Neuhoff Bros., Packers, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1966

159 N.L.R.B. 1710 (N.L.R.B. 1966)

1710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain or refrain from becoming or
remaining, members of any labor organization , except to the extent that this right
may be affected by a lawful agreement requiring membership in a labor organization
as a condition of employment.
T. C. WORTHY RETAIL , INC., d /b/a CARL'S MARKET, CITY
MARKET, AND T. C. WORTHY RETAIL MARKET,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
T. C. WORTHY WHOLESALE, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
T. C. WORTHY CASH AND CARRY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 849
South Broadway , Los Angeles, California , Telephone 688-5229.
Neuhoff Bros., Packers, Inc. and United Packinghouse , Food and
Allied Workers of America , AFL-CIO. Cases 16-CA-2191 and
2244. June 28, 1966
DECISION AND ORDER
On November 8, 1965, Trial Examiner George L. Powell issued
his Decision in the above-entitled proceeding, finding that the
Respondent had not engaged in certain unfair labor practices alleged
in the complaint, that certain other alleged unfair labor practices
constituted conduct similar in nature to unfair labor practices found
against the Respondent in another proceeding and therefore did not
require litigation herein, that a final allegation of tan unfair labor
practice at most constituted a technical violation of Section 8(a) (1)
that did not require at this time a remedial order, and recommending
that the complaint be dismissed as set forth in the attached Trial
Examiner's Decision. Thereafter, the General Counsel filed excep-
tions to the Trial Examiner's Decision and a supporting brief, and
the Respondent filed a brief in opposition to the General Counsel's
exceptions and brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
159 NLRB No. 133.
NEUHOFF BROS., PACKERS, INC. 1711
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 entire
record in this case, including the Trial Examiner's Decision, the
exceptions, and the briefs, and hereby adopts the findings, con-
clusions,) and recommendations of the Trial Examiner with the
following modifications :
1. While we agree with the Trial Examiner that union activity
does not immunize an employee against discharge, it is equally clear
that where the discharge is actually motivated by an employee's
union activity rather than by his production or work shortcomings
or misconduct, a violation of Section 8(a) (3) occurs. In the instant
case, we are satisfied that Allen Ray Lewis, absent his union activity,
would not have been either laid off or discharged. Accordingly, we
do not agree with the Trial Examiner's conclusions that Respondent
did not violate Section 8(a) (3) of the Act when it suspended and
then discharged Lewis.
The Trial Examiner found that Lewis was suspended and subse-
quently discharged for cause and not for engaging in union activity.
He found that Lewis failed to maintain a normal rate of production
at the hog-head table, thereby causing the production line to be
stopped on several occasions on January 22 and 25, 1965, and again
on February 3, 1965.
The testimony shows, and Respondent's witnesses acknowledged,
that Lewis was the most aggressive in-plant union advocate and had
been active in the union organizational drive during the entire 9
months beginning in the spring of 1964. During this period Lewis
signed a union card, solicited Respondent's employees to sign cards,
passed out union literature, and made speeches in support of the
Union. As a result of ,these activities, he signed up approximately
200 of Respondent's 600 to 700 employees. Lewis engaged in this
activity almost daily, before and after work, during break periods,
and during the lunch hour.
The initial phase of Lewis' activity culminated in an election on
September 22, 1964, which was set aside by the Regional Director on
January 12, 1965, because of unfair labor practices committed by the
1 We do not agree with the Trial Examiner's conclusion that certain alleged 8(a) (1)
violations did not require litigation herein because they occurred at approximately the
same time as and were similar in nature to violations found by a Trial Examiner in an
earlier case involving this same Respondent See Neuhofff Bros Packers , Inc., 151 NLRB
916. Suffice it to say, the alleged violations occurred after the complaint issued in the
earlier case, were not known to the General Counsel at the time of the earlier hearing,
were independent acts , and were not the type of alleged violation commonly known or
readily discoverable , even after an exhaustive investigation However , in view of our
subsequent findings , including the issuing of a cease and desist order against the Respond-
ent, we find it unnecessary to pass on these alleged violations at this time.
1712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent .2 The second phase of Lewis' activity started at or about
the time the election was set aside sand a new election directed. At
this time, Lewis again solicited employees to vote for the Union at
the forthcoming election, but in addition, he now requested that the
employees sign new membership cards, stating that the purpose of
these cards would be for recognition and that the cards were in no
way concerned with the election. Lewis explained to the employees
that in the event the Union lost the election, he was working to get
enough cards for a demand for recognition. Again, as noted above,
Lewis engaged in ,this activity during nonwork periods for the 3-week
period prior to his discharge on February 3. During this period,
Lewis was successful in signing up approximately 70 employees.
That these later activities were known to the Respondent is beyond
question since his solicitations took place on several occasions in the
immediate presence of Respondent's supervisors and in almost every
other instance at a time and place in the plant during the break
periods where Respondent's supervisors and agents could not have
helped but observe his soliciting on behalf of the Union.
Respondent's campaign to rid itself of Lewis took positive form on
January 22, 1965, when Conaway, Lewis' supervisor, charged Lewis
with causing the production chain to stop on several occasions, each
time, in excess of 3 minutes. The Trial Examiner found, and based
his conclusions largely on such findings, that at each stoppage,
Conaway "investigated and concluded that the fault was Lewis'."
The record, however, does not support the finding that Conaway con-
cluded that the fault was Lewis' after investigation.
,Conaway's own testimony shows that, as to five of the six stoppages
on January 22, he was not present at the time the chain stopped, was
informed of the stoppages by some unnamed employee, presumably
while in some other area of the plant, and purportedly attributed
responsibility for the stoppages to Lewis by merely observing the
condition of the ,hog-head table. Thus, it is clear that Conaway made
no investigation as to the cause for the 'accumulation of hog heads.
Conaway's actions, in the face of uncontradicted testimony that hog
heads frequently pile up all over the hog-head table as well as the
unsatisfactory evidence as to the above-normal speed of the chain,
fall far short of a real investigation and evidence an intent and
desire to construct a charge against Lewis.
Further evidence of this intent is found in Respondent's arrange-
ments during Lewis' suspension to have a camera secreted for the
purpose of photographing Lewis while performing his duties. It is
clear that this action was taken in furtherance of Respondent's pre-
2 See Neuhoff Bros. Packers, Inc ., supra
NEUHOFF BROS., PACKERS, INC. 1713
vious decision to discharge Lewis, irrespective of what occurred upon
his return. Indeed, the record vindicates that Respondent had not
even viewed the developed films prior to the time of Lewis' termination.
Respondent argues that because it knew of Lewis' union activity
and the consequences that would follow if they discharged him with-
out cause, it would be illogical for it to discharge such a key union
organizer without a clear and provable cause for discharge untainted
by 'union animus. Thus, had Conaway wanted to have been certain
of a clear cause for disciplinary action, at the least he would have
inquired as to the speed of the chain from some reliable source
(including the Department of Agriculture inspectors), he could have
inquired of the other workers at the hog-head table as to production
conditions, and especially of Williams, whose function it was to step
in and help at the table whenever the chain stopped because of heads
backing up, and, finally, having 'decided it was Lewis' fault, he could
have talked directly to Lewis after the incidents to ascertain whether
or not Lewis was having any particular problem with which he
(Conaway) could help him. The need for inquiring is apparent from
the fact that during Conaway's entire 14-odd years with Respondent,
Lewis was the first and only employee to be discharged for causing
the stopping of the chain. In our opinion, Respondent's explanation
of such gross deviation from the normal fails of conviction.3
We also note that even in Lewis' confrontations with Hamzy,
Respondent's personnel director, on January 25 and February 3,
Lewis was not advised that he was being charged with stopping the
chain "for periods in excess of 3 minutes." [Emphasis supplied.]
In view of the admitted fact that the chain stops many times for
periods of less than 3 minutes without any consequences, -it would
appear that Respondent would have at the least advised' Lewis that
it was only the "more than 3 minute stoppages" with which he was
being charged. Clearly, Respondent made it difficult, if not impos-
sible, for Lewis to deny or explain any of the stoppages when, 3 days
after the fact, and in very general terms, it charged him with conduct
which literally would not have been grounds for discipline.
That Respondent was quick to accuse Lewis is also evidenced by
another incident occurring on or about December 16, 1964. On this
occasion, Respondent's vice president, without any proof of the facts,
accused Lewis of placing a union sticker on one of the company
trucks. Finally, when Respondent set in motion its disciplinary
action, it applied its suspension rules against Lewis in a manner not
3 \Tot only does Conaway's conduct fall short of a reasonable "investigation," but the
reports of supervisors Hixon and Camacho likewise show that both individuals failed to
investigate and personally ascertain to what extent, if any, Lewis was involved in the
stoppages prior to making their reports to Conaway.
243-084-67-vol. 159-109
1714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
heretofore enforced against any other suspended employee. The
literal holding of Lewis incommunicado while he was being escorted
out of the plant on January 25 (Respondent even refused to let him
call his wife on a public telephone to have her pick him up) and the
positive statement by Neuhoff that he did not want Lewis "on the
premises until next Monday," clearly indicates that Respondent was
more concerned with Lewis' relationships with the other employees-
union organization-than it was with Lewis' allegedly poor production
at the hog-head table. That such is the case is supported by the
testimony of other employees that during their suspensions they
were allowed to and did come and go in the plant with virtually no
restrictions.
The entire record, including an apparently unblemished 9-year
employment record with Respondent, the total absence of reprimands
of any nature prior to December 1964, Lewis' known union activity,
and Respondent's obvious union animus,4 clearly shows that Respond-
ent availed'itself of a situation whereby it could, and did, under the
guise of a discharge for cause, rid itself of its most aggressive union
adherent in violation of Section 8(a) (3) of the Act. And this is
true, even assuming that Lewis' actions caused the production line to
stop on several occasions, as it is no defense where, as here, this was,
not the moving cause for his discharge.,,
2. We also disagree with the Trial Examiner's conclusion that the
speech of Henry Neuhoff, Jr., on December 13, 1964, at most consti-
tuted a technical violation of Section 8(a) (1) of the Act and did not
therefore require a remedial order. The speech itself contains a.
direct statement to the effect that, as a result of the protected activi-
4 See footnote 1, supra.
5 Wix Corporation, 132 NLRB 1059, 1062.
We also disagree with the conclusions reached and the emphasis placed by the Trial
Examiner on the, films taken by Respondent on February 1, 2, 3, and 4 In our opinion,
these films are at best vague and confusing, and therefore unreliable. The constant start-
ing and stopping of the camera as well as the jumpiness caused by the splicing makes it
difficult to distinguish one scene from another or to place in context the scene shown. In
addition, the films reflect only approximately 15 minutes of actual working time out of a
total work period of approximately 32 hours, and admittedly were taken by supervisor
Hixon who, we have heretofore noted, was less than candid or thorough in his other in-
vestigations of Lewis' alleged work stoppages. Moreover, that portion of the film referred
to by the Trial Examiner as "one of the most damaging scenes" was explained by Lewis
as being at the start of the work period when he would normally steel his knife, a necessary
function preparatory to performing his duties. This was not controverted by Respondent's
witnesses. We likewise find inconclusive the Trial Examiner's "timing" of the chain in view
of the testimony in the record that regardless of what the chain's speed may be at any given
time, its speed can be increased or decreased merely by changing the speed control setting
However, even assuming that the films are viewed in the same perspective as seen by the
Trial Examiner, all that they prove is that hog heads do and did back up in the chute and
that on occasions the line is stopped The record clearly shows that the line frequently stops
and that on some occasions Lewis was at fault. In these circumstances and considering
the record as a whole, these films do not affect our ultimate conclusion that Lewis would
not have been discharged but for his union activity.
NEUHOFF BROS ., PACKERS, INC. 1715
ties of some of the employees, new and stringent rules were coming
into the plant. Such threats of reprisal clearly violated Section
8(a) (1). Thus, Respondent, through its own official, stated that
these rules would be adopted because of the protected activities of
some of the employees . Further, Neuhoff stated that :
This rule, which some of you do not like, was put in effect to
make sure that everyone was treated the same. If you think this
is bad, if you think the rules that are coining in the plant-there
are rules coming in the plant, this is only the beginning. I hope
that you will never have occasion to find out how rough it can be.
Clearly, the employees were being told and were expected to under-
stand that these "rules" were coming because of union organizational
activity and not to promote the orderly and efficient operation of the
plant.
In addition , we also find that the speech unlawfully exhorts
Respondent 's employees to bring pressure to bear on their fellow
employees to give up their union activities . In this respect, Henry
Neuhoff, Jr., having called attention to the fact that the union adher-
ents were finding fault with Respondent 's pay scales, said :
I believe that if I thought the company that I was working for
was not paying me enough, I would go some place else. Does
this make sense to you? If you believe that this does make sense,
then you had better take it on yourself to encourage these people
to get out , because the sooner they do, the better it will be for all
of us.
Such conduct clearly violates Section 8 ( a) (1) of the Act, especially
when considered in context with N euhoff 's threat of "rough" times
ahead because of union activity . Also, it unduly interferes with the
employees ' right to engage in organizational activities , by enlisting
the aid of antiunion employees as allies of Respondent in its anti-
union campaign.
Upon consideration of all the matters set forth above and on the
record as a whole, we find that Respondent has violated Section
8(a) (3) of the Act by suspending and discharging Allen Ray Lewis,
and Section 8(a) (1) of the Act by Henry Neuhoff , Jr.'s speech of
December 13 , 1964, and shall issue an appropriate remedial order.
TIIE REMEDY
Having found that the Respondent has engaged in unfair labor
practices in violation of Section 8(a) (1) and (3) of the Act, we shall
order that it cease and desist therefrom and take certain affirmative
1716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action designed to effectuate the policies of the Act. Having found
that Respondent has discriminated against Allen Ray Lewis by sus-
pending and then discharging him in violation of Section 8(a) (3)
of the Act, we shall order the Respondent to offer him immediate
and full reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights and privi-
leges, and to make him whole for any loss of pay he may have
suffered as a result of this discrimination against him by payment
to him of a sum of money equal to that which he would have earned
as wages from the date of the discrimination to the date of his
reinstatement, less his net earnings during such period, in accordance
with the formula prescribed in F. W. TVoolworth, Company, 90
NLRB 289, together with 6 percent interest per annum on such sum,
to be computed in accordance with the formula prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Neuhoff Bros., Packers, Inc., is an Employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. The evidence adduced herein establishes that Respondent, in a
speech on December 13, 1964, by Henry Neuhoff, Jr., interfered with,
restrained, and coerced its employees by threatening them with strin-
gent rules and exhorting the employees to interfere with their fellow
employees' right to engage in protected, concerted activities, in vio-
lation of Section 8(a) (1) of the Act.
3. The evidence adduced herein establishes that Allen Ray Lewis
was laid off on January 25, 1965, and thereafter discharged on Feb-
ruary 3, 1965, and that such layoff and discharge constitute a
violation of Section 8(a) (3) of the Act.
4. The unfair labor practices enumerated above are unfair labor
practices affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that
the Respondent, Neuhoff Bros., Packers, Inc., Dallas, Texas, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Laying off or discharging employees or discriminating in
regard to their hire, tenure of employment, or any term or condition
of employment, because they have engaged in concerted activities
for the purpose of collective bargaining or other mutual aid or
protection.
NEUHOFF BROS., PACKERS, INC. 1717
(b) Threatening employees with stringent and tough rules if they
select a union to represent them, and unlawfully exhorting employees
to interfere with their fellow employees' right to engage in protected,
concerted activities.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist United Packinghouse, Food
and Allied Workers of America, AFL-CIO, or any other labor
organization, 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 engaging in such activities.
2. Take the following affirmative action designed to effectuate the
policies of the Act:
(a) Offer to Allen Ray Lewis immediate and full reinstatement to
his former or substantially equivalent position held by him on Feb-
ruary 3, 1965, without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him, in the manner
set forth in the Remedy section of this Decision, and notify him if
presently serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed Forces.
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary or appropriate to analyze the amount
of backpay due Allen Ray Lewis.
(c) Post at its plant in Dallas, Texas, and at such offices as the
Respondent may maintain, copies of the attached notice marked
"Appendix." 6 Copies of said notice, after being duly signed by the
Company's authorized representative, shall be posted by the Com-
pany immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Company to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 16, in writing, `within
10 days from the date of this Order, what steps have been taken to
comply herewith.
e In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "a Decision and Order" the words "a Decree of
the United States Court of Appeals, Enforcing an Order."
1718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 suspend or discharge employees or discriminate
against them in regard to hire, tenure of employment, or any
term or condition of employment, because they have engaged in
concerted activities for the purposes of collective bargaining or
other mutual aid or protection.
WVE WILL NOT threaten our employees with stringent and tough
rules if they select a union to represent them or exhort our
employees to interfere with their fellow employees' right to
engage in protected, concerted activities.
WE WILL offer to Allen Ray Lewis immediate and full rein-
statement to his former or substantially equivalent position,
without prejudice to his seniority or other rights and privileges,
and make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him.
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, join, or assist United Packinghouse, Food
and Allied Workers of America, AFL-CIO, or any other labor
organization, 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.
NEUHOFF BROS., PACKERS, INC.,
Employer.
Dated---------------- By----------------------------------
(Representative ) (Title)
NOTE.-Notify Allen Ray Lewis if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon
application in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended, after
discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
If employees have any question concerning this notice or compli-
ance with its provisions, they may communicate directly with the
Board's Regional Office, Sixth Floor, Meacham Building, 110 1Vest
Fifth Street, Fort Worth, Texas, 76102, Telephone Edison 5-4211,
Extension 2145.
NEUHOFF BROS., PACKERS, INC. 1719
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This is an unfair labor practice case, based on a consolidated complaint issued
on March 15, 1965, and prosecuted against Neuhoff Bros., Packers, Inc., herein
called Respondent. The complaint i in substance alleges that Respondent by vari-
ous acts violated Section 8(a)(1) and by laying off and subsequently discharging
employee Allen Ray Lewis, Section 8 (a)(3) of the National Labor Relations Act,
herein called the Act, and that such conduct affects commerce within the meaning of
Section 2(6) and (7) of the Act. Respondent's answer denying the essential allega-
tions of the complaint puts in issue the commission of the unfair labor practices. Re-
spondent admits that it knew of Lewis' union activity, which was open and notorious.
Thus the ultimate and only question as to the 8(a)(3) is whether the layoff and
the discharge was discriminatorily motivated.
Pursuant to due notice this cause was heard before Trial Examiner George L.
Powell at Dallas, Texas, on March 31, April 1, 2, 5, 6, 7, and 8, 1965. All parties
were represented at and participated in the hearing, and were granted full oppor-
tunity to offer evidence, examine and cross-examine witnesses, present oral argu-
ment, and submit briefs. Oral argument was given at the conclusion of the case by
Respondent, and briefs were filed by the Respondent and the General Counsel on
May 28, 1965.
Upon the entire record in this case , and from my observation of the demeanor of
the witnesses and the briefs of the parties, it is recommended that the complaint be
dismissed for all the reasons hereinafter set forth.
FINDINGS OF FACT
1. AS TO JURISDICTION
Respondent, a Texas corporation, is engaged at Dallas, Texas, in the livestock
slaughtering business. During the past calendar year it shipped meat products val-
ued in excess of $50,000 directly to points outside of the State of Texas, and during
the same period of time it received cattle and meat directly from points outside of
the State of Texas valued in excess of $50,000. I find that Respondent is engaged
in commerce within the meaning of the Act, and that it will effectuate the purposes
of the Act to assert jurisdiction over Respondent in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
I also find and conclude that United Packinghouse, Food and Allied Workers of
America, AFL-CIO is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
As background it should be noted that the Union commenced organizational
efforts with the employees of Respondent sometime early in 1964. On March 17,
1964, Lewis signed a union card. In addition, Lewis solicited Respondent's employ-
ees to sign union authorization cards, passed out union literature, and also made
speeches advocating the merits of unionism. During this period of time, Lewis
personally signed up approximately 200 of Respondent's 600 to 700 employees.
He estimated that approximately 90 percent of these employees were signed at
Respondent's plant with the remaining 10 percent being signed at union meetings or
at individual homes. He engaged in his union activities at the plant on his own
nonworking time. As the result of the organizational efforts the Union filed a peti-
tion for an election on July 1, 1964 (Case 16-RC-3720). Following an R case
hearing and a Regional Director's decision and direction of election (contested by
Respondent) an election was held on September 22, 1964, which the Union lost
347 to 315, with 43 challenged ballots. The Union filed timely objections to the
conduct of the election on September 28, 1964.
1 The complaint, Issued on behalf of the National Labor Relations Board by the General
Counsel through the Regional Director for Region 16 (Fort Forth , Texas ), Is founded on
charges filed on November 27, 1964, December 15, 1964, January 26, 1965, February 4,
1965 , and February 9, 1965. Those charges were filed by the United Packinghouse , Food and
Allied Workers of America, AFL-CIO, herein called the Union.
1720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While this election procedure was going on, the Regional Office was conducting
investigations based upon certain charges filed by the Union alleging that the Com-
pany had engaged in unfair labor practices. These charges were filed on June 23
and July 6 and 20, 1964 (Case 16-CA-2073). The General Counsel issued a com-
plaint based on these charges on August 5, 1964, alleging violations of Section
8 (a) (1) and (3) of the Act and the case was tried before Trial Examiner Arthur
E. Reyman on October 14, 15, and 16, 1964.
With the above as background, we get into the chronology of the present cases.
The first charge in Case 16-CA-2191, herein referred to as 2191, was filed on
November 27, 1964, alleging violations of Section 8(a) (3) for the alleged discrimi-
natory discharge on November 20, 1964, of employee Walter Hicks. This charge
was amended on December 15, 1964, adding the alleged discriminatory discharge of
employee Robert E. Mathis on December 15, 1964.
The first charge in Case 16-CA-2244, herein referred to as 2244, was filed on
January 26, 1965, alleging a discriminatory 1-week suspension of Lewis on Janu-
ary 25, 1965. This charge was amended on February 4, 1965, to include the
alleged discriminatory discharge of Lewis on February 3, 1965.
Meanwhile, back on January 12, 1965, the Regional Director set aside the elec-
tion which had been conducted on September 22, 1964, and directed a new election.
This followed in point of time the Decision of Trial Examiner Reyman which issued
on December 29, 1964, in Case 16-CA-2073. Trial Examiner Reyman [subse-
quently affirmed by the Board] found Respondent to have "violated Section
8(a)(1) [inter alia] by coercively interrogating employees with respect to their
union activities, threatening employees with economic reprisal for their union activ-
ities, and indicating to employees that the Respondent engaged in surveillance of
their union activities; and that Respondent also discriminatorily discharged employee
Franklin because of his union activities in violation of Section 8 (a) (3) of the Act."
[The matter quoted is in the Board's Decision 151 NLRB 916.]
On February 9, 1965, the Union filed its second amended charge in 2191 alleging
only violations of Section 8(a)(1). These took place from June 1, 1964, and in
substance involved interrogation, threats of discharge if the employees voted for the
Union, loss of benefits if the Union were elected, threatening adverse working con-
ditions if the Union won the election and creating the impression of surveillance by
statements of its supervisors-virtually the same conclusion as had been found by
Trial Examiner Reyman slightly over a month earlier, and about which there is an
outstanding Board cease and desist order.2
On February 12, 1965, the General Counsel issued a complaint in 2191 based
only on the matter alleged in the second amended charge filed on February 9, 1965,
as noted above .3
On February 18, 1965, a second election was held in which the Union won by a
vote of 388 to 295 (with 58 challenged ballots). Respondent filed objections to the
conduct affecting the results of this election and appealed when the Regional Direc-
tor overruled its objections and certified the Union as the collective-bargaining rep-
resentative of Respondent's production and maintenance employees. (Respondent's
subsequent refusal to bargain led to Case 16-CA-2322 in which Trial Examiner
Frederick U. Reel found a violation of Section 8(a)(5) on June 17, 1965, which in
turn was affirmed by the Board on August 12, 1965.)
2 The allegations in this second amended charge of 2191 filed on February 9, 1965, were
based on testimony of the following employees who executed affidavits on the dates set out
alongside each name :
Thompson ----- 11/9/64 and 1/6/65 Clay ----------------- 12/16/64
Alexander ----- 11/4/64 and 12/28/64 Brown --------------- 11/12/64
Weisner ------- 11/9/64 Hamilton ------------- 11/12/64
King ---------- 11/12/64 Rhodes --------------- 10/29/64
Respondent, in its brief to the Trial Examiner, points out the fact that most of the af-
fidavits involved in the trial were dated before the earliest charge in the consolidated cases
(11/27/64), with no explanation as to how the Charging Party obtained the de-
tailed information upon which to base a charge. If an innuendo of impropriety is thus'
raised , it is immediately laid to rest, as during this time the Regional Office was investigat-
ing the conduct of the election held on September 22, 1964, based on objections thereto
timely filed by the Union. In investigating such conduct, the Union is expected to give
leads for the Region to investigate, and hence, in the absence of evidence to the contrary,
it is presumed that the Union has knowledge of the acts independent of the Region
8 The case involving Hicks and Mathis was dropped.
NEUHOFF BROS., PACKERS, INC. 1721
And now again back to the instant cases, on March 15, 1965, the General Coun-
sel issued an order consolidating Cases 2191 and 2244 with a consolidated complaint
using the identical complaint in 2191 plus the 1-week suspension of Lewis and his
subsequent discharge as set out in the original charge and first amended charge in
2244.
The Board on March 22, 1965, as noted above, affirmed certain violations of-Sec-
tion 8(a)(1) and (3) found by Trial Examiner Reyman in Case 16-CA-2073, and
issued its usual cease and desist order in the 8(a)(1) allegation with affirmative
relief for the 8(a)(3) allegation. For the reason set out below I have not con-
sidered any of the evidence as 8(a) (1) which occurred in point of time prior to the
hearing in Case 16-CA-2073. All of that is merely background to the 8(a)(3)
and the single alleged 8(a) (1) which occurred after October 1964.
A. The 1-week layoff and subsequent discharge
of Allen Ray Lewis; sequence of events
It is undisputed that Lewis was the most active union member at the plant of
Respondent and this fact was well known to everyone for about a year. In addition
to his union activities as outlined above, Lewis engaged in a new card-signing cam-
paign at Respondent's plant beginning on January 11, 1965. At this time he care-
fully explained to the employees that the cards they were signing were not to obtain
a new election but to designate the Union as their collective-bargaining representa-
tive. He began with 150 union authorization cards and by February 3, 1965, he
had signed up approximately 75 of Respondent's employees. It is uncontradicted
that on the second day, January 12, 1965, Lewis engaged in rather obvious union
activity in the presence of two company supervisors, Hixon and Conaway. At this
time Lewis was explaining to employee Rhodes, after he had signed Rhodes up, how
Rhodes, in turn, should sign up other employees. He gave Rhodes 15 or 20 union
authorization cards to sign up the employees in his (Rhodes') department. All
union activities at the plant were on nonworking time as before. (There is a ques-
tion as to Rhodes, but it is immaterial.)
The consolidated complaint alleged that Lewis was "laid off" on January 25,
1965, and "discharged" on February 3, 1965, because of his union activities. On
the other hand, the Respondent contends that Lewis was "suspended" and then "dis-
charged" for cause, i.e. that he was failing to properly perform his work which fail-
ure resulted in time-consuming and expensive production stoppages. In rebuttal,
Lewis contends that Respondent speeded up the chain causing him to fall behind in
his work.
Lewis, an employee of Respondent for 9 years, was the "tongue dropper" at the
hog-head table in the fancy meat department for the last 7 years. He was the first
employee in the fancy meat department to perform work on hog heads as they
would arrive in the production line operation . Hog heads came to his work station
by way of a chute from the viscera table some 3 or 4 feet in height above the hog-
head table. Until 1965, Lewis' work had been satisfactory. While on the job of
dropping tongues, Lewis had received three merit increases ; one in 1958, another in
1960, and the last one 2 years ago in 1963.
It is well at this point to outline the operations involved in slaughtering hogs at
Respondent's plant .4 This is done in a production-line manner with the live hogs
first being stunned by electric shock and dropped by chute to the shackle pen where
a chain is placed around the hind legs. The hog is then raised and moved to the
sticking pen where they are killed, then to the scalding tub where they are pulled
through hot water to loosen their hair, thence to the dehairing machine where the
bulk of the hair is removed, thence to the gambrel table from which they are sus-
pended by their hind legs on fingers on a movable chain. As this chain moves
across the floor of the plant the hog carcass is worked on by some 25 employees
before it reaches the fancy meat department. As the hog carcass, hanging from the
chain, reaches the front end of the viscera table the head is removed and put in a
pan on the viscera table alongside of which the guts of the hog are also placed.
These pans themselves are on an endless belt geared with and traveling at the same
speed as the chain. Thus the head and guts are directly alongside of the carcass
from which they came. When the carcasses reach the Government inspectors, oper-
ating between the end of the chain and the viscera table, the inspectors are able to
,'Respondent provided schematic drawings , still pictures , moving pictures, and a wooden
model of the operation involved . In addition , in the presence of counsel for the parties
and the Court Reporter , I toured the operation.
1722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inspect both the carcass and the viscera and heads of the hogs for possible rejection.
From the credited evidence, more heads are rejected than are organs and carcasses.
Hence fewer heads than carcasses are worked on, and generally the heads are
rejected before they reach the hog-head table.
The maximum speed limit of the chain in the hog-kill department is dependent
upon the number of Government inspectors needed to perform their inspection
duties and the ability of the company being inspected to handle the product in a
sanitary manner at that rate This maximum speed is set by the "supervisory veteri-
nary meat inspector" and his immediate supervisors. With but two inspectors on
the hog kill since 1965, the maximum speed limit of the chain was 240 hog car-
casses per hour. If there had been three inspectors the chain could have "run up to
300." The two inspectors "worked practically side by side at the viscera table .
at all times that the chain is moving." They are "accustomed to the speed of the
chain" and if it were "speeded up very much" they would notice it. The super-
visory veterinary meat inspector credibly testified to the above, and further credibly
testified that on occasions when he had observed the chain going in excess of 240
per hour it was going "probably 260 or 280" but "most of the time, it runs 240."
These inspectors work on the viscera table some 18 feet from the end of the chain
before the end of the table. The hog-head table is at the end of the viscera table.
At his work station, Lewis is the closest employee to the viscera table. The Gen-
eral Counsel introduced great quantities of evidence relating to chain stoppages and
what caused the stoppages. Of course the chain stops due to mechanical difficulties
but in addition to that it is stopped whenever it takes more time to perform the
work which has to be done by an employee at a given work station than is given
normally. The evidence adduced by the General Counsel did not determine
whether the chain stoppages his witnesses noted were in duration of 3 minutes or
more. On the other hand, Respondent introduced evidence showing that it kept
records of work stoppages in excess of 3 minutes. There is credited evidence that
hogs can be damaged if they remain too long in the scalding tub and Respondent's
witnesses testified to the measures used by Respondent to keep the hogs from being
"cooked." 5 Conaway credibly testified for Respondent, "we tried to keep track of
all [chain] stoppages that amount to 3 minutes or more." Reports of these stop-
pages are given to Conaway by Orval Hixon, David Comacho, and Tommy Wil-
liams. As an ordinary and regular operation, he then checks into the work stop-
page and determines why the chain stopped and makes a notation of it at the time.
According to his records, which I credit, the Government inspectors stopped the
chain six times on January 22, 1965, because the hog heads were backed up too
far in the chute. Conaway investigated and concluded that the fault was Lewis' and
that he was not doing his work right in not keeping up with the heads as they
came down the chute from the viscera table. The notations of these work stop-
pages are as follows:
Date Time Delay Record
exhibit
1- ---- 1/22/65 7 30-7 35 a in ------------------------- 5 min R-26
2--------------- 1/22/65 8 00-8 07 a m-------------------------- 7min___ R-27
3-------------- 1/22/65 10 00-10 06 a m________________________ 6 min-__--___-___ R-2S
4--------------- 1/22/65 12 55-12 69 p.m------------------------ 4 min-__ R-29
5--------------- 1/22/65 135-140 pm.-------------------------- 5 min_ R-30
6--------------- 1/22/65 2 54-3 01 p.m-------------------------- 7 min_ _ _--------_ R-31
Conaway explained that in order to catch up with the work he would assign another
man to help Lewis drop the tongues at the head table. After catching up with
Lewis' work the operator would move consecutively around the head table where
the other six men worked helping them in turn catch up.
On January 22, Conaway spoke to Lewis twice telling him each time that he
would not "put up" with Lewis' not keeping up with his job. On each occasion
Lewis did not answer nor claim at the time that the chain was being speeded up.5
5 Among these were running cold water in the scalding tub and physically removing the
hogs from the tub without benefit of mechanical power.
8 Lewis testified that he did claim the chain was speeded up but his testimony is not
credited.
NEUHOFF BROS., PACKERS, INC. 1 723
The two other times he spoke to Lewis were "before noon" and "a little after 3
o'clock." 7
On the next working day, January 25, 1965, Respondent's records show the chain
was stopped for more than 3 minutes on two different occasions because of the
heads backing up the chute. From this, Conaway concluded that Lewis was not
doing his work. The times of these stoppages were from 10.25 to 10:30 a.m. for a
5-minute delay, and from 1:11 to 1:15 p.m. for a 4-minute delay. The Govern-
ment inspector, of course, stopped the chain in both instances. On the first of these
two stoppages Conaway, after noting that the heads were stacked up in the chute
assigned a helper to catch up on the work. He also noted at that time that all the
others at the table were caught up in their work except for Lewis. This was also
true on the second occasion.
After the hog-head table was caught up the first time on January 25, 1965, Con-
away called Lewis out and asked him why he could not keep up his work. Lewis
replied that he "was doing an honest days [sic] work." Nothing was said at the
time by Lewis that the speed of the chain was too fast. Conaway called Lewis out
the second time, the chain stopped that day asking why he couldn't keep up. Lewis'
only reply was that he was doing an honest day's work. Conaway then took Lewis
to Hamzy's office.
The account of what took place in Hamzy's office on January 25, 1965, at 1:30
p.m was first related by Lewis. Apparently he did not know that Respondent made
a tape recording of that conference. The recording differs in material part from
Lewis' testimony. As Lewis did not attempt to rebut the recording his testimony
clearly shows his rather natural bias, his straining to put the fact situation in as
good a light as possible for his cause, and his unreliability as a witness. I find the
facts of this conversation to be those set out in the transcript of the tape recording
reproduced in pertinent part as follows:
CONAWAY. We got the head kill stopped up there a little while ago because
the heads were piled clear up the chute.
HAMZY' Close the door.
CONAWAY- Doctor Moore [U.S Government inspector] stopped it. I talked
to Lewis a time or two about letting them hides-heads pile up that chute so
we can keep that table clean, he don't want to seem to do it.
HAMZY: Well, I noticed from the reports I had here last Friday, Lewis, it
stopped about five or six times on account of the same thing. Do you have
any particular reason for that?
LEWIS- They're just saying I'm stopping the chain. You see, everybody is
behind, all the way down the table there was heads stacked in front of every
man and Bill say that I'm doing it.
HAMZY: Yeh, that's where it starts, I understand it starts with you.
LEWIS: No sir, it comes down the chute to me, I'm the first man.
-HAMZY: I noticed last Friday it stopped about seven times and it was all
on account of the same thing.
LEWIS- That's what they said.
HAMZY: Are you not able to keep up or just don't want to or what's your
problem?
LEWIS: I'm doing my best, I'm doing a good job, I know I'm doing a good
job, but them heads are coming fast.
HAMZY. Well, they are not coming any faster than they have come. They
always have come that fast.
LEWIS: And the chain have always stopped, from time to time.
HAMZY' I don't think it has. Do you have any reason why you can't
keep up.
LEWIS: I'm doing my best, that's all I can do.
HAMZY: We don't think that's good enough and what we are going to do
as of now is to suspend you for a week.
LEWIS: What do that do?
HAMZY: Sir?
LEWIS. What will that do, if you suspend me for a week?
HAMZY: Well, if you come back after that and still don't want to keep up,
we'll do something else.
7A note of a reprimand to Lewis was made at 3: 05 on January 22, 1965, with a nota-
tion that Lewis was not keeping up, that the chain was stopping This "reprimand" is
merely a reference made by Respondent for its own use of what took place between the
supervisor and the employee and is not given to the employee nor is the employee told of it.
1724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LEWIS: It's not a matter of wanting to keep up, its being able to keep up.
HAMZY: Well, that's a matter of judgment. We think our judgment is
pretty good too. We know that you have kept up on the job and that other
people have kept up on the job doing the same thing at the same rate, so
that's what we are doing. You can come back a week from today. If you
don't want to keep up then, we will see what else is to be done.
After this suspension, Lewis came back to work on Monday, February 1. The
company records show that there were no delays of more than 3 minutes on either
February 1 or 2. However, there were two long delays on February 3 caused by
"head tonguer behind." According to the credited testimony of Conaway, the first
of these delays occurred between 10:45 and 10:50 a.m. when he observed hog
heads "backed up almost to the point where they would fall off the viscera table."
He noted that "the other part of the table was caught up at this time" and that
Lewis was the one that was behind in his work. Conaway had a short conversation
with Lewis at which time Lewis maintained he was doing the best that he could
and he questioned Conaway if there was not a limit to what a man could do.
But nothing was said specifically at the time by Lewis that the chain was running
too fast. Assistance was provided to clean up the table. About 40 minutes later,
Conaway took Lewis to Hamzy's office.
The second time that day the chain stopped for longer than 3 minutes was when
there was a 4-minute delay between 12:48 and 12:52 p.m. According to Conaway,
the heads were backed up the chute and it was Lewis' fault. He had investigated
and found that the chute was so full only one or two more heads could be put
in it. He also noted that the remainder of the hog-head table was clean. Assistance
again was given to catch up. Conaway also checked the speed of the chain at this
time and found it to be running at 240 per hour.
As noted above, following the first stoppage on February 3, Conaway took
Lewis to Hamzy's office at 11:35 am. Again relying upon the transcript of the
tape recording of the conversation that took place (Lewis did not rebut it) the
following took place:
CONAWAY- The kill stopped again this morning.
HAMZY: It looks like we are back in the same rut, don't it? Well, Big
Time, we know that you can keep up on that job. You've done it yourself
in the past. We know you can do it, it's not too much. It don't look like
you're going to. Is that the way you feel about it?
Lewis: No, it's not.
HAMZY: What is the trouble.
Lewis: Just more work than I am able to handle.
HAMZY: You're not able to .. .
LEWIS: The chain speeded up and it's more than I can do.
HAMZY: The chain is speeded up from what?
LEWIS: From what it have been in the past. Of course, that stopped, that
have always stopped. That's nothing new, but it's plain to see that you all
are discriminating against me on account of my union activity. You blame
everybody ... .
HAMZY: Your union activity hasn't got a thing to do with this. All that's
involved in this is your doing your job or not doing it and you're not doing it.
You have done it and the chain is not running any faster than it has in the
past.
LEWIS: Ever since I worked here it always has stopped in the past when
those heads pile up.
HAMZY: Last week while you were off we had more than one different men on
that job and they all kept up and you've kept up in the past and I want to
warn you again that next time this happens we are going to have to take some
other action.
LEwrs: You're the boss.
HAMZY: All right.
After the second stoppage that day Conaway, at 3 o'clock again took Lewis to
Hamzy's office where the following conversation took place:
HAMZY: Sit down, Lewis. Well, we talked this morning about stopping
this chain (telephone conversation not concerning this matter) I told you this
NEUHOFF BROS., PACKERS, INC. 1725
morning that if you stopped this chain anymore, we are going to have to do
something about it and right after lunch I believe you stopped it again.
Lewis: I have never stopped the chain as long as I worked here.
HAMZY: I know, but you know what causes it to stop and you caused
it to be stopped.
Lewis: I've never caused the chain to stop and individually no one man
could cause that chain to stop, you and I both know that-
HAMZY: Uh, huh.
Lewis: and you've made up your mind what you are going to do with me
so that's in your power.
HAMZY: Well, I wanted to say this to you. This morning you mentioned
your union activities as having something to do with this .. .
Lewis: It has everything to do with it.
HAMZY: We've known about your activities from the start, I mean you
haven't made any effort to hide it. Everybody has known about it and we
have not interfered with it, you've had a pretty free hand.
Lewis: A while back you hadn't.
HA szy: What?
Lewis: Up until a while back you hadn't.
HAMZY: What do you mean, a while back? You mean when we suspended
you?
Lewis: Before then, harassed me.
HAMZY: How did we harass you? I mean, if we did, I wasn't aware of it.
Lewis: You wasn't there, I mean, it wasn't you, you know.
HAMzv: How did somebody else harass you? I would like to know about
that.
Lewis: That's all I've got to say about that.
HAMZY: Well, I'll say this so far as I know nobody has harassed you. Do
you know of any .. .
CoNAwAY: Far as I know nobody has either. I just talked to him about his
work, about not keeping his job up.
HAMZY: This business, this has absolutely nothing to do with your activities.
We've respected your rights in every way and we expected you to do, uh, turn
in a days [sic] work which you haven't been doing.
Lewis: I've been doing an honest days work, I never hired out to nobody
that I didn't give them an honest days [sic] work in my life.
HAMZY: Well, like I told you this morning if this happened again, we was
going to have to do something else about it. So as of now, we are discharging
you.
Lewis: . . . my check?
HAMZY: It will be ready in a few minutes. By the time you change your
clothes and get your things together your check will be ready.
Additional Facts
As noted above, Lewis is not credited when his testimony is in conflict with that
of Respondent's witnesses, particularly Hamzy and Conaway. But according to
Lewis' own admission, he could do his job on the hog-head table in from 12 to 15
seconds as an average per head. At this average, he would do respectively, from
5 to 4 heads each minute; 300 to 240 heads per hour; and 2,400 to 1,920 for an
8-hour day. As noted above, the evidence is that the chain ran at a rate of 240
per hour with a possibility of its going as high as 280. But even if it went as high
as 300 per hour, according to Lewis' testimony, he would have been able to keep
up with his work had he so desired.
The company records for the month of January and February 1965 showing
delays of more than 3 minutes each, show no stoppages in February after Lewis'
discharge caused by the head tonguer being behind and yet the average speed of
hogs per hour was comparable to that during the times when Lewis was an em-
ployee. The records for January show that with a single exception all of the chain
stoppages of more than 3 minutes were caused by the head tonguer being behind and
that exception occurred on January 27 when the head trimmer, not the tongue drop-
per, was behind. At one stoppage on January 22, the records note that in addition
to being behind on tongues they were behind on "head fat and glands." All of the
1726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other stoppages of more than 3 minutes in the month of January were caused by
mechanical failures.8
The Motion Picture Camera
Hamzy secured the services of a commercial photographer engaged in legal-
type photography to take motion pictures of any work stoppages at the hog-head
table. The necessary equipment was assembled , and on Sunday afternoon Janu-
ary31, 1965 , the last day of Lewis' suspension , the photographer installed an elec-
tric camera inside a 50-gallon barrel with the camera aimed through the bung hole
at the hog-head table . The switch to operate the camera was located on a side
wall beside the water cooler. One of the foremen ( Hixon ) operated it on Febru-
ary 1 , 2, and 3 , whenever heads were piled up at the hog-head table and the chain
stopped . The camera was also operated on February 4, but as Lewis' last day was
February 3 , the film for February 4 showed Kemp 8 at the job of tongue dropper.
The photographer also testified that he had timed the chain , as shown in the film,
by stop watch . This was done by timing the rate of speed of the viscera trays.
His conclusion was that the chain was moving at the rate of 240 per hour during
the days when the film showed the heads stacking up in front of Lewis. The speed
was the same on the films taken on February 4 but the tongue dropper on that day
had no problem keeping up with the Work. Also it is noted that when the films
were shown at the trial, the parties had an opportunity to comment . It was appar-
ent to all that the speed of the viscera trays when Lewis was having trouble keeping
up with the flow of heads was the same speed which Kemp , or others operating as
the tongue dropper, had no difficulty with . Additionally , I have independently
checked the speed of the trays on the films with a stop watch and find the trays to
be running at an average speed of 4 per minute or 240 per hour. One of the most
damaging scenes tending to establish that Lewis was not performing his-work at
his accustomed speed was one showing Lewis to be steeling his knife and chatting
with great animation with the worker at his immediate left while the chute was
stacked up with hog heads and no one else at the table had- hog heads in front of
them to be worked on.
Conclusions as to the 8(a)(3) Allegations
The above factual conclusions have been based on the credited testimony of a
nonemployee of Respondent, the U.S. Government inspector, Smith, plus other wit-
nesses including, in particular, Conaway, Hixon, and Hamzy. The records of the
Company, the motion pictures, and the tape recorder all tend to show that Lewis
is an unreliable witness. This fits in with my impression of his demeanor on the
stand. It is understandable of course that interested witnesses tend to be untrust-
worthy; either consciously or unconsciously they may be governed by what Lord
Hewart once called the "l'esprit de wagon." When two cars collide, the passengers
in each car almost always testify that it was the other driver's fault. Lewis, for
example, impressed me as straining too much for his side by adding little bits of
nonexistent facts to bolster his case The film and the tape show this when compared
to his testimony.
This case, of course, is highly suspicious. However the job of the General Coun-
sel is to establish that the Company, wanting to rid itself of union adherent Lewis,
would deliberately speed up the chain at various times and intervals causing hog
heads to -pile up in the chute to the hog-head table so that employee Allen Ray
Lewis would be unable to keep up with his work. Then, by keeping track of a
series of work stoppages based upon his failure to keep up, the Respondent could
adequately warn Lewis and after a series of warnings could fire him without being
accused of an unfair labor practice. The General Counsel has failed to carry this
difficult burden.i° There is no question but that Lewis was warned and that he was
8 Respondent explained the seriousness of lengthy stops through credited witness Con-
away. He pointed out that if the hogs were kept too long in the scalding tub the meat
would begin to cook The cooked meat would then have to be cut off reducing the product
It is also obvious that stoppages are costly because every time the chain stops some 25
employees ahead of Lewis would be standing idle for the period of the stoppage.
8 Other employees also did this job on this day
10 It should also be noted that the evidence adduced would not establish the fact that
others on the hog-head table were so far behind in their work as to cause or contribute to
the cause of stopping the chain.
NEUHOFF BROS., PACKERS, INC. 1727
suspended on January 25 for 1 week for his failure to keep up . This should have
alerted him that his union activities would not insulate him from reasonable work
duties imposed upon all the employees by management . As a matter of fact after
he returned to work, the evidence is that he kept up for 2 days but then the work
did stack up again necessitating further stoppage of the chain.
The General Counsel was unable to establish that the chain was speeded up.
The only unbiased witness was the U .S. Government inspector and his testimony
was contrary to the General Counsel's theory. The testimony of the U.S. inspector
as to the speed of the chain being set at 240 hogs per hour is most persuasive. Of
course it would be possible , as was brought out by the cross-examination , that the
chain would speed up at times to 300 but this evidence would have to be established
by a preponderance of the evidence , and Lewis even admitted that he could handle
his job at 300. Then the speed would have to exceed 300. The only testimony the
General Counsel was able to offer as to the chain speeding up was that of Lewis
and Rhodes. Why he did not call as witnesses some of the other six employees
working on the hog-head table, or someone who could observe the hog-head table
better than Rhodes, has not been brought out in the case.
I do not believe it to be the General Counsel's theory of the case that many of
the employees on the hog-head table had difficulty keeping up but that Respondent
only picked on Lewis because of his union activity. The facts would not support
such a theory in any event. The General Counsel did adduce testimony from Lewis
and Rhodes (who worked on the chain so far away as to make his testimony value-
less) that when the chain stopped from time to time heads were piled up in front of
everybody 18 to 24 inches high. This is incredible! The overwhelming evidence is
the contrary showing only that heads were piling up in the chute, and one even fell
on the floor, because Lewis was not keeping up. Every man on the chain, including
the two Government inspectors, would feel the effect of such a claimed speed up, but
there is no such testimony from them.
Recapitulation
Thus it appears that Lewis was suspended in January for 1 week for not doing
his work as he had been doing it for some 7 years. He caused the chain to stop
too many times for periods of over 3 minutes at loss of production and product.
During this period of suspension, the Company secured the services of a commercial
photographer specializing in legal photography. This photographer ingeniously
installed a camera in a barrel at a platform slightly above the level of the hog-head
table and by directing the camera through the bung hole of the barrel was able to
"zero" in on the hog-head table. Then when Lewis returned to work the Company
was able to get visual evidence of his failure to work properly. The films were run
at the hearing and checked independently by me and it is obvious that there were
no hog heads stacked up on the table more than one head high at any time except
in front of Lewis, and Lewis had five to six heads in front of him with others
stacked clear up the chute to the viscera table. This showed that the other workers
on the hog-head table were keeping up with their work in a normal operation. The
films, in one instance , also showed Lewis engaging in a prolonged discussion with
the man at his left while at the same time steeling his knife for an inordinate
amount of time permitting hog heads to be stacked all the way up the chute. I
reach the conclusion that Lewis was deliberately slowing down in his work. He had
been able to keep up at all times in the past, and it was not shown by the General
Counsel that the chain was accelerated in order to cause Lewis not to be able to
keep up.
The United States Court of Appeals for the Fifth Circuit paraphrased its holding
in N.L.R.B. v. Birmingham Publishing Company, 262 F.2d 29 (C.A. 5) and said,
"If a man has given his employer just cause for his discharge , the Board cannot save
him from the consequences by showing that he was pro-union and his employer
anti-union . . . . If an employee is both inefficient [ insubordinate ] and engaged in
union activities, that is a coincidence that does not destroy the just cause for his
discharge ." (N.L.R.B. v. Soft Water Laundry, Inc., 346 F.2d 930 (C.A. 5))
The law is clear that union activities and union membership do not insulate an
employee from performing the work for which he is paid. Fellow-employee Rhodes
was also known as an active union adherent . He performed his work of splitting
hog carcasses in the same manner as he had done before. He kept up in his work
and he is still "employed by Respondent.
1728 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
In accordance with the above I will recommend that the 8 ( a)(3) allegations in
the complaint be dismissed.
The Allegations of Violations of Section 8(a)(1)
As noted above, the allegations of violations of Section 8(a)(1), with the excep-
tion of one relating to December 13, 1964, all occurred in point of time before the
hearing in October before Trial Examiner Reyman in Case 16-CA-2073. Also,
they cover precisely the same type of conduct as the evidence presented to Reyman.
Taking up the pertinent parts of the complaint in order: The complaint alleges
(paragraph 8(a)) threats by Respondent's officials made on September 9, 15, 17, and
18, 1964 to terminate the credit union, company benefits, and the Christmas bonus if
the Union won the election. The Christmas bonus part was actually litigated before
and found by Trial Examiner Reyman to violate Section 8(a)(1) and there is no
known reason why the other allegations were not litigated in the October hearing;
the complaint in paragraph 8(b) alleges that certain of Respondent 's officials and
supervisors interrogated employees concerning their union membership , activities,
and desires on various dates as August 24, September 1, 8, 15, 17, 18, and 21, 1964.
Again, all of these dates occurred before the October 1964 hearing and there is
shown no reason why these allegations were not litigated at that time ,although other
similar allegations involving the same time period were litigated and violation of
Section 8(a)(1) found by the Trial Examiner; the complaint (paragraph 8(c))
alleged a threat of discharge by a supervisor on September 15, 1964, yet again no
reason shown why it was not litigated in October 1964; a job-security threat by a
supervisor on September 19, 1964 , was alleged in paragraph 8(e) of the complaint
with no reason shown why this was not litigated in October 1964 when like allega-
tions were litigated ; an allegation of "impression of surveillance " by a supervisor
on September 21, 1964, was in paragraph 8(f) of the complaint but there is no evi-
dence as to why it was not litigated in the October 1964 hearing, yet other instances
were litigated in October and the Trial Examiner found the surveillance violation
alleged ; paragraph 8(d) of the complaint is the only one alleging an instance occur-
ring after October 1964 and it related to a speech made by one of Respondent's
officials on December 13, 1964, which will be developed below.
Although there be no law forbidding simultaneous or consecutive procedures to
resolve the same issues, and the Board has jurisdiction to go ahead with them, there
should be sufficient reason for such duplication of trials. As no sufficient reason has
been shown me in the instant case why I should consider the same or substantially
similar facts as were considered by Trial Examiner Reyman and perhaps make find-
ings contrary to him, I shall not consider the facts which could properly have been
presented in the trial in Neuhoff Bros. Packers, Inc., Case 16-CA-2073 on Octo-
ber 14, 15, and 16, 1964. Thus an orderly administration of the statute is effected
and a Respondent is not called upon again to litigate and defend its conduct as
to events the evidence on which could reasonably be produced in one hearing.
This case is distinguishable on its facts from Kern's Bakery, Inc., 154 NLRB
1582, issued September 24, 1965. In that case, Trial Examiner Fannie M. Boyls
dismissed the complaint on the ground that no useful purpose would be served by
again issuing a cease-and-desist order and requiring another notice to be posted
inasmuch as there was an outstanding cease -and-desist order prohibiting the solicita-
tion of union membership on company property during nonworking hours (the same
issue involved in her case). The Board however disagreed with her conclusion that
the Board's decision and order in the earlier case "obviate the necessity for a reme-
dial order in the instant case." The Board went on to state that the record in that
matter "plainly discloses repeated efforts on the part of Respondent to impede the
statutory rights of its employees by promulgating unlawful no-solicitation rules."
The earlier case (actually two cases) involved the validity of a no-solicitation rule
and whether an employee, Cox, had been discriminatorily discharged. The Board
found the violations and issued an order. The no-solicitation rule then was amended
prior to the hearing in those cases but the validity of the amended rule had not been
litigated. The amended rule as well as a subsequent amendment to the rule was
litigated in the hearing before Trial Examiner Boyls. These facts are distinguish-
able from the facts in the instant proceedings. In the instant cases the alleged
8(a)(1) conduct which I am dismissing was just more of the same type conduct
NEUHOFF BROS., PACKERS, INC. 1729
that had been litigated in the prior hearing before Trial Examiner Reyman.ii
[Cf. N.L.R.B. v. Murray Ohio Manufacturing Company, 358 F 2d 948 (C.A 6).]
Accordingly I shall consider only the remaining allegation in the complaint.
The Speech by Henry Neuhoff, Jr., December 13, 1964
The General Counsel through Henry Neuhoff, Jr., re-created a speech he made
on December 13, 1964 at about 3 p.m. to the Respondent's employees at the City
Auditorium in Dallas, Texas.
"In substance,". Neuhoff admitted saying the following:
I have a few remarks to make that I would rather not. This is supposed to be
a festive occasion and I dislike very much saying anything to dampen Yuletide
spirit. But I think it is a duty to bring to your attention some thoughts that
we in management have concerning the glum situation that has developed
among some of the plant personnel during the past year.
However, during the last 10 months some discord has developed to the point
where a number of our people evidently felt that they were being treated un-
fairly and they wanted some outsider to represent them and be their repre-
sentative . Now, this they have a right to do and we respect this right. These
people probably promised higher wages, better working conditions. Lord
knows what else.
Let's face it. We are not the big, happy family we once were. But on the
other hand , I think it has brought most of us closer together than ever before.
Now, they put on a campaign . During this campaign , we explained our rea-
sons for believing the Union would not be good for Neuhoff. We still believe
that and I think this breaking up of our family spirit points up one of the
reasons why they are not good for us.
Now, anyone-I am going to say this frankly-anyone who feels that he can-
not work as a part of this family and of this Neuhoff team had better find some
place else to go, because we cannot use him around here.
Those unhappy ones, they ask for an election and we had an election and the
majority-now, pay attention to this. The majority of you voted loyal to the
Company and we won the election and that should have settled the whole
situation, but then, we know that the unhappy ones think that even though
the majority of you voted against them-they want another election.
The things that management did, they maintained was unfair to the campaign
before the election. Now, they want to change the wishes of the majority
that has already been expressed. Think of that. That is something. This is
supposed to be America, with the majority rule. You are supposed to go
along with the majority. You do in the elections. Suppose Senator Gold-
water, after he lost the , election, goes around saying, "I believe President
Johnson won the election, but I do not believe he won it fairly. Let's have
it over again." That is what this amounts to. They want to have another
one. They want to have part of you, but I cannot see why.
They do not need any new election, but let's get down to real facts. That
these people who are so unhappy with us; feel that they are being mistreated
so badly-why do they continue to work for us? I believe that if I thought
the Company that I was working for was not paying me enough, I would go
some place else. Does this make sense to you? If you believe that this does
make sense, then you had better take it on yourself to encourage these peo-
ple to get out, because the sooner they do, the better it will be for all of us.
Even though the majority of our people have shown that they are happy
without collective-bargaining rights, the rest of you do want to change these
things. Now, I am tired of fooling with them and I am tired of listening to
them. Some of them are sitting around right here, right now.
Now, there is one other thing that I think I should mention. I think this
would be the time. I understand that some of you have been discontented
because we are requiring each of you to sign a slip when you come in late.
You might as well know that this is a direct result of union activity. They
have continuously accused us of treating some people better than others. I
u Thus it is unnecessary to consider the precise evidence in each particular and make
the necessary but difficult credibility determinations.
243-084-67-v o l 150 110
1730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
think you have to admit that-most of you-we have always tried to be fair
with everyone and we will continue to do so in the future. This rule, which
some of you do not like, was put in effect to make sure that everyone was
treated the same. If you think this is bad, if you think the rules that are
coming in the plant-there are rules coming in the plant, this is only the
beginning . I hope you will never have occasion to find out how rough it can be.
If you're tired of fooling with these people, as we are, I urge you to take it
upon yourself individually, to convince these people that they have the best
deal around; decent work; tell them to do what they are paid to do and let's
make a better profit in the coming year.
Now, we have no animosity in our hearts for anyone, because we believe
people can be mislead. They can be misinformed and mislead, so I want you
to know that we hold no grudge against you. Those who work for me-we
want everybody to be happy. We want them to be happy in the Neuhoff
organization.
My analysis of the speech is that there is at most a single technical violation of
Section 8(a)(1) of the Act. It is obvious that Neuhoff is endeavoring to heal
wounds and to smooth over any friction between employees that may have
developed during the Union's organizing campaign. He talks to the discord among
the employees and the fact that some wanted someone else to represent them and
be their representative in promoting their rights with the Company, but in that
respect the Respondent acknowledged "this they have a right to do and we respect
this right." This is an acknowledgement of safety to employees of the Respondent
with no threat that anything would happen to them if they exercise this right of
theirs or with no promise of benefit if they ignored or if they refused to engage in this
type of activity. The point that I believe is a technical violation of Section 8(a) (1)
is when Neuhoff stated that the new requirement to sign a slip when an employee
came in late was the direct result of "union activity." But then he went on to say
that in the Respondent's effort to be fair with everyone and the fact that they were
going to continue to be fair in the future "this rule, which some of you do not
like, was put in effect to make sure that everyone was treated the same." His
remarks thereafter that there would be rules coming into the plant, would relate
as well to the result of bargaining between the collective-bargaining representative
as it would to the thought that the rules would be unilaterally established by
Respondent. There is no "retaliation" implied by Respondent to union activities
of its employees. His closing remarks are a simple appeal to the employees not
to be misinformed or mislead plus a statement that the Respondent has no grudge
against anyone because of his union activity. Keeping this in mind, as well as
the fact that this speech was given at a Christmas party where good will is the
theme, I do not believe the record warrants a finding that Respondent was inter-
fering with, coercing, or restraining employees with respect to their rights under
the Act.
CONCLUSIONS OF LAW
The General Counsel has not established by a preponderance of the evidence
that Respondent discharged or otherwise discriminated against employee Lewis in
violation of Section 8(a)(3) of the Act, or that it has violated Section 8(a)(1).
[Recommended Order omitted from publication.]
M. A. Norden Company, Inc. and International Hod Carriers'
Building and Common Laborers' Union of America , AFL-CIO,
Petitioner. Case 15 AC-4. June 28,1966
DECISION ON REVIEW AND ORDER
On October 14, 1965, in Case 15-RC-3142, the Regional Director
for Region 15 certified International Hod Carriers' Building and
159 NLRB No. 143.