R. L. Ziegler, Inc.

National Labor Relations Board - Board Decisions

Jan 9, 1961

129 N.L.R.B. 1211 (N.L.R.B. 1961)

R. L. ZIEGLER, INC.
1.960, admittedly refused to bargain with the Union . The Company contends, how-
ever, that its admitted refusal to bargain was not an unfair labor practice , on the.
ground that the certification of the Union was illegal . The Company 's position that.
the certification of the Union was illegal is based on the contention that the Board's.
procedures and actions in the representation case were improper . That contention,
and the arguments in support thereof, were fully considered in the representation
proceeding , and were rejected at that time ; at the instant hearing no matters were
offered for consideration which were not or could not have been presented in the
representation proceeding.
This is not a matter of coshering the Board : it is neither my function nor my
right to review its determinations . Accepting the certification, and the refusal being
admitted , I find that at all times since August 16, 1960, the Company has in viola-
tion of the National Labor Relations Act, as amended, 73 Stat. 519 , refused to bar-
gain with the Charging Union as the collective -bargaining representative of the
employees in the unit.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local 2, International Union of Operating Engineers , is a labor organization
within the meaning of Section 2 ( 5) of the Act.
2. All of the Company 's licensed operating engineers at its St. Louis , Missouri,
plant , excluding all other employees , professional employees , office clerical em-
ployees, guards , and supervisors . as defined in the Act , constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
3. Local 2, International Union of Operating Engineers , was, on August 16, 1960,
and at all times since has been, the exclusive bargaining representative within the
meaning of Section 9 (a) of the Act, of all employees in the aforesaid unit for the
purposes of collective bargaining.
4. By refusing to bargain collectively with Local 2, International Union of
Operating Engineers , as the exclusive representative of the employees in the appro-
priate unit , Moloney Electric Company has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (5) of the Act.
5. By such refusal to bargain , thereby interfering with, restraining , and coercing
its employees in the exercise of rights guaranteed in Section 7 of the Act, the
Company has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a)( I) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
[Recommendations omitted from publication.]
R. L. Ziegler, Inc. and Frances Burt, Myrtie Bell Dockery,
Charles H. Farley, Manley Foster Holloway , Willis B. Ingram,
Elsie McCracken , Margaret S. Parker, Huey C. Smalley,
Charles Burroughs, Tommie D. Miller, Eual Kimbrell, and
Joseph Mallisham . Cases Nos. 10-CA-4372-1, 10-CA-4372-2,
10-CA-4372-3, 10-CA-4372-4, 10-CA-4372-5, 10-CA-4372-6, 10-
CA-4372-7, 10-CA-4372-5, 10-CA-43792-9, 10-CA-4372-10. 10-
CA-4372-11, and 10-CA-4372-12. January 9, 1961
DECISION AND ORDER
On June 20,1960, Trial Examiner Thomas A. Ricci issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in certain unfair labor practices alleged in the
complaint. He further found that the Respondent had not engaged in
129 NLRB No. 150.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other alleged unfair labor practices, and recommended that said
charges be dismissed, as set forth in the copy of the Intermediate Re-
port attached hereto. Thereafter the General Counsel and the Re-
spondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Fanning, and
Kimball].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and the briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and
recommendations.'
ORDER
Upon the entire record in the case, and-pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board orders that the Respondent, R. L. Ziegler, Tuscaloosa,
Alabama, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discharging employees or otherwise discriminating against
them in their employment because of their union activities.
(b) Telling employees that union activities prejudice chances of
employment, creating the impression that union activities are under
surveillance, interrogating employees concerning union activities, or
promising to assist employees if union activities cease.
(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 form, join, or assist United Packinghouse
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, as guaranteed in Section
7 of the Act, and to refrain from any or all of such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
'At the hearing, the Trial Examiner granted Respondent 's motion to dismiss the com-
plaint allegations as to employees Frances Burt , Myrtle Bell Dockery, Charles H. Farley,
Manley Foster Holloway, Willis B. Ingram, Elsie McCracken , Margaret S. Parker, Charles
Burroughs , and Eual Kimbrell, on the ground that the General Counsel had failed to
establish a prima facie case. In the Intermediate Report the Trial Examiner fully
analyzed the reasons for his recommendations that the complaint also be dismissed with
respect to employee Huey Smalley , who was in a like position to the aforementioned
employees . We adopt the Trial Examiner 's rationale , finding, and recommendation as to
Smalley and agree with his ruling on the motion to dismiss. See Cherry River Company,
97 NLRB 1303 at 1304 , footnote 1.
R. L. ZIEGLER, INC. 1213
(a) Offer Joseph Mallisham immediate and full reinstatement to
his former or substantially equivalent position without prejudice to
his seniority or other rights and privileges previously enjoyed.
(b) Make whole Joseph Mallisham for any loss of earnings he may
have suffered as a result of the discrimination against him, as pro-
vided in the section of the Intermediate Report entitled "The
Remedy."
(c) Preserve and upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all records necessary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its plant in Tuscaloosa, Alabama, copies of the notice
attached to the Intermediate Report marked "Appendix.'" Copies
of said notice, to be furnished by the Regional Director for the Tenth
Region, shall, upon being duly signed by Respondent's representative,
be posted by Respondent immediately upon receipt thereof and main-
tained for a period of 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that
said notice is not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Tenth Region, in writing,
within 10 days from the date of this Decision and Order, what steps it
has taken to comply herewith.
IT IS FURTHER oRDEREn that the complaint be dismissed insofar as it
alleges unlawful discrimination in employment against Huey C.
Smalley.
2 This notice , however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "The Recommendations of a Trial Examiner " and substi-
tuting in lieu thereof the words "A Decision and Order ." 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 "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order ." This notice is further amended by
striking from the fourth subsection of the first paragraph the words "except to the extent
permitted by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , with all parties represented, was heard before the duly designated
Trial Examiner in Tuscaloosa , Alabama, on April 5 , 6, and 7, 1960 , on complaint
of the General Counsel and answer by R. L. Ziegler, Inc., herein called the Company
or the Respondent . The sole issue litigated was whether the Respondent had
violated Section 8(a)(1) and ( 3) of the Act. The Respondent and the General
Counsel filed briefs with the Trial Examiner after the close of the hearing.
Upon the entire record and from my observation of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
R. L. Ziegler, Inc., is, and has been at all times material herein, an Alabama
corporation maintaining places of business at Tuscaloosa, Bessemer, and Selma,
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alabama, and is engaged in the slaughtering of livestock and the processing of meat
products. Only the Respondent's plant at Tuscaloosa, Alabama, is involved in these
proceedings. At its Tuscaloosa plant, during the past calendar year, which is repre-
sentative of all times material hereto, Respondent sold and shipped products valued
in excess of $500,000 directly to customers located outside the State of Alabama.
I find that the Respondent is engaged in commerce within the meaning of the Act,
and that it will effectuate the policies of the Act to asseit jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
United Packinghouse Workers of America, AFL-CIO, herein called the Union,
is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background of the case
The Company first recognized the Union as representative of its plant employees
in July 1958, after a short recognition strike. Negotiations for a contract were
unsuccessful, and on August 19, 1958, the Union struck. The parties came to terms
on November 5, 1958, when they signed a complete collective-bargaining agreement.
This contract represented essentially a strike settlement, for, as collateral under-
standings, a number of releases were signed by both parties, discontinuing civil and
criminal actions pending, and also indicating an intention to withdraw charges of
unfair labor practices then pending before the Board in consequence of the strike
activities. The volume of work fell off during the strike, and therefore a number
of striking employees did not return to work immediately.
In October 1959, and again in January 1960, one of the strikers, Smalley, asked
for work and was not employed. The complaint alleges that the Company denied
him work because he had participated in the two strikes. The complaint also alleges
a number of coercive statements and activities by company representatives.
Apart from any developments related to the original strike and the settlement
agreement, the complaint also sets out the discharge of one Mallisham, a very active
union leader in the plant. He was discharged in February 1960, and the complaint
alleges his discharge was for unlawfully discriminatory motives The Respondent
in answer denies the commission of any unfair labor practices alleged in the
complaint.
B. The case as to Smalley
Smalley, a regular employee, went on strike with the entire plant in August 1958.
By the time the strike settlement was made almost 3 months later the Company had
discontinued an entire department and therefore there were not enough jobs to
reinstate all the strikers. Apart from a dispute at that time over a number of
strikers whom the Company desired never again to reemploy because of asserted
misconduct in the course of the strike, there was also disagreement as to how long
a period of time the strikers should be deemed as having preferential reemployment
rights, or continued seniority status for recall when the volume of business should
permit. The Company wished to accord then only a 6-month period, while the
Union held out for 24 months Part of the strike settlement agreement was that
strikers who could not be accommodated then should be placed on a seniority list
for 12 months, and the contract that was signed so specifically provided. In pertinent
part it read: "Seniority of any employee shall be considered broken and all rights
forfeited and there will be no obligation to rehire him when he- . (d) is laid
off in excess of (12) months " Smalley was named on this seniority list, which
became an appendix to the contract.
On October 16, 1959, Smalley presented himself at the plant and asked Mr. Bell,
the plant manager, for a job. He asked Bell whether there were any openings, and
Bell said there were not Smalley left. His only other application for employment
was made on January 27, 1960, when he, with another group of employees similarly
situated, wrote a letter to the Respondent advising that they were desirous of re-
turning to work and requesting employment if any was available.
The record does not show how many strikers whose names were placed on the
seniority list in November 1958 were thereafter recalled to work; it shows only that
two such persons returned later in November of that same year. The record as a
whole indicates that the department which was discontinued in consequence of the
1958 strike was not reopened before well after 1 year following the strike. A
stipulation of the parties shows that seven employees were hired beginning on
November 6, 1959, when one man was taken on, and continuing when three were
hired the following month and two in January 1960.
R. L. ZIEGLER, INC. 1215
It thus appears clearly on the record that in fact there were no jobs available in
October, when Smalley applied, or at any time before November 5, 1959, when the
contract rights of recall of this employee and other strikers expired by the terms of
the agreement. Indeed, the General Counsel virtually concedes this fact. It is not
argued, as a theory of the complaint, that the misconduct of the Respondent was
in not recalling Smalley, or discriminating between him and other junior strikers
in recall. Nor does the General Counsel argue that this is a case of denial of rein-
statement rights to a returning striker, either in October 1959 or January 1960, such
as might be the case of a striker at the moment he abandons his strike. The strike
was abandoned and settled back in November 1958. Thereafter, Smalley and
certain other employees had only such rights to employment as any other laid-off
workmen.
An essential element of any violation of Section 8(a)(3) of the statute, as
alleged in the complaint, is that there in fact be a discrimination in employment to
a particular employee or applicant for employment.' I find the record here totally
lacking in proof of such an essential element. The General Counsel stated that the
date November 5, 1959, appears in the complaint as the time of the unlawful dis-
crimination only because it was then that the seniority rights of Smalley expired. On
the total record, I conclude that the complaint allegation of an unlawful discrimina-
tion against Smalley has not been supported by the evidence, and I will therefore
recommend dismissal of the complaint as to him.2 Because I believe the complaint
as to Smalley should be dismissed on this ground, I find no occasion to consider the
Respondent's further defense based on the assertion that because of misconduct on
the picket line at the time of the 1958 strike Smalley was not entitled to employment
or reinstatement under any circumstances.
C. The discharge of Mallisham
Joseph Mallisham started with the Respondent in 1945 and worked for 15 years.
By the time of the 1958 strike, according to the seniority list in evidence, he was
one of the five highest paid employees in the plant, exceeded only by a floorman.
His immediate foreman, Shaul, testified he had "never had complaints about Mal-
lisham's production."
Mallisham was one of the most, if not the most, active union member among
all the employees. He was department steward, a member of the negotiating team,
secretary of Local 680 (apparently a local established for this plant), a member
of the grievance committee, and a strike captain. Also, at the time of the strike,
he was chairman of the finance committee which interested itself in raising funds
to avoid repossession of property of strikers. It is clear on the record that the
Respondent was aware of his very widespread activities on behalf of the Union.
On February 4, 1960, at the end of his shift about 3 p.m., Mallisham was told
by his foreman to go into the manager's office. There he found Plant Manager Bell,
Office Manager McCrimmon, Plant Superintendent Richardson, and Bell's secretary,
who took shorthand notes. Present were also three employees: Woodrow Frierson,
Sanders, senior, and Sanders, junior.
About a week earlier Mallisham had delivered to the front office six dues checkoff
authorization cards; among these were cards bearing the signatures of Frierson and
the two Sanderses. When Mallisham arrived at the office, Bell said the three em-
ployees had not signed the checkoff cards and that he, Bell, believed them when
they told him the signatures had been placed on the cards by someone else. There
was talk of forgery during the conversation. Within 30 minutes or so Bell discharged
Mallisham, and delivered his severance check in a matter of minutes.
Shortly thereafter, about 5 p.m., a second conference took place in the same
office, upon the urgent insistence of Morgan, the Packinghouse Workers' field 'repre-
sentative who was called by Mallisham in consequence of the unexpected discharge.
The same management representatives were present, with Morgan, Mallisham,
Anders-the president of Local 680-and a few other members of the grievance
committee. Frierson and the two Sanderses again were called in. No witnesses
for the Respondent testified concerning the conversations at two meetings Miss
Watkins, the manager's secretary, took shorthand notes; her typed transcriptions
were received in evidence. Bell said only that they reflect what was said at the
meetings. Miss Watkins is not a court reporter, there are gaps in her notes, and
1 ClimaT Spinn4ng Company, 101 NLRB 1193, 1204
a On there same grounds I granted a motion by the Respondent, at the close of the
General Counsel's case, to dismiss the complaint respecting nine other employees, who,
like Smalley, had struck in August 1938, and .hose names had been placed on the same
seniority recall list
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she admitted that when more than one person spoke at the same time she missed
what was said . The incompleteness of her notes is also manifest from the patent
incoherence shown by a reading of the exhibit. I have no reason to disbelieve that
what she did succeed in reporting was in fact said.
According to Mallisham, Bell said he was a "trouble maker," and that he was
being discharged for having engaged in union activities on company time, for in-
subordination, and for trying to run the plant. There was much talk at both meetings
of a possibility the signatures of Frierson and the two Sanderses had been forged,
of Bell's faith in their honesty, and of contrary assertions by the union spokesmen
and their offers to disprove the charge by handwriting experts or a number of
employee witnesses to the signing of the three authorization cards. Mallisham also
recalled that in defending his action to the union representatives in the second
meeting, Bell spoke of certain incidents months earlier, in which he accused
Mallisham of leaving his work station during working hours, wandering about
departments where he did not belong, and interfering with the prerogatives of man-
agement. Mallisham also testified Bell accused him of the alleged forgery, but
conceded this was said to him "indirectly."
As stated, although several witnesses called by the Respondent were present at
the meetings, none of them attempted to relate what was said there. The girl's
notes do not tell a clear story. Discussion was definitely heated and Bell said much
about his reasons for the discharge. These confusing facts, plus the generalities
of Bell's testimony at the hearing respecting what the basis of his action in fact was,
makes it difficult to reconstruct the precise conversations. Nevertheless, in some
respects the record is clear. Bell did say that certain activities of Mallisham some-
time before February 1960 were at least in part the basis of the discharge, and he
referred in some fashion or other to them. He also made clear to Mallisham that
the three cards, whose signatures he said he believed had not been written by the
employees themselves, were the provoking cause for calling Mallisham to the office
and for discharging him. According to the girl's notes, practically all of the first
meeting was devoted to a quarrel over whether the cards were or were not forged.
Bell did not, in so many words, accuse Mallisham of having signed the other men's
names, and it was never a contention of the Respondent that it discharged him for
any act of forgery. Yet all the evidence respecting the meetings shows complete
justification for Mallisham's impression that, albeit indirectly, Bell accused him of
forgery. Thus, the girl's notes show that Bell opened the subject of the questioned
cards by asking each of the three men, Sanders, Senior, Sanders, Junior, and Frierson,
whether they had signed the cards. Each replied, "No." Virtually the next thought
out of Bell's mouth is a statement to Mallisham: "I think it all boils down that
you are trying to be a trouble maker around here."
What Bell said to Mellisham that day, as to the reason for the discharge, and
what his true motivation was, may be entirely different matters. Indeed the latter
is the heart question of this case. But as to what thought Bell conveyed to Mallisham
on that subject during these meetings, I can only find that he told Mallisham he was
firing him, in part at least, not because he believed Mallisham had falsified signatures,
but simply because he believed a forgery had been committed. Mallisham asked
him whether the names on the cards were in his handwriting, and Bell replied: "I
am not saying it is you say he did, but he says he didn't."
Rather inconsistently with his frank statement on the record that nothing occurred
the week of February 4 ,to warrant Mallisham's discharge, Bell also testified that the
events of that day did cause him to act.3 The record as a whole, therefore, presents
considerable ambiguity both as to what the Respondent's real contentions are now
and what facts it is relying upon to support its affirmative defense of a discharge
for cause. One aspect is clear: the Respondent advances, as justification for the
discharge at least in part, certain conduct of Mallisham occurring long before the
discharge. Therefore, reserving for the moment the important and pertinent fact
that Bell took no action until long after the alleged misconduct of Mallisham, the
case requires careful consideration of such past events.
Specifically, the Respondent points to two incidents in the summer of 1959. It
appears that in July the employees in the pork department started to take their
break from work at 10 instead of 10:30 a.m., the previously established hour. When
8 At one point of the record Bell's testimony reads as follows
TRIAL EXAMINER: What made you pick February 4, 1960, to fire him?
The WITNrss - Well, as I said, we have had a series of things leading back to
July, and, then, when I brought these men in and they confronted him and denied
that they had signed the checkoffs, I just decided that I had just had enough I felt
like he was it trouble maker and we would be better off without him
R. L. ZIEGLER, INC. 1217
the manager learned of this, he decided it best to change the break period for that
group to 10 o'clock and so advised the employees; they did so on z. Monday. James
Long, the union steward of that department, who had been absent, returned to
work the following Tuesday and Wednesday. On both these days the employees
did not take their break at 10 o'clock but instead took it at 10:30. The manager
then called Long to his office. When Long advised him of the call to the office,
Mallisham told his foreman he was leaving his post, was docked for the time so
lost, and accompanied Long to the manager's office. When they arrived there
Mallisham told Bell that this was a matter for the grievance committee and that
under the current contract it was not to be discussed with a single employee such
as Long. As Bell described the incident, Mallisham refused to permit Long to
remain in the manager's office alone and the two employees left. Bell went on to
testify that later that afternoon the matter of the appropriate time for the break
in the pork department was taken up when a grievance committee of six or seven,
including Long and Mallisham, came to his office to discuss it. Here Bell defended
the Company's right to fix the break period. In conclusion of this incident, Bell
testified without contradiction that Long was laid off for 1 week in discipline, the
manager taking the position that Long had personally been responsible, in view
of his position of leadership as the union steward, for the fact that the pork depart-
ment employees had refused to carry out the new instruction to take their break
at 10 a.m.
The second principal incident called "insubordination" or "union activity on
company time" by the Respondent, occurred on about September 21, 1959. It
seems that one morning, when six or seven employees of the kill floor department
were out sick, Shaul, foreman of that department, and Richardson, the plant super-
intendent, were working with the regular production employees there in order to
keep production going. Mallisham learned of this when an employee complained to
him that under the contract, supervisors could only do production work in an emer-
gency situation, and that they could not do so while regular production employees
were in laid-off status. The record shows, on the basis of Mallisham's uncon-
tradicted testimony, that at that moment that morning an employee of the kill
department, who had arrived from home, was waiting in the washroom to be assigned
to work. Mallisham left his work and went downstairs to the kill floor. He spoke
to the supervisors who were working and was told to go to the manager's
office. He did so and complained to Manager Bell of the foremen doing production
work while a rank-and-file man was waiting assignment. According to Mallisham's
story, which I credit, Bell told him to return to the department and ask each em-
ployee how he felt about it.4 Mallisham returned to the kill floor and asked each
employee's opinion on the question; they all opposed the foremen working, but
matters remained the same.
Bell also recalled that sometime in June (he could not remember the date) he had
had a report (he did not say from whom) that Mallisham had complained about
Foreman Shaul performing production work in the kill department and asking the
employees if Shaul should be permitted to continue. Nothing seems to have come
from this incident, and the record says nothing else about it.
In addition to the foregoing, there is testimony by Richardson, the superintendent,
that on one occasion in July he saw Mallisham appear near the door of the pork
department, a place where he was not supposed to be. He added also that one day
he saw Mallisham speak to employee Howard in the sausage department, but he
could not recall when and he made no comment to Mallisham about it. Bell, the
manager, testified that it had been reported to him that Mallisham on two or three
4 Bell denied having authorized Mallisham to poll the employees. This incident was
one of the several with which Bell confronted Mallisham on February 4, immediately
before discharging him. Miss Watkins' notes show that at that time Mallisham pro-
tested : "I went back there at your request. You told me to go back and talk to the
fellows You told me to go back there. I told Mr. Shaul, Mr. Bell asked me to let them
speak for themselves " Bell then answered . "That is still neither here nor there, you
were still conducting union business on my time...... It thus appears that in February
Bell recalled having authorized Mallisham to question the employees, and that at the hear-
ing his recollection was faulty
Bell also testified that Mallisham offered to waive this complaint if the Company would
reinstate a laid-off employee. Mallisham denied or could not recall having made the sug-
gestion I find it unnecessary to resolve this question because in any event even assuming
ain attempt by Mallisham to sacrifice 1 day's work for one man in return for the job of
another, all that was involved was a little side bargaining.
586439-61-vol 129-78
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occasions had gone to the hideroom and spoken to a particular employees; he
added he could not say this had happened during Mallisham's working hours; it
might have been after his shift.
The foregoing is the total extent of definitive evidence advanced by the Respond-
ent as justification for its conclusion expressed to Mallisham the following February
that he was a troublemaker, that he was insubordinate, that he interfered with pro-
duction, and that he improperly engaged in union activity.
On the total record before me, I am satisfied that what Mallisham did, as detailed
by the above testimony, was permissible within the ambit of the contract then in
force, and within the general practice then in effect in the plant. The fact that,
simultaneous with any of the events, the Company took no action to discipline Mal-
lisham or to warn him of misconduct, is among the persuasive reasons for this con-
clusion. There is more.
The contract then provided among other things that "a grievance committee of
employee representatives . designated by the Union will be afforded the neces-
sary time off to attend regular or emergency grievance meetings without pay. .
Mallisham testified without contradiction that whenever he asked to be relieved by
his foremen he received permission and was docked for such time. He did this when
he left his work to accompany Long to the manager's office when the question of the
proper time for the break in the pork department had to be discussed. It would thus
appear that the contract envisaged an employee turning to a steward or a member
of the grievance committee to take up a dispute with the management for "regular"
grievance matters.
Mallisham also testified that it was a general practice in the plant for an employee
to take a few minutes off from work to go to the restrooms, or for a smoke break,
without the work being delayed in any way. He said he had always done this and
that other employees did likewise. As to his particular assignments, he explained
that frequently the live hogs that are fed to him are delayed for one reason or
another in the pens outside the plant. His immediate foreman, Shaul, testified:
"Of course, it is a practice if a man catches up on his work to step off to the side,
right outside and take a smoke or something like that, or walk back in the restroom
and come back, which is permissible, but I don't recall on any specific occasion when
he [Mallisham] left the job and went somewhere else other than just a minute or
two. . . . It is the practice for all of the men to leave the area occasionally, for
them to step out to the restroom or something like that." Richardson, the superin-
tendent, said he knew of no rule in the plant preventing one employee from talking
to another. Consistent with the foregoing, Howard, the employee involved in one
of the incidents to which the Respondent adverted as cumulative buildup of reasons
for discharging Mallisham, testified that Mallisham passingly spoke to him about
3:30 one day after he, Mallisham, had punched out. It appears that Howard was
washing the floor at the place where Mallisham's punchcard and timeclock is.
Howard simply recalled Mallisham asking who Howard thought would make a good
president for the Union. Howard added that employees always say something to
him as they are checking out while he is washing the floor.
Mallisham admitted having gone to the hide department, which is in the base-
ment. Chandler, who works there, said that Mallisham went to the hide department
once or twice a week regularly to check on the scoring or the cuts on the skins, to
ascertain whether his killing process was accurate or in any way damaging to the
hides. Mallisham testified that he had never been warned not to enter other depart-
ments. His foreman, Shaul, was asked whether he recalled any specific occasion
when Mallisham left his job area In agreement with Mallisham, his answer was
"Well, I couldn't give you a specific date or anything on it. . I couldn't give you
any specific date when he left his job area. . . . I talked to all my men about
leaving without permission I couldn't recall specifically telling Joe " He also said
Mallisham did not leave his job area any more than any other employee.
In the light of all the foregoing testimony, I find the evidence does not establish
affirmatively, as the Respondent asserts, that Mallisham was guilty of insubordina-
tion in the course of his employment, or that he violated any established rules
against union activity or conversations on company time. What comments he may
have voiced to other employees appear to have been made outside Mallisham's
working hours, not inconsistent with the general practice in the plant, and, although
perhaps while other employees were on duty, not in such a manner as to have
interfered with their work in the slightest degree. I find no merit in the Respond-
ent's contention that Mallisham in any way misconducted himself in the course of
his employment.
The burden of a complaint in a proceeding of this type is not satisfied by failure of
proof of an affirmative defense. The essential question always remains whether or
R. L. ZIEGLER, INC. 1219
not the General Counsel has established with substantial affirmative proof that the
employee was discharged because of his concerted or union activities. At this point,
what was said in the two conferences in the manager's office on February 4 becomes
revealing as to the true motivation underlying the discharge.
It is conceded that Mallisham was called to the office to be confronted with the
three employees whose checkoff cards were in question. Although it was the man-
ager's conviction that their signatures had been forged which prompted him to call
Mallisham, Bell insisted at the hearing that he did not accuse Mallisham of having
done so, and, in a literal sense, the record supports him. Whatever the totality of
the conversations may have led Mallisham and the union representatives to conclude
as to the source of Bell's dissatisfaction-whether warranted or not warranted by
all that Bell said-I must accept the manager's insistence that he did not charge
Mallisham with misconduct on the grounds of forgery. It follows necessarily, then,
sion rests not only upon Bell's explanation of his behavior that day but also on the
that he did not believe Mallisham had signed other employees' names. This conclu-
fact that he rejected every proposal, made in defense of Mallisham, to show there
had been no forgery at all. He refused to accept the Union's offer to produce wit-
nesses to the signatures or a handwriting expert, and did not produce the checkoff
cards for inspection in the presence of the three employees themselves, one of whom
even said during the meeting that he was not accusing anyone of forging his
signature.
That forgery, or even an erroneous but good-faith belief that Mallisham had
committed a forgery, were not a basis for the discharge in Bell's mind, is further
shown by the fact that the Respondent felt no need to establish the falsity of the
signatures at the hearing. Frierson and the two Sanderses were not presented as
witnesses and their signed checkoff cards were not put in evidence. Instead, Malli-
sham, James Jones, James Long, John Beale, Johnny Jones, William Woods, and
A. J. Young, all employees, testified without contradiction that they saw the three
employees sign checkoff cards. On this evidence I find that Frierson and the two
Sanderses did sign checkoff cards before the February 4 meeting in the Company's
office.
This is not a case, therefore, in which the evidence pointing to union activity moti-
vating a discharge must be weighed against evidence of misconduct which could as
well have been the cause. No misconduct was charged to Mallisham in connection
with the 1960 events, and the assertion of past misconduct is not proved Nor is
the issue here governed by those cases where an employer discharges a man under
the belief, correct or incorrect, that he misconducted himself, whether the conduct
be an incident of protected union activity or entirely unrelated to concerted employee
action 5 Although receipt of the authorization cards the week before February 4
provoked Mallisham's discharge, Bell never charged him with responsibility for any
forgery.
In his brief the Respondents' counsel would make it appear that Bell did believe
Mallisham to be the culprit; he relies on the very statements of Bell during the two
February 4 meetings which led Mallisham to conclude he was in effect being charged
with forgery. Such a theory, however, is at variance with what Bell himself in,
sisted both at the hearing and in February. Decision in this proceeding can only
rest upon the testimony and exhibits received. While Bell kept insisting he "believed"
Frierson and the two Sanderses, he as persistently reiterated he was not accusing
Mallisham personally; moreover, the three employees did not accuse Mallisham, and
the Respondent does not even claim they did. The decisions in such cases as Rabin
Bros Footwear Inc., at al. v. N.L R.B., 203 F. 2d 486 (C A. 5), and Polish National
Alliance of the United States of North America, 121 NLRB 89, in each of which
the employer believed the employee involved to have personally misconducted him-
self and said so at the time of the discharge, are therefore inapposite here.
With Mallisham having nothing to do with the signatures on these three checkoff
cards-not even as a mistaken belief in Bell's mind-and with Bell's admission that
Mallisham had done nothing at the time of the discharge to warrant the action,6
5 Doyle III Terry, d/b/a Terry Poultry Company, et al, 109 NLRB 1097
6 On whether Mallisham had done anything immediately before his dischaige to provoke
it, Bell testified as follows
Q Was there anything that Joe Mallisham had done the week which included
February 4 which would warrant his discharge"
A. Well, frankly, I had been seriously considering discharging him before this time.
Q Had anything occurred that week which would warrant his discharge?
A. Not that I remember, no
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I can only conclude that so far as Bell was concerned , the very fact that an addi-
tional batch of checkoff cards was delivered to the office late in January brought his
long impatience with the employees ' union activity beyond the extremity of his suffer-
ance and he decided to discharge Mallisham, who was perhaps the most active of
the employees on behalf of the Union. As I understood Bell-in the only phrases
I can use to state the sum total of the many inconsistent and loose statements he
gave at the hearing-he was satisfied that somebody , he did not know who, had
forged three signatures ; this brought matters to a head, and he decided to discharge
Mallisham. Why Mallisham9 Because, as Bell went on to testify , months earlier
he had been so diligent in processing grievances and engaging in union activity that
he had, in Bell 's view, usurped management and tried to run the plant.
The conduct , months earlier , to which the Respondent now points , was protected
union activities under the statute . To talk of union matters during work breaks,
even while employees may be occupied but not in violation of plant rules or general
practice in the shop , is a privilege which the statute allows and one which cannot be
cause for discrimination in employment.? For a union steward to want the grievance
committee , instead of a single employee , to handle grievances , especially in con-
formity with a procedure provided for in a current collective -bargaining contract, is
also a statutory right of union agents that may not be grounds for discharge 8 These
are the activities which months later Bell called insubordination and trying to run
the plant . It was Mallisham 's union activities which Bell found inconvenient, not
any interference with production or misconduct. He called Mallisham a "trouble-
maker." Asked if he had had occasion to speak to Mallisham of causing "trouble"
at the plant , he replied : "Yes, I have . In fact one time in the union grievance meet-
ing I accused him of trying to be president." On the question of Mallisham 's alleged
interference with management, he explained : "He seemed to be able to find most of
the grievances and most of the things that the employees were grieving about, and,
actually, I think he was doing a lot of hunting to find grievances and that was some
of his activities around the plant "
I can understand the inconvenience to an employer , once a majority bargaining
agent has been established in having to deal with union representatives when changes
are to be made in the work schedules , or in having to hear grievances on behalf of
employees, when contrasted to the comparative freedom of action he enjoys in the
absence of self-organization among his employees . The right of employees and of
their stewards and other union agents to carry on such activities , guaranteed as it is
by statute , cannot be changed or denied them by characterizing it as an encroach-
ment upon management rights. "It is obvious that concerted activities which are
protected by the Act often create a disturbance in the sense that they create dissatis-
faction with the status quo. Such a fact without more can hardly justify a dis-
charge." 9 This does not mean that where an employee or union steward in fact
interferes with production or disregards known and proper work rules while so
engaged, he may nevertheless use the statute as a cloak to protect him from just
discipline . Mallisham was guilty of no such improper action. Nor was it shown
that any of his activities as steward were aimed at personal gain or necessarily such
as to foment discord among other workmen 10
I conclude on the entire record that the evidence affirmatively establishes that the
Respondent discharged Mallisham because of his union and steward activities and
thereby violated Section 8 ( a)(3) of the Act, at alleged in the complaint."
Counsel for the Respondent advances , for the first time in his brief , a completely
new theory of affirmative defense for the discharge . He makes the factual assertion,
nowhere suggested in the record , that Bell believed Mallisham had knowingly ob-
tained undated checkoff cards for the deliberate purpose of holding them beyond
any "escape period," that he had planned thereby to deprive the employees of their
right to discontinue paying dues to the Union , and that Bell discharged him for
? Walton Manufacturing Company, 126 NLRB 697.
8 J C Boespflug Construction Co, 113 NLRB 330.
Bell's unexplained comment to Mallisham a week after the Long incident arising from
the coffee break grievance, that lie "didn't like what I had done and for me not to do it
again," sheds no light on the real reason for the manager's displeasure.
0 Salt River Valley Water Users ' Association v. N L.R B., 206 F. 2d 325 ( C A 9), enfg.
99 NLRB 849.
10 Compare, Phoenix Mutual Life Insurance Company, 73 NLRB 1463, enfd 167 F 2d
983 (CA. 7 ), cert denied 335 US 845 ; and NLRB. v. Smith Victory Corpomation,
190 F 2d 56 (CA. 2), enfg 90 NLRB 2089
11 Chemical Construction Corporation , 125 NLRB 593
R. L. ZIEGLER , INC . 1221
such actions. All these contentions are based on the fact that at the hearing the
Respondent first learned that some employees had not dated their checkoff cards
when they signed them and that some cards had been delivered to the Respondent
several months after they were signed. Recognizing that on the evidence it is
clear Bell never had any such though, counsel attempts to plant it in his mind retro-
actively now, by saying: "Perhaps he [Bell] never pinpointed in his mind exactly
what Mallisham's misconduct consisted of; despite Mallisham's vague claims that
Bell accused him of forgery it is quite clear that he [Bell] never did," and ". . the
law does not require such precision of knowledge by him [Bell] that he could pin-
point the misconduct. . This amounts to no more than saying that Bell knew
what he did not know and acted upon it.
The record does not support the assertion Mallisham was party to any scheme to
coerce fellow employees into paying dues against their will. It is true cards were
signed and not dated, but it is equally clear employees signed more than one card,
many of them never really understood what membership in the Union meant, how
it was acquired, or what the relationship between the contract and the checkoff
arrangement was. There was confusing testimony of others having signed some
sort of papers to withdraw from the Union, or to discontinue their dues deductions.
Unquestionably the employees as a group were inexperienced in union matters and
simply did not understand much that was asked of them at the hearing. In the total
picture, there may be some grounds for suspicion of deliberate delay in submitting
cards by the nonemployee representatives of the Packinghouse Workers. The Re-
spondent's brief in effect concedes that the evidence shows nothing more, because
repeatedly the argument is made that basic misconduct is proved because the Gen-
eral Counsel did not come forth with positive evidence to dispel the suspicion that
arises. In any event, this entire subject never arose until 3 months after Mallisham's
discharge and therefore had nothing to do with the Respondent's motivation. Sus-
picion of misconduct can hardly serve now to rebut the clear evidence, on the rec-
ord, of a discharge for union activity, or even to disqualify Mallisham from the
usual reinstatement rights under the general policy considerations of the statute as
a whole.
The Respondent's antiunion animus is also evidenced by certain statements which
Bell made to applicants for employment which stand uncontradicted on the record.
Ralph Vaughn, a former employee whose name had been placed on the seniority
list after the strike but who had not been recalled, appeared at the plant on Decem-
ber 30, 1959, and asked the manager for a job. On Bell's reply, Vaughn testified,"
... he told me that he had given it some thought but he seen that I hadn't learned
my lesson, that I was still belonging to the Union and I was still stirring up trouble."
Still quoting Bell, Vaughn continued: "He said that he had heard that I had resigned
from the Union and I told him that I had given it consideration at that time, and I
told him that I was thinking of resigning and he said, `Well, I see that you are still
carrying on union activities, because there was a stewards' meeting at your house
one night this week and you are still carrying on union activities.' I hold him, `yes,'
that I was still president of the Local until January 1, 1960." Vaughn has not re-
turned to the Respondent's employ.
Sarah Hargle, who had never before worked for the Respondent, applied to Bell for
work on January 9, 1960. Bell said he had no opening at the moment but might
be able to use her later. He ,then asked her what she "had to do with the Union
in Gordo," and she replied she had had nothing to do with it, but had "crossed the
picket line and worked one day." Bell then asked if Hargle's husband was a union
man, and she said, "No." Three days later Bell called Hargle to work and she re-
ported on January 18. After 8 days she was released because a fire in ,the plant
reduced the available work.
In addition to the foregoing there is the testimony of Gilbert Jones, an employee,
that on September 20, 1959, Richardson, the plant superintendent, "asked me
hadn't he been good to me and asked me what was I paying union dues for, that
the Union wasnt going to do me any good because it wasn't going to last long
and that he would help me." Richardson denied having said these things to Jones.
Vaughn's and Hargle's testimony was not denied by Bell, and, recalling, as it does,
conversations shortly before the manager's discharge of Mallisham because of union
activities, I have every reason to credit them. Bell's statement at the moment
Vanghn was asking for work that he had not "learned his lesson" because he still
belonged to the Union, and that in the manager's opinion such conduct was equiva-
lent to "stirring up trouble," was tantamount to telling the applicant that such
activities would prejudice his chances of employment. I cannot distinguish such
talk from an out-and-out threat of discrimination when work should become avail-
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
able. He also gave Vaughn reason to believe the Respondent kept the employees'
union activities under surveillance when he said he knew there had been a steward
meeting at Vanghn's house and Vaughn had been present. The threat of dis-
crimination was clearly coercive, and thereby Bell committed a violation of Section
8(a)(1) of the Act attributed to the Respondent. The Board has also held that,
whether or not the employer in fact spies upon the employees' union meetings, it
necessarily brings an unlawful restraint upon them by creating the impression in
their minds that he is keeping their union activities under surveillance. Bells in-
terrogation of Hargle concerning hers and her husband's union activities are like-
wise a violation of Section 8(a)(1) in the light of his unlawful discharge of M-alli-
sham a short time later.
I credit Jones' testimony that the superintendent encouraged him to stop paying
union dues because the Union would not last long and the superintendent would
help him. Richardson conceded he discussed the Union with many employees, in-
cluding Jones, and this he had a right to do. I think he was essentially an honest
witness; when his testimony could be adverse to the Respondent's interest, he did
not hesitate to give it. The fact remains that the words attributed,to him by Jones-
that the Union would not last long and that Richardson would help him-com-
ported with what was clearly shown to be the policy of the plant manager, Richard-
son's supervisor. With such an attitude being the chief's policy, it may well be
Richardson made such statements and forgot. On the other hand, Jones was an
employee of the Company while testifying and his demeanor on the stand gave me
no cause to suspect his sincerity. In the total circumstance, I believe him. While
expressions of opinion, and even discussions with employees aimed at persuading
,them to deal with their employer without a union, are entirely privileged, a prediction
that the Union will not last, coupled with an offer to help the employee, exceeds the
permissible bounds of expressions of opinion and becomes a promise of benefit in
the event union activity ceases. As such, it becomes a violation of Section 8(a) (1),
which guarantees to all employees freedom from restraint and coercion in their
union activities.
The General Counsel offered further evidence intended to prove that Richardson
also invited Jones and other employees to cancel their dues checkoff authorizations,
and in fact prepared such documents for them. There is much in the testimony of
Comer Sewell and Tommie Miller indicating that when they discussed this subject
with Richardson pit was they who first brought up the subject of union membership
and that it was their suggestion to stop paying dues. In these circumstances, Richard-
son's frank statement that he advised or discussed the matter with a number of
employees and that he assisted them only when they requested advice of him in
order to put their requests in writing, is perfectly plausible and acceptable. I find
this allegation of the complaint not supported by substantial probative evidence.
Accordingly I find that the Respondent violated Section 8(a) (1) of the statute by
Manager Bell's statement to Vaughn that his continued union activities would
prejudice his chances of employment, and that his union activities were under sur-
veillance, by his interrogation of Hargle, and by Superintendent Richardson's promise.
to assist employee Jones if union activities ceased.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above. occurring in con-
nection with the operations of the Respondent described in section 1, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and (take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent discriminated against Joseph Mallisham with
respect to his hire end tenure of employment , ,I will recommend that the Respondent
offer him immediate and full reinstatement to his former or substantially equivalent
position without prejudice to his seniority or other rights and privileges . I will also
recommend that it be ordered to make him whole for any loss of earnings he may
have suffered because of the discrimination against him by payment of a sum of
money equal to the amount he normally would have earned as wages from the date
of the discharge to the date of his reinstatement , less his net earnings during the
R. L. ZIEGLER, IN C. 1223
said period , with backpay computed on a quarterly basis in .the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289.
I will also recommend that the Respondent makeavailable to the Board , upon re-
quest, payroll and other records to facilitate the determination of the amount due
under this recommended remedy. As the discharge of an employee because of his
union activity goes to the very heart of the Act, the commission of similar and other
unfair labor practices reasonably may be anticipated . I shall therefore recommend
that the Respondent be ordered to cease and desist from in any manner infringing
upon rights guaranteed to its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. By discharging Joseph Mallisham the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
3. By the foregoing conduct, by telling employees that union activities prejudice
chances of employment , by creating the impression union activities are under sur-
veillance, by interrogating employees concerning union activities , and by promising
to assist employees if union activities cease, the Respondent has interfered with,
restrained , and coerced employees in the rights guaranteed in Section 7 of the Act and
thereby has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate ,the policies of the National Labor Man-
agement Relations Act, we hereby notify our employees that:
WE WILL offer to Joseph Mallisham immediate and full reinstatement to his
former or substantially equivalent position without prejudice to any seniority
rights and privileges previously enjoyed, and we will make him whole for any
loss of pay suffered as a result of the discrimination against him.
WE WILL NOT discharge or otherwise discriminate against our employees in
their employment because they have engaged in union activities.
WE WILL NOT tell employees that union activities prejudice chances of employ-
ment, create the impression union activities are under surveillance , interrogate
employees concerning union activities, or promise to assist employees if union
activities cease.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations, to join or assist United Packinghouse Workers of America,
AFL-CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, or to engage in concerted activity for the
purposes of collective bargaining or other mutual aid or protection, to refrain
from any or all of such activities except to the extent permitted by Section
8(a)(3) of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
All our employees are free to become or remain members of any labor
organization.
R. L. ZIEGLER, INC,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced, or covered by any other material.