Tennessee Packers, Inc.

National Labor Relations Board - Board Decisions

Oct 12, 1965

155 N.L.R.B. 206 (N.L.R.B. 1965)

206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tennessee Packers, Inc., Frosty Morn Division and Amalagamated
Meat Cutters and Butcher Workmen of North America, AFL-
CIO, Local No. 405. Case No. 26-CA-1955. October 12, 1965
DECISION AND ORDER
On March 22, 1965, Trial Examiner Boyd Leedom issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had not
engaged in the unfair labor practices allgged in the complaint, and
recommending that the complaint be dismissed in its entirety, as set
forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Examiner's Decision
and a supporting brief.
Pursuant to the provisions of Section 3(L) 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 [Chairman McCulloch and Members Fanning and Jenkins].
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 General Counsel's exceptions and brief, and
the entire record in the case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.
[The Board dismissed the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was tried in Clarksville , Tennessee , before Trial Examiner Boyd Leedom
on February 1 and 2, 1965. The original charge was filed October 20, 1964, and the
amended charge , October 23, 1964. The complaint is dated November 27, 1964.
The sole issue is whether the Respondent violated Section 8(a)(3) of the Act when
it discharged its employee Wallace Hester. Respondent is a meat processor. It
admits that it knew of Hester's past union activity when he was discharged . Thus the
ultimate and only question is whether the discharge was discriminatorily motivated.
No briefs have been filed. Upon the entire record, and my observation of the
demeanor of the witnesses, it is recommended that the complaint be dismissed for
all the reasons hereinafter set forth.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I find as facts the allegations of the complaint as to the nature and extent of
Respondent 's business , admitted by the answer , and therefore conclude that , within
the meaning of the Act, Respondent is an employer engaged in commerce and in a
business affecting commerce ; and also find and conclude that , the Union named in
the caption is a labor organization , which is also conceded.
The Union has sought , without success , since 1952 to organize Respondent at the
plant where employee Hester worked . In connection with these organizational
efforts the Board has found Respondent in violation of the Act in several respects
as reflected in the cases reported at 124 NLRB 1117, 143 NLRB 494, and 146 NLRB
165. I take official notice of these cases but consider them only as background in
connection with the issues presented in this case.
155 NLRB No. 22.
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 207
Whether Respondent violated the Act in the discharge of the employee Hester
depends on inferences to be drawn from the evidence adduced . As in nearly all
such cases as this, there is no direct evidence of discriminatory motivation in the
discharge.
The evidence shows that the employee Hester had done various jobs on a hog
processing line. Much of such evidence was offered, as I understand the purpose,
to establish that his performance on the line was no worse than other employees
about whom Respondent made no serious complaint and who were not discharged.
This evidence and effort in behalf of the General Counsel's case , however , becomes
quite inconsequential inasmuch as employee Hester admitted that he was not able
to cope with the job from which he was finally discharged ; i.e., the removal of
entrails from the carcass , a two-stage operation ; and could not perform another job
discussed with him just prior to his dismissal , that of "trimming butts." The decisive
question in the case, as previously indicated , reduces to this: Did Respondent with
a discriminatory intent transfer Hester into a job, believing he could not perform it,
just to establish his incapacity and thereby create a reason for his discharge ? Related
to this is the question whether the other job discussed with Hester before his dis-
charge, that is the job of "trimming butts," was mentioned knowing that he could
not perform it, as a coverup , so to speak , for a discriminatory motivation prompting
the Respondent 's action with respect to him.
The facts and circumstances that tend to sustain an inference that the discharge
was discriminatory are as follows: ( 1) As revealed by the Board 's decisions herein-
before cited , this Respondent and certain of the managerial personnel involved in
the other cases and also in this one, have been found to have had union animus and
discriminatory intent with respect to adverse action involving other employees, (2)
the Respondent admits knowledge of the employee Hester's rather substantial activity
in behalf of the Union . His latest open union activity occurred in July when he
testified in a Board hearing on objections to an election within the plant. Hester's
discharge occurred in October of the same year, 1964, (3) Hester had been in the
employment of Respondent since August 29, 1957, more than 7 years when he was
discharged , ( 4) he had held one job at the scalding tub for approximately 5 years
and had performed the work there acceptably insofar as the evidence discloses, and
(5) the job to which he was transferred and from which he was discharged, was one
of the hardest on the line.
The foregoing circumstances raise suspicions as to Respondent 's motivation, and
must account for the issuance of the complaint.
The facts and circumstances that support the inference that Hester was discharged
for good and sufficient reason are as follows: ( a) the hog slaughtering operation
involved a continual interchange of employees among the various jobs to be per-
formed. Hester was involved over the years in various such changes so that a trans-
fer for him was not a new experience , ( b) Hester, early in his employment , had been
engaged in "one half' of the job from which he was discharged . This previous
experience was in removing entrails from the hogs. The other "half" of his final
job, at which he had no previous experience , was making the cuts necessary to release
the entrails from the body, (c) Respondent changed its operation involving the
processing of hogs a few months before Hester's discharge and his new assignment
was incidental to this change , and (d ) the immediate cause for the transfer was an
accident in which the employee regularly performing the job to which Hester was
assigned , one James Nix, cut his hand . If Hester had worked out satisfactorily in the
new assignment he would have been kept on it on a more or less permanent basis,
with Nix, the most skilled man in the department, moving about as a kind of utility
man.
This case does not present the usual credibility problem of deciding which of two
conflicting stories is true. The problem here rather has to do largely with testimony
of the three witnesses called by the Respondent, Clay Barnes, Howard Sleigh, and
Parker Sugg, not controverted by testimonial evidence. Their stories are essentially
consistent If they told the truth the discharge of Hester was justified. If they lied,
their testimony presents a pretext typical of many 8(a) (3) cases. I credit their testi-
mony on all crucial points , those points relating to recitals (a) through ( d) above,
and the findings that follow.
Thus I find and conclude that the changes made in Respondent 's operations were
made for the reasons given by the witnesses Barnes and Sleigh; also that they trans-
ferred Hester to the job from which he was fired for the reasons they gave in their
testimony ; and thus that Hester 's discharge was not discriminatorily motivated.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I also find and conclude that when Foreman Sleigh asked Hester if he thought he
could trim butts satisfactorily , this was a good-faith exploration into the possibilities
of finding another place to use Hester , and that Hester closed such possibilities with
his negative reaction.
While Hester had worked a long time at the scalding tank, he had been off of that
lob for a considerable time and it was adequately filled by another employee whose
capacity insofar as the evidence shows could have been limited or especially suited
to that task The coincidence of Hester 's transfer on the day following his appear-
ance at the Board hearing loses significance in the light of the fact that the employee
Nix's accident required an immediate transfer of someone into the job. I credit the
testimony that Hester 's past experience made him a likely substitute.
I find and conclude that Hester 's performance at various jobs to which he had been
assigned ranged between unsatisfactory and mediocre and that Respondent was not
required to make one or more transfers of other employees suitably assigned in order
to find a place for an employee of Hester 's qualifications.
It is concluded that the General Counsel 's burden of proving a case by a prepon-
derance of the evidence , fails as to motivation . The union animus of the earlier cases
cannot be made an essential factor of an unfair labor practice in this case ; and such
circumstantial evidence as there is bearing on motivation , does not overcome the
positive , credited testimony of the Respondent 's three witnesses.
The unhappy history of labor disputes in Respondent 's Clarksville plant has
undoubtedly given some of its management people much practice in the art of testi-
fying persuasively . But in this history of cases their testimony has been found credi-
ble in some instances . To illustrate , in the case at 143 NLRB 494, the witnesses
Barnes and Sleigh testified . Neither Trial Examiner Sidney S. Asher , nor the Board,
discredited their testimony in any substantial part. In this case they, and the witness
Sugg as well , testified forthrightly , and related plausible, highly believable stories.
It is unfortunate that all the energies expended by all the parties in this litigation
and the numerous previous cases have not been directed into more productive chan-
nels. As was said by a former distinguished Trial Examiner and member of the
Board, Stephen S. Bean, in a style typically his and in language unanimously affirmed
by the Board . "The way to industrial peace and prosperity is not found paved with
litigious stumbling blocks on suspicion of malign intent whenever an already chastened
employer, once called to account for having slipped over the metes and bounds of
fair practice , thereafter exercises his legitimate managerial prerogatives ." Becker-
Durham, Inc., 132 NLRB 1131, 1136.
A recent court decision , N.L.R B. v. Park Edge Sheridan Meats, Inc., 341 F. 2d
725 (C.A. 2 ), has language virtually echoing the language quoted above from Becker-
Durham. Park Edge dealt with a situation somewhat different than the instant case,
but also similar in some respects . It involved a Board decision with a dissent of
decided discernment , and the interesting , incisive initial decision of Charles W.
Whittemore . The court said that the Respondent there "ought not be viewed as
having such a propensity for sin that every episode is given the worst interpretation,
or be condemned by indiscriminate repetition of the phrase that its conduct "must
be assessed against the background of its earlier unfair labor practices ...."
RECOMMENDED ORDER
It is recommended that the complaint be dismissed.
General Electric Company and International Brotherhood of
Electrical Workers , Local 1198 , AFL-CIO. Case No. 9-CA-
3109. October 13, 1965
DECISION AND ORDER
On March 10, 1965, Trial Examiner Samuel M. Singer issued his
Decision in the above -entitled proceeding , finding that Respondent had
not engaged in unfair labor practices as alleged in the complaint, and
155 NLRB No. 24.