Poultry Packers, Inc.

National Labor Relations Board - Board Decisions

Aug 2, 1978

237 N.L.R.B. 250 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Poultry Packers, Inc. and Amalgaimlated Meat Cutters
& Butcher Workmen of North America, AFI-CIO,
Local Union No. 540
Herider Farms Processing, Inc. and Amalgamated
Meat Cutters & Butcher Workmen of North Amer-
ica, AFL-CIO, Local Union No. 540. ('ases 16-
CA-7022 and 16-CA 7149
August 2, 1978
DECISION AND ORDER
BY MEMBERS JENKINS. MUiRPHiIY, AND TRtI:SI)AI I
On April 11, 1978. Administrative l.aw Judge Al-
vin Lieberman issued the attached I)ecision in this
proceeding. Thereafter, Charging Party filed excep-
tions and a supporting brief, and Respondents filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board hits delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings., and
conclusions 2 of the Administrative law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint herein be. and it hereby is.
dismissed in its entirety.
t The Charging Part? has excepted to certain credibllits findings nmade bh
the Administrative Law Judge. It is the Board's established policy nol iii
overrule an Administrative L.aw Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant ev.idence convinces
us that the resolutions are incorrect. Starndard l)ri ' atl Producti Incr. 91
NLRB 544 (1950) enfd 188 :.2d 362 (('A. 3. 1951) We ae h ve crefull
examined the record and find no basis for reversing his findings
2 We agree with the Administrative I.La, Judge. for the reasons stated h,
him, that the wage increases granted bh the Respondents to their respective
emplosees were motivated solel bs ecoinimic coinsideraltions and therefore
did not vsilate Sec 8(a)( I) of the Act Accordirgls. we find It unnecessars
to reach or pass on his further finding that these increases also were not
unlawful because at the times the, were announced or iietn "nio elctiorn
was pending" due to blocking unfair labor pracilce charges aild thus the
increases were not timed ioi influence the emplosyces' ,ote.
In agreeing with the Administrative I aw Judge that the wage increases
given here did not violate Sec. 8(a)( I) of the Act, Member I ruesdale also
notes that the timing of these increases appears to be Ib line uaWh that of
other past wage increases
DECISION
SI t SI: MENI OF THE CASE
ALviN LIEBERMAN. Administrative Law Judge: The hear-
ing in this proceeding, with all parties except the Charging
Party represented, was held before me in Lufkin, Texas, on
the General Counsel's complaint, as amended at the hear-
ing,' and Respondents' answer.2 In general, the issues liti-
gated were whether Respondents violated Section 8(a)(l)
and whether Respondent Poultry Packers Inc. violated
Section 8(a)(3) of the National Labor Relations Act, as
amended (Act).' More particularly, the questions for deci-
sion are as follows:
I. Did Respondents violate Section 8(a)(1) of the Act by
increasing wages of employees during the pendency of
election petitions?
2. Did Respondent Poultry violate Section 8(a)(3) of the
Act by not reinstating a striker upon his unconditional of-
fer to return to %work following the termination of an eco-
nomic strike?
Upon the entire record,4 upon my observation of the
witnesses and their demeanor while testifying, and having
taken into account the arguments made and the briefs sub-
mitted,5 I make the following:
FIDININS OF FAC(r
I JURISDI()TION
Respondents are Texas corporations. Respondent Heri-
der Farms Processing, Inc., is engaged at Nacagdoches,
Texas. in the processing and sale of poultry products. Re-
spondent Poultry, a wholly owned subsidiary of Respon-
I he amntidlenlits ii the comnplaint consisted of the addition of the
viIds "aiid April 125" sftcr the date "I ebruar? 7" In par 7 and the deletion
of the nr;lre "Bertha Rohberson In pars 9 and 10
At the hearing, the answer wits amended to admit the allegations of par
9 iof the complaint, as amended
In pertinent part these sections provide:
Sec hi;l It shall he an unfair lahbor practtice for an employer -
(1) to Interfere ith. restrain, or coerce emploees in the exercise
of the rights guaranteed in sec 7:
(3) bs discriminalioln in regard to hire or tenure of employment
to encourage or discourage membership in any labor organiza-
tion
Sec 7, insofar as relcxant. states
Sec 7 t implosees shall haze the right to self-organization. to form.
join. (or assist labor organizations. to bargain collectively through repre-
sentatives of their oivn choosing. and to engage in other concerted
aictisties for the purpose of collecltse bargaining or other mutual aid or
pritecrtioin
4 Upion Respiondents' unolppoised motion following the close of the hear-
iiig I receised In evidence an affidavit made bs Allen Lewis. a business
representative of the Charging Parts this affidavit has been placed in the
file if exhibit l ilrlodnuced bh Respondents and marked E xh C 9
Although ill the argumients of the parties and the authorities cited b)
iheim. v hether appearing in their briefs or made orall? at trial. may not be
discussed, each hitas been ca;refulls seighed and considered
r Respondents' motion to dlsitiss the complaint made at the conclusion
if the hearing. upoin ahich ruliig s.as reserved. is disposed of in accordance
with the findings and conclusion,t set forth in this tecision
237 NLRB No. 42
250
POULTRY PACKERS. INC.
dent Herider. is similarly engaged at Lufkin, Texas. During
the 12 months preceding the issuance of the complaint, a
representative period, each Respondent sold goods valued
at more than $50,000 to customers located outside the State
of Texas. Accordingly. I find that Respondents are en-
gaged in commerce within the meaning of the Act and that
the assertion of jurisdiction over this matter by the Na-
tional Labor Relations Board is warranted.
11 THF LABOR OR(GANIZAtION INVOlVII)
Amalgamated Meat Cutters & Butcher Workmen of
North America, AFL CIO, Local Union No. 540, is a la-
bor organization within the meaning of the Act.
111. INTRODUCTION
This case is concerned with two unrelated matters. The
first, in briefest outline, involves Respondents' grant of two
wage increases during the pendency of election petitions.
The General Counsel argues that respondents granted the
increases in order to induce the employees receiving them
to withhold support from the Union at the elections sought
by the petitions, and that in this manner Respondents vio-
lated Section 8(a)(l) of the Act.
Admitting that they granted the increases, Respondents
deny that they did so for the reasons asserted by the Gen-
eral Counsel. Respondents contend that their sole purpose
in raising wages was to enable them to compete with other
poultry processors for a competent, stable, and reliable
work force. Their motivation in granting wage increases
having been economic. Respondents' argument continues.
they did not violate Section 8(a)( ) of the Act by doing so.
The second matter involved in this proceeding. in equal-
ly brief outline, is concerned with the lack of success of an
employee. Herman Deveroux, who had participated in an
economic strike waged by the Union against Respondent
Poultry, in obtaining reinstatement at the conclusion of the
strike. The General Counsel argues that, by not reemploy-
ing Deveroux, Respondent Poultry violated Section 8(a)(3)
of the Act.
Asserting that during the strike the job Deveroux held
before the strike was filled by a permanent replacement.
Respondent Poultry argues that it was under no duty to
offer any' employment to Deveroux after the strike ended.
Assuming. arguendo, that it was obligated to offer Dever-
oux a different job upon the termination of the strike, Re-
spondent Poultry contends that it complied with this obli-
gation by' offering him such employment. which he did not
accept. Accordingly. it is Respondent Poultry's position
that it did not violate Section 81a)(3) of the Act bh the
manner in which it dealt with Deveroux.
iV PRELIMINARY FINDINGS 7
A. The Union
At all material times the Union has been the representa-
tive of employees of Respondents. In 1972. the Union and
each Respondent entered into separate collective agree-
ments. Respondent Herider's contract expired on October
23, 1975. and Respondent Poultry's on November 1., 1975.
Negotiations for new agreements began in September
1975 and continued until March 1976. However, the par-
ties were unsuccessful in arriving at contracts.
B. The Strike
Having been unable to reach agreement on the terms of
contracts to replace those which expired on October 23 and
November 1, 1975. the Union on November 4, 1975, struck
Respondent Poultry. s8 The strike came to an end on Octo-
ber 20. 1976, and many strikers unconditionally offered to
return to work.
On the day the strike ended, all strikers who desired to
resume their employment were requested to sign a reem-
ployment list. Those who did so, including Herman Dever-
oux. were instructed to report for work on the following
MondaN .
During the strike, Deveroux and a "good many" other
strikers, as he testified. "walked the picket line." In addi-
tion. Deveroux and other strikers spoke to employees who
continued to work during the strike, in an effort to induce
them to join the strike. Except for Deveroux, there is no
evidence showing that Respondent Poultry failed to rein-
state, in accordance with the foregoing procedure, ans
striker who engaged in such conduct. 9
C. The Petitions
On December I. 1976. a petition. Case 16-RD-734 (Luf-
kin petition), was filed seeking to decertify the Union as
the collective-bargaining representative of employees of
Respondent Poultry. A week later, a petition, Case 16-
RM 558 (Nacogdoches petition), was filed to determine
the collective-bargaining representative of employees of
Respondent Herider. Subsequently. Respondents were in-
formed by the Regional Director of Region 16 (Regional
Director) of the Board that a hearing on the foregoing peti-
tions would be held on January 11. 1977.
On December 13. 1976. the Union filed a charge, Case
16- CA-933 (Lufkin charge), alleging violations of Section
8(a)(3) of the Act by Respondent Poultry. Three days later,
the Regional Director notified Respondent Poultry that the
hearing on the I.ufkin petition would not take place be-
cause it had been blocked by the Lufkin charge.
On December 20. 1976. tle Union filed a charge. Case
16-CA-6949 (Nacogdoches charge). alleging violations of
Section 8(a)( I) of the Act by Respondent Herider. Because
I he purpo-e ,if thee findings is It furnish a frame iof reference within
S:hlih Io consider the fiacli relating ti Respondents' alleged unfair labor
pratilces
11 Is undlisputcd hit h th rike s itr ecinmict in nature
As noted ihoe the (rienral ( Counsel iontends that hs refusing to rein-
state l)c'ert,.,s the delai, if Ad hlch will he set forth In a subsequent section
of this I)eision,. Respondenl Poulirs ' .ilaled Sec. 8ia{3i of ihe A4c
251
I)F(lISIONS ()OF NAT IONAL LABOR RELA I IONS BOARI)
of the blocking nature of this charge, the Regional Director
on January 7, 1977, informed Respondent tierider that the
hearing on the Nacogdoches petition would not be held as
scheduled.
On February 2, 1977. the Regional Director sent a letter
to Respondent Herider advising it that the Nacogdoches
charge had been dismissed. Respondent Ilerider did not
receive this letter until FebruarN 5. The I ufkin charge wias
also dismissed, but the date of the dismissal does not tip-
pear in the record.
In view of the dismissal of the blocking charges, the Re-
gional Director, on February 4, 1977, mailed letters to Re-
spondents, notifying them that a hearing on the petitions
would be conducted on February 17. 1The parties stipulated
that Respondents received this letter on February 6. 'I hat
day, however, having been a Sunday, it is more likely, and
I find, based on the 3-day hiatus between the mailing tof the
letter concerning the dismissal of the Nacogdoches cha;rge
and its receipt by Respondent Herider, that the letter set-
ting the new date for the hearing on the petitions was re-
ceived by Respondents on February 7,
The first charge against Respondents in the instant case
was filed by the Union on February 11., 1977. Because of
this, on February 14, the Regional D)irector informed Re-
spondents that the hearing on the petitions w as again
blocked.
V Ii Al I(iiD) I:NI:IR I ABOR PRI( II(S
A. Fiacts Concerning R cpondcnWs' .ll'egeld I'io/lhioni ot
Secrion 8(a)(Ij of the 1 ct
Between February 9, 1976, and F ebruary 7, 1977, the
wages of Respondents' employees remained static. During
this period Respondents' wage rates were 25 to 30 cents an
hour lower than the wages paid by their local competitors.
This resulted in Respondents' inability to attract and retain
stable, competent employees. As Thomas Greer. Respon-
dents' vice president, testified in this regard, because of
Respondents' lower wage rates many of Respondents' em-
ployees were "floating-type people" [and Respondents' i
turnover rate was great."
Respecting this, Respondent Poultry experienced an em-
ployee turnover rate of 59 percent in December 1976 and
61 percent in January 1977. Employing a greater number
of workers, Respondent Herider's turnover rates for the
same 2 months were, respectively, 32 percent and 29 per-
cent.
In addition to these high turnover rates, the work per-
formed by the employees Respondents were able to hire
was of such poor quality as to affect Respondent's yield "'
and customer acceptance of Respondents' products. On
this subject. Greer stated that "workmnanship [of respon-
dents' employees before Februar 3 7. 1977] was just totally
bad all the way through."
To remedy this situation, and to compete for competent
employees with other poultry processors in their localities,
it Yield is the difference hetwecn the ueigl t io the piulti\ pi cl'ced hs
Respondents before slauighicr rid lie dic cd1 v:Cl ilit
Respondents. on iebruarN 4. 1977. announced to their em-
ployees that wages would be raised. On FebruarN 7 this
announcement was implemented.
On that day. employees who had been with Respondents
fewer than 96 days received a 5-cent-an-hour increase and
employees with more than 90 days seniority received a 25-
cent-an-hour increase. G(reer. Respondents' vice president,
crediblI testified that the "pending petitions [had no] effect
mn the dicision to grant the wage increases": that "it was
an ecLonomic thing'' and that "if [Respondents] were going
to stay in business [they] had to get competitive. otherwise
[they would havel to close the door and get out of busi-
ness.
A comparison of Respondents' new wage structure with
those of their competitors '' shows that in only one catego-
rn. the 3() da! rale. did Respondents' pay more than other
poulhr) proces,,ors I he rates for Respondents' other em-
plboees were set at levels equal to, or lower than, the corre-
sponding rates of the highest paying poultry processors in
Respondents' neighborhoods.
The wage increases granted by Respondents on Febru-
arv 7 had the desired effect. at least insofar as Respon-
dents' employee turnover rate was concerned. In February.
it dropped to 3() percent at Respondent Poultry's plant and
to 16 percent at Respondent lierider's. 12 These turnover
rates i enainiied faills constant up to the time of the hearing
in this proceeding. held in June 1977.
The raise given b, Respondents on February 7. to em-
ployees with seniority of 90 or more days, increased their
wages to $2.65 an hour. In April. Respondents received
information that one of their competitors intended, on
May 1. to increase the wages of employees in this category
to $2.75 ain hour. Because of this, Respondents, on April
25. raised the wages of their 90-day employees by 10 cents,
bringing their wage rate also up to $2.75 an hour.
Regarding Respondents' motivation in granting the
April 25 wage increase, Greer., Respondents' vice president,
credibly stated. as he had done respecting the February 7
increase, that the pending petitions had not been taken into
account by Respondents and that "all [Respondents] were
tr ing to do was to he fair so that Itheyl would keep em-
plosecs and staN in business."
B. (roncnlion, t nl (oncludlting Findings Concerning
Rc.nponidcnt ' A./legdrl I iolation. of Sction 8(a)(l) of the
IThe Gieneral ('ounsel contends that Res:pondents grant-
ed the wage increases on February 7 and April 25. 1977, to
induce employees to refrain from voting for the Union at
the elections that would be held on the petitions pending at
the time, and that thereby Respondents violated Section
8(a)(1) of the Act. Respondents' position is that their sole
purpose in raising wages wtas to enable them to compete
;with other poultry processors for an efficient, stable work
force. Accordingly, Respondents argue, their having in-
I he recrld i slcnt len g'iiding the manner in which the wage increases
afc itcd Respllidents' \icid customer aci cpt ance if their produces or their
[ ]l1p], ~%t'C',
'
~.~,4 ik II HI T/~,tU
252
P()1T I RY RN' ACKIS. IN(
creased their wage rates did not involve them in violations
of Section 8(a( I ). notwithstanding the pendencs of the pe-
titions.
In N.L.R.B. v. I /htangc ParI, (Co.. 37 l .S. 40). 4()9
(1964). the Supreme C(ourt held that an emplohs)er v iolaltes
Section 8(a)(I) of the Act hs "the conferr-al of emplshce
benefits while a representation election is peniding. 1t ,-hc
[ur/pJvc o!/' indl'i,,g hl/>/lcc to lott' againsf /t, / wrn ''l-
(Emphasis supplied.) flow'eer. this is not to sa! that In iall
cases an employser. to escape culpabilit\ under Sectlon
8(a)(l) of the Act. must permiit ''wages [to] remaiin fixed
from the time a petition is filed . . . until the petition is
ultimately disposed of." ( luonipion Pl ett ic '1ai nitint,
Co.. 152 NLRB 300. 301. 306 ( 1965. As emphasized above.
it is onl, when an emploer graints bend its "f'or the pur-
pose of inducing emplosees to vote against Ja]l uniion" that
a violation attaches.
"The Act does noit require an eniploser pending an elec-
lion to refrain from making econlomic:ally niotil\ated deci-
sions involving business matters or an! changes in Acorkmrlng
condition 1[ including sallil' changes., necessiar to the c0o1n-
tinual and orderls operations of ItS business, ahsent a
promise of benefits conditioned upon rejection (of the
Union . . . or ans causal connection beteen [the salar\
changes and] the rights accorded to emplo)ces hbx the Act{
Normal business decisions must continue to be malde and
frequently are necessar, for the efficient operartion of an
enterprise even though [occurringl during an orgalni/a-
tional campaign." It alnlu ( rccA PvlirclIatict ItI//IC11. C/I.c
208 NL RB 656. 663 (1974).
An enployer's legal dults ii dcitdirig v helici tto elt
benefits while a representation case is pendilig is to de-
termine that question precisel ias he would if a unioln su ele
not in the picture. If the emploNer would hav-e cr;lted the
benefits because of ccononlic circulilstailces unrelated to
union organization, the griant of those benefits will noit So-
late the Act. On the other hand, If the emploser's courtse is
altered by virtue of the urilon's presence. then the empeloter
has \iolated the Act, and this is true Mshether he confec s
benefits because of the union ori withhiolds, themi beciause of
the union." h'( ormtti( A I.liiicildoti .CShtm ( ' .. S lti ./ 15
N LRB 1237 1242 (1960).
Giv en the foregoing priinciples. if Responcldeits' u agc in
creases iii February and April 1977 had been granLited in
order to influence their emplo ees' vote at the clec tioins
which would he held on the pending petitions .:s the (icn-
eral Coutisel contends. they would haxe been xiolaltisc of
Section 8(a)(1) of the Act. O()n the other hand. if the wage
increases were, in fact. conferred for the purpose of en-
hancing Respondents' abilit, to atiract and hold compe-
tent employees. as Respondents assert. the ,t ould haiec
been "economicalls mortisate"'' aid, hence, not violhaice
of Section 8(a)( 11) of the Act. I find that the latter siuatlion
obtains here.
Thus, between Febhruar 1976 and Februars 1977, Re-
sporidents' emploNees had not had a wage increase. and
during this period Respondents' wage rates were lower
than their competitors. This resulted in Respondenlls'ilabil-
ity to recruit stable, ~ proficiCnlt eiplosees. I ol tile pur-
(o;I o ncillni hl 1n1mthl1ih\ e Rc p,,ndlcidlt olk [rrtc I h.xJC folund
pose of enabling them to coimpete for such emplosees oin
an elual fI tling with other poultry processors. as Thomas
(reer. Respondents' sice president. persuasivel 5 testified,
Respondents granted the l:ehruarx andi April increases.*4
It appears. therefore. thil Respondents were not moti-
xiatcd in i\ ilrc thne age increases hb the pendencN of the
petitions. hbut Ib the ecoc, oniic exigencs of becoming. and
remailling. colnpetitixe insofar as their ability to attract
iiand retain comlpetent emIplo)ces UIas concerned. This
heing tile c,se. it seemis to mc thi l Responidents acted pre-
cisels as tiles u- ould hate in the absence of the petitions. In
the prenises. therefore. as h'.h('orormlck Ionimnreadow teach-
es. Respondenits conducted themselses in accordance with
their '"leg;ll duix" alnd n did not c iolate Section 8(a)( 1) of the
Ilhere is set another reason for ms opinion that Respon-
dents did not iolate the Act hb granting the increases.
I his iel ites tPo their tinelil.
Several weeks before Respondents informed their em-
plo\eces th;Lt their wages ,iould he raised on February 7.
1977. Responcldents had been notified bh the Regional Di-
rector that thc pending petitions had been blocked bs un-
fair labor practice charges filed hb the [Inion. It was not
until 3 daiss after the Febhruar' wage increases had been
Ilaide knowu n to their eilplon ces that Respondents received
niotice of the dismissal of those charces and the resultant
unblocklign of the petitions. [ven this situation did not
continue for alls suhsrlnitial period. for the petitions were
a,;iin blocked oln I ehru;irs I1. bx the filing of the first
halirace in the instant case.
It thus appiears that the 1 eb'ruarx wage raise was an-
noinced it al timle when no election was pending. It cannot
be saidi therefore. as the (ieneral ('ounsel would have it,
"that the announcement of the [increasel was . . . timed to
ifieet tlhe einplol ees' vote [This is sol because. at that time
j. as falr s Respondelnts knewl the ... election was
blocked bhs the interve ninl unfair labor practice proceed-
ing j:lndJ although faced with the possibility of [an] election
IRcspondeintsj lid not knosw when, if ever. it would he
held.''" I he situation was the saime regarding the April
increase. It. too, ,,as gtven while an "election was blocked
bh [ail] intl cellilnig unfair labor practice proceeding."
Accordinls. I conclude that. notwithstanding the pen-
derinc of the petitions, Respondents did not violate Section
8(O1)( I) of the Act hb raising their emplosees' wages.
h1.,l dt1,ilIll
°
1 ,li.Li' 1'7I - the tlrlt l\cl rtalC 11 !L i th I kin plallt. op e ratled bh\
,c,[i~1di ll 1'tml ,i, '.., illolc IhAii (ti ll IICentl a nd ahno,4 tD percenlt l llt.e
Na. _t'Idothc, ttt. hlit.. qp,-i;.eld ),s Res-pondent HIrc ler
i tietr 11c [ chrl.l 11 Itrci'Cil IIrI tlurnoler r31e at1 ufkin dirpped toi 3l
CLCII' idll oi i1 p1erk i.1 int V. l-it'l ¢l I tlie April ilcrea;' e " as ilvien
oi'l]
~
[, t'irl'i\/lqici vilt i }.1 i.ll. .11ith Respotndents nmore tIhan 90 da,,s
altt.List' Rcipondll ,cnt, \; I Illntrm icid dulrlm that mnlrl h that one of the r
,mllpc llitms pl/ll ed ,j Il' t ll\ c i ll 1kLc of cnl o CI ,,ees i, n this calegor ' on
hik'hl .\ !II th 1 11e, Iok c ] i \ 11 I.gllil Int' r a il d1lal ,ntalgeous compell-
Ia [' ',, ( ,
'I~; , i, i I tt~~ /,:: l, 1% \ 1Ri l[)j4', n~, i(M t 1'in'i
253
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Facts Concerning Alleged Violations of Section 8(a)(3) of
the Act by Respondent Poultry 16
At all material times, Respondent Poultry t7 has em-
ployed one knife sharpener. Among other things, the knife
sharpener sharpens knives and scissors used by Respon-
dents' production employees. The hand tools used by the
knife sharpener for this purpose, which are, apparently, his
own property, are carried in pouch attached to a belt worn
around his waist.
Before the strike 18 in which he participated, Herman
Deveroux was Respondents' knife sharpener. Deveroux
had earlier performed other duties in Respondent's plant,
including cutting chicken necks and unloading chickens.
He had also worked in Respondents' cooler.
During the strike, Deveroux was permanently replaced
as knife sharpener by Leroy Posey. Posey continued to oc-
cupy that position at all times since the strike.l9
At the strike's end Deveroux, as did other strikers who
unconditionally offered to return to work, signed the reem-
ployment list and returned to Respondents' plant the fol-
lowing Monday, as requested. At that time, Deveroux was
told that his prestrike job of knife sharpener was held by
Posey and was offered a job hanging chickens. Deveroux
accepted this offer.
Although Deveroux had not before then hung chickens,
he appears to have been qualified to perform this relatively
unskilled work. In this connection, in a pretrial affidavit
Deveroux stated that he was capable of doing "such twork]
as .... hanging chickens [and] could do about anything"
in Respondent's plant.
After accepting the chicken hanging job, Deveroux was
given boots, gloves, and an apron. Upon being thus outfit-
ted, he and several other employees were taken to the
hanging pen where they were to work.
A short time later, Deveroux told David Fleming. Re-
spondent's personnel manager, that during the strike he
had hurt his back. In view of this, and in accordance with
Respondent's normal procedure respecting injured or ail-
ing employees, Fleming directed Deveroux, as Harold An-
derson, Respondent's plant manager, who was present, tes-
tified, "to get a release from [his] doctor and . . . when he
obtained the release [he] would [be] put . . . back to work."
A week later, at a time when Respondent was advertis-
ing for employees, Deveroux returned to Respondent's
16 The complaint alleges that Respondent Poultry violated Sec. 8(a)(3) of
the Act by "faillingl and refuslingl . . to reinstate Iltermain t)eierouxl to
[his] former or substantially equivalent [posltion] of eniploy ment although
Respondent Poultry had openings in said positionl."
All subsequent reerences to "Respondent" n this. and the following.
section of this Decision relate io Respondent Poultr)
IN Briefly recapitulating my findings concerning this matter, an economic
strike against Respondent started on November 4, 1975. and ended on Oc-
tober 20, 1976, at which time strikers who unconditionally offered to return
to work were requested by Respondent to sign a reemployment list. and to
report for work the following Monday.
| Notwithstanding that Respondent employed a person exclusivels to
sharpen knives and scissors, some production emplovees sharpened their
own cutting implements and, on occasion. those of other employees. I he
General Counsel does not contend that employees who did so before or
after the strike were employed as "knife sharpeners."20 Exh. C 1.
plant carrying his knife sharpening tools, and presented his
physicians release to Fleming and Robert Ferro, Respon-
dents' processing director. Deveroux was told that his pre-
strike knife sharpening job was still filled, but that he could
have another job. Deveroux rejected this offer stating that
"the only thing he wanted to do was knife sharpening."
Deveroux then left Respondent's plant and Respondent did
not again hear from him.2'
On April 28, 1977, Respondent, being in need of employ-
ees, sent Deveroux a letter.22 by certified mail, once more
offering him a job in its plant. Deveroux was informed in
this letter that although his "old job of knife sharpener"
was still unavailable, there were job "openings in all de-
partments within the processing plant." The letter further
stated that if Deveroux was "desirous of employment . . .
he [should] contact [Respondent's director of industrial re-
lations] not later than . . . May 4, 1977."
Deveroux was not at home when the first attempt to
deliver the letter to him was made. Accordingly, a notice
was placed in his mailbox advising him that the letter had
been returned to the post office and that he could obtain it
there. Deveroux not having done so by May 3, a second
unsuccessful attempt at delivering the letter to him at his
home was made and, again, a notice similar to the first was
left for him.
The letter was finally delivered to Deveroux on May 5.
However, Deveroux did not make any effort to "contact"
Respondent's director of industrial relations. As Deveroux
testified, in this regard, he "just didn't see any sense in
contacting [Respondent] after the [May 4] deadline [, nor
:t My findings as to what occurred on this occasion are based upon, and
the quotation appearing In the text is taken from, testimony given b) Ferro.
,xho. unlike L)eeroux, impressed me as being a forthright witness. Dever-
u.ux admilled that when he returned with the release he was carrying his
knife sharpening tools. Hl ever. as to what was said at the time. Deveroux
unpersuasively testified that the person to whom he gave the release told
him that Respondent had no jobs open at the time; that "everything has
been filled": and that respondent had "no place to pub [him] to work." I do
not credit Deveroux' version of what transpired on this occasion.
Initially. it is unlikely that at a time when Respondent was advertising for
emnplnyees it would refuse a job to Deveroux. whose strike activity did not
differ materialls front other strikers who were reinstated Secondly. and
aside from l)eseroux' failure to impress me as a forthright witness, the
unirehabilits of his testimonv was demonstrated by his inability to recall
those events a person in his position would be expected to remember.
I hus. Descroux was unable to remember the dates of his employment by
respondent his exact rate of pay as a knife sharpener. the date on which the
strike ended. the montlh in which he signed the reemployment list. or the
dlate on which he received a written offer of employment from respondent.
which will he discussed In the following paragraphs of the text. Further-
miore. although [)everoux testified that on a Sunday after the strike ended
lihe received a telephone call front a man named Ward. whom he "assumed"
was a foreman. directing him to rceport for work the next day. he could not
iemember the mionth in which this occurred. In addition. throughout his
testimony Deveroux was unable to recall the names of Respondent's offi-
cials, except Ward, with whom he testified he had had conversations con-
cerning his reemployment after the strike.
Moreover, regarding the release itself. Deveroux at first stated he gave it
to Ward In his sery next breath he said he gave it to Anderson. Respon-
dent's plant manager Finally, he testified that he couldn't "remember ex-
i.ctly" to whom he gave the release.
Accoldinlgly, I conclude that Deveroux's testimony as to what occurred
ahen he returned .to Respondenl's plint with the release was either outright-
Is untruthful or the product of an extremely unretentive memory and, there-
fore. not entitled lto credence
(: ( i 1xh 2
254
POULTRY PACKERS. INC.
did he] make any attempts ... to explain to [Respondent]
that he had gotten [the letter] later."
D. Contentions and Concluding Findings Concerning
Alleged Violations of Section 8(a)(3) of the Act hv
Respondent Pouhrv
The General Counsel contends that by not reemploying
Deveroux pursuant to his unconditional offer to return to
work at the end of the strike, Respondent violated Section
8(a)(3) of the Act.
Respondent takes issue with the General C(ounsel on al-
ternative grounds, either one of which, it asserts. estab-
lishes that it did not incur liability under Section 8(a)(3) of
the Act by not reemploying Deveroux after the strike. It
first argues that inasmuch as the knife sharpening job held
by Deveroux before the strike was, during the strike, filled
by a permanent replacement it had no duty to offer him
any employment after the strike ended. Respondent's sec-
ond exculpatory argument is that if it was obligated to
offer Deveroux a different job upon the termination of the
strike, it complied with that obligation by offering him
such employment which he, ultimately, refused. I find mer-
it in Respondent's second position.
Concerning the validity of Respondents' second conten-
tion, the starting point for analysis is the Supreme Court's
decision in N.L.R.B. v. Fleetwood Trailer Comparn. Inc..
389 U.S. 375, 379. 381 (1967). There the Court, quoting in
part from its prior decision in N.L.R.B. s. Great Dane
Trailers, 388 U.S. 26, 34 (1967), noted that "in some situa-
tions 'legitimate and substantial business justifications' for
refusing to reinstate employees who engaged in an eco-
nomic strike have been recognized i, one such being] when
the jobs claimed by the strikers are occupied bh workers
hired as permanent replacements during the strike." In that
event, the Court went on to say. "if and when a job for
which [a] striker is qualified becomes available. he is enti-
tled to an offer of reinstatement."
Fleetwood was followed by The Laidlaw Corporation, 171
NLRB 1366, 1369 70 (1968). enfd. 414 F.2d 99 (C.A. 7.
1968), in which the Board held that "economic strikers who
unconditionally apply for reinstatement at a time when
their positions are filled by permanent replacements
are entitled to full reinstatement upon the departure of re-
placements." The Board's decision in Laidlaw evolved
from the Supreme Court's decision in Fleetwood. How-
ever, the Board, in Laidlaw, omitted from its holding the
statement appearing in Fleet'ood that a returning econom-
ic striker whose job was permanently filled during the
strike "is entitled to an offer of reinstatement" to "a job for
which [he] is qualified" when such a position "becomes
available."
This omission was, apparently, inadvertent, for in
Brooks Research & Manufacturing, Inc., 202 NLRB 634,
636 (1973), the Board commented that "in Laidlaw [it] ap-
plied Fleetwlood to hold that economic strikers who uncon-
ditionally apply for reinstatement when their positions are
filled by permanent replacements are entitled to full rein-
statement upon departure of replacements or when jobs for
which they are qualified become available."
The Board recently reaffirmed this position. In Alumi-
num Cruisers, Inc., 234 NLRB 1027 (1978), it was stated
that "under Supreme Court and Board doctrine [an em-
ployer's] reinstatement obligation to [economic] strikers
[includes] reinstatement to positions which the strikers [are]
qualified to fill."
It appears. therefore. that Respondent was justified in
not reinstating Deveroux to the job of knife sharpener,
held bs him before the strike, as during the strike that posi-
tion was filled h, a permanent replacement. However, this
did not terminate Respondent's obligation to Deveroux.
Notwithstanding that [)everoux was not entitled to be
reemployed as knife sharpener. Respondent was obligated,
as the foregoing authorities make clear, to offer him em-
ploniment in some other asailable capacity, provided he
was qualified to perform such other work.
The evidence establishes that respondent complied with
this obligation. Immediately after the strike. Respondent
offered Deveroux a job hanging chickens, which was then
open and for which I)exeroux was qualified. Deveroux at
first accepted this offer. But, a week later, upon returning
to Respondent's plant with the physician's release Respon-
dent requested him to obtain because he had hurt his back
during the strike, he rejected it, as well as other emploj-
ment offered him, informing Respondent. as I have found.,
that he would work only as knife sharpener.
Some months later, Respondent sent Deveroux a letter
informing him that although the job of knife sharpener was
still not available. other jobs which he could have were
open. Hiov ever. as a result of events not attributable to
Respondent, I)eseroux neglected to respond to this offer.
It appears, therefore, that on several occasions after the
strike. Respondent offered f)everoux jobs for which he was
qualified. In this manner. Respondent complied with the
requirement of offering a returning economic striker em-
plosment for which he is qualified when the job he held
before the strike was filled during the strike bx a perma-
nent replacenment.
Accordingly. I conclude that Respondent PoultrN did
not violate Section 8(a)(3) of the Act be not reemplosing
Deveroux after the strike.
Having already concluded that Respondents did not ico--
late Section 8(a)(1) of the Act by raising their emploxees'
wages during the pendency of election petitions. m' order
will provide for the dismissal of the complaint. which does
not allege the commission by either Respondent of an,
other unfair labor practices.
(ON( iLt sioNS OF LAW
1. Respondents are employers within the meaning of
Section 2(2) of the Act and are engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Sect.
3. Respondents did not violate Section 8(a)( I of the Act
by raising their emplosees' wages during the pendency of
election petitions.
4. Respondent Poultrs Packers. Inc., did not violate Sec-
255
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 8(a)(3) or (1) of the Act by not reemploying Herman
Deveroux after the termination of an economic strike
against it in which Deveroux participated.
Upon the foregoing findings of fact, conclusions ef law,
and upon the entire record, and pursuant to Section 10(c)
of the Act. I hereby issue the following:
:' In the eenlt not) exceptions ire filed is proided in Sct, n 1i()2 4( i the
Rules and Regulations of the N i onal ab I hr Relatons Bioard. Ihe filndigs,,
ORDER 23
It is ordered that the complaint be, and the same hereby
is, dismissed.
conclusiones. and Order herein shall. As provided in Seolelol 112 48 of the
Rules alnd Regulltiltn hc adopiled hs Ihe Board and hecome its findings.
cnclusn,ill, and Order. and all bhiectilons thereto shall he deemed waived
hit all purpoes
256