Tennessee Packers, Inc.

494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tennessee Packers, Inc., Frosty Morn Division and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, Local 405. Case No. 26-CA-1388. June 28, 1963 DECISION AND ORDER On April 17, 1963, Trial Examiner Sidney S. Asher, Jr., issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. He also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended the-, dismissal of these allegations of the complaint. Thereafter, the Gen- eral Counsel and the Respondent filed exceptions to the Intermediate, Report and briefs in support thereof. 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 McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the exception discussed herein. We find merit in the exception of the General Counsel to the Trial Examiner's dismissal of the allegation with respect to the discharge of Claudine Warren. During a prior unfair labor practice proceeding,' WTarren, although stating that she was "for the company," had testified for the General Counsel to the effect that the plant superintendent, Barnes, threatened to close the plant before allowing a union into the plant. Her testi- mony was one of the principal factors leading to a finding that the Respondent had violated Section 8 (a) (1). Warren testified in this proceeding that from the time she testified at the prior hearing she was harrassed by her supervisor, Cipriano, who by his own admission is antiunion. At the start of the 1962 union campaign, Warren was one of the four employees contacted by the Union to aid in its organizing efforts. She not only signed a union card, a fact which might not have been known by others, but personally contacted other employees on behalf of the Union. The Respondent denies knowledge of her union activity. However, a few days prior to the union election one of Respondent's 1124 NLRB 1117. 143 NLRB No. 61. TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 495 supervisors, Stuart, talked with another employee, Ophelia Hutchison, about the Union. He asked her to talk to the girls in the ham room "to go company," and informed her that "Claudine Warren would get fired regardless of whether the union came in or didn't." The Trial Examiner credited Hutchison but found the statement insufficient to warrant a finding that the Respondent knew of Warren's activity on behalf of the Union. We disagree. In view of the context in which Stuart made the remark, it is reasonable to infer that the statement was made with her union activity in mind,' unless other reasonable explanation is offered. None was offered; Stuart who made the re- mark did not testify. Since Warren had contacted other employees for the Union, her support of the Union was no secret, and, in light of Stuart's statement to Hutchison, it appears that such information reached Respondent. Respondent attempts to explain her discharge on the grounds of her inefficiency and absenteeism. Despite the alleged recurrence of these complaints, Respondent kept her employed for 14 years. On Friday, September 21, 1962, Warren received word that her mother was critically ill and might not survive the weekend. She requested and received permission from Cipriano to leave work at once. On Sunday, Warren's son called Cipriano. He said that he was calling for his mother to report that she would not be in to work the next day because her mother was still in the same condition. Cipriano ad- mittedly told young Warren "to tell his mother to come back when she could." On Wednesday, Cipriano asked Warren's husband to tell his wife to call. Warren replied that his wife was still in Dover, a community about 35 miles away, and that he would notify her to call Cipriano. On the following day, Cipriano again asked Warren's husband to have Warren call; this time Cipriano was given the tele- phone number where Warren could be reached in Dover. There is no indication that Cipriano made any direct effort to contact her. On Saturday, Warren returned home and telephoned Cipriano. Cipriano told her that she was discharged because she had failed to report per- sonally that she was going to be off work. We do not find that Respondent's justification for her discharge comports either with the facts or with Cipriano's own behavior, and accordingly reject it. Warren did get permission from Cipriano who also admittedly again gave such permission to her son without any indication of any limitation or of any complaint as to the indirect nature of the request. Even his requests to her husband, in light of the unlimited permission given through her son, lack any indication of the alleged "seriousness" of her indirect communication. Only after she returned to town a few days later, and immediately contacted Cipriano as requested by Cipriano through her husband, did he raise 2 CP Syracuse Tank & Manufacturing Company, Inc , 133 NLRB 513, 539. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the issue which Respondent herein submits as the justification for firing her. It appears that this alleged justification is rather a pretext to cover the real motivation for the discharge of an employee of 14 years. In light of the facts in the case, i.e., her testimony at the earlier proceed- ing which established an unfair labor practice by Barnes, her leader- ship in the instant union campaign which she did not conceal, Stuart's remark rendered in the context of a discussion about the Union as to the intent to fire her, and the inadequate nature of the justifica- tion given for her discharge, we find, rather, that Warren was dis- charged for her support of and activity on behalf of the Union, and in order to discourage other employees from such conduct in the future. By such conduct, Respondent violated Section 8(a) (3) and (1) of the Act. Accordingly, we shall order the reinstatement of Claudine Warren to immediate and full reinstatement to her former or a sub- stantially equivalent position, without prejudice to any seniority or other rights and privileges previously enjoyed. In addition, the Respondent shall make her whole for any loss of pay she may have suffered by reason of the discrimination against her, by paying to her a sum of money equal to that which she normally would have earned from the date of her discharge to the date of her reinstatement, less her net earnings during the said period. The backpay provided for herein shall be computed on a quarterly basis, and shall carry interest at the rate of 6 percent per annum. ORDER The Recommended Order of the Trial Examiner is hereby adopted with the following exception : Section 2(a) is amended to add the name Claudine Warren and to change the word "her" to "their" in pertinent places. Paragraph 4 of the notice is hereby amended to reflect the same changes. INTERMEDIATE REPORT On October 3, 1962, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local 405, herein called the Union , filed charges against Tennessee Packers, Inc., Frosty Morn Division , Clarksville, Tennessee , herein called the Respondent. On November 14, 1962, the General Counsel i issued a complaint alleging that since on or about August 13, 1962, the Respondent has interfered with, restrained, and coerced its employees in certain specified. respects ; that on various dates the Respondent discharged and has since failed to reinstate four named em- ployees;2 that on or about September 14, 1962, the Respondent laid off and has 1 The term "General 'Counsel" includes the General Counsel of the National Labor Rela- tions Board and his representative at the hearing 2 Hershel Williams. September 17, 1962; William L Brown, September 26, 1962; Claudine Warren, September 29, 1962; and Ophelia Hutchison, October 2, 1962 TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 497 since failed to recall certain other named employees; 3 and that the discharges and layoffs, and the failure to reinstate or recall, were because the employees joined or assisted the Union or engaged in concerted activities . It is alleged that this conduct violated Section 8(a) (1) and ( 3) of the Naional Labor Relations Act, as amended (61 Stat. 136 ), herein called the Act. The Respondent filed an answer admitting that it had discharged and failed to reinstate three of the named employees, but alleging that the discharges were for good cause; denying that it had discharged the fourth named employee , but alleging that she had voluntarily quit ; and admitting that it had laid off and failed to recall the three other named employees , but alleging that the layoffs were due to lack of work. Upon due notice , a hearing was held before Trial Examiner Sydney S. Asher, Jr., on January 29 and 30, 1963, at Clarksville , Tennessee . On February 27, 1963, the Respondent filed a brief, which has been duly considered. Upon the entire record in this case , and from my observation of the witnesses, I make the following: FINDINGS OF FACT There is no dispute, the Board has found ,4 and it is now found , that the Respond- ent is, and at all material times has been , engaged in commerce as defined in the Act, and its operations meet the Board 's jurisdictional standards.5 There is also no dispute, and it is found , that the Union is, and at all material times has been, a labor organization within the meaning of the Act. A. Background 1. Earlier organizing attempts A union unsuccessfully tried to organize the Respondent's Clarksville plant in about 1952 and again in 1955, the first ending in a long strike after which many of the employees were not reinstated and the second when the Union lost a Board- conducted election. In 1958 , United Packinghouse Workers of America, AFL-CIO, herein called the Packinghouse Workers, attempted to organize the employees.6 The Packinghouse Workers filed with the Board a petition seeking to represent the production and maintenance employees of the plant , with certain inclusions and ex- clusions (Case No. 10-RC-4275). The parties entered into a stipulation for certi- fication upon consent election , pursuant to which the Board conducted an election on January 9 and 10, 1959 . The results showed that 146 ballots had been cast against the Packinghouse Workers, 80 ballots had been cast for that union, and 18 ballots had been challenged . The Packinghouse Workers then filed objections to the election. The Regional Director investigated and issued a report recommending that all the objections, except one, be overruled ; the Respondent filed exceptions to the recommendation regarding the one remaining objection . On June 19, 1959, the Board refused to consider the remaining objection , and certified that the Pack- inghouse Workers was not the exclusive bargaining representative of the employees in the unit agreed upon? Meanwhile, on January 6, 1959, the Packinghouse Workers had filed with the Board unfair labor practice charges against the Respondent (Case No. 10-CA-3956). A complaint was issued alleging that the Respondent had violated Section 8(a)(1) of the Act. On April 22, 1959, a hearing was held before Trial Examiner Thomas S. Wilson, who thereafter issued an Intermediate Report, finding that the Respond- ent had violated Section 8(a)(1) of the Act by ( 1) threatening to close the plant if the Packinghouse Workers won the election ; (2) photographing the Packinghouse Workers' agent distributing leaflets to employees ; (3) questioning its employees about their union sympathies ; and (4 ) granting wage increases to employees to influence their votes in the election . Thereafter, the Board adopted the Trial Examiner's recommendations, and ordered the Respondent to cease and desist from B'Shirley Holt, Nora Ann Black , and Myrtle Lane * Tennessee Packers, Inc, 123 NLRB 1755 , and 124 NLRB 1117, 1120. e The Respondent is a Tennessee corporation, with its principal place of business in Clarksville, Tennessee, where it is engaged in the processing of meat and meat products During the 12 months prior to November 14, 1962, the Respondent shipped finished prod- ucts valued at more than $50,000 directly to destinations outside the State of Tennessee 9 These findings of fact are based upon the Board 's findings of fact in Tennessee Packers, Inc, 124 NLRB 1117, 1121, of which I take official notice and which I deem binding upon me 7 Tennessee Packers, Inc., 123 NLRB 1755. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the unfair labor practices found and to post appropriate notices .8 The Respondent satisfied the Board's Regional Director that it had complied with the Board's Order and he closed the case on January 4, 1960. 2. The Union's 1962 organizing campaign Early in May 1962, Robert Lee, a representative of the Union, came to Clarks- ville to organize the Respondent's employees on the Union's behalf. He contacted three employees, Wallace Hester, William L. Brown, and Claudine Warren. They furnished Lee with the names and addresses of other employees. Another employee who aided Lee at this time was Hershel Williams. On August 3, 1962, the Union filed with the Board a petition seeking to represent the Respondent's employees (Case No. 26-RC-1815). On August 17, 1962, the parties entered into a stipulation for certification upon consent election. Pursuant to this stipulation the Board conducted an election on August 24 and 25, 1962. The Union's observers were Hester, Ophelia Hutchison, and Carl Lucas.9 Six ballots were challenged, but the challenges were withdrawn; the results were 142 ballots against the Union and 133 for the Union. No objections to the election were filed and on September 4, 1962, the Regional Director certified that the Union was not the exclusive bargaining representative of the employees in the stipulated unit. B. The supervisory status of certain individuals 1. Charlene Lewis The complaint, as amended at the hearing, alleges that Charlene Lewis was, at all material times, a supervisor within the meaning of the Act. The answer, as amended at the hearing, denies this. Lewis was the floorlady in the Respondent's wiener packaging department. In the spring of 1962 this department consisted of 10 full-time employees. In addition, two employees of another department worked part time in the wiener packaging department. At that time Lewis assigned the employees in the department to their work and moved employees from one job to another without prior consultation with any higher supervisor. She also reprimanded the employees as a group when their work performance was unsatisfactory. Furthermore, she granted employees time off without first consulting anyone in a position of higher authority.io Between the spring of 1962 and the election at the end of August 1962, several departments-including the wiener packaging department-were consolidated under the supervision of Roy Cipriano. It is the Respondent's position that this resulted in the loss of the supervisory authority theretofore possessed by Lewis, and that she was thereafter demoted to a rank-and-file employee. The General Counsel disputes this, maintaining that even after Cipriano took over the supervision of several de- partments, Lewis continued to exercise supervisory authority in the wiener packaging department, although of course subject to Cipriano's higher authority.ii Let us consider the time when Lewis' demotion is alleged to have occurred. Cipriano testified that the consolidation of departments took place in March or April 1962. But Barnes testified on direct examination as follows: Q. (By Mr. CORNELIUS.) Mr. Barnes, going back to the wiener packaging department, had Charlene Lewis ever been a floorlady? A. She had. Q. When was she cut back to a mere employee? A. About the first of July. 8 Tennessee Packers, Inc., 124 NLRB 1117. 6 On August 23, 1962, Lee mistakenly advised the Respondent that the observers would be Hester, Hutchison, and Williams Later Lee informed the Respondent that Lucas would serve in place of Williams 10 The findings of fact regarding Lewis' authority in the spring of 1962 are based upon the testimony of Shirley Holt, Nora Ann Black, and Myrtle Lane, witnesses for the General Counsel who had worked in the wiener packaging department in the spring of 1962 Lewis herself did not testify. n In this connection it should be noted that Cipriano told the employees in the wiener packaging department that Lewis was still their "boss" and that Lewis ' pay was not re- duced after the consolidation. Lewis' vote in the election held in August 1962 was originally challenged by the Union, but latex all challengers were withdrawn. TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 499 Q. 1962? A. I think that's right. Q.... she was not made a floorlady after July 1962 when she was cut back? A. No, sir. Based upon this testimony I find that Charlene Lewis, at least until July 1, 1962, had authority to discipline and responsibly to direct employees in the wiener packag- ing department and therefore was, at least until that date, a supervisor within the meaning of the Act. I deem it unnecessary to decide her status after that date. 2. Ben Stuart Although the matter is not mentioned in the complaint, the General Counsel main- tains, and the Respondent denies, that Ben Stuart was at all material times a su- pervisor within the meaning of the Act. Stuart is assistant foreman of the Re- spondent's ham room. He assigns work to the employees, and moves them from lob to job without prior consultation with any higher supervisor. He also rep- rimands them as a group when their work is unsatisfactory. Furthermore, he grants time off to the employees. The foreman, Ciprano, has other departments to supervise and is not always present in the ham room; in Cipriano's absence the employees there look to Stuart for orders as to what to do during the day.ii I conclude that Stuart has authority to discipline and responsibly to direct em- ployees in the ham room. It is accordingly found that he is, and at all material times has been, a supervisor within the meaning of the Act. C. Interference, restraint, and coercion 1. Alleged threats The complaint alleges that on or about August 20, 1962, the Respondent through Clay Barnes, its plant superintendent, threatened its employees with reprisals if they assisted or supported the Union. The answer admits that Barnes was, at all material times, the plant superintendent and a supervisor within the meaning of the Act, but denies that he made any threats to employees. Shirley Holt, an employee in the wiener packaging department and a witness for the General Counsel, testified on direct examination that, early in the week before the election, the following took place' Well, I had been down to Mr. Barnes' office that morning. He called me to his office and he was standing at the door and said he hadn't had a chance to talk to me about the union, but he wanted to, and the walls of the plant were practically plastered with posters showing the difference in organized plants and what Frosty Morn had to offer. He told me that the union just told us these things in order to get organized and when they got in it would be different. He told me that with Frosty Morn I had job security, and the last three girls he had hired temporarily, but he was in hopes he wouldn't have to lay anyone off. I asked him in case there was a layoff how would they be made, and he said, "As usual, according to seniority." Assuming that the conversation occurred exactly as Holt described, I am con- vinced that Barnes' remarks cannot reasonably be considered as anything more than a statement that the Union, if it got in, could not guarantee to improve on the existing job security of the employees, and that if it promised to do so it would be unable to fulfill its commitment. Such a statement is not as the General Counsel claims, a "thinly veiled threat of what might and probably would happen should the employees continue in their organizing efforts." And in this connection we should bear in mind the recent admonition of the United States Court of Appeals for the Sixth Circuit that "the utterances of either side in an election campaign ought not to receive a narrow or strained construction." 13 I conclude that Barnes' 12 The findings of fact regarding Stuart are based entirely upon the undenied testimony of Ophella Hutchison, an employee of the ham room and a witness for the General Counsel Stuart himself did not testify and the Respondent offered no evidence regarding his status. 13 Union Carbide Corp. v. N.L R B., 310 F. 2d 844 (C.A. 6) 717-672-64-vol. 143-33 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statement to Holt constituted the exercise of free speech protected by Section 8(c) of the Act, and therefore did not violate Section 8(a) (1) of the Act. 2. Interrogation a. By Barnes The complaint alleges that on several occasions in 1962 supervisors interrogated the Respondent's employees concerning their union membership, activities, and desires. Such incidents, involving Barnes, are alleged to have occurred on or about August 13 and 20, 1962. While conceding Barnes' supervisory status, the answer denies the interrogations. About 2 weeks before the Board election of August 24 and 25, 1962, Barnes came to the offal room where employee William L. Brown was working. Accord- ing to Brown, this is what happened: Q. As best you can remember, what was said by the two of you' A. Well, Mr. Barnes . . . asked me if I had heard any rumors about a union and I said, "Yes, I had." So, he proceeded to tell me that it didn't have no advantages that he could see; that the plant could offer more, and he said he didn't care, though, whether I was for the union or whether I wasn't. He didn't care whether I voted for it or not. It didn't hurt him no bit. Q. Did you say anything else to him? A. No, sir, I didn't, with the exception that it was nice speaking to him. He up and left. Barnes' version of this conversation was somewhat similar. He testified: Q. Did you ever talk to Mr. Brown about the Union? A. I told him this: I said, "You probably know we are going to have an elec- tion here to determine whether they want a union. I don't know how you feel about it, and it's none of my business. I don't care. You have to vote the way you want to. If you see fit to vote against it, of course, I would appreciate it and if you feel like the union would do you more good, then that's your privilege of voting for it." While conceding that there was nothing in this conversation that indicated a threat or promise of benefit, the General Counsel contends that it constituted inter- rogation in violation of Section 8(a)( I) of the Act when taken in the context of "the entire scheme of antiunion campaigning in this case." I cannot agree. Under either Brown's version or Barnes', it does not seem to me that Barnes was seeking to elicit information in a manner violative of the Act; rather I am convinced that he was only making a rather temporate appeal for Brown to cast his vote against the Union. Like Barnes' conversation with Holt, described above, I consider his remarks to brown as falling within the ambit of Section 8(c)'s protection and con- sequently not violative of Section 8(a)(1) of the Act. About August 20, 1962, Barnes called Ophelia Hutchison, an employee, to his office. According to Hutchison, the following took place : he was talking to me about the union and the company . . . giving me the advantages of the company, and he said he had heard I was union, but he hoped that I wasn't; that he put me and used me on various committees, and that he thought that I was for the company and he hoped that I went company. * * * * * * Q. What did you tell Mr. Barnes as to your feelings? A. That I didn't know how I felt then. The General Counsel concedes that this incident, standing alone, "might not be considered" a violation of the Act, but urges that "taken in context with this con- stant questioning by supervisors, that it should be considered" violative of Section 8(a)(1). It will be assumed, without deciding, that the conversation took place precisely as described by Hutchison. While the matter is not entirely free from doubt, I am not prepared to conclude that the General Counsel has shown that Barnes was attempting to elicit from Hutchison information about her union sym- pathies. Accordingly, I find that Barnes did not by this conversation violate Section 8(a)(1) of the Act. TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 501 b. By Cipriano The complaint alleges, and the answer denies, that Cipriano illegally interrogated an employee on or about August 20, 1962. There is no issue as to his supervisory status. About 2 weeks before the election Cipriano approached employee Myrtle Lane while she was working. After mentioning that there was going to be an election and expressing his opinion that the Union "isn't any good," he showed Lane a blank designation card for the Union. Lane said she had received one, whereupon Cipriano asked: "Did you read that carefully before you signed it?" Lane answered: "Yes, I read it." Cipriano stated: "Well do you know when you signed that card you signed your rights away for a full year with anyone else to represent you." Lane replied that she did not expect to have anyone else represent her. Cipriano then asked Lane if she were a steward for the Union; she did not answer.14 The General Counsel does not contend that Cipriano violated the Act by stating that employees who signed a union card could not then change their bargaining representative for a year, but contends that the question "Did you sign ones" would be illegal. On the record before me, I am not convinced that Cipriano asked such a question of Lane, or any other employee. However, he did ask Lane if she were a steward for the Union. I find that such questioning on a matter with which Cipriano was not legitimately concerned constituted illegal interrogation proscribed by Section 8(a)(1) of the Act. c. By Mayo The complaint alleges that on or about August 20, 1962, C. J. Mayo interrogated employees about their union membership. The answer admits Mayo's supervisory status, but denies any interrogation by him. On August 23, 1962, Lee, the Union's representative, telephoned the Respondent and stated that the Union's observers in the election to be held the next day would be Williams and two other employees.15 Williams was working in the slaughter department, of which Mayo was foreman. Through another foreman, Barnes sent word to Mayo that Williams would be used as an observer and should be excused, if necessary, to attend the preelection conference. Thereafter, Mayo asked Williams if he were going to be a union observer at the election; Williams (not knowing his name had been mistakenly given) denied it. Mayo replied that he knew that Williams was to be an observer. The General Counsel contends that this conversation took place before Lee's telephone call, conceding that if the conversation occurred after Lee's call it would not be violative of the Act. This contention is based upon Williams' testimony plac- ing the conversation as having taken place "about two or three days before the election." However, as Mayo had no reason prior to August 23, 1962, to think that Williams would be an observer, I am convinced that Williams was in error in placing his conversation with Mayo when he did. Instead I find that it took place no earlier than August 23, 1962, when Lee telephoned the Respondent. As Mayo had a legitimate right to know if Williams planned to be absent from his work (a one-man task) to attend either the preelection conference or the election itself, I conclude that Mayo's questioning of Williams on this subject did not violate Section 8 (a) (1) of the Act. 16 d. By Lewis The complaint, as amended at the hearing, alleges that on or about June 1, 1962, Charlene Lewis interrogated employees regarding their union membership. The answer, as amended at the hearing, denies both the supervisory status of Lewis and the interrogation. It has been found above that Lewis was, at least until July 1, 1962, a supervisor within the meaning of the Act. Late in May or early in June 1962, Lewis asked Myrtle Lane, an employee in the wiener packaging department, whether Lane had received a union card. Lane replied that she had. Lewis then asked if Lane had returned it; Lane answered 14 These findings of fact are based upon Lane's testimony . Cipriano admitted telling employees that if they signed designation cards for the Union they signed away their right to be represented by anyone else for 1 year , and he did not deny asking Lane if she were a steward for the Union. 15 Lee later corrected this by substituting another employee 's name for that of Williams Williams did not, in fact, serve as a union observer in the 1962 election. 10 Blue Flash Empress, Ino., 109 NLRB 591. 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that she had signed and returned the card.17 By questioning Lane about her dis- position of the union card, Lewis intruded into an area with which she as a super- visor was not concerned, without legitimate reason I conclude that such illegal interrogation violated Section 8 (a) (1) of the Act. D. The layoffs of Holt, Black, and Lane 1. Union activities of employees involved Shirley Holt was first employed by the Respondent on March 24, 1958. She was laid off for lack of work on November 14, 1958, while working in the wiener packaging department and recalled to work on April 24 or 27, 1959, in the bacon department. On June 1, 1959, she was transferred from the bacon department to the wiener packaging department. Nora Ann Black began to work for the Respond- ent on February 11, 1958. She, too, as a wiener packer, was laid off on Novem- ber 14, 1958, and was rehired in the wiener packaging department on March 23, 1959 Myrtle Lane was first hired by the Respondent in April 1958 Like Holt and Black she was in the wiener packaging department and was laid off on November 14, 1958. She was recalled to the wiener packaging department on June 6, 1960; transferred to the bacon department on July 13, 1960, and transferred back to the wiener pack- aging department on October 16, 1960. Late in May or early in June 1962, Holt, Black, and Lane signed union cards and talked about the Union to other employees. This was done openly and in the presence of Lewis, who was their immediate supervisor at the time. Moreover, as found above, Lewis about this time questioned Lane regarding her disposition of her union card, and thereby learned that Lane had signed and returned the union card. In view of the above, I find that Holt, Black, and Lane had joined the Union, and that this was known to Lewis late in May or early in June 1962. As Lewis was a supervisor at that time, her knowledge is attributable to the Respondent. 2. Events leading to the layoffs The demand for wieners is seasonal. The peak season starts about May 1 and builds up through June and July. After a slight decline for a few weeks in August, there is usually an upsurge for the first few weeks in September. In June 1962, the wiener packaging department consisted of 10 employees The Respondent installed a new automatic wiener packaging machine and began sell- ing wieners to the United States Army. From June 2 through September 1, 1962, more than a third of the Respondent's total output of wieners and franks was sold to Army. Two employees from the lard department, Annie L. Bryant and Mary A. Steeley, were brought into the wiener packaging operation part-time, and this de- partment sometimes worked overtime. The Army shipments were subject to Army inspection which Barnes described as "pretty strict." Early in September the Army rejected about 7,000 pounds of wieners. This and other factors led the Respondent to decide, within the first 2 weeks of September 1962, to abandon any further bidding for Army contracts. On September 14, 1962, Cipriano notified five employees of the wiener packaging department-including Holt, Black, and Lane-that they were being laid off and sent them home. All were given slips showing "lack of work" as the reason for the layoff. No other employees were laid off by the Respondent at this time. At the time of the hearing more than 4 months later, none of the laid-off em- ployees had been recalled to work. The number of workers employed in the wiener packaging department at the time of the hearing. five was the same as the number employed immediately following the layoffs. The total number of employees in all departments under Cipriano's supervision fell from 50 just before the layoffs to 35 at the time of the hearing. Between the time of the layoffs and the time of the hearing no new employees were hired at the Respondent's entire plant, with the possible exception of the shipping department. 3. Contentions and conclusions regarding the necessity for layoffs The complaint alleges that the Respondent laid off Holt, Black, and Lane on September 14, 1962, and thereafter failed to recall them, because they ioined or assisted the Union or engaged in other concerted activities. The answer admits that Holt, Black, and Lane were laid off on September 14, 1962, but alleges that this was due to lack of work. 17 The findings of fact regarding this conversation are based upon Lane's undenied testi- mony. Lewis did not testify. TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 503 The General Counsel does not contend that there was no economic necessity for any layoff, but points out that "the Respondent has not in any way introduced any evidence to show economic necessity." It is in my opinion extremely doubtful if the Respondent "enters the fray with the burden of explanation," 18 at least until the General Counsel has first established a prima facie case. In any event, I cannot agree that the Respondent failed to show economic necessity for the layoffs. It in- troduced without objection a written analysis of its sausage product operations for the period June 2 through September 1, 1962; it produced undenied testimony regarding the seasonal nature of the wiener business, the installation of new machinery in June 1962, the rejection by the Army of 7,000 pounds of wieners early in September 1962, and the decision to cease bidding for further Army contracts. In addition Black, one of the General Counsel's witnesses, testified that only 2 days before the layoffs there was no work for the wiener packaging department and the entire crew was sent home at 10.30 a.m. Furthermore, Barnes testified without contradiction that in "the summer and early fall, the farmers NFO decided they would withhold their hogs off the market" and that this combination of circum- stances made it "imperative" that there be a cut in the personnel of the wiener packaging department. I conclude that the record amply demonstrates the economic necessity for a layoff in the department in question. The General Counsel further argues "that even though there was economic neces- sity, the timing alone might have been discriminatory in that it was arranged to happen when it did, immediately after the election." In support of this argument, the General Counsel points out that the only other layoff in the wiener packaging department in 5 years was on November 14, 1958, "shortly before the union cam- paign," 19 and that in the slack seasons of 1959, 1960, and 1961, the Respondent was able to avoid layoffs by temporarily assigning employees of the wiener packaging department to other departments, or by giving them odd jobs such as cleanup work and painting. But in September 1962 the Respondent was faced with the end of the peak season for wieners, combined with new labor-saving machinery, the with- holding of hogs from the market by the farmers, and the abrupt end of the Army sales. As this was a unique combination, never before encountered, comparison with prior seasons is valueless . Moreover if, as the General Counsel suggests, the Respondent chose to set the time of the layoff at an "opportune moment" to defeat the unionization of its plant, it might well have scheduled the layoff to take place before, instead of 3 weeks after, the election-which the General Counsel admitted "would seem a more rational approach." I conclude that there was nothing dis- criminatory about the timing of the layoffs. The General Counsel also urges that although economic necessity might have required the layoff of 3 of the 10 employees in the wiener packaging department, the Respondent discriminatorily went further and laid off 5. This is based upon the argument that the loss of the Army business accounted for the reduction of only one-third of the total wiener production. Such a rigid and narrow applica- tion of a mathematical formula ignores factors other than the Army contracts, for example the new machinery. The General Counsel also points to Cipriano's testi- mony that he was short-handed late in September 1962 when he discharged Claudine Warren, as related below. But examination of that incident reveals that it oc- curred in another department-the bacon department-and that the shortage of workers was due to the temporary incapacity of two employees of that department. I find no merit in the General Counsel' s contention that the cut was deeper than necessary. The number of employees to be affected was a management judgment. As the United States Court of Appeals for the Fifth Circuit has said: "Management is for management. Neither Board nor Court can second-guess it or give it gentle guidance by over-the-shoulder supervision." 20 Moreover, here the Respondent's judgment was fully vindicated by later events, namely, the fact that there have been no new hires since the layoffs 2i 18 N L.R B. v T. A. McGahey, Sr., et al, d/b/a Columbus Marble Works, 233 F. 2d 406, 413 (C.A. 5). 10 The Packinghouse Workers filed its petition in Case No. 10-RC-4275 on December 22, 1958 The record does not show when its campaign commenced 'I N L R 8 v. T. A McGahey, Sr, et al, d/b/a Columbus Marble Works, supra, at 413 The United States Court of Appeals for the Seventh Circuit recently expressed somewhat the same thought as follows: "The Board may not substitute its judgment for that of the employer as to the selection and discharge of employees " N L R B. v Audio Industries, Inc, 313 F 2d 858 (C.A. 7). 21 Compare N.L R B v A. R Gieringer Tool Corp, 314 F 2d 359 (C.A 7) ; and N L R B. V F 9 Kingsford, d/b/a Kingsford Motor Car Co, 313 F. 2d 826 (C.A 6) 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel also urges that, at the time of the layoff, the Respondent never intended to recall Holt, Black, or Lane, because they were "known union adherents." In short, he contends that the Respondent used economic necessity for a temporary layoff as a blind to accomplish something entirely different-a per- manent severance , or discharge, of Holt, Black, and Lane . I cannot agree; the record shows no such intent . The answer alleges, and the Respondent's witnesses testified, that Holt, Black, and Lane are currently "subject to recall when produc- tion ... improves." Holt testified that when Black asked Cipriano if they would be called back he replied : "I don't know"; that she (Holt) telephoned Barnes the night of her layoff and asked if she could expect to be recalled when production picked up and he answered, "I guess so." Black testified that when she asked Cipriano : "Are we going to be called back?" he responded : "I don't know whether you are or not"; and that when she telephoned Barnes that night and asked him the same question , he did not answer directly but instead tried to explain the Respond- ent's decision to abandon the Army contract. Assuming that these conversations occurred exactly as testified to by Holt and Black, in my opinion they fall short of proving that , at the time of the layoffs , the Respondent intended never to recall Holt, Black, or Lane because of their union activities . In any event, I have grave doubts whether the General Counsel may properly raise this issue because the com- plaint alleges that the Respondent laid off Holt, Black, and Lane and the question whether they had been discharged (an altogether different issue ) was not, in my opinion, "fully litigated" at the hearing. 4. Contentions and conclusions regarding the selection of individuals for layoff The General Counsel contends that Holt, Black, and Lane, rather than other individuals, were discriminatorily chosen for layoff in reprisal for their known sup- port of the Union . I have some difficulty understanding why the Respondent would feel particularly vindictive against these 3 employees out of a total of 133 who voted for the Union in the election , especially as they were not observers for the Union or otherwise outstanding among the Union 's adherents 22 But in rejecting the General Counsel's position I rely not only upon this factor but also upon the convincing nature of the Respondent 's defense , which is that the individuals to be laid off were selected according to seniority. For many years, whenever a layoff for lack of work became necessary , the Re- spondent selected the individuals to be laid off on the basis of seniority. This policy was followed in the 1958 layoff in the wiener packaging department. As de- scribed above, when Holt in 1962 asked Barnes how a layoff (if one were decided upon) would be made, he replied : "As usual , according to seniority." The Respondent 's witnesses seemed to be somewhat confused as to what kind of seniority was applicable to layoffs: whether operational , departmental , or plantwide. A careful study of their testimony reveals, however, that the apparent confusion lay in the realm of semantics , and that they were all in substantial agreement as to the use of plantwide seniority, applied to the employees of the affected department. Thus the controlling date was the date when the employee first commenced to work at the plant, except where the employee had been laid off for more than 30 days, in which case it was the date of recall . This was the same seniority applied in determining fringe benefits, such as vacations and bonus payments . For this pur- pose the paymaster, early in the year, prepared a seniority list for each department. The one drawn up for the wiener packaging department early in 1962 read, in part- Wiener Department : Date employed 1. Charlene Lewis-------------------------------------- 10-29-51 2. Beauford Durham------------------------------------ 9-21-53 3. Louise Neblett--------------------------------------- 2-16-55 4. Ann Schuff------------------------------------------ 4-6-55 5. Jean Rogers----------------------------------------- 2-16-59 6. Ann Black------------------------------------------ 3-23-59 7. Shirley Holt----------------------------------------- 4-27-59 8. Myrtle Lane----------------------------------------- 6-6-60 9. Betty Mohon---------------------------------------- 6-17-60 ^ Compare N L R B. v T A McGahey, 8r, et at , d/b/a Columbus Marble Works, supra, at 412; and N.L.R.B. v. Audio Industries, Inc, supra. The General Counsel appears to rely upon testimony indicating that immediately follow- ing the election Barnes considered the wiener packaging department "100 percent union" : but if so this would not account for the choice of three of them as any more prounion than the others. TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 505 This list came into Cipriano's possession when he took over supervision of the wiener packaging department in 1962, presumably for him to use in ascertaining to what vacations, if any, the employees were entitled. When it had been determined to lay off five employees in the wiener packaging department, Barnes called in Cipriano and they went over the seniority list described above. Aileen Harris had been hired in the wiener packaging department on May 18, 1962, after the list's preparation, and in September 1962 was the junior in the department It was determined by reference to this fact and the seniority list that the five junior employees in the department were Harris, Motion, Lane, Holt, and Black. Accordingly, these individuals were laid off. The General Counsel introduced evidence indicating that four of the five employees laid off (Black, Holt, Lane, and Harris) had joined the Union while only one of the five employees retained had done so. He further contends that the Respondent knew this. From this he argues that "a layoff of a disproportionate number of union adherents occuring when it did and under the circumstances it did . should be held to be discriminatory." I do not agree. Assuming, without deciding, that the Respondent knowlingly laid off a disproportionately large number of union sup- porters, this would not be discriminatory where, as here, it followed its long- established seniority policy; surely the use of such a time-tested and usual method does not give rise to suspicion merely because the results, by chance, hit the pro- union employees harder than those who did not desire the Union to represent them. The General Counsel also argues that Black was senior to Rogers and therefore Rogers should have been laid off in Black's stead. In the absence of some indica- tion of Rogers' known antiunion sympathies, this gives rise to no valid discriminatory inference. Moreover, the record clearly demonstrates, contrary to the General Counsel, that Rogers was senior to Black, as Rogers was recalled on February 16, 1959, whereas Black was recalled on March 23 of that year, as mentioned above. The General Counsel's major attack on the validity of the selection of employees consists of a vigorous contention that, in any event, Bryant and Steeley were the two juniors in the department and accordingly should have been laid off rather than Black and Holt, their seniors. This is based upon the fact that the Respondent prepared for the Board's use in the 1962 election a list of eligible employees on the payroll for the period ending August 11, 1962; that that part of the list headed "frank pack- aging" contained 12 names; and that Bryant and Steeley were included . But the record shows that Bryant and Steeley were hired for the lard department, and worked there at least 6 hours per day, that they were erroneously carried instead on the wiener packaging department's payroll, that for a time they worked 2 hours each day in the wiener packaging department but that this had ceased, before the layoff, and that by September 14, 1962, they were not working in the wiener packaging department at all In fact Holt, Black, and Lane all admitted that at the time of the layoff there were only 10 employees in the wiener packaging department, which would presumably exclude Bryant and Steeley. I conclude that Black and Holt were laid off instead of Bryant and Steeley not for discriminatory reasons but simply because, at the time of the layoffs, Bryant and Steeley were not considered part of the wiener packaging department , the only department involved. The General Counsel also urges that the Respondent discriminatorily relied upon the list prepared in January 1962 rather than upon the one submitted to the Board for use in the election. He contends that this was done "to deliberately switch names around according to seniority so they could substantiate a layoff of the five bottom names" (Harris, Mohon, Lane, Holt, and Black ) instead of the five bottom names on the election list (Steeley, Bryant, Harris, Mohon, and Lane). The short answer to this is that the January 1962 list was a seniority list while the August 1962 list did not purport to be that. Furthermore, the January 1962 list is in no way suspect, for it was compiled long before the Union began organizing. Finally, the Gentral Counsel maintains that the Respondent discriminatorily failed to recall Holt, Black, and Lane when the workload warranted their recall. In this connection the record shows that when Louise Neblett (an employee of the wiener packaging department who was not laid off ) quit, her place there was filled by transferring Margaret Herndon from the lunchmeat department . Herndon was not replaced on the lunchmeat line, because work there had fallen off. It is true, as the General Counsel points out, that the Respondent might have recalled Black to the wiener packaging department by laying off Herndon from the lunchmeat line. However, the Respondent had ample reason to make the transfer in that Herndon had prior experience in packaging wieners and had more seniority than any laid-off employee. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I conclude that the General Counsel has failed to prove that the layoffs of Holt, Black, and Lane, or the Respondent 's failure to recall any of them, were discrimina- torily motivated. F. The discharge of Hershel Williams 1. Facts Hershel Williams began working for the Respondent in March 1952 while some of the Respondent's employees were out on strike. For the first 18 months he worked in the hide house. Then he was assigned to cleaning heads in the slaughter department, a one-man job . He was also tried, for a time, at "knocking cattle," but proved inadequate at this task because of his short stature. He was then retained on washing heads, under Foreman C. J. Mayo. During an election in 1955 Williams acted as observer for the union there involved. In May 1962 he joined the Union and became one of the four employees who helped Lee to organize As related above, on August 23, 1962, Lee mistakenly advised Barnes that Williams would be one of the Union's observers in the election the next day; Mayo asked Williams if he were going to be an observer and Williams denied it; and Williams did not, in fact, serve as a union observer in the 1962 election. In the fall of 1959, Dr. William R. Barrowman, a veterinarian employed by the United States Department of Agriculture, was assigned by that department to be chief inspector at the Respondent's plant and took up his duties there. He soon became dissatisfied with the manner in which heads were being cleaned by Williams. He complained to Barnes (who referred the complaints to Mayo ) and sometimes directly to Williams. Williams complained of insufficient water pressure. The Respondent installed a pump to increase the water pressure; but Barrowman (and the inspectors reporting to him ) continued to regard the heads as insufficiently cleaned. Further complaints brought forth from Williams the suggestion that the lighting at his place of work was inadequate. A more powerful light was then in- stalled, but the unsatisfactory nature of Williams' work-so far as the inspectors were concerned-continued. Finally, a stool was supplied to Williams to add height, in an effort to eliminate any possible reason for Williams' inefficiency. But this, too. failed to solve the problem. Frequent complaints about the head washing resulted in temporary improvements, but after several days Williams' work would again become unsatisfactory. Whenever he was temporarily absent because of illness or vacation, and some other employee took his place, the heads were deemed by the inspectors to be properly washed ; but upon his resumption of these duties, the inspectors' complaints began again . Barrowman testified that, in his professional opinion, the problem of dirty heads was due entirely to Williams' inadequacy as a head washer, and that there was no question in his (Barrowman 's) mind about this. On September 17, 1962, calves were being killed in the slaughter department. The Government inspectors stopped the production line because the calves' heads were not being properly washed. Mayo told Williams- "Don't stop it [the produc- tion fine] no more." Williams replied that he had not stopped the production line 23 The slaughter department then switched to killing cattle . Again , the line was stopped because the inspectors were dissatisfied with the manner in which the cattle heads were being washed. At this point, Mayo directed Williams to nunch out, and Wil- liams was given a separation slip showing that be had been discharged, with the notation • "Unable to do work required " Williams applied to the Tennessee Department of Employment Security for un- employment benefits. That body concluded- "Evidence indicates claimant was discharged for failing to do work as he should after warnings" 2. Contentions and conclusions The complaint alleges that the Respondent discharged Williams on September 17. 1962, and thereafter failed to reinstate him, because he joined or assisted the Union or engaged in concerted activities. The answer admits that the Resnondent dis- charged Williams on the date alleged, and thereafter failed to reinstate him. but denies that this was discriminatorily motivated. On the contrary, the answer alleges that Williams was discharged "for good cause." It is, of course, true that Williams was an active supporter of the Union and that the Respondent was given his name as one of the Union's prospective observers. But when Mayo confronted Williams with this information, Williams responded that it was not so. And his disavowal was confirmed by the fact that he did not 23 The findings of fact regarding this conversation are based upon Williams ' nndenmed testimony. TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 507 subsequently act as an observer . Hence it may well be that, at least after the election was over, Mayo and other supervisors were ultimately convinced that their prior suspicion ( if any ) that Williams was an active prounion leader had been based upon mistaken information 24 But this need not be decided . Even assum- ing that the Respondent suspected Williams' proumon activities , or disbelieved Wil- liams' protestation that he was not to be a union observer at the election , it does not follow that his discharge was discriminatory . For it is clear that the frequently repeated complaints of Government inspectors regarding the quality of Williams' work put the Respondent in a position where some action became necessary. As Williams had been tried at knocking cattle but had not performed this job adequate- ly, the Respondent had good cause to discharge him when, on September 17, his shortcomings as a head washer caused the suspension of the production line twice in one day . As the United States Court of Appeals for the District of Columbia has so aptly put it : "With such a series of complaints . . . almost any additional incident might be the `clincher: " 25 The General Counsel urges, however , that despite Williams' known faults he was retained as an employee for many years until shortly after the 1962 election. This argument proves too much . For since 1955, when Williams acted as union observer in an election , the Respondent had reason to suspect that he favored union- ization of its employees. Had it been anxious to be rid of him because of this, it had ample opportunity to discharge him prior to the 1962 election , but refrained from doing so at that time.26 Moreover, such an approach might unduly penalize the Respondent for Mayo's past leniency. For the foregoing reasons, I conclude that the General Counsel has failed to establish that Williams' discharge was discriminatory. F. The discharge of William L. Brown 1. Facts William L. Brown commenced to work for the Respondent in May 1952 in the shipping department. After 3 or 4 months he was put in charge of offal 27 in the packing department. He stayed at this work for the remainder of his employment, except for a short time in the cutting room in 1959 and a brief period on the kill floor. Brown's job consisted of grading, packing, and preparing offal for the freezer. He was the only one doing this work. Occasionally when he fell behind he was permitted to select another employee to assist him for part of a week. In May 1962 Brown was contacted by Lee, signed a union card, and passed out cards to other employees. He was one of four employees who helped Lee in his organizing efforts. On September 26, 1962, it came to Barnes' attention that a customer had rejected a shipment of veal sweetbreads and had written a letter to the Respondent explain- ing that they had been improperly sorted and packed. Barnes summoned Harold Sleigh, foreman of the cutting department and Brown's immediate superior. Barnes showed Sleigh the customer's letter and told Sleigh "we couldn't put up with it." Sleigh took the letter to Brown, who explained that the sweetbreads had been packed by one of his part-time assistants, Robert Elrod, who had been properly instructed by Brown but had apparently failed to follow these instructions. Sleigh confronted Elrod with the letter; Elrod said that he had followed Brown's instructions faithfully and that any mistake was therefore due to improper instructions. Sleigh then told Brown, "We had ... gone about as far as we could go, that we had to let him go." Sleigh furnished Brown with a separation slip which stated that Brown had been discharged and gave as the reason: "Work unsatisfactory " Brown complained to Barnes about the wording of the separation notice, and Sleigh was called in. But Brown left the plant without having persuaded either Barnes or Sleigh to change it. He has not returned since. 2. Contentions and conclusions The complaint alleges that the Respondent discharged Brown on September 26, 1962, and thereafter failed to reinstate him, because he joined or assisted the Union or engaged in concerted activities It is apparently the General Counsel's position that Elrod alone was responsible for the sweetbread error, and that the Respondent knew this but nevertheless utilized the incident as a pretext to cloak the discharge '4 Compare American Freightways Co , Inc . 124 NLRB 146, 153. Honolulu Star-Bulletin , Ltd. v. N L R B , 274 F. 2d 567, 571 (C A D C ). Compare American Freightways Co , Inc, supra, at 154 ' "Offal" is a term used to describe byproducts such as livers, hearts, tongues, etc 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of an active union adherent. The answer admits Brown's discharge on the date alleged, but denies that this discharge was discriminatory and alleges that it was "for good cause." More particularly, the Respondent appears to contend that the sweetbread incident was Brown's responsibility and the culmination of several such errors in the past. Undoubtedly Brown's interest in the Union was more than average; he was one of Lee's assistants in organizing. But both Barnes and Sleigh testified that, at the time of Brown's discharge, they did not know of his union activities . The General Counsel seeks to meet this by arguing that the Respondent's knowledge of Brown's prounion sympathies can be assumed from the small size of the plant. Aside from the question of whether such a presumption would be strong enough to overcome the positive testimony of Barnes and Sleigh, 275 employees voted in the 1962 elec- tion. I am therefore of the opinion that the plant here is too large to justify applica- tion of the so-called "small plant" presumption 28 It has been mentioned above that about 2 weeks before the election Barnes came to the offal room and engaged Brown in a conversation concerning the Union. The General Counsel maintains that, through this conversation, Barnes learned of Brown's interest in the Union. I cannot agree. Under either Brown's or Barnes' version of this incident, nothing was said by Brown which would reasonably convey to Barnes that he (Brown) sympathized with the Union. Nor was anything said by Barnes showing that he had learned of Brown's prounion efforts. Moreover, it does not appear that Brown was singled out; the record indicates that Barnes sim- ilarly talked to other employees. I conclude that the General Counsel has failed to establish that Brown's union ac- tivities were known to the Respondent at the time of his discharge. It follows that no prima facie case has been presented that Brown's discharge was discriminatory or was in any way related to the assistance he gave the Union. In view of this con- clusion, I deem it unnecessary to consider the Respondent's defense that Brown was discharged for cause. G. The discharge of Claudine Warren 1. Facts Claudine Warren was first employed by the Respondent's predecessor in 1948. For a number of years she worked in the bacon department. In about 1952 she was transferred to the sausage department, but about 4 years later she was transferred back to the bacon department. She stayed in that department for the remainder of her employment, but apparently spent part time in the lunch meat department and the ham department. Her foreman was Cipriano. Warren's husband, Carl, has been employed by the Respondent and its predecessor for approximately 37 years, and is still working there. As mentioned above, in 1959 the Packinghouse Workers filed charges against the Respondent. At the hearing on these charges Claudine Warren testified as a witness for the General Counsel. She was one of the people contacted by Lee when he came to Clarksville in May 1962 to organize the Respondent's employees for the Union. She signed a union card, supplied Lee with information, and talked to other employees about the Union. On August 22, 1962, Ophelia Hutchison, an employee, had a conversation with Stuart. Hutchison testified: Q. Did any other supervisor talk to you about the Union9 A. On Wednesday, Ben Stuart sent the girls to the bacon line. He asked me if he could talk to me a minute. He had just talked to Mr. Barnes and Mr Barnes thought that the ham room was 75 percent union , and asked me if I would talk to the rest of the girls to see if they would go company. I told him I didn't think so. He also said that Claudine Warren would get fired regardless of whether the Union came in or didn't. Q. Did he say why Claudine Warren would be fired? A. That's all he said. This testimony was not contradicted and therefore I find that the conversation took place substantially as related by Hutchison. Warren's mother lives in Dover, Tennessee, about 35 miles from Clarksville. On Friday, September 21, 1962, while at work, Warren received word that her mother 28 In A.P W. Products Co., Inc., 137 NLRB 25, the Board applied this presumption to a plant of approximately 70 employees. So far as I have been able to ascertain , this is the largest plant to which the presumption has, so far, been held to be appropriate. TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 509 was seriously ill. She asked Cipriano for permission to leave work at once, which was granted. Cipriano told her: "Let me hear from you later." Warren went to Dover and stayed there with her ailing mother. On Sunday, September 23, 1962, Warren's son, Carl, Junior, telephoned Cipriano and said that he was calling at his mother's request to report that her mother was still sick and that she would not be in to work the next day. Cipriano replied that Carl, Junior, should tell his mother to come back as soon as she could. On Wednesday, September 26, 1962, Cipriano asked Carl Warren, Sr., to tell his wife to call him (Cipriano). Carl Warren, Sr., replied that his wife was still in Dover, and he would notify her to call Cipriano. On the following day Cipriano again asked Carl Warren, Sr., to have his wife call, this time Carl Warren, Sr., offered to give Cipriano the telephone number where she could be reached in Dover. On Saturday, September 29, 1962, Claudine Warren returned to Clarksville and telephoned Cipriano. Cipriano told her that she was discharged because she had not properly notified him how long she would be absent from work and had not personally contacted him 29 She has not since returned to the plant. The separation slip given her shows that she was discharged, and gives as the reason: "Not proprly informing foreman of her intent to be absent from work after due warning." 2. Contentions and conclusions The complaint alleges that the Respondent discharged Warren on September 29, 1962, and thereafter failed to reinstate her, because she joined or assisted the Union or engaged in other concerted activities 30 The answer admits that the Respondent discharged Warren on the date alleged, and failed to reinstate her thereafter, but denies any discriminatory motive. On the contrary, the answer alleges that Warren was discharged "for good cause." The "good cause" relied upon by the Respondent is apparently alleged longstanding inefficiency and absenteeism, culminating in fail- ure properly to report an absence, after warning. The General Counsel eviden- tially regards all of this as a mere pretext. Unquestionably, Warren rendered assistance to Lee and helped the Union to or- ganize the employees. But does the record show that the Respondent learned of or suspected this? Both Barnes and Cipriano disclaimed any suspicion or knowledge of Warren's 1962 union activities or sympathies. The General Counsel urged, however, at oral argument: It seems a reasonable assumption ... that since they knew this [her appear- ance as a witness for the General Counsel at the Board hearing] in 1958, that they would also have known that she was still interested in the union in the new campaign. This brings us to a consideration of her conduct during the 1959 Board hearing. Trial Examiner Thomas S. Wilson, who heard her testimony then, found that "Warren ... quite openly professed that she was `for the Company' both to Barnes individually and as a witness at the hearing." The Board adopted this 31 In view of this formal finding, a copy of which was served upon the Respondent, I cannot agree with the General Counsel that Warren's performance on the witness stand in 1959 gave rise to a reasonable assumption on the Respondent's part that more than 3 years later she would actively support a union. Let us turn, then, to Stuart's remark to Hutchison on the eve of the election (and more than a month before Warren's discharge) "that Claudine Warren would get fired regardless of whether the Union came in or didn't." If unexplained- and Stuart did not take the witness stand to explain it-this statement occurring in the context of a conversation concerning the Union may perhaps show prima facie (1) that the Respondent had somehow learned of Warren's prounion activities and (2) for that reason had decided to discharge her regardless of the election's outcome. In order properly to evaluate this piece of evidence, it is necessary to consider it in connection with the entire picture of Warren's relations with Barnes and Cipriano. 29 Cipriano testified that in the past he had given Warren "repeated warnings" of this requirement , including a written reprimand in 1959 . Warren denied that she had ever been warned or reprimanded. I deem it unnecessary to resolve this conflict "From the lack of allegations that the Respondent violated Section 8(a) (4) and from statements made by the General Counsel at oral argument, it appears that this refers only to her 1962 activities on behalf of the Union. Nevertheless, to avoid any possibility of misconstruing the General Counsel's position, which is not entirely clear, it will be treated as encompassing , in addition , her appearance as a witness during the 1959 Board hearing on the Packinghouse Workers' charges. 31 Tennessee Packers, Inc, 124 NLRB 1117. 1122. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For a number of years before Warren 's discharge , Cipriano had voiced to her his dissatisfaction with her work performance . Thus Warren testified in the instant hearing that , from the time she testified in the 1959 Board hearing, Cipriano was "constantly complaining about something " and that this continued until the termina- tion of her employment . Cipriano testified that Warren had always been "an un- satisfactory worker. . She was a habitual absentee. She was constantly claim- ing to be sick . She couldn't fit into a job. There was just a few jobs that she could do.. . she was . a thorn in the side." Cipriano discussed these problems "several times" with Warren's husband. Between 1957 and her discharge in 1962 Cipriano complained to Barnes "at least 10 times" about Claudine Warren's in- efficiency and explained that he wanted to discharge her. Each time Barnes pointed out that Carl Warren, Sr., who had been with the firm a long time, might react unfavorably if his wife were discharged; each time Cipriano was dissuaded from discharging Claudine Warren. Finally, after the events of September 21 through 29, 1962, described above, Cipriano "decided that I definitely was going to fire [her] and I told Mr. Barnes that that is the way I wanted it . .. because I felt so very, very strongly about it." Considered in the light of this longstanding relationship imbued with friction, Stuart's remark to Hutchison on August 22, 1962, might perhaps take on a different hue. So viewed, it may be that the thought which Stuart was trying to convey was that Cipriano (rightly or wrongly) was "fed up" with what he regarded as Warren's inefficiency and absenteeism and would discharge her for her next misstep, and that even the Union's advent, if it happened, would not shake him from this determina- tion . At best, I deem Stuart's remark vague , ambiguous , and insufficient to support a finding that the Respondent knew of or suspected Warren 's assistance to the Union. As there is no other probative evidence of this essential part of the General Counsel's case, I conclude that he has failed to prove that this discharge was discriminatory. It follows that I need not consider the Respondent's defense that Claudine Warren was discharged for cause. H. The separation of Ophelia Hutchison 1. Facts Ophelia Hutchison first became an employee of the Respondent in February 1958. She worked for 4 or 5 months, quit, and returned to the Respondent's employ in May 1959. She was in the bacon department but was assigned to the ham room part time . Barnes looked upon Hutchison as "a very nice person . and . an efficient employee." Cipriano testified: "I have always considered Mrs. Hutchison an ideal worker . . We thought a lot of her." In addition to her regular duties, she was a member of the safety committee, and took "plant orders" from the other employees every Friday morning.32 In "about the middle" of the Union's organizing campaign, Hutchison received a union card in the mail, signed it, and sent it back. Later Lee visited her and asked her to be an observer for the Union, which she agreed to do. On August 20, 1962, as described above, Barnes called Hutchison to his office and attempted to persuade her to vote "for the company" (e g against the Union) in the coming election; she responded that she did not know how she felt at that time On the next day, Cipriano talked to Hutchison for approximately an hour about the Union; he pointed out "the good things of the company." On the day following that, August 22, 1962, Stuart asked Hutchison if she "would talk to the rest of the girls to see if they would go company"; she refused. On August 23, 1962, as mentioned above, Lee notified the Respondent that Hutchison would be one of the Union's three observers at the election Accordingly, Hutchison acted as one of the Union's observers at the election of August 24 and 25, 1962. Barnes testi- fied- "I wouldn't have thought it . .. it came as a real surprise ." Cipriano testi- fied- "I was quite shocked . it pretty well shocked me." On the following Monday Hutchison and other employees were talking while wrapping and weighing slab bacon. Cipriano came in and told Hutchison that she could not do her work and talk at the same time , and that he had put up with it in the past, but he would not any more. On the following Friday, Hutchison asked Stuart if he wanted her to take the plant orders. He replied that be had already taken them all. From that time until Hutchison's separation , Stuart took the plant "'As a service to its employees , the Respondent sells its products to them at wholesale prices. TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 511 orders.33 Later Hutchison was assigned to boxing bacon and was instructed to run each box under the automatic dater. On two successive days Cipriano discovered that Hutchison had failed to date boxes. The second time, he took out "a little black book" and said he was keeping a record of it, that he was warning Hutchison twice, and that he would not warn her the third time. On October 1, 1962, Stuart approached Hutchison and told her "to go ahead and quit"; that Cipriano had discovered two errors made by her and that if he found the third one she "was as good as gone." Stuart added that Cipriano had instructed him "not to even speak to" Hutchison and to "make it as hard as possible " on her so she would quit. On the following day Hutchison was again boxing bacon. Cipriano once more discovered that she had failed to date some boxes, and called her off the line, putting a substitute in her place . Cipriano pointed out that he already had had to tell Hutchison three times about dating boxes , and asked how many more times he was going to have to repeat this. Hutchison answered: "Well, I'll just pull my card and quit." Cipriano responded: "If that's the way you feel, pull it." Hutchison thereupon left the Respondent's employ and has not returned since. The separation slip given Hutchison indicates that she voluntarily quit and gives as the reason. "Became dissatisfied with her job." Hutchison applied to the Tennessee Department of Employment Security for unemployment benefits. That body ruled: "Evidence indicates claimant quit because she was dissatisfied with her work." 2. Contentions and conclusions The complaint alleges that the Respondent discharged Hutchison on October 2, 1962, and thereafter failed to reinstate her, because she joined or assisted the Union or engaged in concerted activities. The answer denies that the Respondent dis- charged Hutchison and alleges, on the contrary, that she "voluntarily quit her job." Undoubtedly Hutchison quit her employment, but we are met at the outset with the question whether this was a voluntary act on her part, as the Respondent con- tends, or an act to which she was impelled by the Respondent's conduct. The Gen- eral Counsel contends that the Respondent deliberately embarked upon a campaign of harassing Hutchison, which made her working conditions intolerable, or at least clearly indicated that they would soon be made so. I agree. Stuart's urging Hutchison to quit was calculated to make her dissatisfied with conditions, for few people with any reasonable degree of sensitivity can long remain happy in a situa- tion where it has been made clear to them that they are not welcomed. But Stuart's communication did not end with the naked suggestion that Hutchison quit; he went on to describe measures management was prepared to adopt to force her hand 34 Cipriano's attitude toward Hutchison during her last month of employment is also significant . Thus, he singled out Hutchison for reprimand for talking at work, although such conduct had been tolerated in the past. His explanation-that he also reprimanded others but spoke first to Hutchison "because she had a key job"- is not convincing, especially as he did not explicate the nature of her "key job." Moreover, when he caught Hutchison failing to date bacon boxes, he pulled out a "little black book"-which he had never done before. Considered in the context of Stuart's statement to Hutchison, I find that the conduct of Cipriano on these occasions was intended to scare Hutchison and to make her uncomfortable. In view of the foregoing, I reject the Respondent's defense that Hutchison quit voluntarily, and conclude, instead, that the Respondent deliberately made her working condi- tions intolerable and drove her into an involuntary quit. Accordingly, in agreement with the General Counsel, I find that she was constructively discharged 35 We now reach the question : why would the Respondent deliberately treat in this fashion an employee deemed by her superior to be "an ideal worker?" To under- stand this, we must first examine the Respondent's reaction to the attempted union- ization of its plant. In this connection, it should be recalled that in 1959 the Board 33 The finding that Hutchison took no plant orders after the Board election is based upon Hutchison 's credited testimony . Cipriano's denial is considered inaccurate and is not credited "What Stuart, as a supervisor, said is much more important here than whether his statement did, or did not, reflect the truth I therefore consider it unnecessary to make any finding regarding the truth or falsity of his statement. In reaching this conclusion , I have considered the ruling of the Tennessee Department of Employment Security. N.L R B. v A. R. Ciersnger Tool Corp., supra However, that ruling is not controlling and I deem it unpersuasive because there is no showing what evi- dence that body had before it 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found the Respondent guilty of unfair labor practices.36 And it has been found above that in 1962 the Respondent twice illegally interrogated Lane regarding her union activities. Moreover, Barnes and Cipriano made efforts to persuade em- ployees to vote against the Union in the election held in August 1962. Finally, Cipriano demonstrated on the witness stand in the instant hearing that he enter- tained a strong union animus. I conclude that, at all material times, the Respondent has been vigorously opposed to the unionization of its employees.37 Let us turn now to consideration of Hutchison's union activities and the Respond- ent's knowledge thereof, and reaction thereto. That the Respondent looked upon Hutchison as a key employee in the coming election is amply demonstrated by the fact that, on 3 successive days, as many representatives of management approached her on the subject, and one of them spent an hour trying to win her support "for the company." In addition, she was asked to persuade other employees to vote against the Union and, so far as the record shows, was the only employee to whom the Respondent made such a request. When Hutchison not only refused to do so but also publicly espoused the Union's cause by acting as an observer, she thereby made herself the natural target of the Respondent's hostility against the Union. Although Cipriano in his testimony sought to create the impression that "Mrs. Hutchison's attitude [toward her work] changed immediately" after the Union lost the 1962 election, I am convinced that instead it was Cipriano's attitude toward Hutchison which underwent an abrupt alteration at that time, as shown by his "shock" and the events leading up to her separation, detailed above. I conclude that Hutchison was constructively discharged on October 2, 1962, in reprisal for (1) refusing Stuart's request that she persuade other employees to vote against the Union, and (2) serving as observer for the Union at the election. Thereby the Re- spondent violated Section 8(a)(1) and (3) of the Act. THE REMEDY It will be recommended that the Respondent cease and desist from the unfair labor practices which it has committed. As the violations of the Act found to have taken place are persuasively related to other unfair labor practices proscribed by the Act, and as the Board has found the Respondent guilty of other unfair labor practices,36 the danger of their commission in the future is to be anticipated from the Respond- ent's past conduct. It will therefore be recommended that the Respondent cease and desist, not only from the unfair labor practices found, but also from in any manner infringing upon the rights of its employees guaranteed in Section 7 of the Act. Affirmatively, it will be recommended that the Respondent offer Ophelia Hutchison immediate and full reinstatement to her former or a substantially equivalent position, without prejudice to any seniority or other rights and privileges previously en- joyed. In addition, it will be recommended that the Respondent make her whole for any loss of pay she may have suffered by reason of the discrimination against her, by paying to her a sum of money equal to that which she normally would have earned from the date of her discharge to the date of her reinstatement, less her net earnings during the said period. The backpay provided for herein shall be computed on a quarterly basis, in the manner established by the Board, and shall carry interest at the rate of 6 percent per annum. It is further recommended that the Respondent make available to the Board, upon request, all records needed to facilitate the calculation of the amount of backpay due hereunder, and post ap- propriate notices. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Tennessee Packers, Inc., Frosty Morn Division , is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act. ae Tennessee Packers, Inc., 124 NLRB 1117. 87 This is not related critically, but merely as a statement of fact The Respondent had, of course, a legal right to show antagonism toward the Union's attempt to organize the plant, so long as it took no action proscribed by the Act. N.L R.B. v. T. A McGahey, Sr, et at, d/b/a Columbus Marble Works, supra, at 409. But, as the United States Court of Appeals for the Fifth Circuit has said : "Antiunion bias and demonstrated unlawful hostility are proper and highly significant factors for Board evaluation in determining motive " N L.R.B. v. Dan River Mills, Incorporated, Alabama Division, 274 F. 2d 381, 384 (C.A. 5). 38 Tennessee Packers, Inc., 124 NLRB 1117. TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 513 2. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, Local 405, is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the tenure of employment of Ophelia Hutchison, thereby discouraging membership in the labor organization named above, the Re- spondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (3) of the Act. 4. By the foregoing conduct, and by interrogating its employees with regard to their union membership, sympathy, or activities, thereby interfering with, restrain- ing, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The unfair labor practices described above tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. The General Counsel has failed to prove that the Respondent discriminated in regard to the tenure of employment of Hershel Williams, William L. Brown, or Claudine Warren within the meaning of Section 8(a) (3) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I hereby recommend that the Respondent, Tennessee Packers, Inc., Frosty Mom Division, Clarksville, Tennessee, its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in Amalgamated Meat Cutters and Butcher Work- men of North America, AFL-CIO, Local 405, or any other labor organization, by discriminating against its employees in regard to their hire or tenure of employment or any term or condition of employment. (b) Interrogating its employees with regard to their union membership, sympathy, or activities, in a manner violative of Section 8 (a) (1) of the Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: (a) Offer to Ophelia Hutchison immediate and full reinstatement to her former or a substantially equivalent position, without prejudice to any seniority or other rights and privileges previously enjoyed, and make her whole for any loss of pay suffered by reason of the discrimination against her. (b) Preserve and, upon request , make available to the 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 compute the amount of backpay due hereunder. (c) Post at its plant in Clarksville, Tennessee, copies of the attached notice marked "Appendix." 39 Copies of said notice, to be furnished by the Regional Director for the Twenty-sixth Region, shall, after being signed by a representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that these notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the receipt of this Intermediate Report, what steps the Respondent has taken to comply herewith.4o It is further recommended that, unless the Respondent shall, within 20 days after the receipt of this Intermediate Report, notify the said Regional Director, in writing, 89 If this Recommended Order is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner." If the Board's Order is enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "A Decision and Order." 40 If this Recommended Order is adopted by the Board, the words "within 10 days from the date of this Order" shall be substituted for the words "within 20 days from the receipt of this Intermediate Report " 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it will comply with the foregoing Recommended Order, the Board issue an Order requiring the Respondent to take such action. It is further recommended that the complaint be dismissed, insofar as it alleges any unfair labor practices not found herein. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, you are notified that: WE WILL NOT discourage membership in Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local 405, or any other union, by discriminating against our employees in regard to their hire or tenure of employment or any of their working conditions. WE WILL NOT question our employees about their union membership, sym- pathy, or activities , in a manner violative of Section 8(a)( I) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right of self-organization , to form, join, or assist unions, to bargain collectively through representatives of their own choos- ing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from such activities. WE WILL offer Ophelia Hutchison immediate and full reinstatement to her former or a substantially equivalent position , without prejudice to any seniority or other rights and privileges previously enjoyed, and make her whole for any loss of pay suffered by her as a result of the discrimination against her. Our employees are free to become, remain , or refrain from becoming members of the above-named or any other union. TENNESSEE PACKERS, INC., FROSTY MORN DIVISION, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of her right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act of 1948 , as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Anyone having any question concerning this notice or compliance with its pro- visions may communicate directly with the Board 's Regional Office, 22 North Front Street, Memphis, Tennessee , 38103, Telephone No. Ja. 7-5451. Fort Smith Chair Company and Local 270, United Furniture Workers of America, AFL-CIO.' Case No. 26-CA-1094. June 28, 1963 DECISION AND ORDER On May 21, 1962 , Trial Examiner Sidney S. Asher, Jr., issued his Intermediate Report herein , finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommend- ing that it cease and desist therefrom and take certain affirmative ac- tion as set forth in the copy of the attached Intermediate Report. Thereafter, Respondent and the General Counsel filed exceptions to 'United Furniture Workers of America, AFL-CIO , intervened and participated at the hearing herein ; it also filed a brief. 143 NLRB No. 28.