Terry Poultry Co.

National Labor Relations Board - Board Decisions

Aug 31, 1954

109 N.L.R.B. 1097 (N.L.R.B. 1954)

TERRY POULTRY COMPANY 1097
DOYLE W. TERRY D/B/A TERRY POULTRY COMPANY, THE WOOD-HILL
FOOD PRODUCTS COMPANY and LOCAL No. 442, AMALGAMATED MEAT
CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, AFL. Case
No. 10-CA-1631. August 31,1954 - -
Decision and Order
On July 8, 1953, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent Terry Poultry Company had engaged in and was engag-
ing in certain unfair labor practices in violation of-Section 8 (a) (1)
of the Act, and recommending that the Respondent Terry Poultry
Company cease and desist therefrom and take certain affirmative ac-
tion, as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner also found that the Respondent Terry
Poultry Company and the Respondent Wood-Hill Products Company
had not engaged in certain other alleged unfair labor practices and
recommended that the complaint be dismissed with respect thereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief. A brief was also filed by the Respond-
ent Terry Poultry Company?
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 affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, with the exceptions, additions, and
modifications noted below.
We agree with the Trial Examiner that the Respondent did not
discriminatorily discharge Lassie Petty and Geneva Tinsley for en-
gaging in protected concerted activities. We base our decision on the
ground that they were lawfully discharged for violating a plant rule.2
As discussed in the Intermediate Report, Petty and Tinsley left the
production line on which they were working to protest to Plant Super-
intendent Underwood the way Foreman Dowde handled their com-
plaint about the heater and attic fan and the strong language he used.
In leaving the line, Petty and Tinsley did not tell Dowde or their
fellow employees that they were going to be away. This they were
' No exceptions were filed to the Trial Examiner 's finding that the Respondent Terry
Poultry violated Section 8 (a) (1) of the Act by various threats to close the plant in
reprisal for union activity . Similarly , no exceptions were filed to the Trial Examiner's
recommended dismissal of the other allegations of the complaint against the Respondent
Terry Poultry and the Respondent Wood-Hill Food Products Company. Accordingly, we
adopt the Trial Examiner 's findings in this respect pro forma.
2 We agree with the Trial Examiner that the evidence does not establish that the Re-
spondent was motivated by hostility to union or concerted activities in discharging Petty
and Tinsley.
109 NLRB No. 154.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
required to do by a long-standing plant rule so that proper arrange-
ments could be made for their replacement. As a result, an undis-
closed number of chickens went through the production line unproc-
essed and had to be reworked later at the expense of interfering with
normal operations.
The General Counsel contends that, because Petty and Tinsley left
their work places to present a grievance to management concerning
their working conditions, they were engaged in protected concerted
activities and therefore were not vulnerable to discharge. We find
no merit in this contention.
The Board and the courts have long recognized the right of an
employer to make and enforce reasonable rules governing the conduct
of employees on company time, even though these rules may limit the
statutory right of employees to engage in union or concerted activities.-'
A very familiar example is a no-solicitation rule prohibiting union
solicitation during working hours. In such cases, the Board has bal-
anced the right of the employer to manage his business as against his
employees' right to engage in union or concerted activity to determine
whether the questioned rule unreasonably interfered' with the em-
ployees' exercise of their statutory right.
In the present case, the Respondent had adopted a rule, well known
to its employees, requiring them to notify their foreman or fellow
employees when they desired to leave the production line. Plainly,
such a rule is necessary to insure orderly and efficient operation of
the production line. It is not,'nor could it be, contended, that this
rule was adopted for a discriminatory purpose. Indeed, unlike a no-
solicitation rule, the Respondent's rule was not designed to limit an
employees' union or concerted activity but simply to control absences
from the production line. There is, moreover, nothing in the record
to indicate that permission under the Respondent's rule to leave the
production line to present grievances would not be granted. In these
circumstances, and considering the legitimate business interests of the
Respondent and the statutory rights of its employees, we find that the
Respondent's rule is not an unreasonable impediment to the employees'
right to engage in concerted activities and that therefore the Respond-
ent was privileged to enforce obedience to its rule.
As indicated above, Petty and Tinsley deliberately disregarded the
Respondent's rule in leaving the production line without notifying
their foreman or any fellow employee. Although it is true that they
left the line to present a grievance to the plant superintendent and
were therefore engaged in a form of concerted activity, this did not
entitle them to ignore a reasonable plant rule. The requirement of
3 Peyton Packing Company, Inc, 49 NLRB 828, enfd. 142 F. 2d 1009 (C. A. 5) ;
Le Tourneau Company of Ceorgtia, 54 NLRB 1253, revd. 143 F. 2d 67 (C. A 5), revd. 324
U. S 793; Republic Aviation Corp., 51 NLRB 1186, enfd. 142 F. 2d 193 (C. A. 2), affd.
324 U. S. 793.
TERRY POULTRY COMPANY 1099
notification of an intended temporary absence from the production
line cannot conceivably be said to have unduly burdened Petty and
Tinsley's right to present their grievance to management. For the
purpose of enforcing compliance with its long-established plant rule,
the Respondent decided to discharge these employees. It is not for
us to pass judgment upon the wisdom of the Respondent in choosing
this disciplinary measure instead of another. It suffices for purposes
of our decision that it acted to enforce a proper plant rule. We
therefore find that the Respondent acted within its prerogatives in
discharging Petty and Tinsley. Accordingly, we will dismiss the
allegations of discrimination in the complaint.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby, orders that the Respondent, Doyle W. Terry, doing
business as Terry Poultry Company, his agents, successors, and as-
signs, shall:
1. Cease and desist from :
(a) Discouraging self-organization or concerted activities among
employees for their mutual aid and protection as guaranteed in Sec-
tion 7 of the Act, or discouraging membership in Local No. 442,
Amalgamated Meat Cutters & Butcher Workmen of North America,
AFL, or any other labor organization, by threatening employees with
economic reprisals because of such activities.
(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 Local No. 442, Amalgamated
Meat Cutters & Butcher Workmen of North America, AFL, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing and 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 of such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the undersigned
finds will effectuate the policies of the Act :
(a) Post at his place of business in Jasper, Georgia, copies of the
notice attached to the Intermediate Report marked "Appendix A." 4
Copies of said notice, to be furnished by the Regional Director for
+ This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" in the caption thereof the words "A Decision and Order " In the event
that this Order is enforced by a decree of a United States Court of Appeals, there shall be
substituted for the words "Pursuant to a Decision and Order ," the words "Pursuant to a
Decree of the United States Court of Appeals , Enforcing an Order."
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Tenth Region, shall, after being duly signed by the Respondent's
authorized representative, be posted by the Respondent immediately
upon receipt thereof, and maintained by him for sixty (60) consecu-
tive days thereafter in conspicuous places, including all places where
-notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for the Tenth Region, Atlanta,
Georgia, in writing, within ten (10) days from the date of this Order
'as to what steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent The Wood-Hill Food
Products Company engaged in any unfair labor practices and insofar
as it alleges that the Respondent Terry Poultry Company unlawfully
(1) increased wages for the purpose of defeating the Union's organ-
izing activity; (2) condoned and acquiesced in threats of physical vio-
lence; (3) refused to bargain collectively with the above-named
Union; and (4) discharged Lassie Petty and Geneva Tinsley because
of their membership in or activities on behalf of the above-named
Union or because of their concerted activities for mutual aid or
protection.
MEMBERS MuRDOOK and PETERSON, dissenting in part :
We disagree with the majority that the Respondent did not unlaw-
fully discharge Petty and Tinsley for engaging in protected concerted
activity. The majority concedes that at the time of their discharge
Petty and Tinsley were acting in concert in presenting a grievance
to Plant Superintendent Underwood. However, it justifies the dis-
charge because, while exercising their statutory right to engage in
concerted activity, Petty and Tinsley violated a plant rule requiring
them to tell their foreman or a fellow employee that they were leav-
ing their work places. In our opinion, the majority's decision de-
parts from established precedent and reflects a serious inroad into the
,statutory right of employees to engage in concerted activity for their
mutual aid and protection.
To put the issue in proper context, we briefly summarize the facts :
Petty and Tinsley left the production line to protest to Plant Super-
intendent Underwood the way Foreman Dowde adjusted their griev-
ance about the operation of the heater and the attic fan and the
language used by Dowde on that occasion. It is not disputed that
this grievance related to a condition of employment and that in pre-
senting it to management Petty and Tinsley were engaged in con-
certed activity for their mutual aid and protection. Petty made the
reasonable suggestion to Underwood that he send for Dowde so that
the four of them together could discuss the matter. Underwood
TERRY POULTRY COMPANY 1101
agreed but, because Dowde was then occupied, told Petty and Tinsley
-that they could go home, which was located near the plant, and re-
turn for the conference at 12: 45 p. in.
At noon, Underwood saw Dowde and related the conversation he
had with the two women. Dowde denied cursing,5 and informed Un-
derwood that Petty and Tinsley had not received his permission to
leave their work places and that their absence caused some chickens
to go through the production line without being properly processed
and had to be reworked. At the scheduled time for the conference,
Petty and Tinsley returned to the plant and instead of a conference
they were immediately discharged by Underwood because of Dowde's
assertion that they had walked off the job without permission.
As indicated above, there is no question that in leaving the pro-
'duction line to present their grievance to management, Petty and
Tinsley were engaging in concerted activity for their mutual aid and
protection. This the Act in unequivocal terms guarantees employees
that they could do without fear of discharge or other penalty. Sec-
tion 7 provides that employees, among other things, "shall have the
right . . . to engage in . . . concerted activities for the purpose of
... mutual aid or protection." In addition, Section 9 (a) specifically
provides that any group of employees "shall have the right at any
time to present grievances to their employer and to have such griev-
ances adjusted." [Emphasis supplied.] In recognition of these
rights, both the Board and the courts have repeatedly held that the
conduct of employees in concertedly stopping work to present a griev-
ance concerning wages, hours, or other conditions of employment is
within the protection of the Act for which they may not be dis-
charged.' And this statutory right is secured to employees whether
it takes the form of a strike or other temporary work stoppage to
present a grievance.' As the court so aptly stated in the Kennametal
case : 8
That the employees suddenly dropped their tools and insisted
upon presenting their grievances during working hours does not
5 The Trial Examiner , however , found that Dowde had used the word "damn."
ON. L. R. B. v. Southern Silk Mills, Inc., 209 F. 2d 155 ( C. A. 6), cert. denied 347 U. S.
976 (spontaneous walkouts and temporary work stoppages to protest excessive heat).
Modern Motors , Inc. v. N. L. R. B ., 198 F. 2d 925 (C. A. 8) (stopping work and concertedly
presenting a grievance concerning a Christmas bonus grievance ) ; N. L. R. B. v. J I. Case
Company, Bettendorf Works, 198 F. 2d 919 (C. A. 8) cert. denied 345 U. S. 917 ( walking
off the job without permission and attempt to incite plant walkout in protest against
discharge of a union steward ) ; Kitty Clover, Inc. v. N. L. R. B ., 208 F. 2d 212 ( C. A. 8)
( leaving work in mass to seek interview with employer concerning a grievance ) ; N. L. R. B.
v. Globe Wireless, Ltd., 193 F. 2d 748 (C. A. 9 ) ( leaving job to protest discharge of fellow
employee ) ; N. L. R. B. v. Kennametal , Inc, 182 F. 2d 817 (C. A. 3) ( engaging in work
stoppage to secure higher wages ) ; Gullett Gin Company, Inc . v. N. L. B. , B., 179 F. 2d
499 (C. A. '5) (discussion of•wage grievances during working hours).
7 Ibid
8 N. L. R. B. v. %ennametal, supra, at p . 819 ; see also N. L. R. B. v. J. I. Case Company,
,Bettendorf Works, supra, at p. 922.
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
detract from the lawfulness of their conduct. Certainly the statute
would have protected them against interference or coercion if in-
stead of insisting upon immediate discussion of their demands they
had then and there left the plant and formed a picket line out-
side. In fact, what the workmen did was more reasonable and
less productive of loss to all concerned than an outright strike.
The language of the Act does not require and its purposes
would not be served by holding that dissatisfied workmen may
receive its protection only if they exert the maximum economic
pressure and call a strike.
It is equally well settled that this right to stop work concertedly
to present a grievance to management is not lost simply because per-
mission is not first obtained from the foreman or the aggrieved em-
ployees are otherwise insubordinate or violate a plant rule.9 In
giving controlling effect to the plant rule as justifying discharge, our
majority colleagues are simply refusing to recognize established
judicial doctrine. Were the law to the contrary, little would be left
of the employees' statutory right to engage in a temporary work
stoppage for mutual aid and protection. The majority's attempt to
justify the restriction on the employees' exercise of this statutory
right ignores the fact that leaving the job is as much a part of the
concerted activity as the actual presentation of the grievance to man-
agement, as the Board and court. decisions plainly establish. Al-
though there may be some interference with production resulting
from such a temporary work stoppage, it is purely incidental as it is
in the case of a strike and may not afford a legal basis for denying the
employees protection from discharge.10
In view of the foregoing, it is clear that the Act does not sanction
the discharge of Petty and Tinsley because they temporarily left their
work to present to the plant superintendent a grievance against their
foreman without notifying their foreman or fellow employees as they
assertedly were required to do by a plant rule. Accordingly, we
would overrule the Trial Examiner and find, contrary to the ma-
jority, that the Respondent discharged Petty and Tinsley for engag-
ing in protected concerted activities and thereby violated the Act.
Intermediate Report
STATEMENT OF THE CASE
Organizational efforts on behalf of Local No. 442, Amalgamated Meat Cutters &
Butcher Workmen of North America, AFL, herein called the Union, began at the
9 See, for example , Modern Motors, Inc, 96 NLRB 964, enfd as modified 198 F. 2d 925
(C. A. 8) ; J. I. Case Company, Bettendorf Works, 95 NLRB 47, enfd. as modified 198 F.
2d 919 (C. A 8).
10 The Board and the courts have recognized one exception to this principle where in
stopping work employees failed in their "duty to take reasonable precautions to protect
the employer 's physical plant from such imminent danger as foreseeably would result from
their suddent cessation of work." Marshall Car Wheel and Foundry Co., etc, 107 NLRB
314, and cases there cited. The majority does not find that such a case is presented here.
TERRY POULTRY COMPANY 1103
Jasper, Georgia, plant of Doyle W. Terry d/b/a Terry Poultry Company, herein
called Respondent Terry, during October 1952 and it is alleged that thereafter Re-
spondent Terry violated the National Labor Relations Act, as amended, herein called
the Act by interfering with, restraining, or coercing his employees, by discharging
two employees and by refusing to bargain with the Union. It is also-alleged that
Wood-Hill Food Products Company, herein called Respondent Wood-Hill, as a
joint employer with Respondent Terry, interfered with, restrained, or coerced
employees.'
1. INTERFERENCE, RESTRAINT, OR COERCION
Respondent Terry began operating the plant involved herein in the fall of 1951.2
On Friday morning, October 10, 1952 (before the advent of the Union at Respond-
ent Terry's plant-organizational efforts on behalf of the Union did not begin until
after October 14, 1952), D. M. Underwood, plant manager, telephoned Doyle W.
Terry, owner of the business involved herein, in Athens, Georgia, and told him that
Respondent Terry had been losing some of his employees to other industries because
of higher wages and that he (Underwood) felt a raise would be a good thing. Under-
wood suggested that a 10-cent per hour raise be given to those employees who had
been with Respondent Terry a year or more. Terry told Underwood that he
doubted the wisdom of giving a raise to some but not all employees, that such might
cause discontent but that he (Terry) would check with his auditor and advise later.
That same day Terry cleared with his auditor. On Monday, October 13, 1952, Terry
telephoned Underwood and approved the raise recommended by Underwood and
told Underwood to put it into effect on the following payroll. Underwood prepared to
make the increases effective but before the payroll was completed the Union began
its activities among the employees involved herein. Underwood heard about these
union activities and tried, unsuccessfully, to contact Terry on either October 16 or 17,
1952. Underwood talked to Terry, via telephone, Sunday, October 19, 1952, and
told him that he (Underwood) "had learned of some union activity" and "had with-
held the raise" and asked what to do about the raise. Terry told Underwood he
(Terry) would check with his attorney and he (Terry) would be at the Jasper plant on
Monday or Tuesday. On Monday, October 20, 1952, Terry conferred with his
attorney. The next day Terry went to the Jasper plant, wrote out a speech, and de-
livered it orally to the employees at the plant. The text of the speech reads:
Some of you people I remember from the first day I talked to you about a job
here in this plant. Since then we have added more people and therefore I have
not had the chance to talk to you individually. The reason that we added more
people was because we have worked continuously on increasing our orders and
at the same time trying to give you the number of hours that would suit all of
you.
As some of you know we have been operating this plant about a year now
and I am happy to say that those of you who have been with us a year will get a
10¢ per hour raise effective this week.
For your information it is quite a problem to sell and collect for chickens
and you just can't tell a customer how many chickens he has to take and
when he has to take them. In other words all of our lobs and the hours we put in
depends on what our customers want.
It is my understanding that before we took over this plant it had been
opened and closed a number of times and had run all kind of hours when it was
open. I repeat again that we have done everything possible to give you the best
working hours and at the same time keep our customers happy.
Now here is something 1 want to talk a few minutes about and it is my
understanding that it is supposed to be a secret-well it is no secret to me that
some of you are working toward getting the union in this plant. In my talks
with Mr. Underwood in the past I thought that all of you were satisfied with your
jobs but evidently some few of you are not.
Now I want all of you to understand that I do not like the union. In fact I
don't like anybody that will promise a person something when they don't know
what they are talking about. It is my understanding that the union promised
to come in here and fire some of my help-well we hired all of you and we are
1 The issues with respect to Respondent Wood-Hill were narrowed to these issues at the
hearing before the undersigned in Jasper, Georgia, on April 13, 14, 15, 16, and 17, 1952.
2 Doyle W. Terry, doing business as Terry Poultry Company engages in the processing
and sale of chickens in Jasper, Georgia. Annually chickens valued in excess of $25,000 are
shipped from this plant to points and places outside of Georgia. There is no issue herein
concerning jurisdiction.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the only ones that have the right to fire anybody. The union cannot hire or fire
anybody and I challenge anybody on that statement.
It is my understanding that the union promises a lot of other things. Well it
so happens that you people get your pay from us and as long as you do we
will be the ones to decide our policies and the amount of money we can afford to
pay you.
If you people want to give this outside person $75 to $100 per week for that
penny card that is being handed out that is your business but don't be sucked in on
a lot of promises because we run this business-not some strange man that just
drove up a few days ago. I didn't see that strange man standing around when
we were trying to get this plant running about a year ago and he don't come in
on Friday and sign your check-no, he is the type that will stand back until it
is well worth his time and then he will show the palm of his hand before he does
his face.
Let me repeat this once more-I do not like the union-you people can decide
for yourself.
Now I have been very well pleased with all of your work but lately some of
your customers have been complaining about the way some of the chickens are
dressed. We are slowing down the line to help correct this situation and ask
each one of you to help in this matter.
Are there any questions about what I have said? Are there any questions
about the union card that some of you have been asked to sign?
I appreciate your attention and sincerely hope that we can continue to enjoy
the business and relationship that we have had the past year.
Immediately after Terry's speech a number of the employees not eligible for the
wage increase sought a raise for themselves. Terry stated he would consider the
matter with his auditor, which he did. Terry telephoned Underwood and authorized
a 5-cent per hour increase for employees at the plant less than a year and Under-
wood announced this increase on October 24, 1952. In announcing this wage in-
crease Underwood stated to the employees:
I have a very important announcement to make to each and every employee in
this plant. Please let me have your attention for a few minutes. Last week
when Mr. Terry was here and talked to you he announced he was able to get
a ten cent increase for the employees who have been here for one year. Those
raises were effective as of a week ago, and were passed on to you this week in
your checks. Mr. Terry called me this morning and asked me to announce
to the rest of the employees that we were now able to increase your basic pay
from seventy- five to eighty cents per hour . This five cent increase on the wages
of those who have been here less than a year will be effective beginning last
Friday. As Mr. Terry told you when we first. came about 13 months ago that
our purpose was to open this plant and give you as many hours as possible after
we begun operation. We have tried to do this and this morning I want to talk
to you just a few minutes about the hours that you will get in during the next
few weeks. All of you employees who raise chickens know that chickens are
extremely short now. However, we have been able to get chickens when a
great many other plants have not. But during the next few weeks if we don't
get in as many hours as you would like to have in, you may know it is from
the lack of supply of chickens. If there are any extreme changes in the hours
that this plant will work in the future, you will be called together and told
from management . We can 't tell more than ten days ahead just what our supply
will be. But you may know we will operate every possible hour that we can
that our supply of chickens in the field will allow us to work. Thank you very
much.
On October 27, 1952, Underwood again addressed the employees. He stated:
It has been quite some time since I have had the privilege of talking to you, as
a group. I hope that you will listen closely to what I have to say to you this
morning. I will try to be brief and to the point . It has been almost a year
and one month ago when Terry Poultry came to Jasper and all you old hands
who are listening here this morning I am sure you remember all the problems
we had in trying to start this plant . If you remember we started the plant up
and tried to dress some chickens , but the plant was in such a shape that we
could not dress a chicken that was decent enough to sell competitive with any
other plant in business, and we were forced to shut down for about 10 days
until we put is some new machinery in the back. At the time we started opera-
tion here we employed some 108 to 110 employees . Since that time we have
TERRY POULTRY COMPANY 1105
ironed out a great many of our problems. We have bettered our dressing of
the chickens and have increased our personnel to some 160 to 170 employees.
Each and everyone of you who shared all those problems with us when we
first came here can certainly hold up your heads with pride with the quality
of birds that we have put out in the past six or seven months. Mr. Terry appre-
ciates the job we have been doing because he knows each and every one of us
have worked hard. There has been but few week ends when maintenance work,
painting and changing operation, has not taken place here on Saturday and
Saturday nights, Sunday and Sunday nights, in order to better the operation.
We can be proud of the job that we have done because our customers are proud
of the job we have done. We haven't solved all our problems, because we just
haven't had time to get around to all of them. Jasper has no carpenters avail-
able for work, they have no plumbers to help us, they have no electricians to
offer us. There has been a lot of changes made since the day we came here,
and there is going to be a lot of other changes made in the future. As hard as
we have worked, and you can only work seven days a week, there are some who
have not had the patience to wait for the solving of some of our problems,
and they seem to think that a Labor Union can take care of everything that is
wrong up here. If you remember when that reversible picker was throwing
chickens through the top of the house there was no Labor Union in this plant
telling us how to stop that. When customers called up and told us that our
chickens were no longer dressed decent enough to meet the markets of their
customers, there were no Labor Leaders here to tell us how to correct that.
When the motors on the slanting drum back here shorted out there was no
labor leader came in here and corrected that, when the water gave out there
a few times all of you remember that, Mr. Terry remembers it because it cost
him several thousands of dollar. When the water gave out we had to get hold
of the City Council to get them to turn in enough water here to dress out the
chickens that we had on the yard. It would have been nice to have had one
of those labor leaders around here then to have taken care of a situation like
that; but they are never around when you need them. But now that we have
overcome those problems now that we have a plant with employees in it who
know how to dress chickens and who have a place to work and that we have
gotten our plant in decent operation they wanted to come step in after you
have done a big job and take some money out of your pocket. I worked in
Atlanta, Georgia ten years before I came here and I saw them operate in the
same fashion there. Now I have said that to you because I want to make one
point clear-just one point and this is the very thing if you remember nothing
else I say, this morning I want to put this one point clear in your mind. There
have been some employees who have come to us and told me that there were
employees in this plant who have signed some labor cards or union cards but
at the time of signing did not know what those cards obligated them to. Some
of them said they did not know what they meant, some of them said that they
were told every employee in this plant had signed one but them so they signed
one too, but if they had known a great many of them had not signed it they
would not have signed one either. These same employees have asked for those
cards back, and I understand that they have been refused, I also understand
that they have been told that they would lose their jobs if I found out that they
had signed a union card. Now this is the point I want to make clear, I don't
think I have to tell the old hands how I feel because they worked a year here
with me and know that I have never operated in that fashion, but to all of you
new employees as well as you old ones, I would like to make clear in your
minds this morning, I hold no malice toward any person who has signed one
of those cards. Any of you who have asked for your cards back and have been
refused your job is not in jeopardy you will not be fired, and if you can't get
your card back just don't worry about it. What you can do is this, just don't
support that card. We don't want to see you deceived by a union man who
wants to come up here each week and take seventy-five to one hundred dollars
out of your checks. We don't want to see a union man in here, simply because
they cannot help the poultry business. Because they cannot operate a poultry
business if they could they would be in it themselves. Furthermore, the stock-
holders of the Wood-Hill Food Products Co., own this building which we rent,
in which you are working this morning, they have inferred to us that if a Labor
Union is organized in this plant that they will cancel our working lease or op-
erating lease here in Jasper.3 Naturally we don't want this to happen and we
8 Underwood testified his remarks concerning the cancellation of the lease were prompted
by a rumor "to the effect that Wood-Hill Food Products Company-that they didn't have
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
know you don 't want it to happen. And the decision is yours and you can
make that decision . As Mr. Terry told you here last Tuesday and I think most
all of you if not all of you know how I feel. We are proud of the plant and
its achievements and we appreciate the fine job you have helped us do and
we are looking forward into the future , not to leave Jasper but we are looking
forward to the continued cooperation and the splendid product that we have
put out here. I hope that each of you will weigh this decision in your minds
and I repeat to you that on these union cards that if you don't want to ask for
them back or if you have already asked for them back and they have refused,
just ignore the card and don't support it. I appreciate your time . Thank you
very much.
Contrary to the contention of the General Counsel , the undersigned finds that
the wage increases were not granted for an unlawful purpose. As noted above, they
were contemplated prior to the advent of the Union and the evidence does not
establish that they were announced at the time in question for the purpose of inducing
the employees to abandon their efforts on behalf of the Union . However, in an-
nouncing these pay raises Respondent Terry made clear to the employees his oppo-
sition to union activities . Although the Act permits an employer to express his
dislike for a union in any terms he may wish , he cannot threaten his employees,
intimidate them, or offer them rewards for the purposes of discouraging union ac-
tivities or their rights to organize . In determining whether the announcements
herein exceeded the bounds of persuasive argument , now expressly sanctioned by
Section 8 ( c) of the Act , the announcements and their overtones must be evaluated
in the circumstances then prevailing . Viewed in this light certainly Underwood's
speech of October 27, 1952, went beyond persuasive argument and threatened plant
closure-"economic coercion in its most effective form."'
Lassie E. Petty testified she signed a union authorization card on October 19, 1952,
and that 2 days later she requested the return of this card from Robert Elliott, the
chief proponent of the Union at the plant . Her efforts to withdraw from the
Union, by getting this card back, were open and were made for the purpose and
with the intent of convincing her associate employees that she was abandoning the
Union. Petty further testified that on numerous occasions after October 21, 1952,
Floyd Dowde, foreman , addressed her and other employees and told them that if
the Union came in the plant would close. Dowde denied that he ever threatened
employees because of union activities . Petty's testimony concerning these state-
ments by Dowde is vague and indefinite , and unsupported is not persuasive. Other
employees allegedly present when Dowde made the remarks did not testify concern-
ing them. However, the entire record raises a strong inference that Dowde did
make some reference to the Union to the employees and that he did indicate that
probably Respondent Wood-Hill and/or its stockholders would attempt to cancel the
lease if the Union were successful and thus close the plant, and the undersigned
finds that he did so state.
Here, as in the situation involving Underwood 's speech of October 27, 1952, the
undersigned believes and finds that , in the light of the entire record, Dowde's remarks
constituted interference with the employee 's right to self-organization , and Respondent
Terry thereby violated Section 8 (a) (1) of the Act.
On April 1, 1953 , during the lunch period and near the end thereof , a discussion
ensued among the employees of Respondent Terry at the parking lot which the
employees used during their lunch period. This discussion concerned the union
activities of employee Robert Elliott and lasted about 20 minutes . It became rather
heated towards the end thereof and a threat was made to "drag" Elliott from the
car he was in and "strangle" him. There is no contention that any supervisor or
official of Respondent participated in this discussion but only that Foreman Dowde
was standing nearby and by his silence condoned and acquiesced in the threat.
There is no doubt that Dowde did in fact break up the discussion and direct the
participants thereof to go back to work. There is sharp dispute as to how long
Dowde observed the gathering before breaking it up, but it is not necessary to resolve
this dispute since it is clear that the threat was made near the end of the lunch period
and within a matter of "seconds" after it was made Dowde broke the gathering up
and directed the employees to go back to work. The undersigned believes and finds
any organized labor in Jasper and they didn 't want any at the chicken plant, that they
would cancel our lease or they would run Mr' Terry out of business down there "
6 The undersigned rejects Respondent Terry 's argument that , since Underwood stated
it was " inferred to us" that the lease would be cancelled if the plant were organized, and
did not state as a fact that the plant would close down, it cannot be inferred from his
statement that it was a threat to close the plant down.
TERRY POULTRY COMPANY 1107
that the evidence adduced is not sufficient to sustain the allegations of the complaint
to the effect that Respondent Terry on or about April 1, 1953, condoned and
acquiesced in threats of physical violence.
The General Counsel contends that Respondents Terry and Wood-Hill were en-
gaged in performance of a joint enterprise in installing a boiler at the plant utilized
by Respondent Terry and that Respondent Wood-Hill, while engaged in this joint
enterprise as well as while acting as agent of Respondent Terry, interfered with,
restrained, or coerced employees engaged in such installation.
Respondent Terry leases the physical properties occupied by him in Jasper,
Georgia, from Respondent Wood-Hill, a Georgia corporation. Respondent Terry
is a sole ownership and there are no common stockholders, directors, or officers, or
integrated labor policies.
During the period of time material herein Respondent Terry experienced some
difficulty with the boiler located on the premises in Jasper, Georgia, and arrange-
ments were made, between the Respondents, for installation of a new boiler. The
exact nature of these arrangements is not clear from this record. In fact the record
reveals confusion as to how the cost of this work is to be borne. However, except
for the conduct of Messrs. Moore and Burgess at the boiler site, hereinafter out-
lined, there is no evidence that for the purpose of buying and installing this boiler
Respondents jointly controlled the employees and their working conditions or that
Respondents were acting as a "single joint employer."
On November 28, 1952, Respondent Terry began excavating for the installation
of a new boiler. While the employees were thus engaged A. C. Moore, president
and director of Respondent Wood-Hill (and a local businessman), and Carter
Burgess, a director of Respondent Wood-Hill (also a local business man), appeared
at the site of the boiler installation and made certain comments and the excavating
work was temporarily halted.
Prior to going to the site of the excavation, Moore, Burgess , and another director
of Respondent Wood-Hill (R. A. Edge), called upon the owner of Respondent Terry
and "discussed with Mr. Terry what we had in mind as to not installing the boiler
since this labor situation was in question." The three directors of Respondent Wood-
Hill, in Terry's presence, discussed the cost of the boiler, the amount of money
Respondent Wood-Hill had invested in the plant and the amount then outstanding,
the effect of unionization of the plant upon Respondent Wood-Hill's investment, how
"to be of help to Mr. Terry," and their plan to stop installation of the boiler in
view of the efforts of the Union to organize the plant. Terry said, "Well, I am
going to leave it up to you fellows." That afternoon Moore and Burgess went to
the site of the excavation. There is dispute as to what took place at this site.
After observation of witnesses and careful study of the entire record the undersigned
finds the facts to be as follows. Moore and Burgess told the employees they under-
stood there was labor trouble at the plant and they did not care to spend any more
money on the plant unless they knew that the plant would operate and indicated
that if the Union won the election, then scheduled for the following Monday, it was
likely that the plant would be closed down.' Moore and Burgess asked the workers
to stop working on the excavation, which they did. However, within a few minutes
the employees resumed their work and Underwood, plant manager, was sent for.
Moore and Burgess asked Underwood to hold up the installation of the boiler in
view of the labor difficulty at the plant and Underwood then stopped this work.
Late that afternoon Underwood called Terry, via telephone in Athens, Georgia, and
told him what had occurred. Terry instructed Underwood to go ahead and install
the boiler immediately and said he (Terry) would take care of the costs thereof
later. Preparations for the installation of this boiler resumed within a few days
when the employees started putting down the forms for the foundation.
On the basis of the entire record herein the undersigned finds the evidence adduced
does not support the contention of the General Counsel that these Respondents
were acting in a "joint enterprise" and for the purpose of this proceeding they con-
stitute a single employer. National Shoes, Inc., et al., 103 NLRB 438 and cases
cited therein. However, the undersigned believes and finds that Respondent Terry
is responsible for the statements and activities of Moore and Burgess. As noted
above, Respondent Terry approved in advance the plan of Moore and Burgess to
stop installation of the boiler. After execution of this plan Respondent Terry failed
to disavow it or disassociate himself from the antiunion conduct of Moore and
Burgess. Furthermore, Respondent Terry's entire course of conduct made it
6 Any contention that Moore and Burgess did not threaten reprisals but merely indicated
there might be a strike which might close the plant is rejected.
334811-55-vol. 109-71
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasonably appear that Respondent Terry endorsed the activities of Moore and
Burgess and that they were acting in his behalf. (See Walter Kocher and Co., 104
NLRB 1090; S. D. Cohoon & Son, 101 NLRB 966; Mylan Manufacturing Company,
70 NLRB 574.) 6
A. Refusal to bargain
On or about October 14, 1952, Robert E. Elliott, an employee of Respondent
Terry, obtained from the Union a number of postal cards containing printed matter
on one side and the address of the Union on the other side. The printed matter
reads as follows:
AUTHORIZATION FOR REPRESENTATION UNDER THE NATIONAL LABOR RELATIONS
ACT
I hereby authorize the AMALGAMATED MEAT CUTTERS AND BUTCHER WORK-
MEN OF NORTH AMERICA, A. F. OF L., LOCAL UNION No. - to represent me
and bargain collectively with my employer in my behalf, to negotiate and
conclude all agreements concerning wages, hours, and all other conditions of
employment.
Name--------------------------------------------------------------
Street & No ---------------------- City & State_____________________
Name of Employer--------------------------------------------------
Job or Department---------------------------------------------------
Date---------------------------- Signature--------------------------
During October 1952 Elliott and others circulated these authorization cards
among employees of Respondent Terry and engaged in organizational activities on
behalf of the Union.
By letter dated October 27, 1952, the Union advised Respondent Terry that a
majority of the employees had selected the Union to represent them in collective
bargaining and requested a meeting to negotiate a contract.
On October 28, 1952, the Union filed a petition for certification of representa-
tives (Case No. 10-RC-2139).
By letter dated November 5, 1952, Respondent Terry advised the Union that Re-
spondent Terry had been informed of a hearing on the petition in Case No. 10-RC-
2139 and that Respondent Terry "does not feel that you represent a majority of
its employees, and we, therefore, do not feel that it would be in order to meet with
you for the purpose of entering into negotiations leading to a contract."
,On November 17, 1952, representatives of the parties in Case No. 10-RC-2139
met in the offices of the Board. The Union asked Respondent Terry to negotiate
a contract and Respondent Terry indicated he would not but would consider a con-
sent election. A stipulation for certification upon consent election was executed
that date wherein it was agreed that an election by secret ballot would be conducted
on December 1, 1952.
On November 28, 1952, the Union requested withdrawal of the petition in Case
No. 10-RC-2139 and said withdrawal request was approved. On that same date
the Union filed the original charge herein.
An indispensable prerequisite to a finding of refusal to bargain is a determination
that the Charging Union in fact represented a majority of the employees in the
appropriate bargaining unit ° on October 27, 1952, when the Union first requested
Respondent Terry to bargain with it, or at the time of any later request (November
17, 1952). This record reveals that there were 153 employees within the unit on
October 28, 1952 (the payroll date nearest October 27, 1952), and the question for
determination here is, did the Union represent at least 77 of these employees.
The General Counsel (in his brief) contends that on October 27, 1952, at least 79
(78, since Bill Evans' name appears twice in the listing) employees within the unit
G Any contention that Respondent Terry was caught In a "squeeze" by virtue of the
course of conduct of Respondent wood-Hill and is therefore not guilty of the unfair labor
practices found in this report is hereby rejected. (See N. L. R. B v. Pappas & Co., 203 F.
2d 569 (C. A. P).)
4 There is no issue herein concerning the unit. The parties agree that for the purpose of
this proceeding the unit consists of all production and maintenance employees, including
truckdrivers, but excluding over-the-road drivers, office clerical employees , guards, pro-
fessional employees, and supervisors as defined in Section 2 (11) of the Act
TERRY POULTRY COMPANY 1109
had authorized the Union to represent them.' Respondent disputes this figure and
specifically attacks (in his brief) the authorizations of 22 employees
Since there is no contest concerning the authorizations (as of October 27, 1952)
given by 58 employees ii no further comment will be made concerning these
authorizations.
Lassie Petty signed a union authorization card on or about October 19, 1952, and
2 days later requested the return of this card from Robert Elliott, the principal pro-
ponent of the Union at the plant. According to her testimony, her efforts to with-
draw from the Union, by getting this card back, were open and were made for the
purpose and with the intent of convincing her associate employees that she was
abandoning the Union. There is no evidence that she was thereafter active on
behalf of the Union. The undersigned believes and finds that this authorization
should not be counted in determining the Union's majority status on and after
October 27, 1952.
Luther Hightower, a witness called by the General Counsel, testified that, at the
request of Robert Elliott, he signed a union authorization card on or about October
17, 1952, that after thinking about it he decided he did not want the Union to repre-
sent him and that "a day or two" after signing the card he let it be known "all over
the whole plant," and specifically to Robert Elliott, that he did not want the Union'
to represent him. There is no evidence that Luther Hightower was active on behalf
8 Molene Goforth Wilma Elizabeth Eaton Harold Stone
Robert E. Elliott Bill Evans Leonard Young
Minnie Elliott Hoyt Goforth L. E. Stone
Oscar Hightower Leon Greenway Bill Evans
Helen Anderson Taft Kelly Sam Hightower
Nealey Baldridge John T Hightower Honor Godfrey
Robert H. Banks Huston Hightower Marion Davis Hightower
Varnie Banks Buddy Jim Chastain Bessie Marie Farmer
Jewell Dillard Bill Chastain Lee Young
Robert Duckett Vesta Young Estie Payne
W. D. Duckett Maggie Taylor John Henry Langham
James Barnes Janell Young Hugh Ray
Mae Belle Barnes Cora Taylor Frank Beasley
Margie Lee Watson Myrtle Stamey James Hancock
Ernest Young Joe Stamey Harold Clayton Long
J. C. Hightower Ruby E Prince Alma Smith
Walter Jarrard Alpha Kate Martin Monnie Collett
Agnes Mullins Wayne Kincaid Christine Collett
Jessie Mullins Dora Bell Jordan Isum Payne
W. A Gross Don Henson Florence Long
Mae Cox Mrs Willer Hancock Thurmond Carver
Laura Fitzsimmons John Hales Geneva Tinsley
Lucy Ingram Diller Hales Della R. Fowler
Rosa Long Naomi Greenway Bertie Lee Wilson
Luther Hightower Betty Joe Dillard Jimmy Thompson
Lassie Petty Edgar Moss
Iver T. Elliott Hazel Goss
9 Alma Smith, Harold Clayton Long, Homer Young (not relied upon by the General
Counsel), Leonard Young, Margie Lee Watson, Geneva Tinsley, Hugh Ray, Lassie Petty,
Oma Pendley (not relied upon by General Counsel), Jessie Mullins, Agnes Mullins, Walter
Jarrard, Luther Hightower, J. C Hightower, Molene Goforth, Honor Godfrey, Minnie
Elliott, Rosa Long, Lucy Ingram, John Henry Langham, Thurman Carver, and Florence
Long.
to Edgar ,Moss, Lee Young, Bertie Lee Wilson, Jimmie Thompson, Isum Payne, Estie
Payne, Sam Hightower, W A Gross, Hazel Goss, Della R Fowler, Laura Fitzsimmons,
Robert E Elliott, Mae Cox, Christine Collett, Oscar Hightower, Bessie Marie Farmer, Mon-
nie Collett, Mae Belle Barnes, Earnest Young, Helen Anderson, Nealey Baldridge, Robert
H Banks, Varnie Banks, Frank Beasley, Betty Joe Dillard, Jewell Dillard, Robert Duckett,
W D Duckett, Iver T Elliott, Wilma Elizabeth Eaton, Bill Evans, Hoyt Goforth, Leon
Greenway, Taft Kelly, Marion Davis Hightower, John T. Hightower, Huston Hightower,
Buddy Jim Chastain, Bill Chastain. Vesta Young, Janell Young, Maggie Taylor, Cora
Taylor, Harold Stone, L. E. Stone, Myrtle Stamey, Joe Stamey, Ruby E. Prince, Alpha
Kate Martin, Wayne Kincaid, Dora Bell Jordan, Don Henson, Mrs. Willer Hancock, James
Hancock, John Hales, Diller Hales, Naomi Greenway, Earnest James Barnes (list on pay-
roll listings as Earnest Barnes)
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Union. The undersigned believes and finds that this card should not be
counted in determining the majority status of the Union.
Excluding the authorizations of Lassie Petty and Luther Hightower from consid-
eration of the 78 authorizations relied upon, the remaining 76 authorizations would
not be sufficient to constitute a majority, and it is not necessary herein to rule upon
(and the undersigned is not ruling upon) the remaining contested authorizations.
Turning now to November 17, 1952, the remaining date on which it is alleged that
Respondent Terry refused to bargain, the record reveals that there were 146 em-
ployees on the payroll as of November 13, 1952 (the payroll nearest November 17),
and that one person not on that payroll, neverthless, was an employee on November
17-L. E. Stone. Accordingly it is incumbent upon the General Counsel to establish
that at least 74 of these employees had designated the Union as their bargaining agent
on or before November 17, 1952. Of the 78 authorizations relied upon by the
General Counsel, 6 represent employees whose names do not appear on the list of
employees as of November 13, 1952-Molene Goforth, Helen Anderson, Nealey
Baldridge, John Hales, Lee Young, and Jimmy Thompson. Since the remaining 72
authorizations are not sufficient to constitute a majority no effort is made to pass upon
the issues raised with respect to these.
As the undersigned has found that the evidence is insufficient to establish that the
Union represented a majority of the employees on the dates crucial herein, the under-
signed further finds no unlawful refusal to bargain by the Respondent Terry.'
B. The discharges
It is alleged that Respondent Terry on or about January 2, 1953, discharged Lassie
Petty and Geneva Tinsley because of their union activities and because they engaged
in concerted activities. Respondent Terry contends that they were discharged
because they left their jobs without notifying anybody.
As noted elsewhere in this report, Petty signed a union authorization card on or
about October 19, 1952, and 2 days later repudiated the Union. There is no evi-
dence that she was thereafter active on its behalf. Tinsley signed a union authoriza-
tion card on October 19, 1952, but there is no evidence she was active on its behalf.
There is evidence that a few days prior to the discharges Foreman Dowde indicated
to Petty that he thought Tinsley was "for the Union," and, as noted elsewhere herein,
evidence that Dowde indicated opposition to the Union.
Respondent Terry processes chickens via a production line system and Petty and
Tinsley worked on this production line-Petty "cutting button holes" and Tinsley
"cutting down."
December 26 and 27, 1952 (Friday and Saturday), were regular workdays at the
plant. Prior to these dates Petty asked permission to be off December 26 and 27
and Foreman Dowde refused such permission saying "if you get off it is on your
own." Nevertheless, Petty and her sister-in-law, Tinsley," did not report for work
on December 26 and 27 and did not notify Respondent Terry concerning their
absence, although they lived only a few hundred feet from the plant.
On Monday, December 29, 1952, Petty and Tinsley reported at the plant ready
for work but were not permitted to do so until they saw Underwood, plant manager.
Underwood criticized them for being absent without permission, pointing out to
them that absenteeism was a serious matter in view of the number of workers out
because of illness and other emergency problems, told them they were needed, and
sent them back to work.
On January 2, 1953, some of the employees working in the immediate vicinity of
a washer, including Petty, requested that action be taken to alleviate certain exist-
ing conditions affecting their physical comfort. The details concerning what occurred
on this date are thoroughly conflicting and contradictory. Nevertheless, the under-
signed has endeavored to reconstruct the situation, and believes and finds the facts
to be as follows."
u In view of the finding of lack of majority the undersigned is not passing upon the
merits of Respondent Terry's refusal to bargain.
12 Petty and Tinsley are sisters-in-law, live in the same house, and worked in the imme-
diate vicinity of one another-almost opposite one another.
IS The findings of fact made here and elsewhere in this report are based upon a consider-
eration of the entire record and observations of witnesses. All evidence on disputed
points is not set forth so as not to burden unnecessarily this report. However, all has
been considered and where required resolved. In determining credibility the undersigned
has considered inter alia ; the demeanor and conduct of witnesses, their candor or lack
;hereof, their apparent fairness, bias, or prejudice; their interest or lack thereof; their
TERRY POULTRY COMPANY 1111
When the employees arrived at the plant ready for work on January 2, the over-
head heating units were turned on. Shortly after beginning work the "boys changing
chickens" complained about fog, steam , or mist in the plant and asked that the attic
(exhaust) fan be turned on. At about the same time "some of the women" asked
that the overhead heaters be turned off. Foreman Dowde turned the attic fan on
and the heaters (5, 1 of which blows hot air toward employees working at the
washer) off. About 15 minutes later (about 10:30 a. m.) Petty and Tinsley com-
plained that they were too uncomfortable and asked that the attic fan be turned off.
Tinsley also asked that the heaters be turned on. At about this time Bonnie Cantrell,
an employee at the washer, complained about getting wet and requested to be moved.
Underwood, plant manager, moved the employees away from the immediate vicinity
of the washer and in doing so removed a barrel which Tinsley had been using.
Dowde, foreman, cut off the exhaust fan and turned on the heaters and made a re-
mark to the effect that the fan and heaters would stay in that condition and he would
not make any further adjustments of them. There is dispute as to whether in his
remarks Dowde used the word "damn." The undersigned finds that he did. Shortly
after Underwood and Dowde had left the immediate vicinity of the washer,14 Petty
and Tinsley made some remarks indicative of their displeasure concerning the han-
dling of this situation and that they were leaving their jobs." They went to Under-
wood's office. Underwood was not in when they arrived and they waited about 15
minutes for him. Petty and Tinsley complained to Underwood about the way Dowde
had handled the fan and heater and about his use of the word "damn" and requested
that Dowde be sent for and that the four of them discuss the situation. Underwood
stated that he thought the fan situation had been adjusted and that Dowde was busy
and could not come to the office then but that they (all four) could talk it over at
12:45 and granted Petty and Tinsley permission to leave the plant until that time.
Petty and Tinsley left the plant about 11 a. in. but returned about 12:40 p. m.
About 20 to 25 minutes after Petty and Tinsley left their places of work, Dowde,
in response to appeals for help from other employees, replaced them temporarily.
At about noon Dowde asked Underwood if he knew where Petty and Tinsley were
and Underwood related the conversation he (Underwood) had had with them and
stated they had gone home. Underwood asked Dowde "about the cursing" and he
(Dowde) said "there wasn't any." Dowde stated that Petty and Tinsley did not get
his permission to see Underwood and that they "walked off the line" and "left chickens
going around" and that as a result "a lot of chickens" went through without being
properly handled and had to be reworked.16
At about 12:45 p. in. Underwood and Dowde discussed the events which had
occurred that morning (outlined above) and some motor trouble then current. As
Dowde left Underwood's office Petty and Tinsley entered. Underwood told them
that he had discussed the matter with Dowde and that in view of their walking off
the job without permission their services were no longer desired and they were dis-
charged.17
Suspicion is cast upon Respondent's position corncerning the absence of Petty and
Tinsley on January 2, 1953, in view of the fact that these employees were absent
without permission for 2 days (on December 26 and 27) and suffered only a mild
ability to know, comprehend, and understand matters about which they have testified
whether they have been contradicted or otherwise impeached ; and consistency and in-
herent probability of the testimony.
is There is dispute as to whether Underwood left before Petty and Tinsley. The under-
signed finds that he did.
" Respondent Terry permits employees to leave the production line for short intervals
if they make arrangements with their immediate fellow workers, or their foreman, to take
care of their work during their absence. Petty and Tinsley did not make any such ar-
rangements.
19 Respondent Terry's operations are such that normally 2,800 chickens per hour are
handled on this production line. This record does not reflect the number of chickens not
properly processed between the time Petty and Tinsley left the line and the time Dowde
replaced them-20 to 25 minutes later.
11 Petty first testified she protested Underwood's statement about leaving without per-
mission by stating that he knew they were leaving their jobs because be was standing
there at the time (she had earlier testified she and Tinsley left the vicinity of the washer
before Underwood which testimony, in the light of the entire record, is not credited) and
later testified she made no mention of his standing there when they left but that she told
him he knew they were off the job because he had sent them home. The undersigned
finds the facts concerning the conversation at the time of the discharges to be as outlined
above.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criticism therefore and in view of the fact that there is no evidence that Respondent
was busier on January 2 than on December 26 and 27 or that a greater production
problem was created on January 2. The issue, however, is not whether Respondent
acted arbitrarily, unfairly, or capriciously but whether he was motivated in discharg-
ing these employees by considerations proscribed by the Act. The undersigned
believes and finds that he was not. Although Petty and Tinsley acted in concert in
leaving their jobs and presenting their grievance, such fact alone does not establish
that they were discharged for union or concerted activities. It must be established
from the entire record that Respondent Terry dicharged them because of his attitude
of hostility and opposition to union or concerted activities rather than because of
his dissatisfaction with their services. As noted elsewhere in this report there is
a background of union hostility on the part of Respondent Terry. Nevertheless,
the undersigned is not convinced that the evidence in this case establishes that Petty
and Tinsley were discharged for union or concerted activities and that Respondent
Terry assigned absence from work without permission as a pretext to conceal his
antiunion motive or his opposition to concerted activities.
ULTIMATE FINDINGS AND CONCLUSIONS
In view of the foregoing, and upon consideration of the entire record, the under-
signed finds and concludes that:
(1) Doyle W. Terry d/b/a Terry Poultry Company is engaged in commerce within
the meaning of the Act.
(2) Local No. 442, Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL, is a labor organization within the meaning of the Act.
(3) By the conduct outlined above, in the section entitled "Interference, Restraint,
or Coercion," Respondent Terry interfered with, restrained, and coerced employees
in violation of Section 8 (a) (1) of the Act and that these unfair labor practices
occurring in connection with the operations of Respondent Terry's business, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
(4) The evidence adduced does not establish that at the times material herein
the Union represented a majority of the employees in the appropriate bargaining unit.
(5) The evidence adduced does not establish that Respondent Terry discharged
Lassie Petty and Geneva Tinsley because of their membership in and activities on
behalf of the Union, or because they engaged in concerted activities with other
employees for the purpose of collective bargaining and other mutual aid and
protection.
(6) The evidence adduced does not establish that Respondent Terry and Respond-
ent Wood-Hill engaged in a joint enterprise, as a single employer, for the construc-
tion of a boiler.
(7) The evidence adduced does not establish that The Wood-Hill Food Products
Company engaged in unfair labor practices.
IT. THE REMEDY
Having found that Respondent Terry engaged in unfair labor practices in violation
of the Act, the undersigned recommends that he, to effectuate the policies of the
Act, take the action hereinafter specified.
Since it has been found that the evidence adduced does not support certain allega-
tions of the complaint, as amended, the undersigned recommends that these allega-
tions be dismissed.
[Recommendations omitted from publication.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, notice is hereby given that Doyle W. Terry, doing business as Terry
Poultry Company:
WILL NOT discourage self-organization or concerted activities among employees
for their mutual aid and protection as guaranteed in Section 7 of the Act or
discourage membership in Local No. 442, Amalgamated Meat Cutters & Butcher
UNITED STATES GYPSUM COMPANY 1113
Workmen of North America, AFL, or any other labor organization by threaten-
ing employees with economic reprisals because of such activities.
WILL NOT in any other manner interfere with, restrain, or coerce employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist Local No. 442, Amalgamated Meat Cutters & Butcher Work-
men of North America, AFL, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain
from any or all of such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8 (a) (3) of the Act.
All employees are free to become, remain, or to refrain from becoming or remain-
ing, members of any labor organization except to the extent that his right may be
affected by an agreement in conformity with Section 8 (a) (3) of the National
Labor Relations Act.
DOYLE W. TERRY, D/B/A
TERRY POULTRY COMPANY,
Employer.
Dated---------------- By----------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
UNITED STATES GYPSUM COMPANY and UNITED STEELWORKERS OF
AMERICA, CIO. Case No. 8-CA-814. August 31, 1954
Decision and Order
On March 19, 1954, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Charging Union filed exceptions to
the Intermediate Report and a supporting brief. The Respondent
filed exceptions to the Trial Examiner's failure to make certain find-
ings pertaining to the validity of the Board certification of the Steel-
workers as bargaining representative for the unit of the Respondent's
employees here involved 1 and a brief in support of the Trial Exam-
iner's findings and conclusions resulting in dismissal of the complaint.
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 affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.2
IIn United States Gypsum Company, 8-RC-1545, issued May 5, 1952 (not reported in
printed volumes of Board Decisions and Orders) ; and 100 NLRB 1100 (Supplemental De-
cision and Certification of Representatives).
2 In the light of this determination, we find it unnecessary to pass upon the merits of
certain additional defenses of the Respondent upon which the Trial Examiner has not
ruled.
109 NLRB No. 159.