Smithfield Foods, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 2006

347 N.L.R.B. 1266 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 110
1266
Smithfield Foods, Inc. and Smithfield Packing Com-
pany, Incorporated and United Food and Com-
mercial Workers, Local 204, and United Food
and Commercial Workers International Union.1
Cases 11–CA–18415 and 11–CA–18606
August 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On June 22, 2001, Administrative Law Judge George
Carson II issued the attached decision. The Respondent,2
the General Counsel, and Charging Party Local 204 filed
exceptions and supporting briefs, and the Respondent
filed answering briefs.3
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
adopt the judge’s rulings,4 findings,5 and conclusions and
to adopt the recommended Order as modified.

1 We have amended the caption to reflect the disaffiliation of the
United Food and Commercial Workers from the AFL–CIO effective
July 29, 2005.
2 Smithfield Foods, Inc. and Smithfield Packing Company, Incorpo-
rated are referred to collectively as “the Respondent.” As discussed in
greater detail in Smithfield Foods, Inc., 347 NLRB No. 109 (2006), we
have found that Smithfield Foods is liable for the unlawful conduct
found therein. In the instant case, we find that Smithfield Foods is
liable for the conduct found unlawful herein, viz the discharge of
Farmer. Specifically, Smithfield Foods participated in the campaign
opposing the Union at Smithfield Packing’s Wilson facility, as demon-
strated by a letter from Smithfield Foods President Lewis Little solicit-
ing grievances from Wilson employees, prior to the unlawful discharge
of Andre Farmer. Accordingly, we find that Smithfield Foods is prop-
erly held liable for Farmer’s discharge.
3 Local 204 filed a motion instanter to file corrected exceptions and
brief, which, inter alia, added a new exception, a section of the brief
pertaining to the new exception, and a paragraph concerning another
exception. The Respondent opposes Local 204’s motion. We deny the
motion, because the additions to Local 204’s exceptions and brief are
untimely. We further find that, even with these additions, our decision
in this proceeding would be the same.
4 The Respondent excepts to the judge’s ruling permitting the Gen-
eral Counsel to amend the complaint to include the allegation, from the
charge in Case 11–CA–18415, that the discharge of Farmer violated
Sec. 8(a)(3). By Order dated April 18, 2001, the first day of the hearing
in this proceeding, the Board denied the Respondent’s motion to dis-
miss the allegation and found that the Regional Director had appropri-
ately consolidated it in this proceeding. The Board noted that the hear-
ing in the companion case, which included Case 11–CA–18415, had
begun before the Office of Appeals reversed the Regional Director’s
determination not to issue a complaint concerning Farmer’s discharge.
In accordance with the Board’s Order, we find that the judge properly
permitted the amendment of the complaint.
5 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
1. The General Counsel excepts to the judge’s dis-
missal of the complaint allegation that the Respondent,
through Wilson Plant Manager Phil Price, unlawfully
promised unspecified benefits to employee Clairenette
Williams to discourage union support. The judge found
that Price told Williams that he knew there were a lot of
problems and that “he was going to make a lot of
changes, so that they wouldn’t want a Union next year,”
adding that he was disappointed in her. However, the
judge dismissed the allegation as untimely under Section
10(b). The General Counsel asserts that it was timely
because it was closely related to other allegations in the
timely-filed charge.
We adopt the judge’s finding. In accordance with the
Board’s decision in Redd-I, 290 NLRB 1115, 1116
(1988), an allegation may be considered as timely under
Section 10(b) when it is closely related to allegations in a
timely filed charge and it occurred within 6 months be-
fore the filing of the charge. The promise at issue here
was allegedly made in July 1999. The charge in Case
11–CA–18606 was filed more than 6 months later, i.e.,
on February 28, 2000. Therefore, as the judge found, the
allegation is untimely under Section 10(b) regardless of
whether, as the General Counsel contends, it is closely
related to allegations in the charge.6
The General Counsel also relies in part on the charge
in Case 11–CA–18415. That charge was filed on July 27,
1999, and it contains an allegation that there were unlaw-
ful promises of benefit. However, such alleged promises
were litigated before Administrative Law Judge Pargen
Robertson in a prior case, and they did not include the
Price-Williams matter. Thus, assuming arguendo that
the charge in Case 11–CA–18415 was intended to cover
that matter, the General Counsel elected not to issue a
complaint with respect to it in the case before Judge
Robertson. In these circumstances, the General Counsel
cannot now seek to resurrect that charge for 10(b) pur-
poses.7
2. We adopt the judge’s finding that the termination of
employee Andre Farmer violated Section 8(a)(3). We do
not condone Farmer’s offensive behavior of holding a
side strip of bacon at his groin area in the presence of
women employees. However, we agree with the judge
that the General Counsel satisfied his initial burden under

Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
6 We find it unnecessary to pass on the judge’s further finding that
the allegation was not fully litigated.
7 See Ducane Heating Corp., 273 NLRB 1389 (1985), enfd. mem.
785 F.2d 304 (4th Cir. 1986).
SMITHFIELD FOODS 1267
Wright Line8 and that the Respondent failed to carry its
burden to demonstrate that Farmer would have been ter-
minated even in the absence of his union activity.9 Hu-
man Resources Director Sherman Gilliard testified that
Farmer’s conduct was “not inappropriate enough to re-
sort to termination.” Moreover, as the judge found and
the record shows, the Respondents did not terminate
other employees for a first offense of sexual harassment.
Contrary to the Respondent’s assertion, the record further
shows that the Respondent did not terminate employees
who denied having committed an offense. Under these
circumstances, we find the termination of Farmer unlaw-
ful.
3. We find, in agreement with the judge, that the Re-
spondent did not constructively discharge Clairenette
Williams. Williams suffered a fall at work on August 16,
1999, and was restricted to light duty until September 7,
1999. However, the record indicates that she was under
no medical restriction after that date, and she made no
complaint to the Respondent of continued pain from the
fall. The judge found that, when Williams asked Gilliard
for a leave of absence on December 6, 1999, she cited
personal rather than medical reasons. Gilliard informed
Williams that he would get back to her concerning the
request, because Department Manager Lytle needed to be
involved. However, the judge found that no decision
was ever reached on the matter. The following day, Wil-
liams called to say that she would be late for work, but
she failed to report. Williams never returned to work
after that date.
An employer constructively discharges an employee in
violation of Section 8(a)(3) when, because of the em-
ployee’s union activities, it places burdens on the em-
ployee that cause, and are intended to cause, a change in
working conditions so unpleasant as to force the em-

8 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981).
9 In finding that the General Counsel carried his initial burden, a we
do not rely on the statements by Plant Manager Price or President Little
that the three previous occupants of the facility closed after being or-
ganized by the Union. In Smithfield Foods, Inc., 347 NLRB No. 109
(2006), issued concurrently with this decision, we found that these
statements were protected by Sec. 8(c). However, we find animus
based on the judge’s factual finding that Price made a promise of un-
specified benefits to employee Clairenette Williams. Although that
conduct is immune from attack because of Sec. 10(b), it can nonethe-
less be used to show animus. Machinists Local 1424 (Bryan Mfg.) v.
NLRB, 362 U.S. 411, 416 (1960). In addition, we rely on other viola-
tions of Sec. 8(a)(1) that occurred prior to Farmer’s discharge and were
found in the companion case, which originally included the Farmer
allegation. Those violations included consultant Jeff White’s threat of
plant closure, President Little’s solicitation of grievances, and Supervi-
sor Eddie Paula’s interrogation of Lakenya Harris and Eisonshafae
Coppedge. Member Liebman would rely on all of the above evidence,
including the plant closure statements.
ployee to resign.10 A constructive discharge can also
occur when the employer does not intend that the em-
ployee would quit his or her employment, but “reasona-
bly should have foreseen that its actions would have that
result.”11 Assuming arguendo that Williams quit her
employment, and that she did so because the Respondent
did not immediately approve her request, there would
nonetheless be no violation. In the circumstances here,
we find that Gilliard’s response that he would get back to
Williams regarding her request, rather than approving it
immediately, did not constitute a change in working con-
ditions that was intended to force Williams to quit her
employment, or would have that foreseeable result. Ac-
cordingly, we adopt the judge’s dismissal of this allega-
tion.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Smith-
field Foods, Inc., and Smithfield Packing Company, Inc.,
Wilson, North Carolina, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraphs 2(d) and (e).
“(d) Preserve and, within 14 days of a request or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
“(e) Within 14 days after service by the Region, post at
its facility in Wilson, North Carolina, copies of the at-
tached notice marked “Appendix.”9 Copies of the notice,
on forms provided by the Regional Director for Region
11, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-

10 Crystal Princeton Refining, 222 NLRB 1068, 1069 (1976).
11 American Licorice Co., 299 NLRB 145, 148 (1990).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1268
ployed by the Respondent at any time since May 13,
1999.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the United Food and
Commercial Workers, Local 204, and United Food and
Commercial Workers International Union, or any other
union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days of the Board’s Order, offer
Andre Farmer full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
WE WILL make Andre Farmer whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days of the Board’s Order, remove
from our files any reference to the unlawful discharge of
Andre Farmer, and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that the
discharge will not be used against him in any way.
SMITHFIELD FOODS, INC., AND SMITHFIELD
PACKING COMPANY, INCORPORATED
Jasper C. Brown Jr., Esq., for the General Counsel.
Douglas M. Topolski and Elena D. Marcuss, Esqs., for the Re-
spondent.
Renee L. Bowser, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Wilson, North Carolina, on April 18, 19, and 20,
2001. The charge in Case 11–CA–18415 was filed on July 27,
1999, and was amended on December 12, 1999.1 The charge in
Case 11–CA–18606 was filed on February 28, 2000, and was
amended on April 13, 2000. The consolidated complaint issued
on February 7, 2001. The complaint alleges a promise of un-
specified benefits in order to discourage employee support for
the Union in violation of Section 8(a)(1) of the National Labor
Relations Act (the Act) and the discharges of Andre Farmer and
Clairenette Williams because of their union activity in violation
of Section 8(a)(3) of the Act. The Respondent’s answer denies
all of the alleged violations of the Act. I find that the discharge
of Farmer did violate the Act as alleged in the complaint.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Smithfield Foods, Inc., is a holding com-
pany and parent of the Respondent Smithfield Packing Com-
pany, Incorporated, a Virginia corporation, engaged in the
manufacture and nonretail sale of pork products at its facility at
Wilson, North Carolina, where it annually purchases and re-
ceives goods and materials valued in excess of $50,000 directly
from points outside the State of North Carolina. The Respon-
dent, hereinafter referred to as Smithfield or the Company,
admits, and I find and conclude, that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
The Respondent admits, and I find and conclude, that United
Food and Commercial Workers, Local 204, and United Food
and Commercial Workers International Union, AFL–CIO,
CLC, the Union, are labor organizations within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union began organizational activities at the Company’s
Wilson facility in March 1999. A representation election was
conducted on July 8. The Company opposed the Union’s or-
ganizational efforts. In the course of the organizational cam-
paign, the Union alleged that the Company violated the Act on
numerous occasions and in numerous ways, including discharg-
ing prounion employees. The Union filed unfair labor practice
charges, including the charge in Case 11–CA–18415. A con-
solidated complaint issued, and a hearing was held before Ad-
ministrative Law Judge Pargen Robertson on various dates
beginning on March 13 and ending on June 20, 2000. The

1 All dates are in the year 1999, unless otherwise indicated.
2 The subpoena served by counsel for the Charging Party upon the
Respondent that was admitted into evidence near the close of the hear-
ing is hereby designated as CP Exh. 23.
SMITHFIELD FOODS 1269
charge in Case 11–CA–18415 alleged, inter alia, the discharge
of employee Andre Farmer. The Region dismissed that allega-
tion and the Union appealed. While that appeal was pending,
the hearing opened before Judge Robertson. Evidence regard-
ing the allegations of the consolidated complaint, which in-
cluded all allegations in Case 11–CA–18415 that had not been
dismissed, was presented to Judge Robertson. Judge Robertson
issued his decision and recommended Order on January 23,
2001. The Region’s dismissal of the portion of the charge in
Case 11–CA–18415 that related to Farmer was, ultimately,
reversed by the Office of Appeals, and the Region was directed
to issue a complaint.
The charge in Case 11–CA–18606 was filed on February 28,
2000, shortly before the hearing opened before Judge Robert-
son. That charge alleged, inter alia, the unlawful discharge of
employee Clairenette Williams on December 8. Williams testi-
fied early in the hearing before Judge Robertson regarding the
union authorization card that she signed and regarding facts
relating to the termination of Lenora Wooten. The initial com-
plaint in Case 11–CA–18606, alleging the unlawful discharge
of Williams and an unlawful promise of unspecified benefits
issued on May 4, 2000.
On March 20, 2001, more than 28 days prior to the sched-
uled commencement of this hearing, counsel for the Respon-
dent filed a motion to dismiss or, in the alternative, for sum-
mary judgment with regard to the 8(a)(3) discharge allegations
relating to Farmer and Williams and the single 8(a)(1) allega-
tion. The motion argues that prosecution of this case is in vio-
lation of the Board’s Rules and Regulations concerning the
amendment and consolidation of complaints, is barred by Sec-
tion 10(b) of the Act, and is precluded by Board policy, citing
Service Employees Local 87 (Cresleigh Management), 324
NLRB 774 (1997); Jefferson Chemical Co., 200 NLRB 992
(1972); and Peyton Packing Co., 129 NLRB 1358 (1961).
Contemporaneously, counsel filed a Motion to Issue Notice to
Show Cause and to Stay Hearing. Immediately prior to the
opening of the hearing herein, the parties were advised that the
Respondent’s motion to stay hearing was being denied and that
the Board was issuing an Order on the Respondent’s motion.
The Board’s Order issued on April 18. On April 19, 2001, it
was received as General Counsel’s Exhibit 3. The Order de-
nied the Motion to Dismiss or, in the alternative, for summary
judgment. The final paragraph of the Order provides that the
Respondent’s 10(b) argument with regard to the 8(a)(1) allega-
tion should be “resolved after a hearing before an administra-
tive law judge.”
Notwithstanding the foregoing Order of the Board, the Re-
spondent, in its brief, reargues the merits of its motions to the
Board that were denied on April 18, 2001. The Board’s Order
is the law of the case. Consistent with the Order of the Board, I
reject the arguments of the Respondent regarding the propriety
of prosecuting the discharges of Farmer and Williams.
B. The 8(a)(1) Allegation and Evidence of Animus
Pursuant to the Order of the Board, I heard the evidence re-
lating to the 8(a)(1) allegation and the Respondent’s argument
that prosecution of this allegation is barred by Section 10(b) of
the Act. The complaint alleges that Plant Manager Phil Price,
on July 9 or 10, promised employees unspecified benefits in
order to discourage their support for the Union. The evidence
in support of this allegation consisted of testimony by alleged
discriminatee Clairenette Williams who recalled that, a day or
two after the election on July 8, Plant Manager Price spoke to
her in the hot dog production area as she was going to the ship-
ping department to begin work. Price asked Williams why the
employees wanted a Union, and Williams replied that it was
because they “wanted to be treated fair.” According to Wil-
liams, Price responded that he knew there were a lot of prob-
lems and that “he was going to make a lot of changes, so they
wouldn’t want a Union next year,” and he then added that he
was disappointed in her.
The Respondent has moved to dismiss this allegation, argu-
ing that litigation of it is precluded by Section 10(b) of the Act
because the alleged incident occurred in early July, more than
7–1/2 months before the charge was filed. This 8(a)(1) allega-
tion appears in the initial complaint that issued in Case 11–CA–
18606 on May 4, 2000. There is no contention that this allega-
tion is a part of Case 11–CA–18415. All aspects of that case
were litigated before Judge Robertson except for the allegation
relating to the termination of Farmer. The charge in Case 11–
CA–18606 was filed on February 28, 2000, thus, the 10(b) date
is August 28, 1999. The General Counsel, citing Redd-I, Inc.,
290 NLRB 1115 (1988), argues that this allegation reveals
animus and “is closely related to Williams’ discharge.” I do
not agree. The predicate for application of the closely related
principle enunciated in Redd-I is that the event “occurred
within 6 months before the filing of the charge.” Id. at 1116
and 1118. The alleged promise of benefit occurred more than 6
months before the filing to the charge. I grant the Respondent’s
motion and shall recommend that this allegation be dismissed.
Notwithstanding my dismissal of the 8(a)(1) allegation, I
shall consider the evidence relating to this alleged incident for
purposes of background. Monogahelia Power Co., 324 NLRB
214 (1997).3
At the hearing, counsel for the General Counsel and counsel
for the Charging Party requested that I take judicial notice of
the decision of Judge Robertson. Counsel for Respondent
noted that exceptions had been filed to that decision. I stated
that I would not take notice of any findings of Judge Robertson
until they were affirmed by the Board. Advertisers Mfg. Co.,
275 NLRB 100, 102 (1985). Thereafter, counsel for the Charg-
ing Party sought to introduce the transcripts of several presenta-
tions that the Respondent had made to employees during the
course of the campaign, arguing that they established animus.

3 Counsel for the Respondent chose not to examine Plant Manager
Price regarding this incident, thus, as counsel for the General Counsel
correctly notes, the testimony of Williams is undenied. In choosing not
to elicit a denial from Price, counsel ran the risk that I would deny the
motion to dismiss predicated upon Sec. 10(b). Counsel chose to rely
upon the 10(b) argument, and I have agreed that this allegation of con-
duct occurring more than 6 months prior to the filing of the charge
cannot be the basis for an unfair labor practice finding. In the absence
of any denial, I have credited Williams; however, since Respondent
chose not to address the allegation, it was not fully litigated, and I make
no unfair labor practice finding with regard to it. See Seaward Interna-
tional, Inc., 270 NLRB 1034 (1984).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1270
These same transcripts are the basis of 8(a)(1) allegations in the
case before Judge Robertson and are in evidence in that case.
For that reason I rejected their proffer, noting that they need not
be placed in this record because, consistent with Board prece-
dent, I take notice of the record of Board proceedings. Postal
Service, 273 NLRB 1746 fn. 2 (1985); Seine & Line Fisher-
man’s Union of San Pedro, 136 NLRB 1 (1962). The decision
of Judge Robertson sets out remarks made by Human Re-
sources Manager Sherman Gilliard and Company President
Lewis Little as they appear in General Counsel’s Exhibit 54(a)
and Respondent’s Exhibit 44 in that proceeding. Gilliard noted
the history of the Wilson plant, pointing out that previously
three different companies had owned the plant, that “the Union
was here,” and that all three companies had closed. Although
Gilliard noted that he “could not verify” that the closures were
because of the Union, he continued his remarks stating the fol-
lowing to the employees: “I would hope that people would see
all the lives and all the families that’s been damaged by the
United Food and Commercial Workers Union in this building
in this community and vote no. I think history sometime says a
lot and I hope people learn from the history that has existed in
this building.” Little’s comments include the following state-
ment: “Don’t hang the UFCW around this plant’s neck for a
fourth time: you have the chance to learn from the mistakes of
the employees who lost with the UFCW three times before.”
(JD(ATL)–03–01, slip op. at 4.)
I find that the foregoing statements do establish animus to-
wards employee union activity. Gencorp, 294 NLRB 717 fn. 1
(1989). I base this finding upon the contents of the statements,
not the findings of Judge Robertson whose decision is pending
before the Board.
C. Case 11–CA–18415, The Discharge of Andre Farmer
1. Facts
Andre Farmer began working for the Company on January
27. His last day of work was May 11. During his short tenure
with the Company, Farmer became involved in the union or-
ganizational campaign. The Company began holding small
group meetings relating to the Union. After Farmer posed
questions to members of management at two small group meet-
ings, Human Resources Manager Gilliard ceased to invite
Farmer to any further meetings. Farmer testified that he solic-
ited union authorization cards and distributed handbills. On
one occasion when he was distributing handbills at the gate,
Farmer testified that he was observed by his immediate Super-
visor James Brown and Gilliard. Although Gilliard denied
observing Farmer handbilling, the Company stipulated that it
was aware that Farmer supported the Union.
Farmer worked on the pressing line in the bacon department.
His job was to take pork bellies from the pressing machine to
the slicing machine where the meat is trimmed and then sliced
into bacon. He transported the pork bellies to the slicer in a
large plastic cart.
On the evening of May 11, during the shift, it is undisputed
that Farmer picked up off of the floor what is referred to as a
“side-strip,” a piece of meat trimmed from a pork belly prior to
the remainder of the pork belly being sliced into bacon. Al-
though not sliced into bacon, the side-strips trimmed from pork
bellies are referred to as bacon. The length of the side-strip that
Farmer picked up is disputed, ranging from a foot to 2 feet.
What Farmer did with the side-strip and the identity of the em-
ployees who observed him is also disputed.
Farmer testified that he was “playing with” employee Gloria
Carr by waving the side-strip at her and telling her that he was
going to come over and “spank her with it.” Farmer knew Carr,
having attended school with her brother. He testified that the
side-strip was “ruler length,” about a foot, that he waved it in
the air, above shoulder height, for no more than a minute, and
that he then threw it back on the floor. As he was teasing Carr
in this manner, Farmer testified that employee Lakenya Harris
was behind him and observed what he was doing. Farmer,
Carr, and Harris are all African-Americans.
Employee Carr works on the “stack pack” line, adjacent to
where Farmer loaded the pressed pork bellies into the plastic
cart before transporting them to the slicer. Although she did
not hear Farmer say anything to her, she observed him “swing-
ing a piece of bacon in his hand.” It was “[a]bout a foot long.”
She did not know where he obtained it, “all I know is he came
around the pole with it in his hand.” Farmer was “behind the
pole,” no more than 15 feet away. Carr testified that Farmer
was swinging the bacon at chest or shoulder height. He did this
for 1 or 2 minutes. “Lakenya Harris and Tammy were also
there. We were the only ones [in the immediate area]. Every-
body was laughing and giggling.” Carr did not see any super-
visor in the area. Although some Hispanic women also work
on the stack pack line, Carr did not believe that they observed
Farmer because they worked “down on the other end” of the
line.
Lakenya Harris also works on the stack pack line. She was
working across from Carr packing bacon as it came to the em-
ployees on a conveyer belt. At the time she observed Farmer,
Harris testified that there was no bacon to be packed, there was
“[n]othing on the [conveyer] belt.” Harris heard Farmer call to
Carr. She testified that he had a piece of bacon that was about
18 inches long in his hand, and he was swinging it at chest
level. He did this for about a minute. She was about 15 feet
away from Farmer and laughed at him. Harris confirmed that
there were no Hispanic women in the immediate area, they
were “way at the other end of the line.” According to Harris,
those employees were working, not laughing at Farmer.
Quality Assurance Supervisor Curtis Davis also observed
Farmer on the evening of May 11. According to Davis, he saw
Farmer at the end of the pressing line, between the pressing line
and slicing line, with a side-strip of bacon that was approxi-
mately 2-feet long. “He was holding it in front of his genital
area, protruding outward as to simulate a sexual organ and wav-
ing it back and forth toward the [Hispanic] ladies on the line
across from where he works.” Davis immediately went to con-
tact Superintendent Norman Kirkland. When they returned,
Farmer had ceased engaging in the conduct that Davis had re-
ported. Davis signed a statement giving his account of the
incident. Although Davis testified that he did not recall hearing
Farmer say anything, his written report refers to Farmer yelling
across the room, “trying to attract the attention of the ladies in
the slicing department.” Counsel for the General Counsel notes
the reference to the slicing department and the evidence that the
SMITHFIELD FOODS 1271
women involved worked on the stack pack line. Although
Davis did refer to the employees being on the slicing line, in
later testimony he explained that the slicer is on the packing
line. Davis testified that his involvement ended with his report
to Kirkland and that he does not know if Kirkland, or anyone
else, spoke with any of the witnesses.
Eufemio Gonzalez, a Hispanic employee, worked on the
pressing line with Farmer. Although he did not know Farmer’s
name, he identified his photograph at the hearing. When shown
a photograph of a different employee, he maintained his initial
identification of Farmer.4 He recalled an incident that involved
Farmer that occurred on the last day he saw Farmer in the plant.
According to Gonzalez, Farmer took a piece of bacon, which he
estimated was 2-feet long. “put it in his genital area and moved
it up and down, he did this three times.” There were three His-
panic women that he believes saw this. Consistent with the
written report of Davis regarding Farmer yelling something,
Gonzalez testified that Farmer asked the employee named
Adrieana to watch him.5 According to Gonzalez, there were
“three black men . . . that were laughing,” but he did not see
any black women. Gonzalez testified that a supervisor spoke to
him about the incident after it occurred. He did not know the
name of the supervisor but he “always had a camera and is
always checking that everything is clean.” Gonzalez knew
Superintendent Norman Kirkland, but says Kirkland did not
speak to him. Gonzalez testified that the Hispanic women were
nearby when the supervisor spoke with him and that the super-
visor “asked questions of the others” and “laughed when we
explained what happened.” (Emphasis added.)
Kirkland called Farmer into his office. Davis was present.
Farmer testified that Kirkland already had a write-up prepared
when he went into the office. Kirkland told Farmer that Davis
had observed him with a piece of meat at his groin area as if it
were a penis. Farmer testified that he responded that Davis’
“information was not accurate because I did nothing of the
sort.” Farmer did not testify that he informed Kirkland that he
had waved a side-strip at chest height or higher when “playing
with” Carr. Kirkland informed Farmer that he was suspended
and to report to Gilliard the next day.
I found Davis, Gonzalez, Carr, and Harris all to be credible
and to have sought truthfully to relate what they recall observ-

4 Consistent with my notes and the request of the Respondent, Gon-
zalez’s first name is corrected to Eufemio rather than Enfemio as it
appears in the record. Contrary to the statement in the brief of the
General Counsel, Gonzalez never referred to Farmer as “Kenneth A.
Soperson.” The foregoing misstatement in the transcript occurs at a
point when Gonzalez made reference to an “unknown person,” a black
man whose name he did not recall.
5 The testimony that Gonzalez heard Farmer ask Rodriguez to watch
confirms that he does understand some English. Employee Nicole
Baines testified that she knows Gonzalez and that he spoke to her in
English as he was leaving the hearing. She testified that he understands
English if “you say it slow to him.” The General Counsel argues that
the appearance of Gonzalez with an interpreter reflects upon his credi-
bility. I do not agree. The fact that Gonzalez may have some facility in
English when spoken to slowly does not in any way obviate his need
for an interpreter in a formal legal proceeding. There is no evidence
contradicting the testimony of Gonzalez that he is functionally illiterate
in his own native language, Spanish.
ing almost 2 years earlier. In so finding, I am mindful of the
discrepancies relating to the time of incident, the length of the
side-strip, and the location of the witnesses in relationship to
Farmer. No diagram or blueprint of the area in question was
presented by any party, and the area is not now configured as it
was in May 1999. The exact juxtaposition of Harris in relation-
ship to Carr and to Farmer, who testified that Harris was behind
him, is simply not clear in the record. What is clear is that
there were no Hispanic employees near Harris and Carr. The
Hispanic women were “way at the other end of the line.” Davis
and Gonzalez both testified that Farmer was observed by His-
panic women. Gonzalez recalled that three African-American
men observed Farmer but did not mention any African-
American women. The foregoing evidence compels me to con-
clude that Farmer engaged in conduct using a bacon side-strip
twice, once when he was observed by Davis, Gonzalez, and the
Hispanic women and once in the presence of Carr and Harris.
Even if my conclusion is incorrect, it is uncontraverted that
Davis reported what he observed and that Farmer, although
denying to Kirkland the conduct reported by Davis, did not
report waving the side-strip at Carr.
When Human Resources Manager Gilliard arrived at work
on May 12, he found a written report from Kirkland in his
mailbox. The report attaches a document reflecting that Farmer
had been suspended after Quality Assurance Supervisor Davis
had reported observing Farmer holding a 2-foot strip of bacon
in “his groin area as though it was a penis.” Kirkland’s report
notes that the conduct reported by Davis was confirmed by
employees Adriana Rodriguez, Laura Reges, and Eufemio
Gonzales, and that he did not “talk to any more people after
those 3.” Although there is no evidence of inadequate job per-
formance or any prior disciplinary matter relating to Farmer,
Kirkland’s report notes that “Andre [Farmer] is a problem per-
son.”
When Kirkland reported to work on the afternoon of May 12,
Gilliard spoke with him. Kirkland confirmed the information
contained in his report, noting that he had validated the report
of Davis with Rodriguez, Reges, and Gonzales. Kirkland in-
formed Gilliard that he had directed Farmer to report to human
resources that afternoon. When Farmer reported, Gilliard testi-
fied that he had not conducted his investigation or made any
decision and so he sent Farmer back home, telling him that he
would get back in touch with him. “We didn’t talk about . . .
his behavior at that time.”
Farmer testified that on May 12, when he reported to
Gilliard, Kirkland was present in the office. Gilliard “asked me
if I did it, and I told him no, that it was not true.” Farmer states
that Gilliard told him that, if he would admit the conduct, he
would have Kirkland suspend him for a few days, and “I could
then come back to work.” Farmer told Gilliard that he was not
admitting to something that he did not do.” Gilliard said he
would check into it, for Farmer to call back the next day.
Farmer later testified that, at the foregoing meeting with
Gilliard and Kirkland, Gilliard stated that Davis had said that he
had not observed Farmer but “an employee told him they saw
me.” I do not credit this testimony. Gilliard had not spoken
with Davis, Davis credibly testified to what he saw, and Farmer
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1272
did not include this purported statement by Gilliard in his initial
testimony regarding this meeting.
Gilliard testified that he spoke with Davis on the evening of
May 12, “it was extremely late,” and that Davis confirmed the
report that he had made to Kirkland. Although Davis recalls
confirming his report of the incident with Gilliard, he could not
recall when he did so. He specifically testified that his in-
volvement with the incident ended when he reported the con-
duct he observed to Kirkland and then signed his report of the
incident. Gilliard testified that he also spoke with one of the
employees that Kirkland had identified as a witness. He be-
lieved it was Rodriguez, “because she is the one that speaks
English.” He testified that she verified that Farmer was waving
the meat between his legs or at groin level as if it was a penis.
Rodriguez is no longer employed and did not testify.
Gilliard testified that he and Farmer met in his office on May
13, and that Farmer’s immediate supervisor, James Brown, who
had not observed the incident, was also present. Gilliard ques-
tioned Farmer about what had taken place on the night of the
11th. Farmer said nothing had taken place. Gilliard stated to
Farmer that he had four witnesses that had stated that Farmer
had this piece of meat, waving it between his legs as if it was a
penis. Farmer denied the conduct. Gilliard requested that
Farmer leave the room and he and Brown spoke about how to
proceed. They then called Farmer back into the room. Gilliard
again informed Farmer that he had four people that said what
he did. He asked Farmer to confess, noting that if he did so he
would not be terminated. Farmer still refused to admit the con-
duct. Gilliard terminated him.
Farmer denies the meeting on May 13. He testified that, fol-
lowing the meeting on May 12 at which he recalled Kirkland
being present, he called Gilliard who told him that “he checked
into it and that he checked with some of the people upstairs and
that I was terminated. He said he had checked into it and that
they said that I did what he accused me of. . . .”
In assessing the foregoing testimony, I attribute no signifi-
cance to the differing versions of the contact between Gilliard
and Farmer. Although I am inclined to believe that the termi-
nation took place in person rather than over the telephone,
Farmer and Gilliard agree that, at some point, Gilliard stated
that Farmer would not be terminated if he confessed. I have no
doubt that Gilliard referred to having “checked with some of
the people upstairs.” Gilliard did not deny this comment.
I have some doubt as to whether Gilliard did, in fact, inter-
view anyone other than Kirkland. Davis testified that his in-
volvement in the matter ended when he made his report to
Kirkland on the evening of May 11. When questioned regard-
ing his efforts to conduct an investigation, Gilliard testified that
“Kirkland had done the investigation, he was the superintendent
of second shift operations, someone that was thoroughly famil-
iar with doing investigations. And I wasn’t going to be redun-
dant and attempt to talk to everybody that he had talked with
. . . .”
Regardless of whether Gilliard did independently verify
Kirkland’s report, it is undisputed that, at the time the Company
was determining what action to take regarding Farmer, the facts
in its possession were the report of a supervisor that had been
corroborated by employees and a denial, but no further com-
ment, by Farmer. Quality Assurance Supervisor Davis had
reported what he observed. He confirmed that observation in
testimony at this hearing, and I have credited his testimony.
Gonzalez denied that he spoke to Kirkland. Whether Kirkland
falsely reported that he, rather than another supervisor, had
spoken with the employees or whether Gonzalez was mistaken
regarding with whom he spoke, the testimony of Gonzalez
establishes that a supervisor did speak with him, that the super-
visor “asked questions of the others,” and “laughed when we
explained what happened.” I have also credited Carr and Harris
and, in so doing, have concluded that Farmer engaged in con-
duct using a side-strip twice. Even if my conclusion that
Farmer engaged in conduct with the side-strip twice is incor-
rect, there is no probative evidence that Farmer ever informed
any management official that he had waved the side-strip at
chest height or higher at Carr. Thus, the only version of the
incident that had been reported and that was under review was
the version contained in Kirkland’s report.
Gilliard testified that it had not been his objective to termi-
nate Farmer. Although Farmer’s conduct was inappropriate, it
was not “inappropriate enough to resort to termination.” Not-
withstanding his admission that this one time incident was not a
dischargeable offense, Gilliard explained his action stating, “It
is kind of hard to give a level of discipline to someone who
doesn’t even admit to the violation. It puts us as a Company in
quite a bit of risk.” Gilliard did not explain the nature of risk to
which he referred. Gilliard later testified that Farmer was ter-
minated because he did not admit the misconduct in which he
was alleged to have engaged, that it “was difficult to discipline
Mr. Farmer and correct that behavior if he was not willing to
admit [it] . . . .”
All parties introduced evidence relating to the Company’s
tolerance or intolerance of sexual harassment. Employee
Nicole Baines, called by the Charging Party, related repeated
incidents of sexual harassment by Supervisor James Brown
who she alleged touched her improperly. She states she re-
ported this to Kirkland on as many as six occasions including
one meeting in his office at which Kirkland directed Brown to
cease the conduct. Baines also testified to a meeting with Plant
Manager Price, Gilliard, and either Kirkland or Superintendent
Marvin Peterson who replaced Kirkland. Price recalled no such
meeting. He did recall receiving a complaint about Brown
from Baines and that he referred the matter to Gilliard and Pe-
terson. His testimony is undenied that, thereafter, he asked
Baines if everything had been taken care of to her satisfaction
and she replied that it had. Price testified that it was shortly
after this that Brown resigned. Brown resigned on August 19.
He was replaced by Supervisor Cecil Jones who, according to
Baines, she also reported for improperly touching her. She
testified that, following her report, she met with Price, Peterson,
and Gilliard. All three denied any such meeting. There is no
documentary evidence of Baines’ complaints.
Employee Craig Best was counseled but not terminated in
July 1998. A female employee alleged that, when she rejected
his advances, Best began spreading false rumors about her to
her coworkers on the second shift. The Company’s investiga-
tion revealed that, on Tuesday night, July 14, 1998, on second
shift, Best “started telling other people that she [the female
SMITHFIELD FOODS 1273
employee] was easy, and other ‘bad things.’” The Company’s
investigative memorandum states, “This is when she told her
supervisor Dallas she was going to quit.” The female employee
requested that Best not be terminated because she “would be
afraid” if he was terminated. A memorandum of the counseling
meeting with Best reports that, when confronted with the alle-
gations, Best denied that the conduct occurred in the workplace.
His written comment reflects that he denied the conduct alto-
gether, stating that he “disagree[s] with the allegations.”
Supervisor Mel Parker was counseled on November 10,
1998, after he allegedly called a female employee a “bitch.”
Parker did not admit the conduct but, in a manner not specified
in the memorandum regarding the incident, “indicated” that he
“may have said it.”
Employee Kenny Wilkes sought to have a female employee
to go out with him. She refused, and he persisted. She reported
his continued unwanted attention. The record does not reflect
the specifics; however, on November 25, 1998, Wilkes was
warned, but not terminated, for “assaulting ‘verbally’ a fellow
employee in a degrading manner.” On the back of the warning
notice issued to Wilkes, he wrote: “[A]llegations made are not
true. I Kenny Wilkes have never made any such statements.”
Employee Derick Dales was advised, in December 1998, that
any further action of harassment would result in disciplinary
action, including discharge. The record does not reflect the
specific action in which Dales engaged.
After Farmer was terminated, employee Jose Rivera was
only counseled after it was reported that, in August 1999, he
directed sexually explicit language to a female employee.
The Company placed in evidence documents reflecting that
employee Greg Williams was terminated in December 1999,
and that employee Chris Willoughby was terminated in May
2000, both for directing sexually explicit language to a female
employee.
Supervisor Greg Bridges was terminated in February 1999,
for violation of the company nonfraternization policy resulting
in favoritism being shown to a subordinate. Bridges had previ-
ously been accused of sexual harassment. An investigation of
that complaint in November 1998 had cleared Bridges of the
harassment charge but resulted in his being cautioned regarding
the Company’s nonfraternization policy. Superintendent
Dwight Weaver was disciplined for violation of the Company’s
nonfraternization policy in August 2000.
2. Analysis and concluding findings
The complaint alleges that the Respondent, on May 13, dis-
charged Farmer because of his union activity. In assessing the
evidence under the analytical framework of Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), I find
that Farmer did engage in union activity, that the Respondent
was aware of his sentiments, and that the Respondent bore ani-
mus towards employees who engaged in union activity. The
action taken against Farmer, discharge, was clearly an adverse
action that affected his terms and conditions of employment.
Farmer did not commit a dischargeable offense. Gilliard testi-
fied that the conduct in which Farmer engaged was inappropri-
ate, but it was not “inappropriate enough to resort to termina-
tion.” The General Counsel has established that Farmer’s un-
ion activity was a substantial and motivating factor in the Re-
spondent’s action. Manno Electric, 321 NLRB 278, 281
(1996).
The Respondent has not established that it would have taken
the same action against Farmer in the absence of his union ac-
tivity. Documentary evidence establishes that no employee
had, prior to May 1999, been terminated for a first offense of
sexual harassment.
The Respondent argues that, in the absence of an admission
by Farmer, the Respondent could not counsel him appropri-
ately, “take appropriate and legally required remedial action,”
or “risk Mr. Farmer continuing to work in the plant when he
would not cooperate in the Respondent’s effort to rehabilitate
him.” The foregoing argument might have some merit if the
record established that the presence or absence of an admission
determined whether an employee was retained or terminated. It
does not. Gilliard testified that Farmer was terminated because
“[i]t is kind of hard to give a level of discipline to someone who
doesn’t even admit to the violation. It puts us as a Company in
quite a bit of risk.” Gilliard did not specify the nature of the
risk or how the risk of retaining Farmer, a union adherent,
placed the Respondent in any different position than retaining
Best, who had denied engaging in the conduct of which he was
accused and from whom the complaining female feared retalia-
tion, or Wilkes, who also denied the conduct of which he was
accused.
There is no evidence that the Respondent’s position of ter-
minating employees who did not admit the conduct of which
they were accused was operative prior to the Union instituting
its organizational campaign. Documentary evidence reveals
that no employee had, prior to May 1999, been terminated for a
first offense of sexual harassment whether the employee admit-
ted or denied the conduct. The Respondent argues that Best’s
situation differs from Farmer’s since Best only denied engaging
in the alleged conduct in the workplace. This argument ignores
his written comment on the memorandum of his counseling in
which Best states that he “disagree[s] with the allegations.” It
also ignores the Respondent’s investigation which reflects that
the conduct did occur in the workplace, that on a Tuesday, July
14, 1998, Best started telling coworkers on the second shift that
the complaining female employee was “easy” and “other ‘bad
things,’” and that “[t]his is when she told her supervisor . . . that
she was going to quit.” Contrary to the Respondent’s conten-
tion that Wilkes did not deny the conduct of which he was ac-
cused, the back of his warning contains his statement denying
the allegations. Even after Farmer was terminated, employee
Jose Rivera was only counseled after it was reported, in August
1999, that he had directed sexually explicit language to a fe-
male employee.
The terminations of employee Greg Williams in December
1999, and of Chris Willoughby in May 2000, occurred more
than 6 months after the Farmer termination and after the charge
regarding it had been filed. I place no weight upon this evi-
dence.
I also place no weight upon evidence relating to violation of
the Respondent’s nonfraternization policy. In Carpenter v.
Federal National Mortgage Assn., 165 F.3d 69 (D.C. Cir.
1999), a case relating to alleged discrimination against an em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1274
ployee who had advocated a nonfraternization policy, the court
of appeals distinguished fraternization from harassment quoting
Gloria Steinem with regard to fraternization policies:
“[W]elcome sexual behavior is about as relevant to sexual har-
assment as borrowing a car is to stealing one.” Id at 73. I
agree.
Farmer was an ardent supporter of the Union whose enthusi-
asm had resulted in his not being invited to the Respondent’s
antiunion meetings after he had asked questions at the two
meetings in which he had been included. Despite the absence
of any evidence that his job performance was deficient or that
he had been disciplined, Kirkland referred to him as “a problem
person” in the report he made following the incident of May 11.
Insofar as there is no objective evidence establishing any work
related basis for that reference, I can come to no conclusion
other than that Kirkland’s reference was a euphemism for
Farmer’s union activity. No employee had been terminated for
engaging in sexual harassment prior to May 1999. Indeed,
other than Farmer, the Respondent is not shown to have even
contemplated discharge for such conduct until August 1999
when Supervisor Brown, who had been accused of improperly
touching employees, resigned. Gilliard admitted that the con-
duct in which Farmer engaged was not “inappropriate enough
to resort to termination.” Farmer denied the conduct of which
he was accused just as employees Best and Wilkes denied the
conduct of which they were accused. Neither Best nor Wilkes
was terminated. The General Counsel has established that
Farmer’s union activity was a substantial and motivating factor
in the Respondent’s action, and the Respondent has not estab-
lished that Farmer would have been terminated in the absence
of his union activity. I find that the Respondent, by discharging
Andre Farmer, violated Section 8(a)(3) of the Act.
D. Case 11–CA–18606, The Constructive Discharge of
Clairenette Williams
1. Facts
Williams was a known supporter of the Union. She solicited
authorization cards from her fellow employees, distributed
handbills, and served as a union observer at the representation
election held on July 8. Williams began working at Smithfield
on February 4, 1998, and when employed there she held vari-
ous jobs including the positions of clerk in the bacon depart-
ment, clerk in payroll, and clerk in human resources. On April
19, she became the crew leader on second shift in the shipping
department. In that position she unloaded trucks, loaded trucks,
prepared invoices for the trucks, moved product that was to be
shipped from the second floor of the plant to the first floor
shipping area, and performed inventory and scanning. When
performing scanning she sometimes had to lift boxes of bacon
that weighed from 20 to 35 pounds in order to locate the label
that needed to be scanned.
On August 16, Williams was injured on the job. She fell
down a section of stairs as she was returning to the first floor
after having loaded the freight elevator with product that was to
be shipped. Her injury was reported. She drove herself to the
emergency room where she was treated and released. She was
examined by a company physician on August 17 and 19. The
physician’s report of August 19 notes that Williams had worked
after her injury. He restricted her to light duty, prohibiting
prolonged walking or standing, climbing ladders or stairs, lift-
ing greater than 10 to 15 pounds, repetitive bending or pro-
longed stooping, pushing or pulling greater than 15 to 20
pounds, and working above shoulder height or overhead. His
report of August 19 notes that she could do sedentary work.
Williams was again examined on August 23 and August 26.
She continued to be restricted to light duty, but as of August 23,
was permitted to climb stairs. Following an examination on
September 7, Williams was released for work without restric-
tion. She was never again restricted as a result of the injury of
August 16.
Williams recalls that she advised management of her restric-
tions a “couple of days after the accident,” presumably after her
second examination on August 19. Williams recalled telling
Shipping Department Manager Phil Lytle that she was “sup-
posed to have light duty.” Lytle directed Williams to see Hu-
man Resources Director Gilliard. Williams went to Gilliard’s
office “a couple of times,” but he was not there and she never
talked to him. She had no further conversation with Lytle.
Although testifying that she was never placed on light duty,
Superintendent Marvin Peterson recalls that Williams informed
him of her restrictions and questioned whether she could do her
job, specifically noting that she could not operate a pallet jack.
Peterson states that he informed her that he agreed that she
could not operate the pallet jack and that she “needed to work
within her restrictions.” A company listing reflects that em-
ployee “C. Williams” was on light duty from August 19 until
September 3.6 After September 7, Williams was again exam-
ined on September 29 and October 11 and was, as she had been
on September 7, returned to work without restriction. None of
the medical reports reflect a complaint by Williams that she had
been required to work outside of her restrictions.
Williams testified that the workload in the shipping depart-
ment on second shift increased in the summer of 1999. There is
conflicting testimony regarding the impact of the Company’s
production of hot dogs from June 21 until August 20, but Wil-
liams was not injured until August 16. It is undisputed that
employee DeGregory Jefferson began working in shipping on
July 1, employee Travis Taylor worked in shipping for a couple
of weeks in July, and Byron Jenkins began working in shipping
on November 1. On November 1, Rick Griffin was appointed
as supervisor of the second shift in the shipping department.
Williams testified that, after her injury, she continued to per-
form her job but, “I was feeling worse and worse by the day.”
She acknowledged that she made no complaint to any member
of management that pain resulting from her injury was bother-
ing her from September 7 until December 6. There is no evi-
dence of any such complaint or that the pain that she testified
she experienced affected her job performance. The brief of the
Charging Party asserts that Harvester Best, the crew leader on
second shift in the palletizing department, from which the ship-
ping department obtained the product that was to be shipped,

6 This document, Charging Party’s Exhibit 11 (CP Exh 11), was ad-
mitted into evidence at the hearing. Copies of this document are now in
the possession of all parties and, pursuant to the posthearing agreement
of all parties, it has been placed in the official exhibit file.
SMITHFIELD FOODS 1275
was “aware of Williams’ medical problems.” Best testified that
employees in the shipping department informed him that Wil-
liams had told them that her physician had stated, at some
point, that she had “some kind of back problem and some kind
of problem with her head.” The foregoing hearsay report does
not mention pain, only a medical diagnosis. None of Williams’
coworkers testified. Best specifically testified that Williams
made no complaint of pain after she returned to work following
her fall on August 16. In mid-November, Williams had oral
surgery. On November 24, the Wednesday before Thanksgiv-
ing, she complained of back pain to her personal physician,
who examined her and signed a slip returning her to work on
November 30 with no restrictions noted. Williams returned to
work on December 1.
Williams’ attendance calendar reflects several absences dur-
ing September, October, and November that state that she
called in “sick.” Her attendance calendar reflects that, on No-
vember 30, Williams “did not return as scheduled.” Although
Williams’ attendance, as reflected on the calendar, shows that
she had accumulated more than 6 points and was, therefore,
subject to being discharged under the Company’s attendance
policy, she had received no discipline. Department Manager
Lytle brought Williams’ attendance calendar to Gilliard at some
point after she failed to report on November 30. Gilliard did
not recall when he received it, but it was in his possession on
December 6.
On December 6, after reporting to work, Williams spoke
with Gilliard. She met with him about 4:30 or 5 p.m. Williams
testified that she was referred to Gilliard after requesting a
medical leave of absence from Supervisor Rick Griffin. Wil-
liams acknowledged that, prior to this, she had never made any
complaint of pain to Griffin.
According to Williams, she asked Gilliard if she could have
a medical leave of absence and he replied, “No,” stating that
she had “too many points,” referring to her attendance calendar
that was on his desk. In a deposition given by Williams on
September 19, 2000, she did not state that Gilliard said, “No.”
The deposition reflects that Williams testified that, when she
asked for a medical leave of absence, Gilliard replied, “I could
fire you right now for attendance.” Williams contends that she
informed Gilliard that she was hurting, she was sick, and she
could not do the job, but that he ignored her complaints and
changed the subject, referring to her attitude and an unemploy-
ment hearing involving employee Shaniqua Moore at which
Williams had appeared. She testified that Gilliard asked why
she had gone to the unemployment hearing to talk against the
Company and that she responded that she was on her own time
and answered only the questions that she was asked. In the
course of their conversation, the supervisory position to which
Griffin had been appointed was mentioned. It appears that
Williams had wanted to be considered for that supervisory posi-
tion. She testified that Gilliard said her name had come up, but
he disapproved it, because of her attitude. At some point, Wil-
liams recalled that Gilliard said that she had too many atten-
dance points and that he could fire her and get away with it.
Williams replied that she “got hurt on his job” and had a doc-
tor’s note for the days she was out. Gilliard responded that he
didn’t need a reason to fire her. Williams again asked for a
medical leave of absence. She testified that Gilliard “didn’t
give me an answer one way or the other,” and so she “just
walked out of his office.”
Gilliard recalls that Griffin called him and advised that Wil-
liams wanted to speak with him. No reason was given. Wil-
liams came to his office where she informed Gilliard that she
was experiencing several personal problems, including dealing
with her friend Shaniqua Moore and with her son. She noted
that she had these emotional issues and “needed some time
away to get herself together.” She asked for a “personal leave
of absence.” Gilliard denied that Williams made any reference
to her physical problems or that she requested a medical leave
of absence. He acknowledged that the supervisory position to
which Griffin had been appointed was mentioned, that Wil-
liams stated that she should have been considered for the su-
pervisory job. He responded that it was hard for her to have
been considered since “her attendance record doesn’t set the
tone or expectation of what we expect out of our members of
management.” Regarding the request for a personal leave of
absence, Gilliard testified that he informed her he “would get
back with her” because the Department Manager Phil Lytle
“needed to be involved.”
Neither Williams nor Gilliard was a particularly impressive
witness. The bias of both was apparent, and both were defen-
sive. On balance, from demeanor and inconsistencies in the
testimony of Williams, I find that Gilliard was more credible.
If, as Williams testified, her pain was so great that she could
not perform her job, her incapacity would certainly have been
observed by her supervisors, coworkers, and physicians, none
of whom restricted her after September 7. There is no evidence
of any deficiency in her job performance. Williams testified
that she told Lytle that she was hurting “right after the injury”
when she asked about light duty and was referred to Gilliard
who she never saw. Thereafter, she never complained of pain
to any supervisor, including Griffin. “I never talked to Rick
[Griffin] about it [pain],” except on December 6 when she said
she requested medical leave and he referred her to Gilliard.
Williams had once worked as a clerk in human resources, and
she knew that she needed to have an excuse from a physician in
order not to be assessed points for an absence of even 1 day.
She had been examined by her own physician on November 24
and returned to work with no restrictions on November 30.
Although testifying that she asked for a medical leave immedi-
ately upon entering Gilliard’s office and that he said, “No,” she
did not make this statement in her deposition. I find it impossi-
ble to believe that she would request a medical leave of absence
without first obtaining some document from a physician to
present in support of her request.
Gilliard denied that Williams informed him that “she was
hurting, she was sick, and she could not do the job,” and I
credit his denial. Contrary to the Charging Party’s argument,
there is no basis for inferring that Gilliard was aware of “con-
tinuing medical problems” as a result of Williams’ injury in
August. Williams’ attendance calendar notes, on the days that
she missed from September through November 24, that she was
“sick.” She missed only 1 day of work in October. Her ab-
sences in mid-November were related to oral surgery. The
return to work slip stating that she was under her physician’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1276
care from November 24 until November 30 does not state a
reason for the medical treatment she had received. There is no
evidence of any deficiency in Williams’ job performance. The
evidence establishes that Williams worked through whatever
pain she experienced. No physician restricted her after Sep-
tember 7 or prescribed a medical leave of absence for her.
Upon the conclusion of her meeting with Gilliard, Williams
returned to work. Gilliard testified that if Williams had re-
quested medical leave he would have referred her to the plant
nurse.
Williams and Gilliard agree that, in their conversation, the
appointment of Griffin was mentioned. Gilliard recalled that it
was at this point that he mentioned Williams’ attendance prob-
lems. Williams recalled that Gilliard referred to her attitude.
There is no complaint allegation relating to the selection of
Griffin instead of Williams as supervisor of the shipping de-
partment on second shift. The comments Williams attributed to
Gilliard, that she “had too many points and that he could fire
[her] and get away with it,” and that he “didn’t need a reason to
fire her,” are not alleged as threats of discharge.7
Although Gilliard testified that Williams requested a “per-
sonal leave of absence,” I find that this was his characterization
of her request. I find that Williams, on December 6, did not
specify the type of leave of absence she was seeking. She sim-
ply requested a leave of absence and cited personal reasons.
Gilliard informed her that he would get back with her because
Department Manager Phil Lytle “needed to be involved.”
On December 7, although calling in and reporting that she
would be late, Williams did not report. On December 8,
Gilliard wrote a memorandum to Lytle noting that Williams
had excessive attendance points and that he needed to talk to
her. On December 8, Lytle prepared a warning to Williams for
her failure to report on December 7. The warning states that
further violations would result in termination. Williams did not
report on December 8 or 9, thus she never received the warn-
ing. Williams’ absences of December 8 and 9 are also recorded
on the warning prepared on December 8 regarding her absence
on December 7.
Both counsel for the General Counsel and counsel for the
Charging Party argue that the foregoing reflects an intention by
the Respondent to terminate Williams for attendance violations.
I do not agree. Lytle had brought Williams’ attendance prob-
lem to Gilliard’s attention when she failed to report to work on
November 30. They neither prepared nor issued any discipline
to Williams for her attendance infractions prior to December 6.
The warning prepared on December 8 regarding her failure to
report on December 7 is not a termination. It reflects that she
would be terminated for future violations. Williams never re-
ceived this document since she never appeared for work after
December 6.
Counsel for the General Counsel, apparently accepting for
the sake of argument the testimony of Gilliard that he “would
get back with” Williams, argues that there is no evidence that

7 The initial charge in Case 11–CA–18606 alleges a comment re-
garding Williams’ failure to be appointed to the supervisory position
held by Griffin as an unfair labor practice, but no such allegation is in
the complaint.
he spoke with Lytle and that he did not get back with Williams.
The foregoing argument fails to cite the further testimony of
Gilliard that he never made a decision regarding Williams’
request for a personal leave of absence because she never re-
turned to work. Simply put, he never made a decision because
he did not have to.
The Respondent’s employee handbook provides that an em-
ployee must present appropriate medical certification when
leave is requested because of the employee’s medical condition.
A personal leave of absence is to be requested in writing from
the employee’s supervisor and human resources. Counsel for
the Charging Party introduced documents reflecting both medi-
cal and personal leaves of absence for various employees. The
medical leaves of absence refer to requests from physicians or
events such as automobile accidents and pregnancy. There is
no instance in which medical leave was granted without medi-
cal documentation on the basis of an employee’s complaints of
pain. Counsel notes that employee Magazine was granted per-
sonal leave to be with her daughter in an emergency situation
on November 30, 2000, without the supervisor’s approval. The
document, although not containing the supervisor’s approval,
was approved by the plant superintendent.
Counsel for the General Counsel introduced a neurological
consultation dated February 21, 2000, that reflects it was per-
formed in connection with a workman’s compensation claim.
The document states that Williams complained that she contin-
ued to experience headaches and back pain.
2. Analysis and concluding findings
The complaint alleges that the Respondent discharged Wil-
liams on December 8. The General Counsel and the Charging
Party argue that Williams was constructively discharged by the
failure of the Respondent to accommodate Williams by grant-
ing her request for a medical leave of absence thereby causing
her to quit. The record establishes Williams’ union activity, the
Respondent’s knowledge of that activity, and its animus to-
wards such activity. The record does not establish an adverse
action by the Respondent with regard to Williams’ employ-
ment. The probative evidence establishes that Williams re-
quested a leave of absence citing personal reasons, that the
Respondent did not immediately grant that request, and that
Williams quit.
In the course of the hearing, counsel for the General Counsel
elicited testimony regarding the job duties performed by Wil-
liams, the purported failure of the Company to assign Williams
to light duty following her injury, and a purported increase in
her workload. Relative to workload, the record does establish
that work in the shipping department on second shift increased
in the summer of 1999, but it also establishes that additional
employees were assigned to the second shift to assist in per-
forming that work. There is no allegation that the Respondent
manipulated the amount of work in the shipping department in
an effort to make Williams’ job more difficult following her
injury. The 10(b) date with regard to the charge is August 28.
Although Williams was restricted to light duty until September
7, but purportedly not assigned such duty, there is no probative
evidence that she was required to work outside of her restric-
tions and there is no charge or complaint allegation alleging a
SMITHFIELD FOODS 1277
failure to assign light duty to Williams between August 28 and
September 7. Neither the brief filed by the General Counsel
nor the brief filed the by Charging Party acknowledges or dis-
cusses the undisputed evidence that Williams was not restricted
in any manner by any physician, including her own physician,
as a result of her August 16 injury at any time after September
7.
The test for determining whether an employee has been con-
structively discharged is set out in Crystal Princeton Refining
Co., 222 NLRB 1068, 1069 (1969):
First, the burdens imposed upon the employee must cause,
and be intended to cause, a change in his working conditions
so difficult or unpleasant as to force him to resign. Second, it
must be shown that those burdens were imposed because of
the employee’s union activities.
In Davis Electric Wallingford Corp., 318 NLRB 375, 376
(1995), the Board noted that a Wright Line analysis is applica-
ble only to the second prong of the test enunciated in Crystal
Princeton. In American Licorice Co., 299 NLRB 145, 148
(1990), the Board stated that the Crystal Princeton test should
not “be read so narrowly as to apply only when an employer
has changed an employee’s working conditions,” and cited St.
Joseph’s Hospital, 247 NLRB 869, 873, 880 (1980), in which
the employer could have accommodated an employee’s request
for a change in hours but refused to do so. In American Lico-
rice, the Board reached a similar conclusion, finding that the
employer could have accommodated the employee “but refused
to do so for unlawful reasons, even though it reasonably should
have foreseen that its decision would force her to quit.” Id. at
148. The Board noted that, in determining whether an em-
ployer has constructively discharged an employee, the issue is
not “whether the employer specifically intended to cause the
employee to quit, but includes whether, under the circum-
stances, the employer reasonably should have foreseen that its
action would have that result.” Ibid. Notwithstanding this
principle, if it cannot reasonably be found that a respondent’s
action would cause an employee to quit, the employee may not
elevate a respondent’s action into an unlawful constructive
discharge by quitting. Aero Industries, 314 NLRB 741, 742
(1994). The foregoing is true even if the employee has a rea-
sonable fear of future discharge. Ibid.
The principles enunciated above are applicable in the instant
case. Williams’ decision to quit after the Respondent failed
immediately to grant her verbal request for a leave of absence
for personal reasons was not foreseeable. Although Williams
testified that she requested a medical leave of absence and
complained of pain, I have not credited that testimony. Even if
I had found that Williams requested a medical leave of absence,
the record establishes that such leaves require medical certifica-
tion and Williams had none. Pursuant to the Respondent’s
policy, Williams’ should have submitted her request for a leave
of absence for personal reasons in writing through her supervi-
sor and human resources, but she did not do so. The Respon-
dent never refused to accommodate her verbal request for a
leave of absence. The credited evidence establishes that, after
Williams requested a leave of absence citing personal reasons,
Gilliard informed her that he “would get back with her” be-
cause Department Manager Lytle “needed to be involved.”
Williams was crew leader on the second shift in the shipping
department. There is no evidence disputing Gilliard’s testi-
mony that he needed to contact Department Manager Lytle
before approving a leave of absence for personal reasons for
this key employee. There is no evidence whatsoever that the
Respondent could have reasonably foreseen that its failure im-
mediately to grant Williams request for leave to deal with some
personal problems would cause her to quit. American Licorice
Co., supra at 148; Aero Industries, supra at 742. The absence
of foreseeability is confirmed by the evidence that Williams
returned to work and completed her shift on December 6 and
that, on December 7, she called stating that she would be late
but thereafter did not report to work. I shall recommend that
this allegation be dismissed.
CONCLUSION OF LAW
By discharging an employee because of his union activities,
the Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent having discriminatorily discharged Andre
Farmer on May 13, 1999, it must offer him reinstatement and
make him whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
The Respondent will also be ordered to post an appropriate
notice.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The Respondent, Smithfield Packing Company, Incorpo-
rated, Wilson, North Carolina, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting United Food and Commercial Workers,
Local 204, and United Food and Commercial Workers Interna-
tional Union, AFL–CIO, CLC, or any other union.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.

8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1278
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Andre
Farmer full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Andre Farmer whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge and within 3
days thereafter notify Andre Farmer in writing that this has
been done and that the discharge will not be used against him in
any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cility in Wilson, North Carolina, copies of the attached notice
marked “Appendix.”9 Copies of the notice, on forms provided
by the Regional Director for Region 11, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since May 13, 1999.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”