Bryan Brothers Packing Co.

BRYAN BROTHERS PACKING COMPANY 285 No person will be allowed to carry on Union organizing activities on the job. Any- body who does so, and who thereby neglects his own work, or interferes with the work of others will be subject to discharge. Anybody who tells you anything contrary to any of the foregoing is not telling: you the truth. Do most of you know why the Teamsters Union is interested in having you sign up with them ? • They are not interested in you as an individual, but are interested mainly in the dues that you pay. To them it is a business, as our business is to us. The more members they have is the more money they have coming into their treasury. After the company is organized , they will fight for only a few of those' members who attend the Union Hall regularly. If you are fired or laid off, they know that you will have to be replaced by another employee, and they will still be getting their dues every month. May I say to you-consider very carefully before you select people with the Teamsters' reputation to represent you with your employer who has always been fair and has treated you as you would like to be treated. If any of you have any questions concerning the Union, or any other matter, we will be happy to discuss them with you at any time. Bryan Brothers Packing Company and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case No. 26-CA-926 (formerly Case No. 15-CA-1616). October 5, 1960 DECISION AND ORDER On June 17, 1960, Trial Examiner George L. Powell issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. Respondent filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the modification indicated below.' [The Board dismissed the complaint.] i We adopt the Trial Examiner's resolutions of credibility in this case only insofar as his findings are based upon his observation of the witnesses and their demeanor at the hearing. However, we do not adopt his analysis of the credibility of the witnesses to the extent such analysis appears to be based upon needless speculation as to the witnesses' conduct with respect to minor details. 129 NLRB No. 29. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding began with the filing of a charge on July 30, 1959, by the Charging Party, and with all parties represented, was heard before the duly designated Trial Examiner in West Point, Mississippi, on February 24 and 25, 1960, on complaint of the General Counsel and answer of the Respondent. The issues in the case are whether Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act, by trans- ferring Ruth Jeffcoat, an employee, on May 4, 1959, and terminating her employ- ment on June 2, 1959, and transferred Margaret Ann Brown, an employee, on May 8, 1959, and terminating her employment on July 3, 1959. The defenses of the Respondent to the respective allegations are that the transfers and the discharges were for cause and not in violation of the Act. At the conclusion of the case General Counsel moved to conform the pleadings to the proof on immaterial points, and, over the objection of Respondent, this motion was granted. All parties were represented by counsel who participated in the hearing. Full opportunity was afforded to parties to be heard, to examine and cross-examine witnesses, to introduce relevant and pertinent evidence, and to file briefs on or before March 28, 1960. Briefs have been received from the General Counsel and from Respondent's counsel and they have been carefully considered. Upon the entire record and from my observations of the witnesses at the hearing, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, a Mississippi corporation, with its principal office and place of business located at West Point, Mississippi, is engaged in the business of operating a packing plant at which cattle, hogs, and sheep are processed. During the year ending December 31, 1958, which period is representative of all times material herein, Respondent processed or sold goods or merchandise valued in excess of $1,000,000, of which goods or merchandise valued in excess of $50,000 were shipped from its West Point, Mississippi, establishment directly to points outside the State of Mississippi. I find Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Charging Party, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The issues Ruth Jeffcoat, an employee of Respondent, was transferred on May 4, 1959, from a job paying more per hour than the job to which she was transferred, and on June 2, 1959, her employment was terminated. Margaret Ann Brown, likewise an employee, was transferred on May 11, 1959, from a job paying more per hour than the job to which she was transferred and on July 3, 1959,1 her employment with Respondent was terminated. The General Counsel alleges these transfers and discharges and the subsequent failures to reinstate these employees was because of their membership in and activities on behalf of the Charging Party and that the actions were taken in order to discourage union or concerted activities of its employees. The Respondent does not deny the transfers nor the discharges but contends that such actions in each instance was for a good cause and asserts the Respondent's complete lack of knowl- edge of any union activity by the individuals. The primary issue involved herein is burden of proof. B. Activities of Ruth Jeffcoat and Margaret Ann Brown In order to better understand the facts of this case the Trial Examiner visited the Respondent's plant. The operations involving both Mrs. Jeffcoat and Mrs. Brown took place in the confines of one large rather long room in the basement of the plant. 'All dates are In 1959 unless otherwise stated. BRYAN BROTHERS PACKING COMPANY 287 The room was noisy with the machinery running, but conversation could take place with a raised voice. This room contains the bacon-slicing operation and an area called prepack. Along one wall is an endless belt on which bacon which had been sliced in the slicing machine at one end of the belt traveled to the other end where packages of it are sealed and put into boxes. Along this movable belt sit five women employees. These are the weighing employees of the bacon-slicing line. Three of them are sitting in tandem in the area between the belt and the wall, and two are on the other side of the belt in a staggered position so they are not exactly across the belt from each other. Bacon in tentative packages flows on the belt. These five employees take turns in picking up the tentative packages, weighing them on a preset scale, and by adding or substracting a small amount of bacon arrive at full measure. They then replace the packages on the belt to be sealed and packed into boxes at the end of the line. Thus it can be seen that the five bacon scalers adapt themselves to the rhythm of the job picking up the unweighed portions of bacon as it comes their turn and replacing weighed portions. Likewise, all employees adjust themselves to the rhythm of the line, and as they are on a group incentive plan they keep the line moving as rapidly as possible. Ruth Jeffcoat, while working on the bacon slicing line, occupied the seat on the side where there were three workers which seat was the first one reached by the bacon as it was carried on the belt. Margaret Ann Brown, while on the same line, worked at the end of the belt in the area where the weighed bacon was sealed and packed into boxes. She put the individual packages into boxes. Both of these employees were transferred from their operations on the bacon-slicing line to prepack which lay directly across the room from the endless belt. In prepack, products such as cutlets and liver are packaged into varying sized packages. This is done manually by packing and weighing the products assembled around the scale. Although the prepack employees also had a group incentive, they never reached the standard so their pay never exceeded their base pay. 1. Ruth Jeffcoat's story As noted from the above, Ruth Jeffcoat was transferred from bacon slicing to prepack where she worked for approximately 1 month before she was terminated. Prior to the transfer she had been with bacon slicing for slightly more than 3 years. The foreman in both activities was Wheeler Duke. She testified that she had had three union discussions with Wheeler Duke in the group of the five weighers on the belt.2 The first was before lunch sometime in February 1958. Her story was that Mr. Duke asked them if any of them had been contacted by the Union. In reply, she and another employee, Mrs. Glasson, told him that they had been contacted.3 The second occurred during the same day but after lunch when Mr. Duke asked them (Mrs. Jeffcoat and Mrs. Glasson) to bring over their husbands and have coffee that night at his house. Mr. Duke also told them that he would appreciate it if they were not home to greet the man from the Union who was scheduled to come to visit with them that same evening. Mr. Duke also said that the personnel manager of Respondent, Mr. A. W. Gable, wanted to see Mrs. Jeffcoat in the office. She saw Mr. Gable around 5 o'clock, quitting time, but just prior to seeing him she had one more talk with Mr. Duke (the third dis- cussion) who told her that if anyone questioned her as to why she was seeing Mr. Gable to say that it was on a personal matter. Mr. Gable told her he understood that the union agents would call at her home that night but for her not to stay home and he would appreciate it if instead she would go to Mr. Duke's that evening. She further said that she and her husband and Mr. and Mrs. Glasson went to the Duke's that night for coffee and when she and Mrs. Glasson reported to Mr. Gable the next morning, he told them he appreciated what they had done and that if he or Mr. Bryan, the owner, could do anything for them to please let them know. She also testified that sometime between Thanksgiving and Christmas in 1958 (this was 6 or 7 months before her discharge) the bacon-slicing line had to work a few extra hours on Saturday morning. At that time she remarked to the weighers, and to Mr. Duke who was present, that if they had a union in the plant they could have "There was an election in Respondent's plant in February 1958 Mrs. Jeffcoat did not know what union was involved but did know that it was not the Charging Party. She said that about 3 weeks prior to that election was when Mr. Duke spoke to the weighers This incident took place more than a year before the transfers and did not involve the Charging Party. It is also denied by Mr. Duke. 3 Mrs Glasson did not testify. The General Counsel rested his case on the testimony of Mrs. Jeffcoat and Mrs. Brown. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD finished the work they were doing the previous Friday and would not have had to work on Saturday for 2 hours. Mr. Duke then stated that "if the girls wanted the union he thought that was their right and their privilege and he didn't blame them if that's what they wanted." Duke denies the incident. Her testimony with respect to her transfer was that one day 3 or 4 weeks before her transfer on May 4, Mr. Duke told the five girls on the belt that they were getting more hours and hence more money on the bacon-slicing line than the employees in prepack were getting, so the employees would rotate between bacon slicing and pre- pack in order to equalize the hours. At the start of the workweek on Monday, May 4, 1959, she reported to work in the prepack when Mr. Duke pointed his finger in that direction. No words were spoken. On the following Thursday morning she talked to Mr. Duke at the door of the storage cooler and then got on an elevator with him where they stopped between floors to talk. This was around 9 a.m. She asked him why she was still in prepack. He told her that he had to transfer her and later on lay her off and that he wished she would not ask him any more questions as he could not tell her. However, he did tell her it was because of her husband's union activities at Babcock & Wilcox and he hoped there would be no hard feelings between all of them (the Browns, the Jeffcoats, and the Dukes)? (Mrs. Jeffcoat testified that the Jeffcoats and the Dukes had visited each other once or twice in their lifetime.) Duke denies the incident. While on the bacon-slicing line, she was averaging about $1.20 an hour (1.10 plus incentive pay) for 43 to 50 hours per week. In prepack she made $1.10 an hour (they never reached the incentive standard) and worked only from 25 to 30 hours a week. On June 2, 1959, as she and Margaret Ann Brown were working in prepack, Mr. Stevenson, brought in supplies for them to package veal cutlets. These had to be packed in what is called a 6-pound box. That meant that the box when packed with cutlets would weigh 6 pounds. The box itself, a cardboard box, is approximately 14 inches long, 4 inches wide, and 4 inches deep. She said she had never seen or done a 6-pound box before and asked for instructions. He told her he knew "damn well" that she had, whereupon she called him a "damned liar." He said that "no damned woman was going to call him that" but after a while he said that he realized that she had not done the work, at which time she told him that he was not a liar. Nevertheless, he said that he was going to tell the boss that he would not work with her. He made his report, following which Mr. Duke took her to Mr. Gable's office. Present in ,the office were Mr. Gable, Mr. Wheeler, Mr. Stevenson, and Mr. Robert Smith, the production superintendent of the Respondent. She admitted before them that she had called Mr. Stevenson a "damned liar" but said that Mr. Stevenson should not argue with her. She recalled that Mr. Smith asked Mr. Gable, "I wouldn't like to be called a damned liar, would you? And Mr. Gable in turn said, 'No."' She then was told to wait outside. Shortly thereafter Duke came out and said ". . . they are trying to make a mountain out of a damned mole hill." Later he told her they were going to have to lay her off for a while. She replied, "If you've gotta you've gotta." When she was presented with the check by Mr. Duke's assistant, Carl Bryan (no relation to Respondent), she asked him why she was being laid off, but he could give her no reason. As to vulgarity in the plant, she testified that she had heard foremen and other supervisors use vulgar language in the plant-that the girls in the bacon-slicing line used vulgar language and that stronger words than "damn" were frequently used and that she had never been warned about the use of vulgarity. Further, she testified that she never saw any company rules posted on the bulletin board. The only rules she could remember ever seeing on the bulletin board related to prohibiting "horse play" in the plant. As to her union activities, her husband was on the organizing committee for the Boilermakers Union at the plant of Babcox & Wilcox, and he held meetings at their home since October 1958 until recent time. These meetings were held once or twice a month at night or on Saturday. She signed an application card for membership in the Charging Party on June 1, 1959, which was the day before the day of the alter- 4 Her actual testimony is as follows : "And Mr Duke told me then that , he said, `Ruth, it hurts the hell out of me to have to do this to you , to have to tell you this , but that I've had my orders from higher up and live got a job to do' He said, `I've got to trans- fer you,' he said, 'I had to transfer you and later I've got to lay you off ' And I asked Mr. Duke why just me , why he was doing this to me , and he said , 'I wish you wouldn't ask me any more questions because I'm not allowed to talk.' . . . and I told him I had a right to know . . . and Mr. Duke then told me that it was because of my husband's activities at Babcock & Wilcox. . 11 BRYAN BROTHERS PACKING COMPANY 289 cation with Mr. Stevenson and of her discharge . She said she had signed the card at home ( this would be in the evening of June 1) and her husband turned it over to the Boilermakers' representative . It was not until 3 or 4 weeks after her dis- charge that she met Thomas M. Kenney, the International Representative of the Charging Party, after her discharge but in the same week, she met Mr. W. Enos Lanning, also an International Representative of the Charging Party. Prior to this time she had no contact with any union except for the meetings which her husband held for the Boilermakers at their house . After her discharge she started holding meetings for the Charging Party at her house, once or twice a week. 2. Margaret Ann Brown's story Margaret Ann Brown had worked in the office of Respondent from 1951 until her marriage in 1952, and then had returned in October 1957 where she worked until her discharge on July 3, 1959. She had worked in the bacon-slicing hne from Octo- ber 1957 until May 11, 1959, when she was transferred to prepack. She was told on May 8, 1959, that she was going to be transferred on May 11. She said that Mr. Duke told her not to hold it against him but he was going to have to transfer her because of the union activities of her husband for the Boilermakers at the plant of Babcox & Wilcox. While on the bacon-slicing line she worked from 40 to 50 hours a week averaging, with incentive pay, $1.22 an hour. Whereas when transferred to prepack she worked for her base pay of $1.12 an hour and only worked 20 to 30 hours a week. Mr. Duke never mentioned any plan of rotation of employees to her and she knew nothing of such a plan. As to her discharge, she testified that shortly after lunch one day she was caught by Mr. Gable while taking numbers off of the timecards by the timeclock. He asked her why she was doing that and she told him it was for her own use. He took the sheet of paper on which she had listed the numbers into the office of the production superintendent, Mr. Smith . She testified that she was only taking the names of the departments and the clock numbers during her lunch hour. She said that she had copied numbers the day before but no one saw her, and she also said that she never touched any cards except her own. That same afternoon at about 4:15, Mr. Duke talked to her in front of the timeclock telling her that he was letting her go for viola- tion of Company Rule No. 13, which rule was posted on the bulletin board. She testified that she had never been criticized for her work . She also testified that she was with Ruth Jeffcoat when the Stevenson episode occurred and she was asked by Respondent's production superintendent, Smith, if she had heard Jeffcoat call Stevenson a liar and she told him she had witnessed this but that Mrs. Jeffcoat was provoked into it . Her testimony was that almost everyone used profanity and no one ever said anything about its use. On cross-examination it was brought out in Mrs . Brown's testimony that in July 1959, when discharged , she was 2 months pregnant although she says she didn't know herself whether she was pregnant at that time . She took the usual number of breaks during the day and admitted taking extra breaks. She would get either Mr. Duke, or his assistant, Mr. Bryan, to relieve when taking a break. She testified that she was not spoken to with respect to taking excessive breaks. Her husband was the organizer at the Babcox & Wilcox plant, where Mrs. Jeffcoat's husband worked, and in addition wasthe secretary and treasurer of the Boilermakers Union at that plant. Meetings of that Union were held in her home in September and in December 1958. Her union activity for the Charging Party was limited to attending a union meet- ing on the evening of July 2, which was the night before she was discharged. This testimony is in direct conflict with an affidavit she had supplied the Regional Office in which she stated that she had not attended any union meetings prior to her discharge. After her discharge and after she had had her baby, the Company by letter dated February 1, 1960, offered her a job in prepack where she had worked at the time of her discharge. She replied to this letter on February 5, 1960, that she was interested and was available for work, and on February 8, 1960, the Company wrote her sug- gesting that she report to work on Wednesday, February 10, 1960. She never re- ported on February 10 but instead telephoned just as she returned home from the hospital from an operation, and told the personnel manager that she could not work for 6 weeks. Mrs. Brown's reply to Respondent's letter offering her employment, was by letter dated February 5, 1960. The envelope containing this letter was postmarked Febru- ary 5, 1960. She testified that she had written the letter at home prior to going back to the hospital. It was then disclosed that she entered the hospital on February 3, and 586439-61-vol. 129-20 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .did not leave until February 9. When asked how she could write the letter at her home on February 5, when she was in the hospital on that date, she replied that she had written the letter on February 3, before going to the hospital and that the Febru- ary 5th date must have been a mistake. After the letter had been written, it was left on her desk for her husband to mail and she had no way of knowing why it was not mailed until February 5. C. Respondent's contentions The Respondent contends that it had absolutely no knowledge of the activity or interest of either Mrs. Jeffcoat or Mrs. Brown in any labor organization. The only direct evidence that it had knowledge of activity of the Charging Party was a letter dated July 14, 1959, from the Charging Party to the Respondent. This appears in the record as the Respondent's Exhibit No. 5. This letter is some 11 days after the ,discharge of Mrs. Brown, and a month and 12 days after Mrs. Jeffcoat's discharge. Shortly following the letter, the charge in the instant case was filed on July 30, 1959. A great portion of the testimony of the witnesses for the Respondent gives reasons ,not only for transferring Mrs. Jeffcoat and Mrs. Brown from the bacon- slicing line to prepack but also for discharging them. The testimony of both Mrs. Jeffcoat and Mrs. Brown is denied in all critical aspects by witnesses for the Respondent. Briefly stated, the testimony indicates that there was no talk of a union around the plant during the period in question. Also that Mrs. Jeffcoat had a very bossy nature with respect to the other girls on the scales, that she used vile and obscene language, told dirty stories and from time to time upset other persons on the bacon- slicing line. For example, one employee, Mrs. Pettit, was so upset over the conduct of Mrs. Jeffcoat that she told her husband, who was also an employee at Respondent, that she was thinking of quitting. Her husband related the conversation to Foreman Duke and within a few days Mrs. Jeffcoat was transferred to the prepack department. The general testimony, except for that of Mrs. Jeffcoat and Mrs. Brown, was that there was no vulgar and nasty language being used in the plant except that used by Mrs. Jeffcoat. Mr. Stevenson, the one called a "damn liar" by Mrs. Jeffcoat, testified that she was always asking when he was going to learn that she was running that side of the department and that she swore and called the employees vulgar names. Mr. Stevenson told the assistant foreman, who by the way overheard the conversation between Mrs. Jeffcoat and Stevenson, that he would quit before he would work with her any longer after she had called him a liar. James Akins, witness for Respondent,5 testified that Mrs. Jeffcoat used vulgar language almost daily, and that because she recognized his lack of appreciation for a dirty joke she refused to tell them in front of him. He worked on the boxing ma- chine on the bacon-slicing line and of course in that position worked alongside of Mrs. Brown when she was on that line. He credibly testified that Mrs. Brown would get behind and would require help in boxing the bacon. After she was transferred ;to the prepack department, he testified that she was not a consistent worker and in addition regularly took breaks from work about four times a day in addition to her permitted breaks. Although others would take more breaks than permitted, they - would not do it with her regularity. D. Concluding findings There is no dispute as to the fact that Mrs. Jeffcoat and Mrs. Brown were trans- ferred from a better paying job to a lesser paying job and that on June 2 and July 3, respectively, they were discharged. There is some dispute of a minor nature as to the exact dates of the transfers and I find they took place on May 4 and 11, respec- - tively. There are no independent allegations of violations of Section 8(a)(1) of the Act, the entire case being predicated upon the two transfers and discharges. The law is well known that from the above facts it is clear that a violation of Section 8(a)(3) plus a derivative violation of Section 8(a)(1) of the Act has been made out, should the transfers or the discharges have been made "to encourage or dis- courage membership in any labor organization." (Quoted material is from Section 18(a)(3) of the Act.) Hence not every discrimination is illegal under the Act. [Emphasis supplied.] It is also well known that a discrimination in regard to tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization can only be made out if there is credited evidence that the em- ployer or its agents knew, at the time of the discrimination, that the employees dis- criminated against were active either for or against a labor organization. Else the 5 As a member of the Church of God of Prophesy he could not take an oath before ] - testifying but could be "affirmed." BRYAN BROTHERS PACKING COMPANY 291 discrimination cannot possibly be found to encourage or discourage membership in .any labor organization. Accordingly, in cases of this sort, the General Counsel has the duty of proving that the employer or its agents knew of the activities of the discriminatees and these activities had to be such that the employees discriminated against (and perhaps other employees ) would view the discrimination as being caused by the activities . Thereby encouragement or discouragement, as the case may be could be ascertained . In most "pretext" cases, that is where the General Counsel can prove that the reason given by the employer for his actions against his employees is merely a pretext with the real reason being to encourage or discourage membership in a labor organization, the actions of the employees takes place among the employees of the employer. Of course, I believe the language of the Act is broad enough to cover a situation where the employer would fire an employee because the employee was notorious as being either pro or anti a labor organization even though the labor organization was seeking to organize employees of another employer . • However, in situations of this sort I would expect proof in addition to the proof for a normal "pretext" case. Particularly would this hold true when the other employer is not even in the same type of business, as is the situation in the instant case. I take judicial notice of the fact that the well known firm of Babcock & Wilcox is not in the same type of business as the meat packing and processing business of the Respondent. Now to apply the law to the facts of this case we must first determine what activi- ties, if any, were engaged in by the employees affected by the change in tenure of ,employment. Assuming, without now deciding that the testimony of Mrs. Jeffcoat and Mrs. Brown (which by the way is the only testimony of their union activity and the only testimony of knowledge thereof by Respondent ) should be credited, I find the only activity engaged in prior to their transfers was being wives of men who had their own union meetings in their respective houses. Such meetings were held twice a month by Mrs. Jeffcoat until time of trial , but Mr. Brown had not had one for some 5 months before Mrs. Brown's transfer. These meetings involved their husbands who were active in organizing the employees of their employer (Babcock & Wilcox) in the Boilermakers' Union. Nowhere is there evidence that these two wives attended -the meetings, or took part in them. I can only infer that they were tolerated. Nowhere is there evidence that would cause a reasonably prudent man to believe that the next step for these wives would be to start organizing the employees of the Respondent. Nowhere is there evidence that this employer would want to dis- criminate against them because of their husbands ' activities (except for testimony to this effect by the wives). As a matter of fact, neither one even knew the name of or Identity of -the international representative of the Charging Party. The only evidence of any activity for Charging Party is the bare claim by each woman that the night before her respective discharge each signed a card in the Charging Party. No offer was made to introduce either card . And in the case of Mrs. Jeffcoat, she said she even left the card at home for her husband to turn in for her to the Boilermakers (although the card allegedly was for the Charging Party ), and there is no evidence adduced that the Respondent could possibly know of these signings . Except for her own testimony there is no evidence of Company knowledge of the meetings held at her house or of the signing of the card . To assume company knowledge of Mrs. Jeffcoat's union activities , if any, I would have to conclude that it took Respondent 8 months to find out about repeated meetings of as many as 30 people at her home, but that it took Respondent only overnight to find out about her card -signing at her home in the presence of no one. True, we have each one of these women testifying that a supervisor of Respondent told each one, in effect, that they were going to be transferred because of the union activity of their 'husbands. Again this alleged activity was the meetings of the Boiler- makers above. Even if I credit both Mrs . Jeffcoat and Mrs. Brown in full, I would have great hesitancy in finding that the General Counsel sustained his burden of proof because he has not established as an ascertainable fact any activity of Mrs. Jeffcoat or Mrs. Brown either for or against any labor organization. However, I need not pursue that most entertaining theory further nor do I base my findings on it as I simply do not credit the only witnesses put on the stand by the 'General Counsel for his case, namely Mrs. Jeffcoat and Mrs. Brown , when other -witnesses have denied their testimony . And I do not credit their statements to the effect that they each signed a card in the Charging Union the night before their discharges. The whole story of Mrs. Jeffcoat's transfer is incredible. I cannot imagine any- one intelligent enough to be a responsible supervisor (I find Mr. Duke to be a responsible supervisor and he impressed me as being intelligent ) telling Mrs. Jeff- 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coat that she was transferred to a lesser paying job and would be fired later because of her husband's union activities for the following reasons: 1. A person would pick a time to do this, if he really wanted to be secretive about it (and the General Counsel's theory is that he wanted to be secretive), other than early in the morning when all employees on the bacon-slicing line were at their freshest and not only would wonder why the foreman was delaying Mrs. Jeffcoat but would be resentful as their group incentive would Abe adversely affected by her absence from the line. No evidence on this was adduced as to whether anyone com- mented or saw Mrs. Jeffcoat and Mr. Duke together. Her story is ridiculous. She said it was about 9 a.m. on Thursday when she talked to Mr. Duke on the elevator. She admitted, on cross-examination, to going out of the room to find Duke. She had waited 3 days to ask Mr. Duke about the matter and now she couldn't wait until he got back into the room. Apparently this ridiculous testimony dawned on her as she changed her testimony showing that she had gone to the rest room and had stopped to talk to Mr. Duke on the way back. This smacks of afterthought and is uncon- vincing because there is a 15-minute break at 9:30 just 30 minutes away. It is not Mrs. Jeffcoat but rather Mrs. Brown who had difficulty in waiting for rest periods. 2. There is no reason why Mr. Duke would need to take Mrs. Jeffcoat in an elevator and stop in between floors to tell her this. This again would create comment and talk. There is no evidence as to this. 3. This flagrant conduct would become known to fellow employees or Mrs. Jeff- coat, having a reputation as one who did not bridle her tongue, would surely tell someone, and she did not. (At least there was no evidence as to this.) 4. One having the independent character of Mrs. Jeffcoat would react violently against her foreman or her employer and someone would hear of it. At least no one so testified. As a matter of fact, she only told Mr. Duke, "If you've gotta, you've gotta" at the time he told her he was going to have to fire her. 5. Her story of her discharge, to be consistent under her own evidence, would have tied into the previous threat and if she were really not being fired for calling Mr. Stevenson a liar, Mr. Duke would have said something to the effect that "This is it" or "Remember, I warned you" rather than "They are trying to make a mountain out of a damned molehill." These very words, on the contrary, reflect an opinion of a man honestly fearful of the consequences of an incident. He never would say that if he were her friend as she alleged and if he knew the employer was merely using the incident as a pretext for an earlier decision to fire her because of her husband's union activities. He knew all her employee-traits. She testified that following her discharge, but within the same week of it, she began organizing the employees of Respondent. This being an uncontradicted fact, I believe she would have done the same thing at the time of the transfer if Mr. Duke really told her he was going to have to fire her later on for her husband's activities. I believe she would then have started her activities. As she did not do so, I find he never so told her. Not only was she not transferred because of her husband's activities but she can not establish that she was transferred in order to equalize the work, as was her testimony. Mrs Brown stated that she had not heard of Duke's alleged proposed rotation plan. Of course, Mrs. Jeffcoat said that Mr. Duke spoke only to the weighers about rotation with prepack. But that would make little sense. If hours were .to be equalized, why would only the bacon scalers be involved in the rotation. Why would not all the women on the bacon-slicing line be included inasmuch as they formed the group for their incentive plan. Moreover, if such a proposal had been made, it would have been the subject of discussion, as it would mean a reduction in pay, and Mrs. Brown, being in the group, surely would have heard of it. I find that Mr. Duke never transferred her under a plan to equalize the pay nor did he transfer her because of her husband's union activities. So long as transfers are not discriminatory under the Act it does not matter why they are made. In addition to the above analysis of her basic testimony, I do not credit Mrs Jeffcoat as against Mr. Duke and all the other witnesses who testified. She im- pressed me as an extremely biased witness for her case. She did not impress me as a candid, forthright witness as did the others whose testimony did not corroborate hers. One incident illustrates how Mrs. Jeffcoat would shift her testimony, and this involved an obvious fact. On cross-examination she testified that when she went to Mr. Gable's office (pursuant to Mr. Duke's message that Mr. Gable wanted to see her about going to the Dukes' for coffee) she identified the office as one which Mr. Gable shared with Mr. Smith, the production superintendent. Then within 13 pages testimony, when relating the events at the time she called Mr. Stevenson a "damned liar," she was asked if the office were also Mr. Smith's office. Her reply BRYAN BROTHERS PACKING COMPANY 293 was, "I suppose so. He was in there." Then for some reason she became wary and would not say the office was Mr. Smith's but ". . . knew he spent a lot of time in there . . Then after testifying that she had been in the office before, the fol- lowing took place: Q. Had you ever seen Mr. Smith in that office before? A. No, sir. Q. You had never seen him in that office before? A. Not seated at a desk, no, sir. Q. Not seated at a desk? A. He might have been inside talking to Mr. Gable but never seated at the desk. The only one who corroborated her was Mrs. Brown. I do not credit Mrs. Brown. In two different incidents she herself shook me from crediting her. First she swore in an affidavit that she had not attended a union meeting prior to her discharge and then at the trial swore she had attended a meeting on .the evening of July 2, 1959, the night before her discharge. This meeting, by the way, she swore was the first meeting she ever attended. Then there is the testimony of the misdated letter of February 5, 1960. It strains my credulity to credit her in this in view of the previous switch in testimony. At no time in her testimony did she seek to offer an explanation of the fact that she ob- viously was not in the hospital and at the same time at home on February 5, 1960. She never attempted to explain the date problem. Rather it was only through repeated questioning that it was determined that her hospital admittance date cast doubt on the date of the letter. At that time she brazened it out by attempting to explain that she must have typed a "5" for a "3," and that she then left this important letter sealed at home for her husband to mail and he, knowing nothing of the date of the letter, providentially mailed it on February 5, 1960. But if all that is true, why did she leave the letter for her husband to mail when she by then knew she was reentering the hospital and would not be available for work as stated in the letter? In addition to the above, we have an incredible story by Mrs. Brown similar to that of Mrs. Jeffcoat. She, like Mrs. Jeffcoat, did nothing when allegedly Mr. Duke told her she was being transferred because of her husband 's union activities (which had ceased, as far as meetings at her house were concerned, some 5 months earlier.) Neither she nor Mrs. Jeffcoat ever spoke to each other ( as far as the record shows) about their transfers yet they were made within a week of each other. She was asked by counsel if she participated in any other union activity other .than her card- signing (she admitted she did not participate in the discussions in the meetings her husband held at their house for the Boilermakers). She replied that she was in the original group that discussed organization before any meetings were held. Mrs. Jeffcoat placed the first meeting with the union organizer almost a month prior to the date Mrs. Brown said she signed the card. Why she would wait until July 2 to sign the card, assuming without deciding for the moment that she did sign a card and on that date, and why she would not tell Mrs. Jeffcoat and the union organizer of the conversation with Mr. Duke are questions that when unanswered make her story incredible. Again, the General Counsel has failed to establish that Respondent had knowl- edge of any union activity involving her or her husband. Because the essential element of knowledge by Respondent of union activities of Mrs. Jeffcoat and Mrs. Brown (or of their husbands ) has not been established by the General Counsel, it is unnecessary to consider Respondents' defenses, con- tentions, and proof 6 The size of the plant is a factor or circumstance to be considered in drawing any inference of knowledge.7 But there is nothing in this case to "trigger " the alleged actions of the employer into discriminating against either Mrs. Jeffcoat or Mrs. Brown. Husbands of both had been active in the Boilermakers at Babcock & Wilcox for many months and meetings had been held at their houses for months. What leads the General Counsel to believe that sudden action of the Respondent was a violation of the Act? The General Counsel has not provided an answer to this e Employer knowledge either directly or as a reasonable inference under all the circum- stances-is an essential ingredient to sustain a violation of Section 8(a) (3) of the Act. See for example Marion Mills (Division of Munsingwear, Inc.), 124 NLRB 56, and Union News Company, 112 NLRB 420, 423. 7 Compare Wiese Plow Welding Co, Inc , 123 NLRB 616 , and Diamond Ginger Ale, Incorporated, 125 NLRB 1173. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD question. Based on the findings and reasons set forth above, I shall recommend dismissal of the complaint in its entirety. Upon the above findings of fact and upon the entire record in the case I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Charging Party is a labor organization 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.8 [Recommendations omitted from publication.] 8 As the alleged violations of Section 8(a)(1) of the Act are derivative of Section 8(a) (3) they, too , fall when 8(a) (3) falls. Walsh-Lumpkin Wholesale Drug Company and International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, Local 878. Case No. 06-CA-913 (formerly 15-CA-1668). October 6, 1960 DECISION AND ORDER On May 24, 1960, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in unfair labor prac- tices 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. Thereafter the Respondent and the General Counsel filed exceptions to the Intermediate Report and the Respond- ent also filed a brief in support of its exceptions. The Board 1 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 Inter- mediate Report, the exceptions, the brief, and the entire record in this case,'and hereby adopts the findings, conclusions and recommenda- tions of the Trial Examiner with the following additions and modifications. 1. The Respondent has made a number of procedural objections to the proceedings. They are : (a) The hearing was unauthorized because no valid charge was filed with the Board. The charge filed was signed "Odell Smith, President, by James E. Youngdahl, Attorney." The Board's Rules (Section 102.11) provide that a charge "shall be in writing and signed, and either shall be sworn to . . . or shall contain a declaration by 'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel ( Chairman Leedom and Members Rodgers and Fanning]. 129 NLRB No. 31.