Marval Poultry Co., Inc.

National Labor Relations Board - Board Decisions

Nov 29, 1960

129 N.L.R.B. 803 (N.L.R.B. 1960)

MARVAL POULTRY COMPANY, INC. 803
2. International Union, United Automobile, Aircraft. and Agricultural Implement
Workers of America, AFL-CIO, is a labor organization within the meaning of
Section 2 (5) of the Act.
3. Local Union No. 299, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and I-elpers of America, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
4. By distributing authorization cards of the labor organization named in para-
graph No. 3, above; by making statements to its employees attempting to persuade
them to join said labor organization ; and by threatening dire consequences if the
employees failed to join said labor organization,. Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act. .
6. Respondent 's discharge of Ambrosene Peterson was not in violation of Section
8(a)(1) and (3) of the Act.
[Recommendations omitted from publication.]
Marval Poultry Company, Inc. and Amalgamated Meat Cutters
and Butcher Workmen of North America, Local 504, AFL-
CIO. Case No. 5-CA-1591. November "29, 1960
DECISION AND ORDER
On July 27, 2960, Trial Examiner John H. Eadie issued his Inter-
mediate Report in the above-entitled proceedings, finding that the
Respondent had engaged in and was engaging in certain. unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor, prac-
tices as alleged in the complaint, and recommended that these particu-
lar allegations be dismissed. Thereafter, the General Counsel and
the Respondent filed exceptions to the Intermediate Report and sup-
porting briefs... ,
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection- with this case to a three-member
panel [Chairman Leedom and Members Rodgers and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report,.the exceptions and briefs, and the entire, record in this
case, and hereby adopts,the findings, conclusions, and, recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in this case, and. pursuant to Section 10(c.)
of the National Labor Relations Act, as amended, the National Labor
129'NLRB No. 86.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the Respondent, Marval Poultry
Company, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Meat Cutters and
Butcher Workmen of North America, Local 504, AFL-CIO, or any
other labor organization of its employees, by discharging or in any
other manner d,scriminating in regard to their hire or tenure of em-
ployment or any term or condition of employment.
(b) Interrogating its employees in a manner constituting inter-
ference, restraint, or coercion concerning their membership in or
activities on behalf of said Union, or any other labor organization, or
making any threat of reprisal or promise of benefit because of such
activity.
(c) Engaging in surveillance of union meetings.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist the Union named above, or any other labor organi-
zation, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
2. Take the following affirmative action which it is found will
effectuate the policies of the Act :
(a) Offer to Glen Hinkel and Maynard Crawford immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole in the manner set forth in
"The Remedy" section of the Intermediate Report.
(b) Post at its plant at Dayton, Virginia, copies of the notice
attached hereto marked "Appendix." 1 Copies of said notice, to be
furnished by the Regional Director for the Fifth Region, shall, after
being duly signed by the Respondent's representative, be posted by
the Respondent immediately upon receipt thereof, and be maintained
by it for 60 consecutive dais thereafter, in conspicuous places, includ-
ing all places where notices to employees are customary posted and
including each of Respondent's bulletin boards. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Preserve and, upon request , make available to the Board or its
agents , for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports,
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
MARVAL POULTRY COMPANY, INC. 805
and all other records necessary to analyze the amounts of backpay
due under the terms of this Order.
(d) Notify the Regional Director for the Fifth Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
IT IS FARTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the discharge of Jean Dove was
violative of the Act.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in Amalgamated Meat
Cutters and Butcher Workmen of North America, Local 504,
AFL-CIO, or in any other labor organization, by discharging or
in any other manner discriminating against employees in regard
to their hire or tenure of employment, or any term or condition
of employment.
WE WILL NOT interrogate our employees in a manner constitut-
ing interference, restraint, or coercion concerning their member-
ship in or activities on behalf of Amalgamated Meat Cutters and
Butcher Workmen of North America, Local 504, AFL-CIO, or
any other labor organization, or make any threat of reprisal or
promise of benefit because of such activity.
WE WILL NOT engage in surveillance of union meetings.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
-organization, to form labor organizations, to join or assist the
Union named above, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all such activities.
WE WILL offer to Glen Hinkel and Maynard Crawford imme-
diate and full reinstatement to their former or substantially
equivalent positions, without prejudice to any seniority or other
rights and privileges previously enjoyed, and will make whole
said employees for any loss of pay suffered as a result of the dis-
crimination against them.
All our employees are free to become or remain members of the
above-named Union, or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or condition of employment against any employee because of mem-
bership in or activity on behalf of any such labor organization.
MARVAL POULTRY COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed by Amalgamated Meat Cutters and Butcher Workmen of
North America, Local 504, AFL-CIO, herein called the Union, the General Counsel
of the National Labor Relations ' Board, by the Regional Director for the Fifth
Region , issued a complaint dated September 29, 1959, against Marval Poultry Com-
pany, Inc., herein called the Respondent , alleging that the Respondent had engaged
in unfair labor practices within the meaning of Section 8 (a) (1) and ( 3) and Section_
2(6) and (7) of the National Labor Relations Act, as amended , herein called the
Act.
The Respondent filed an answer dated October 8 , 1959, in which it denied all
allegations of the complaint
Pursuant to notice , a hearing was held at Harrisonburg , Virginia, before the duly
designated Trial Examiner , on December 15 and 16, 1959 . The Respondent pre-
sented oral argument on the record at the hearing The General Counsel and the
Respondent filed briefs with the , Trial Examiner after the conclusion of the hearing.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT'
The Respondent is a Virginia corporation , with its main office,and principal place
of business located in Dayton, Virginia , where it is engaged in the processing, pack-
aging, and distribution of poultry. During the 12-month period preceding the date
of the complaint herein , the Respondent , in the course and conduct of its business
operations , shipped goods and materials having a value in excess of $1,000,000 from
its Dayton plant directly to customers located outside of the Commonwealth of
Virginia;
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North America, Local 504,
AFL-CIO ,' is a labor organization which admits to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background; interference , restraint , and coercion
The Union ` began to organize the Respondent's employees about March 1, 1959.
By letter dated June 15, 1959, the Union notified the Respondent .that it represented
a majority of the employees and requested that the Respondent recognize it as the
bargaining representative.
I As stated above, the Respondent in its answer denied all allegations of the complaint.
Although at the start of the hearing it was understood and agreed that the parties stipu-
lated to the commerce allegations of the complaint and that the Union is a labor organiza-
tion within the meaning of the Act, the record does not so show The record shows
Mr. Gardner ' s answer to the General Counsel's statement on the stipulation as "We'll
stipulate I and IT , the service ." The Trial Examiner recalls that Mr Gardner stated,
"We'll also stipulate I and if, the service" ; and, on his own motion , corrects the record
In this respect.
MARVAL POULTRY COMPANY, INC. 807
The Union held three meetings for the Respondent's employees. The first was
held on June 19, 1959, at Newmarket, Virginia. A second meeting was held on
July 7, 1959, at the "Briar Branch Hunting Club," an isolated place about 14 miles
southwest of Dayton. The third meeting was held in Bridgewater, Virginia, on July
31, 1959.
The supervisory employees who allegedly engaged in conduct violative of Section
$ (a) (1) of the Act were Ralph Pettit, Joe Roadcap, Edward Mason, Billy Andrews
and Norlyn Curry .2
During the early part of June 1959, Andrews asked employee Robert Brown if he
had signed a union card. When Brown replied that he had signed a union card,
Andrews told him that he (Brown) would lose his job if the Union organized the
plant. Andrews also told Brown that if he gave up the Union, it would "make things
easier" for him; and that if he did not give up the Union, he (Andrews) "could make
it rough-to stay -there."
About the same time as the above conversation, Roadcap and Mason also asked
Brown if he had signed a union card. About the middle of June, Mason asked
Brown of he had any union cards. When Brown replied that he did not have any,
Mason asked him to get him "a couple" and to get "a couple of unemployment
slips" at the same time. At some undisclosed time Mason and Roadcap each told
Brown that if the Union "got in," the Respondent would close the plant and "go
under new management in a different area."
It is found that the above interrogation, promise of benefit, and threats of re-
prisal by Andrews, Roadcap, and Mason are violative of Section 8(a) (1) of the Act.
Employee Franklin Dovell worked on the "packing line . . making boxes, and
helping to pack chickens." He signed a union card on June 11, 1959. About a week
dater when questioned by Andrews, Dovell admitted that he had signed a union
card. About the same time Dovell was transferred to a less desirable job "in the
pinning room cleaning up feathers." 3 His rate of pay was not cut, but his weekly
earnings were by reason of the fact that he worked fewer hours per week. Some
time after the above transfer Andrews told Dovell that if he would "quit messing
around with the union," he (Andrews) would get him transferred back to his old
job. Both Andrews and Mason told Dovell that if the Union "ever got in," the
Respondent would close the plant. It is found that the above interrogation, promise
of benefit, and threats of reprisal by Andrews and Mason are violative of Section
8 (a) (1) of the Act.
About the middle of June 1959, Andrews had a conversation with employees Harry
and Jean Dove. Andrews asked them how the Union was "getting on." When they
replied that they did not know, Andrews said, "You ought to, for the union is paying
you $10.00 -a night to go out and make night calls." He also told Harry Dove that if
he and Brown did not "quit fooling around with the union," that they had better
start looking for other jobs as.the Respondent would get rid of them "one at a time "
The above interrogation and threat of reprisal by Andrews is found to be violative
of Section 8 (a) (1) of the Act.
About the same time Mason had a conversation with the Doves. He asked them if
they had any union cards. When they replied that they did not have any cards,
Mason said, "I'd like to have a couple, and some unemployment slips, .too.. . If
you all sign up for the union, you just might as well sign up for unemployment, too."
Mason also told them that "if the employees voted the union in that . . . [Marvin
Poster, president and general manager of the Respondent] was going to shut down
and go to Georgia and open under a new name ." It is found that the above interro-
gation and threats of reprisal by Mason constitute interference, restraint, 'and coercion.
As related above, a meeting of the Union was held on June 19. Shortly before
the meeting Andrews asked Brown if he was going to attend. When Brown replied
that he was going, Andrews offered to drive him to Newmarket and told him that "all
the bosses was going to meet down there, and after the meeting was over with, why,
there'd probably be a scrap amongst us." Andrews also spoke to employees Mabel
Shiflett on the day of the meeting. He told her that "anyone he saw from the plant
there going to the meeting that night at Newmarket, he was going to crowd them off
the road," and that "I don't give a . . . who they are." Andrews' above interroga-
tion and threats are found to constitute interference, restraint, and coercion.
8 The Respondent admits that Pettit, Roadcap, and Mason are supervisory employees
within the meaning of the Act. The status of Andrews and Currv is in dispute. They
act as assistants to foremen and are both in the same category The record conclusively
shows and I find that Andrews and Curry are supervisory employees within the meaning
of the Act.
8 Dovell in his testimony described the above job as "the dirtiest job in the plant."
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown and employees Harry and Jean drove to the union meeting at Newmarket 4
in the same car. Employee Maynard Crawford drove to the meeting with his
daughter, Phyllis Crawford. The meeting started about 8 p.m., and about 15 or
20 employees were present. Before the meeting began Roadcap was parked in his
car in Newmarket "inside the city limits, parked on the right side of the road .
heading north." After the meeting when Maynard Crawford left the union hall,
Roadcap pulled in immediately behind his car and followed him approximately 18
miles to Harrisonburg.
During the week following the above meeting Roadcap asked Maynard Crawford
"how the union meeting went down there." Crawford stated, "Well, you was down
there. Why didn't you go in?" Roadcap replied, "Well, I wasn't authorized to go
in." Roadcap also spoke to Harry Dove about the meeting. He stated that he saw
Dove and his "crew" at the meeting; and that if the union activity of the employees
jeopardize his job, he would somehow "catch" Dove or Brown "one .. . at the
time" and fire them .5
I find that Roadcap engaged in surveillance of the union meeting on June 19.
The statements of Andrews and Roadcap before and after the meeting indicate that
such was Roadcap's purpose. It is found that by this conduct of Roadcap the Re-
spondent violated Section 8(a) (1) of the Act. It is also found that Roadcap's
interrogation and threat of reprisal, as disclosed in the above conversations with
Crawford and Dove, constitute interference, restraint, and coercion.
During the latter part of June 1959, employee Mabel Shifflett had a conversation
with Foreman Mason. Mason told her that Poster had held a meeting with the
foremen; that if the Union organized the plant, all the employees would be out of
work because Poster "was going to close the plant down" and move it to Georgia;
and that Poster had told him that he would give him a job in Georgia but had asked
him "not to tell anyone about it." 6 It is found that the above threat of Mason was
violative of Section 8(a) (1) of the Act.
The union meeting,, at the Briar Branch Hunting Club was held on the night of
July 7, 1959. As related above, the club was located in an isolated area "on the edge
of the woods" about 14 miles southwest of Dayton. About 20 employees were at
the meeting. While the meeting was in progress Andrews and Curry were "driving
up and down" in front of the club in their cars. When the employees left the meet-
ing, Andrews and Curry had their cars parked "right opposite across from where
[the employees] had to pull out from the hunting lodge, so that they could see every
automobile that come in and out." 7
Brown and Jean and Harry Dove drove to and from the above meeting in the Doves'
car. On the return trip, Andrews maneuvered his car in front of Dove's car, and
4 The evidence shows that Newmarket is about 22 miles from Dayton
6 Roadcap did not deny the above conversations specifically However, he denied en-
gaging in surveillance of the union meeting and testified to the effect that he was in
Newmarket on the night in question on personal business. His testimony in this con-
negtjon is not credited.
e Shiffiett testified credibly to the above. Mason did not deny categorically the state-
ment attributed to him. He testified, however, that he told some few employees, including
Harry Dove, that the plant might close ; and that this was his "own personal opinion."
Poster testified to the effect that supervisory employees were instructed not to make any
threatening statements to employees or otherwise interfere with their union activity.
That the Respondent had such a policy is open to question since the record shows that a
number of such threats were made by foremen. For example, Roadcap admitted that he
had told employees "that the plant would be moved If the union came into the plant,"
but testified "it was strictly my own opinion " In any event the Respondent was respon-
sible for the statements of its supervisory personnel.
4 Andrews admitted that he was parked in front of the hunting lodge. As for his own
purpose in being there, he testified, "I was just curious. I wanted to see what the union
meeting was like." Curry testified that'the hunting lodge is located "about a mile and a
half up the road" from his house; that his purpose in going near the lodge on the night
of the union meeting was "to see if I could see a deer" ; and that he stopped and talked
to Andrews. In an affidavit dated August 25, 1959, Curry states in part as follows :
Sometime after June, there was a union meeting at Briar Branch, Va., in a
bunting cabin. I found out about this meeting the next day from people that live up
that way. Also, I live about 3 miles from Briar Branch and I had noticed some cars
of employees driving-by-my house in the direction of the hunting camp on the night
the union meeting was supposed to have been held. However, I did not go up to the
meeting place on that night , but stayed at my home.
Aside from the above conflict , Curry did not impress me as a credible witness.
MARVAL POULTRY COMPANY, INC. 809
Curry drove behind it, so that Dove's car was hemmed in the middle. Andrews then
engaged in a series of short stops and starts, threatening to back into Dove's car.
Andrews also crowded Dove's car off the road. Later that night when Brown and
the Doves went to Andrews' store, Andrews told Jean Dove that he did not want
her to use his name "in the union meeting again," and threatened to slap her.
I find that Anders and Curry were engaging in surveillance of the union meeting
in violation of Section 8(a)(1) of the Act. I also find that Andrews' conduct after
the meeting interfered with, restrained, and coerced the employees.
The third meeting of the Union was held at Bridgewater on July 31 1959. Bridge-
water is about 4 miles from Dayton. Just before the meeting started, Pettit drove
by ,the union hall "real slow." The union hall is located on a side street about 11/2
blocks from the main street of Bridgewater. Pettit and Mason also had their cars
parked on the main street before the meeting. After the meeting Brown had a con-
versation with Pettit and Mason. They questioned Brown concerning the meeting;
and Mason told him that he had a tape recorder in the union hall which had re-
corded everything that was said. I find that the above conduct of Pettit and Mason
was violative of Section 8(a) (1) of the Act.
B. The discharge of Jean Dove
Dove was employed by the Respondent from July 1955 until her discharge on
June 29, 1959. She worked on the end of the eviscerating line with four or five
other employees.
About the middle of May 1959, Dove signed a union card. On and after June 1
Dove and her husband, Harry Dove, visited the homes of other employees in the
evenings after work and solicited them to sign union cards. At times they were
accompanied by a union organizer. About 30 employees signed union cards for
the Doves. Jean Dove attended all of the union meetings, including the one held
at Newmarket on June 19.
Dove's supervisors were Pettit and Curry. She admitted in her testimony that at
some time during May 1959 one of her supervisors complained that she was not
doing her "fair share" of the work and warned her that she would be discharged
unless her work improved; and that starting about May 1, 1959, and about "twice
a week" thereafter, the last occasion being about 3 days before her discharge, Pettit
complained to her about "letting the gizzards go down the line." About 11:30 a.m.
on June 20 Dove was discharged by Pettit who told her that her work was "not
satisfactory."
The Respondent adduced in evidence three reprimand slips on Dove. Two of
them dated June 10 and 23 are signed by Pettit. The third slip is dated June 22
and is signed by Curry. All three slips make the same complaint, to the effect that
Dove was "not catching her share of gizzards."
Pettit testified, in substance, that Dove's work during her employment was satis-
factory "off and on"; that about a year before her discharge he warned her about
poor work; 8 that he warned her "orally" but finally "had to write up a report"
on June 10, 1959, because her work got "so bad"; and that "if you stayed right on
her neck, she would do it while you was watching her; when you turned your back
and was gone she did not work." Curry testified that Dove missed her share of
gizzards starting in the first part of 1959; that he spoke to her about it; and that
the other employees on the line performed their share of the work.9
In view of Dove's length of employment and of the Respondent's illegal conduct,
heretofore related and found, I am inclined to suspect that the Respondent 's reason
for discharge is a mere pretext. However, I do not believe that the evidence war-
rants the inference of illegal motivation. There can be no question but that the
Respondent had knowledge of Dove's activity on behalf of the Union before her
discharge, particularly on and after June 19 , the date of the union meeting at New-
market.10 Her conversations with Andrews and Mason shortly before her dis-
charge have been related above. But by Dove's own admission there were com-
plaints about her work starting on or about May 1, 1959, apparently some few
Dove testified that she could not "recall" any complaints about her work before
May 1, 1959.
' In his brief the General Counsel seems to argue that if Dove permitted gizzards to go
"down the line," it was because the other employees were not doing their fair share of the
work In her testimony Dove did not claim this to be the case.
10 Pettit testified that he had heard "rumors" of union activity "possibly a month be-
fore" Poster received the Union's letter dated June 15, 1959.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weeks before she signed a union card and engaged in any union activity. Accord-
ingly, I find that the Respondent discharged Jean Dove for cause and not in viola-
tion of the Act.
C. The discharge of Glen Hinkel
Hinkel worked for the Respondent for about 3 weeks before he was discharged
on June 29, 1959. He worked under the supervision of Roadcap and Andrews.
About a week before his discharge Hinkel signed a union card. On the day of his
discharge Andrews asked him if he had signed a union card. When Hinkel admitted
that he had signed a card, Andrews told him that he was discharged and "Go to the
office and get your check." 11
Andrews testified that Henkel had four different jobs during his short period
of employment; that he was unable to perform the work satisfactorily on the first
three jobs, that when "feeding chickens in the chute," Hinkel "had the wrong size
chickens in the wrong chute"; that when Hinkel worked "on packing," he was "just
too slow" and "caused the whole crew to get behind"; that he (Andrews) received
"frequent" complaints from other members of the crew about Hinkel; that on the
next job of "strapping boxes" Hinkel "never did learn" how to operate the strapping
machine although he (Andrews) spent a "couple of hours" attempting to teach him;
that on his last job of "running the conveyor switch" Hinkel slowed down production
because "he was always away, he wouldn't stay at the switch where he should have
been"; that Hinkel was on this job "better than a week"; that Hinkel's work did not
improve after he criticized it; 12 and that Roadcap finally decided to discharge Hinkel.
Concerning Hinkel's discharge, Roadcap was questioned and testified as follows:
Q. Would you tell us the circumstances surrounding the discharge of Glen
Hinkel?
A. Well, we was short of help and this Glen Hinkel came in and Billy asked
me if it would be all right to hire him.
Mr. AGNEW: That's Billy Andrews?
The WITNESS: Yes.
And I said go ahead and give him a trial, if he works out okay. So he put him
to work, and he worked two weeks and he was almost useless , and if I'd of
been on my toes I'd of got rid of him a week before I did, but that' s just one of
those things I let it go for awhile.
But he worked approximately two weeks, and we discharged him.
Q. (By Mr. GARDNER.) You say he was almost useless? What do you
mean , he was lazy, or incompetent, or-
A. Well, I don't know, he's just naturally slow. I don't know whether you'd
call it lazy or what you'd call it.
Q. Did you talk with him at all prior to his discharge?
A. No, sir, I didn't really talk to him.
Q. Did you discuss with Andrews what you would say to him, or what reason
you'd give for terminating his employment?
A. Yes, sir.
Q. What reason did you agree on, if any?
A. That he wasn' t suitable for that type of work.
Q. Was there any mention made at this time of his union activity, or non-
activity?
A. Well, he'd been there so short a time, and I knew 'him not that well, I
didn't know whether he was a union member or whether he wasn't.
Q. He was discharged, then-or, I will withdraw that.
Was his discharge, which you and Andrews agreed upon, in any way con-
nected with his union activities, or the fact that he signed a union card?
A. No, sir, I don't believe we never did.
Q. Did you know that Andrews is alleged to have said, "We can't use you
because you signed a union card"?
A. Yes, sir, I've heard of that.
n Henkel testified to the above conversation. Andrews testified that the Union was not
mentioned at the time of discharge; and that he told Hinkel that he could not use his
services any longer because he was "too slow " Hinkel denied that Andrews told him that
his work was unsatisfactory. I credit Hinkel's version of the conversation. Andrews did
not impress me favorably as a witness, and his testimony has been discredited heretofore.
12 Hinkel denied that any supervisor 'criticized or reprimanded him over the perform-
ance of his work. His denial is credited.
MARVAL POULTRY COMPANY, INC. 811
Q. Have you discussed this with Andrews?
A. Well, it was so far-fetched I didn't think it was any use to discuss it with
him.
If, as Andrews and Roadcap testified, Hinkel was so slow and lacking in intelli-
ience so as not to be able to perform the most simple jobs in Respondent's plant, it
seems to me that the Respondent would have had no trouble in, producing other
witnesses in support of Andrews and Roadcap, such as the employees who pur-
portedly made "frequent" complaints to Andrews. However, the Respondent's
whole defense is based on the testimony of Andrews and Roadcap. Hinkel, ac-
cording to them, either was too slow or unable to learn on the first three jobs. On the
last job which he held for over a week, Andrews claimed that Hinkel was able to per-
form the job but was "always away" from his place of work. Thus, there is nothing
specific in the Respondent's defense, such as production records or a particular inci-
dent. There are just the vague generalities testified to by Andrews and Roadcap. I
.am unable to credit their testimony as to Hinkel's alleged shortcomings. Further,
contrary to the impressions of a lazy and ignorant person which the Respondent
sought to create, at the hearing Hinkel appeared to me to be an intelligent and ener-
getic young man. A careful review of the record of his testimony renews my original
impression.
Thus, the credited evidence shows that the Respondent discharged Hinkel with-
-out warning as soon as it learned of his adherence to the Union. I find that the
discharge was violative of Section 8 (a) (3) and (1) of the Act.
D. The discharge of Maynard Crawford
Crawford was employed by the Respondent from November 1956 until his dis-
charge on July 7, 1959. For about the last year and a half of his employment Craw-
-ford's job was to sharpen knives, scissors, and clippers. During this time he also
-performed some odd job such as sweeping.
Near the end of March 1959, Michael Betzold, International organizer of the
Union, contacted Crawford and asked him to help in organizing the Respondent's
,employees. Crawford signed a union card at this time. Thereafter, he went to
employees' homes, at times with Betzold, and solicited them to join the Union. About
25 employees signed union cards for Crawford.
At sometime after the union meeting at Newmarket on June 19, Roadcap asked
Crawford if he had signed a union card. When Crawford replied that he had signed
one, Roadcap told him, "You know, you're subject to lose your job.. . We'll get
.everyone that signed a union card. It might take us a year before we get rid of them."
When Crawford was discharged on July 7, he had a conversation with Pettit at the
'time. Pettit told him that he did not like to be the one to tell him of his discharge
as they had been friends for many years. Crawford replied to the effect that if that
was the case, why did he (Pettit) "run to the office" with every bit of news he heard
about the Union. Pettit then told him, "Well, . .. if I keep the union out,
I'll get a $20.00 weekly raise." 13
13 Crawford testified credibly to the above. Pettit denied the statement attributed to
him concerning the raise His denial is not credited. During his testimony, Crawford
admitted that he was convicted and served time for murder in the second degree. His
testimony in this connection indicates that the crime was one of passion.
Evidence that a witness has been convicted of a felony is material to the question of
,credibility and may be offered for impeachment purposes It does not, however, dis-
-qualify a witness, nor require that his testimony, ipso facto, be discredited. Rosen et al. v.
.US, 245 U S 467. The Board has held that "Counsel may show convictions for felonies
or misdemeanors amount to crimen falsi in accordance with a well recognized rule of
evidence " (Crown Corrugated Container, Inc, 123 NLRB 318. wherein the Board quoted
from N L R B. v. Baldwin Locomotive Works, 128 F. 2d 39, 46 (C.A 3).) Wigmore has
referred to the crimen false of the common law as including forgery, perjury, barratry,
subordination of perjury, suppression of testimony by bribery, conspiracy to procure the
absence of a witness, or conspiracy. Wigmore on Evidence (3d ed ), vol. II, sec. 520.
Even the testimony of a witness convicted of one of the latter crimes, however, must be
considered by the trier of the facts United States v Margolis, 138 F 2d 1002, 1004
(CA. 3) ; Colt v United States, 160 F 2d 650, 651 (C.A. 5) ; United States v. Mont-
gomery, 126 F. 2d 151, 155 (C.A. 3) : McCormick v. United States, 9 F 2d 237, 239
(CA. 8). After such consideration, it may, of course, be found unworthy of belief. On
the other hand, it may be accepted as credible, provided it has been "scrutinized with
care." United States v. Margolis, supra.
The conviction of Crawford was not for a crime of. falsehood, nor was it of such a
nature as to discredit him completely as a witness. From his demeanor Crawford im-
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent contends that Crawford did not perform his job properly and did
not stay at his work station . Poster and Pettit testified that the scissors used by some
of the employees were being sharpened by Crawford after he was told specifically not
to sharpen them. It appears from their testimony that this was the main, if not the
only, reason for Crawford's discharge.14 Pettit testified that during the whole period'
of time that Crawford was on this job he reprimanded Crawford continuously be-
cause "the knives wasn't sharpened and the scissors wasn't sharpened." 15
The evidence shows that the Respondent used discipline slips since January 1, 1959_
The employees were not shown these slips. There are three for Crawford, dated
June 18 and July 1 and 7, and all signed by Pettit. They read as follows: (1)-
"Knives that the oil bag cutters were using weren't sharpened & he couldn't be
found," (2) "Let the foot cutter knife get dull & he couldn't cut feet properly," and
(3) "Neck clippers wasn't sharp. Resulting in poor cut of necks after telling him
a lot of times to keep them sharp."
Although Poster testified at length to the effect that for the "best part of a year'"
Crawford had been sharpening scissors against orders, and that because of such con-
tinued disobedience of orders he told Pettit to discharge Crawford, it is noteworthy
that no discipline slips were made out for this reason.16 Pettit testified that "After
things got from bad to worse, after Mr. Poster spoke to me a couple of times," he
instructed the employees who were using the scissors not to let Crawford sharpen
them; and that he did not discharge any of those employees when they disobeyed
his orders.
I am convinced and find that Crawford's alleged disobedience in sharpening scis-
sors was a pretext seized upon by the Respondent as a reason for his discharge; and
that the Respondent, in fact, discharged him because of his membership in and
activities on behalf of the Union. Aside from the discriminatory motivation as shown
by Crawford's conversations with Roadcap and Pettit, I am unable to believe the
Respondent's claim of Crawford's continual disobedience of orders for almost a year,
especially since it involved extra work on his part. This complaint seems to throw a
different light on Crawford, and contrary to the picture given of him in the discipline
slips. It does not appear that any particular incident was involved on or about the
day of his discharge. Further, if the alleged offense was a serious as the Respondent
would have the Trial Examiner believe, why were not the employees who used the
scissors reprimanded. It also is noteworthy that these employees were not paid on a
piece-rate basis, and accordingly would not be unduly concerned with the rate or
quality of production. They would have had valid excuses if Pettit had complained
to them because of such production. For all of the above reasons I am not able to
credit the Respondent's defense.
IV. THE EF?ECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connec-
tion with the operations of the Respondent set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and end to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
It has been found that the Respondent discriminated against Glen Hinkel and
Maynard Crawford. It will be recommended that the Respondent offer Hinkel and
pressed me as a reliable and credible witness He was direct in his answers : and there
are no contradictions in his testimony. Even with the evidence of his conviction, I be-
lieve that his testimony is still more worthy of belief than that of Pettit.
14 In this connection Crawford testified as follows :
Ralph Pettit told me that Mr Poster told him to tell me to not sharpen the scissors,
that he was paying-I don't know what the guy's name was, It's a Greek, all I know
they call him the Greek-but Ralph Pettit give me four pair and told me to keep
them sharpened, and not let the Gr'ok get -',old- of them, fin wp*,IFd to -'n a t' t to
see the way I sharpened them lasted longer than the ones that the Greek sharpened
or was grinding
u Crawford denied that he ever was reprimanded over his work.
le Pettit testified that slips were not made out "Because Mr. Poster's the one that com-
plained on the thing to ma"; and that he made out slips only on incidents that he himself
knew about . He did not deny Craw 'ford's testimony regarding the four pairs of scissors,
as related above.
PHILLIPS PETROLEUM COMPANY 813
Crawford immediate and full reinstatement to their former or substantially equiva-
lent positions , without prejudice to their seniority and other rights and privileges, and
make them whole for any loss of pay they may have suffered by reason of Respond-
ent's discrimination against them by payment to them of sums of money equal to
that which they normally would have earned as wages from the dates of discrimina-
tion to the date of an offer of reinstatement , less their net earning during such period.
Said backpay shall be computed on a quarterly basis in the manner established by
the Board in F. W. Woohvorj^h Company, 90 NLRB 289.
Upon the -basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Marval Poultry Company , Inc., is engaged in commerce within the meaning of
Section 2(6) and ( 7) of the Act.
2. Amalgamated Meat Cutters and Butcher Workmen of North America, Local
504, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
3. By discriminating against Glen Hinkel and Maynard Crawford , the Respondent
has engaged in unfair labor practices within the meaning of Section 8 ( a) (3) and (1)
of the Act.
4. By discharging Jean Dove on or about June 29, 1959, the Respondent did not
engage in any unfair labor practice within the meaning of the Act.
5. By interfering with, restraining , and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act , the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a) (1) of the Act.
6. The aforesaid practices affect commerce within the meaning of Section 2(6)
and (7 ) of the Act.
[Recommendations omitted from publication.]
Phillips Petroleum Company, Petitioner and Local 323, Inter-
national Union of Operating Engineers , AFL-CIO.1 Case No.
15-R-1201. November 29, 1960
ORDER DENYING MOTION
Pursuant to a consent determination of representatives issued by
the Board on January 23, 1945, the International Union of Operating
Engineers, AFL-CIO,' was certified as the exclusive representative
of all employees of the Petitioner's production department in the
Smackover, Arkansas, field, with certain exclusions. Thereafter, in
1945, and since that time, the parties have negotiated working agree-
ments which included unit operator and gangpusher as nonsupervisory
classifications, the last of which was effective until June 30, 1960. On
March 16, 1960, the Petitioner filed a motion to amend determination
of representatives requesting the removal of unit operators and gang-
pushers from the bargaining unit because they are supervisors. On
March 31, 1960, Local 323, International Union of Operating Engi-
neers, filed an answer thereto asserting that such employees are not
supervisors and that their classifications have always been included in
the contract. The Union requested that the Petitioner's motion be
denied, or, in the alternative, that a hearing be held thereon by the
Board.
' As stipulated by the parties at the hearing.
2 The parties stipulated that Local 323 is the same identical labor organization as that
which was certified.
129 NLRB No. 90.