Keeshin Poultry Co.

KEESHIN POULTRY COMPANY 467 D. The alleged interference, restraint, and Coercion The complaint alleged that the Respondent had "threatened and warned its employees to refrain from assisting, supporting, becoming members of, or remaining members of the UMW."" The General Counsel conceded that this allegation was based largely upon the evidence relating to the discharge of Jenifer and the refusal to reinstate the eight other employees named in the complaint. In view of the findings and conclusions set forth above, however, the under- signed concludes and finds on the record herein that the Respondent did not interfere with, restrain, or coerce its employees in violation of the rights guaranteed in Section 7 of the Act. Upon the foregoing findings of fact and upon the entire record in the case,, the undersigned makes the following : CONCLUSIONS OF LAW 1. The Respondent, The Office Towel Supply Company, Incorporated, is en- gaged in commerce, within the meaning of Section 2 (6) and (7) of the Act. 2. The C. I. 0. and the UMW are labor organizations within the meaning of Section 2 (5) of the Act. 3. The Respondent has not engaged in unfair labor practices as alleged in. the complaint, within the meaning of Section 8 (a) (1) and (3) of the Act. Recommendations Upon the basis of the foregoing findings of fact and conclusions of law, the- undersigned recommends that the complaint be dismissed in its entirety. 20 At the hearing, the undersigned granted a motion by the General Counsel to delete from the complaint an allegation that the Respondent had "coerced, persuaded and solicited employees individually to return to work and abandon their concerted activities and desert the UMW." KEESHIN POULTRY COMPANY and AMALGAMATED MEAT CUTTERS AND' BUTCHER WORKMEN OF NORTH AMERICA , AFL. Cases Nos.. 32-CA-156 and 32-RC-2,9,9. December 12, 1951 Decision, Direction and Order On June 8, 1951, Trial Examiner David F. Doyle issued his Inter- mediate Report in the above-entitled consolidated proceedings, find- ing that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices, and recommended dismissal of this allegation of the complaint. The Trial Examiner recommended, further, that the challenge to the ballot of Charles P_ Iierd be overruled and his ballot opened and counted, and that. if the Union did not thereafter withdraw its objections to the election held on December 6, 1950, among the Respondent's employees, 97 NLRB No. 70. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this election be set aside.' Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief: The Board 2 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following additions and modifications : 3 1. We find, in accord with the conclusion of the Trial Examiner, that the Respondent discriminatorily discharged Charles P. Herd on October 3, 1950, in violation of Section 8 (a) (3) and 8 (a) (1) of the Act. The facts surrounding Herd's discharge are largely undisputed. As found by the Trial Examiner, the Union began an organizational campaign at the Respondent's plant on October 2, 1950. That after- noon, Herd met with Gilker and Buckner, representatives of the Union, and assisted them in passing out handbills to employees of the Respondent outside the plant. Among the individuals to whom they gave handbills were Foremen Shaddox and Breeze and chicken buyer Winkleman. That evening, Herd and a group of employees, including Breeze and Winkleman, were present at a restaurant when Herd, in response to a question from another employee, stated that he thought that the Union was "a good thing." 4 During the noon 1 The tally of ballots reveals that , of 85 ballots cast, 42 were for the Union, 42 were against the Union , an 1 ballot, that of Charles P. Herd, was challenged 2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel jMembers Houston, Murdock , and Styles]. 3 The Intermediate Report contains several misstatements of fact and inadvertences, none of which affects the Trial Examiner 's ultimate conclusions or our concurrence therein. However, we note the following corrections (1) Herd worked until approximately 12:12 p. in., not 12 12 a. in, on October 3; (2) although the Trial Examiner found that Herd testified that Mundy warned Herd about his smoking in August 1950 , Herd did not mention the date of this warning; ( 3) Herd testified that he spoke to Sanders about smoking in the plant approximately 1 month before Burr's warning to him, and about 3 months before he was discharged , rather than a month before his discharge , a5 the Trial Examiner found; (4) Fletcher testified that he had seen many employees smoking in the cooling room, including employee Williams , whom the Trial Examiner mistakenly referred to as Wilson ; and (5 ) the Trial Examiner incorrectly stated that Herd admitted to having received three warnings about his smoking during a 10-month period , whereas Herd testified that he had received only two warnings during the 10 months that he worked in the cooling room. We note, in addition , that the Trial Examiner made no mention of the testimony of Thomas Sanders, the United States Department of Agriculture inspector assigned to the Respondent's plant. We have considered Sanders' testimony , but for the reasons stated in paragraph 1, infra, we do not rely on it. 4 Winklenian testified that he was out of town on the afternoon of October 2 and did not return until approximately 6 or 7 o'clock that evening , and that he received a handbill from Gilker and Buckner a day or so later . The record establishes , however , that Gilker and Buckner passed out handbills at the Respondent 's plant only on October 2. winkleman also testified that, although he was present at Paul's Cafe on the evening of October 2 , he heard no talk about the Union According to the credited testimony of Fletcher and Charles Williams , however, Winkleman was present during the time that Herd was talking , in favor of the Union. KEESHIN POULTRY COMPANY 469 hour of the following day, Plant Manager Larkin summarily dis- charged Herd, stating as the reason therefor that Herd was smoking on the job .5 The Respondent contends that it discharged Herd, not because of his union activities, but for the reason given him at the time, namely, that he was smoking in the cooling room in violation of plant rules prescribed by the United States Department of Agriculture,. Although it is undisputed that, at the time of Herd's discharge, the Respondent's plant was subject to a Department of Agriculture regu- lation which prohibited smoking "in any room where exposed edible products [were] prepared, processed, or otherwise handled," it is equally clear that, until Herd's discharge, the Respondent had not disciplined even one of the many who had disregarded this regulation. Indeed, it is apparent from the credited testimony of employees Glenola Williams, Roy Fletcher, Charles Williams, and Wesley John- son on this issue that most of the employees, including Herd, Fletcher, Charles Williams, Minch, and Jones, had smoked throughout the plant, except in the eviscerating room when eviscerating operations were going on, and that Foremen Shaddox, Breeze, and Burr, chicken buyer Winkleman, Plant Manager Larkins and Sanders, the plant inspector for the Department of Agriculture, had smoked in the cooling room. Moreover, the Respondent had never posted the De- -partment of Agriculture regulation nor did it post any "No Smoking" signs about the plant until more than 2 months after Herd's discharge.? The Respondent admits that, until Herd's discharge, it had not rigidly enforced the no-smoking rule. It contends, however, that, in the late summer or early fall of 1950, it was informed by representatives of the Department of Agriculture that it would have to enforce this regulation more strictly in order to get things "in shape" for the Jan- uary 1, 1951, change-over of sanitary requirements prescribed in the Department's regulations. Therefore, the Respondent argues, in order to effectuate these instructions and to correct the general dis- regard of the no-smoking rule, it decided to discharge Herd, the only employee who had consistently violated the rule against smoking. We find no merit to this contention. In its brief, the Respondent contends that Herd's immediate attempt to "alibi" about his smoking when Larkin told him he was being discharged shows that Herd knew that he was being discharged for smoking on the job Larkin's testimony establishes, however, that Herd had inquired , and Larkin had informed Herd, of the reason for his discharge before Herd attempted to excuse his conduct. e Larkin admitted having smoked in the cooling and eviscerating rooms while operations were going on. 7 Larkin testified that the only notice of this regulation given to the employees occurred on August 8, 1949 , the day the eviscerating and cooling rooms started to operate . At that time Buchanan, regional director for the Department of Agricultuie, announced to the employees that there would be no smoking in either the cooling or eviscerating room. 986209-52-vol. 97-31 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD First, with respect to the Respondent's position that Herd was the worst offender against the smoking rule," the record establishes that smoking by both employees and supervisors was widespread through- out the plant. Thus, Larkin testified that, before Herd's discharge, he had seen other employees smoking in the plant and had warned them personally, but that, although he was in the cooling room almost daily, he had never seen Herd smoking. Moreover, although Larkin had received two complaints about Herd's smoking, Larkin had never warned Herd personally about this matter. Second, even assuming, as the Respondent contends, that it suddenly became neces- sary, in the fall of 1950, to require stricter adherence to the Depart- ment of Agriculture's smoking regulations, we are satisfied that the Respondent took no steps before Herd's discharge and for more than 2 months thereafter to effectuate this policy of more rigid compliance. Thus, the Respondent did not post any "No Smoking" signs until about the first of January 1951, nor did it ever specifically notify its employees of its allegedly more rigid requirements. Further, even after Herd's discharge and after "No Smoking" signs had been posted throughout the plant, the Respondent continued to be lax about enforc- ing the Department of Agriculture's smoking regulations. Thus, although Breeze, Lovell, and Larkin saw employees Wesley Johnson, Clyde Nida, and Charles Williams smoking, they merely warned them, and did not take the extreme disciplinary measure allegedly deemed .necessary in Herd's case. On the basis of these facts, and particularly the Respondent's laxity, both before and after Herd's discharge, in enforcing its no-smoking rule, it appears highly improbable that the Respondent would have discharged Herd for smoking on the job were it not for Herd's active participation in the Union's organizational campaign. As the Trial Examiner properly found, Herd's union activity was open and public and, by the evening of October 2, such activity was known to Foremen Breeze and Shaddox and chicken buyer Winkle- man. Moreover, we find, as did the Trial Examiner, that Plant Man- ager Larkin was aware of Herd's union activity before he discharged Herd on October 3. Thus, the record establishes that Winkleman, Breeze, and Shaddox had already informed Larkin of the Union's 8 The only testimony that would support a conclusion that Herd was the worst offender against the smoking rule is that of Thomas Sanders , the Department of Agriculture inspector assigned to the Respondent's plant. In all crucial respects, however, including the dates and number of complaints made about Herd's smoking and the question of whether "No Smoking" signs were posted in the plant before Herd's discharge, Sanders' testimony is contrary to that of virtually all the other witnesses . Moreover, despite the testimony of all the witnesses to the effect that smoking was widespread before Herd's discharge, Sanders maintained that he had never seen anyone except Herd smoking in the plant. For these reasons, we deem Sanders' testimony unreliable and attach no significance thereto. KEESHIN POULTRY COMPANY 471 distribution of handbills at the plant on the afternoon of October 2.9 In view of Herd's open participation in the union campaign and the small size of the Respondent's plant, it is reasonable to infer, and we find, as the Trial Examiner did, that Larkin also knew, before he discharged Herd, that Herd was the leading union proponent in the plant 10 We conclude, therefore, on the basis of the entire record, including the singling out of Herd , the leading union adherent, for discipline more severe than was ever meted out to other similar offenders, the timing of Herd's discharge, immediately following the start of the Union's organizational campaign, and the Respondent 's independently unlawful conduct, indicative of antiunion animus, discussed below, that the Respondent seized upon Herd's smoking as a pretext and dis- charged Herd, on October 3 , 1950, because of his activities on behalf of the Union. 2. We also find, in agreement with the conclusions of the Trial Examiner, that the Respondent independently violated Section 8 (a) (1) of the Act by the following preelection statements and conduct of its supervisors : 11 (1) Breeze's statements to Glenola Williams, Charles Williams, and Wesley Johnson that, if the Union won the election, the Respondent would close the plant and all the employees would be out of work; ( 2) Breeze's warning to Roy Fletcher to "leave this union business alone" for his own good; (3) Shaddox's interrogation of Fletcher as to how the union campaign was pro- gressing ; (4) Larkin's interrogation of an applicant for employment with respect to her union sympathies ; and (5 ) surveillance of the Union's meeting of October 19, 1950, by Larkin and others of the 9 The Respondent contends that Winkleman could not have informed Larkin of such activity on the evening of October 2 as winkleman himself was not yet aware of it. As pointed out in footnote 4, supra, however, we have found that Winkleman received a handbill from Union Representatives Gilker and Buckner on the afternoon of October 2 and that he was present at Paul's Cafe on the evening of October 2 when Herd spoke in favor of the Union Moreover, at the hearing Larkin admitted having stated, in an affidavit to a Board field examiner , that Winkleman did inform him of such activity on the night of October 2 . Breeze testified that he had told Larkin about the Union's organizational activities before Herd was discharged. The Trial Examiner found, further, in accord with the credited testimony of Glenola Williams, that Shaddox had also informed Larkin of the union activity at the plant during the morning of October 3. We find no merit in the Respondent's contention that the Trial Examiner's finding in this respect is completely contrary to written records intro- duced into evidence by the Respondent . The purchase record referred to establishes merely that on October 3, 1950, the Respondent purchased approximately , 5,000 chickens from a farm in Hiwasse , Arkansas It does not show , as the Respondent contends , that this purchase was made during the morning of October 3 or that Shaddox was present at the farm when the purchase was made. io Danion Coil Company, Inc., 96 NLRB 1435; F W Woolworth Company, 90 NLRB 289 11 Foremen Breeze and Shaddox and their superior , Plant Manager Larkin, are part of the managerial hierarchy charged with the responsible direction of the rank -and-file employees at the Respondent's plant In addition , both Breeze and Shaddox testified that, at the time these statements were made , they possessed the power to hire and fire employees. We find , therefore , that Breeze, Shaddox, and Larkin are supervisors within the meaning of the Act. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's supervisors. Unlike the Trial Examiner, however, we find that Breeze's question asked of Fletcher and Glenola Williams as to what they expected to have left of their pay after the' Govern- ment and the Union each got its cut was not violative of Section 8 (a) (1) of the Act'2 3. We have found, in accord with the conclusion of the Trial Exam- iner, that the Respondent discriminatorily discharged Charles P. Herd on October 3, 1950, in violation of Section 8 (a) (3) and 8 (a) (1) of the Act. Like the Trial Examiner, therefore, we shall overrule the challenge to Herd's ballot in the election held on December 6, 1950, and shall direct that his ballot be opened and counted. In the event that Herd's ballot was cast for the Union, thereby giving the Union a majority of the votes cast despite the preelection misconduct by the Respondent found herein, we shall certify the Union as the bargaining representative of the Respondent's employees.13 In the event, however, that Herd's ballot was cast against the Union, or proves to be invalid for any reason, we shall set aside the election held on December 6, 1950, and shall direct a new election when the Regional Director advises the Board that the circumstances permit a free expression by the employees of their desires with respect to representation.14 Direction IT IS HEREBY DIRECTED that the Regional Director for the Fifteenth Region shall, pursuant to the Rules and Regulations of the Board, within ten (10) days from the date of this Direction, open and count the ballot of Charles P. Herd, and thereafter shall prepare and serve upon the parties a supplemental tally of ballots, including therein the count of said challenged ballot. Order Upon the entire record in these cases and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Rela- tions Board hereby orders that the Respondent, Keeshin Poultry Company, Rogers, Arkansas, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, or in any other labor '' As no exceptions have been filed to the Trial Examiner 's failure to find, as alleged in the complaint, that the Respondent further violated Section 8 (a) (1) of the Act by informing its employees that it would have given a raise in pay if the Union had not begun its organizational campaign ; we deem it unnecessary to pass upon this issue. 13 Unlike the Trial Examiner , we find it unnecessary to provide for the Union's with- drawing its objections to the election held on December 6, 1950 , in the event that it has won this election Cf. Meridian Grain & Elevator Company, 74 NLRB 900. " F. W Woolworth Company, footnote 10, supra. KEESHIN POULTRY COMPANY 473 organization of its employees, by discharging and refusing to reinstate any of its employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment. (b) Interrogating its employees with respect to union activities; interrogating applicants for employment concerning their union sym- pathies ; threatening to close its plant if the Union should win an election; threatening its employees with reprisals if they continue to engage in union activities ; and engaging in surveillance of its em- ployees' union meetings. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all 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 amended Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Charles B. Herd immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Make whole Charles P. Herd, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," for any loss of pay he may have suffered as a result of the Respondent's dis- crimination against him. (c) Upon request, make available to the National Labor Relations Board, or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to an analysis of the amount of back pay due under the terms of this Order. (d) Post at its plant in Rogers, Arkansas, copies of the notice at- tached hereto and marked "Appendix A." 16 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and main- tained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily 'a In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words, "A Decision and Order," the words , "A Decree of the United States Court of Appeals Enforcing." 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Fifteenth Region, in writ- ing, within ten (1'0) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges vio- lations of the Act -different from those found in this Decision, Direc- tion, and Order, be, and it hereby is, dismissed. IT IS FURTHER ORDERED that objections numbered 4 and 5 of the Union's objections to conduct affecting the results of the election conducted on December 6, 1950, be, and they hereby are, overruled. IT IS FURTHER ORDERED that, in the event that the Union has lost the election conducted on December 6, 1950, among the employees of Keeshin Poultry Company, Rogers, Arkansas, this election be, and it hereby is, set aside 16 Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Re- lations Act, as amended, we hereby notify our employees that : AVE WILL NOT discourage membership in AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL, or in any other labor organization of our employees, by discharging or refusing to reinstate any of our employees or by discriminating in any other manner in regard to their hire or tenure of employ- ment or any term or condition of their employment. WE WILL NOT interrogate our employees with respect to their union activities; interrogate applicants for employment concern- ing their union sympathies; threaten to close our plant if AMAL- GAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMER- ICA, AFL, should win a Board-conducted election; threaten our employees with reprisals if they continue po engage in union activ- ities; or engage in surveillance of our employees' union meetings. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self -organiza- tion, to form labor organizations, to join or assist AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL, or any other labor organization, to bargain collectively through 11 In the event that this election is set aside , we shall direct that a new election be held among the Respondent 's employees after the Regional Director has advised the Board that the circumstances permit a free choice of representatives. KEESHIN POULTRY COMPANY 475 representatives of their own choosing, to engage in concerted ac- tivities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in amended Section 8 (a) (3) of the Act. WE WILL offer to Charles P. Herd immediate and full reinstate- inent to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and will make him whole for any loss of pay he may have suffered as a result of our discrimination against him. All our employees are free to become, remain, or to refrain from becoming or remaining, members of the above-named union or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with amended Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. KEESHIN 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. Intermediate Report and Recommended Order STATEMENT OF THE CASE On October 24, 1950, the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, herein called the Union, filed a charge with the Regional Director for the Fifteenth Region ( New Orleans, Louisiana ) herein called the Re- gional Director in Case No. 32-CA-156 alleging that Keeshin Poultry Company, herein called Respondent or the Company , had committed unfair labor practices at its plant in Rogers , Arkansas , within the meaning of Section 8 ( a) (1) and (3) and Section 2 (6) and ( 7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. On April 11, 1951, the National Labor Relations Board, herein called the Board, remanded Case No. 32-RC-299 (in which the Regional Director conducted an election among the employees of the Respondent 's plant at Rogers, Arkansas, on December 6, 1950, pursuant to a stipulation for certification upon consent election ) for the purpose of adducing testimony concerning substantial and material issues of fact raised by the Union 's objections to the election. The Board's order also adopted the recommendation of the Regional Director that disposition of the challenged ballot await the result of a hearing in Case No. 32-CA-156. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On March 22, 1951, the General Counsel of the Board' on the basis of the charge above mentioned, issued his complaint against the Respondent alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 ( a) (1) and (3) and Section 2 ( 6) and (7) of the Act. With respect to the unfair labor practices the complaint alleged in substance that the Respondent ( 1) on October 3, 1950, terminated the employ- ment of Charles P. Herd and thereafter failed and refused to reinstate him because of his membership in and activities on behalf of the Union and-because he engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection ; ( 2) through its agents, foremen , and superintendent, interfered with , restrained, and coerced its em- ployees in the exercise of their rights to organize , form, join , or assist labor organizations and to bargain collectively through representatives of their own choosing by (a) interrogating prospective employees concerning membership in the Union , ( b) advising employees not to participate in union activities, (c) threatening employees that if the plant was organized the Respondent would close the plant, ( d) interrogating employees as to their union sympathies and inquiring about the progress of the Union 's organizational campaign , ( e) stating to employees that the Company would have given a raise in pay if the Union had not begun the organizational campaign, and (f) practicing surveillance upon a union meeting held October 20, 1950. ' The Regional Director 's report on challenged ballots and objections dated March 22, 1951, states that the Union 's objections were based on the following- conduct of the employer: 1. The Company through its supervisors exercised surveillance on union meetings. 2. The Company made threats to close the plant and threats of reprisal against employees who were union sympathizers. 3. The Company screened employees and applicants for employment as to their feeling toward the Union. 4. The Company's plant manager made two captive audience speeches which contained statements in violation of the National Labor Relations Act. 5. The Company made other threats both to employees and nonemployees which were in violation of the National Labor Relations Act. 6. The same report on challenged ballots and objections states that Charles P. Herd was challenged by the observer for the Company on the ground that his name did not appear on the list of employees eligible to vote. The investigation of the Regional Director disclosed that Herd is a former employee who was dis- charged on October 3, 1950, and that the Union contends that such discharge was discriminatory and has filed a charge in Case No. 32-CA-156. On March 30, 1951 , the Respondent timely filed its answer to the complaint. This answer admitted the jurisdictional facts of the Respondent 's business as alleged in the complaint but specifically denied the commission of any unfair labor practice. On April 10, 1951, the General Counsel amended the complaint and thereafter the Respondent interposed a timely answer to the amendment. On April 11 , 1951, the Regional Director ordered that Cases Nos. 32-CA-156' and 32-RC-299 be consolidated and issued a notice of hearing to the parties stating that a hearing on the issues herein would be conducted by a Trial Examiner on the 17th day of April 1951 , at Rogers, Arkansas. Pursuant to this notice a hearing was held on April 17-18, 1951 , at Rogers, Arkansas, before David F. Doyle, the undersigned Trial Examiner duly desig- x The General Counsel and his representative at the hearing are referred to herein as the General Counsel. KEESHIN POULTRY COMPANY 477 •nated by the Chief Trial Examiner. The Respondent, the General Counsel, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing on the issues was afforded all parties. At the opening of the hearing the Respondent moved to separate the hearing in Case No. 32-RC-299 from that in Case No. 32-CA-156 on the ground that the hearing of the two cases would result in confusion and serve no useful pur- pose. This motion was denied on the ground that the issues and transactions upon which the issues were based were very similar if not identical and on the ground that consolidation of the cases had been properly effected.2 The Respond- ent also moved to invoke the rule for the exclusion of witnesses from the hearing room. This motion was also denied on the ground that there appeared to be no adequate reason for the invocation of the rule. At the close of the hearing Respondent moved to dismiss the complaint and the objections to the conduct of the election for the failure or lack of proof. The undersigned reserved ruling on these motions. They are hereby denied for the reasons set forth in this Report. Upon the conclusion of the hearing the undersigned advised the parties that they might argue orally and file briefs with the Trial Examiner. The Respond- ent thereafter submitted a brief. The Union and the General Counsel did not. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Keeshin Poultry Company, is an Illinois corporation engaged in the processing of poultry, with its principal office in Chicago, Illinois. Re- spondent operates several plants, including the plant at Rogers, Arkansas. In the course and conduct of its business at its Rogers plant, Respondent purchased in the 12-month period prior to March 22, 1951, live poultry and other raw mate- rials in excess of $700,000, of which amount approximately 10 percent was purchased and shipped from points outside of the State of Arkansas. In the same period, the Respondent at its Rogers plant processed, sold, and distributed finished products in the form of dressed poultry of a value in excess of $900,000, of which amount approximately 90 percent was shipped from the plant to and through States of the United States other than the State of Arkansas. The Respondent concedes and the undersigned finds that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, -is a labor organization within the meaning of Section 2 (5) of the Act' III. THE UNFAIR LABOR PRACTICES 4 A. Background, undisputed facts For several years past, the Respondent has conducted its business of killing .and processing poultry for market at Rogers, Arkansas. Prior to October 1950, N. L R. B. v. La Salle Steel Co., 178 F. 2d 829-832 (C. A. 7). This finding is based on the pleadings. 4 All dates in this section of the Report are in 1950 unless otherwise noted. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees, who on that date numbered approximately 95, -had not been organized by any of the unions. A few months prior to October in that year, the Union inaugurated an organizational campaign in the poultry processing industry in northwest Arkansas. - - Operations at the Company 's plant are conducted in three principal depart- ments . One department is referred to as the killing or picking room, in which live poultry is .killed, the feathers plucked, and the fowl washed. The second department is known as the cooling room, in which the poultry is weighed for size and placed for a period of approximately 2 hours in cold water to cool it. The third department is called the eviscerating room, in which the viscera of the poultry is removed and the poultry butchered and packed These rooms are connected by two chains which act as an assembly line. One chain begins at the place where the chickens are killed and carries the chickens past the workers who pluck them, through the mechanical washer and ends at the cooling room. Charles P. Herd was an employee of the Company up to October 3, 1950. For some time prior to that date, his job was in the cooling room His duties re- quired that he stand in the cooling room at the place where the chain entered the cooling room from the picking room and to remove from the moving chain the chickens which were attached to the chain by means of a metal clamp or shackle. When he removed each chicken he passed it to a female employee who weighed the same and placed it in a cooling tank according to size. In the cooling room other workers, after the chickens were cooled, placed them on the second chain which ran into the eviscerating room. The operations of the plant are under the inspection of the United States De- partment of Agriculture . For some time prior to October 1950, Thomas E. Sanders was the poultry inspector assigned by the Department of Agriculture to the plant. It was his duty to inspect the sanitary conditions under which the poultry was processed. The regulation applicable to the Respondent's plant is entitled "Rules and United States Specifications , United States Department of Agriculture, Production and Marketing Administration, Poultry Branch, Part 70, Subpart A, Section 70.16 (P-4) reprinted in Federal Register of November 15,- 1949, effective January 1, 1950." The section here involved reads as follows : "Neither smoking nor chewing 'tobacco shall be permitted in any room where exposed edible products are being prepared , processed or otherwise handled." Section 70.3 (H) reads as follows: "The provisions of Section 70.16 and 7017 shall not become applicable to the production of dressed poultry and domestic rabbits, as such, until one year after the effective date in this part. During such one-year period dressed poultry and dressed domestic rabbits which have been produced in other than official plants may be brought into official plants for grading, inspection , and processing thereof. , After such one-year period, only dressed poultry and dressed domestic rabbits from an official plant may be brought into another official plant for any grading , inspection and processing thereof." - - It was undisputed that the plant of the Respondent was an official plant within the meaning of the above section. It was undisputed that Herd, the employee named in the complaint , was discharged by Oral F. Larkin , superintendent of the plant, on October 3, 1950. B. The content -tons of the parties It is the contention of the Union that Herd was fired because he participated in union and other concerted activities. It is the contention of the Respondent that Herd was fired because he was caught smoking in the cooling room, a place where smoking was prohibited . The Company denies that it committed the other acts alleged in the complaint and in the objections to conduct of election. KEESHIN POULTRY COMPANY C. Testimony presented by General Counsel - 479 James Gilker ,, international representative of the Union , testified credibly that the organizational compaign of the Union at the Respondent 's plant was begun by Everett Buckner , another union relresentative , and himself on Octo- ber 2, 1950. On that date the union organizers engaged in passing out handbills to which were attached authorization cards and envelopes addressed to the Union to employees of the Fox Deluxe Foods Company, another poultry concern about a block from the Keeshin plant. While the union representatives were passing out handbills, Charles P Heid, the dischargee, engaged them in conversa- tion. Herd was favorably disposed to the Union. After some conversation, the union representatives agreed to meet Herd near the Keeshin plant about 4': 30 p. in and to pass out handbills to the employees of the Respondent, and to the employees of the Crown Poultry Company, which was located across the street from the Keeshin plant. Pursuant to this arrangement, Gilker and Buckner met Herd and engaged in passing out handbills to the employees of the two plants between 4 : 30 and 6 p. in . At that time employees of both plants were quitting. Gilker, who was in the middle of the street giving handbills to employees of both plants, noticed that more employees were leaving the Crown plant than were leaving the Keeshin plant. He asked Herd if the Keeshin plant had another exit. Herd stated that it did, and that someone should be at the other exit to pass out handbills At that time Herd was assisting the union representatives by standing with them in the street and by identifying the em- ployees as being from Crown or Keeshin Gilker explained to Herd that he was fully occupied in front of the plants and he asked Herd to take some hand ills to pass out to the employees who used the second exit Herd agreed to do his and taking some handbills proceeded to the rear of the plant. After few minutes Gilker joined Herd at the rear of the plant. They both stood in the road handing out the literature. Herd, who knew the employees, called to some of them by name. He also took some handbills to employees who were getting into their cars in the parking lot. When Herd was not engaged in this activity he stood and discussed their activities with Gilker. Several men of Keeshin's "chicken pick -up crew" were standing on company property Gilker and Herd called to them and asked them to come over and accept handbills, They approached Gilker and Herd, accepted handbills, and stood around for several minutes talking about the union activity. James O. Shaddox, foreman of the pickup crew, was among this group. He asked Gilker what the latter was doing and Gilker told him that the Union was organizing the plant and that the handbills were a part of the process. Shaddox accepted a handbill, read it, and talked favorably concerning the Union. Gilker asked him about the men who worked under him. Shaddox said several of his crew had gone home, so Gilker gave him several handbills and Shaddox said that he would give them to the men in his crew and get them to sign up. Among the men to whom Gilker gave a handbill was John W. Breeze, foreman of the picking room. Gilker did not know Breeze by name at that time, but one of the employees of Keeshin who was there informed him of Breeze 's identity after Gilker gave him the handbill . Gilker also gave a handbill to Lawrence A. Winkleman, the chicken buyer for Keeshin, who stood beside his truck for several minutes and read the handbill. The operation of handing out handbills occupied about 45 minutes , during all of which time Herd was with Gilker assisting him. On the next day, October 3, 1850, Herd was discharged . A few days thereafter, Gilker went to the Keeshin plant and requested Larkin , the plant manager, to 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reinstate Herd on the ground that Herd had been discharged for union activity. Larkin refused, stating that he had discharged Herd for smoking in violation of the rules. Gilker further testified that on or about October 19 a union meeting, attended by Keeshin employees, was held at the Rogers city hall. About 125 people at- tended the meeting. When the meeting broke up, about 9 p. in., some of the employees who had started out of the building returned and told Gilker that 2 of the Respondent's foremen were standing in front of the building near the exit. Gilker went outside and found Richard W. Burr, foreman of the eviscerat- ing room, and Shaddox, foreman of the pickup crew, standing in front of the building. He told the foreman that they had no business standing in front of the meeting place and that it was an unfair labor practice for them to be there. In explanation, they said, "We just came over to see how many you had at the meeting. . . . We were just down eating a steak on the Company and we thought we'd drop by and see how you made out with the meeting."' They continued to stand in front of the building until the people who had attended the meeting had gone, then they left. On cross-exaniinatioe, Gilker testified that when he told the foremen that they should not be in front of the meeting place they said they didn't know that. He stated that they did not argue with him about the point, nor did they go away immediately. Gilker's testimony is credited fully. Most of his testimony is undisputed and is corroborated by the testimony of Herd, later reviewed. Burr and Shaddox, who testified, admitted with an explanation their presence at the city hall on the night of the union meeting. Gilker, by his bearing and demeanor as a witless, impressed the undersigned very favorably. Ck:zrles P. Herd, the dischargee, was presented as a witness by the General Counsel. He testified that he had been employed by the Respondent for approximately 2 years prior to his discharge on October 3. He had performed various jobs for the Respondent, but for some time prior to his discharge had the job of taking chickens off the picking line in the cooling room. He explained that the chickens came into the cooling room hanging from the chain by their feet. His job was to squeeze the clamp holding the chickens and to hand the chickens to a woman employee who weighed them for size and then placed them in a cooling tank The chickens left the cooling room by means of a chain which carried them into the eviscerating room. Herd stated that he first saw Gilker and Buckner shortly before 4: 30 p. m. on October 2, 1950. The union representatives were passing out handbills. He went up to the men and talked to them, telling them that he knew most of the people there and they asked him to identify the employees as belonging to either Keeshin or Crown. Gilker asked Herd if there was a rear exit to the Keeshin plant. When he replied that there was, Gilker asked him to take some of the handbills and catch the people leaving by the rear door Herd took some hand- bills and went to the west exit and passed them out. He stayed there engaged in helping the union men from about 4: 30 until 6 when he returned to work. While he was passing out the bills, Shaddox, foreman of the pickup crew, asked Herd what all the activity was about. Herd told him that the men were passing out handbills for the Union and gave him one. Herd also gave Shaddox hand- bills for all of his pickup crew. On that evening Herd worked from 6 until 8 p. m. When he finished he went to Paul's Cafe, which is near the Keeshin plant. A group of employees 6 Transcript page 34. KEESHIN POULTRY COMPANY 481 including Foreman Breeze were seated at a table in the cafe drinking coffee and talking. Herd sat on a stool at the lunch counter. Roy Fletcher, one of the employees seated at the table, asked Herd his opinion of the union. Herd told the group at some length of his experience as a member of the Brotherhood of Railroad Trainmen. He said, "Whenever you got a contract signed up by both parties and both parties live up to it, its a good thing . . . it gives us a chance for better working hours, paid vacations, and overtime, and we can't afford to pass it up in my opinion."' He also explained to the employees how the grievance procedure had worked in the Brotherhood of Railroad Trainmen. At the time he made the statements, Foreman Breeze was in the group of employees. On October 3 Herd went to work around 7: 30 a. in. and worked until approximately 12: 12 p. in. At noon the employees began to quit work for lunch, by permitting the chains to clear. Herd stated that he had seen "Doe" Sanders cross the street, so he asked J. D. Minch, another employee, to light a cigarette for him. Herd while at work wears a rubber coat and rubber gloves. At that time Larkin, plant manager, came running through the door into the cooling room. As he approached Herd, he hollered "Dick" about three times. When Foreman Richard Burr came to him in response to his call, Larkin talked to him for a moment, then turning to Herd, slapped him on the shoulder and said, "Herd, hit the clock." Herd started to explain to Larkin that "Doe" Sanders, the Department of Agriculture inspector, had told the employees that they could smoke in the cooling room when the eviscerating line wasn't running, but Larkin said, "Don't argue, hit the clock." Herd then said , "0. K.,sir," and left the cooling room and punched out. Herd testified that at the time he lit the cigarette, Foreman Breeze was at the picking line and that the foreman saw him smoking and immediately went out the back door, and that Larkin came into the cooling room in about 3 minutes and discharged him. Herd testified that in August of 1950, Bill Mundy, then the foreman of the eviscerating room, had told him that "Doe" Sanders was "raising cain about smoking." On another occasion, Dick Burr, who became foreman of the eviscerating room about September 1, 1950, had also told him, "You ought to be careful, Doe is raising cain back there about smoking." Herd testified that about a month before his discharge, he had spoken to "Doe" Sanders and asked him what objection he had to smoking and that the inspector had said that he had no objection whatsoever as long as the eviscerating line was not running. Herd testified that he had seen many other people smoking in the cooling room, including employees Minch, Fletcher, Nida, Jones, and Foremen Breeze and Shaddox. He also had-observed Winkleman and Larkin smoking in the cooling room. Herd stated that be had smoked in the cooling room when "Doe" Sanders was present as long as the eviscerating line was not running. He stated that "whenever I felt like I could sneak it and get by, I did." Herd stated that at the time he lit up his cigarette the eviscerating chain might have been running. He testified that he knew smoking was not allowed, even though no "No Smoking" sign was posted in the cooling room, picking' room, or eviscerating room.' 9 Transcript page 128 'It is established by the testimony of all witnesses , except one , that there were no "No Smoking" signs in any of these rooms until some weeks after Herd 's discharge. In this connection note testimony of Foreman Richard Burr who testified that sometime after Herd's discharge, he placed signs saying "No Smoking" in these rooms. 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On cross-examination, Herd testified as follows : 8 Q. (By Mr. Enfield) Now, did you know that there was a rule against smoking in the eviscerating room and in the cooling room? A. I knew Doe objected to it, but I knew the company didn't. Q. How do you know the company didn't? A. Because the company did the same thing, that is, the management did the same thing I was doing. , Q. I will ask you about whether you had been warned previously about smoking? A. I had. Q. About how many times? A. A couple. Q. All right. I will ask you, then, if you had been warned a couple of times why didn't you quit it? A. Because the company employees kept doing it. Q. The company employees? A. The company employees and the company management Q. Were they working in that room? A. I don't know They were in there inspecting chickens. Q But you did know there was a rule, did you not, against smoking? A. I knew that the inspector did, but I knew the company didn't. Q. You stated on direct examination that you smoked in there whenever you could sneak it and get by. A. I did. Q. Doesn't that imply that you knew there was a rule that you knew you were doing wrong when you smoked? A. I have told you as plain as I can speak that I did know there was a rule agin it, but Doe- Q. Did you know that Doc would close the line down for that? A. They told me Doc was raising Cain and said be careful of your cigarettes. Q. None of them told you to quit it? A. No, sir. Q. You will swear to that? A. I done swore to it. * * * * * * Q. I mean, you said that you would have a smoke whenever you could sneak it and get by. - A. From Doe. That's the only one I was worried about. Doe Sanders is the only one I was worried about because the company officials did the same thing I done. Q. Did Mr. Larkin see you smoking in there? A. He certainly had. Q. You think he saw you smoking before the time you were discharged? A He should have a number of times. Q. You mean because you were smoking in there when you weren't supposed to? A. Not all the time, but I was. Q. Well, sign or no sign you knew that you weren't supposed to smoke in there, didn't you? 8 Transcript page 143, et aeq. KEESHIN POULTRY COMPANY 483 A. I knew any of us wereno,supposed to smoke in there including me, yes, sir. Q. Actually, as a matter of fact, you didn't care much, did you? A. No more than Mr. Larkin did for having a cigarette. I never tried to hide it from anybody. Doc would see my cigarette sitting up there if he wanted to look. Q. I believe you stated on direct examination that you knew that smoking was not allowed in that department when the eviscerating line was running. A. I knew that Doc objected. The Company didn't care. Q. I believe your direct statement on direct examination was, I knew that smoking was not allowed. A. I probably said it. I do know that Doe didn't like us to smoke in there, but I do know that the Company didn't care Herd also testified that the last occasion on which any supervisor warned hint about smoking was about 3 weeks before his discharge when Foreman Burr talked to him. Later in the day, on October 3, Herd went back to the plant and asked Larkin for a, written statement as to why he was fired. Lar- kin said to him, "You know, don't you? Herd replied, "Well, it is customary, if I get a job with some one else that is the first thing they will ask me." Larkin gave Herd a written statement that he was discharged for smoking in a zone prohibited by the rules of the United States Department of Agri- culture. Later in his testimony, Herd testified that approximately 3 months before he was discharged, he had a conversation with Doc Sanders in which Sanders said that as far as he was concerned, he didn't care who smoked in the cooling room as long as the eviscerating line was not running. Herd also testified that during the years he was an employee of the plant no one had been tired for smoking ° Herd impressed the undersigned as a truthful witness. He testified with frankness and candor His testimony is largely undisputed I credit his testimony. Glenola Williams, who had been employed for approximately 4 years in the picking room, also testified as a witness. She testified that her husband ob- tained a handbill from the union organizers on October 2 and that shortly thereafter on an occasion when she and her husband had the handbill in the plant, Foreman Breeze, who was passing, stopped and asked them what they would have left of their pay if the Union took its cut and the Government took its cut. Two or three days after this incident, in another conversation Breeze said to the witness that if the Union carne info the plant, all the employees would be out of a job. This witness also testified that she was present in Paul's Cafe on October 2, shortly after 8 o'clock, when a group of employees, including Herd and Fore- man Breeze, congregated at the cafe. All the employees were talking about the Union and the handbills that had been passed out that day. Foreman Breeze told the employees about a union to which he had belonged, and said that he had been kicked out of that union because he didn't attend meetings. He stated that the Union wasn't any, good for any of the employees. Herd, who was present, told the group about'a union to which he had belonged and its manner of adjusting grievances. Herd said that a union was a good thing to have in the plant. 9 There is no testimony in this record of any other employee ever having been fired for smoking. 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This witness testified that the next mor ing at approximately 10 o'clock she went to the main office of the plant tout some merthiolate on a scratch' on her finger. The first-aid kit for the use of the employees was kept in the main office. When she went in the main office she saw Larkin, plant manager, and, Foreman Shaddox talking in Larkin's office. Larkin had a copy of the union handbill in his hand The men were talking and looking at the hand- bill but she did not hear what was said. After she had obtained medication for her finger, she went back to work. This witness also testified that employees smoked throughout the plant with the exception of the eviscerating room while eviscerating operations were in prog- ress. She stated that before Herd's discharge, she had seen employees Herd and Fletcher, Foremen Shaddox and Breeze, chicken buyer Winkleman, and Plant Manager Larkin, all smoke in the cooling room. She stated that after Herd's discharge, signs were posted in the eviscerating and cooling rooms saying "No Smoking," andin the picking room saying, "No Smoking while handling poultry." Before Herd's discharge there were no signs anywhere in the plant. On cross-examination, the witness said that she understood that there was a rule against smoking while eviscerating was going on. While she was employed with the Company she had never known an employee to be warned about smok- ing. At the time Herd was discharged, only part of the chain into the eviscerat- ing room had been cleared of poultry. She stated that on some occasions the eviscerating line was running when employees or officials smoked in the cooling room, but that she had never seen smoking in the eviscerating room while operations were in progress. Roy Fletcher, another employee, testified that he had been employed by the Company for 2Y2 years. He was among those present at Paul's Cafe on the night of October 2. In the course of the conversation at the cafe, Herd spoke in very favorable terms of the Union. At the time he made his remarks, Winkleman, the chicken buyer, was present. He testified that on another occasion while he was standing near the time clock, Foreman Breeze had said to him, "Just what in the dickens are you guys going to have left after the Government gets their cut and the Union gets their cut? What's your payroll going to look like." On another occasion, a few days later, Foreman Breeze stopped the witness outside the plant and said to him, "Roy, come over here a minute, I want you to leave this Union business alone." Fletcher said, "0. K." Breeze said, "Now I'm telling you for your own good, leave it alone." On another occasion, Foreman Shaddox and chicken buyer Winkleman stopped the witness in the parking lot and asked him how the union business was going. Fletcher replied that he didn't know much about it and that he guessed they knew as much about it as he did. Winkleman and Shaddox then said that they had heard there was going to be an election. Fletcher said that he hadn't heard anything about that yet. At that point, Winkleman said that he didn't give a "damn" which way it went as it didn't affect his job either way. Fletcher testified that he went to a union meeting on or about October 19 at the city hall at Rogers and that just before the meeting broke up, he went out to his car. Foremen Shaddox and Burr were standing in front of the city hall at the entrance. As he went out he spoke to them and they spoke to him. They asked him how the meeting was going and he said that it was going "pretty good." When Fletcher returned a few moments later, Gilker was talking to the two foremen ; he did not hear their conversation except that Gilker was telling the foremen they should not be there. Fletcher testified that there were no "No Smoking" signs anywhere in the plant prior to Herd's discharge. He stated that he had smoked in the cooling room on many occasions and that he had seen any number of employees smoke in the KEESHIN POULTRY COMPANY 485 cooling room. He testified that he had seen employees Wilson, Minch, Herd, and Jones, and Foremen Breeze and Shaddox, and chicken buyer Winkleman, and Plant Manager Larkin smoke in the cooling room. The witness testified that he "could go on and name nearly all the men, and women, too, as far as that is con- cerned, who make a practice of smoking at various times as having smoked in the cooling room." He stated that he had seen Foreman Burr smoking cigars in the cooling room and that he had seen many persons smoking in the cooling room while the picking and eviscerating lines were running. He testified that Doe Sanders, the inspector, often came into the cooling room on inspection trips while the eviscerating chain was not running and that he sometimes smoked on those occasions. Fletcher said that on one occasion Foreman Breeze spoke to him about smoking, saying, "Roy, for God's sake watch those cigarettes. If Buchanan ever catches you smoking, there is nothing that I or Mr. Larkin can do to help you hold your job " The witness explained that Dr. Buchanan is the superior officer in charge of the entire district for the Department of Agriculture. At the very next recess, Fletcher asked Sanders, the inspector, what the deal about smoking in the cooling room was when the eviscerating operations were not being carried on. He testi- fied that Sanders said, "Well, shoot, as long as I am not eviscerating chickens, as far as I am concerned personally, I don't care who smokes in here or how much they smoke." Fletcher testified that he smoked during recess except on some occasions when he sneaked a smoke while the eviscerating chain was running. He knew that there was a rule against smoking when the eviscerating line was operating. Like himself, most of the men sneaked smokes when they felt like it. He stated that he understood that if Dr. Buchanan caught anyone smoking while the eviscerating line was running, they would be fired. The em- ployees feared Dr. Buchanan on the matter of smoking but did not fear any action by the foremen. During his cross-examination this witness was questioned as to the attitude of Foreman Breeze on the occasion when Breeze stopped the witness outside of the plant. The witness replied that Breeze appeared to be "sort of angry with my activity toward the Union." When asked if he had a reason to feel that Breeze was angry, he answered, "One man making the statement that Charlie Herd made and `Bode' Breeze hearing it, and then Charlie Herd getting fired the next day, put the fear in most employees." He stated that none of the supervisors had ever threatened to fire him for smoking in the course of his employment 10 Fletcher testified in a straightforward manner. He impressed the undersigned as a reliable witness. Much of his testimony was later corroborated by witnesses for the Respondent, notably Breeze and Shaddox. I credit his testimony. Charles Floyd Williams, an employee in the picking room for 31/2 years, testi- fied credibly that he was present at Paul's Cafe when Herd spoke very favorably of the Union. Foreman Breeze and Winkleman, the chicken buyer, were present on that occasion. A week or two before the election Williams asked Foreman Breeze what he thought of the Union and Breeze told him about his experience when he was kicked out of a union to which he belonged. A few days before the election Williams and another employee were talking about the Union. Breeze joined in the conversation and said, "Well, I don't know what's going to happen, I believe they'll shut the thing down, just shut the thing down." After the election the Company put "No Smoking" signs in the picking room. Sometime after this sign was put up, Larkin saw the witness smoking while 11 There is no testimony in this record that any foreman ever threatened any employee with discharge because of smoking prior to Herd's discharge. 986209-52-vol. 97-32 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he was handling a chicken on the line. Larkin told Williams that if he ever saw him smoking again he would fire him. This witness said that he had seen all the employees who were steady hands smoking in the cooling room. Most of Williams' testimony was corroborated by other employees. I credit his testimony. Wesley Johnson, an employee for about a year and a half in the picking room, testified credibly. His foremen were "Bodie" Breeze and "Bud" Lovell. About a month after Herd was discharged, he had a conversation with Breeze and Lovell in the picking room. On that occasion he asked Breeze what he thought about the Union, if he thought it would. take effect. Breeze replied, "Well, I doubt it, if it does, it won't be only you all out of a job, I will too." Johnson asked Breeze why the employees would be out of a job and he replied, "that Keeshin would shut the plant down." This witness also testified that before Herd was discharged the employees smoked in both the picking and cooling rooms. He said that he had seen Fletcher, Larkin, and Herd smoking in the cooling room and that the chains to the eviscerating room were running when Herd and Fletcher were smoking. When he saw Larkin smoking in the cooling room, the chain was not running. According to this witness, at the time Herd was discharged the only sign about smoking was in the eviscerating room." About 3 weeks after Herd's discharge, "No Smoking" signs were put up throughout the plant. On one occasion when he came from the rest room smoking, Breeze said to him, "Stop sticking your neck out, throw that cigarette down." This witness also testified that before Herd was discharged, no one had been reprimanded for smoking. After Herd was fired, the employees continued to smoke throughout the plant. The witness did not know about any smoking in the eviscerating room. Mary Lucille Powell testified that she was no longer employed by the Re- spondent but had worked in the eviscerating department at the plant in August 1949. At that time she worked for the Company for a period of 1 to 2 months. This witness testified that during her period of employment, she had seen smoking in the plant. However, the undersigned gives no weight to this testimony because of its remoteness in point of time to the incidents herein involved. Millie Hummell, an employee of the Crown Poultry Company, testified to a conversation that she had with Plant Manager Larkin in October 1950. She testified that on this occasion, about 1 week after the handbills were passed out, she went to the Keeshin plant to obtain some chicken manure for her garden. She saw Winkleman and Larkin in front of the Keeshin plant. When she addressed her inquiry to Winkleman, he referred her to Larkin. Larkin,ex- plained to her that the Company had no chicken manure at the plant but that if she went to the Keeshin farm with her own truck that she would be able to obtain some there. Larkin then said that he had heard the Union was trying to organize the employees at the Crown plant. The witness answered that the Union was trying to organize the plant. At that point, Larkin said, "We don't have to run." On cross-examination this witness stated that Larkin said, "They don't have to run." When this discrepancy was pointed out to her she explained that she "figured" Larkin meant Keeshin. This witness stated that she had talked to Mr. Gilker, the union represen- tative, and that the above was all that she could remember of her conversation with Larkin. This witness appeared hazy and unsure as to events about which she offered testimony. I deem her testimony to be unreliable. "This witness is the only one' who testified that there was a "No Smoking" sign' anywhere. KEESHIN POULTRY COMPANY D. The defense 487 Oral F. Larkin, plant manager, testified that on October 2 he was in Chicago attending a convention. In the evening he flew home from Chicago, arriving at Joplin, Missouri, and that he drove to the Keeshin plant with a friend, arriving at the plant at approximately 11 o'clock It was a very stormy and rainy night. Pursuant to an arrangement previously made, he was met at the plant by Winkleman who drove Larkin home, a distance of some 4 miles, in a company pickup truck. In the course of this drive, which occupied approxi- mately 15 minutes, Winkleman and he talked about operations at the plant, the price of poultry, and of occurrences at the convention in Chicago. Larkin stated that Winkleman did not tell him anything about Herd, and that lie didn't recall that anything was said about the Union or union activities around the plant in the course of this drive. He denied that he gained any knowledge ,of union activities at the plant at that time. About 9: 30 the next morning he went to the plant and spent the morning taking care of an accumulation of correspondence and phone calls. In the course of the morning, he talked to the foremen about routine matters connected with the operations of the plant, but that no one mentioned to him the union activities or Herd's part in them. He testified that'he did not talk with Foreman Shaddox in his office on that morning but did talk with Shaddox around 2: 30 to 3 in the afternoon, at which time he gained his first knowledge about Herd's union activity. ° Larkin testified that he fired Herd just about noon. As to the manner of Herd's discharge, Larkin testified as follows:' A I finished sort of cleaning up my desk and walked back in the plant and walked around to see how much feed we had on hand, walked into the killing room and came back in my office and put on a white coat. We have to put on white coats to go up in the eviscerating department. I keep one in the office usually I went up in the eviscerating department, through the cooling room into the eviscerating room. I think if I remember, which I always do. It isn't so much of a recollection of what 1 did as more a matter of habit I go through the cooling room and check the quality of poultry for a minute, look at maybe three or four or five tanks of poultry that is there and see how they looked and walked on in the eviscerating room through the cooling room. I stood in the eviscerating room, looked around there, looked how the chickens looked, how they are finished ready to pack, looked at the finished packages. We are a little bit proud of our pack and I like to try to keep the quality up,'and I do that most every day. So, when I walked out of the eviscerating room into the cooling room just angle- ways behind Mr Herd, I saw him smoking. I stepped back into the door of the eviscerating room and caught'the eye of the eviscerating room fore- man, Mr Burr, and motioned to him and he came down to me, and I says, "Dick, get me a man to take Herd's place for the rest of the morning." I said, "I am going to fire him for smoking." He had me a man down there, and I had this man and I says, "Mr. Herd, you are through. You just go punch the clock and get your time." He stammered slightly and said, "Well, what for?" I said, "You are smoking, aren't you?" He started to put tip some sort of argument. I said "I don't want any argument." I said, "you are through because you have been properly warned." u Transcript page 213. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q Now, Mr. Larkin, prior to that time had you ever seen Mr. Herd smok- ing before? A. No, sir. Q Had it been reported to you? - A. Yes, sir. Q. Had he been given warnings before about smoking? A. Yes, sir. Larkin testified that at the time he fired Herd the eviscerating line was run- ning, that it was partly empty, the line not having completely cleared. Larkin testified that the regulations of the United States Department of Agriculture, set forth previously in this Report, were familiar to him and were applicable to the Respondent's plant. When questioned about the regulations, he pointed out that they do not require the posting of signs or of notices concerning smoking- He stated he had never personally warned any employee about smoking, and was not sure whether he had directed the foreman to warn Herd. He had spoken to the foreman about the smoking that he knew was going on in the cooling room, because Sanders had spoken to him about it on several occasions Larkin pointed out that the picking room has a different status than the cooling and eviscerating rooms as regards sanitary regulations. By the regulations, em- ployees of the cooling and eviscerating rooms must use their own rest rooms which cannot be used by other employees, and they must punch a time clock, other than the clock punched by other employees. He explained that there was no enforcement of smoking regulations in the picking room as the last operation performed in that room is a thorough washing of the poultry by the mechanical washer. After that operation the poultry goes into the cooling room for process- ing leading to packaging. Herd's job was performed on the poultry after the chickens had been washed. Larkin testified that on some occasions he had unconsciously gone into the cooling room with a cigarette in his hand. He also talked to Foreman Burr- about tightening up smoking regulations because the United States Department of Agriculture had asked that things be put in shape for the change in sanitary conditions required by the regulations as mentioned above. He had told Burr- that anyone caught smoking would be fired. Prior to Herd's discharge he had seen people smoking and had warned them. Larkin also testified that on or around October 19 he and the foremen of the- Company had the monthly foremen's dinner at a restaurant near Rogers. As he and the foremen drove homeward, someone suggested that they stop, and see what was going on at the union meeting which was being held at the- city hall in Rogers. They drove to the neighborhood of the city hall and parked their car. Larkin and two of the foremen stayed in the car but Foremen Burr and Shaddox alighted and- walked down the street and finally stood in front of the entrance to the city hall. From where he sat in the car, Larkin could see who came out of the building. He saw Roy Fletcher come out of the build- ing. The foremen were in front of the city hall for approximately 5 minutes. _ When they returned, Shaddox said that they had seen Gilker who had said that they shouldn't be there, so the foremen left. Larkin testified that on one occasion he had asked an applicant for employment if she belonged or had ever belonged to a union. At the time the Company didn't need any people so he didn't refer her to any of the foremen who do- the hiring. This occurred at the time the organizatioilal drive was "hot." The applicant said that she did not believe in unions and that was all the conversa-- tion he had with the woman. He said he did not know who this woman was and" KEESHIN POULTRY COMPANY 489 that was the only occasion on which he inquired as to the union affiliation of a prospective employee. He denied that he had committed any of the acts set forth in the complaint. Larkin denied that he had a conversation with Foreman Shaddox at approxi- mately 10 in the morning of October 3. He testified that at that time Shaddox 'had gone out with his crew to pick up some chickens at the home of Oliver Cowgur. Cowgur lives at Niwasse , Arkansas , some 20 miles from the Keeshin plant. The record of purchases made October 3 was introduced in evidence as Re- spondent's Exhibit No. 1, and it shows that a large quantity of live chickens was purchased from Cowgur on that day. On cross-examination Larkin admitted that he had made two statements to Joseph Bailey, a field examiner for the Board , one on December 7, 1950, and a second on February 2, 1951. Larkin admitted that in the December 7 statement he had said of Winkleman, "He drove me to my home which was 4 miles from Rogers. No one was with Winkleman. I had left my car at home. I had told Winklemanl to get my car and leave it at the plant but he did not do this, and drove me out in the company pickup. Winkleman told me that some union people had passed their first handbills out on October 2 and told me that they had started on us. He did not mention Charles P. Herd, who formerly worked in the cooling room." '3 Larkin also stated that on the morning of October 3, he talked to Foremen Burr and Breeze but that they did not tell him that the Union had passed out handbills. Counsel for the General Counsel, at this point , again exhibited to Larkin his statement on December 7, in which Larkin said, "I came to the plant the next morning around 9 a. in. to 9: 30 a. in. and caught up on my work . I talked to all the foremen about generalities and the convention that I had attended in Chicago." ( Emphasis supplied .) Larkin maintained despite this statement that he had talked to all the foremen except Shaddox, and that none of them told him about the union activity or Herd's participation therein. Larkin testified that prior to the advent of the Union at the plant, he had talked to Mr. Keeshin in Chicago as to the company policy in regard to the Union. He stated that Keeshin told him that if the Union came in, he was not to worry about it. Larkin also talked to the foremen about the possibility of the Union entering the plant and he cautioned them to be careful in what they said about the Union because he knew what happened at the Swanson Poultry Company." Larkin testified that he knew that Mundy and Burr had warned Herd about smoking and that on October 3, he, himself , found Herd smoking. He had never received a report of anybody else smoking. Larkin testified that he thou,tht there was a "No Smoking " sign in the eviscerating room prior to October 3, and that he knew there were no "No Smoking" signs in the cooling or picking rooms. The Company had no objection to smoking in the picking room but at the time that the plant was opened Dr. Buchanan of the Department of Agriculture had said that the cooling room was a part of the eviscerating room and that there was to be no smoking in the cooling room. James Otis Shaddox, foreman of the pickup crew, testified that he first saw Larkin on October 3 about 3: 30 in the afternoon. During the morning he was at Hiwasse with his crew, picking up chickens at the home of Oliver Cowgur. He returned to the plant a few minutes before 11 a. in. and was in the front "Transcript page 267. 14 This reference to the Swanson Poultry Company is unexplained in the record. Nor is it again referred to. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office just long enough to turn in his trip tickets to the office girl. About 3 o'clock in the afternoon he went to the front office and saw Herd seated in the office. When he saw Larkin, he asked him what was wrong with ' Herd, and Larkin told him that Herd had been fired . Shaddox then said to Larkin, "Man, you've got yourself in trouble. Why, I seen Herd talking to them Union guys last night and handing out bills. Well, I've got one of them bills out there in the car, I'll go out and get,it and show it to you." Shaddox got the handbill from his car , showed it to Larkin , and told him that he had seen Herd in con- versation with the union men. Shaddox testified that he was with the other foremen and Larkin at the monthly meeting of foremen on or about October 19. After having dinner, while the foremen were driving to Rogers , someone suggested that they go to the meeting place of the Union. He explained that they decided to drive there out of curiosity, "just to see what kind of a crowd they had down there " On cross- examination Shaddox confirmed Gilker 's testimony that Gilker had given him some handbills on October 2 at the time Herd was with Gilker. The witness stated that he usually accompanied the pickup crews when they went outside the plant , but that occasionally when something special happened at the plant, he sent the crews to pick up chickens without accompanying them. John W. Breeze, foreman of the killing or picking room, testified that on October 2 he was given some handbills by the union organizers and that he noticed Herd in the company of the union representatives . He was also in Paul's Cafe that evening but ,he did not remember whether Herd was there or not. As to his con- versation with Larkin , on October 3, he testified as follows : Q. At the time that he came back, did you talk to him about the union activity going on around in the plant? A. Nothing more than I said the handbills are being strung' around. I guess you won't have to look for one. Q. Do you remember when you spoke to him about that? A. No, I don't, whether it was in the morning, evening, or when it was. Q. Do you know whether it was before or after Charlie Herd was fired? A. Well, it was before Herd was fired. (Emphasis supplied.) Q. Before Herd was fired you talked to Mr. Larkin? A. In that, just what I got through saying in regard to the handbills. Q. Where was that? A. Right there in the plant, not in the office. Q. What was the occasion of the conversation? A. He just wanted to know how everything was getting along. I told him everything was all right as far as I knew. Breeze also testified that he had told Herd and Fletcher not to smoke in the cooling room . He admitted that on one occasion he had stopped Roy Fletcher outside the plant and told Fletcher that he wanted him to leave the Union alone ; that he was telling Fletcher for his own good. Prior to that occasion he had spoken to Fletcher about the Union in the plant. He had asked Fletcher what he was going to have left of his pay after the Union and the Government each took their cut. He denied that he had ever told any employee that Keeshin would close the plant if the Union came in, or that he had interrogated any employees as to their union affiliation . He denied that he had ever talked about the Union to Wesley Johnson. On cross-examination the witness stated that he was not sure whether it was the morning that Herd was fired that he told Larkin about the handbills being passed out but that he was sure it was in the morning. KEESHIN POULTRY COMPANY 491 Richard W. Burr, foreman of the eviscerating room, testified that on October 3 Larkin came to the door of the eviscerating room and said, "Get a man to replace Herd, I caught him smoking." Burr procured the replacement. Burr testified that at that time the eviscerating chain was still running and the packing crew was still working packing chickens. He stated that he had warned Herd about smoking several times but had specifically warned him when Doc Sanders in- structed him to stop smoking on one occasion. At the time that he spoke to Herd about smoking at the request of Sanders, he told Herd to stop smoking. On other occasions he was not sure of what he had said to Herd about not smoking, but he thought it was, "You want to watch your smoking, Charlie," or something to that effect. He had never told Herd that he would be fired if caught smoking. Burr testified that he had told several other employees not to smoke in the cooling room, and that the employees knew that they were not to smoke in that place. It was only after Herd was discharged that he learned that Herd was active for the Union. This witness.stated that there was no "No Smoking" sign in the eviscerating room'or cooling room until after Herd was discharged; that some weeks after October 3 he, himself, put signs up in both those rooms. Burr testified that he was with the foremen on the night of the union meeting when they stopped at Rogers city hall. After dinner, someone suggested that they drive to the city hall, "and see what's going on at the union meeting," so they did so. Burr and Shaddox got out of the car and went up in front of the city hall. Gilker came out of the city hall and said to the foremen, "Don't you fellows know that you're not supposed to be here?" They told him they did not know that. Gilker then told them that their presence violated the At, so the foremen told him, "0. K." and left immediately. Burr, Herd's immediate supervisor, testified that he was unable to say whether he had ever talked to Larkin about Herd's smoking. Burr testified with frankness and candor. I credit his testimony. Ernest L. Lovell testified that at the time of the hearing he was the killing room foreman ; that he became an employee of the Respondent on October 14, 1950, and a foreman in February 1951. He denied that he had ever talked about the Union with any of the employees. He was with the other foremen on the night of their visit to the union meeting. He stayed in the car with Larkin on that occasion. Lawrence A. Winkleman, chicken buyer for the Respondent, testified that he was with a group of employees at Paul's Cafe between 9 and 10 p. in. on October 2, but that he had not heard any conversation about the Union. Both Herd and freeze were present at that time He stated that the first he knew of the Union's attempt to organize the plant was on October 3 when he went past the plant and Gilker and Buckner gave him a handbill." He had no conversation with them at the time. This witness testified that attending the foremen's dinner were Plant Manager Larkin, Foremen Breeze, Burr, Shaddog, and himself.1e Concluding Findings Though there is a sharp conflict of testimony on many points, several important features of the case are very clear. It is beyond question that the regulations "The witness was evidently mistaken as to date , as the union organizers passed out handbills only on October 2. Ie Note that Breeze testified he did not attend the dinner or subsequent meeting and that Lovell said that he attended The witness was evidently mistaken as to these two foremen. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the United States Department of Agriculture cover the cooling room of the Respondent's plant. However, from the testimony of all the witnesses, it is equally apparent that the rules of the Department of Agriculture were not enforced by the Company prior to October 3, also that the duties of Dr. Sanders in the eviscerating room of the plant prevented him from enforcing the rules else- where in the plant during working hours. When the plant was in operation, his attendance in the eviscerating room was required. -Eviscerating could not be conducted in his absence. Therefore, violations of the regulations not committed in his immediate presence went uncorrected. There is no contention in the case that the Company had any rules of its own against smoking which supplemented the Department of Agriculture's regulations. It is also not questionable in view of Foreman Burr's testimony that prior to October 3 there were no "No Smoking" signs in the eviscerating, cooling, or picking rooms. Prior to Herd's discharge no employee had been fired for violation of the smoking rule nor, indeed, had any employee, including Herd, been threatened with discharge by either a company official or a Department of Agriculture official, for violation of the smoking rule. It is also clear that smoking by employees and supervisors was widespread in the entire plant and in the cooling room. Unquestionably Herd, whose duties kept him in the cooling room, was a leading offender against the smoking rule. He admits to three warnings over a 10-month period . The conduct of the Com- pany prior to October 3 amounted to condonation of these offenses. With these points clearly in mind, we may approach an analysis of Herd's discharge. The question is was Herd discharged by Larkin on October 3 because he was smoking in violation of the rules or because he had participated in union and concerted activity? Counsel for the parties have introduced much evidence as to the circumstances surrounding the discharge which may afford an answer to that question. In the testimony introduced to prove these circumstances there is a sharp conflict. It is clear that Herd's participation in the union activity on October 2 was open and public. As employees and supervisors left the plant he gave them handbills . He spoke favorably of the Union at Paul's Cafe in the 'presence of Breeze and Winkleman. Under these circumstances , there is no 'question in my mind but that Herd's activities and sympathies were generally well known to Respondent's management prior to noon of October 3. Opposed to this very general and widespread knowledge on the part of manage- ment, evidence was introduced that Larkin, the individual who did the actual firing, was not in a position to know and did not know at noon on October 3 that Herd had engaged in union activities , because Larkin was away attending a 'convention at Chicago until late on the night of October 2. Larkin testified that he had no knowledge of either union activity at the plant or of Herd's part in this activity prior to the time he discharged Herd. He testified that during the 'time that he rode with Winkleman from the plant to his home on the night of October 2, Winkleman did not mention Herd to him, or did not mention that union organizers had passed out handbills in front of the plant . Winkleman, in his testimony, bears out Larkin. This testimony strikes me as being highly incred- ible. Both Larkin and Winkleman have been in the poultry industry in northwest Arkansas for a long time and they are officers in responsible positions with the Respondent. They were aware of the union efforts to organize the industry and during Larkin's absence the campaign to organize the Respondent had begun. It is hard to believe that Winkleman did not tell Larkin of the union activity as soon as the men met on October 2, or in the course of their ride together. Larkin further testified that on the following morning he gave his attention to ,an accumulation of correspondence and routine affairs and that though he saw all his foremen with the exception of Shaddox , none of them told him of the KEESHIN POULTRY COMPANY 493 union activity or of Herd's part in it. The union activity at the plant had not been accomplished by stealth or furtiveness . Two union organizers and an em- ployee had stood at the entrance of the plant , passed out handbills, hailed workers, and discussed the merits of unionization with Foreman Shaddox. Yet, according to Larkin, no one told him about this activity. I find this testimony so incredible that it merits close scrutiny. When scrutinized , it appears that in the statement given by Larkin to Field Examiner Bailey on December 7, 1950, Larkin stated that Winkleman told him on the night of October 2 that some union people had passed out handbills and that the Union had started on the Respondent. That statement is entirely credible as it fits a reasonable pattern of conduct of reasonable men. It was natural and to be expected that Winkleman would tell Larkin of the union advent at the plant. Foreman Breeze , in his testimony , also stated that before Herd was discharged he told Larkin that the Union had handbilled the employees and that he would not have to look far to find the handbills . This testimony of Breeze , coupled with Larkin's statement of December 7, further weakens the testimony of Larkin that he did not know of the union activity before he discharged Herd. Glenola Williams testified that she saw shaddox and Larkin perusing a handbill in Larkin's office at 10: 30 in the morning of October 3. Larkin and Shaddox admit that together they did peruse a handbill in the offce but they stated that this occurred after Herd was fired, about 3: 30 in the afternoon. In effect, they stated that Glenola Williams testified correctly in every particular except as to the hour of their conference. I cannot accept the Respondent's contention on that point. Mrs. Williams, by her bearing and demeanor, im- pressed the undersigned very favorably . She is young, highly intelligent, and a long service employee. She testified clearly and , I am convinced , accurately. Larkin and Shaddox both admit that they actually did the things which Mrs. Williams said they did; that Mrs. Williams was correct in all particulars except one, the time of the conference. Respondent introduced as an exhibit a record of purchases of chickens on October 3, which shows that on that day a quantity of chickens was purchased from Oliver Cowgur. Shaddox testified that he was at a Cowgur's house with his crew that morning, returning to the plant a few minutes before 11 a. m. The probative value of the purchase record depends entirely upon the testimony of Shaddox. He testified that he usually accompanied his crew on a pickup but when something special occurred at the plant he did not accompany his crew. The conflict of testimony between Mrs. Williams on the one hand and Larkin and Shaddox on the other, I resolve in favor of Mrs. Williams . She was proven correct in all particulars of the Shaddox-Larkin incident and I am convinced that she was correct about the only particular in dispute, the time. Larkin's statement of December 7, in which he said that on the morning of October 3, he talked to all the foremen, is additional support for this finding . Larkin's failure to omit Shaddox from the foremen to whom he talked that morning may have been an inadvertence as Larkin inferred in his testimony, or the statement may have been a truthful statement made at a time when the Respondent did not realize that Mrs. Williams had seen the men, and would later testify to her observations. The interest of these witnesses is also worthy of some scrutiny. Larkin's in- terest is evident; he is the official in charge of the plant and would naturally desire to see his course of conduct vindicated . Mrs. Williams evidently is favor- ably disposed to the Union but so far as it can be determined has no other interest. Shaddox appears to me to be far from disinterested . It was he who talked to Herd and Gilker about the Union when they were distributing hand- bills. He spoke favorably of the Union and accepted a quantity of the handbills 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ostensibly for his men. However, the next thing we know of Shaddox, he and Larkin are perusing the handbills in the plant office. Shaddox explained that he happened to think of these handbills while talking to Larkin, but there is another construction that can be placed on this conduct-that Shaddox feigned an interest in the Union, gained knowledge of the Union and obtained the handbills, not for his men but for the information of Larkin. It was Shaddox too who stood in front of the union meeting place and was evidently one of those most anxious to learn of the progress of the Union. It was also Shaddox who stopped Roy Fletcher and asked him how the Union was coming along. This course of con- duct evinces an unusual interest in the affairs of the Union and far exceeds the normal curiosity of a disinterested witness The continuous prying of Shaddox into the affairs of the Union, which were none of his business, evinces the interest of a partisan and casts a suspicion on his testimony Considering the demeanor and bearing of the witnesses, their interest in the proceeding, and the substance of their testimony, I credit the testimony of Mrs. Williams and do not credit the testimony of Larkin or Shaddox on this point. I find, therefore, tliat prior to Herd's discharge, Larkin had knowledge of the union activity from three different sources: (1) From Winkleman on his drive home on the night of October 2; (2) from Foreman Breeze the next morning; and (3) from Shaddox about 10 a. in. Thus the main contention of Larkin's testimony has been disproven. Inasmuch as this is a relatively small plant, 95 employees, and that Herd's participation in union activity was open, public, and well known to the supervi- sory staff, I conclude and find that these facts give rise to the strongest type of inference that Larkin also gained knowledge of Herd's participation in the union activities from the foreman prior to his discharge of Herd. An examination of the Respondent's contentions bears out this finding. Ac- cording to Larkin, he returned from Chicago and did not know of the union activity in the plant. He decided to go through the plant on a routine inspection trip. He arrived at the cooling room at approximately 12 minutes after the noon hour ; by that time some of the employees in the eviscerating room and cooling room were discontinuing work. The eviscerating line had not fully cleared Under these circumstances, he observed Herd smoking in the cooling room and being mindful of the previous warnings given to Herd, he determined on the spot to fire Herd. The last reprimand about smoking given to Herd had been some 3 weeks before Nothing had occurred which had provoked management to a drastic tightening up of the smoking regulations. Larkin admitted that no one had ever been fired or threatened with discharge for smoking-yet he decided to fire Herd on the instant. It was only after that, about 3: 30 in the afternoon that he heard to his surprise that Herd had participated in handing out hand- bills and had assisted the union men in their organizational activity the evening before - The Respondent's version of the discharge contains no inherent plausibility. Men act only from motives and with reason. An individual's course of conduct only changes at the promptings of motive and for a reason, whether it be good or bad Avaricious persons only under the influence of motive become generous. Generous persons only under the influence of motive become avaricious. Law breakers do not become law-abiding citizens except because of strong motive and sound reason. Applying this general rule of conduct to this discharge, the version of the Respondent does not stand up. Here, we have a Company which did nothing to effectively enforce among its employees a no smoking rule of the Department of Agriculture. No one had been fired for violation of the rule. No one had been warned that they would be fired for a violation of the rule. By custom and usage, the employees smoked when they chose, and if a smoking KEESHIN POULTRY COMPANY 495 employee was observed by a foreman, at most he was told to watch his smoking, or exhorted not to be caught by the Government inspector There is no question but that the Company had been "indulgent" to its employees, and extremely careless, if not indifferent to the smoking regulations. Suddenly, the indulgent, careless, or indifferent employer became the severe and scrupulous enforcer of the rule, and fired an employee who had lit a cigarette at the noon hour when the eviscerating line was not entirely clear. The Respondent's attitude toward the regulation suddenly changed from the utmost laxity to extreme severity. What was the reason for the change? No new complaint from the Department of Agriculture had brought the change; no new incident among the employees as to smoking had provoked the Company to act at long last. The only unusual incident which had occurred in the routine operations of the plant was that the Union had launched its organizational campaign with the assistance of the very employee who was now caught smoking at the noon hour. Immediately he was discharged. It may be argued on behalf of the Respondent that over a period of years it had been "indulgent" about the no smoking rule; and that extreme indulgence had been extended to Herd who was the leading offender against the rule ; and that the Company decided to enforce the rule strictly, with the result that Herd was the first cme to suffer the penalty for a violation. This argument does not withstand examination. The law forbids discrimination against an employee because of his union affiliation. Discrimination may take the form of strictly enforcing disciplinary measures against union employees, and being "indulgent" concerning the same rules to nonunion employees. In this case Herd received indulgence until he participated in union activities, then he was held to a strict enforcement of the rule and discharged. Upon the evidence in this record, I cannot escape the conclusion that, but for his union activity Herd would still be employed by the Respondent, the happy recipient of the Company's indulgence I find that Charles P Herd was discharged by the Respondent because he had engaged in union and concerted activities and that he was not discharged because he had violated the regulations against smoking. I find that the Com- pany used his violation of the no smoking rule as a pretext to terminate the services of the most active union adherent among its employees. I find that his discharge and the Company's refusal to reinstate him constitute a violation of Section 8 (a) (1) and (t) of the Act. Having found that Herd's discharge was an unfair labor practice it follows that he was eligible to vote in the election of December 6, 1950. I find there is no legal basis for the Company's challenge to his ballot. This challenge is not sustained. There can be no doubt that the Company violated Section 8 (a) (1) of the Act in some of its conduct covered by the testimony. The foremen of the Respond- ent admitted that on or about October 19 they went to the vicinity of the union meeting at the city hall in Rogers, Arkansas, for the purpose of seeing how many employees attended the meeting and how the union was progressing. Two of them left their car and took a position where they could observe all the employees leaving the meeting place. As Gilker testified, that action had the effeot of intimidating the employees who were reluctant to leave and pass under the scrutiny of the foremen. Gilker testified that the foremen stayed there until the employees left the meeting place. The foremen stated that they left their position before the city hall after Gilker protested. Whether they were there a short time or a long time is of minor importance. The important fact is clear and admitted that they had gone to the meeting place to learn about the Union's progress in organizing the employees and to determine how many 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and which employees were at the meeting. The organizational efforts of the employees were not a proper concern of this Respondent . Under the Act the employees are given the right to organize without interference by the Company, and without their meetings being under the surveillance of company officials. The Company must accept responsibility for this action because Larkin, the plant manager, sat in the automobile and joined in and sanctioned the action of the foremen. Larkin termed this conduct a "frolic." He regarded it as being a minor incident, arising only from the good spirits and the natural curiosity of the foremen. The Company also inferred through the testimony of the fore- men that the foremen did not know any better . I cannot accept the viewpoint that this was a minor incident, a "frolic," or an act done through ignorance- The effect of the action was to intimidate the employees . They immediately sought the assistance of Gilker . It was only natural that after Herd's dis- charge, the employees feared that the surveillance by the foremen would lead to, some form of reprisal against them by the Company. I find that this surveil- lance of the meeting by the foremen is a violation of Section 8 (a) (1) of the Act. Foreman Breeze admitted that on one occasion he had stopped employee Fletcher outside the plant and told him to get out of the Union for his own good. On another occasion , Breeze asked Fletcher what he was going to have left out of his pay after the Union and the Government took their cuts. This admitted conduct clearly constitutes a violation of Section 8 (a) (1) and needs no further comment. In view of these admissions and the credible testimony of Mrs. Williams, I find that Breeze also asked Mrs. Williams the same question he admittedly asked Fletcher, namely, what are you going to have left of your pay after the Union and the Government get their cuts, and that on another occasion he told Mrs. Williams that if the Union came in the plant all the employees would be out of a job. I also find in accordance with the credible testimony of Wesley Johnson, that Breeze also told him that if the Union came in all the employees would be out of a job. I also find in accordance with the credible testimony of Fletcher that Foreman Shaddox stopped Fletcher and asked him how the Union's campaign was pro- gressing. This conduct by Breeze and Shaddox are additional violations of Section 8 ( a) (1) of the Act. Larkin admitted that on one occasion he had interrogated an applicant for employment as to whether she had ever belonged to a union or not. He explained that the 'Company was not hiring at that time so he did not refer the woman to any of the foremen. However, the undisputed fact remains that he had interro- gated an applicant for employment about her union affiliations and that con- stitutes another violation of Section 8 (a) (1). When each violation of the Act in this case is considered separate and apart from the others , the defense of the Respondent has some surface plausibility, but when the various actions of the Respondent and the Respondent's explana- tions are considered in totality , the surface plausibility vanishes . The Company attempts to explain its conduct by the following defenses : (1) It defends its discharge of Herd on the ground that he was smoking in violation of the rule ; (2) it defends its surveillance of a union meeting on the ground that it.was a "frolic" and occurred because of the curiosity and ignorance of the foremen ; (3) it defends one of Breeze 's statements to Fletcher on the ground that Fletcher was "rubbing it into Breeze" ; (4) it defends Larkin's interrogation of the applicant for employment on the ground that the Company wasn't hiring at that time, anyway. Each action has some explanation. but if we examine this conduct closely we observe a pattern of antiunion conduct which includes (1) KEESHIN POLTLTRY COMPANY 497 the discharge of the leading union adherent; (2) the surveillance of the Union's meeting; ( 3) threats and warnings of economic reprisal by the Company if the employees embraced the Union ; ( 4) interrogation of employees as to how the union organizational campaign was progressing and the interrogation of applicants for employment as to their union affiliation . Viewed in this broad aspect, I discern in this conduct of the Company a clear intent and purpose to frustrate its employees in their efforts to organize pursuant to their rights under the Act. Upon a preponderance of all the evidence I find that the Respondent has inter- fered with, coerced , and restrained its employees in the exercise of their rights guaranteed by Section 7 of the Act by (1) interrogating its employees concerning union activities , and applicants for employment as to their union affiliations or sympathies ; ( 2) threatening its employees with economic reprisal that the plant would close if the employees joined the Union; (3) practicing surveillance upon a union meeting of its employees in violation of Section 8 (a) (1) of the Act. I find that the Company did not advise its employees that the Company would have given a raise in pay if the Union had not come along as alleged in paragraph VII (e ) of the complaint. The evidence is that Foreman Lovell made a state- ment to employees similar to that alleged but that it occurred after his pro- motion to foreman in February 1951 , some months after the discharge and the election here involved . Also counsel for the Respondent contends that the state- ment means that the Company could not grant a pay increase in the course of the union campaign without running the risk of a charge of unfair labor prac- tices by the Union. The statement allegedly made is of an ambiguous nature, open to the construction placed upon it by Respondent . For that reason I have made the above finding and will recommend that that allegation of the complaint be dismissed. Findings on Objections Objection 1-The Company through its supervisors exercised surveillance on union meetings . For reasons heretofore stated, I find that this objection has been sustained. Objection 2-The Company made threats to close the plant and threats of reprisal against employees who were union sympathizers . I find that this objection has been sustained . The statements of Foreman Breeze that the plant would close in the event the Union was successful in its organizational cam- paign and Breeze's conduct in telling Fletcher to get out of the Union for his own good are the basis of this finding. Objection 3-The Company screened employees and applicants for employ- ment as to their feeling toward the Union . I find that this objection has been sustained . While no "screening" of employees has been proven, yet Larkin admitted that he had interrogated one applicant for employment as to union affiliation. Objection 4-The Company 's plant manager made two captive audience speeches which contained statements in violation of the National Labor Relations Act. There is no evidence in this record of any such conduct by the Company. I therefore find that this objection has not been sustained and will recommend that the objection be dismissed. Objection 5-The Company made other threats both to employees and non- employees which were in violation of the National Labor Relations Act. I have found that the Company made threats to its employees in Objection 2. 1 have also disregarded the testimony of Millie Rummell, a nonemployce , because of the dubious character of her testimony . Because part of this objection has been established in Objection 2 and the testimony of Hummell disregarded, 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD • I find that this objection has not been sustained and will recommend that the objection be dismissed. In this posture of the case two remedies are afforded to the Union : (1) That Herd's ballot in the election of December 6, 1950, be opened and counted ; and (2) that the election of December 6, 1950, be set aside, on the grounds of the objections now found to be sustained. The counting of Herd's ballot may be decisive of the election. At that time the Union may decide to withdraw its objections, having won the election despite the unfair labor practices of the Company, found herein. However, in the event exceptions are filed herein, the Board upon review may disagree with my findings in regard to the discharge of Herd. For that reason, my findings as to the objections are necessary. With these considerations in mind I will recommend that Herd's ballot in the election of December 6, 1950, be opened and counted, and that thereafter if the Union does not withdraw its objections, the election be set aside by the Board. 1V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent 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 engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. It has been found that the Respondent discriminated in regard to the hire and tenure of employment of Charles P. Herd. It will be recommended that the Respondent offer him immediate and full reinstatement to his former or substantially equivalent position," without prejudice to his seniority rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him. Consistent with the policy of the Board,'B it will be recommended that the loss of pay be computed on the basis of each separate calendar quarter or portion thereof, during the period from the Respondent's discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, hereinafter called quarters, shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which this employee normally would have earned for each quarter or portion thereof, his net earnings' if in , any other employment during the period. Earnings in one particular quarter shall have no effect upon the back-pay liability of any other quarter. It is also recommended that the Respondent be ordered to make available to the Board, upon request, payroll and other records to facilitate checking the amount of back pay due 2° It has been found that the Respondent has interfered with, restrained, and coerced its employees by (1) interrogating its employees as to the progress of 11 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. is F W Woolworth Co, 90 NLRB 239. 19 Crossett Lumber Company, 8 NLRB 440 ; Republic Steel Corporation v N. L R B., 311 U. S. 7. 20 F. W. Woolworth Co., supra. GENERAL SHOE. CORPORATION 499 the Union's organizational campaign and applicants for employment as to their union affiliation; (2) practicing surveillance upon the union meeting attended by its employees ; and (3) threatening to close its plant if its employees affiliated with or supported the Union. It will, therefore, be recommended that the Respondent cease and desist from such activities and take certain affirmative action designed to effectuate the policies of the Act. The Respondent's infractions of the Act, herein found, disclose a fixed purpose to defeat self-organization and its objectives. Because of the Respondent's un- lawful conduct and its underlying purposes, I am persuaded that the unfair labor practices found are related to the other unfair labor practices proscribed by the Act and that the danger of their commission in the future is to be anticipated from the course of the Respondent's conduct in the past. The pre- ventive purpose of the Act will be thwarted unless the remedial order is coex- tensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and to minimize strife which burdens and obstructs commerce, and thus to effectuate the policies of the Act, it will be recommended that the Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act 2 By discriminating in regard to the hire and tenure of employment of Charles P. Herd, thereby discouraging membership in the Union, the Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the ex- ercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent's unfair labor practices interfered with the free choice of the employees' bargaining representative in the election conducted on De- cember 6, 1950. [Recommended Order omitted from publication in this volume.] GENERAL SHOE CORPORATION (MARMAN BAG PLANT) and INTER- NATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE NO. 155, PETITIONER. Case No. 10-RC-1000. December 12, 1951 Supplemental Decision and Order On November 28, 1950, pursuant to the Decision and Direction of Election 1 issued by the Board herein on November 6, 1950, an election ' Not published in printed volumes of Board decisions. 97 NLRB No. 71.