
mer and she had been previously warned. Chandler said they
needed to look at her file as she was not responding to warn-
ings and when Dupre pulled her file he realized she had the
number of warnings which mandate termination. They told
her they were terminating her but if she wanted to think
about it, she could reapply and they would consider it after
several months. He was not aware that Gussie McGilvery
had three written warnings within a 12-month period until he
learned of it when preparing for this hearing.
Analysis
The General Counsel contends that Chandler’s account of
the April 10 writeup of Jones is unreliable and was countered
by Jones’ credible testimony that after she testified on behalf
of the Union Respondent started ‘‘constantly riding’’ her
‘‘for gall,’’ although her work performance had not changed
as corroborated by Gussie McGilvery who worked alongside
Jones and as supported by the testimony of Johnson that
McDonald told him in late April that Respondent was going
to get rid of all the union supporters. Johnson also testified
that McDonald referred to all the employees who testified at
the February representation hearing (including Jones) as ring-
leaders of the union campaign. Respondent’s failure to ques-
tion Helton regarding the April 10 allegation gave rise to an
inference that his testimony would have been adverse to Re-
spondent’s interest. The General Counsel also argues that
Chandler initially gave sweeping testimony about what had
happened with respect to this writeup but on cross-examina-
tion was unable to recall any specific dates or events. The
General Counsel concludes that the April 10 writeup was
issued solely because of Respondent’s discriminatory motiva-
tion to retaliate against Jones for her support of the Union
including her giving testimony on its behalf at the represen-
tation hearing.
With respect to the April 30 writeup of Jones, the General
Counsel contends that although this incident was not alleged
as a violation it was closely related to the other allegations
and fully litigated at the hearing and is ripe for determination
on the merits. The General Counsel contends that this write-
up for ‘‘poor workmanship and safety hazard. Mixing hearts
with livers and working up the line in front of another em-
ployee instead of at her position’’ was also violative as
‘‘Jones credibly testified she mixed hearts and livers together
only when told to do so and that when directed to separate
them she did so, and that she did not cut in front of other
employees but would occasionally if she fell behind reach up
the line.’’ The General Counsel notes that McGilvery cor-
roborated Jones’ testimony concerning the occasional reach-
ing by Jones and testified that Jones did not do this more
frequently than other employees and also notes the testimony
of employee Cecilia Hayes who testified she leaned over to
cut in front of another employee 10 to 15 times daily in the
presence of her supervisor, Ora Mae Marshall, without rep-
rimand or criticism and that she has seen other heart and
liver cutters do so without hearing of any criticism of them.
The General Counsel also relies on the testimony of Patricia
Walker that she had never heard of any employee other than
Jones being written up for cutting in front of an employee
on the line. The General Counsel also notes that the Re-
spondent offered no prior writeup of any employee for cut-
ting up the line. The General Counsel contends that Helton
and Chandler offered only vague accounts of conversations
with Jones and each other on this matter and that Chandler
was able to recall very little concerning this warning and on
one occasion Chandler testified erroneously that the ‘‘prob-
lem with Charlene cutting in front of another employee’’ was
‘‘her third written warning’’ and was the reason for dis-
charge.
With respect to the discharge of Jones on June 18, the
General Counsel contends that the discharge of Jones on
June 18 dovetails with the second discriminatory transfer of
Powell (discussed infra) also occurring on June 18 ‘‘entailing
her [Powell] being moved from the arduous task of making
boxes to the still more arduous, frenetically paced task of
cutting hearts and livers’’ as Jones and Powell were two of
the five employees who had testified as witnesses for the
Union in the representation hearing in February. The General
Counsel notes that on June 18 Respondent issued a third
writeup of Jones asserting she was discharged in accordance
with its rules mandating discharge of an employee for receiv-
ing three writeups in a 1-year period but that Respondent of-
fered no written rule on this subject although Helton, Chan-
dler, and McDonald testified that there is a written rule and
a company policy manual written in 1986. The General
88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Counsel also points to the Respondent’s failure to discharge
four other employees who had accumulated three writeups in
a consecutive 12-month period all of whom received these
writeups after 1985 when Respondent’s witnesses contended
that it promulgated a rule requiring dismissal of an employee
who receives three writeups within a 12-month period. The
General Counsel further contends that Foreman Helton, who
issued the June 18 writeups for excessive gall to Jones and
the other two heart and liver cutters working on her line, was
unable to ‘‘even estimate the number of times that he ob-
served Jones and her co-workers or approximate the time of
day of any of such occasions.’’ The General Counsel notes
that Helton was also unable to provide any specifics of his
purported conversations with these employees during the day
or to estimate the number of burst galls on that date.
Thus, the General Counsel contends that each of the warn-
ings issued to Jones was violative of the Act and that the
close scrutiny given to Jones by Helton as testified to by
Jones and corroborated by Walker, after Jones testified at the
representation hearing was also violative of the Act and al-
though this scrutiny was not specifically pleaded, it was fully
litigated at the hearing. The General Counsel also contends
that the discharge of Jones was violative of Section 8(a)(3)
and (4) of the Act and that a finding of a violation of the
April 30 warning should also be found as it was fully liti-
gated at the hearing although not specifically pleaded.
The Respondent contends that two of the three warnings
issued to Jones were group warnings given to other employ-
ees as well as Jones and that the General Counsel has con-
ceded that the April 30 warning was not violative of the Act
as it was not specifically pleaded as a violation. The Re-
spondent notes that Jones and other employees received
warnings for poor production including, excessive gall in the
past as evidenced by several copies of warnings issued to
employees in the past including one issued to Jones in 1984
and one issued to Jones in 1988 and thus contends that the
issuance of the warnings in this case was not unique. It con-
tends further that the General Counsel’s repeated questioning
of Chandler and Helton into the details of each of various
conversations with the employees and each other concerning
the warnings issued to Jones did not dispel the basic propo-
sition that Jones received warnings as did other employees
for poor performance and that she was the only employee
who consistently cut in front of other employees constituting
a serious safety hazard. It contends that Jones was thus dis-
charged pursuant to a valid rule that any employee receiving
three warnings within a consecutive 12-month period will be
discharged. It contends that the cases of Gussie McGilvery
and three other employees who also received three warnings
in a 12-month period and were not discharged, do not estab-
lish proof of disparate treatment of Jones but rather were the
result of poor recordkeeping by its personnel department as
a result of poor performance of a former personnel manager
prior to Dupre, turnover in that position, and a substantial pe-
riod of time when there was no personnel manager.
After a review of the foregoing, I find the General Coun-
sel has established a prima facie case of violations of Section
8(a)(3), (4), and (1) of the Act by the undue scrutiny of
Jones’ work following her giving testimony at the representa-
tion hearing on February 22, 1990, and the subsequent warn-
ings issued to her and by its discharge of her. Initially, I find
that Respondent’s animus toward the Union and its sup-
porters and its’ identification of Jones as a union supporter
who testified on behalf of the Union at the representation
hearing has been established and Respondent’s knowledge of
Jones’ role as a union supporter may be inferred to Helton,
Chandler, and Dupre who were involved in the actions taken
against Jones; I also have considered Jones’ long tenure with
Respondent as a 14-year employee who had spent the last 7
years in her job as a heart and liver cutter and who had re-
ceived only four written warnings in the past, and I find it
unlikely that her performance suddenly changed dramatically
for the worse as indicated by the three writeups issued to her
in 1990. I credit Jones’ testimony and that of Walker that
after Jones testified in February she became the subject of
close scrutiny by Helton who watched her for substantial pe-
riods of time and stood behind her on the line, as he had not
done in the past. I also credit the testimony of Jones as cor-
roborated by McGilvery and Hayes that Jones did not cut in
front of other employees on the line any more than did other
employees. I also find it significant that Jones was dis-
charged for three writeups in a 12-month period while other
employees so situated were not and find this establishes dis-
parate treatment of Jones. I also find it significant that Re-
spondent failed to produce a written rule requiring the dis-
charge of employees who are issued three writeups within a
12-month period and conclude that no such hard and fast rule
existed. I also find it unlikely that Respondent would have
been set on discharging Jones, a long-term employee for the
alleged infractions without an ulterior motive. I also find sig-
nificant the shifting reasons for discharge offered by Helton
and Chandler and the disparity in their respective versions of
the reasons for Jones’ discharge. I thus find that the scrutiny
of Jones, the warnings issued to her and her discharge were
all motivated by Respondent’s desire to retaliate against her
because of her support of the Union and giving testimony on
its behalf and find that these actions taken against Jones were
part of Respondent’s overall scheme to rid itself of sup-
porters of the Union. I find the April 30 writeup of Jones
and the close scrutiny of her following her testimony at the
February 22 representation hearing are closely related and
have been fully litigated. Denholme & Mohr, 292 NLRB 61
(1988). I thus find the Respondent has failed to rebut the
prima facie case established by the General Counsel and that
the Respondent violated Section 8(a)(3), (4), and (1) of the
Act by the close scrutiny directed against Jones, and by the
issuance of the April 10 and 30, and June 18 warnings to
Jones and Gussie McGilvey and Cecilia Hayes which were
inextricably interwined with the writeups of Jones and by the
discharge of Jones. Wright Line, supra; Transportation Man-
agement Corp., supra; and Roure Bertrand Dupont, Inc.,
supra.
The Discharge of William (Billy) Johnson
William (Billy) Johnson was a foreman in charge of the
grading and packing department and a 10-year employee of
Respondent until his discharge in May 1990, Johnson has
testified concerning a number of allegations in this hearing.
Johnson presented himself as a supervisor willing to do Re-
spondent’s bidding in its unlawful campaign conducted
against the selection of the Union as the bargaining rep-
resentative of its employees but only up to the point where
no actions would be taken against employees under his su-
pervision. Thus, Johnson as directed by Respondent’s man-
89MARSHALL DURBIN POULTRY CO.
agement by his own admission, willingly interrogated em-
ployees under his supervision concerning their union senti-
ments and wrote down their comments plus his assessment
as to whether they were prounion or procompany or their
opinions were unknown as to their sentiments concerning the
upcoming representation election. However, Johnson testified
he refused to carry out certain of Respondent’s manage-
ment’s instructions concerning retaliation to be taken against
known union supporters under his supervision. He testified
he was told by Plant Manager Malcolm McDonald to follow
up on the work of employees Temple and Cole, to get some-
thing on them so that they could be fired, and that he and
another employee checked boxes of chickens weighed by
Temple and Cole and found no errors and he reported this
to McDonald. He testified he refused to plant company prop-
erty on employees Temple and Cole as requested by Per-
sonnel Manager Mel Dupre and that he warned Temple and
Cole they should ‘‘watch their ass’’ as Respondent wanted
to fire them. He testified he was instructed to obtain the
names of the employees wearing union buttons on May 2 by
McDonald who told him six employees were wearing them
and found six employees wearing them but gave them each
an opportunity to remove their button before writing their
names on a list and thus gave McDonald a list with only four
names as some of the employees agreed to remove their
union buttons. Johnson also testified that when he was told
Temple had harassed employee Bonner, he talked to Bonner
who told him things were okay between her and Temple, and
he refused to give Temple a warning as directed by Vice
President Scott Varner who then issued the warning to Tem-
ple, himself. Johnson testified he believes he was discharged
because of his refusal to carry out unlawful orders to dis-
criminate against employees because of their support of the
Union and also because he (a white man) dated black fe-
males. He based these assertions on past warnings from
members of management and from a statement from his su-
pervisor, James Sanders, that Vice President Varner wanted
to discharge him because he dated black females. He also
testified that Sanders had chastised him for being too friendly
with Merle Temple, a union supporter, after a meeting at
which Assistant Director of Human Resources Neil Keith
had told the supervisors to give the cold shoulder to prounion
employees and that at the time of this warning by Sanders,
Sanders told him that Varner ‘‘wanted to fire his ass any-
way.’’ He also testified that a former plant manager had spo-
ken adversely about his dating black females and that other
employees had advised him of Respondent’s hostility toward
him as a result of his dating black females.
As noted in the Respondent’s brief, Johnson testified on
four occasions in the hearing concerning these and other alle-
gations. Initially, he testified concerning his discharge which
occurred on May 3, 1990. He testified that at 8:30 a.m. in
Plant Manager Malcolm McDonald’s office, McDonald said
that Vice President Varner had said that a number of em-
ployees on Johnson’s line were wearing union buttons and
that McDonald thought there were about six employees
wearing them and that McDonald wanted Johnson to get out
on his line and write down the names of the people and
bring the list back to him because he wanted to know who
the ‘‘son of bitches’’ were, Johnson testified he went out on
the line and explained to the employees what McDonald
wanted and some of the employees took their buttons off. He
wrote down only the names of the employees who refused
to take their buttons off. He turned the list into McDonald
and laid it on his desk without comment as McDonald was
on the telephone at the time.
Johnson testified that later that day about 4 p.m. he was
called to McDonald’s office and went inside with his imme-
diate supervisor, James Sanders, and Sanders closed the door
and McDonald closed the blinds in the office and said, ‘‘Bill
I have got some sad news for you.’’ Johnson said, ‘‘Yes,
What is it Malcolm?’’ McDonald said, ‘‘Scott [Varner] said
to let you go.’’ Johnson asked why and McDonald said he
didn’t know and talked for 3 or 4 minutes and told Johnson
he was the best supervisor he had ever had, the best in work-
ing with people and was leaving a lot of friends at Durbin
and he was one of them. McDonald told him to go Monday
and sign up for unemployment and he would have his sever-
ance pay for him next week. Sanders and Johnson then went
back to Sanders’ office and he asked Sanders what was
going on. Sanders said he didn’t know but it had something
to do with Personnel Manager Mel Dupre and Scott Varner,
that he and McDonald couldn’t do anything about it, and nei-
ther liked nor approved of it. Johnson testified as follows on
cross-examination: He was never told by management the
reason for his discharge and had no prior notice of it. The
following morning he became aware of Respondent’s as-
serted basis for his discharge when informed by fellow su-
pervisor and friend Robert Boutwell that Varner was telling
the foremen that Johnson had his hand in employee Annette
Fairley’s pants. Boutwell told Johnson he didn’t believe it.
Johnson told Boutwell, ‘‘It is a damn lie.’’ Johnson testified
Annette Fairley also called him the same day. Johnson testi-
fied he did not have his hand down Fairley’s pants and de-
nied ever having his hand down Fairley’s pants or grabbing
her breasts or engaging in physical horseplay with her or any
other employee.
Johnson testified that on May 3 he was in the box room,
which was under his supervision, and saw Personnel Man-
ager Mel Dupre who was in the box room before he entered
and before he went to Fairley in the box room. Johnson testi-
fied he put his hand on Fairley’s waist for about 2 or 3 min-
utes. He asked her how her diet was going. She said fine and
asked him how his diet was going and he said ‘‘pretty
good.’’ Johnson testified the employees had called him to the
box room to ask whether it was true that the Union had with-
drawn its petition for an election and he replied in the af-
firmative. Johnson said he had his back to Dupre who was
walking toward them and ‘‘Connie’’ (Richardson) said here
comes Dupre and ‘‘I said, f—k Dupre . . . . That was my
opinion of worrying whether or not Dupre was coming up
behind us or not. I had nothing to hide.’’ In his affidavit fur-
nished to the Region, Johnson had said of his encounter with
Fairley, ‘‘We had both been on a diet, and I pinched her out-
side her shirt above her pants and below her bra—in other
words at the waist line and asked her how her diet was
going.’’ He testified in response to questions about his affi-
davit that he both pinched her and had his arm around her
waist. In response to questions on cross-examination con-
cerning whether he had touched any other employee, he testi-
fied that in 1986 former employee Patricia Robinson asked
him on several occasions to feel her breasts and that on one
occasion she put his hand on her breasts and he felt her
breasts, but that this was the only occasion on which he ever
90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
touched an employee on her breast. Johnson identified an
Equal Employment Opportunity Commission (EEOC) charge
he filed on August 17, 1990, following his discharge on May
3, 1991, and which charge asserts that he was discriminated
against because of race because he, a white man, dated black
females. He sent correspondence to the plant asking for a
statement of the employees who worked in the box room
(Annette Fairley, Connie Richardson, Perry Tisdale, and
Ollie Wilson) but he did not specify what they were to say.
On redirect he testified it was a frequent occurrence for other
foremen in the plant to grab and do sensual and seductive
things to female employees during the time he was employed
by Respondent.
Scott Varner, the vice president of Respondent’s proc-
essing division testified he participated in the decision to dis-
charge Johnson in conjunction with Personnel Manager Mel
Dupre. He testified that on May 2 or 3 Dupre informed him
that he had walked into the box room and saw Johnson with
his hands down the pants of employee Annette Fairley.
Varner testified he asked Dupre if he saw exactly what he
was telling him and Dupre said he had and Varner told
Dupre to fire Johnson. Dupre said he would take care of it.
Varner had no conversation with Johnson.
Varner subsequently testified in Respondent’s case-in-chief
that he had never told Sanders that he wanted to run Johnson
off. He testified he discussed the wearing of buttons by em-
ployees with McDonald as there was a group of employees
wearing buttons and stickers and labels and the United States
Department of Agriculture (U.S.D.A.) does not allow it and
they wanted it stopped. He told McDonald he wanted a list
of employees who were wearing anything. He never saw the
list because the employees removed the items when re-
quested and there was no problem thereafter. He does not
know if a list was prepared. He told McDonald to terminate
Johnson because of the incident reported to him by Dupre.
Around the same day he had a conversation with Annette
Fairley and told her ‘‘we didn’t hold her accountable for the
problems, that a management person had created the prob-
lems for himself and it didn’t have anything to do with her.’’
Johnson was recalled to the stand by the General Counsel
to testify concerning additional charges filed during a recess
of the hearing and in cross-examination was questioned con-
cerning testimony he had allegedly given to the effect that
he had never touched an employee while employed by Re-
spondent and he denied that he had said that he had never
touched an employee. He testified he does not recall ever
touching an employee on their private parts. He testified no
employee had touched him on his private parts with the ex-
ception of Diane Dawkins who 2 or 3 years ago stuck her
hand in his lab coat and grabbed his privates and then
walked around describing the size. He also testified that 4 or
5 years ago employee Connie Richardson grabbed his jog-
ging pants and pulled them toward her, pretending to see his
privates and yelled. He also testified that employee Shirley
Dansler used to engage in horseplay by grabbing his arm and
saying ‘‘she was going to whip your ass.’’ On cross-exam-
ination Johnson testified he believes he was terminated be-
cause of his longstanding dating of black females and also
because of his refusal to commit unlawful acts against
prounion employees. This references his reporting that he
had not found any problems with prounion supporters Tem-
ple’s and Cole’s work after checking it in response to
McDonald’s telling him to check their work and find a rea-
son to fire them, his refusal to agree to plant company prop-
erty on Temple and Cole in order that it might be found in
their possession and used as a pretext to discharge them as
requested of him by Personnel Manager Dupre, his friendli-
ness to Temple and Cole and his refusal to give them the
cold shoulder as directed by Assistant Director of Human
Resources Neil Keith in his meeting with the foremen when
Keith told the foremen to give the prounion employees the
cold shoulder, his failure to list all the employees who wore
prounion buttons on the morning of the same day of his dis-
charge as requested of him by McDonald on orders from
Varner and his refusal to issue a warning to employee Tem-
ple as directed by Varner. He testified further on cross-exam-
ination in response to questions by Respondent’s counsel that
he had never attempted to make physical contact with Brenda
Fudge, a former employee and did not ask her out. He testi-
fied he has seen her several times since she left her employ-
ment with Respondent as she has an account at the rental
store he manages and that she told him she had refused to
testify. He also testified in response to a question by Re-
spondent’s counsel that he has never heard of Diana Smith.
Johnson testified further that members of management
have known about him cohabiting with a black female for 5
years, that in October 1986 the former plant manager told
him he had heard that Johnson was living with a black fe-
male. The plant manager (C. B. McMillen who has since
died) said ‘‘I am speaking for myself and the Company, we
are not going to put up with it’’ and told Johnson to either
get rid of her or lose his job. Johnson testified that the black
female involved with him has never worked in his depart-
ment but did work for Respondent for 8 or 9 months in
1989. He testified further that in October 1989 he told
McDonald that he was thinking of taking a job with the
U.S.D.A. as they have been good friends and that McDonald
told him to think pretty hard on it (seriously consider it) as
a ‘‘bunch of people in Birmingham [Respondent’s home of-
fice] put a bunch of shit on you. Scott Varner didn’t like
your living with a black female and especially now that they
had gotten wind of the union organizational meeting going
on.’’ He testified McDonald then said ‘‘I can’t tell you what
to do. You and I have always worked together and gotten the
job done but the people in Birmingham don’t like it. You
probably need to consider taking the job with U.S.D.A.’’
Johnson also testified that in March or April 1990 his imme-
diate supervisor, James Sanders, told him that he and John-
son should talk after work. After work that day he went to
Sanders’ office who questioned him about living with a black
female and Sanders told him it made no difference to him
‘‘but the people in Birmingham don’t like it.’’ Johnson said,
‘‘Well Jim, I said, yes I am’’ and Sanders said, ‘‘Well Scott
Varner is planning on running your ass off for it’’ and John-
son said, ‘‘well tell him to go ahead.’’
The General Counsel also called Annette Fairley to the
stand. Fairley testified that on May 4 Scott Varner spoke to
her outside the plant and asked if she knew why Johnson
was discharged. She replied she did not and asked him the
reason, Varner told her ‘‘I just want you to know it didn’t
have anything to do with you.’’ She testified that Johnson
did not have his hands in her pants and that on May 3 John-
son came into the box room as he always did and talked to
the employees and they were talking, ‘‘and he stood beside
91MARSHALL DURBIN POULTRY CO.
me and put his hand around my waist. And he said, my old
Annette—she sure losing that weight.’’ She testified that
prior to Johnson’s discharge no supervisor or member of
management asked her what occurred between her and John-
son and she did not discuss it with them.
On cross-examination she testified that Johnson touched
her but not improperly. She acknowledged that Johnson had
talked sexually to her and she has heard him make sexual
comments about other employees such as ‘‘I bet she got a
good body’’ but nothing else. The comments were made
weekly. She testified further on cross-examination that on
May 2 Johnson had his arm around her waist for 3 or 4 min-
utes. He came up and grabbed her around the waist and said
‘‘my old buddy Annette—she is sure losing that weight,’’
and ‘‘I just said, yes, I am.’’ She acknowledged that she has
wrestled with Johnson in the past but denied that he ever
slammed her on top of the boxes in response to questioning
about this by Respondent’s counsel. She testified that John-
son might hit her on the shoulder and she would hit him
back.
In its case-in-chief Respondent presented the testimony of
several witnesses concerning the discharge of Johnson. They
were box room employees Perry Tisdale and Ollie Wilson,
employee Cynthia Bonner, former employee Brenda Fudge,
former Personnel Manager Dupre, McDonald, Sanders, and
Varner. Tisdale testified that he worked around Johnson and
on several occasions had observed Johnson touch the breasts
and buttocks of Annette Fairley and that Fairley engaged in
sexual horseplay with Johnson and that on one occasion she
grabbed Tisdale’s penis. He observed Johnson put his hand
on Fairley’s buttocks just about every day. Tisdale talked to
an EEOC investigator about this. On cross-examination Tis-
dale testified he has heard former Supervisor and Foreman
Otha Hinton make sexual remarks to women (including Ann
Thompson) 20 or 30 times. He observed Hinton physically
touch Thompson on the buttocks on more than one occasion.
He has also seen written matter depicting sexual acts. He has
heard Foreman Luke Moody make remarks of a sexual na-
ture to female employees at least 20 times and has observed
Moody make sexual proposals to females.
Box room employee Ollie Wilson (a female) initially testi-
fied she never observed Johnson touch another employee.
She also testified to an occasion when she observed former
employee Diane Dawkins with her hand inside Johnson’s lab
coat describing and laughing about the size of his penis and
Dawkins and Johnson and Wilson all laughed. She testified
she never saw Johnson touch an employee’s breasts or but-
tocks. She observed Johnson and Fairley engage in horse-
play, wrestling and one time Johnson picked up Fairley and
threw her down on a pallet of unmade boxes. On another oc-
casion Fairley scratched him on the arm during horseplay.
She also testified that on one occasion she saw Fairley
‘‘screwing T-Bone’s (Perry Tisdale’s) bootie’’ (described as
grabbing a person from behind by the hips and making a mo-
tion depicting sexual intercourse up against them). She iden-
tified a typed statement given to her by Johnson stating that
she was 10 feet away from Johnson and Fairley on May 3
during the alleged incident and did not see Johnson engage
in any improper conduct. He had also previously given her
another statement saying she was only 3 feet away from
them at the time. She testified she was actually 50 feet away.
On cross-examination, she testified she never observed John-
son grab or touch any female in an improper or sexual man-
ner or on their private parts. She has never told any member
of management or supervision about any incident between
Johnson and Fairley. She testified that conversations of a
sexual nature are common among some employees. She testi-
fied that Johnson was with Fairley every day and it was so
common, she did not pay any attention to it. Employee Cyn-
thia Bonner testified that on one occasion when she bent
over Johnson tried to slip his hand down her shirt but she
pushed his hand away. Former employee Brenda Fudge testi-
fied she worked for Johnson in the packing department and
quit in 1989. In June 1990 she had a conversation with
Dupre when she was rehired. Dupre asked her why she had
resigned previously and she told Dupre she was under pres-
sure and felt Johnson had made a pass at her. In answer to
a question, she testified she had not said that Johnson had
tried to feel her up. She later testified on cross-examination
that she told Dupre the work was hard and ‘‘I had got hit
on by Billy (Johnson).’’
Respondent also called Mel Dupre, the former personnel
manager at Respondent’s Hattiesburg plant from January to
December 1990 when he resigned to accept another position.
With respect to the discharge of Johnson, Dupre testified that
on the date of the discharge there was an emergency tele-
phone call for a maintenance mechanic and he could not lo-
cate him through the call system so he left his office and
went looking for him in the refrigeration area which is adja-
cent to the box fabrication area. He testified, ‘‘There were
two women who would fold boxes on each side and send
them up a conveyer and Billy Johnson was standing behind
one of those people, and his back was to me as I walked up,
and her back was to me also.’’ The individual whom John-
son was standing behind was Annette Fairley and across the
way was Connie Richardson who was facing him. ‘‘As I
walked up, I noticed that Billy Johnson had his hand down
Annette Fairley’s pants.’’ Questioning by Respondent’s coun-
sel and answers by Dupre continued:
Q. What was he doing?
A. He seemed to be massaging her buttock.
Q. Did you say anything to him at that time?
A. No, I didn’t. When he saw me he pulled his hand
out and acted as though nothing happened.
Q. Did he say anything to you at that time?
A. No.
Dupre testified further that he regarded this as a serious mat-
ter and waited until Vice President Scott Varner, who was
coming in that day, arrived and discussed it with him and
a decision was made to discharge Johnson. Dupre testified he
had never observed any similar conduct by a supervisor.
Dupre testified there had been previous allegations of sexual
harassment by ‘‘hugging people on the line or rubbing up
against them, or talking dirty to them, that kind of thing—
these were investigated and not substantiated.’’ Dupre denied
ever having asked Johnson to plant property on any em-
ployee. He testified there was no reason for Johnson’s termi-
nation other than his conduct observed by Dupre with
Fairley.
On cross-examination, Dupre was questioned concerning
Supervisor Luke Moody who was transferred from the vacu-
um pack area to the knife line following allegations by sev-
92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
eral employees under his supervision that Moody had en-
gaged in sexual harassment of certain of the female employ-
ees by sexually explicit comments and giving certain of them
credit for time worked that they did not work and allegedly
soliciting sexual favors in return. After a lengthy investiga-
tion conducted by Dupre and Second Processing Supervisor
Sanders of the allegations involving discussion with all par-
ties including Moody who denied the charges, Dupre testified
he and Sanders concluded they believed Moody. Dupre was
unable to verify improprieties on the timecards. Dupre told
Sanders that Moody probably did not yet identify himself as
a supervisor and may have tried to protect some of the em-
ployees and did not know how to keep them in line and dis-
cipline them and after consultation with Plant Manager
McDonald they decided to move Moody to the knife line on
Dupre’s recommendation to McDonald that Moody had a
good record and they wanted to retain him. He did not per-
sonally observe Moody engage in any improper conduct.
The Respondent called Malcolm McDonald, the Hatties-
burg plant manager, and questioned him concerning the dis-
charge of Johnson. McDonald testified that on May 2 he
brought Johnson into his office with Sanders present and ‘‘I
said, Bill, I said, management decided it would be better off
without your employment, and you would be better off un-
employed here. He said, ‘What?’ I said, Yes, I said, We are
letting you go.’’ ‘‘And he said, ‘Well,’ he said, ‘what can
I say?’ I said, Well Billy, you have been a good supervisor.
I said, You haven’t ever given me any trouble. I said, You
have been a good supervisor and you have been good with
people, I said, if you ever need a reference, I said, let me
know.’’ ‘‘He said, ‘Well,’ he said, ‘I appreciate it.’ And he
got up and he said, ‘but really,’ he said, ‘why are you all
terminating me?’ I said, Well, Bill, I don’t think you want
to discuss it. He said, ‘Yes.’ He said, ‘Why are you all let-
ting me go?’’’ ‘‘I said, Well Bill, it is women is the reason
we are letting you go. He said, ‘Women?’ I said, Yes,
women. He said, ‘What are you talking about?’ I said, Well,
Bill, I really don’t think you want to discuss it. He said, ‘No,
I don’t.’’’ ‘‘And he said, ‘Well what about my severance
pay?’ I said, Well, you know, I don’t know. He said, ‘Well,
you all— everybody else you have ever let go, you give
them 2 weeks severance pay.’ I said, Yes, I said, I will tell
you what I will do. I said, I will see if I can’t get Mr. Varner
to give you 2 weeks severance pay.’’ ‘‘He said, ‘Well, if you
give me 2 weeks severance pay you won’t hear any more out
of me.’ I said, Well Bill, I can’t promise whether I can get
you 2 weeks or not. I said, but I will try to get you 2 weeks
severance pay.’’ McDonald testified he then called Varner
and obtained a check for 2 weeks’ severance pay and sent
it to Johnson. McDonald testified he does not believe Sand-
ers said anything during the meeting with Johnson. He de-
nied telling Johnson that Varner told him to fire him and that
he McDonald did not know why. He told Johnson he was
one of the best supervisors he had ever had. On cross-exam-
ination McDonald testified that when he referred to women
in his discharge of Johnson, he was referring to the fol-
lowing:
Johnson came to us 10 years ago. He was an out-
standing employee. Then people came to me in the
plant and told me he had been seen with ladies. Then
I saw him friendly with a lady in further processing,
sitting and talking.
He testified that employee Johnnie C. Jones came to him in
1988 and said she saw Johnson eating dinner ‘‘with a col-
ored woman’’ ‘‘and I says, You are kidding.’’ ‘‘She said,
‘No,’ she said, ‘I did.’ And I said, Well, nothing I can do
about it.’’ Subsequently, another employee told him ‘‘that
Billy had some pictures made with a lady. He seen the pic-
tures, she worked on the eviscerating line at the time.’’ Sub-
sequently in late 1989 or early 1990, Supervisor Tom Thorla
told him that one of the ladies who worked for Thorla had
moved in with Johnson and was sharing utilities. She quit
approximately 6 weeks after this. McDonald further testified,
‘‘We don’t terminate people on hearsay, but it was the talk
of the plant.’’ He did not ask Johnson about it. McDonald
testified further that ‘‘the final instance that got Johnson’s
job’’ was when Varner and Dupre came to his office and
said we are going to have to let Johnson go. ‘‘I said, What?
They said, ‘We caught him with his hands in a lady’s pants
in the box room.’ I said, Well, if you all done that, he needs
to be let go. And they said—Mr. Dupre said, well, we sure
did.’’ ‘‘And I said, Well, I am the plant manager here; it is
my responsibility. I said, I will take care of it, I said, I will
let him go.’’ Throughout his testimony McDonald maintained
there was a written rule prohibiting the dating of employees
by supervisors. He was referring to the Respondent’s policy
manual, I noted on the record that the manual does not refer
to supervisors specifically.
Annette Fairley was recalled by the General Counsel and
testified that Johnson never touched her breasts. She ac-
knowledged that about once or twice a month Johnson would
pat her on the buttocks and comment that she had ‘‘a big
butt.’’ She testified she thought nothing of this and it did not
affect her in any way. She denied ever having touched Perry
Tisdale’s penis or ever having grabbed him from behind and
making motions as though engaged in sexual intercourse
(‘‘screwing the bootie’’). On cross-examination, she testified
she did not remember if counsel for the Respondent asked
her at the time she initially testified in January whether John-
son had touched her breasts or not.
Johnson was also again called to the stand by the General
Counsel on rebuttal and testified he did not on any occasion
try to touch Cynthia Bonner’s breasts and he did not on any
occasion touch Annette Fairley’s breasts. He has on occasion
patted Annette Fairly on the buttocks ‘‘as you would a
friend.’’ Nothing else took place. Diane Dawkins came up
behind him in the box room and ‘‘reached her hand real
quickly through the slit (in his lab coat) and did grab my
penis, and grabbed the front part. She removed her hand. She
took it out, and then she laughed about it. She went around
telling everybody how big it was.’’ ‘‘I told Diane to stop,
because it made me mad.’’ He denied having told McDonald
at the time of his discharge that if the Respondent gave him
2 weeks’ severance pay, the Respondent would not hear any-
thing more from him. McDonald did not tell him at the time
of his discharge that it was because of women. He did not
tell McDonald that he really did not want to hear the reason
for his discharge or words to that effect. He asked McDonald
the reason for his discharge and McDonald said he did not
know, but Scott said to let him go. He reasserted that Brenda
Fudge is a former employee who worked for him for awhile,
93MARSHALL DURBIN POULTRY CO.
that he never made any sexual advances toward her and that
as he is presently the manager of A. J. Rental, he sees her
every month as she rents her furniture there. He testified ad-
ditionally that he saw her about 2 weeks after the initial
hearing in January in this case at which time he had seen
her in the building where the hearing was held. She told him
she did not know he was suing Respondent. He told her it
was an NLRB hearing. She told him she hoped he got those
‘‘sons of bitches,’’ that she had gone back there last summer
and asked to speak to him, and they said he wasn’t there any
longer and the personnel manager with the glasses asked if
she knew anything on Johnson. Johnson testified she told
him she needed a job and knew it was difficult to be rehired,
but if you made a sexual harassment excuse that would
throw a different light on it, and that she told Dupre that
Johnson had made a pass at her and that was the reason she
quit. Johnson testified she apologized, told him it was a lie,
and that she wasn’t going to testify at the hearing. Johnson
told her he appreciated it and that was the end of the con-
versation.
James Sanders, the supervisor over second processing and
Johnson’s immediate supervisor, was called to testify by Re-
spondent and questioned concerning the allegations of sexual
harassment against Supervisor Luke Moody and the inves-
tigation of the matter by himself and Dupre. He testified that
when he got Moody and the women involved in the same
room to discuss the allegations which Moody denied, there
were a lot of accusations and denials back and forth and the
women’s stories fell apart and were not near as convincing
as before. He also found no evidence of tampering with the
timecards. He and Dupre concluded there was no merit to the
women’s allegations and took no further action. Sanders was
not questioned regarding the discharge of Johnson.
Analysis
The General Counsel, in brief, contends that later in the
day on May 3 following Johnson’s submission of only a par-
tial list of employees wearing union buttons, he was called
into McDonald’s office and discharged and that ‘‘Johnson’s
credible testimony shows that McDonald told Johnson that
Varner said to fire him but McDonald did not know the rea-
son.’’ ‘‘McDonald commended Johnson for his skills with
working with people. Johnson left the premises without being
advised by any agent of Respondent any reason for his dis-
charge or even being asked any question concerning any as-
pect of his conduct or performance. Johnson later learned
that Respondent claimed its discharge of him was based
upon his having his hand in Annette Fairley’s pants.’’
‘‘Johnson denied having his hand in the pants of Fairley. She
corroborated his testimony.’’
The General Counsel contends that ‘‘Respondent’s asser-
tions regarding what was said during the course of the dis-
charge conversation in dispute are critically impaired by its
failure to question its agent Sanders about that matter, thus
giving rise to an adverse inference,’’ citing International
Automated Machines, 285 NLRB 1122 (1987). The General
Counsel contends that ‘‘Johnson was a far more trustworthy
witness than McDonald’’ and that the enlargement of the
grounds for the decision to discharge Johnson given by
McDonald over the reason asserted by Varner show that Re-
spondent’s defense is riddled by shifting reasons for the dis-
charge. The General Counsel contends that Johnson’s dating
of black women and cohabitation with a black woman were
not the reason for his discharge notwithstanding Johnson’s
subjective belief as Respondent had knowledge of this for 4-
1/2 years and took no action to discharge Johnson because
of it and that ‘‘The remarks made to Johnson by other agents
of Respondent concerning upper management’s racist views
at most reflect a feeling that Johnson’s chances for advance-
ment with Respondent would be impaired by his personal
life or an effort to intimidate Johnson into falling into line
with Respondent’s illegal campaign against the Union by
calling Johnson’s attention to the costs involved with failing
to do Respondent’s bidding.’’ The General Counsel further
contends that the record shows that ‘‘Varner, in conjunction
with Dupre, made the decision at issue. Their unequivocal
testimony further shows that their decision was solely attrib-
uted to a pretextual assertion, at a time coming hard on the
heels of Johnson’s submission of a mere partial list of em-
ployees wearing union buttons, as the latest of a series of his
refusals to make common cause in the unbridled commission
of unfair labor practices.’’ The General Counsel contends
that Johnson’s subjective assessment of the reason for his
discharge is irrelevant as a matter of law. The General Coun-
sel contends that Dupre was an untrustworthy witness refer-
ring to his account of the investigation and conclusion alleg-
edly reached with respect to Supervisor Luke Moody and
that a reading of Dupre’s account of the Moody matter ‘‘is
enough to lay to rest any scintilla of lingering doubt that
Dupre is not credible and his assertions regarding Johnson’s
conduct are not believable.’’ The General Counsel cites for
the principle of law that the discharge of a supervisor be-
cause of his refusal to commit an unfair labor practice is vio-
lative of the Act. See Parker-Robb Chevrolet, 262 NLRB
402, 404 (1982); Country Bay Machets, 283 NLRB 122 fn.
2 (1987); and Phoenix Newspapers, 294 NLRB 47 (1989).
The General Counsel concludes that there can be no doubt
that the Respondent’s stated reason for the discharge of John-
son ‘‘was false’’ and that ‘‘the surrounding facts tend to re-
inforce’’ the inference that the motive for Johnson’s dis-
charge was his ‘‘repeated refusals to fully serve Respondent
in its pervasive unlawful plan to crush employee support of
the Union,’’ citing Shattuck Denn Mining Corp. v. NLRB,
362 F.2d 466, 479 (9th Cir. 1966). The General Counsel thus
contends that the record establishes that Johnson’s discharge
by Respondent was violative of Section 8(a)(1) of the Act.
With respect to the question of reinstatement, the General
Counsel contends that the applicable legal standard for fore-
closing reinstatement ‘‘requires a showing of ‘flagrant’ se-
verity, entailing violence or misdeeds so opprobrious as to be
indefensible’’ citing NLRB v. Washington Aluminum Co., 370
U.S. 9, 12 (1963); Family Nursing Home, 295 NLRB 923
(1989). The General Counsel notes that at the hearing the
Respondent contended it had discovered during its trial prep-
aration that Johnson during his tenure at Respondent had en-
gaged in various acts of sexual harassment so opprobrious
that they justify his disqualification from reinstatement. The
General Counsel contends this ‘‘assertion is sham.’’ The
General Counsel contends that the testimony of box room
employee Perry Tisdale that on several occasions he saw
Johnson touch Annette Fairley’s breasts and buttocks and
that on another occasion Fairley touched Tisdale on his penis
should not be credited as it was credibly denied by Johnson
and Fairley. The General Counsel contends that the testi-
94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mony of box room employee Ollie Wilson that on one occa-
sion she saw employee Diane Dawkins put her hand through
a slit in the lab jacket that Johnson was wearing and laugh-
ingly describe the size of Johnson’s penis is ‘‘devoid of puta-
tive value—showing only that Johnson was the victim of a
crass act against him,’’ in view of Johnson’s unrebutted testi-
mony that he told Dawkins to stop. The General Counsel
contends that Bonner’s testimony that Johnson tried to reach
his hand down her shirt was credibly denied by Johnson and
her testimony consisted ‘‘entirely of generalized characteriza-
tion alone—as she responded solely in subjective terms, as
she purported to describe what Johnson ‘tried to do,’ not any
actual act or physical motion that he in fact performed.’’ The
General Counsel contends that ‘‘Fudge gave wholly
conclusionary testimony that Johnson ‘made a pass’ at her or
‘hit on’ her.’’ The General Counsel contends that Johnson
gave straightforward and responsive testimony, while ‘‘Fudge
sought to testify outside the presence of Johnson in the ab-
sence of any legitimate basis’’ and concludes that Fudges’
testimony was ‘‘not worthy of probative value or credence.’’
The General Counsel contends that the testimony of Dupre
concerning the issue of Johnson’s reinstatement ‘‘was com-
prised wholly of hearsay assertions, concerning his interview
of applicants for rehire Fudge and Diana Smith.’’ The Gen-
eral Counsel concludes that ‘‘Respondent’s assertions regard-
ing Johnson’s conduct are hollow and contrived.’’
The General Counsel called several witnesses to dem-
onstrate what he contends was ‘‘the sexually permissive at-
mosphere at Respondent’s plant.’’ Employee Temple testified
and identified several cartoons depicting sexually explicit ob-
scene acts and caricatures which were distributed to her by
certain of Respondent’s supervisors. Former Office Manager
Carol Bullock who was office manager from 1981 to 1988
testified concerning the conduct of Supervisor Otha Hinton
‘‘in telling gross, sexually explicit jokes in the presence of
her and other female personnel in the office, while also phys-
ically molesting female clerical employees, with no relief
being given by Respondent,’’ although she ‘‘repeatedly un-
successfully complained to McDonald’’ about it. The General
Counsel cites the testimony of James Shows who had been
employed in 1988 and who testified that he was forced to
quit because of the actions of employee Willie Moody who
‘‘repeatedly, daily grabbed him by the hips when Shows bent
over to pick up a box for shipping, and ‘humped’ him, ‘like
two dogs’ and placed a piece of paper on his back that said
‘Willie’s girl,’’’ which was done with the knowledge of Re-
spondent’s supervisors ‘‘to whom he complained, with no re-
lief.’’ The General Counsel also cites the testimony of em-
ployee Patricia Walker that in March 1989, First Processing
Supervisor Chandler made lewd comments to her concerning
her coworker and that ‘‘on or about January 23, 1991, she
observed admitted Supervisor Ora Mae Marshall sitting
across from Chandler with her foot in his crotch.’’ The Gen-
eral Counsel also cites the testimony of employees Sharon
Holloway and Annette Strickland that their ‘‘supervisor Luke
Moody engaged in a long course of misconduct entailing his
crediting female employees employed under his supervision
with time that they did not work while expressly seeking, as
quid pro quo, sexual favors from them—requested in gross
language.’’ The General Counsel notes that after its inves-
tigation ‘‘Respondent’s response was to simply reassign su-
pervisor Moody to the supervision over a different depart-
ment.’’
The Respondent, in its brief, contends that Johnson was
terminated after Personnel Manager Dupre observed him
with his hand down the pants of Annette Fairley, an em-
ployee who reported to him and was observed rubbing her
buttocks. It notes Dupre’s testimony that when Johnson ob-
served Dupre he pulled his hand out and acted as though
nothing had happened. It also notes Johnson’s testimony on
cross-examination that he was warned by Richardson of
Dupre’s approach and said ‘‘f—k Dupre’’ with his only ex-
planation for this comment being that he had ‘‘nothing to
hide’’ Respondent’s counsel argues that since this was a seri-
ous matter involving a member of supervision Dupre wanted
to discuss the matter with Varner who was scheduled to be
in the office later that day and that when Dupre told Varner
of this and confirmed it, the decision was made to terminate
Johnson. Respondent contends Fairley was not asked about
this incident other than to be told after Johnson’s discharge
that it was a management problem since her denial would not
have changed management’s decision as her concurrence had
no bearing on Respondent’s potential liability as Johnson’s
actions were a violation of Federal law and were sufficient
grounds for termination in any workplace. Respondent con-
tends that Johnson’s assertion that he was discharged because
he refused Dupre’s request that he plant company property
on employees Temple and Cole is ridiculous as Dupre has
over 15 years’ experience as a personnel director and has
been involved in several union campaigns where he trained
supervisors not to violate the Act and he is also well versed
in the law of sexual harassment.
Respondent further contends that Johnson’s testimony was
contradictory as he acknowledged telling the EEOC that he
believed the decision to terminate him was made in Sep-
tember 1989 well before Dupre’s request of Johnson and
even before Dupre was hired by Respondent. Johnson also
acknowledged having told the EEOC that Dupre was ‘‘only
too happy’’ to help Varner find ‘‘anything’’ for his dismissal
because of an incident on May 1 or 2 when Dupre withheld
money from the checks of two employees who owed the Re-
spondent money as Johnson testified:
I went directly to the manager, McDonald, and in-
formed him of this. I believe he really got on Dupre
for this . . . which only could mean that Dupre was
only too happy to help Varner To find anything for my
dismissal.
Respondent further contends that Johnson’s allegation con-
tained in his unfair labor practice charge in this case filed
5-1/2 months after his dismissal is an afterthought as on Au-
gust 31, 1990, he filed a charge with the EEOC alleging he
was discharged because ‘‘the Company [had] a problem with
[him] dating black females.’’
The Respondent further contends that Johnson’s testimony
during the four times he took the stand and in his affidavits’
was inconsistent as on his first time on the stand, he denied
having his hands down Fairley’s pants or touching her
breasts and he testified that he had his arm around her waist
and complimented her on her diet whereas in his Board affi-
davit he said nothing about having his arm around her waist
but said that he pinched her ‘‘above the waist and below the
95MARSHALL DURBIN POULTRY CO.
bra.’’ On the first occasion he took the stand he denied en-
gaging in any physical horseplay with Fairley. He also de-
nied having been exposed to an employee or having been
touched by other employees. He did acknowledge being
forced to touch the breasts of employee Patricia Robinson
back in 1985 or 1986. The Respondent further notes that in
April when Johnson was called to the stand for a second
time by the General Counsel after a recess of over 3 months
from the hearing in January, Johnson then testified that an-
other employee, Diane Dawkins had touched him on the
penis and that Fairley observed his penis after pulling on his
jogging shorts. In a second affidavit, which was given after
the January hearing Johnson stated that Fairley ‘‘may tes-
tify’’ that she ‘‘felt his privates.’’ He also acknowledged
‘‘horseplaying’’ with employees Diane Dawkins and Shirley
Dantzler after having denied this 3 months earlier. The Re-
spondent contends the EEOC investigation ‘‘flushed out sev-
eral individuals who had seen Mr. Johnson commit similar
acts’’ pointing to the testimony of Tisdale who testified he
observed Johnson touch Fairley’s breasts and buttocks and
the testimony of Wilson who testified ‘‘She observed what
appeared to be fellow employee Diane Dawkins playing with
Mr. Johnson’s penis and heard her say that she wanted to
‘screw him in the backside with a rubber dick.’’’ and who
further testified she ‘‘saw Mr. Johnson and Ms. Fairley en-
gage in rough horseplay, where he picked her up and threw
her down on a pile of boxes, and she scratched him.’’ The
Respondent also contends that Johnson ‘‘attempted to influ-
ence the testimony of the employees in the box room,’’ as
Wilson identified a proposed statement given to her by John-
son, which states:
I was walking approximately 10 feet from Bill And
Annette on the morning when Mel Dupre was visiting
the Box Room. I have never noticed any action that is
improper, immoral, or harassing.
Date
Respondent notes that Johnson ‘‘first denied and then admit-
ted sending the above statement to all employees that worked
in the box room’’ and that Wilson testified Johnson origi-
nally asked her to sign a statement that she was only 3 feet
away and when she did not sign that statement he sent her
the above statement. Respondent also contends that John-
son’s allegations in the instant case are further undermined
by Wilson’s testimony concerning a conversation Johnson
had with her at a service station after his discharge in which
Wilson testified:
He told me that he wanted me to talk to some lady
and that it didn’t have nothing to do with the Union.
It had something to do with his private life, and he
wanted to know, did Jim Sanders or either Scott
Seabrook had asked me questions about him going with
them women down there.
Respondent also notes the testimony of Bonner that Johnson
had tried to put his hand down her shirt. The Respondent
also points to the testimony of Fairley who ‘‘admitted he
[Johnson] touched her buttocks ‘once or twice’ a month and
told her what a big butt she had,’’ and her testimony that
Johnson ‘‘made sexual comments to her on a weekly basis
and talked about other females’ body.’’ The Respondent fur-
ther contends that testimony submitted by the General Coun-
sel after the presentation of Respondent’s defense concerning
evidence of improprieties by other supervisors did not rebut
the Respondent’s case as ‘‘None of the alleged conduct was
similar to that committed by Johnson’’ and the General
Counsel ‘‘did not establish that the conduct was known or
observed by members of upper management.’’ Specifically,
Respondent asserts that ‘‘No other supervisor has ever
fondled an employee and remained employed.’’ Respondent
further contends that ‘‘the facts uncovered during the course
of the EEOC investigation and from applicants Brenda Fudge
and Diana Smith preclude Mr. Johnson’s possible reinstate-
ment.’’
Respondent contends that ‘‘The Supreme Court and the
lower federal courts are unanimous in holding that an em-
ployer which fails to take prompt remedial action in response
to evidence of a supervisor’s sexual misconduct is itself
guilty of sexual harassment,’’ citing Meritor Savings Bank v.
Vinson, 477 U.S. 57 (1986); Jones v. Flagship International,
793 F.2d 714 (5th Cir. 1986), cert. denied 479 U.S. 1065
(1987); and Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982). The Respondent also argues that the Board has
held ‘‘an employer does not violate Section 8(a)(3) by dis-
charging a union activist for sexual harassment, especially
where there is no evidence that the incident is a setup and
no evidence of disparate treatment,’’ citing Lancer Corp.,
271 NLRB 1426 (1984). Respondent argues in the alternative
that if the discharge of Johnson is found violative his ‘‘pre-
termination conduct discovered subsequent to May 3, 1990,
bars any claim for reinstatement or back pay,’’ citing
Axelson, Inc., 285 NLRB 862, 866 (1987); John Cuneo, Inc.,
298 NLRB 856 (1990).
I conclude that the General Counsel has established a
prima facie case that the discharge of Johnson was motivated
in part because of Johnson’s refusal to go the extra mile by
taking adverse actions against employees under his super-
vision. In this regard I credit Johnson’s testimony that on
several occasions he was requested to take punitive actions
against prounion employees and declined to do so. Specifi-
cally, I credit Johnson’s testimony that he was told by
McDonald to check on the work of prounion employees Cole
and Temple to find a reason to discharge them and after
checking on chickens they had processed he reported back to
McDonald that there was no problem with their work. I cred-
it Johnson’s testimony that Dupre requested that he plant
company property in the possession of prounion employees
Cole and Temple and that he refused to do so. I find cor-
roboration of Johnson’s testimony in the testimony of Tem-
ple who testified that Johnson told her to ‘‘watch her ass’’
as Respondent was looking for a way to fire her and Cole
who testified to a similar warning. I also credit Johnson’s
testimony that he refused to give a written warning to Tem-
ple after discussing with Bonner, Temple’s alleged harass-
ment of Bonner and reporting to Varner that Bonner had in-
dicated there was no problem and his refusal to issue the
warning notwithstanding Varner’s demands that he do so. I
also credit Johnson’s unrebutted testimony that following a
meeting at which Assistant Director of Human Resources
Neil Keith had told the foremen to give the cold shoulder to
prounion employees, he was engaged in laughter with
prounion employee Temple and was chastised by his imme-
96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
diate supervisor, Sanders, for doing so after having just at-
tended the meeting with Keith and being told to cold shoul-
der the prounion employees and that he received a warning
from Sanders that Varner wanted to run Johnson off anyway.
I further credit Johnson’s testimony that on the day of his
discharge he was asked to report the names of all employees
who were wearing prounion buttons but turned in less than
six names after permitting employees to remove their buttons
and not reporting the names of those who removed them
after having initially been told by McDonald that six em-
ployees were wearing the buttons. I found Johnson’s testi-
mony to be explicit and detailed concerning these various in-
cidents and credit it. I note also that Bonner was not ques-
tioned concerning the incident with Temple. With respect to
the specific incident involving Johnson’s allegedly having his
hand in Fairley’s pants, I credit Johnson that he did not have
his hand in Fairley’s pants and Fairley who corroborated his
testimony over the testimony of Dupre. I note that neither
party called employee Connie Richardson who was, accord-
ing to both Dupre and Johnson, standing across the conveyor
belt at the time when Dupre walked into the box room.
In making this determination, I have considered several
factors such as Respondent’s demonstrated animus against
the Union, as established by a number of antiunion state-
ments made by Respondent’s representatives to Johnson and
to other employees and other violations found as well as Re-
spondent’s demonstrated animus against Johnson and the
warning by Sanders to Johnson concerning his being too
friendly with prounion employee Temple as well as the tim-
ing of Johnson’s discharge the day of the withdrawal of the
Union’s petition for an election. I have also considered the
circumstances under which Johnson was alleged to have had
his hand down the pants of Fairley and find it unlikely that
he would have done this while standing immediately across
from another employee. I have also considered the versions
of the discharge given by McDonald and Johnson and the
failure of Respondent to question Sanders regarding the dis-
charge of Johnson by McDonald at which he was present and
find that this failure by Respondent to question Sanders re-
garding this supports an adverse inference that his testimony
would not have supported McDonald’s position in this re-
gard. I found McDonald’s testimony to be unconvincing, in-
cluding his attempt to embellish the reasons for Johnson’s
discharge by referring to earlier incidents in which he con-
tended it was widely known in the plant that Johnson associ-
ated socially with black females. Accordingly, I credit John-
son’s testimony concerning the conversation between himself
and McDonald at the time of his discharge and find that
Johnson was not apprised of the reason for his discharge. I
further credit the testimony of Johnson concerning the com-
ments made by Sanders after he and Johnson left McDon-
ald’s office that he and McDonald did not like what was
going on with respect to the discharge of Johnson. Accord-
ingly, I find that the General Counsel has established a prima
facie case that the discharge of Johnson was motivated at
least in part by Johnson’s refusals to take punitive actions
against prounion employees and Respondent’s displeasure
with these refusals by Johnson to fully carry out its unlawful
goals. I am persuaded that although Johnson may have in-
curred the displeasure of Respondent’s management because
of his dating of black females and cohabiting with a black
female, it was not until the advent of the union campaign
and Johnson’s refusals to fully carry out Respondent’s un-
lawful requests to take punitive actions against prounion em-
ployees that Johnson was discharged. I find that the Re-
spondent has failed to rebut the prima facie case of a viola-
tion of Section 8(a)(1) by its discharge of Johnson. Wright
Line, supra; Transportation Management Corp., supra; and
Roure Bertrand Dupont, Inc., supra. See also Parker Robb
Chevrolet, supra; Country Bay Machets, supra; and Phoenix
Newspapers, supra. Re: Discharges of supervisors.
With respect to the question of reinstatement, Respondent
contends that even if its discharge of Johnson is found to be
violative of the Act he should be barred from reinstatement
and denied backpay as a result of a number of infractions re-
garding alleged sexual harassment discovered after the May
3 discharge of Johnson. In this regard, it cites the testimony
of Tisdale regarding alleged instances in which Johnson
touched the breasts and buttocks of Fairley, the testimony of
Fairley and Johnson in which both acknowledged that John-
son regularly patted Fairley on the buttocks in a friendly
manner which Fairley did not mind, the testimony of Fairley
that Johnson made comments to her of a sexual nature which
Johnson did not deny, horseplay engaged in by Johnson with
Fairley, an instance in which a female employee touched
Johnson’s penis, and one instance admitted by Johnson in
which an employee put his hand to her breast and he felt it.
It also cites the testimony of former employee Fudge that
Johnson made a pass at her and that of Bonner that Johnson
attempted to put his hand down her shirt which was not re-
ported to management and the hearsay testimony of Dupre
that former employee Diana Smith told him Johnson had
come on to her. I have reviewed each of these matters as
well as the various matters submitted by the General Coun-
sel, including the testimony of former Office Manager Carol
Bullock concerning the conduct of former Supervisor Otha
Hinton and the testimony of former employee James Shows
concerning the conduct of employee Willie Moody and the
testimony of Ruth Strickland, and Sharon Holloway con-
cerning the conduct of Supervisor Luke Moody, all of which
were reported to management and at least two of which
(Hinton and Willie Moody) were apparently known and tol-
erated by management and one of which (Luke Moody) was
dismissed by management after an investigation as well as
the testimony of several employees that Respondent per-
mitted an atmosphere of sexually explicit conduct including
the use of a copy machine to copy sexually obscene cartoons
and distribute them to employees.
Although I find that the discharge of Johnson was viola-
tive of the Act, I find that the Respondent has presented suf-
ficient evidence to justify the denial of reinstatement to John-
son. It is well settled that sexual harassment carried out by
a supervisor which is known and tolerated by an employer
may subject the employer to liability, and will justify the em-
ployer’s discharge of the offending supervisor. Initially I find
Johnson, by his own admission, engaged in horseplay with
Fairley and according to the testimony of employee Ollie
Wilson, whom I credit, Johnson and Fairley regularly en-
gaged in rough horseplay. Fairley also testified that Johnson
regularly patted her on the buttocks telling her what a ‘‘big
butt’’ she had and made sexual comments about other female
employees such as ‘‘she has a good body.’’ I credit Fairley
in this regard. Johnson admitted patting Fairley on the but-
tocks. Tisdale testified that Johnson frequently touched
97MARSHALL DURBIN POULTRY CO.
Fairley’s breasts and buttocks. I credit his testimony. Bonner
testified unequivocally that on one occasion Johnson at-
tempted to put his hand down her shirt but she brushed it
away and did not report it to management. I credit her testi-
mony. I do not rely on the testimony of Fudge which was
conclusionary and lacking in specific detail as to what John-
son did when he allegedly made a pass at her. I also do not
rely on the hearsay testimony of Dupre concerning the com-
ments made by former employee Diana Smith. Nor do I rely
on the incidents related by Johnson and Wilson when other
employees touched Johnson’s privates or in which one em-
ployee put his hand to her breast in one instance. I find that
Johnson engaged in a course of conduct that constituted a
basis for sexual harassment claims and that fully justifies
barring his reinstatement notwithstanding other evidence of
Respondent’s permissive attitude toward sexually explicit
conduct by its supervisors and employees in the past. I thus
will recommend that he be barred from reinstatement. It is
also well settled that a discriminatee may be barred from re-
instatement based on evidence of other misconduct discov-
ered subsequent to his unlawful termination by an employer.
Axelson, Inc., supra; John Cuneo, Inc., supra.
I thus find that Respondent has shown that Johnson’s
course of conduct was such as to fully justify barring his re-
instatement. No employer should be required to reinstate an
employee who engages in a course of conduct of sexual har-
assment which may subject the employer to liability therefor.
However, it appears from the evidence presented by the Gen-
eral Counsel and I find that Respondent permitted an overall
pattern of conduct by its supervisors which would support a
basis for sexual harassment claims. Under these cir-
cumstances, it is questionable whether Respondent could
meet its burden of proof in showing that it would not have
employed or continued to employ Johnson as set out in John
Cuneo, supra. Its tolerance of such behavior by other super-
visors and employees certainly calls into question whether
Respondent would have discharged Johnson for his engage-
ment in sexual harassment in the absence of his refusal to
commit unfair labor practices. Under these circumstances, I
find that to deny Johnson backpay to make him whole for
his loss of earnings and benefits sustained by him as a result
of Respondent’s unfair labor practices would not constitute
an adequate remedy to further the purposes and policies of
the Act. Accordingly, I recommend that Johnson should not
be reinstated but should be made whole for all loss of earn-
ings and benefits until such time as he has obtained substan-
tially equivalent employment elsewhere. See Hillside Avenue
Pharmacy, 265 NLRB 1613 (1982), in which the Board fash-
ioned a similar remedy in which the conduct of the employer
in committing the unfair labor practice did not directly lead
to the misconduct by the discriminatee. In the instant case,
the tolerance of sexual harassment or at least the appearance
of the tolerance of such behavior by its supervisors and em-
ployees permitted an atmosphere conducive to the type of
misconduct engaged in by Johnson although it certainly does
not excuse the misconduct of Johnson. Accordingly, I rec-
ommend that Johnson be denied reinstatement but be made
whole for all loss of earnings and benefits sustained by him
until he obtains substantially equivalent employment else-
where. In this regard both the Respondent and Johnson will
shoulder responsibility for their coduct.
The Alleged Unlawful Transfer to More Arduous Work,
Reduction in Hours, Harassment, and Constructive
Discharge of Ruth Powell
The evidence established that Ruth Powell was a long-
term employee of Respondent who testified on behalf of the
Union in the representation hearing of February 1990. Powell
was a union supporter and on one occasion spurned an offer
of an apron with the caption ‘‘Vote No,’’ which was being
distributed to employees on behalf of Respondent’s campaign
against union representation and instead attached a legend of
‘‘Vote Yes’’ on her own apron in support of the union cam-
paign. Powell testified that on May 23 she was reassigned
from her job in the net room making nets and stapling prices
which job she had been performing the last 3 or 4 years, and
was assigned to make boxes in the box room by her Super-
visor Bobby Boutwell who told her she would be making
boxes from then on as he had kept her in the net room as
long as he could. Powell was 63 years old at the time of the
hearing and the net room job was a relatively nonstrenuous
job which was also performed by employees who were preg-
nant and could no longer perform their regular jobs. The box
making job requires significantly greater effort and involves
the lifting and folding of heavy corrugated cardboard boxes.
At the time of her reassignment to the box line, Boutwell re-
assigned employee Dallas Meyers who had been making
boxes to the net room thus effecting a transfer of the two
employees to each others’ position. Powell testified she lost
10 to 15 minutes of time per day as a result of the transfer.
At the time of the hearing and during all times since the
transfer, Dallas Meyers has continued to be assigned to the
net room according to the unrebutted testimony of former
Supervisor Bobby Boutwell, who testified on the final day of
the hearing in this case, having resigned from Respondent
the day before. Boutwell testified that he had reassigned
Powell to the box line and removed her from the net room
on orders from his immediate superior, James Sanders, who
had repeatedly told him to reassign Powell out of the net
room and who told him on the day of the transfer to do it
to keep ‘‘his [Sanders’] butt’’ out of trouble. Boutwell also
testified that on a prior occasion Vice President Scott Varner
had told him to get Powell out of the net room but that he
had not complied with this. Boutwell testified he had resisted
transferring Powell out of the net room because she did good
work in the net room and he needed her there. Subsequently,
on June 18 Powell was transferred to the eviscerating line as
a heart and liver cutter, a job which requires constant motion.
Powell had performed this job in the past. Sanders testified
that he was asked by First Processing Supervisor Ken Chan-
dler if he would permit the transfer of several employees
who had experience as heart and liver cutters to the evis-
cerating line supervised by Chandler and that Chandler spe-
cifically requested Powell. Sanders testified that Chandler
was having trouble with excessive turnover among the heart
and liver cutters, because of quits and terminations of em-
ployees who could not do the job. Chandler recalls asking
Sanders to permit certain of his employees to be transferred
to the eviscerating line but did not specifically recall having
requested Powell. As a result of the work and motion re-
quired as a heart and liver cutter Powell developed shoulder
problems and was off work from June 26 to July 5. She saw
a physician, Dr. Campbell, who prescribed muscle relaxants
and pain relievers for her shoulder. When she returned to
98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work on July 5 she was reassigned to a dirty parts room
where her preexisting allergies acted up and she could only
remain one morning. Powell testified she had discussed the
allergies with Plant Manager Malcolm McDonald previously.
McDonald testified at the hearing that she had some time
prior thereto recommended a doctor to him for his asthma
and said that the doctor had ‘‘straightened her out.’’ On that
morning she left work again with her allergic condition and
her shoulder in pain stating that she would see Dr. Campbell
and the Respondent’s workmen’s compensation doctor, Dr.
Conn.
She subsequently returned once again to work on July 30
and was assigned to the washout station which involved
washing out chickens which have become soiled with gall
and other matter. When she asked to return to her net room
job, Personnel Manager Mel Dupre told her there was no
longer a net room job. Dupre and Chandler also carried on
a conversation about her as if she were not present with
Dupre contending he did not know what to assign her to do
and Chandler contending there was nothing for her to do ex-
cept cut hearts and livers which was the job that had resulted
in her shoulder problems. Powell testified that on August 3
Dupre and Chandler met with Powell and showed her a letter
asking if Dr. Conn had written it. Dr. Conn examines Re-
spondent’s employees for work related injuries. Powell had
previously been examined by him. Powell replied she did not
know if Dr. Conn had written the letter. Dupre asked her
several times whether her previous job was cutting hearts and
livers. Powell replied it was working in the net room. Dupre
then said he was taking her off of workmen’s compensation
which she had been on for her injury to her shoulder and
would tell Dr. Conn that she had said she could do anything
in the plant. Powell testified she told Dupre she was going
to see Dr. Conn the next week and would not return to work
until that time. Powell testified she returned to the wash tank
although feeling ill. At the end of her workday she sought
out Dupre and asked him for a copy of the letter as she
doubted it had been written by Dr. Conn. She testified Dupre
initially agreed but was stopped by McDonald and both en-
tered McDonald’s office. When Dupre came out of McDon-
ald’s office he handed her a piece of paper. Powell left the
plant and prior to getting in her car she read it and felt it
was not the same document Dupre had read to her in the
meeting. She returned to the office and confronted Dupre and
he contended it was the same letter whereas she contended
it was not. During this conversation Dupre said he had never
been on welfare, food stamps, or workmen’s compensation.
Powell said she had worked for Respondent for 30 years,
that she had never previously been on workmen’s compensa-
tion and that it was her money. Obery who was in the office
agreed with her, concerning it being her money. Powell then
said she might as well leave as she could not get anywhere
with Dupre. Dupre then asked Powell who is 63, her age,
and when she declined to tell him, he spoke in a low voice
and said, ‘‘You are just senile,’’ Dupre denied the version
of the conversation by Powell, Obery did not testify, I credit
Powell’s version.
Powell left work on August 3 and saw Dr. Campbell who
recommended she seek treatment at the Pine Belt Mental
Health Services in Hattiesburg, Mississippi, for severe anx-
iety and depression about her job, which she did. Subse-
quently, Dupre spoke to Powell’s daughter and asked her to
have Powell call him about returning to work. On August 21,
Dupre wrote Powell telling her to contact him within 2
weeks about returning to work or she would be considered
to have quit. Powell’s personal attorney, responded on her
behalf on September 4 by letter informing Respondent that
Powell was undergoing treatment for depression and anxiety
related to her job and was temporarily totally disabled. Re-
spondent did not contact her attorney but again wrote Powell
on September 7 informing her she should contact it by Sep-
tember 12 or be terminated. Powell who was undergoing
treatment did not further reply and was terminated on Sep-
tember 17.
Analysis
The General Counsel contends that Powell, a 63 year old
lady, was transferred from her job in the net room (a rel-
atively nonstrenous job which she had performed for the last
3 or 4 years) to several more arduous and unpleasant jobs
in the box making room, on the eviscerating line, in the parts
room and at the washout station, in retaliation for her support
of the Union because of her giving testimony at the represen-
tation hearing in February 1990 and her support of the Union
and that these reassignments to arduous and unpleasant work
and the verbal abuse directed against her by Respondent’s
management (particularly Personnel Manager Dupre) made
her work so intolerable as to effect her constructive discharge
or in the alternative that she was discharged by Respondent.
The Respondent contends that it has not discriminated
against Powell but that the net room job disappeared as a re-
sult of a decrease in orders for whole chickens which was
caused by the loss of its National Food store account and
that the other jobs assigned to her were relatively easy jobs
and that it made reasonable efforts to accommodate Powell
but that she voluntarily quit after numerous efforts of Re-
spondent to contact her concerning her return to work. It also
relies on testimony of Robert Boutwell and Sanders that
other employees in the net room became upset with things
Powell had said to them in the net room.
I find that the General Counsel has established a prima
facie case that the Respondent assigned Powell to more ardu-
ous and unpleasant jobs and transferred her from the net
room job resulting in a reduction of time at the end of the
day and ultimately as a result of this and verbal abuse by
Respondent’s agents made her continuation of work so intol-
erable that she was forced to quit her job thus effecting her
constructive discharge. The record supports the finding that
Powell abandoned her job as a direct result of Respondent’s
discrimination against her. In the event the Board finds Pow-
ell was not constructively discharged, I find also that the
September letter of Respondent supports a finding that she
was discharged by Respondent. In either event, I find that
these acts of retaliation were taken against her because of her
support of the Union in violation of Section 8(a)(3) and (1)
of the Act and because of her giving testimony on behalf of
the Union at the representation hearing in violation of Sec-
tion 8(a)(4) and (1) of the Act. I found Powell to be a cred-
ible witness. I also found Boutwell to be a credible witness
who, although he took great pains not to unduly assess Re-
spondent’s motivation, told the truth and refuted Respond-
ent’s management’s contentions that the net room job no
longer existed as a full-time job. I do not find Respondent
to have acted out of concern for Powell or its business oper-
99MARSHALL DURBIN POULTRY CO.
ations but rather to have driven her out of her job. It may
well be that Powell, a 63 year old woman, had a predisposi-
tion to depression and anxiety although nothing in the record
establishes this. However, it is readily apparent that Re-
spondent’s unbending efforts to remove her from her net
room job and assign her to other jobs notwithstanding her
difficulties encountered were contrived and carried out to
harass a known union adherent who had been open in her
support of the Union and had resorted to Board process by
testifying on behalf of the Union. While these actions might
or might not have similarly affected another employee so as
to constitute a constructive discharge, they were sufficient to
do so here. As stated above in the event the Board does not
agree with a finding of constructive discharge, I find that she
was at a minimum unlawfully discharged by Respondent in
September 1990 as Respondent had been put on notice by
her attorney and by Dr. Campbell that she was suffering
from anxiety and depression. I have thus concluded that the
Respondent has failed to rebut the prima facie case of a vio-
lation of the Act by the preponderance of the evidence.
Wright Line, supra; Transportation Management Corp.,
supra; and Roure Bertrand Dupont, Inc., supra. See also
Crystal Princeton Refining, 222 NLRB 1068, 1069 (1978);
Kime Plus, 295 NLRB 127 (1989); and Bennett Packaging
Co., 285 NLRB 602 (1987). Re: Constructive discharge.
The Threat Issued to Supervisor Barnes
Supervisor Billy Ray Barnes testified that in December
1990 and subsequently on January 10, 1991, the last work-
day preceding the opening of the hearing in the instant case
on January 11, 1991, First Processing Supervisor Chandler to
whom Barnes reports, inquired whether Barnes was ‘‘going
with’’ an employee stating that he had heard rumors of this.
Barnes who has been cohabitating with employee Annette
Fairley for approximately 4 years denied that he was ‘‘going
with’’ an employee. Chandler then told him Respondent had
a policy prohibiting supervisors from going with or staying
with employees and he could be terminated for doing so.
Barnes testified that prior to this he had never been ques-
tioned concerning his association with Fairley whom it will
be recalled was the alleged victim of purported sexual har-
assment by Johnson giving rise to his discharge. The only
written policy introduced in evidence concerning anything re-
motely near to the alleged prohibition about which Chandler
warned Barnes was Respondent’s policy of May 1, 1988, en-
titled ‘‘Employment of Relatives’’ which permits the em-
ployment of relatives but prohibits employees from super-
vising their relatives. It was stipulated that Barnes and
Fairley have never worked in the same department. Chandler
who was called by Respondent admitted he had spoken to
Barnes concerning the alleged rumors and did not deny hav-
ing threatened Barnes, although he did deny any knowledge
that Fairley would testify at the hearing. Plant Manager
McDonald also contended that Respondent had a policy pro-
hibiting supervisors from dating employees which he con-
tended was contained in the provision entitled ‘‘Sexual Har-
assment.’’ Respondent also offered a letter dated October 18,
1990, from the area office of the Equal Employment Oppor-
tunity Commission (EEOC) in which that office informed
Respondent it had information that Fairley and Barnes lived
together and Respondent’s letter of October 23, 1990, re-
sponding that this would ‘‘be looked into immediately.’’
Barnes who testified he mentioned these inquires of Chandler
to Fairley testified she did not respond.
Analysis
The General Counsel contends that the inquiry and threats
made by Chandler to Barnes were calculated to influence or
prevent the testimony of Fairley on the Johnson discharge
matter by coercing Barnes to coerce Fairley. I conclude that
this is exactly what was intended and the obvious purpose
of Chandler’s inquiry and threats. In making this determina-
tion, I rely on the complete absence of any written rule pro-
hibiting social relationships between supervisors and employ-
ees, the remoteness in time of the inquiry by the EEOC in
October which was also in an unrelated context concerning
the race of Barnes and Fairley, the timing of the inquiries
and threats by Chandler shortly and immediately before the
start of the hearing in this matter, and the obvious knowledge
that may be inferred to Chandler as one of the highest man-
agement officials at this plant of the likelihood of Fairley
being called as a witness in this matter. I thus find that the
threat toward Barnes was violative of Section 8(a)(1) of the
Act as it was calculated to interfere with Fairley’s protected
right to testify in this hearing. See Orkin Exterminating Co.,
270 NLRB 404 (1984); Professional Eye Care, 290 NLRB
738, 748 (1988). Re: Protection of the Act precluding retalia-
tion against supervisors because of their refusal to commit
unfair labor practices. See NLRB v. Schriver, 405 U.S. 117
(1972). Re: Public policy considerations for the protection of
free employee access to Board process.
CONCLUSIONS OF LAW
1. The Respondent, Marshall Durbin Poultry Company, is
now and has been at all times material an employer within
the meaning of Section 2(2), (6), and (7) of the Act.
2. United Food and Commercial Workers International
Union, AFL–CIO is now and has been at all times material
a labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent acting through its plant manager, Malcolm
McDonald, violated Section 8(a)(1) of the Act by
(a) On or about late January or early February 1990 inter-
rogating employee Ruth Powell regarding her union member-
ship, activities, and sympathies and those of her fellow em-
ployees.
(b) On or about February 19, 1990, informing its employee
Rebecca Cole that it would be futile for the employees to se-
lect the Union as their bargaining representative.
(c) On or about February 28, 1990, threatening employee
Rebecca Cole with discharge because of her activities on be-
half of the Union.
(d) On or about May 2, 1990, threatening to discharge em-
ployee Barney Chisholm if he disclosed the contents of a
conversation with him regarding his being barred from the
plant premises after working hours by Respondent’s manage-
ment.
4. Respondent violated Section 8(a)(1) of the Act acting
through its vice president, Scott Varner, by
(a) On or about late January and March 1990 threatening
its employees with plant closure if they selected the Union
as their bargaining representative.
100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) On or about February 26 and mid-March 1990 threat-
ening its employees with reduced wages and benefits if the
Union was selected as their bargaining representative.
(c) On or about mid-March 1990 threatening its employees
with reduced benefits if the Union was selected as their bar-
gaining representative.
5. Respondent violated Section 8(a)(1) of the Act by and
through its supervisor, Billy Johnson, by
(a) On or about late February 1990 telling employees Re-
becca Cole and Myrtle Temple that Respondent’s plant man-
ager, Malcolm McDonald, had ordered him to check their
work to find fault with it in order to discharge them.
(b) On or about March 1, 1990, soliciting its employees
to withdraw their support of the Union and promising them
job security if they demonstrated to Respondent that they had
done so.
(c) On or about March 16, 1990, telling its employees that
if they withdrew their support of the Union, they would save
their jobs.
(d) On or about late April or early May 1990 informing
its employees Respondent had instructed him to harass them
because of their engagement in union activities.
(e) On or about April 20, 1990, informing its employees
Myrtle Temple and Rebecca Cole that Respondent’s per-
sonnel manager, Mel Dupre, had instructed him to plant Re-
spondent’s property on their person in order to accuse them
of stealing in order to discharge them.
(f) On or about May 3, 1990, informing its employees that
Respondent was making a list of its employees who wore
union insignia.
6. Respondent violated Section 8(a)(1) of the Act through
its supervisor, Robert Gaines, by informing its employees
that their raises were withheld because of their activities on
behalf of the Union.
7. Respondent violated Section 8(a)(1) of the Act by and
through threats of discharge issued by Supervisor Ken Chan-
dler to Supervisor Billy Ray Barnes in late December 1990
and on or about January 11, 1991, in order to restrain em-
ployee Annette Fairley from testifying in this hearing.
8. Respondent violated Section 8(a)(1) of the Act by and
through various supervisory personnel, including William
(Billy) Johnson, Robert Boutwell, and James Gurlach who
interrogated its employees regarding their union membership,
activities, and sympathies.
9. Respondent violated Section 8(a)(3) and (1) of the Act
by since on or around late April and early May 1990 dispar-
ately prohibiting employee solicitation activity on its prem-
ises by permitting antiunion activities while prohibiting
prounion activities engaged in by its employees
10. Respondent did not violate Section 8(a)(3) and (1) of
the Act by on or about February 1990 delaying the conferral
of a wage increase plan on its employees.
11. Respondent violated Section 8(a)(3) and (1) of the Act
by on or around March and April 1990 reducing the work-
week of its employees at its Hattiesburg, Mississippi plant.
12. Respondent violated Section 8(a)(3) and (1) of the Act
by in or about May 1990 refusing to allow its employee Bar-
ney Chisholm to stay in the breakroom or its parking lot
premises at its facility beyond his working hours, and by is-
suing him a written reprimand for remaining on the premises.
13. Respondent violated Section 8(a)(3), (4), and (1) of the
Act by on or about March 22, 1990, decreasing the hours of
its employees Myrtle Temple and Rebecca Cole. It did not
violate the Act by decreasing their hours in January 1990.
14. Respondent violated Section 8(a)(3), (4), and (1) of the
Act by on April 12, 1990, by issuing a written warning to
its employee Myrtle Temple.
15. Respondent violated Section 8(a)(3), (4), and (1) of the
Act by on April 30 and May 17, 1990, by issuing written
warnings to its employees Rebecca Cole and Myrtle Temple.
16. Respondent violated Section 8(a)(3), (4), and (1) of the
Act on April 6, 1990, by issuing a written warning to its em-
ployee Patricia Walker.
17. Respondent violated Section 8(a)(3), (4), and (1) of the
Act by on or about May 23, June 18, and August 2, 1990,
assigning more onerous work to and decreasing the hours of
its employee Ruth Powell and by harassing her on or about
August 2, 1990.
18. Respondent violated Section 8(a)(3), (4), and (1) of the
Act by on or about September 17, 1990, causing the termi-
nation of its employee Ruth Powell.
19. Respondent violated Section 8(a)(3), (4) and (1) of the
Act by on or about April 10 and 30 and June 18, 1990,
issuing written warnings to its employee Charlene Jones, and
by on or about June 18, 1990, issuing warnings to its em-
ployees Gussie McGilvery and Cecilia Hayes.
20. Respondent violated Section 8(a)(3), (4), and (1) of the
Act by on or about June 18, 1990, discharging its employee
Charlene Jones.
21. Respondent violated Section 8(a)(1) of the Act by dis-
charging its supervisor, William (Billy) Johnson, on May 3,
1990, because of his refusal to commit unfair labor practices
and in order to discourage its employees from joining, sup-
porting, and assisting the Union or engaging in other con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection.
22. The aforesaid unfair labor practices as found herein in
conjunction with the status of the employer as found above
constitute unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has violated the Act, it
shall be ordered to cease and desist therefrom, and to take
certain affirmative actions including the posting of an appro-
priate notice, designed to effectuate the purposes of the Act.
Respondent shall rescind its unlawful warnings issued to its
employees, Barney Chisholm, Myrtle Temple, Rebecca Cole,
Patricia Walker, Charlene Jones, Gussie McGilvery, and
Cecilia Hayes. Respondent shall rescind its unlawful termi-
nation of its employees, Charlene Jones and Ruth Powell,
and its unlawful reduction in work hours, and transfer of its
employee Ruth Powell and offer them full reinstatement to
their former positions (including reinstatement to her former
position in the net room in the case of Ruth Powell), or to
substantially equivalent positions if their former positions no
longer exist, and make them whole for all loss of pay and
benefits, including seniority and other rights and privileges
sustained by them as a result of Respondent’s unlawful dis-
crimination against them by reason of their discharge and by
reason of its transfer and reduction of work hours of Ruth
Powell. Respondent shall also make whole Rebecca Cole and
Myrtle Temple for all loss of pay and benefits sustained by
them as a result of Respondent’s unlawful decrease in their
101MARSHALL DURBIN POULTRY CO.
2 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6624.
work hours in March 1990 and thereafter and shall make
whole its employees at its Hattiesburg plant for all loss of
pay and benefits sustained by them as a result of Respond-
ent’s unlawful decrease in their work hours in March and
April 1990 as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950). Backpay and benefits shall be with interest, as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).2 Respondent shall rescind its unlawful dis-
charge of former Supervisor William (Billy) Johnson. Rein-
statement is not recommended in the case of Johnson as a
result of the opprobrious conduct found to have been com-
mitted by him prior to his discharge but discovered subse-
quent to said discharge, but Respondent shall be ordered to
make him whole for loss of backpay and benefits with inter-
est until such time as he has found substantially equivalent
employment. Respondent shall also expunge its records of all
references to the unlawful warnings issued to employees Bar-
ney Chisholm, Myrtle Temple, Rebecca Cole, Patricia Walk-
er, Charlene Jones, Gussie McGilvery, and Cecilia Hayes, of
all references to the unlawful discharges of its employees
Ruth Powell and Charlene Jones and to its discharge of Wil-
liam (Billy) Johnson, and inform each of the above-named
employees in writing that such unlawful actions shall not be
used against them in any manner in the future. Respondent
shall also preserve all necessary records for backpay and
benefits and make them available to the Regional Director
for Region 15 or his representatives. As a result of the wide-
spread and egregious unlawful acts committed by the Em-
ployer, I recommend a broad cease-and-desist order.
[Recommended Order omitted from publication.]