Strain Poultry Farms, Inc.

National Labor Relations Board - Board Decisions

Apr 10, 1967

163 N.L.R.B. 972 (N.L.R.B. 1967)

972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director to refuse to approve it. Accordingly,
Employer argues that the Petitioner's execution and
the Regional Director's approval of the stipulation
amounted to acceptance of the Employer's
modifications and revisions, and they became bound
by it.
We find no merit in these contentions. As to the
validity of the rule, it is clear that "The control of
election proceedings and the determination of the
steps necessary to conduct that election fairly [are]
matters which Congress entrusted to the Board
alone."2
With respect to the Employer's other contentions,
the Board, in adopting the Excelsior rule, made no
exceptions as to the application of the rule except in
the case of an expedited election conducted
pursuant to Section 8(b)(7)(C). Nor did we provide for
a unilateral, or for that matter, any modification or
waiver of such rule. Moreover, such a policy could
only lead to confusion and delay in representation
proceedings. Accordingly, we find that the
Employer's exceptions raise no material or
substantial issue of fact or law which would warrant
reversal of the Regional Director's findings and
recommendations, which we hereby adopt.3
ORDER
It is hereby ordered that the election conducted
herein on December 21, 1966, be, and it hereby is,
set aside.
[Text of Direction of Second Election4 omitted
from publication.]
2 N.L.R.B. v. Waterman S.S. Corp., 309 U.S. 206, 226. See also
N.L.R.B. v Shirlington Supermarkets, 224 F.2d 649, 651 (C.A. 4).
8 We find no merit in the Employer's further exceptions
wherein it contends that the Board's adoption of the Excelsior rule
was in violation of Section 139(c) of the Federal Reports Act. This
latter act is concerned with the general gathering of
"information" by Federal agencies for sundry purposes and is
inapplicable to the Board's procedural requirements as to
elections. (See N.L.R.B. v. Waterman S.S. Corp., supra.)
4 An election eligibility list, containing the names and
addresses of all the eligible voters, must be filed by the Employer
with the Regional Director for Region 13 within 7 days after the
date of issuance of the notice of Second Election by the Regional
Director. The Regional Director shall make the list available to all
parties to the election. No extension of time to file this list shall be
granted by the Regional Director except in extraordinary
circumstances. Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper objections
are filed Excelsior Underwear Inc., supra.
Strain Poultry Farms , Inc. and International
Union of District 50, United Mine Workers
of America . Cases 10-CA-6539 and 6685.
April 10, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND ZAGORIA
On December 9, 1966, Trial Examiner George A.
Downing issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, except as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
' In agreement with the Trial Examiner, we find ample record
evidence that the Respondent was prompted by antiunion
considerations in granting economic benefits to the unit
employees during the critical preelection period. We therefore
adopt his ultimate conclusion that this conduct was violative of
Section 8(a)(1) of the Act. N.L.R.B. v Exchange Parts Company,
375 U.S 405 We do not, however, adopt his alternative reasoning
that, irrespective of the Respondent's motivation, Respondent
acted unlawfully in granting the benefit involved without first
discussing the matter with the Union. The Respondent's statutory
obligation to bargain with the Union attached only after the Union,
attained majority status. The complaint does not allege, and the'
record does not show, that the Union established its majority until
it won the election on August 18.
In considering the violations based upon the Respondent's
broad no-solicitation and no-distribution rule, we are satisfied, as
was the Trial Examiner, that the Respondent's maintenance of
that rule at all times here relevant had an inhibiting effect on the
employees' exercise of their statutory rights. Accordingly,
although the Respondent instituted the rule in 1964, some 2 years
before the advent of union activity, we agree with the Trial
Examiner that Respondent's continuing maintenance of the rule
in its present form is violative of Section 8(a)(1) and should be
enjoined. Respondent's initial promulgation of the rule is, of
course, outside the scope of our inquiry, in view of Section 10(b) of
the Act, and we base no violation findings on such promulgation
163 NLRB No. 132
STRAIN POULTRY FARMS 973
Recommended Order of the Trial Examiner, as
modified and corrected below, and hereby orders
that the Respondent, Strain Poultry Farms, Inc.,
Dalton, Georgia, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, with the following
modifications and corrections:
1. Delete the word "promulgated" from
paragraphs 1(a) and (b) of the Trial Examiner's
Recommended Order.
2. Substitute for subparagraph 1(d) of the Trial
Examiner's Recommended Order the following:
"(d) Granting economic benefits to its employees
for the purpose of influencing them to reject the
Union as their representative or to discourage their
membership in, or adherence to, the Union."
3. Amend the Trial Examiner's notice by
(a) deleting the word "promulgate" from the first
and second paragraphs thereof, and (b) substituting,
for the fourth indented paragraph thereof, the
following:
WE WILL NOT grant economic benefits to our
employees for the purpose of influencing them
to reject the Union as their representative or to
discourage their membership in, or adherence
to, the Union.
4. Correct the Trial Examiner's Conclusions of
Law, Recommended Order, and Notice by striking
therefrom the name "Howard Holbrook" wherever it
appears therein, and substituting therefor the name
"Howard Holbert."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE A. DOWNING, Trial Examiner: These
consolidated proceedings, brought under Section 10(b) of
the National Labor Relations Act, as amended, were heard
at Dalton, Georgia, on October 25, 1966, pursuant to due
notice. The complaint in Case 10-CA-6539, issued on
September 2 on charges dated May 2 and August 25,
1966,i alleged that Respondent engaged in unfair labor
practices proscribed by Section 8(a)(1) and (3) of the Act by
maintaining and enforcing an unlawfully broad no-
solicitation no-distribution rule, by threatening to sell its
trucks and to subcontract its hauling, by granting
economic benefits without notice to or consultation with
the Union at a time when a representation petition was
pending, and by discharging Howard Holbert on April 29
because of his union membership and activities. The
complaint in Case 10-CA-6685, issued on September 21
on charges dated September 7 and 12, alleged that
Respondent engaged in an unfair labor practice proscribed
by Section 8(a)(5) and (1) of the Act by refusing since
September 6 to bargain with the Union as the certified and
exclusive bargaining representative of the employees, in
an appropriate unit. Respondent filed separate answers in
which it denied the unfair labor practices with which it
was charged and in which it pleaded in part that its
operations were not subject to the National Labor
Relations Act because exempt therefrom as an
agricultural operation.
Upon the entire record in the case and from my
observation of the witnesses I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS ; THE LABOR ORGANIZATION
INVOLVED
I conclude and find on facts alleged in the complaint and
admitted by answer that Respondent, a Georgia
corporation with plants at Dalton and Acworth, Georgia,
where it is engaged in the production and sale of poultry
products, is engaged in commerce within the meaning of
Section 2(6) of the Act (through sales in the State of
Georgia in excess of $50,000 annually to Cagle's Inc.,
which makes direct extrastate sales and shipments
annually of products valued in excess of $50,000), and that
the Charging Union, District 50 herein, is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Introduction; the Representation Proceedings; the
Issues
Respondent's operations are fully described at 160
NLRB 236, in the Board's Decision in the representation
proceeding in Case 10-RC-6652, to which reference is
here made. The employees involved herein are its coop
truckdrivers hauling out of its Dalton and Acworth
operations.
Following organizational activities in March and a
request for recognition on March 23, District 50 filed a
representation petition on March 31 and a hearing was
held on April 21. Following the Board's Decision on
July 26, an election was held on August 18, and was won
by the Union, which was certified by the Regional Director
on August 26. The Union's request to bargain on
August 29 was refused by Respondent on September 6 on
the same ground on which it had sought dismissal of the
representation petition before the Board; i.e., that
Respondent's operations were agricultural and its
employees were agricultural laborers over whom the
Board had no jurisdiction under Section 2(3) of the Act.
The Board, however, rejected that contention, 160 NLRB
236, supra, and Respondent made no attempt to relitigate
the question herein, standing on the record as made in the
representation proceeding, which was offered and
received in evidence.
Thus no issue is presented under the complaint in Case
10-CA-6685 save the one the Board ruled on in the
representation proceeding. The issues in Case
10-CA-6539 are factual ones surrounding the alleged acts
of interference, restraint, and coercion (i.e., threats,
granting of benefits, an invalid no-solicitation no-distribu-
tion rule) and the alleged discriminatory discharge.
B. The Refusal to Bargain ; Case 10-CA-6685
There being no issue in Case 10-CA-6685 save
Respondent's defense which the Board rejected in the
representation case, I conclude and find that by refusing
to bargain with the Union on and after September 6,
Respondent engaged in unfair labor practices proscribed
by Section 8(a)(5) and (1) of the Act.
' AU events herein occurred in 1966
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Case 10-CA-6539
1. The evidence
a. The no-solicitation no-distribution rule
Respondent admits that it promulgated around
January 1, 1964, the following rule:
Employees may not solicit for any purpose or sell
anything during their working time or on Company
property. Solicitation, selling, or distribution of
literature is prohibited at any time or place where
such action adversely affects production or discipline.
For the first violation the employee will receive a
warning; for the second violation he will receive a
three-day suspension; for the third violation he
will receive a five-day suspension; and for the
fourth violation he will be discharged.
Respondent denies, however, that it enforced the rule
and denies that the effect of the rule was to prohibit the
employees from engaging in solicitation during the
organizational campaign. Employee witnesses Lloyd
Johnson, Odell O'Neal, and Howard Holbert admitted that
they knew of no warnings being given for violation of the
rule, but testified to their knowledge of the penalties
provided in it. O'Neal testified that he knew that he would
be punished in some way if he violated the rule, and
Howard Holbert testified that he felt a violation of the rule
would affect the terms of his employment. Though there
was no evidence that the rule was violated by employees, it
is undisputed that Respondent regularly permitted
solicitations for the United Appeal
Other evidence concerning Respondent's assessment of
the rule is set forth under the subject of Holbert's
discharge, section d, infra.
Board, did not feel that the Company was large enough for
a third party, and felt that matters could be worked out
between the employees and the employer.3 Souther also
stated that there would be no discrimination against the
drivers because of their union activities and that they had
the legal right to ask for union representation.
On April 16 Souther held another meeting with the
drivers and read them the following statement:
I appreciate your discussing with me last week the
complaints that you feel are present in your jobs. We
only regret that you waited till this late date to bring
them to our attention. Without indicating or implying
that we could do anything, we are prevented as a
matter of law from making any changes in wages,
hours, or working conditions while the union is
claiming to represent you. I thought we owed you the
courtesy of this explanation.
I think that you should know that our business is an
agricultural operation and its charter obtained from
the government limits it to farm operations,
agricultural work is exempt from the National Labor
Relations Act and laws. It is our position that we are
exempt. We do not intend to keep in this operation
any portion of part that is nonagricultural. This means
that in the event the proper governmental authorities
would find that we are subject to the National Labor
Relations Act and that our coop truck operations to
Atlanta from the farms are nonagricultural then in
such an event it would be our intention to eliminate
this nonagricultural operation. Boiled down, this
means that we would plan to get rid of our trucks and
truckdrivers We, however, would do so subject to the
law and would attempt to meet all requirements
thereof.
b. The threats
On March 23, the Union made a request for recognition
as bargaining agent of the drivers, and on March 24 and
25, Division Manager J. Gordon Souther polled all the
drivers in groups of two each concerning whether they
desired union representation or whether they desired the
issue to be disposed of by secret ballot in an election.2
Souther testified that he intended to learn the individual
wishes of the employees as to whether they desired union
representation at all or whether they wished to have an
election on the question, and he tallied at the foot of the
statement the results of his polling, noting opposite the
name of each driver the date and the choice which each
indicated. In 12 cases the result noted was "Secret
Ballot," in one case it was "No Union Representation,"
and in one case it was "No Union."
Further background evidence was supplied by
testimony concerning Souther's meeting with the drivers
on April 9 (again not covered by a complaint allegation).
Souther told the employees that the Company did not
believe the drivers were under the jurisdiction of the
2 Though there was some conflict in the evidence, I credit
Souther's testimony that he read the text of a written statement,
set out in Appendix A attached hereto Furthermore no issue is
presented whether Souther's conduct constituted proscribed
interference, restraint, or coercion, for, without seeking to amend
his complaint to include that conduct, the General Counsel
disclaimed it as violative of Section 8(a)(1) and stated that he was
offering it only as "background "
Souther informed the drivers that no questions would be
answered. Holbert asked for a copy of the paper or for
permission to read it but Souther refused.
Testimony by Johnson, O'Neal, and Holbert differed
somewhat from the foregoing text, particularly in
emphasis on the threat to sell the trucks and release the
drivers. They agreed, however, that Souther read from a
written statement and Johnson admitted when shown the
statement on cross-examination that Strain said, "Pretty
close the same thing." I believe also that Johnson and
O'Neal confused Souther's speech with one to similar
effect which Strain made in August, as next referred to.
On August 9, Vice President Strain made a speech to
various groups of truckdrivers at Dalton and Acworth in
which he expounded at some length on Respondent's
position concerning the impending election and the
alleged exemption. Both Johnson and O'Neal testified that
Strain asked the employees to vote against the Union and
stated that if the Union wr n the election, he would appeal
to a higher court and that if the court held that his
operations were subject to the National Labor Relations
Act he would sell his trucks and have the chickens hauled
' Composite testimony of Johnson, O'Neal, and Holbert as
reconciled I find that Johnson mistakenly ascribed the
statements to Hall O'Neal's testimony that Souther stated the
Company was not going to recognize the Union in any way, was
not supported by Johnson and Holbert
STRAIN POULTRY FARMS
by contract haulers before he would recognize the Union.
On cross-examination Johnson testified that Strain said he
felt his business was an agricultural operation, not subject
to the Act, and that he could not have any part of his
business operate on a nonagricultural basis.
Strain's testimony was not substantially in conflict. He
admitted he asked the employees to vote "No," as the
simj lest way to resolve the matter, explaining that
otherwise the Company had no alternative except to stand
on its claim of the agricultural exemption, and that if on
appeal to the courts the ruling should be that the operation
was nonagricultural, the Company had no choice under its
corporate charter except to divest itself in a legal manner
of any activity that was not deemed to be agricultural. In
discussing how the Company would operate if its
exemption were lost, Strain explained that the elimination
of the trucking operation was tied to the agricultural
exemption, that the Company would have to conduct its
activities within the agricultural exemption as far as it
went, and would terminate its operations at the
chickenhouse.
It is thus apparent even under Strain's testimony that he
told the employees in more verbose fashion what Souther
told them briefly on April 16 in his summarizing words,
"Boiled down, this means that we would plan to get rid of
our trucks and truckdrivers." And it was thus the
employees understood it.
c. The grant of benefits
Effective May 23 Respondent gave a general
(unsolicited) wage increase to its truckdrivers without
consulting or notifying the Union. Eight drivers received
20 cents an hour, two 25 cents, and one 15 cents.4
Percentagewise the 20- and 25-cent increases ranged from
15 to 18-1/2 percent, and the single raise of 15 cents
equaled 10 percent.
Though the employees had not sought or requested the
raise Lloyd Johnson testified that when informed of it by
Foreman Jack Hall, he was given a form to sign that he had
requested the raise. Hall also informed Johnson and
O'Neal that their workdays would be cut from 5 to 4 and
the hours from 75 or 80 to around 60 a week.
Respondent offered a transcript of its payroll records
which showed that it also raised its 33 other employees
over a period from April 18 through July 25, 11 of those
raises being given on various dates prior to May 23, 1 on
May 23, and 21 on various dates on and after May 30.
Nineteen of those raises were at 5 cents an hour, 12 at 10
cents, one at 15 cents, and one at 20 cents. In 31 out of the
33 cases the percentage of increase ranged from 3.2 to 8
percent: 1 amounted to 9.7 percent, and 1 to 13 percent.,')
'Vice President Strain testified that the raises were given
to meet competitive conditions in the industry, that some
competitors had raised their rates as much as 25 cents an
hour in anticipation of wage-hour legislation by Congress,
and that Georgia Broilers at Gainesville had made an
increase which "rippled out" through the industry and
which made it necessary for Respondent to examine the
labor market and to adjust its position . Strain consulted
his counsel , who advised him to avoid making the increase
4 Howard Holbert, discharged on April 29, had received a lt,
cent increase on April 18, but Vice President Willard Strain
testified that that was an automatic increase which followed
Holbert 's successful completion of his 90-day orientation period
5 A separate transcript purported to cover only employees of
Georgia Poultry Feed Mills, Inc , a separate corporation which is
975
if he could do so, for it might be misconstrued as an unfair
labor practice. Feeling, however, that the labor market
forced the action, it was decided to take the "calculated
risk" and to grant the increase.
Strain admitted that the work hours were also reduced
at the same time and testified that it was due in part to
reduced workloadss and in part to the fact that the drivers
were working more hours than they were physically able to
work. On cross-examination Strain added he also desired
to make the hours compliant with ICC regulations.
Also pertinent to the issue of reduced work hours was
evidence concerning the contract haulers, who have been
used since 1963 to supplement the regular force of
employee drivers. Though Strain estimated that at the
time of the hearing the contract haulers were hauling
approximately 60 percent of the total volume, he deferred
to Foreman Hall on the question whether the contractors
were hauling more currently than they did before. Souther
estimated that the employee drivers were hauling
currently slightly less of the product than they did before
and that the contractors were hauling slightly more, but he
also stated that Hall had the firsthand knowledge. Hall
estimated that the contractors were currently hauling
around 50 percent of the total product but stated that for
the year the proportion which they hauled ran only from 35
to 40 percent.
d. The discharge of Howard Holbert
Howard Holbert was hired as a coop driver on
January 18, 1966, and was discharged by Souther on
April 29. No issue of competency was involved, for just
before his discharge he had qualified for an automatic
increase upon completion of his 90-day orientation period,
and he was characterized by Strain as the "most capable
of employees that we have ever had."
Holbert had been active in the organizational activities,
had held one of the union meetings in his home, and had
attended the representation hearing as a prospective union
witness. Though Respondent's witnesses denied
knowledge of Holbert's activities, Souther admitted that
he presumed that Holbert was in favor of the Union and
cited Holbert's actions in the meeting of April 16 and his
assertion of "constitutional rights" at the time.
Furthermore though Foreman Hall also denied knowledge
of Holbert's union activities, he admitted on cross-
examination that after the representation petition was filed
he was informed on the telephone by a representative of
Cagle's, Inc., in Atlanta of an incident on Cagle's yard
when Holbert was seen talking with someone who was
reported to be a union representative. Hall testified that it
was his duty to report such incidents to his superior and
that he informed Souther of it. Souther did not deny that
testimony.
Since it was Holbert's conduct at Cagle's which led
ultimately to the discharge, we review briefly the setting in
which that conduct occurred.
Cagle's was Respondent's principal customer and
George Cagle was president of both corporations. Cagle's
employees were represented by District 50, whose
not involved herein If considered relevant, it reflected that some
14 employees received raises from April 2 to July 25 of some 5 to
15 cents, or percentagewise from 3 to 11 percent
6 Foreman Hall testified, however, that the first half of the year
is the best season
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative , Samuel A . Hider , sometimes visited the
premises.
Much of the hauling which Holbert and the other drivers
did was to Cagle's yard in Atlanta , where the drivers spent
considerable time (from 2 to 7 or more hours per trip)
waiting for their trucks to be reached for unloading.
During such time the drivers were free to use the
privileges of the cafeteria and to sleep in their truck if they
wished . The only requirement shown by the record was,
under Lloyd Johnson 's testimony , that the drivers stay in
the immediate area around their trucks.
O'Neal and Holbert testified to certain occurrences in
the yard which gave them the impression that Cagle's
dock foreman was spying or attempting to spy upon the
drivers even in the cafeteria . The evidence is undisputed
that Holbert protested those activities to Cagle's vice
president , Douglas Cagle , on or about Wednesday,
April 20 ,7 nor is Holbert 's account of their conversation
denied. Holbert reported to Cagle that the dock supervisor
and another employee were trying to spy on the drivers
and that their conduct was such as to remind him of
attempts by juvenile delinquents to operate an
international spy ring. Cagle denied knowledge of the
conduct , disclaimed any dominion over Respondent's
employees, and stated that he would check into the
conduct of which Holbert was complaining. Holbert
denied that he accused Cagle himself of running a spy
ring. Holbert reported the matter to Foreman Hall upon his
return to Dalton.
Strain testified that Cagle reported to him on the
telephone that Holbert had created a scene in Cagle's
office, that he passed that information on to Souther
(without attempting otherwise to describe the incident),
and directed Souther to get to the bottom of it . Souther
himself also called Cagle and on April 22 called in Holbert.
There is sharp conflict in the testimony concerning
their conversation . Holbert testified that Souther ques-
tioned him as to the identity of the union representatives
at Cagle's and asked when Holbert had talked to them
and 'by what right he had done so. Souther accused
Holbert of participating in union activities on company
time, of making a slanderous statement to Cagle, and
stated that Holbert was forbidden to speak with anyone
at Cagle's or to any union representative there and that
if Holbert violated those instructions , "[A]action would
be taken ." Holbert denied stating that he would speak to
Cagle or anyone else whenever he wanted to, denied stat-
ing that Souther was too stupid to understand, and
denied charging that Souther was looking for an excuse
to fire him.
Denying that any reference was made to the Union or to
union activity , Souther testified that he asked Holbert to
explain certain uncomplimentary remarks which Holbert
made at Cagle's office , asking specifically what Holbert
meant by charging them with running a spy ring. Holbert
denied that he had said that , but admitted he made some
comment that one would think they were running a spy
ring because of certain happenings on the yard . Souther
informed Holbert he should have reported such matters to
his supervisor , Jack Hall , and Holbert stated he had done
so. Souther replied that Holbert 's report to Hall occurred
after Holbert had already committed the intrusion in
' Though Holbert fixed the date as April 26 , it is apparent from
the chronology of subsequent events that it occurred on or about
the 20th , as Souther 's testimony fixed it
" Holbert 's testimony shows that he confused the conversation
Atlanta and warned Holbert not to go into Cagle's office
again or to make statements of an uncomplimentary
nature.
Holbert stated that he would go into the office whenever
he pleased and that it was his "constitutional right" to do
so. When Souther asked what Holbert meant , Holbert
replied that Souther was too dumb to understand . Souther
warned Holbert not to do such a thing again , and there was
an angry exchange with Holbert charging that Souther was
looking for an excuse to fire him and with Souther
answering that, "[Y]ou do that again and you ' ll get fired."
Thereupon Souther ordered Holbert to leave the office.
On Monday, Souther made a memorandum of the
interview and mentioned the matter to Hall but did nothing
further until the following Friday, April 29, when he
summoned Holbert into his office and in Hall's presence
discharged him. Holbert testified that Souther inquired
whether he would change his attitude and told him that
because of his union activities and because of making a
slanderous statement at Cagle's the Company was
discharging him."
Souther testified that he began by asking whether
Holbert had anything to say about what had happened the
week before and Holbert replied that he did not . Souther
asked if Holbert remembered calling him stupid and dumb
and Holbert finally admitted using one of the terms but not
the other one. Souther asked if Holbert did not feel he
should apologize and Holbert replied he did not believe
there was anything to apologize for. Thereupon Souther
told Holbert he was going to terminate Holbert's
employment and asked Hall to see that the proper forms
were filled out. Hall's testimony was in substantial accord.
The termination notice which Souther issued under date
of May 2 contained the statement that Holbert was
discharged "[B]ecause of insubordination . Holbert
objected to instructions to him from J. G. Souther. These
instructions were that Holbert not make derogatory
statements to personnel in the office of Cagle's, Inc."
Souther testified that he made no further investigation
after his interview with Holbert on April 22 , that he did not
discuss the discharge with Strain, and that he had no
instructions from Strain concerning the discharge.
Souther admitted that by Monday, April 25, he had gotten
over the anger and the emotion which he felt at the end of
the Friday interview and that Holbert made no further
insulting or insubordinate remarks though he made other
trips to Cagle's during the week. He testified further that
although Holbert hurt his feelings by calling him stupid, he
did not fire him for that reason but because of his
insubordination as described in the separation notice; i.e.,
that he would do as he pleased and would not follow any
sort of instructions.
Respondent argues that Holbert's testimony concerning
the discharge is not to be credited because the Union's
original charge, filed after Holbert conferred with union
representatives , specified in part that , "On or about
April 29, the Company discriminated against Howard
Holbert because of his Union activities, particularly him
appearing at the Board with the Union representative to
give testimony in the hearing, if needed."
As noted the charge specified both union activities and
Holbert 's appearance as a prospective witness at the
at the discharge interview with that at the first interview I credit
the mutually corroborative testimony of Souther and Hall
concerning the discharge interview , and I find that Souther made
no reference to Holbert 's union activities in the latter
STRAIN POULTRY FARMS 977
Board hearing and it assigned violations of Section 8(a)(1),
(3), and (4). Furthermore, an amended charge filed on
August 25 dropped the claim of an 8(a)(4) violation and
charged that Respondent discharged Holbert "in order to
discourage membership in a labor organization."
I find nothing in the foregoing record which reflects
unfavorably on Holbert's credibility, particularly since
Hall's testimony showed Respondent's concern with
Holbert's union activity at Cagle's yard.
Resolving the credibility issues I conclude and find from
all the evidence that the testimony of both Holbert and
Souther concerning the first interview is to be believed in
part and to be disbelieved in part.9 Hall's testimony,
undenied by Souther, established that Holbert' s union
activities at Cagle's were a matter of concern to
Respondent and that Cagle's representatives reported on
those activities to Respondent; and Holbert's protest to
Cagle concerned what the former considered to be
unwarranted spying upon those activities. I therefore
credit Holbert's testimony that Souther questioned him
about the union activities at Cagle's, accused him of
participating in union activities on company time, and
forbade him to do so again or to speak with anyone at
Cagle's. Except in those respects, however, I credit
Souther's version of the interview, for I find that Holbert
confused the first interview with the latter one at which
Hall was present.
Crediting also the mutually corroborative testimony of
Souther and Hall concerning the discharge interview, I
find that Souther made no reference to Holbert' s union
activities in the latter.
2. Concluding findings
a. The no-solicitation no-distribution rules
The no-solicitation rule was obviously invalid in
forbidding solicitation at any time on company property.
Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 621.
Testimony concerning absence of warnings and lack of
enforcement was not persuasive since there was no
evidence that the employees undertook to engage in
organizational activities on Respondent 's premises and
none that they did not regard the rule as prohibiting
campaign activities . Cf. The Lion Knitting Mills Company,
160 NLRB 801. Indeed , employee witnesses testified to
knowledge of the penalties contained in the rule and to
their belief that punishment would follow from violations.
Thus the employees here viewed the rule as prohibiting
union activities (cf. Lion Knitting Mills, supra), and the
mere promulgation was sufficient to accomplish its
purpose without affirmative efforts at enforcement.
Finally there was evidence that Respondent was
concerned with violations of the rule even when the
drivers were off its premises, i.e., as at Cagle's, for it
received reports from the latter concerning the union
activities of its employees there and Souther warned
Holbert that he was not to continue those activities.
The no-distribution rule was also presumptively invalid
upon its face, for its reach was not limited to working time
nor to working areas . Stoddard-Quirk Manufacturing
Company, supra , at 621-622. Furthermore Respondent
made no showing that the rule was necessary in
nonworking areas in order to "maintain production or
discipline." Id., citing N.L.R.B. v. The Babcock and Wilcox
Company, 351 U.S. 105.
I therefore conclude and find that by promulgating and
maintaining said rules Respondent interfered with,
restrained, and coerced employees in the exercise of rights
guaranteed by Section 7 of the Act.
b. The threats
Respondent was plainly entitled to inform the drivers of
its legal position that they were agricultural laborers and
that their employment was therefore not subject to the
Act. It was also lawfully entitled to ask them to vote
against the Union. It could not, however, threaten that if
the Union won the election and if the drivers were found
subject to the Act it would sell the trucks and contract out
the hauling. By that blunt threat the employees were told
that they could not win by choosing the Union, for if they
did so Respondent would terminate its hauling operation
and release them.
Except for the fact that a partial, rather than an entire,
closing was threatened, the situation resembles the one
which the Supreme Court envisaged (though as unlikely to
occur) in Textile Workers Union of America v. Darlington
Manufacturing Co., 380 U.S. 263, 274. After first holding
that it is not an unfair labor practice for an employer to
close his entire business , even if the liquidation was
motivated by vindictiveness toward the Union, the Court
rejected the view of the court of appeals that the same
conclusion applied to a partial closing of a plant. More
pertinent to the present situation was the Court's further
discussion of distinctions between an actual closing and a
threat to close. Thus the Court stated that its holding
would not justify an employer in interfering with employee
organizational activities by threatening to close his plant
as distinguished from announcing a decision to close
already reached by the board of directors or other
management authority, and it continued (Id. at footnote
20):
An employer may be encouraged to make a definitive
decision to close on the theory that its mere
announcement before a representation election will
discourage the employees from voting for the Union
and thus his decision may not have to be
implemented. Such a possibility is not likely to occur,
however, except in a marginal business; a solidly
successful employer is not apt to hazard the
possibility that the employees will call his bluff by
voting to organize . We see no practical way of
eliminating this possible consequence of our holding
short of allowing the Board to order an employer who
chooses so to gamble with his employees not to carry
out his announced intention to close.
I therefore conclude and find that by threatening to sell
its trucks, to subcontract its hauling, and to release the
drivers, Respondent interfered with, restrained, and
coerced employees in the exercise of their Section 7
rights.
c. The grant of benefits
It is undisputed on the record that at the time
Respondent granted benefits to the drivers on May 23, it
was fully aware of the organizational activities and of the
9 "It is no reason for refusing to accept everything that a
witness says , because you do not believe all of it, nothing is more
common in all kinds of iudicial decisions than to believe some and
not all " N L R B v Universal Camera Corporation , 179 F.2d 749,
754(C A 2)
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's claim of majority status, and further that it took
action without notice to or consultation with the Union. It
is now well established that, "The granting of economic
benefits by unilateral action of an employer while union
organizational efforts are underway, or while a
representation election is pending, is a violation of
Sections 8(a)(1) and 8(a)(5) of the Act ...... Crown Tar and
Chemical Works v. N.L.R.B., 365 F.2d 588 (C.A. 10), and
cases there cited. Even assuming there was sound
economic basis for the action, Respondent was thus
required at a minimum to notify the Union before taking
action.
Aside from that, however, analysis of Respondent's
evidence tended not to support, but to discredit, its
explanations. Thus comparison of the treatment accorded
the drivers with that accorded the other employees
discloses striking disparities. The drivers were all raised
on May 23; only one of the other employees was raised on
that date, the other 32 raises being scattered over a 14-
week period. The bulk of the raises to the drivers was at 20
and 25 cents (15 to 18-1/2 percent), whereas the bulk of the
raises to other employees was at 5 and 10 cents, or from
3.2 to 8 percent. Thus on average the drivers' raise was
several times that which Respondent gave its other
employees.
Respondent's evidence contains no explanation for the
highly favored treatment which the truckdrivers received
over the other employees nor of the fact that Respondent
felt it necessary to raise all the truckdrivers at once while
scattering the raises to the other employees over a 3-month
period
Respondent's explanations concerning the reduction in
hours also do not stand scrutiny. Basic to the evaluation of
the evidence is the fact that the use of contract haulers,
though normal, was supplementary to the hauling done by
Respondent's employee drivers. Plainly, therefore, the
slacker the period, the less the need to resort to
supplemental hauling But the record here showed the
opposite result, for under Hall's final estimate for
Respondent the contractors were hauling 50 percent of the
total volume at the time of the hearing (in the fall slack
season) against some 35 to 40 percent for the year. Thu;
the reduction in hours resulted pro tanto in taking the
work from the drivers and giving it to the contractors, a
result which cannot be considered unintentional in the
light of the threats made by Souther on April 16 and Strain
on August 9 to sell the trucks and contract out all the
hauling.
As for the alleged concern over the physical limitations
of the drivers, the record did not indicate they were
working any longer hours than they had during
comparable periods in the past, and Strain's solicitude did
not arise until after the union campaign was under way.
Furthermore if the concern were genuine, the solution
would seem to lie more reasonably in reducing the number
of daily hours rather than the number of days driven.
It is not meant by the foregoing findings to say that
economic justifications which an employer advances must
be economically sound, but rather to say that such
economic considerations must be honestly invoked, and
that an employer may not attempt to disguise an antiunion
motive by speaking the language of economic necessity.
N.L.R.B v Savoy Laundry, Inc., 327 F.2d 370, 372
(C.A. 2). Here Respondent's evidence itself furnished part
of "reasonable cause for believing that the ground put
forward by [ it] was not the true one and the ground was
because of union activity " N L.R.B. v. Texas Bolt
Company, 313 F.2d 761, 763 (C.A. 5).
I therefore conclude and find that by granting wage
increases to the drivers and by reducing their hours of
work, Respondent interfered with, restrained , and coerced
employees in the exercise of their Section 7 rights.
d. The discharge of Howard Holbert
Though Respondent's witnesses denied knowledge of
Holbert's union activities, the evidence established that it
was fully aware of Holbert's prominence in the
organizational movement, particularly through his
appearance with the union representative at the
representation hearing and through the report from
Cagle's representative to Hall as relayed to Souther. When
that evidence is coupled with Souther's warning to Holbert
in the first interview and with the other evidence of
Respondent's antiunion bias, "the coalescent factors"
were sufficient to establish a prima facie violation of
Section 8(a)(3). Cf. Maphis Chapman Corporation v.
N.L R.B., 368 F.2d 298 (C.A 4). In order to overcome the
resulting presumption of discrimination, Respondent must
assume the burden of showing a justifiable or
nondiscriminatory reason for the discharge. Id.
Respondent's evidence, however, fell far short of
overcoming the prima facie showing of discriminatory
intent . The following factors are of most significance:
1. Souther completed his investigation of Holbert's
conduct at Cagle's with his first (April 22) interview with
Holbert.
2. Though that interview ended under Souther's
testimony on an angry and emotional note, Souther did not
discharge Holbert on the spot but was provoked only into
warning him that, "You do that again and you'll get fired."
3. Souther admitted that his anger subsided completely
by Monday (April 25) and that his "hurt feelings" formed
no part of the reason for the discharge.
4. Holbert admittedly did nothing after April 22 which
Souther regarded as insubordinate to him or as violative of
his instructions, though Holbert continued to haul to
Cagle's during the week.
5. Despite the week's condonation of Holbert's alleged
misconduct, and with anger ended, hurt feelings
disclaimed, and no claim that Holbert had violated
Souther's instructions or had engaged in new misconduct,
Souther sought on April 29 to resurrect the original
incident as the basis for discharging Holbert. It seems
obvious, however, that if Holbert's attitude had not
provoked discharge at the heated and emotional end of the
first interview ," it could certainly not have been the real,
the genuine, reason for discharging him a week later. Cf.
N.L.R.B. v. C. & J. Camp, Inc., et al. d/b/a Ktber-Camp
Phosphate Enterprises, 216 F.2d 113, 115 (C.A. 5).
I therefore conclude and find that Respondent's
evidence was insufficient to overcome the prima facie
showing of discriminatory intent , that the reasons which
Souther assigned for the discharge were not the true
reasons, but that he acted instead because of Holbert's
union activities. I thus conclude and find that by
discharging Holbert Respondent engaged in
10 Indeed, Respondent argues by brief that Souther's only error
was in not terminating Holbert at the first meeting
STRAIN POULTRY FARMS
discrimination to discourage union membership in
violation of Section 8(a)(3) and ( 1) 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. By interfering with, restraining , and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
2. By discharging Howard Holbrook because of his
union membership and activities , Respondent engaged in
discrimination to discourage membership in the Union,
thereby engaging in unfair labor practices proscribed by
Section 8(a)(3) and (1) of the Act.
3. All coop truckdrivers employed by Respondent out of
its Dalton and Acworth, Georgia, operations , excluding
office clerical employees , watchmen , 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.
4. At all times since August 26, 1966, the Union has
been the exclusive collective - bargaining representative of
all the employees in the aforesaid unit.
5. By refusing on and after September 6, 1966, to
bargain with the Union , Respondent engaged in unfair
labor practices proscribed by Section 8(a)(5) and (1) of the
Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action of the
type which it conventionally ordered in such cases as
provided in the Recommended Order below, which I find
to be necessary to remedy and to remove the effects of the
unfair labor practices and to effectuate the policies of the
Act. For reasons which are stated in Consolidated
Industries Inc., 108 NLRB 60, 61, and cases there cited, I
shall recommend a broad cease-and-desist order.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following:
RECOMMENDED ORDER
Strain Poultry Farms, Inc., its officers, agents,
successors , and assigns , shall:
1. Cease and desist from.
(a) Promulgating, maintaining, or enforcing any rule
prohibiting its employees during nonworking time from
soliciting other employees to join the Union.
(b) Promulgating, maintaining , or enforcing any rule
prohibiting its employees, when they are on nonworking
time, from distributing literature on behalf of any labor
organization in nonworking areas of Respondent's
property.
(c) Threatening its employees that if the Union wins the
election it will sell its trucks, subcontract the hauling of its
products, or release the drivers.
i i In the event that this Recommended Order is adopted by the
Board , the words " a Decision and Order" shall be substituted for
the words " the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board ' s Order is enforced by
979
(d) Granting economic benefits to its employees within
the unit above found without notification to or consultation
with the Union.
(e) Discouraging membership in the Union, or any other
labor organization of its employees, by discharging or
failing to reinstate them or in any other manner
discriminating in regard to their hire or tenure of
employment or any term or condition of employment.
(f) Refusing to bargain with the Union as the collective-
bargaining representative of the employees in the
appropriate unit.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist International Union of
District 50, United Mine Workers of America, or any other
labor organization, to bargain collectively through
representatives of their own choosing or to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
2. Take the following affirmative action:
(a) Offer to Howard Holbrook immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay
which he may have suffered by payment to him of a sum of
money equal to that which he would normally have earned
from April 29, 1966, to the date of the offer of
reinstatement , less his net earnings during said period
(Crossett Lumber Company, 8 NLRB 440), said backpay to
be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90
NLRB 289, together with interest thereon at the rate of 6
percent per annum. Isis Plumbing & Heating Co., 138
NLRB 716.
[Notify the above-named employee if presently serving
in the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.]
(b) Bargain collectively, upon request, with the Union
concerning rates of pay, wages, hours of employment, or
other conditions of employment of its employees in the
appropriate unit herein found.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under these recommendations
(d) Post at its offices and plants at Dalton and Acworth,
Georgia, copies of the attached notice marked "Appendix
B.'" I Copies of said notice, to be furnished by the
Regional Director for Region 10, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered,
defaced, or covered by any other material.
a decree of a United States Court of Appeals , the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
295-269 0-69-63
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Decision, what
steps have been taken to comply herewith.12
'Z In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the
Regional Director for Region 10, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to
comply herewith "
APPENDIX A
A talk to be given to truck drivers-not less than two
each time. Do not entertain questions for discussion
either before or after the speech.
I have called this meeting today to discuss something
which I believe to be as important to you as it is to the
Company. I am reading from a prepared statement
and the reason is to avoid any misunderstanding or
confusion. I know exactly what I want to say, so I have
written this statement. The United Mine Workers
Union has contacted the Company and wants the
Company to automatically recognize this union as
your representative, that is for our coop truck drivers,
without giving you a chance to vote in a secret ballot
election. Provided our operation is subject to the
jurisdiction of the National Labor Relations Board.
The union has the right to ask for a government-run
election, as does the Company. In such an election,
you would be asked by secret ballot whether or not
you want to be represented by this union.
Your Company is faced with this problem; do we,
1) Recognize the union now as your exclusive
representative without benefit of election or,
2) Refuse to recognize the union and leave it to you in
a secret ballot? That is the reason I have called you
together.
Before I ask for a show of hands, let me assure you no
employee will suffer reprisal or discrimination as a
result of the vote today
The sole purpose of the straw vote is to enable me to
answer the union demand intelligently-At this time I
ask for a show of hands from those who do not want
union representation, or those who want the union
question put to a secret ballot vote by the
government-Now what I mean is that all who do not
want union representation, please raise you hand and
all who want a secret ballot, please raise your hand.
Thank you.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT promulgate, maintain , or enforce any
rule which prohibits our employees during
nonworking time from soliciting their fellow
employees to join or support International Union of
District 50, United Mine Workers of America, or any
other labor organization.
WE WILL NOT promulgate, maintain , or enforce any
rule which prohibits our employees, when they are on
nonworking time, from distributing literature on
behalf of any labor organization in nonworking areas
of our property.
WE WILL NOT threaten employees that if the Union
wins the election we will sell our trucks, subcontract
the hauling of our products, or release the drivers.
WE WILL NOT grant economic benefits to our
employees without prior notification to or consultation
with the Union.
WE WILL NOT discourage membership in said
District 50, or any other labor organization of our
employees, by discharging or failing to reinstate them
or in any other manner discriminate in regard to their
hire or tenure of employment, or any term or
condition of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form, join, or'assist
said District 50, or any other labor organization, to
bargain collectively through representatives of their
own choosing or to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
or all such activities.
WE WILL offer to Howard Holbrook immediate and
full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole in
the manner provided in the Trial Examiner's Decision
for any loss of pay which he may have suffered as a
result of our discrimination against him.
WE WILL bargain collectively upon request with
International Union of District 50, United Mine
Workers of America, as the exclusive representative
of our employees in the appropriate unit concerning
rates of pay, wages, hours of employment, and other
conditions of employment.
The appropriate unit is:
All coop truckdrivers employed by us out of our
Dalton and Acworth, Georgia, operations,
excluding all office clerical employees,
watchmen, guards and supervisors as defined in
the Act.
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of the
above-named or any other labor organization.
STRAIN POULTRY FARMS,
INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the above-named employee if
presently serving in the Armed Forces of the United States
of his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
HOFFMAN BEVERAGE CO. 981
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 528 Peachtree-
Seventh Building, 50 Seventh Street, N.E., Atlanta,
Georgia 30323, Telephone 526-5741.
Hoffman Beverage Company and Hoffman
Beverage Company, Debtor in Possession
and Joseph Terry, Thomas Teaton , Arthur
Anderson , Arthur Termotto , Albert
Valentine , Michael Cardielo , William C.
Hutchinson , John J . Bryan , John J.
Dohrman , Pat Torre , Stephan Halop,
Andrew Pastor, Harry A. Unser, _Anthony
Delasandro , Anthony Angelicola , Pasquale
J. Bellino , Anthony Crispo , Michael Buona-
gura , Michael Chiaramonte , Henry Num-
ssen , Joseph Mottola, Anthony J. Capone,
Jr., Patrick S. Sheridan , Christopher
Kelly, Ragnor Nelson , Frank Sadloz
Anthony Mannino , Bernard P . Reyman,
Chester J. Kolinoski , Andrew Newman,
Anthony Radziavich , Leo J . Brzynski,
Edwin Janecki , James Merolla , Joseph
Dunican , Philip Trope , Luke P. Mullally,
Joseph Gambarini , John J. Rembiszewski,
Otto Amari , John T. Moloney, Thomas
Leonick , Edward V. O'Connor , James V.
Posa , Eugene J. Scheibing , Edward Philip
Clifford , Augustin De Bellis , Walter
Hopkins, Charles Longboat , Jr., Anthony J.
Kapela , Louis Zangrillo , Michael J. Kruk,
John Giordano , Charles S. Logerfo , Charles
Priola , Earle C. Barling , and Onofino
Castiglie . Cases 29-CA-88-1 through 29-CA-
88-46, 29-CA-88-48 through 29-CA-88-58.
April 11, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING, JENKINS, AND ZAGORIA
On February 21, 1966, Trial Examiner Sidney
Sherman issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. He also found that the Respondent had not
engaged in certain other unfair labor practices and
recommended the dismissal of such allegations.
Thereafter, the Respondent and the General
Counsel filed exceptions to the Decision and
supporting briefs. The General Counsel also filed a
reply brief and Respondent a supplemental brief.
The National Labor Relation's Board has reviewed
the rulings of the Trial Examiner made at the
hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions and the briefs, and the entire record
in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner with the modifications stated hereinafter.
1. From September 8 to 15, employees of
Respondent's Pelham Manor plant represented by
Teamsters Local 46 picketed Respondent's Long
Island City plant. The employees of the latter plant
were represented by Teamsters Local 282. The
picketing was in protest of Respondent's conduct in
closing the Pelham Manor plant after the employees
had rejected a proposal to modify the current
collective-bargaining agreement between Respond-
ent and Local 46 by substituting an incentive pay
plan for the existing hourly plan of compensation.
Many of the Long Island City plant drivers refused
to cross the picket line established by the Pelham
Manor employees and to report to work. On Septem-
ber 16, Respondent discharged those Long Island
City employees who refused, or who, it believed,
had refused, to cross the picket line.
Ordinarily it is a violation of Section 8(a)(1) for an
employer to discharge employees who join in a
strike, as for example, by refusing to cross a picket
line.' Respondent contends, however, that in this
instance the strikers' conduct was not protected
because it was in breach of the collective-bargaining
contract between Respondent and Local 282.2 The
Trial Examiner rejected this defense on three
grounds: (1) the no-strike commitment implicit in the
contract grievance-arbitration procedure is not
applicable to the present situation because the
grievance-arbitration provision is expressly limited
to disputes over the application or interpretation of
Local 282's contract and there was no such dispute
here; (2) even if there was a dispute cognizable
under Local 282's contract, the contract-grievance
procedure expressly prohibits strikes only "during
the period of arbitration," and there was no
arbitration proceeding pending here; and (3) the
contract provision giving drivers the right to refuse
to cross picket lines in making deliveries protects
the refusal of the drivers to cross picket lines at their
own employer 's premises.
We agree with the Trial Examiner's conclusion
that the Long Island City plant employees, who
refused to cross the picket line of the Pelham Manor
' Redwing Carriers , Inc and Rockana Carriers , Inc, 137 NLRB
1545, enfd sub nom Teamsters , Local Union No 79 v N L R B.,
325 F 2d 1011 (C A C ), cert denied 377 U S 905, Cooper
Thermometer Company, 154 NLRB 502
163 NLRB No. 134
I Respondent also contends that the strikers' conduct was
minority action proscribed by N L R B v. Draper Corp , 145 F 2d
199 (C A 4) For the reasons stated by the Trial Examiner , we find
this defense to be without merit