Tennessee Packers, Inc.

National Labor Relations Board - Board Decisions

May 27, 1966

158 N.L.R.B. 1192 (N.L.R.B. 1966)

1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tennessee Packers, Inc., Frosty Morn Division and Amalgamated
Meat Cutters & Butcher Workmen of North America, AFL-
CIO, Local No . 405. Case No. 26-CA-2166. May 27, 1966
DECISION AND ORDER
On January 28, 1966, Trial Examiner William F. Scharnikow
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 [Alembers Fanning, Brown, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby aaflirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
In the present case, a complaint and an amended complaint were issued by the
Regional Director for Region 26 upon charges and amended charges of unfair
labor practice filed by Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, Local No. 405 ( herein called the Union ), against Tennessee
Packers, Inc., Frosty Morn Division (herein called the Respondent ).' In sub-
stance, the amended complaint alleges, but the answer of the Respondent denies,
that on or about June 16 , 1965, the Respondent engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and ( 3) and Section
2(6) and ( 7) of the National Labor Relations Act, as amended , 29 U.S.C., Sec-
tion 151, et seq . ( herein called the Act), in that , in order to retaliate against its
employees and to discourage membership in the Union , the Respondent laid off
employee Ann Schuff and told her and other employees who also were being laid
off, that "their layoff was for the reason that the Respondent was ordered by [a]
Federal Court to reinstate [ certain ] other employees."
Pursuant to notice , a hearing was held in Clarksville , Tennessee, on Novem-
ber 23, 1965 , before Trial Examiner William F. Scharnikow duly designated by
the Chief Trial Examiner . The General Counsel and the Respondent appeared
by counsel and the Union by its representative , and were afforded full opportunity
to be heard , to examine and cross examine witnesses , and to introduce evidence
1 The Union 's original charge was filed and served upon the Respondent by registered
mail on July 28, 1965, and its amended charge was filed and served on August 2, 1965.
The original complaint was issued by the Board ' s Regional Director and served by registered
mail on the Respondent on September 16, 1965. The amended complaint was issued and
duly served on October 21, 1965.
158 NLRB No. 114.
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 1193
upon the issues . Since the hearing , I have received and considered briefs sub-
mitted by the General Counsel and counsel for the Respondent.
Upon the entire record in the case, and from my observation of the witnesses,
3 make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , a Tennessee corporation , maintains a plant and place of busi-
ness in Clarksville , Tennessee , where it is engaged in the processing of meat and
meat products . During the 12 months preceding the issuance of the amended
complaint herein , the Respondent , in the course and conduct of its business opera-
tions, sold and shipped from its Clarksville , Tennessee , plant , products of a value
in excess of $50 ,000 directly to points located outside the State of Tennessee. I
find that the Respondent is an employer engaged in commerce within the meaning
of the Act and that it will effectuate the policies of the Act to entertain jurisdiction
of this case.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated ' Meat Cutters & Butcher Workmen of North America , AFL-CIO,
Local No. 405, is a,labor organization within the meaning of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. The basic position of the General Counsel
On June 16, 1965, the Respondent laid off employees Ann Schuff and Margaret
Herndon , replacing them at their jobs on the wiener packaging line with two other
women employees . At that time , Plant Superintendent Clay Barnes and their
immediate foreman , Roy Cipriano , told both Schuff and Herndon in substance
that, under the terms of a circuit court decree enforcing a Board order against
the Respondent ,2 the Respondent was required to reinstate employees Nora Ann
Black, Shirley Holt, and Myrtle Lane (whom it had previously laid off ) to their
former positions on the wiener packaging line, and that , since Schuff and Herndon
had been doing the work of two of the reinstated women and the Respondent did
not have enough work for all of them, it was forced to lay off both Schuff and
Herndon.3
Each of the two women laid off , had longer continuous service in the Respond-
ent's employ than any of the three reinstated employees and, in accordance with
the Respondent 's practice , would normally have been entitled to superior retention
rights in an economic layoff.4 Furthermore , a comparison of the respective periods
of unbroken plantwide service of each of these five employees with those of other
employees who were retained on June 16, 1965, in what the General Counsel con-
tends were substantially equivalent packaging jobs on the lunch meat packaging
2N.L.R .B. v Tennessee Packers , Inc., 344 F. 2d 948 (C.A. 6), enfg. 143 NLRB 494.
8It is undisputed that this was, In substance , the explanation given to the two women
who were laid off Superintendent Barnes did not testify whether he had explicitly stated
these reasons to the women or, for that matter, whether he said anything to them He
did testify , however, that these were the reasons for his laying them off Schaff testified
that Barnes told her and Herndon: "Well , girls , it looks like I ' m going to have to lay
you off . . . We got a court order down on these girls [ Black , Holt , and Lane] to
put them back to work on their old jobs, and you have them , and we are going to have
to lay you off and put them back to work." She later testified that Barnes also told
them that "he was going to have to let [Schuff and Herndon ] go . . In order to put
[Black, Holt , and Lane ] back to work" and refereed to the fact that "Kroger 's [a food
chain] had cancelled all orders ." Neither Herndon nor Foreman Cipriano appeared as a
witness.
4 For comparative summaries of the plantwide seniority of the five employees and other
packaging employees , see the next two footnotes. According to the Respondent's practice,
as shown by the evidence , and found by the Board in two earlier unfair labor practice
cases against the Respondent , plantwide service unbroken by more than a 30-day inter-
ruption determined seniority retention rights in the event of a layoff in any particular
department . ( 143 NLRB 494 , 504, enfd. 339 F. 2d 203 ( C.A. 6) ; and also 146 NLRB at
167, supra.) It is to be noted, however , that the Board did not find that the Respondent's
established seniority practice ruled out its primary consideration of other factors obviously
relevant to a selection for layoff , such as comparative skills , experience , or efficiency In
particular operations,
J194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-line as well as the wiener packaging line, raises questions as to why some of the
five were not placed in these other jobs, displacing junior incumbents either on the
wiener line 4 or , on the lunch meat line.6 Thus, of the four employees (in addition
to Black, Holt, and Lane) who continued to work on the.wiener packaging line
on and after June 16, 1965, Herndon had greater plantwide seniority than two of
-them (Durham and Brumley); and Schuff had greater seniority than one (Brumley).
And of the four employees on the lunch meat line (none of whom were laid off),
.Herndon had greater seniority than all four; Schuff had greater seniority than
three; and Black, Holt, and Lane had greater seniority than the sole male employee
on the line.
In any event, Herndon was rehired only 2 or 3 days after her layoff on June 16,
1965, and the complaint does not allege that her layoff was an unfair labor prac-
tice . But it was not until September 27 or 28 that Schuff was also rehired. - In
her case, Superintendent Barnes first proposed to her on September 20, that she
-start again as a new employee but, upon her insistence , then agreed in a letter
'which he mailed to her on September 23, that she could return to her "old job"
on September 27 "on the same basis as you were when you were laid off."
It is Schuff's 3-month layoff which the complaint alleges was discriminatory and
motivated by an intent to discourage membership in and support of the Union.
The essence of counsel for the General Counsel's position in support of the com-
plaint, is expressed by her contention in the General Counsel's brief, that "The
Respondent utilized the Court Decree to retaliate against employees because the
processes of the National Labor Relations Board had been invoked and to impress
upon its employees the consequences upon them when such processes were used."
To sustain this position, the General Counsel relies upon (1) the normal effect
of the explanation given by Superintendent Barnes to Herndon and Schuff for their
layoffs; (2) a strong, persistent antiunion attitude on the part of the Respondent,
which is shown by the Board's findings in a series of previous unfair labor practice
cases against the Respondent ; ( 3) clear indication of the continuance of this atti-
lude provided by an incident involving Foreman Cipriano and employees Black and
Lane on May 17, 1965, before Black and Lane were fully reinstated under the
Board's Order and the court's decree; (4) a departure of the Respondent from its
ordinary seniority practice, in selecting Herndon and Schuff for layoff on June 16,
1965 , rather than other junior employees on the wiener and lunch meat packaging
lines; and (5) the fact that it was Schuff 's testimony against the Respondent in
,one of the previous unfair labor practice cases which supplied the basis for the
Board's Order and the court 's decree compelling the Respondent 's reinstatement of
Black, Holt, and Lane.
B. Development of the General Counsel's position
At the request of the General Counsel, I agreed at the hearing in the present
-case to take notice of the Board' s decisions and findings in previous cases affecting
the Respondent and its employees at its Clarksville, Tennessee , plant. Overall,
they present a general history of the material events attending the Union's organiza-
6 The relevant comparisons of plantwide service of the logical competitors for the con-
tinuing wiener packaging jobs, as shown in part by the Board 's decision in one of the
preceding unfair labor practice cases ( 143 NLRB at 504) as well as by stipulation of
counsel in the present case, are the following:
1. Charlene Lewis----------------------------------------------- 10/2/51
2. Villa Dial---------------------------------------------------- 12/8/52
3. Margaret Herndon -------------------------------------------- 4/21/53
4 . Buford Durham----------------------------------------------- 9/21/53
3. Ann Schuff--------------------------------------------------- 4/6/55
6. Martha Brumley---------------------------------------------- 4/25/55
7. Nora Ann Black----------------------------------------------- 3/23/59
8. Shirley Holt------------------------------------------------- 4/27/59
D. Myrtle Lane------------------------------------------------- 6/6/60
It appears from a stipulation in the present case , that on June 16, 1965, the following
four employees were working on the lunch meat line and none were laid off
1. Pearl Harrison----------------------------------------------- 6/1/53
2. Virginia Groves ----------------------------------------------- 2/1/58
3. Mary Lynn Pulley- ------------------------------------------- 3/31/58
4. Johnny Farrar----------------------------------------------- 8/17/60
TENNESSEE PACKERS, INC., FROSTY MORN= DIVISION 1195
lion- of these employees which began in -1958. Furthermore, in two of these
cases the Board has already considered the Respondent's earlier layoff and failure
-to recall the same three employees whose eventual reinstatement, compelled by a
court decree enforcing -one of the Board's Orders, the Respondent now contends
justified its layoff of Schuff and Herndon on June 16, 1965.
There were two representation proceedings.. In an election conducted by the
Board on January 9 and 10, 1959, in the first of these proceedings, the Union
failed to secure a majority of the employees' votes, a fact which the Board certified
•on June 19,. 1959. (123 NLRB 1755.) However, in a Board election held on
June 19 and 20, 1964, in the second representation proceeding, the Union attained
-the necessary majority vote and the Board, on December 11, 1964, certified that
fact and the status of the Union as exclusive -bargaining representative of an
appropriate unit consisting of the Respondent's Clarksville production and mainte-
nance employees. (Case No. 26-RC-2030.)
The instant unfair labor practice case is also presented to the Board against a
background of its own findings and-remedial orders in six previous unfair labor
practice cases based upon events which took place at the Clarksville plant between,
and since, the two representation elections? In each of these six cases, the com-
plaint was issued by the General Counsel against' Respondent upon charges filed by
-the Union. In only one of these cases did the Board dismiss the complaint in its
entirety.8 Although the Board also dismissed a number of the allegations of the
complaints in several of the remaining five cases, in each one of these cases it
issued a remedial order against the Respondent upon findings of substantial unfair
labor practices. From the Board's findings, it thus appears that during the last
6 years the Respondent (acting to a great extent through Superintendent Clay
Barnes and Foreman Roy Cipriano) has continually committed unfair labor prac-
tices directed against the Union's organization and representation of the Respond-
•ent's Clarksville employees by threatening to close its plant, by photographing
employees as they engaged in union activity, by interrogating employees concern-
ing their union involvement and sympathies, by granting wage increases to influence
-employees against voting for or otherwise supporting the Union, by discriminatorily
-discharging employees, by discriminatorily failing and refusing to recall employees
from layoff, and finally, by refusing to bargain collectively with the Union follow-
ing its certification by the Board as the exclusive bargaining representative of its
production and maintenance employees .9 Furthermore, in the only two of the
7.4 seventh consolidated unfair labor practice case is now before the Board for review
of Trial Examiner Louis Libbin's Decision in Cases Nos 26-CA-2083, 26-CA- 2103, and
26-CA-2104. Because the Board has not yet issued its decision therein, these cases
furnish no ultimate Board findings to which any weight or significance may now be given
by me in deciding the instant case. -
8155 NLRB 206, in which the Board issued its Decision dismissing the single unfair
labor practice allegation of the complaint, that the Respondent bad discriminatorily dis-
,charged one of its employees
0124 NLRB 1117: The Board's Decision was is-ned on October 8, 1959, and found
unfair labor practices consisting of threats of plant closure, overt surveillance through
the Respondents' photographing the employees' union activities, interrogation, and the
grant of wage increases to influence employees against the Union, all of which occurred
In 1958.
143 NLRB 494: The Board issued its Decision on June 28, 1963, finding that the Be-
-spondent had committed unfair labor practices by discriminatorily discharging two employ-
ees in September and October 1962 The Board, however, dismissed allegations of the
complaint that the Respondent had also discriminatorily discharged two other employees
and discriminatorily laid off three more.
146 NLRB 165: The Board issued its Decision in this case on February 27, 1964, finding
that the Respondent, since May 1963, had discriminatorily failed and refused to recall the
three named laid-off employees referred to in the immediately preceding Decision.
153 NLRB 1411: The Board issued this Decision on July 16, 1965, finding that the
Respondent had committed unfair labor practices through interrogation of its employees
-and the discriminatory discharge of two employees in July and October 1964 But the
Board also dismissed allegations of the complaint that the Respondent had discriminatorily
discharged a third employee.
154 NLRB 819: The Board issued its Decision in this case on September 3, 1905, finding
that on and since December 22, 1964 , the Respondent has unlawfully refused to bargain
with the Union as certified exclusive bargaining representative following the Board elec-
tion conducted on June 19 and 20, 1964 , in Case No. 26-RC-2030.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's Decisions submitted for judicial review, the Court of Appeals for the
Sixth Circuit has recently affirmed the Board's findings and issued its decrees
enforcing the Board's orders in full.10
These two cases in which the court has already affirmed the Board's action,
related first to the original layoff of employees Nora Ann Black, Shirley Holt, and
Myrtle Lane on September 14, 1962, and then to the Respondent's failure to recall
them on and since May 6, 1963. In the first case, adopting the relevant sections
of its Trial Examiner's Intermediate Report in full, the Board found that, because
of slackening in work, the Respondent had reduced the number of employees in
its wiener packaging line from 10 to 5, by laying off the 5 employees on the
line (including Black, Holt, and Lane) who had the least plantwide seniority. The
Board therefore held that these layoffs on September 14, 1962, were economically
motivated and not discriminatory nor violative of the Act, and noted, as an indica-
tion of the Respondent's good faith, the assurance given by it in its answer to the
complaint and in its witnesses' testimony, that the three laid off employees were
"subject to recall when production . . . improves." (143 NLRB 494, 502-506.)
But in the second case, again adopting its Trial Examiner's Decision in full,ii
the Board held that the Respondent's failure to recall Black, Holt, and Lane on
and after May 6, 1963, was discriminatory and therefore an unfair labor practice
within the meaning of Section 8(a)(3) and (1) of the Act, because the Respond-
ent, despite its assurance of their recall given in the previous case, had in the mean-
time either hired new employees or recalled junior laid off employees for four
interchangeable jobs in the Respondent's packaging operations under Foreman
Cipriano, which Black, Holt, and Lane had all performed for substantial periods
during their employ by the Respondent. As the Board found, two of these similar
or equivalent available jobs from which the Respondent improperly excluded the
three women in spite of their seniority rights, were jobs packaging hams in the
smoked meat room, and the other two jobs were on the wiener package line which
was located in another room with a lunch meat packaging line. In reaching this
conclusion, the Board and its Trial Examiner credited and relied upon Ann Schuff's
testimony that "the work performed by [two male, interim employees on the
wiener packaging line] was the same as that formerly done by Holt, Black, and
Lane." (146 NLRB at 169.)
In accordance with its findings in this second case, the Board ordered the
Respondent to offer to the three employees it had laid off on September 14, 1962,
"immediate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privileges previously
enjoyed ..." (146 NLRB 165, 175.) In its opinion issued on May 4, 1965, the
Court of Appeals for the Sixth Circuit affirmed the Board's findings and issued its
decree enforcing the Board's Order. (344 F. 2d 948.) Then, by letter to the
Respondent's Counsel dated June 11, 1965, the Board's Regional Director requested
compliance with the court's decree, including the posting of a compliance notice,
the reinstatement of the three employees "to their former positions," and a sub-
sequent report of the dates of reinstatement and "whether [the three employees]
were reinstated to the positions they held at the time of their discriminatory
discharge."
On June 15, the Respondent's plant manager signed the compliance notice to its
employees which had been furnished by the Regional Director, and posted it on
the bulletin board of the Clarksville plant. With respect to reinstatement, the
notice assured the employees that the Respondent would "offer to Nora Ann Black,
Shirley Holt, and Myrtle Lane, immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to their seniority or other
rights and privileges previously enjoyed ..."
Both because it had needed their services and in order to "cut down" its back-
pay liability under a possibly adverse decision by the court, the Respondent had
already recalled each of the employee beneficiaries of the Board's and the court's
decree, but as new employees without the benefit of their previous seniority rights.12
Thus, in December 1964, Holt had been recalled to a job in the smoked meat room
where she continued to work until June 16, 1965. And on May 10, 1965, Black
and Lane had also been recalled to work. At first, Black and Lane worked on
10 N.L R.B. v. Tennessee Packers, Inc., 339 F. 2d 203, enfg. 143 NLRB 494; N.L.R.B.
v. Tennessee Packers, Inc., etc., 344 F. 2d 948, enfg. 146 NLRB 165.
11146 NLRB 165.
12 Superintendent Barnes testified that the reasons stated in the text were the reasons
for his rehire of these three employees before June 15, 1965.
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 1197
"odds and ends," i.e., cutting and packaging bologna on a table alongside the lunch
meat line. Within a few days, they were switched to packing frankfurters in 10-
pound boxes under an Army contract. On May 17, Lane hurt her back, was
unable to, come back to work until the end of June, and therefore was not work-,
ing on either June 15 or 16. Shortly after May 17, Black was switched to pack-
aging wieners and was still working on the wiener packaging line on June 16.
Lane's injury on May 17, 1965, was the result of her attempt to comply with
Foreman Cipriano's orders. On that morning, Black and Lane were packing the
Army frankfurters in the 10-pound boxes and then placing these boxes in a
60-pound wooden box. Cipiiano told them to pack the wooden boxes on their
table and then instructed Black to lift the wooden boxes off the table and stack
them on a float, a task normally done by men who were working on jobs nearby.
Black objected, because of an injury to her back which she had suffered in an auto-
mobile accident. Cipriano, obviously referring to testimony in the preceding unfair
labor practice case, said "it's been stated, you all have made a statement, that you
did men's work. This is man's work. Now do it." He then turned to Lane, asked
her whether she had also been in a "wreck," and when she said "No," he instructed
her to handle the 60-pound boxes. Upon attempting to comply, Lac hurt her
back, and was unable to continue. Cipriano then called several other employees
together and had Lane repeat three times before them that she was unable to do
"that job." Foreman Cipriano did not testify and I have credited the uncontra-
dicted testimony of Black and Lane.
If more were needed than Black's and Lane's uncontradicted and credible testi-
mony, Cipriano's intention to show Black, Lane, and the other employees the
Respondent's resentment and reluctance to comply with the Board's reinstatement
order and the possible uncomfortable consequences of the employees' resort to a
charge before the Board, is further clearly shown by the tenor of counsel for the
Respondent's cross-examination of Black. By this cross-examination, counsel
attempted to show an inconsistency between Black's testimony in the present case
and her testimony in the earlier case in which the Board, crediting her testimony
and incidentally also that of Schuff, held that the work of two men employees it had
hired on the weiner packaging line was the same as that which had been done by
Black, Holt, and Lane. Not only does the Respondent's counsel clearly indicate by
this cross-examination the significant relation between Cipriano's action and the
Respondent's continuing persistence in attempts to discourage the employees' sup-
port of the Union and their reliance upon the protection afforded their activities
under the Act and the Board's processes; but the cross-examination also failed to
develop any inconsistency in Black's testimony. For the excerpted questions and
Black's answers from the prior proceeding with which counsel confronted her,
related to work other than the handling of the 60-pound boxes which Cipriano
ordered her and Lane to lift and carry on May 17. One further comment should
be made about the May 17 incident and the conclusions I have drawn therefrom.
Counsel for the Respondent objected to Black's and Lane's testimony as to this inci-
dent and, in his brief, now contends that he "purposely did not fully litigate" this
and other issues. But I overruled his objection at the hearing and took the evi-
dence. I reaffirm my ruling that the evidence was relevant to the issues in the pres-
ent case and reject the Respondent's contention that, because he did not choose to
"fully litigate" the matter, no findings should be made and no conclusions should
be drawn from the relevant evidence received.
On the morning of June 16, the day following the Respondent's posting of the
compliance notice under the court's decree there were six employees (all women)
who were actually then at work on the wiener packing line, including Margaret
Herndon and Ann Black. In the same room, there were four employees (three
women and a man) working on the lunch meat packing line, and also Ann Schuff,
who had been temporarily taken from the wiener packing line a few days before,
and put at work cutting and packing the "odds and ends." On this particular morn-
ing, Superintendent Barnes and Foreman Cipriano transferred Holt from the
smoked meat room to the number 1 position on the wiener packing line, the posi-
tion she had held when she was laid off in 1962. To make room for Holt, Black
was shifted from the number 1 position on which she was then working and dis-
placed Margaret Herndon in the number 2 position in which Black had apparently
worked in 1962. Nothing of course, was done on,this morning with respect to
Lane's position since she was still on sick leave from the wiener packing line as the
result of her injury. Nor were any.df the four people on the lunch meat line laid off.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having made its moves involving Holt and Black , Superintendent Barnes and
Foreman Cipriano immediately laid off Margaret Herndon and Ann Schuff , telling
them , in substance , as I have already noted , that they were being replaced by Holt
and Black because the court 's decree compelled the reinstatement of these two
employees to their old jobs and there was not enough work for all the girls on the
wiener packing line. According to Schuff , in telling them of the drop in work,_
Barnes said that "Kroger 's had cancelled all orders."
C. The Respondent 's explanation and defense
The Respondent 's explanation of Herndon 's and Schuff 's layoffs was presented at
the hearing through the testimony of Superintendent Barnes. In substance , Barnes
testified that on June 16 he believed it necessary to lay off two employees because
of a reduction of work in the Respondent's packaging operations, and that he chose
Herndon and Schuff as the employees to be laid off because they were doing the
work of Black and Holt whose full reinstatement and retention were compelled by
the court 's decree.
With respect to the various packaging jobs throughout the plant which the Gen-
eral Counsel contends were substantially equivalent and interchangeable , Barnes
testified that the amount of work available and being performed by four employees
on the lunch meat line continued at the same level, but that the amount of actual'
and anticipated packaging work in both the smoked meat room and on the wiener
packing line, had dropped . Thus, he testified that on June 16, Holt was transferred
back to her original job on the wiener packing line because she was no longer
required in the smoked meat room where she had been working, and that as a'
matter of fact her job there has not been filled. As to the wiener packaging line,
Barnes testified that , because of a space limitation and the number of operations.
entailed, six was the maximum number of employees who could work there-Le ,
two employees on peeling machines, two on packing machines , one on a packaging
or sealing machine, and one on a pack-off table-but that , a few days before June
16, cancellation of a wiener contract by Kroger 's in the expectation of a strike at
Kroger's, had reduced the work on the line so that only five girls were required.
This was the cancellation to which Schuff testified Barnes had referred when he laid'
her off, and according to Schuff, the Kroger contract had involved the daily packing,
of 400 packages of wieners . It is true, as Barnes admitted , that the Kroger strike
did not occur and that the Respondent resumed its packaging for Kroger several
days after Herndon and Schuff were laid off . But, as Barnes further testified, he-
then immediately recalled Herndon who was Schuff 's senior in plantwide service..
Since the substance of the foregoing testimony of Barnes as to the work and num-
ber of packaging jobs available on June 16 , 1965, was not contradicted , I credit it.
It thus appears that, with the retention or "reinstatement" of Black, Holt, and Lane
under the court's decree in their "former positions," the Respondent had two more
packaging employees on June 16 than its current needs warranted , and that a layoff
of two employees was therefore economically justified.
But this still leaves the question of why Barnes selected Herndon and Schuff to
be laid off rather than junior employees on either the wiener packing or the lunch
meat lines into whose "substantial equivalent positions" either Herndon or Schuff
(or for that matter, also Black or Holt) might have been shifted in full compliance
with both the court 's decree and the Respondent 's established seniority practice.
With respect to this question , Barnes testified that Herndon and Schuff "were doing
the packing on the packing machine. They had been assigned that job, and had
been on it for some time. Black and Holt had done the work when they were laid'
off in 1962 . The way I interpreted the court decree was that they were to be put
back on the same job, even if it meant laying off some one." Even so, according to'
Barnes, he did consider , but rejected , the alternative permitted by the decree, i.e.,
reinstating Black and Holt in substantially equivalent jobs, because, as he explained,
"I didn't have any thing that would warrant these extra employees at that time, and
even not today. .
Barnes testified , however, that he did not consider any of the jobs on the lunch.
meat line as being substantially equivalent to those on the wiener packing line, nor
subject to any rule of departmental seniority which would benefit employees on the
wiener packing line, because the lunch meat line "is a separate operation." In my
opinion and for the reasons as which I shall set forth , both of these explanations
given by Barnes for not displacing any of the lunch meat employees rather than
Herndon or Schuff , are not unreasonable and are credited.
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 1199,
As the Board held in each of the two preceding unfair labor practice cases relat-
ing to Black, Holt, and Lane, the Respondent's seniority practice, though based on,
plantwide seniority, is operative only within a department. (143 NLRB at 504; 146.
NLRB at 168 ) Approving the language and reasoning of its Trial Examiners, the
Board referred in the first of these cases to the "wiener packaging department."
(143 NLRB at 494;) but in the second case, it referred to the wiener packaging, the
smoked meat, and luncheon meat operations as "separate divisions or departments"
(146 NLRB at 168, footnote 10, emphasis supplied). In the second case, however„
the Board found that Black, Holt, and Lane had been discriminatorily refused rein-
statement because, in disregard of their seniority rights, the Respondent had hired
new or junior employees in substantially equivalent jobs in the smoked meat room
and on the wiener packing line, thus indicating at most that these two operations
were performed within the same department but leaving open the question of
whether the jobs on the lunch meat line were also in that department and therefore
subject to a common application of the seniority principle. In view of this, and the
absence of any further evidence in the present case, I must reject the General Coun-
sel's contention that the lunch meat operation was in the same department as the
wiener packing line and thus subject to the operation of the seniority principle in
favor of wiener packing line employees.
In addition-in view of Barnes' testimony, the other evidence in the present rec-
ord, and the findings of the Board in the preceding cases-I am not convinced that
the jobs held on June 16 by junior employees on the lunch meat line were substan-
tially equivalent in required skills to those held by Herndon, Schuff, Black, Holt, or
Lane. Nor am I convinced that Barnes was unreasonable or unjustified in failing
to replace these junior employees without laying off Herndon or Schuff. It is true
that, from the record in the present case and the findings of the Board in the preced-
ing two cases, it appears that Herndon, Schuff, Black, Holt, and Lane, although
working principally on the wiener packing line, had also worked at various times
on the lunch meat line. But it does not appear how long they had worked on the
lunch meat line nor on the lunch meat slicer except in the case of Schuff who, in
her 10 years of service and according to her own testimony, had worked only 3
months as a "boxer" on the lunch meat line. In comparison, one of the three
employees who were their juniors on the lunch meat line,13 was a man (Johnny
Farrar) the nature of whose work none of the parties has apparently thought to be
relevant or important enough to have described in the present record, and the other
two were women (Virginia Groves and Mary Lynn Pulley) who during most of the
7 years of their employment by the Respondent, had operated the Respondent's
lunch meat slicers. On this state of the record, I feel I must accept Superintendent
Barnes' explanation that, because of their experience and skills in an operation sepa-
rate and distinct fiom those of the wiener packing workers, he did not consider
replacing any of these junior employees on the lunch meat line with either Hern-
don, Schuff, Black, Holt, or Lane.
But the situation on the wiener packaging line was quite different. Certainly, all
the jobs on that line were in the same department. And, in view of the Board's
finding in the preceding cases,14 there can be no doubt that the Respondent's estab-
lished departmental practice affected the normal rights of competing incumbents
and laid-off employees to continuing jobs within that line. Here, the only reason-
able and acceptable justification that Barnes could offer for selecting Herndon and
Schuff for layoff rather than other junior employees on the line, would be that the
junior employees were retained because of superior skill or experience in their
particular jobs.15
As I have already noted, two of the girls retained on the wiener packaging line
(Buford Durham and Martha Brumley) had less seniority than Herndon, and one
of them (Brumley) had also less than Schuff. Durham, according to Barnes' testi-
mony, was an experienced operator of one of the peeling machines on the wiener
packaging line while all that the record shows about Brumley is Barnes' testimony
that "Mrs. Brumley worked on the lunch meat line, and she had worked on the
wiener line. She had worked on odds and ends," and that when Lane was recalled
to pack-off table in May 1965, "we moved Mrs. Brumley over on . . . the odds
and ends." But Barnes proffered these skills and experience of Durham and Brum-
ley as the explanation of why he did not place Black, Holt, or Lane in their jobs in
13 See footnotes 5 and 6 , supra.
14 See footnotes 4 and 11 , supra.
15 See footnote 4, supra.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order to comply with the court's decree. He made no attempt in his testimony to
explain why, in view of Herndon's seniority over both Durham and Brumley and in
view of Schuff's superiority over Brumley, he had not considered retaining either
Herndon or Schuff to displace the two junior employees; nor did he attempt to
make a comparison between the skills and experience of Durham and Brumley in
their jobs on June 16 with those of either Herndon or Schuff (who had worked on
all the jobs on the wiener packaging line) nor thereby to indicate any reason why
he should retain Durham and Brumley but lay off Herndon and Schuff. In the
absence of any such explanation, I can only conclude that in laying off Herndon
and Schuff but retaining Durham and Brumley, the Respondent completely disre-
garded and departed from the normal requirements of its seniority practices within
the wiener packaging line.
D. Conclusions
At this point, clarification and resolution of the issues in this case required a brief
recapitulation of the General Counsel's position, and a summary of the Respond-
ent's counterarguments.
As I have already indicated, the General Counsel's broad contention is that, in
laying off Herndon and Schuff on June 16, 1965, the Respondent used the layoffs
and the court's decree, just issued in a preceding unfair labor practice case against
the Respondent, to retaliate against its employees for their union activities and the
Union's resort to the Board's and court's processes, and thus to discourage union
membership and any further union activities on the part of the employees. In
support of this contention, the General Counsel relies upon (1) the normal and
forseeable effect upon the employees of the Respondent's reference to the compul-
sion of the court's decree in explaining to Herndon and Schuff why they were being
laid off; (2) the longstanding union animus of the Respondent as shown by the
Board's unfair labor practice findings in previous cases; (3) Foreman Cipriano's
nagging treatment in May 1965 of Black and Lane whom the Respondent had been
ordered to reinstate and whose reinstatement (along with Holt) was also the sub-
ject of the court's decree to which Superintendent Barnes referred Herndon and
Schuff a month later; (4) a departure by the Respondent from its ordinary senior-
ity practice in selecting Herndon and Schuff for layoff in order to make room for
Black, Holt, and Lane, rather than other junior employees who also worked on the
wiener packaging line; and (5) the fact that Schuff was a likely target of the
Respondent's displeasure since she had given the testimony upon which the Board
had relied in ordering the Respondent to reinstate Black, Holt, and Lane in the
preceding unfair labor practice case.
The substance of the Respondent's counterargument is that, regardless of whether
its action in laying off Herndon and Schuff had any such normal or foreseeable
repressive effect on the employees as the General Counsel contends it did, this was
not the effect intended or sought by the Respondent; that Superintendent Barnes'
explanation to Herndon and Schuff was the true and factually required explanation
of their layoffs and should not be misconstrued as showing an intent on the
Respondent's part to retaliate against them or any of the other employees because
of their union membership or support, or their resort to the Board's and the court's
processes for their protection; that, as Barnes told Herndon and Schuff, the
Respondent selected the two women and laid them off solely because the court's
decree requiied Black's, Holt's, and Lane's reinstatement, because Herndon and
Schuff had Black's and Holt's jobs, and because there had been a drop in packag-
ing work and there was not enough to warrant the retention of Herndon and Schuff
as well as Black, Holt, and Lane; and finally that, as Barnes testified, he did not
know of any union activities on the part of Herndon or Schuff and therefore could
not have selected them for layoff for any such reason. In presenting this argument,
counsel for the Respondent also attacks the relevance in the present proceeding of
the Board's findings of unfair labor practices in the earlier cases. He contends, in
effect, that any union animus shown by the Respondent's prior unfair labor practices
is too remote and that it cannot be assumed that it still continued at the time of the
events in the present case.
From the foregoing summaries of the opposing positions of the parties, it appears
that two basic questions must be decided. The first is the effect of Superintendent
Barnes' reference to the court's decree in his explanation to Herndon and Schuff of
the reasons for their layoff on June 16, 1965. The second is the motive or intent of
the Respondent in giving this explanation to Herndon and Schuff and in selecting
them for layoff rather than junior employees on the wiener packaging line. Both
require consideration of the circumstances of the layoff including the Respondent's
TENNESSEE PACKERS , INC., FROSTY MORN DIVISION 1201
longstanding union animus as shown by the Board's and the court's decision as well
as all other matters which I have found upon the evidence in the present case. I
reject the Respondent 's contention that the Board 's earlier findings are remote and
irrelevant in view of my findings upon the uncontradicted evidence concerning Fore-
man Cipriano 's treatment of Black and Lane as recently as May 1965, in which I
have already found convincing indication of the Respondent 's continuing attitude of
strenuous and improper opposition to the Union and its supporters.
From the Board 's decisions , it appears that during the 6 years preceding Hem-
don's and Schuff's layoffs, the Respondent had strenuously opposed the Union's
organization and representation of the Clarksville employees , by its continual com-
mission of flagrant unfair labor practices , including discriminatory discharges,
layoffs, and refusals to recall employees who supported the Union . By June 16,
1965, the Board had issued its decisions and orders against the Respondent in three
cases and the court had already issued its enforcing decrees in two of them.1° Of
all this, or at least its general substance , the Respondent 's employees must have
been aware. In the cases of the two orders enforced by the court , the Board's find-
ings had furnished a peculiarly significant setting for the events in the present case.
In the first , although the Board found two discriminatory discharges , it also held
that the Respondent 's layoff of Black, Holt, and Lane in 1962 was not discrimina-
tory nor therefore an unfair labor practice . 17 In the second, however, the Board
found that the Respondent's refusal to recall the same three employees in 1963 was
discriminatory and an unfair labor practice . 18 As the basis for reaching these dif-
ferent ultimate results in the two cases, the Board had tested the Respondent's
actions in the light of an established plantwide seniority practice which the Board
found normally governed the Respondent 's layoffs and recalls in each of its
departments.
It was the court's recent decree enforcing the Board 's reinstatement order in the
second of these cases , to which Barnes referred Herndon and Schuff on June 16 as
the reason he was compelled to lay them off. But Herndon and Schuff knew that
both of them had greater plantwide seniority than the three employees who were
being "reinstated" and also greater plantwide seniority than two other employees on
the wiener packaging line. In addition Schuff had been one of the witnesses whose
testimony in the preceding case had furnished the foundation for the Board 's rein-
statement order and the court 's decree. Certainly, under these circumstances, the
normal and foreseeable effect of Superintendent Barnes' statement to Herndon and
Schuff that he was compelled to lay them off in order to comply with the court's
decree, was to make them and the rest of the employees wonder whether , from the
standpoint of their individual interests , they had been wise in supporting the Union's
long struggle to organize and represent them, and particularly , in resorting to and
relying upon the Board 's and the court 's processes to protect them in their orga-
nizational rights under the Act. In short, the normal and foreseeable effect of both
Barnes' explanatory statement and his layoff of Herndon and Schuff was to restrain
the Respondent 's employees in their continued exercise of their organizational rights
guaranteed by Section 7 of the Act and therefore to discourage membership in the
Union.
There remains the question of whether this was the Respondent 's objective and
therefore its purpose and motive in selecting and laying, off Herndon and Schuff
and ascribing their layoffs to the compulsion of the court 's decree directing the rein-
statement of Black, Holt , and Lane. In agreement with the General Counsel, I
believe and find that this was in fact the Respondent 's motive. For, without unduly
belaboring it in detail , all the evidence clearly points in that direction: The
Respondent has been shown by the Board 's findings in the previous cases to be an
habitual violator of the Act in a 6-year struggle against the Union . That it had
not changed its ways nor abandoned the intense antiunion attitude which had
prompted its repeated earlier unfair labor practices , is shown by the May 1965 inci-
dent involving Foreman Cipriano and employees Black and Lane . Moreover, the
May 1965 incident indicates the Respondent 's intent to avoid, if possible , the full
impact of the court 's decree in its struggle with the Union as well as to discomfit
and discriminate against the persons who had given the testimony leading to the
decree. Amc':.,, these persons was Schuff who, as a witness for the General Coun-
sel, had given essential testimony which the Board referred to and relied upon in its
i, See footnotes 9 and 10, supra.
14143 NLRB 494.
146 NLRB 165.
221-731-67-vol. 158-77
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision against the Respondent Finally, the court's decree directing the reinstate-
ment of Black, Holt, and Lane to "their former or substantially equivalent posi-
tions" did not require the automatic layoff of Herndon and Schuff because they
happened to be holding Black's, and Lane's old jobs but permitted the Respondent
to shift Herndon and Schuff to the jobs of other junior employees on the line and
to lay these junior employees off if a reduction in the work force were necessary
Yet, departing from its normal departmental seniority practice without explanation,
the Respondent chose Herndon and Schuff for layoff and retained the junior
employees
Under these circumstances, I find and conclude, in agreement with the General
Counsel, that the Respondent's selection and layoff of Schuff 19 and its explanation
to Herndon and Schuff that both their layoffs were compelled in order to reinstate
Black and Lane under the court's decree, were intended as retaliation against the
employees' support of the Union and the Union's resort to the Boards and the
courts processes, that the Respondent's actions were intended to discourage union
membership and any further union activities on the part of the employees, that the
Respondent's explanation to Herndon and Schuff of the reasons for their layoffs
interfered with, restrained, and coerced the employees in their exercise of the rights
guaranteed them in Section 7 of the Act and therefore constituted an unfair labor
practice within the meaning of Section 8(a)(1), and that by laying off Schuff the
Respondent also committed an unfair labor practice within the meaning of Section
8(a)(3) and (1) of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the business operations of the Respondent as described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce 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 the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a) (1) and (3) of the Act, I will recommend that it cease
and desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act
Having found that the Respondent discriminatorily laid off Ann Schuff on June 16,
although it reinstated her on September 28, 1965, I will recommend that the
Respondent make her whole for any loss of earnings suffered by reason of the lay-
off by payment to her of a sum of money equal to that which she would have
earned from the aforesaid date of layoff to the date of reinstatement, less her net
earnings during said period Furthermore, it will be recommended that the
Respondent pay interest on the backpay due to Ann Schuff, such interest to be com-
puted at the rate of 6 percent per annum from September 28, 1965
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 Meat Cutters & Butcher Workmen of North America, AFL-CIO,
Local No 405 (herein called the Union), is a labor organization within the mean-
ing of the Act
2 Tennessee Packers, Inc, Frosty Morn Division (herein called the Respond
ent), a Tennessee corporation, is an employer engaged in commerce within the
meaning of the Act
3 By notifying employees Ann Schuff and Maigaret Herndon under the circum-
stances of this case that they were to be laid off in order to enable the Respondent
to comply with a court of appeals' decree requiring the reinstatement of other
employees , the Respondent retaliated against its employees for their union activities
and their resort to the processes of the Board and the court , and interfered with,
restrained , and coerced its employees in the exercise of their rights under Section 7
of the Act , thereby committing an unfair labor practice within the meaning of Sec-
tion 8 ( a)(1) of the Act
19 No unfair labor practice finding as to Herndon's layoff is made since it is not covered
by the complaint
TENNESSEE PACKERS, INC.,' FROSTY MORN/ DIVISION 1203
4. By laying off employee Ann Schuff on June 16, 1965, the Respondent discrim-
inated against her in regard to her hire and tenure of employment , in order to
discourage membership in, and support of, the Union, thereby committing an unfair
labor practice within the meaning of Section 8(a)(1) and (3) 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 basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, it is recommended that Tennessee Packers, Inc., Frosty
Mom Division, a Tennessee corporation, its agents, successors, representatives, and
assigns, shall: -
1. Cease and desist from:
(a) Discouraging membership in Amalagamated Meat Cutter & Butcher Work-
men of North America, AFL.CIO, Local No. 405, or any other labor organization
of_ its employees by discriminatorily laying off any of its employees, or by discrim-
inating in any other manner in regard to their hire or tenure of employment or any
term or condition of employment.
(b) In any other manner interfering with, restraining , or coercing employees in
the exercise of the right to self-organization, to form labor organizations, to join or
assist the aforesaid Union, or any other labor organization, to bargain collectively
with representatives of their own choosing, and to engage in any other concerted
activities for the purpose of collective bargaining or other mutual aid and protection
or to refrain from any or all such activities.
2. Take the following affirmative action which it is found will effectuate the poli-
cies of the Act:
(a) Immediately make whole Ann Schaff for any loss of earnings suffered as a
result of her layoff on June 16, 1965, in the manner set forth in the section entitled
"The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all records necessary for the determination of the amount
of backpay due under the Order herein.
(c) Post at its plant in Clarksville, Tennessee, copies of the attached notice
marked "Appendix." 20 Copies of said notice to be furnished by the Regional
Diiector for Region 26, shall, after being signed by a representative of Respondent,
be posted by it immediately upon receipt thereof, and be maintained for 60 consecu-
tive days thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 26, in writing, within 20 days from
the receipt of this Decision, what steps the Respondent has taken to comply
herewith 21
20 In the event that this Recommended Order be 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 be 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."
21 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the 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 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 discourage membership in Amalgamated Meat Cutters &
Butcher Workmen of North America , AFL-CIO, Local No. 405 or in any
other labor organization , by discriminatorily laying off any of our employees,
or by discriminating in any other manner in regard to their hire and tenure
of employment or any terms or conditions of employment.
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL immediately make Ann Schuff whole for any loss of pay suf-
fered by her as a result of her layoff.
WE WILL NOT in any manner interfere with, restrain, or coerce our employ-
ees, in the exercise of their right to self-organization, to form labor organi-
zations, to join or assist the above Union or any other labor organization, to
bargain collectively through representatives of their own choosing, and to
engage in any other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all such
activities.
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone
No. 534-3161.
Cities Service Oil Company and Drivers and Employees of the
Petroleum Industry , Local Union 273 , a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America . Case No. 6-CA-3014. May 07,1966
DECISION AND ORDER
On November 5, 1964, Trial Examiner Thomas A. Ricci issued his
Decision in the above-entitled proceeding, finding that Respondent
on April 1, 1964, unilaterally canceled and transferred certain sales
accounts without first bargaining collectively with the Union as the
exclusive representative of the employees in the appropriate bar-
gaining units. Inasmuch as Respondent's unilateral action caused
the removal of work from units represented by the Union to a unit
of another employer's employees, the Trial Examiner concluded, as
set forth in his attached Trial Examiner's Decision, that Respondent
thereby committed and was committing unfair labor practices within
the meaning of Section 8(a) (5) and (1) of the National Labor Re-
lations Act, as amended. In reaching this conclusion, the Trial Ex-
aminer did not rely on certain evidence in the record tending to
show that the removal of the work in question adversely affected
terms and conditions of employment in the units, because, as he
stated in his Decision, he did not consider the matter of impact on
working conditions to be relevant to the issue whether a violation
had occurred. The latter holding was consistent with the Trial
Examiner's rulings at the hearing-affirmed in his Decision-wherein
he precluded Respondent from rebutting the foregoing evidence and
from adducing evidence to support its claim that its action had not
caused significant injury to the terms, conditions, or tenure of em-
ployment of its employees.
158 NLRB No. 120.