Tennessee Packers, Inc.

National Labor Relations Board - Board Decisions

Feb 23, 1966

157 N.L.R.B. 53 (N.L.R.B. 1966)

TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 53
places where notices to their employees are customarily posted. Copies of said no-
tice, to be furnished by said Regional Director, shall be signed by Respondent as di-
rected above and returned forthwith to said Regional Director for disposition by him.
(c) Notify said Regional Director, in writing, within 20 days from the date of
receipt of this Decision, what steps Respondent has taken to comply herewith.15
25 In the event this Recommended Order is adopted by the Board, this provision shall
be modified to read. "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL OUR MEMBERS, ALL EMPLOYEES OF D-LION CONSTRUCTION COM-
PANY, INC., AND To ALL EMPLOYEES OF SUBCONTRACTORS OF D-LION CONSTRUC-
TION COMPANY, INC.
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 Rela-
tions Act, as amended, we hereby give notice that:
WE WILL NOT engage in, or induce or encourage any individual employed by
D-Lion Construction Company, Inc., or by Emmett Electric Company, Inc., or
any other member of United Construction Contractors Association, or any other
person engaged in commerce or in an industry affecting commerce to engage
in, a strike or refusal in the course of his employment to handle or work on
any goods, articles, materials, or commodities, or to perform any services; or
threaten, coerce, or restrain the above-named Employers or any other employer
or person engaged in commerce or in an industry affecting commerce, where in
either case an object thereof is to force or require D-Lion Construction Com-
pany, Inc., or any other employer or person engaged in commerce or in an
industry affecting commerce, to assign electrical work on any construction proj-
ects presently in progress or which may in the future be initiated within the
territorial jurisdiction of our Union in the State of New York, to employees who
are members of or represented by our Union, rather than to employees who are
members of or represented by Industrial Workers of Allied Trades, Local 199,
affiliated with The National Federation of Independent Unions, or any other
labor organization, except insofar as any such conduct is permitted under
Section 8 (b)(4)(D) of the Act.
LOCAL 25, INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days 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, Fourth
Floor, 16 Court Street, Brooklyn, New York, Telephone No. 596-5386.
Tennessee Packers, Inc., Frosty Morn Division and Amalgamated
Meatcutters and Butcher Workmen of North America, AFL-
CIO, Local No. 405. Cases Nos. 26-CA-2083, 26-CA-2103, and
26-CA-2103-4. February 23,1966
DECISION AND ORDER
On October 26, 1965, Trial Examiner Louis Libbin issued his
Decision in the above-entitled cases, finding that the Respondent had
157 NLRB No. 7.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 De-
cision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a brief in support thereof, and the General
Counsel filed an answering 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 these cases to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
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 briefs, and the entire record
in these cases, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on April 15 and May 12 and 18, 1965, by Amalgamated Meat-
cutters and Butcher Workmen of North America, AFL-CIO, Local No. 405, herein
called the Union, the General Counsel for the National Labor Relations Board, by
the Acting Regional Director for Region 26 (Memphis, Tennessee), issued his con-
solidated complaint, dated June 24, 1965, against Tennessee Packers, Inc., Frosty
Morn Division, herein called the Respondent. With respect to the unfair labor prac-
tices, the complaint alleges, in substance, that: (1) Three named employees were
terminated because of their union and concerted activities; (2) one of the terminated
employees was refused consideration for reemployment because the Union had filed
with the Board a charge on his behalf against Respondent; (3) an additional em-
ployee was transferred to another department because of his union and concerted
activities ; (4) certain named agents and supervisors of Respondents engaged in
specified acts of interference, restraint, and coercion; and (5) by the foregoing con-
duct, Respondent engaged in unfair labor practices within the meaning of Section
8(a)(1), (3), and (4) and Section 2(6) and (7) of the Act. In its answer, as
elaborated at the hearing, Respondent denies, generally, all unfair labor practice
allegations 1
Pursuant to notice, a hearing was held before Trial Examiner Louis Libbin at
Clarksville, Tennessee, on July 19 and 20, 1965. All parties were given full oppor-
tunity to participate in the hearing On August 24, 1965, the General Counsel and
the Respondent filed briefs, which I have fully considered? For the reasons herein-
after indicated, I find that Respondent violated Section 8(a)(1), (3 ), and (4) of the
Act, as alleged in the complaint.
'After the close of the hearing, but pursuant to my request, counsel for Respondent
submitted and served on the parties a written amended answer, embodying his oral
representations at the hearings I am receiving and inserting this document in the
official exhibit folder as Respondent's Exhibit No 9.
.'The General Counsel also filed and served on the parties a motion to correct trans-
cript in one specific respect. No object thereto having been filed, said motion is hereby
granted and the document will be received and placed in the official exhibit folder as
General Counsel ' s Exhibit No. 5.
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 55
Upon the entire record 3 in the case, and from my observation of the witnesses, I
make the following-
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Tennessee corporation, maintains a plant and place of business at
Clarksville, Tennessee, where it is engaged in the processing of meat and meat prod-
ucts. During the 12 months preceding the issuance of the consolidated complaint,
Respondent sold and shipped products, valued in excess of $50,000, from its Clarks-
ville, Tennessee, plant to points located outside the State of Tennessee.
Upon the above admitted facts, I find, as Respondent admits in its answer, that
Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
If. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, the record shows, and I find that Amal-
gamated Meatcutters and Butcher Workmen of North America, AFL-CIO, Local
No. 405, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the issues
As previously noted, Respondent operates a meat processing plant at Clarksville,
Tennessee, where the unfair labor practices are alleged to have occurred. During all
times material herein, the following are admitted to be supervisors within the mean-
ing of the Act Plant Superintendent Clay Barnes, Assistant Plant Superintendent
Parker Sugg, General Manager Moore, and Foremen Roy Cipriano, Bill Dowdy,
Willie Williams, E V. McGregor, and Howard Sleigh.
The principal issues litigated in this proceeding are (1) whether Respondent was
discriminatorily motivated in violation of Section 8(a)(3) of the Act in laying off
Paul Williford and Gene Atkins, in discharging James Gough, and in transferring
Henry Bumpus; (2) whether Respondent thereafter refused to reemploy, or consider
for reemployment, Paul Williford because unfair labor practice charges in connection
with his layoff had been filed on his behalf, thereby violating Section 8(a)(4) of the
Act; and (3) whether Superintendent Barnes and Foreman Cipriano engaged in
unlawful interrogation and threats of economic reprisals in violation of Section
8(a)(1) of the Act.
B. Background
In late 1958, the United Packinghouse Workers of America, AFL-CIO, unsuccess-
fully attempted to organize the employees at Respondent's Clarksville plant. The
Board found that during this organizational campaign the Respondent engaged in
unfair labor practices violative of Section 8(a)(1) of the Act by the conduct of
Superintendent Barnes and various foremen, including Parker Sugg (124 NLRB
1117). More specifically, the Board found that Superintendent Barnes threatened
to close the Clarksville plant if the employees selected a union as their bargaining
representative; that, pursuant to Barnes' orders, Parker Sugg and other foremen
openly photographed employees who were engaged in the union activity of accepting
union literature from union organizers; that Barnes coercively interrogated employ-
ees as to their union sympathies, activities, or membership; and that Barnes selected
the employees who were granted wage increases in order to influence their votes in
an impending representation election and to discourage union membership.
The Charging Union had been attempting to organize the employees at Respondent's
Clarksville plant for a number of years. On August 24 and 25, 1962, the Union lost
a close election, to which no objections were filed (143 NLRB 494, 498). The
Board found that in connection with this organizational campaign and' election,
Respondent violated Section 8(a)(1) of the Act by the conduct of its supervisors,
including Cipriano, in coercively interrogating employees, and violated Section
8(a)(3) of the Act by discriminatorily discharging employees Ophelia Hutchinson
and Claudine Warren.4 More specifically, the Board found that Cipriano forced
8I hereby note and correct, in Appendix A [omitted from publication j, obvious errors in
the typewritten transcript of testimony.
4 143 NLRB 494, enfd 339 F. 2d 203 (C A. 6).
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Opbelia Hutchinson to quit her employment by deliberately making her working
conditions intolerable, thereby constructively discharging her, "in reprisal" for refus-
ing a request "to persuade other employees to vote against the Union" and in reprisal
for "serving as observer for the Union at the election" (143 NLRB at 512). The
Board also found that Claudine Warren "was harassed by her supervisor, Cipriano,
who by his own admission is antiunion," ever since she had testified in the prior
Board hearing that Superintendent Barnes "threatened to close the plant before allow-
ing a union into the plant," and that she was discharged by Cipriano "for her support
of and activity on behalf of the Union, and in order to discourage other employees
from such conduct in the future" (143 NLRB at 495-496).
In a subsequent Decision, the Board rejected the testimony of Superintendent
Barnes and Foreman Cipriano and found that Respondent violated Section 8(a)(1),
(3), and (4) of the Act on and after May 6, 1963, by failing to recall or rehire em-
ployees Nora Black, Shirley Holt, and Myrtle Lane, all of whom were laid off on
September 14, 1962, because of their union and concerted activities and their having
filed unfair labor practice charges and having given testimony in the prior Board
proceeding.5
On August 26, 1963, the Charging Union filed another petition with the Board
for a representation election. This election was held on September 27 and 28, 1963,
but was set aside on objections filed by the Union based on Respondent's misconduct.
Another election was held on June 19 and 20, 1964. A hearing on challenged ballots
was held on July 21 and 22, 1964. The Board found that in connection with this
organizational campaign and election, the Respondent violated Section 8 (a) (1) and
(3) of the Act (153 NLRB 1411). More specifically, the Board found a violation
of Section 8(a)(1) of the Act by the conduct of Superintendent Barnes, shortly
before the June 1964 election, in coercively interrogating an employee as to his union
activity and in implying to another employee that Respondent would grant his re-
quested loan in return for the employee's vote against the Union in the impending
election. The Board further found, rejecting the testimony of Barnes and Foremen
Cipriano and Dowdy, that Respondent violated Section 8 (a) (3) of the Act (1) by
the conduct of Cipriano in reducing the work hours of employee Helen Latta and
subsequently discharging her on July 31, 1964, in reprisal for her union activities,
including her services as a union observer at the 1963 and 1964 elections, and (2) by
the conduct of Foreman Dowdy in giving a 2-week layoff to employee Lloyd Floyd
on September 28, 1964, "in reprisal" for his "union sympathies" and in converting
the layoff to a discharge on October 12, 1964, because he had filed an unfair labor
practice charge in connection with his layoff.
On December 11, 1964, the Board finally certified the Union as the exclusive col-
lective-bargaining representative as a result of the election held in June. The Re-
spondent has admitted that at all times since December 22, 1964, it has, upon request,
refused to recognize, meet, or bargain with the Union as such representative, conduct
which the Board found violated Section 8(a)(1) and (5) of the Act. (154
NLRB 819.
C. Discrimination in hire and tenure of employment 6
The alleged conduct which gave rise to this proceeding occurred during the first
part of 1965, while, as the Board found, Respondent was continuing to violate its
statutory obligation by refusing to recognize, meet, or bargain with the Union which
had been certified by the Board.
1. Paul Williford
a. The facts
Williford was employed by Respondent from July 1961 until April 12 or 13, 1965.
He was hired as a calf skinner with 10 years' experience in that field. He was inter-
viewed by Superintendent Barnes and was hired after demonstrating his ability by
skinning a calf for Barnes. Then, when Barnes told Williford that he did not want
a union in the plant, Williford replied that he was "strongly against the union" and
spoke disparagingly about a union. He was assigned to the veal skinning department
e 146 NLRB 165, enfd. 344 F. 2d 948 (C.A. 6).
Unless otherwise indicated , the factual findings in this section are based on credited
testimony and evidence which is either admitted or undenied.
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 57
under Foreman Willie Williams at $2 an hour plus incentive based on the number of
calves skinned per hour. His base rate was about 4 or 5 cents more than the highest
paid of the four or five men already working in the department.?
Williford had previously been a member of another local of the Umon for about
10 years. A few days after he started working for Respondent, he went to Nashville,
Tennessee, where he contacted a representative of the Union, advised that he was a
former member of a Chicago local, and stated that he would do anything to help get
the Union in Respondent's plant. Because he realized that it would be to his personal
advantage to appear to be antiunion before management, Williford thereafter talked
against the Union to Barnes and other supervisors, particularly Willie Williams, his
immediate supervisor, who had also stated that they did not want a union here. How-
ever, after working hours, he visited the homes of employees to talk to them in favor
of the Union.
After Williford worked for about a year as a calf skinner, Barnes, at Williams'
suggestion, told Williford that he would be Williams' "right hand" man to take some
of the workload off Williams. He was given a raise of 2 cents per hour and was
taught by Williams to grade and tag calves and to perform some of his functions.
Although Williford was no longer skinning calves, he still continued to receive the in-
centive pay which the other calf skinners received. Whenever he was not grading or
tagging calves, he would be cleaning or splitting calves or boning veal.
As previously noted, an election with the Union on the ballot was held on Sep-
tember 27 and 28, 1963. About that time Willie Williams came into the veal skin-
ning department with a complete change of attitude toward Williford. They had
previously been close friends and had dined and gone on coffee breaks together. But
from that day Williams no longer showed any friendship to Williford and treated
him like a stranger. Williford's duties also began to change. Williford concluded
that Williams had learned of his union activities.
About 2 months before his layoff, Williford, along with other employees in his
department, openly wore a union button in the plant. At that time, he also expressed
and received from employee Gene Atkins, whom he met in the coolerroom, about
10 or 12 union buttons to distribute to other employees. Also about that time
Williford told Williams that he wanted Williams to know that he (Williford) was
working hard for the Union, and explained the benefits that all would receive from
an organized plant. Williams made no comment, but thereafter "was just a different
fellow." About a month before his layoff, Williford was no longer permitted to
grade and tag calves but was assigned back to calf skinning . Williams began to
check Williford on his breaks and would be standing in the doorway whenever
Williford came back from a break.
About 3 weeks before his layoff, Williford began bringing union literature into the
plant to distribute to employees. He brought it into the plant in envelopes hidden
under his shirt, passed it on to employees during his break or in the washrooms, and
told them to read it and to pass it on to other employees. In this manner, he gave
these envelopes to about 75 employees, and continued to distribute union literature
inside the plant up to and on the day of his layoff.
About 11:50 on April 12 or 13, 1965, Williams came to Williford and told him
that he was going to lay him off. In response to Williford's inquiry as to the reason,
Williams stated it was because business had dropped off. Williford pointed out that
this was during Lent, that during the 10 years that he had been working in this field
the veal business was very slow during Lent, that it would pick up after Easter, and
that Respondent would then be killing more calves. Williford at that time also asked
Williams about a transfer to another department, but Williams made no comment.
Williford also asked Williams why they were hiring a new employee who was at that
time in the employment office. Again, Williams made no comment. Williford asked
if Williams could tell him whether he had a chance of being called back soon because
he had the financial burdens of a house. Williams replied that he could not answer
that question because he could not predict what the business would be, and told
Williford to check with him every week or so.
7 The foregoing findings are based on Williford 's credited testimony , which was dis-
puted in only one respect . Barnes denied saying that he did not want a union in the
plant, although he admitted agreeing with Williford about some of the adverse things
Williford said about the Union. In view of the antiunion and unlawful conduct in which
Barnes engaged , as reflected in the Board Decisions previously detailed , I do not credit
Barnes' denial in this respect.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Williford telephoned Williams the Monday after his layoff and was told to keep
checking back. Williford called again the next Monday and was told by Williams
that business was still slow. The following Monday, Williford went to the plant
and spoke to Williams. Williford stated that he would appreciate being given some
idea as to whether he would be called back. Williams replied that there was not the
slightest indication that business would pick up, but again told Williford to check
back every week or so. Williford agreed to do so.
On Tuesday, May 18, 1965, the Union filed an unfair labor practice charge against
Respondent in connection with Williford's layoff. The following Monday, after the
charge had been served upon Respondent, Williford again called the plant and spoke
to Williams. In that conversation, Williams stated that it looked as though Williford
did not believe Williams' story and that "it just looks like we will have to wait and
settle it in court."
b. Respondent's defenses
At the hearing, Respondent sought to justify Williford's layoff in April on the
asserted grounds that there was a decline in the veal business and that Williford
was selected for layoff because of the difficulty to supervise him, because of his in-
difference to his work, and because he was the youngest in seniority in the veal
department. In his brief before me, counsel for Respondent gives the following
reasons: "Respondent's decline in the calf killing business necessitated reduction in
this class of worker. Although Williford's competence as a calf skinner was never
questioned, the evidence is undisputed that he was the junior man in that operation
and was no better than others so employed."
In support of its position relating to a decline in the calf killing, Respondent intro-
duced in evidence a graph chart showing the number of calves skinned during each
week from 1960 through the 17th week of 1965, which was about 3 weeks after
Williford's layoff. This chart does show a decline in 1965 from that during a com-
parable period in previous years. However, the chart also shows, as Respondent's
witnesses admitted, that in each year there was a decline during the period of Lent
and thereafter a gradual increase in the number of calves skinned. Moreover, Fore-
man Williams admitted that, as the chart also shows, there were more calves skinned
in the first, seventh and eighth weeks in 1965 than in those weeks in 1964. In
addition, the chart further shows, contrary to Williams' statement to Williford that
there was not the slightest indication of a business pickup after his layoff, a decided
and marked increase in the number of calves skinned during each of the weeks follow-
ing Williford's layoff. Indeed, by the end of the 17th week, which is as far as the
1965 graph goes on the chart, the number of calves skinned had reached the highest
mark for the year as of that time. Finally, the chart cannot be properly evaluated
to determine the merits of Respondent's defense, as it fails to show the number of
calves skinned after the 17th week and up to the date of the instant hearing. The
absence of this information seems particularly significant in view of the fact that the
graph ends with a marked increase in the number of calves skinned to its peak for
the year. In any event, the undisputed testimony shows that in some past years dur-
ing slack periods in the veal department, Respondent did not make any layoffs but
assigned maintenance work to keep the employees busy. As Williams at one time
told Williford, according to the latter's credited and undisputed testimony, Respond-
ent does not lay off men with Williford's experience in that field.
With respect to Williford's alleged shortcomings, Respondent relied primarily on
the testimony of Foreman Williams. Significantly, Superintendent Barnes did not
allege this as a reason for his selection. Thus, Barnes testified, when asked why
Williford was laid off, that it was "because of a lack of calf business and the fact
that he was younger in the department with no more skills than the remaining people
in his department. That was the only reason he was laid off." Moreover, as previ-
ously noted, Williford was paid more than any of the other calf skinners when he
was first hired, and a year later was relieved of his calf skinning duties and made
Williams' "right hand man" with a 2-cent-per-hour raise and continuance of his
incentive based on the number of calves skinned in the department. Williams testi-
fied that be decided in 1962 that Williford was not working out as his "right hand
man." Nevertheless, Williford's wages continued to be increased. If Williford was
in fact as derelict in his work performance and attitude as Williams would have me
believe, it is inconceivable to me that Respondent would not only have continued to
employ him but also have continued to pay him more than the other calf skinners in
the department and in addition have increased his base pay from $2.02 an hour in
1962 to the $2.25 per hour which he was receiving at the time of his layoff. I am
convinced and find that Williford was regarded as a skilled and capable employee
and that the asserted shortcomings attributed to him were advanced as pretexts and
afterthoughts to conceal the true motivating reason for his layoff.
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 59
While it is true that Williford had the least seniority in the department, the fact
that he was hired at, and continued to be paid, a higher rate than any of the other
calf skinners, would attest to his greater skill and proficiency in this task. In addi-
tion, Williford was an all-around calf skinner and boner and also had some experi-
ence in tagging and grading calves. Respondent contended that it applied seniority
only where all other, factors were equal. Williford's case did not meet the test for
the application of seniority to him.
c. Concluding findings
I find that Respondent's asserted reasons for laying off Williford in April 1965
were not the true motivating reasons. Barnes admitted that he saw Williford wear-
ing his union button and that prior to that time Williford had always talked against
the Union. Williams' attitude toward Williford changed when he was informed that
Williford was openly and actively promoting the Union. He changed Williford's
duties and began to check him closely on his breaks. It was during such breaks
and in the washroom that Williford distributed the union literature in envelopes to
about 75 employees during his last 3 weeks, including the very day of his layoff.
Without any prior warning or notice, he was summarily laid off during Lent when a
production decline was customary in the past, contrary to Respondent's practice
in some previous years of assigning other tasks for the employees in the veal depart-
ment during slack periods, and without waiting to see if production would increase
after Easter as it had in the past. Although the record is replete with examples of
Respondent's transfer of employees to other departments and although new employ-
ees were in fact hired in other departments after Williford's layoff, his request for a
transfer to another department was ignored. During the weeks that Williford called
back after his layoff, he was informed by Williams that there was not the slightest
indication of a business pickup despite the fact that Respondent's own exhibit, pre-
pared by Williams, shows a decided increase in the number of calves skinned after
Williford's layoff. Finally, after Respondent was informed of the unfair labor prac-
tice charge filed on Williford's behalf in connection with his layoff, Williams informed
Williford that there was no need for him to call any more and that his case would
be settled in court.
Upon consideration of all the foregoing, considered in the light of Respondent's
other and similar 8 unfair labor practices found by the Board in prior decisions, I am
convinced and find that: (1) on April 13 or 14, 1965, Respondent laid off Williford
in reprisal for his activities in support of the Union; (2) in any event, even accept-
ing Respondent's defenses as to the decline in the veal and calf skinning business
which would warrant a layoff and as to Williford's work performance and seniority
status, the decision to lay off Williford at that time was primarily motivated by anti-
union considerations; 9 and (3) beginning with May 24, 1965, Respondent refused to
consider Williford for reemployment because he had caused unfair labor practice
charges to be filed against Respondent. By the foregoing conduct, Respondent
violated Section 8(a)(1), (3), and (4) of the Act.
2. Gene Atkins
a. The facts
Gene Atkins was employed by Respondent from December 1961 until his layoff
in May 1965. He started working in the smoked meats department, at various times
performing such functions as pressing bacon both on the night and day shifts, helping
the girls with their supplies, operating the packaging machine, doing the setups on
the machine, and working in the ham room. On July 17, 1964, he was transferred
to the beef kill department where he first worked on gut buggies, taking the entrails
from the kills to the tankage room when they were classed as edible and to the offal
table when they were classed as inedible. For about the last 6 months of his em-
ployment, his job in the beef kill department consisted of weighing the cattle, shroud-
ing the lower half, and pushing them into the cooler.
8 As previously noted, the Board found that Lloyd Floyd was laid off on September 28,
1964, for 2 weeks "in reprisal" for his "union sympathies" and was then discharged on
October 12, 1964, for "having filed an unfair labor practice charge" in connection with
his layoff. The Dow Chemical Company, 152 NLRB 1150.
0 See, e.g., N.L.R.B. v. Austin Powder Company, 350 F. 2d 973, 976 (C A 6).
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after his transfer to the beef kill department in July 1964, Atkins became
interested in the Union and attended all union meetings. At one of the meetings
held early in 1965, he was selected a member of the negotiating committee. At this
meeting he also received about 50 to 60 union buttons for distribution to other
employees. Atkins was the first employee in the beef kill department to wear a union
button openly during working hours at the plant. For about,2 weeks after he put
the button on, he was the only one of the approximately 25 employees in the beef
kill department who wore a union button. The button was openly and clearly dis-
played on his white cap which was part of the uniform worn during working hours.
He distributed the remaining buttons to other members of the negotiating committee
and to other employees, giving about 10 to 12 to Paul Williford in the coolerroom for
distribution to the employees by Williford. Atkins continued to wear his button
until about 2 weeks before his layoff, removing it when other employees in the beef
kill took theirs off.
About a month before his layoff, Atkins was called to Superintendent Barnes'
office in connection with some cattle which had been weighed incorrectly. He was
wearing his union button at that time. During the course of the conversation, Barnes
asked Atkins why he was wearing the button Atkins replied that it was to express
his opinion. Barnes stated that if Atkins "would keep his damn nose out of the com-
pany's business" he "would be all right." When Atkins asked what Barnes meant
by "company business," Barnes made no reply. About 2 or 3 weeks before his lay-
off, Atkins was called into Barnes' office again. Barnes asked Atkins if the Govern-
ment inspectors had ever tried to influence him in regard to the Union. When Atkins
replied in the negative, Barnes accused him of being evasive. At this time Barnes
warned Atkins "to keep his nose out of the Union business" and he "would be all
right." Barnes also accused Atkins of "influencing other employees." Atkins denied
the accusation, explaining that he had to talk to other employees because he was on
the negotiating committee.10
On April 28, 1965, a Board Trial Examiner found that Respondent had laid off
Lloyd Floyd "in reprisal for his union sympathies" and thereafter discharged him
"for having filed an unfair labor practice charge." The Trial Examiner recom-
mended that the Board order the reinstatement of Floyd to his former or substantially
equivalent position.
On Monday, May 3, 1965, Barnes called Atkins into his office, informed him that
the Board had ruled against the Company in Floyd's case and stated that Atkins
was being laid off to make room for Floyd. About May 7, Atkins received a regis-
tered letter, signed by Barnes, which stated that Floyd had not reported for work
on May 4 as he had promised, that Respondent was laying Floyd off until May 17,
1965, as a disciplinary measure, and that Atkins could report for work again on Mon-
day, May 10, but only until Floyd's return, as Respondent had no need for two
cattle scalers. Atkins thereupon returned to his former job on May 10 and worked
until he was laid off again on May 14. At the time of his second layoff, Assistant
Superintendent Sugg told Atkins that he would be contacted in the same manner if
he would be needed again. However, when Floyd permanently quit on June 24,
1965, Respondent filled the job by transferring Henry Bumpus from the hog kill
department instead of recalling Atkins.
io The findings in this paragraph are based on the credited testimony of Atkins . Barnes
denied having made the statements set forth in the text, except that he admitted having
asked Atkins if the Government inspectors had ever talked to him about the Union. He
also admitted having seen Atkins wear a union button. Atkins had testified that during
the first conversation Manager Moore, Foreman Dowdy, and "I believe" Assistant Super-
intendent Sugg were also present Sugg testified that he was not present on that
occasion. Moore and Dowdy admitted being present but denied that Barnes said anything
about Atkins' union "affiliation" or "association " While Atkins was not certain, and
may have been mistaken, as to the presence of Sugg during the first conversation, his
demeanor on the witness stand, unlike that of Respondent's witnesses, convinced me that
his remaining testimony should be credited. Contrary to Respondent's assertions in its
brief, there is nothing in Atkins' testimony concerning what he could or could not observe
in connection with Gough's work, which compels a different conclusion His testimony
in that respect was substantially in accord with that of employee Bumpus, a credible
witness who testified under subpena while still employed by Respondent.
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 61
b. Respondent's defenses
Barnes testified that it was decided to lay Atkins off in May in order to comply
with the Trial Examiner's recommendation to reinstate Floyd, as Atkins at that time
was weighing cattle which is the job Floyd had at the time of his discriminatory dis-
charge in September 1964. Barnes further testified that it was his decision not to
call Atkins back on June 24, 1965, when Floyd quit permanently , and that Atkins
was not offered any other job.
In its Decision of June 28, 1963, the Board found that Respondent selected em-
ployees for layoff on the basis of plantwide seniority applied to the employees of
the affected department , and that the controlling date was the date when the em-
ployee first began to work at the plant , except where the employees had been laid
off for more than 30 days, in which case it was the date of recall [143 NLRB 494,
504, enfd . 339 F. 2d 203 (C.A. 6)]. Superintendent Barnes and other witnesses for
Respondent admitted that Respondent 's layoff system and practice has always been
and has continued to be the same.
The record shows that at the time of Atkins' layoff there were about seven em-
ployees in the beef kill department who had less seniority than Atkins . Indeed,
employees Hendon and Horn were hired after Atkins had already been transferred
to the beef kill department , with Horn being hired only about 2 months before
Atkins' layoff.
Barnes attempted to explain the retention of these employees with less seniority
by claiming that Atkins had not been trained and was not qualified to do their work.
However, Barnes admitted that no prior experience or training was required of these
employees when they were first hired and that they were hired "green" and trained
on the job. The record further shows that the performance of jobs in the beef kill
required very little time to learn , required little or no training , and required no
previous experience . As previously noted, Atkins had already performed several
types of jobs both in the beef kill and smoked meat departments . Barnes finally
had to admit that Atkins could have performed the work at least of some of the
employees with less seniority who were retained. The contention that Respondent
does not follow a practice of "bumping," is refuted by Barnes' admission that there
is practically a daily transfer , reassignment , interchange , and use of employees in all
different jobs and departments throughout the plant. And the contention that the
rate of pay was also taken into consideration , is refuted by Barnes ' admission that at
least two of these employees were receiving approximately the same rate as Atkins.
But apart from all the foregoing considerations , it is clear that none of Respond-
ent's contentions have any applications to its failure to recall Atkins to the job of
weighing cattle when Floyd quit that job permanently on June 24, 1965. At that
time, Bumpus was working in the hog kill department . Atkins had already had con-
siderable experience in that job , certainly much more than Bumpus . To have re-
called Atkins would have required no "bumping" and no transfer for Bumpus.
Instead, Respondent transferred Bumpus from the hog kill department to the job
which Floyd vacated and which Atkins had previously performed and presumably
made other arrangements to take care of the job performed by Bumpus , prior to his
transfer . Except for Barnes' testimony that "we didn 't have the need of him (Atkins)
right at that time," Respondent gave no explanation as to why it went through these
maneuvers rather than recall Atkins.
c. Concluding findings
I am convinced and find that Respondent's asserted reasons for laying off Atkins
in May and not recalling him in June 1965 were not the true motivating reasons.
Barnes admitted that he became aware of Atkins' union activities when the latter
was wearing a union button at the plant. About a month before the layoff, Barnes
interrogated Atkins as to why he was wearing the union button , and then warned
Atkins to keep his nose out of the Company's business . As Atkins was in no way
injecting himself into the Company 's business and as Barnes failed to answer Atkins'
query as to what Barnes meant by that phrase, I can only conclude, as I do, that in
its context it had reference to the Union . A few weeks before Atkins' layoff, Barnes
interrogated him as to whether the Government inspectors had influenced him in
regard to the Union. When Barnes received a negative reply, he warned Atkins
that he would be "all right" if he kept his nose out of the union business , and accused
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Atkins of influencing other employees in regard to the Union. In denying the accusa-
tion, Atkins disclosed his membership on the negotiating committee and the contin-
ued need for his talking to other employees in this capacity. Thereafter, Atkins
failed to keep his nose out of the union business. Seizing upon the Trial Examiner's
reinstatement order with respect to Floyd, Barnes made good his previous threat to
Atkins for not keeping his nose out of the union business.
Upon consideration of all the foregoing, considered in the light of Respondent's
other discriminatory and unlawful layoffs and terminations previously found by the
Board, I am convinced and find that Respondent's conduct toward Atkins was moti-
vated by antiunion considerations and that Atkins was selected for layoff in May
1965 in preference to other employees in the same department with less seniority
and was not recalled in June 1965 when a vacancy occurred in his former job in
reprisal for his continued activities in and support of the Union.11 By such conduct,
Respondent discriminated with respect to the hire and tenure of employment of
Atkins in violation of Section 8(a) (3) and (1) of the Act.
3. James Gough
a. The facts
James Gough was employed by Respondent from September 1955 until his dis-
charge on April 27, 1965. He worked in the cattle kill department, removing the
offal in loaded buggies from the kill floor to the tankage room There he emptied
the buggies, put the guts into the hatch, ground the feet, and loaded the cookers. He
had also performed hog kill and cattle kill cleanup jobs. About 2 months before his
discharge, Gough was assigned the additional duty of removing hides from the kill
floor to the tankage room and there loading them on trucks. Previously, the hides
had been dropped down a chute or hole in the middle of the room where they were
disposed of by employees on the first floor. But as a result of the installation of
modernized equipment, the hides were dropped on buggies located on the kill floor.
When the buggies were full they were then pushed by Gough to the tankage room
where he loaded them on trucks. All of this work was in addition to the work Gough
had always been doing and continued to do. McGregor was Gough's foreman
during the last 3 or 4 years of his employment.
Gough began wearing a union button about the time when he was assigned the
additional duty of removing the hides, and continued to wear it every day until about
a week and a half prior to his discharge. He was the first Negro employee in the
hog and cattle kill departments to wear a union button openly during work, and he
put it on when the white employees in the department started wearing their union
buttons. About 10 Negro employees worked in each of these 2 departments, which
consisted of 1 large room separated by a partition. During the course of his work,
Gough was required to move about through the cattle and hog kill department and
could readily be seen wearing his union button by these other employees. Both
McGregor and Barnes admitted seeing Gough wear a union button.
After Gough began wearing his union button, Foreman McGregor constantly
criticized his work. About a week and a half before his discharge, Gough and the
other union-button-wearing employees in his department decided to remove their
buttons in the hope that that would alleviate Gough's working conditions.
On April 22, 1965, Gough told McGregor that he was unable to keep up with the
work and needed some help. McGregor replied that Gough would have to keep it
up or be replaced by someone who would. At McGregor 's suggestion , they went to
see Superintendent Barnes in the latter's office. McGregor first spoke to Barnes
while Gough waited outside the office. When Gough was called in, he explained to
Barnes that they were killing cows so fast that he could not handle everything him-
self and needed a little help once in a while to get out of these "pinches." When
Barnes pointed out that Gough had been doing it in the past, Gough agreed but
explained that now with the additional assignment of the hides he was unable to
handle all of it. Gough also complained about the buggy which needed to be fixed
11 As previously noted, the Board rejected the testimony of Superintendent Barnes
and found that Respondent violated the Act on and after May 6, 1963, by failing to recall
or rehire three employees, who were laid off in September 1962, because of their union
and concerted activities and for having filed unfair labor practice charges and having
given testimony in a prior Board proceeding.
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 63
because it would not roll. Barnes told McGregor to have the buggy fixed, and
stated that he did not believe this situation would last too long because they were in
the process of putting in new equipment. Gough then left and returned to work.ia
Gough's first duty each day was to remove the offal from the floor and get it to
the tankage room for disposal and cooking. This was a requirement of the Gov-
ernment inspectors; for, if the offal piled up on the floor, the Government inspectors
would order the kill line to be shut down. It was therefore necessary for Gough to
remove the offal before working on the hides.
On the morning of April 27 Gough was kept busy with the offal-removing duties
and had not been able to work on the hides by about 10:30 or 11. McGregor came
over and asked Gough if he was going to get to the hides. Gough did not refuse to
work on the hides; he explained that he was doing the best he could and that he did
not have time to get to the hides because he was kept busy with his offal-removal
duties. McGregor went downstairs, came back in a few minutes, and discharged
Gough.13
Gough was replaced by Cleve Long, a Negro employee who was known to be a
nonsupporter of the Union but who admittedly wore a red or "company" button at
the plant.14 Beginning with the last week or two prior to the instant July hearing, all
the wheelbarrow or buggy work, formerly performed by Gough, was eliminated, and
since then that work has been done by conveyers installed during the changeover in
equipment. As a result, Long has been "relieved of practically all of his duties."
However, he is still employed to work in the tankhouse although he admittedly does
not have much to do.
b. Respondent's defenses
Respondent contends that Gough was discharged for refusing to do the work, and
the notation of his separation slip states "refusal to do the job." This had reference
to.Gough's failure to work on the hides on the morning of his discharge. Barnes
testified that McGregor made the decision, in which Barnes acquiesced, to discharge
Gough.
However, as previously found, (1) McGregor did not tell Gough that he was being
discharged for refusing to do his job, and (2) Gough did not in fact refuse to work on
the hides but merely explained that he was doing the best he could and had not yet
had time to get to the hides because he was still busy with his offal-removing duties.
Respondent admits that if the offal overflowed the buggies and piled up on the kill
floor, the Government inspectors would have the kill line shut down. The unreli-
ability- of McGregor's testimony is further underscored by his contradictions with
respect to the incident of April 22, as described in footnote 13, supra.
Considerable testimony was adduced by Respondent to show that Gough had
frequently been given help on the floor in his offal-removing duties. Gough admitted
that he had received such help but testified that it was only on those occasions when
the inspectors were threatening to shut the kill floor down because the offal was piling
up. On the other hand, the credible testimony of Atkins and Henry Bumpus shows
that Long, who replaced Gough, was also helped by other employees at different times
on the kill floor as well as in the tankhouse.15 In any event, the fact remains that,
12 The findings in this paragraph are based on the credited testimony of Gough. Mc-
Gregor testified that Gough told him not only that he could not keep up but that
he would not even try to keep up. I credit Gough's denial that he said he would not try
to keep up. Barnes testified that before talking to Gough, McGregor told Barnes that
he wanted to fire Gough. However, McGregor testified that before he and Gough went
to Barnes' office, he told Gough that he did not want to and was not going to fire him,
and that his reason for telling this to Gough was because "I didn't have any reason to
fire him as long as he was trying to do his job." The conversation between Gough and
Barnes is essentially not in dispute
13 The findings in this paragraph are based on the credited testimony of Gough. Mc-
Gregor testified, and Gough denied, that Gough .stated he was not going to empty any
hides and that McGregor stated he was replacing Gough because he was refusing to do
his job or to try to do his job. I do not regard McGregor as a credible witness and
credit Gough' s denials.
14 The union buttons worn by Gough and the other employees were blue
is I do not credit the testimony of McGregor and Long that the latter was helped only
when the tankhouse was full and not on the kill floor Indeed, Respondent's own witness,
Jeff Johnson, testified that he helped Long and that "most of the time," but not all the
time, this occurred when the tankhouse was full.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
despite Gough's plea on the morning of his discharge that he needed help in order
to get to the hides, he was discharged allegedly for refusing to work on the hides
instead of being given some help.
The pretextuous nature of Respondent's asserted reason for discharging Gough, an
employee of almost 10 years' service, is also demonstrated by its tactic in resurrecting
a number of minor alleged derelictions, dating back to July 1964, despite the fact that
these admittedly did not enter into the decision to discharge him. Thus, Respondent
introduced a number of printed reprimand slips, signed by McGregor and indicating
some dereliction, slips which Respondent admitted it had never shown to Gough and
had never informed him that they would be put in his personnel file.16 Aside from
the fact that these slips date back to July 1964 and end with February 16, 1965,
more than 2 months before Gough's discharge, both Barnes and McGregor admitted
that as late as April 22 they had no reason and did not want to discharge Gough as
long as he was trying to do his work, despite their full awareness at that time of all
these reprimand slips.
c. Concluding findings
I am convinced and find that Respondent was not truly motivated by its asserted
reason for discharging Gough, an employee of almost 10 years' service. Gough was
the first Negro employee to wear a union button openly at work in the hog and cattle
'kill departments. In the course of his work, he came in contact with a considerable
number of other Negro employees in these departments. Both McGregor and Barnes
admitted seeing Gough wear his union button. Coincidental with his commencement
to wear a union button, McGregor began to criticize him constantly about his work,
so that all the employees in the department decided to remove their buttons shortly
before his discharge in an effort to relieve Gough of this criticism. On the morning
of April 27 McGregor seized upon Gough's attention to his primary and required
offal-removing duties which kept him from getting to perform the extra hide work
which had been assigned to him during the last 2 months and, instead of giving him
some requested help with the offal work, summarily discharged him. Although
Gough had never refused to work on the hides but had merely pleaded with Mc-
Gregor for some help with his offal-removing duties so as to enable him to get to the
hides, McGregor thereafter asserted that Gough was discharged on the obviously
erroneous and pretextuous ground that he had refused to perform his work. Barnes
aquiesced in the decision to discharge McGregor, although he knew at that time that
most of Gough's offal-removing functions would soon be eliminated, as in fact it
was by the time of the instant hearing, by the new equipment then in the process of
being installed. Gough was then replaced by Long, a Negro employee known by
Respondent to be a nonsupporter of the Union because he openly wore a red or
"company" button at work. Thereafter, Long was given help on the kill floor at
different times and by the time of the instant hearing was employed in the tankroom
with very little to do because the changeover in equipment had eliminated the wheel-
barrow or buggy work formerly performed by Gough.
Upon consideration of all the foregoing in the light of Respondent's unfair labor
practices, I am convinced and find that in discharging James Gough Respondent was
truly motivated by antiunion considerations, including a desire to rid itself of a Negro
employee who openly displayed his support for the Union while coming in contact
with the other Negro employees in the kill departments and to discourage such other
Negro employees from supporting or expressing support for the Union. By such
conduct, Respondent discriminated with respect to the hire and tenure of employ-
ment in violation of Section 8 (a) (3) and (1) of the Act.
4. Henry Bumpus
a. The facts
Bumpus was employed by Respondent on April 9, 1962, and worked under Roy
Cipriano, who was the foreman over the smoked meats which include the bacon,
lard, ham, and the lunch meat and wiener rooms. During the first 2 months, he
worked exclusively in the ham room. Then he also started to help out in the lunch
meat and wiener room and finally began working there full time.
160f the 10 slips introduced into evidence, most of them recorded a failure to punch
in or out promptly or talking to an employee for a short period during working hours.
As to some of the other alleged infractions , Gough credibly testified that he had rendered
a satisfactory explanation on the occasions in question . However , none of these explana.
tions appear on the slips.
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 65
In January 1965 Bumpus began wearing his union button at work openly on his
white coat. He was the only employee in the lunch meat and wiener room to wear
a union button. After Bumpus began wearing his union button at work, Foreman
Cipriano came up and said to him, "I see you finally came out in the open about
this thing." Cipriano then further commented that "I don't know why. It's your
business if you want to wear that thing but I don't know why you wanted to put it
on. I wish you would give me one reason why you put it on." Cipriano also added
that he could sympathize with Bumpus' family plight before he put the button on
but he could not now.17 Cipriano admittedly was aware that Bumpus had a son who
needed open heart surgery.
Shortly after Bumpus started to wear his union button, he began to receive criti-
cism about his work from Cipriano and his assistant, Glenn Fenneman. On one
occasion Cipriano told Bumpus that he was not keeping his work up, that he had
never kept it up right since he had been there, and that he would have to keep it up
right. On another occasion on February 25, 1965, Bumpus was helping employee
Martha Brumley pack wieners and they were both speculating about whether the
other girls would be able to get to work because of the snow. Superintendent Barnes
and Cipriano were in the far end of the room watching them. Barnes called out to
Bumpus, "Hey, boy, come over here, I want to talk to you a minute." When Bumpus
came over, Barnes stated in the presence of Cipriano, "Don't you ever let me catch
you going around yaking with these people anymore. If I do, I am going to fire you,
and don't say nothing smart to nobody about it." This was the first time that
Bumpus had ever been reprimanded for talking. However, he was wearing his union
button on this occasion. On the other hand, Martha Brumley, who was lust as guilty
of talking as Bumpus, was not wearing a union button and was not reprimanded.
Before he started wearing his union button, Bumpus would usually work a half
day on Saturday. When there was no Saturday work available in his own room, he
usually worked in the lard room. However, after he started wearing his union
button, his Saturday work was cut out.
Bumpus had started working for Respondent at $1.25 per hour and after about 3
months received a raise of about 71/2 cents per hour. On March 11, 1965, he was
informed of his immediate transfer to the cattle kill department without any explana-
tion being made to him as to the situation causing his transfer. At that time Bumpus
was receiving $1.85 per hour in the wiener and lunch meat room plus incentive and
overtime. After 2 days, he was again transferred to the hog kill department, where
he replaced Hugh Smith who in turn was transferred to another job in the hog kill.
At that time, the hog kill was at its lowest production in many years. Of the approxi-
mately 20 employees then working there, all but a few were working less than 40
hours a week. All but one of the small group which worked 40 hours or more had
never worn a union button; whereas, all those whose hours were below 40 wore union
buttons.18 Bumpus received $1.85 an hour in the bog kill. However, as a result of
the reduction in his hours and the elimination of his incentive, his earnings were
reduced by almost 50 percent.
In the hog kill department Bumpus weighed the hogs as they came off the chain.
He had to pull three hogs across the scale before he could write a weight down. He
also had to stamp each hog in six different places with two stamps. Then, he would
push the hogs into the cooler and space them so that they would not touch each other.
Due to the physical requirements of the job and the strenuous nature of the work,
Bumpus lost 30 pounds within the first 3 months of his employment in the hog kill
department.
On June 24, 1965, when Lloyd Floyd permanently quit his job on the scales of the
cattle kill department, Bumpus was transferred to the job vacated by Floyd, a job
which he was still occupying at the time of his testimony in the instant hearing.
17 The findings in this paragraph are based on the credited testimony of Bumpus, who
was still employed by Respondent at the time of his testimony under subpena in this
proceeding. Cipriano admitted asking Bumpus how he thought he could better himself
financially and provide for his family better with a (union organization . On cross-
examination , he admitted that be also may have said that "I see you finally came out in
the open," and that he referred to Bumpus ' sick child . He denied questioning Bumpus
about his union activities or desires and denied making the statement about no longer
being able to sympathize with Bumpus ' family, although he admitted knowing about
Bumpus' sick child . Cipriano did not impress me as a credible witness by his demeanor
on the witness stand . Under all the circumstances , I do not credit Cipriano to the
extent that his testimony conflicts with that of Bumpus set forth in the text.
is Based on the credited testimony of Hugh Smith.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Respondent's defenses
As previously noted, Foreman Cipriano was in charge of four separate rooms
known as the bacon, lard, ham, and lunch meat and wiener rooms. Although
Respondent at the hearing referred to these rooms as separate departments, Cipriano
admitted that employees under his supervision, including Bumpus, were used inter-
changeably in all of these rooms as the need arose.
Respondent contends that, as a result of a study of the operations in the lunch
meat and wiener room, a rearrangement was instituted which made the operations
more efficient and dispensed with the need of one employee. Assistant Superin-
tendent Sugg testified that Bumpus was selected for transfer because he allegedly
could not operate the slicing machine. However, Cipriano testified that Bumpus
was selected because he had no knowledge of how to run the flex-vac machine. Yet,
he had to admit that Bumpus may have operated the machine in the past. In addi-
tion, they stated that Bumpus had less seniority than the other male employees in the
room. However, Cipriano admitted on cross-examination that Dwight Lutton, an
employee under his supervision, had less seniority than Bumpus and was retained in
smoked meats. In addition, he also admitted that he never saw Lutton wear a union
button and that Lutton might have been wearing a red or "company" button. Fur-
thermore, two employees, Don Cherry and Victor Clevinger, were hired to work
under Cipriano after Bumpus was transferred.
Respondent's Exhibit No. 6 shows the number of hours worked by the employees
in the lunch meat room before and after Bumpus' transfer. This exhibit shows that
for the most part the four employees remaining after Bumpus' transfer continued to
work overtime and that the hours previously worked by Bumpus accounts for the
reduced total number of hours worked each week after his transfer. However, the
exhibit does not show that Victor Clevinger, a schoolboy hired after Bumpus' trans-
fer, spent about 3 hours a day doing the cleanup work which Bumpus had done in
the lunch meat room. Nor does it show the number of hours spent by employees
Ken Dowby, Don Cherry, Gilbert Durham, Ann Bryant, and Blamont, employees
under Cipriano's supervision who admittedly were assigned at different times to the
lunch meat and wiener room where they performed work which Bumpus had done
prior to his transfer. Thus, the exhibit cannot be given any weight in evaluating the
merits of Respondent's defense.
c. Concluding findings
I am convinced and find that Respondent was not truly motivated by its asserted
reasons for transferring Bumpus. Bumpus was the only employee under Foreman
Cipriano's supervision who openly wore a union button at work. After Bumpus
started wearing his union button, Cipriano accused him of finally coming "out in the
open about this thing"; interrogated him as to the reason for wearing it; and stated
that now he could no longer sympathize with Bumpus' family plight, having reference
to the operation which Bumpus' sick child needed. Thereafter, Cipriano began to
criticize Bumpus' work, accusing him of never having kept his work up right. The
disparate treatment which began to be accorded to Bumpus is emphasized by the
previously found incident in which Bumpus for the first time was reprimanded-for
talking to a fellow employee while nothing was said to the latter, although equally
guilty but who, unlike Bumpus, was not wearing a union button. About 2 weeks
later, Bumpus was summarily transferred, without explanation for his selection, to a
department where there was much less work available while two new employees and
four others under Cipriano's supervision were at various times assigned to do work
which Bumpus had performed prior to his transfer.
When all the foregoing is considered in the light of Respondent's other flagrant
unfair labor practices and particularly the conduct of Cipriano in coercively inter-
rogating, harrassing, discharging, failing to recall, and reducing the workhours of
employees because of their activities in support of the Union, as found in previous
Board decisions, I am convinced and find that the rearrangements in the lunch meat
and wiener room was a stratagem which was used as a pretext to transfer Bumpus
in reprisal for his open support of the Union and that Bumpus' transfer to the kill
departments was in fact motivated by antiunion considerations. By such conduct,
Respondent discriminated with respect to the terms and conditions of employment of
Henry Bumpus in violation of Section 8(a)(3) and (1) of the Act.
D. Interference, restraint, and coercion
I find, as the General Counsel contends, that the following previously fourid con-
duct of Superintendent Barnes and Foreman Cipriano, considered in the circum-
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 67
stances and setting in which it occurred as well as in the light of Respondent 's other
unfair labor practices , constitutes interrogation and threats of reprisals proscribed
by Section 8(a)(1) of the Act:
1. Barnes' interrogation of Gene Atkins as to why he was wearing a union button.
2. Barnes' warnings to Atkins that he would be all right provided he kept his nose
out of the "company business" or the "Union business."
3. Cipriano 's interrogation of Henry Bumpus as to his reason for wearing a union
button , coupled with his statement that now he could no longer sympathize with
Bumpus' family plight.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connection
with the operations of Respondent described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic , and commerce among the several
States, and tend to lead - to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices , I shall
recommend that it cease and desist therefrom and take certain affirmative action
which will effectuate the policies of the Act.
Having found that Respondent violated the Act by laying off Paul Williford and
thereafter refusing to consider him for reemployment , by laying off Gene Atkins and
thereafter failing to recall him , by discharging James Gough , and by transferring
Henry Bumpus , I shall recommend that Respondent offer each one immediate and
full reinstatement to his former or substantially equivalent position , without prejudice
to his seniority or other rights and privileges , and make each whole for any loss of
earnings he may have suffered as a result of the discrimination against him , by pay-
ment to him of a sum of money equal to that which he normally would have earned
as wages from the date of his layoff, discharge , or transfer , as the case may be, to
the date of Respondent 's offer of reinstatement , less his net earnings during such
period, with backpay and interest thereon to be computed in the manner prescribed
by the Board in F. W . Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
The record shows that some of the duties performed by Gough have been elim-
inated by the installation of new equipment , and that his remaining functions were
performed at the time of the instant hearing by Cleve Long, Gough's replacement.
It would appear therefore that Gough would have occupied Long's position in the
absence of any discrimination against him . In any event , I shall recommend that if
the same or a substantially equivalent position does not exist because of equipment
changes, Gough should be reinstated to the position he would have had but for the
discrimination against him.
Because of the character and scope of the unfair labor practices herein found, I
shall recommend that, in order to effectuate the policies of the Act, Respondent cease
and desist from in any other manner interfering with, restraining , and coercing
employees in the exercise of their rights guaranteed by Section 7 of the Act.19
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. Amalgamated Meatcutters and Butcher Workmen of North America, AFL-
CIO, Local No. 405, is a labor organization within the meaning of Section 2(5)
of the Act.
2. By discriminating with respect to the hire and tenure of employment of Paul
Williford, Gene Atkins, and James Gough, and with respect to the terms and condi-
tions of employment of Henry Bumpus , thereby discouraging membership in the
above-named labor organization, the Respondent had engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3) of the Act.
3. By refusing to consider Paul Williford for reemployment because he had caused
unfair labor practice charges to be filed , the Respondent has engaged in and is en-
gaging in unfair labor practices in violation of Section 8(a)(4) of the Act.
4. By the foregoing conduct and by the conduct of Superintendent Barnes and
Foreman Cipriano , detailed in section III, D , supra, Respondent has interfered with,
. •i
16 N.L:R.B. v. Entwistle Mfg. Co., 120 F 2d 532, 536 (C A. 4)
221-374-66-vol. 157-6
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restrained, and coerced its employees in the exercise of their Section 7 rights and
thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I hereby recommend that Respondent, Tennessee
Packers, Inc., Frosty Morn Division, Clarksville, Tennessee, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf of Amalgamated Meat-
cutters and Butcher Workmen of North America, AFL-CIO, Local No. 405, or any
other labor organization, by discriminatorily discharging, laying off, transferring, or
refusing to recall employees, or by discriminating against them in any other manner
in regard to their hire and tenure of employment or any term or condition of
employment.
(b) Refusing to employ or to consider for employment anyone because of
having filed unfair labor practice charges or having caused such charges to be filed.
(c) Interrogating employees as to their reasons for wearing union buttons or for
their union attitudes, interests, and support, in a manner constituting interference,
restraint, and coercion within the meaning of Section 8(a)(1) of the Act.
(d) In any other manner interfering with, restraining, or coercing employees in the
exercise of their right to self-organization, to form, join, or assist the above-named
or any other labor organization, to bargain collectively through representatives of
their own choosing, to engage in 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 which is necessary to effectuate the policies
of the Act:
(a) Offer to Paul Williford, Gene Atkins, James Gough, and Henry Bumpus
immediate and full reinstatement to their former or substantially equivalent positions,
and in the case of Gough to the position he would have had but for the discrim-
ination against him if his former or a substantially equivalent position no longer
exists because of equipment changes, without prejudice to each one's seniority or
other rights and privileges, and make each whole for any loss of earnings he may
have suffered as a result of the discrimination practiced against him, in the manner
set forth in the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available Ito the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine
the amount due as backpay.
(c) Notify any of the above-named employees presently serving in the Armed
Forces of the United States of their 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.
(d) Post at its plant in Clarksville, Tennessee, copies of the attached notice marked
"Appendix B." 20 Copies of said notice, to be furnished by the Regional Director for
Region 26 (Memphis, Tennessee), shall, after being duly signed by authorized
representatives of the Respondent, be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by said Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Notify the said Regional Director, in writing, within 20 days from the date of
this Decision, what steps the Respondent has taken to comply therewith.21
° 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 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".
21In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director , in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
BEN DUTHLER, INC. 69
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 Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of Amalga-
mated Meatcutters and Butcher Workmen of North America, AFL-CIO, Local
No. 405, or in any other labor organization, by discriminatorily discharging,
laying off, transferring, or refusing to recall employees, or by discriminating
against them in any other manner in regard to their hire and tenure of employ-
ment or any term or condition of employment.
WE WILL NOT refuse to employ or to consider for employment anyone be-
cause of having filed unfair labor practice charges or having caused such charges
to be filed.
WE WILL NOT interrogate employees as to their reasons for wearing union
buttons or for their union attitudes, interests, and support, in a manner consti-
tuting interference, restraint, and coercion within the meaning of Section 8 (a) (1)
of the Act.
WE WILL NOT threaten employees with any economic reprisals because of
their continued union activities, interest, or support.
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 the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities.
WE WILL offer immediate and full reinstatement to Paul Williford, Gene At-
kins, James Gough, and Henry Bumpus, without prejudice to their seniority or
other rights and privileges, and make them whole for any loss of earnings each
has suffered as a result of the discrimination against him.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named or any other labor organization.
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-Notify any of the above-named employees presently serving in the Armed
Forces of the United States of their 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 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, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone
No. 534-3161.
Ben Duthler, Inc. and Retail Store Employees Union Local No.
20, Retail Clerks International Association, AFL-CIO
Family Foods, Inc. and Retail Store Employees Union, Local No.
36, Retail Clerks International Association, AFL-CIO. Cases
Nos. 7-C.4-4911,17-RC-6430, and 7-CA-4934. February 24, 1966
DECISION AND ORDER
On September 20, 1965, Trial Examiner John H. Funke issued his
Decision in the above-entitled proceeding, finding that the Respond-
157 NLRB No. 3.