Tennessee Packers, Inc.

TENNESSEE PACKERS, INC., FROSTY MORN DIVISION APPENDIX 165 NOTICE TO ALL MEMBERS OF UNITED SUGAR WORKERS UNION , LOCAL 9, AFFILIATED WITH INTERNATIONAL LONGSHOREMEN 'S ASSOCIATION, AFL-CIO Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor, Relations Act, as amended , we hereby notify our members that: WE WILL NOT cause or attempt to cause American Sugar Company to dis- criminate against Vincent Balbi , Melvin Lawrence, or any other employee of said Employer, because the membership of said employees , or any of them, in our labor organization has been terminated on some ground other than failure to tender the periodic dues uniformly required as a condition of retain- ing such membership. WE WILL NOT threaten any of the employees of the above-named Employer with bodily.or other injury or•reprisal if any of them assist or remain members of the Brotherhood of Sugar Workers, or any other labor organization other than our organization , or in any other manner restrain or coerce said employees, in the exercise of rights guaranteed to them by Section 7 of the Act. WE WILL make Melvin Lawrence whole for any loss of pay he may have suffered as a result of the discrimination ' against him caused by our labor organization. ' WE WILL notify American Sugar Company that we withdraw ' our objection to its employment of Melvin Lawrence , and that we request said Employer to offer him immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights -and, privileges previously enjoyed. UNITED SUGAR WORKERS UNION, LOCAL 9, AFFILIATED WITH 'INTERNATIONAL, LONG- SHOREMEN'S ASSOCIATION, AFL-CIO,' Labor Organization. Dated------------------- By ------------------------------------------- (Representative ) (Title) 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. - . Employees may communicate directly with the Board 's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500, if they have any questions concerning this notice or compliance with its, provisions. Tennessee Packers, Inc., Frosty Morn Division and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, Local 405.1 Case No. 26-CA-1545. February 27, 1964 DECISION AND ORDER On October 18, 1963, Trial Examiner Leo F. Lightner issued his• Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, the Respondent filed exceptions and a supporting brief. • Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with, 146 NLRB No. 15. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this case to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Brown]. 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER -The Board adopts as its Order the Recommended Order of the Trial Examiner.' 1 The Recommended Order is -hereby amended by substituting for the first paragraph therein, the following paragraph: Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders ,that - Respondent, Tennessee Packers, Inc., Frosty Morn Division , its -officers , agents, successors, and assigns, shall: The Appendix attached to the Trial Examiner 's Decision is hereby amended by adding the following immediately below the signature line at the bottom of the notice: Nora.-we will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. TRIAL EXAMINER'S DECISION This proceeding was heard before Trial Examiner Leo F . Lightner in Clarks- ville, Tennessee, on July 30, 1963, on the complaint of General Counsel , as amended, and the answer of Tennessee Packers, Inc., Frosty Morn Division ., The issue litigated was whether the Respondent violated Section 8(a)(4), (3 ), and (1) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947 , as amended, 61 Stat. 136, herein called the Act. Briefs filed by the General Counsel and Re- spondent and the oral argument presented by each have been carefully considered. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a Tennessee corporation , maintaining a plant and place of business at Clarksville, Tennessee,2 where it is engaged in the processing of meat and meat products. During the 12 months preceding the issuance of the complaint, on July 1 , 1963, a representative period, Respondent sold and shipped finished prod- ucts valued in excess of $50,000 directly to points outside the State of Tennessee. The complaint alleges, the answer admits, and I find that said Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO; Local 405, herein called the Union, is a labor organization within the meaning of Section 2 (5) of the Act. 1 The original charge herein was filed on May 27, 1963. An amended charge was filed on June 14, 1963 An additional amended charge was filed on July 1, 1963 On the latter date the complaint herein was issued 2In Case No . 10-CA-3956, reported in 124 NLRB 1117, of which I have taken official notice, other plants owned and operated by Respondent are noted We are here con- cerned with the Clarksville plant. TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 167 111. THE ALLEGED UNFAIR LABOR PRACTICES The Issue The principal issue raised by the pleadings, as amended, and litigated at the hearing are whether the Respondent since on or about May 6, 1963, has failed and refused to reemploy or recall Shirley Holt, Nora Ann Black and Myrtle Lane because said employees joined or assisted the Union, or engaged in union or con- certed activities, or because said employees filed charges and gave testimony under the Act, in derogation of the provisions of Section 8(a)(4), (3), and (1) of the Act. Respondent generally denied the commission of any unfair labor practices. Background The Union has been unsuccessful in several efforts to organize the employees at Respondent's Clarksville plant, commencing in 1952. On October 8, 1959, the Board found that Respondent had engaged in conduct violative of the provisions of Section 8(a)(1) by: (1) threatening to close the Clarksville plant; (2) by grant- ing wage increases in order to influence employees against the Union; (3) by photographing employees while, engaged in union activity; 'and (4) by interrogat- ing employees regarding their union membership, activities, or sympathies in a manner constituting' interference, restraint, • or coercion. Specifically the Board found that it was Plant Superintendent Clay Barnes who had engaged in interroga- tion of employees, made threats to close the Clarksville plant, ordered the taking of pictures of employees while they were engaged in union activities, and selected the employees who received wage increases in order to influence said employees against the Union .3 On June 28, 1963, the Board found that Respondent had engaged in conduct violative of Section 8(a)(3) and (1) by reason of the discriminatory discharges of Ophelia Hutchison and Claudine Warren,' and, in addition, violative of Section 8(a) (1) by interrogation of employees. Specifically the Board found unlawful inter- rogation by Plant Superintendent Clay Barnes and Foreman Roy Cipriano, as well as others. It was Cipriano who effectuated the discriminatory discharges .4 In Case No. 26-CA-1388 it was alleged that the discriminatees herein, Holt, Black, and Lane, were discriminatorily laid off on September 14, 1962, and that Respondent's failure to recall them was discriminatorily motivated. These allega- tions were dismissed, on a finding that the layoffs were in accordance with depart- mental seniority,5 and an absence of proof of discriminatory motivation. It was also found that as of the time of the hearing, on January 29 and 30, 1963, there were only five employees in the wiener packaging department and, accordingly, there had been no failure to recall the alleged discriminatees. The Evidence It is undisputed that Bobby Langster, a male employee, was hired in May 1963, to work in the wiener department. Also undisputed is the fact John Suggs, a male employee, was hired in the same department in June 1963. Betty Mohon (spelled in this record "Mahone" and in the prior record "Mohon"), was recalled, or rehired, on May 6, 1963, and assigned to work in the ham room or ham department or smoked meats department. Fay Seay, who had been employed by Respondent some years previously, was rehired on May 7, 1963, and assigned to the ham room or smoked meat department. It is likewise undisputed that Nora Ann Black, Shirley Holt, and Myrtle Lane had not been rehired or recalled at the time of the hearing herein. The hiring of the four individuals named and the failure to recall the three alleged discriminatees is the nub of this case. See footnote 2. I have taken official notice of Case No. 26-CA-1388, reported In Tennessee Packers, Inc., Frosty Morn Division, 143 NLRB 494. Acts of Respondent's agents occurring more than 6 months prior to the filing and service of the charge are considered as background only, and will not be made the basis of any finding of unfair labor practices, in accordance with the provisions of Section 10(b) of the Act. Frost Lumber Industries, Inc, of Texas, 93 NLRB 1586, 1592, and footnote 3 (IR). 5 Five of ten employees in the wiener packaging department were laid off. The order of seniority of these five, with the highest in seniority first, were Nora Ann Black, Shirley Holt, Myrtle Lane, Betty Mohon (identified in the instant record as "Mahone"), and Aileen Harris. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undisputed testimony of Black was that during the period of her employ- ment by Respondent 6 she was assigned to the wiener department and worked there most of the time. However, it was normal practice for the employees to be assigned to work in other departments when they were needed. Black was so assigned to work in the ham room, on the bacon line, and on the lunch meat line. Black asserted that while she was working on a night shift, which she estimated to have extended over a period of 2 or 3 months, she would spend 2 or 3 hours of a 10-hour shift each day working in the ham room where she would wrap hams, 'bacon, smoked meats, and jowls. When she worked on the bacon line she weighed 'bacon, sliced bacon, and packaged it in V2-pound or 1-pound packages. In the wiener department she ran the wiener peeling machine, which required lifting a tray of sausages of an estimated weight of 12 to 15 pounds and placing the wieners in the machine. She also helped pull out "floats," containing packages of wieners, with the help of two or three girls. Black explained they would go into the shipping room and' ask. one of the men to come in and pull the float out, but if they were in a 'hurry they would not wait for the men to pull them out. These floats would be pushed out four or five times a day and did not involve "a whole lot of working time." It is undisputed that Black testified, adversely to Respondent, in Case No. 26-CA-1388, on January 29, 1963, and this fact was known by Respondent. The undisputed testimony of Lane was that during her employment by Respondent she worked in the wiener department, she was transferred to the ham room for 3, 4, or 5 months, and at times was assigned to work in the lunch meat department, smoked meat department, and bacon department.7 These latter assignments were for a few hours each time. Lane described her work in the ham department as pulling hams out of "stockinets" and wrapping hams. In the bacon department she weighed bacon, wrapped bacon, and helped to press bacon. When she worked in the wiener department in 1958, she also worked in the,ham room or wherever they were needed. Lane also testified adversely to Respondent in Case No. 26-CA-1388, and this fact was known to Respondent. Shirley Holt did not appear as a witness.8 Holt appeared as a witness for General Counsel and testified adversely to Respondent in the earlier 1963 hearing .9 Clay Barnes has been superintendent of Respondent's plant at Clarksville since 1949. Barnes acknowledged that Holt, Black, and Lane had not been recalled since September 14, 1962, asserting as the reason that there had not been an available job for them and that no one had been employed in their place. The evidence relative to the hiring of Langster and Suggs, new male employees, in the wiener packaging ,department, is next considered. Barnes related that early in February 1963, Foreman Cipriano 10 suggested that in the lunch meat department and wiener packing department men would be better able to do the heavier lifting required on transfer of floats into the holding coolers O In Case No. 26-CA-1388 the Board found that Black was initially hired on Febru- ary 11, 1958, laid oil'. November 14, 1958, rehired March 23, 1959, laid off September 14, 1962 . Her date of seniority was, accordingly, March 23, 1959.' However, where an employee had been laid off for more than 30 days, it is undisputed that a new seniority ,date was established as of the date of the employee's last recall. 7In•Case No. 26-CA-1388 the Board found that Lane was initially hired in April 1958, in the wiener packaging department, was laid off November 14, 1958, recalled to the same department June 6, 1960, transferred to the bacon department on 'July 13, 1960, re- ,transferred to the wiener packaging department on October 16, 1960, and laid off September 14, 1962. s In Case No. 26-CA-1388 the Board found that Shirley Holt was first employed by ,Respondent on March 24, 1958, she was laid off on November 14, 1958, while working in the wiener packaging department, recalled in April 1959, to work in the bacon department, transferred June 1, 1959, to the wiener packaging department, laid off September 14, 1962. 9I have taken official notice of the testimony of Holt, set forth in the decision in Case No. 26-CA-1388. 10 Cipriano was identified by Barnes as foreman of the packing department in charge of .bacon, smoked meats, sliced luncheon meat, and wiener packaging. These are separate ,divisions or departments. The wiener packaging and sliced luncheon meat divisions are adjacent to each other on the same floor. Similarly the ham room and bacon divisions are adjacent to each other on the floor below. Barnes and Cipriano used the terms "ham .room" and "smoked meats" interchangeably. However, the term "smoked meats" depart- ment appears to include bacon slicing and wrapping as well as ham wrapping. TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 169 }previously performed by the shipping department . However, at variance with this assertion, Cipriano admitted the female employees, at times, pulled the floats out, then asserted that "one man" guided the float. In addition Cipriano asserted that since women are limited to a 10-hour day and 5-day week ( inferentially under Tennessee law) that the men could work longer .and do the cleanup work.ll It is inferred that the men remained to do cleanup. Men could also do what was known as setup work which included getting corrugated boxes to package wieners and film to wrap the packages . The latter requires lifting. The same situation , according to Barnes, applied on the lunch meat line. Barnes -explained that in 1962, after remodeling, the lunch meat line was in the same room as the wiener packing line. Barnes asserted that the hiring of two men, Langster -and Suggs, was done to expedite the work and make the operations more efficient. Foreman Cipriano, somewhat at variance with the testimony of Superintendent Barnes, acknowledged that Langster was doing the work formerly performed by the .discriminatees "as far as putting packages in boxes, 1-pound packages into boxes" (the boxes contained 35 pounds of wieners ). Cipriano asserted that in 1962 , before the layoff, employee Bumpus who is still employed on the lunch meat line aided in pulling out "floats" (a vehicle upon which the 35-pound boxes of wieners were -placed then removed to a cooler), and Bumpus inferentially pulled "trees" contain- ing 1 ,000 pounds of wieners out of the cooler for processing. These trees were on -an overhead track. Cipriano asserted that Langster would remove a float seven ,or eight times a day and each operation would require 3 or 4 minutes. Cipriano then asserted that the time lost by the movement of floats was reduced from 25 to 30 minutes per day to 10 or 15 minutes per day. Cipriano acknowledged that Suggs was hired as a temporary employee because '"we needed him to help out -on our wiener peeler , specifically to run the peeler, to 'keep the product out, because at the same time our lunch meat business had increased, also-Bumpus had to spend all of his time, just about, on the lunch meat line preparing his loaves." 12 Cipriano acknowledged that the wiener peeler ma- -chine had formerly been operated by a girl, Nora Ann Black. Bumpus has pulled the trees out of the cooler, since Suggs left in late July 1963. Ann Schuff, who is employed in wiener packaging, credibly testified that the 'work performed by Langster and Suggs was the same as that formerly done by Holt, Black, and Lane. Specifically, she related that Langster "runs the machine, -and he boxes the wienies, but he don't pack." She described Suggs' work as "he -run the weenie peeling machine." To the extent the testimony of Schuff is at ,variance with that of Barnes and Cipriano, I credit Schuff.13 After the layoff of Black, before the hiring of Suggs, Schuff asserted Beauford Durham , a female em- ,ployee, ran the wiener peeling machine. I turn next to consideration of the circumstances surrounding the hiring of Betty Mohon and Fay Seay. It is the contention of General Counsel that the hiring of these two individuals , without giving consideration to the three discriminatees, was discriminatorily motivated . Superintendent Barnes denied that Mohon and Seay were hired to do the same work as that formerly done by Holt Black, and Lane.14 Barnes related that in considering the qualifications of Mohon and Seay he con- sidered their prior experience in the ham room . Seay had worked for Respondent on two different occasions previously , but not in the 21 years prior to the time she was hired. It is undisputed that in the period since they have been rehired both "Motion and Seay have worked in wiener packaging, but the time so spent is minimal in comparison to the total time worked . Barnes acknowledged that additional help was hired in the ham room , partially because of an increase in the sliced bacon business. The ham room and the sliced bacon department are in the same room. 11 Ann Schuff, an employee of Respondent for 8 years and a witness for General Counsel, acknowledged that the men work longer hours than the girls , and that the girls do not do the cleanup work. 12 Cipriano was self-contradictory in asserting that Bumpus continued to pull out floats but "he had the assistance of males now " ; is Schuff described the floats as being on rollers, pulled with a jack. Each float carries 2,700 pounds of wieners. Schuff asserted Bumpus aided the girls in pulling floats out be- fore Langster was hired. 14 To the extent that this statement constitutes a statement that Mohon and Seay were not hired to work in the wiener packaging department , it is a correct statement, to the extent it implies that Black and Lane had not worked in the ham department , or that Holt had not worked in the bacon department it is not a correct statement. I so find 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Barnes related that Motion had worked for the Respondent off and on for 7 or 8 years but he was uncertain what the records reflected.15 Barnes acknowledged that in the hearing in Case No. 26-CA-1388 that be had asserted that Black, Holt, and Lane were in a layoff status and would be subject to recall or rehire "in the department" (wiener packaging). Barnes then asserted that there is a difference in recall as far as seniority goes "tin which the Board ruled, and it sustains that, the 30 day limit." 16 Barnes then asserted "if we thought they might fill the job alright (in some other department ) I think we might consider them, yes, sir." Barnes acknowledged that in the past the discriminatees had been rehired in (or employed in) one of the other departments .17 Barnes asserted that Mohon had a total accumulated time of 6 or 7 years and that her time in the wiener department had equaled or exceeded that of each of the three alleged discrimi- natees.18 Barnes then denied that seniority made any difference , asserting that seniority does not exist at the time of rehire. Barnes then asserted that he did not believe Holt, Black, or Lane had quite as much experience in the ham or bacon department as Mohon or Seay and that this was the only "consideration " he followed. Barnes, whose demeanor was not impressive , was self-contradictory relative to the circumstances under which Mohon and Seay were selected for rehire rather than the three discriminatees . Barnes did not "believe" that the three discrimi- natees had "quite as much experience " as Mohon or Seay in the ham and bacon department, then asserted "at least not anymore." Barnes asserted "this is the only consideration I followed there, yes, sir." Barnes then denied that he had given any consideration, at the time of hiring Seay, to the relative experience of Holt, Black, and Lane. Similarly he did not weigh the experience of Mohon in relation- ship to the three named discriminatees at the time he hired Mohon . Barnes ac- knowledged that after the charges were filed he had checked the records , but when he testified he was uncertain as to which of the five named had the most experience in the smoked meat department. Barnes explained that they have a combination crew in the "smoked meats" department that works on slicing bacon and wrapping hams. Cipriano asserted that Mohon and Seay were hired in "smoked meats wrapping." Barnes acknowl- edged that Seay had no seniority at the time she was rehired. He asserted he did not consider her prior service but did consider her experience . He was uncertain whether Seay had more experience in the smoked meat department than Black, Holt, or Lane, acknowledging that he would 'have to check the record . Barnes then asserted that if the opening had been in the wiener packing department "I would have hired the oldest girl, or the oldest two if two jobs had been available in the (wiener ) packing department, that were laid off ; either Black, Holt or Lane. 1 be- lieve that is the order, the way their seniority ranges." Barnes then asserted the reason he would consider the discriminatees for rehiring in the wiener department was that they had far more experience than Seay in that department. Barnes admitted knowing that Mohon was a witness on behalf of the Company in the hearing in Case No. 26-CA-1388, but asserted this fact was not considered when she was rehired . Barnes did not recall that Mohon , in the prior hearing, requested that her name be withdrawn from the charge. Barnes did recall that Mohon had testified that she had not signed the union card while the three dis- criminatees had testified that each of them had signed a union card. Barnes denied that these facts had anything to do with Mohon being recalled , or rehired, in preference to Holt, Black, and Lane. I do not credit this assertion of Barnes. is Janice Bagwell, an employee of Respondent at the time she testified, has worked in the ham room for 21/.2 years. She credibly testified that neither Seay nor Mohon worked in the ham room during that period, prior to May 1963 Bagwell related that three or four boys were hired as new employees , in the ham room, since January 1963 . Barnes did not deny the latter assertion He related that the sliced bacon business increased, that he tried to cooperate with a local college by giving temporary employment to college students during the peak season in sausage and smoked meat production. 10 Apparently Respondent asserts that seniority for the purpose of recall is limited to 30 days. Actually the record does not substantiate any such conclusion , rather the record indicates that a recall after 30 days constituted a rehiring and previous seniority was not carried over. 171 have noted supra, footnote 8, the Board finding that Holt was rehired in the bacon, department on one occasion. 18 Mohon was below Black , Holt, and Lane in the order of seniority, see saps e, footnote B,. TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 171 Contentions of the Parties General Counsel contends that the failure of Respondent to recall Holt, Black, and Lane was discriminatorily motivated, and that the reasons given by Respondent for the hiring of new employees, and the rehiring of Seay and Mohon, are in fact pretextuous. In Case No. 26-CA-1388, the Board found that in late May or early June 1962, the alleged discriminatees had signed union cards, talked openly about the Union with other employees in the presence of a supervisor, and that Respondent had knowledge of the alleged, discriminatees' union activity at that time. The com- plaint in that case involved, inter alia, an allegation that Respondent's failure to recall the alleged discriminatees was discriminatorily motivated. Resolution, by the Board, of this contention was pending at the, time of the events herein, in May 1963. General Counsel contends that Respondent was thus on notice of the desire of these three employees to be reemployed. General Counsel asserts that the Board's finding, in Case No. 26-CA-1388, that the layoff and failure to recall Holt, Black, and Lane was not discriminatory, was bottomed on the testimony of Superintendent Barnes, that it was his, intent to re- employ these individuals when production picked up. In contrast, General Counsel calls attention to Barnes' testimony in the instant case, that at the time he hired Seay, and reemployed Mohon, he did not consider the three named individuals for employment, even though they had more seniority at the time of layoff than Mohon, and had experience in the type of work for which these two individuals were employed. General Counsel calls attention to the inconsistency of Barnes in asserting herein that an employee who is in layoff status for more than 30 days is considered per- manently separated with no rights of recall, while in the prior case his testimony was that Holt, Black, and Lane were still considered in a laid-off category and subject -to recall, at .the tune ' of the prior hearing, some 4 months after their layoff. General Counsel asserts that the hiring of male employees was a mere pretext. While Respondent asserted that male employees were capable of performing tasks which female employees could not perform, the tasks assigned were principally those formerly performed by female employees. Suggs' work of running the wiener peeling machine was formerly the work of Black. In the case of Langster, the bulk of his work similarly was work formerly done by female employees, that of wrapping and packaging wieners. General Counsel urges that the moving of heavy objects was work formerly done by Bumpus, who continues to do a portion of it. Finally, General Counsel asserts that Respondent's principal contention that its actions were motivated by a desire for a more efficient operation and to speed up production does not withstand close scrutiny. With three experienced employees available for recall, Respondent selected a new employee (Langster) who spent all of a 10-hour day doing work formerly done by the experienced employees, including movement of floats. At the outset of the case, Respondent denied that it had employed anyone to do the same work that was previously done by the alleged discriminatees. Respondent now urges that it is the prerogative of management to determine, in the interest of efficient operation of the plant, if men can do more work than girls. The Respond- ent also urges that it is the prerogative of management to determine "who could best do the job for which there was an opening," and that the three discriminatees were not entitled, by reason of their union activity or prior testimony, to more con- sideration than Mohon and Seay. Concluding Findings Respondent's initial defense that no one had been hired to do the work formerly done by the three alleged discriminatees is obviously contrary to the facts and without merit. Clearly Suggs' running of the wiener peeling machine is the precise work formerly done by Black. The bulk of Langster's work was the work formerly done by the discriminatees. Cipriano urges that approximately 15 minutes per day was saved by having Langster available to move floats. Cipriano's antiunion animus was found by the Board in the prior case. I have not found Cipriano to be a credible witness, largely on the basis of demeanor, as well as his self-contradic- tions, and the contradictions contained in his testimony compared to that of Barnes. Barnes' assertion that the hiring of men was only done to expedite and make the operations more efficient is undocumented, unsupported, and self-serving, and is not credited. How-new employees doing the same work as that formerly done by-ex- perienced employees could be more efficient is unexplained. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Barnes first sought to establish that his reason for the selection of Seay ands Mohon, who evidently worked in the ham room, in smoked meats, and in bacon, was motivated by reason of their greater experience in these departments. Barnes was then uncertain what,the records reflected, relative to comparative experience as between the two named and the three discriminatees, and retreated to a defense that he gave no consideration to such a comparison. While Barnes asserted that he did not check the records, for comparison, until after the charges in the instant case were filed, he was unable to recite what he learned upon checking such records. Significantly he made no effort to produce records to substantiate his contention that Seay and Motion worked longer than the discriminatees in the ham or smoked meat departments. Barnes, having testified in the hearing held on January 29-30, 1963, that the three discriminatees were in layoff status and "subject to recall when production- improves," now asserts alternatively that these discriminatees would have been re- called, in the order of seniority, if work was available in the wiener packaging department, but consideration of them in any other department would constitute a rehiring- -' I have taken official notice of two prior cases involving this Respondent in which, the Board has found that Superintendent Barnes and Foreman Cipriano have engaged in conduct which was found to be violative of Section 8(a)(3) and (1) of the Act. The Supreme Court has held that where occurrences within the 6-month limita- tions period in and of themselves may constitute, as a substantive matter, unfair labor practices, earlier events may be utilized to shed light on the true character of matters occurring within the limitations period; Wand for that purpose Section 10(b) ordinarily does not bar such evidentiary use of anterior events. Local Lodge No. 1424, International Associatioh of Machinists, AFL-CIO; and International Associa- tion of Machinists, AFL-CIO (Bryan Manufacturing Co.) v. N.L.R.B., 362 U.S. 411, 416, 417. While such conduct at a time beyond the limitations of Section, 10(b) of the Act do not serve as a basis of any finding of unfair labor practices, they can properly be considered to explain ambiguous and equivocal conduct, and may be used to supply the real reason for alleged unlawful actions occurring within the Section 10(b) period. Shawnee Industries, Inc., Subsidiary of Thiokol Chemical Corporation, 140 NLRB 1451; Paramount Cap Manufacturing Company, 119' NLRB 785, 787. Respondent urges the right of management to make decisions with respect to the discharge or hiring of employees. Respondent cites the following language from the Wagner Iron Works case.19 ' Obviously, the Act does not interfere with the employer's right to conduct his business, and, in doing so, to select and discharge his employees. It pro- scribes the exercise of the right to hire and fire only when it is employed as a discriminatory device. . . . The Board may not "substitute its judgment for that of the employer as to what is sufficient cause for discharge", ... and dis- crimination may not be inferred from an employee's mere membership in a union. In the Brady Aviation case 20 the Court observed: ... if we could agree with the majority that "Under the dissenters' apparent concept of the ,law the Board would be bound to accept, to avoid the charge of substitution of judg- ment, the Respondent's unsupported economic contention", we should, of course, agree with the majority that "this would lead to the absurd result that no discrimination could ever be found unless the employer openly admitted it." We think, too, that the statement with which the majority concludes its opinion: "In conclusion, we wish to state affirmatively that although we cannot control the hazard of litigation which is a natural concomitant of doing business, no employer need fear an adverse finding by the Board simply because he rejects a known union adherent, provided his decision is in • fact based on economic and not union considerations" is a correct one, assuming, as we do, that implied in it is the correct rule that the burden to make out a case of discrimination rests continuously on, and does not shift from, Board to respondent. The Board has held: Under the Act an employer must consider a request for employment in a lawful, nondiscriminatory manner, and the question whether an application has been given such consideration does not depend on the availability of a job at the time an application for employment is made. Consequently, the Act is 19N.L.R.B. v. Wagner Iron Works, et at., 220 F. 2d 126 (C.A. 7). 20 N.L.R.B. v. Brady Aviation Corporation, 224 F. 2d 23, 25 (CA. 5). TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 173 violated when an Employer fails to consider an application for employment for reasons proscribed by the Act, and the question of job availability is relevant only with respect to the employer's backpay obligation. Shawnee Industries, Inc., supra. The Board found, in Case No. 26-CA-1388, that General Counsel's contention therein, that Respondent "never intended to recall Holt, Black or Lane, because they were 'known union adherents,' " and that the temporary layoff was a blind for a permanent severance, was without merit. This conclusion was reached upon the basis of representations made by Cipriano and Barnes upon inquiry by Holt and Black as to when they would be recalled, and Barnes' testimony that Holt, Black,' and Lane were (in January 1963) "subject to recall when production . improves." Respondent now urges that no violation exists when it gave no consideration to the rehiring of these discriminatees. I do not agree. . On the one hand, Respondent urges that 'it would have recalled the discriminatees if there had been openings in the wiener packaging department, while on the other hand, it is `undisputed that Mohon was rehired for other work. Mohon, the Board, found, was lower in seniority, was the only nonunion employee of, the five laid 'off in September 1962, and was a witness for Respondent in that case. In N.L.R.B.• v. Shedd-Brown Mfg. Co., 213 F. 2d 163, 174 (C.A. 7), the court said: ... ..the disproportionate treatment of union and nonunion workers may be very persuasive evidence of discrimination, . . . and may create an inference of -discrimination leaving it to an employer to give an adequate explanation' of the discharge or layoff, . and when there is evidence tending to prove that the employer has openly expressed his hostility to union members, spe-, cifically warning them that he has ways of getting,rid of a union man, and there is no evidence negativing the inference of discrimination, we cannot say, that the inference thus created has been destroyed." 21 - In the Nachman case 22 the Board said, in part: "This marked disproportion of known active union proponents and leaders among employees not recalled after layoff creates a strong inference that the failure to recall was motivated by dis- criminatory reasons." In disposing of Respondent 's efforts to rebut this inference, the Board said: "As to the three employees not recalled because their jobs had allegedly been abolished, each of them had performed more than one job in the plant and following their layoffs Respondent hired numerous new employees 'off the street' to perform jobs that these three individuals had performed or were capable of performing and yet were never offered the opportunity to do, although Respondent admittedly was satisfied with their past work preformance." 23 Upon the entire record as a whole, I believe and hold that Respondents purported reasons for failing to recall or rehire Nora Ann Black, Shirley Holt, and Myrtle Lane, were pretexts, and that the real reasons and moving cause was the Union and concerted activities of said employees, and their filing of charges, and giving testimony under the Act, and said failure of Respondent constitutes discrimination with respect to their hire and tenure of employment to discourage membership in a labor organization and an interference with the processes of the Board, in viola- tion of Section 8(a) (3 ), (4), and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, - traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. - V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. u Citing N.L.R.B. v. Chicago Steel Foundry Company, 142 F. 2d 306, 308 (C.A. 7). 22 Nachman Corporation, 144 NLRB 473. 21 See also N.L.R.B. v. W. C. Nabors, d/b/a W. C. Nabors Company, 196 F. 2d 272, 275-276, cert. denied 344 U.S. 865; N.L R B. v. Wilson Line, Inc., 122 F. 2d 809, 812 (C.A. 3) ; Syracuse Tank & Manufacturing Company, Inc., 133 NLRB 513, 525, and footnote 15. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having found that the Respondent discriminatorily failed and refused to recall or reemploy Nora Ann Black, Shirley Holt, and Myrtle Lane, on and after May 6, 1963, because of their union activities, and, further, because they filed charges against the Respondent and gave testimony under the Act, I shall recommend that the Respondent offer to each of them immediate employment and full reinstatement to the former or substantially equivalent position of each without prejudice to the seniority and other rights and privileges of each. Consistent with my finding, supra, that others have been hired in place of, and in preference to, said discrimi- natees, I shall recommend that, if necessary, said replacements be discharged in order to provide employment for the said discriminatees . I also recommend that Respondent make each of the discriminatees whole for any loss of salary or pay they may have suffered by reason of Respondent's discrimination against them, by a payment to each of them a sum of money equal to that which each normally would have earned from the date of said failure to recall or reemploy to the date of said reinstatement, less the net earnings of each during said period . Said back- pay should be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Interest on backpay shall be com- puted in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It is also recommended that Respondent be ordered to make available to the Board, upon request, payroll and other records to facilitate checking of the amount of earnings due. Further finding from the past conduct of the Respondent, and the nature of the unfair labor practices herein revealed, a 'likelihood that such practices may be continued in the future , it will be recommended that the Respondent cease and desist from in any manner interfering with, restraining , or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act 24 Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, Local 405 is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating with respect to the hire and tenure of employment and terms and conditions of employment of Nora Ann Black , Shirley Holt, and Myrtle Lane, because they filed charges and gave testimony under the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(4') and (1) of the Act. 4. By discriminating with respect to the hire and tenure of employment and terms and conditions of employment of Nora Ann Black, Shirley Holt, and Myrtle Lane, thereby discouraging the free exercise of the rights guaranteed by Section 7 of the Act, and discouraging membership in and activities for the above-named labor organization , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and ( 1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent, Tennessee Packers, Inc., Frosty Morn Division , 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 of their employees, by failing and refusing to reinstate or reemploy employees on Payoff, or in any other manner discriminating against them in regard to their hire and tenure of employment or condition of employment, because they filed charges or gave testimony under the Act, or because they engaged in the free exercise of their statutory rights guaranteed' to them by Section.7 of the Act. - • (b) In any. other manner interfering with, restraining , or coercing its employees in the exercise of the right of self-organization, to form labor organizations, to join or assist the above-named union, or any other labor organization, to bargain collec- -May Department Stores d/b/a Famous-Barr Company v. N.L.R.B., 326 U.S. 376. TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 175 tively through representatives of their own choosing, and to engage in any other concerted activity for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Nora Ann Black, Shirley Holt, and Myrtle Lane, immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suffered by reason of Respond- ent's discrimination against them in accordance with the recommendations set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due and the right of employment under the terms of the Recommended Order herein. (c) Post at its place of business in Clarksville , Tennessee, copies of the attached notice marked "Appendix ." 25 Copies of said notice, to be furnished by the Regional Director for the Twenty-sixth Region, shall, after being duly signed by the Respond- ent, be posted immediately upon receipt thereof , and be maintained by it for a period of 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-sixth Region, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply with the foregoing Recommended Order. It is further recommended that unless within 20 days from the date of receipt of this Trial Examiner's Decision, the Respondent shall notify the said Regional Director, in writing, that it will comply with the foregoing Recommended Order,26 the National Labor Relations Board issue an order requiring Respondent to take the aforesaid action. 25 In the event this Recommended Order is adopted by the Board , the words "A Deci- sion and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board 's Order 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." 26 In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read: "Notify said Regional Director , in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply therewith." 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, as amended , we hereby notify our employees that: WE WILL NOT discourage membership in Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO, Local 405, or any other labor organization of our employees , by discriminating in regard to their hire or tenure of employment, or recall or reemployment of employees on layoff, or any term or condition of employment. WE WILL NOT fail or refuse to recall or rehire employees on layoff , or other- wise discriminate against them, because they have filed charges or given testi- mony under the Act. WE WILL NOT in any other manner interfere with , restrain, or coerce our em- ployees in the exercise of their right to self-organization , to form labor or- ganizations, to join or assist the above-named union or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities. WE WILL offer to Nora Ann Black, Shirley Holt, and Myrtle Lane, immediate and full reinstatement to their former or substantially equivalent positions, with- 744-670-65-vol. 146-13 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of salary or pay suffered as a result of the discrimination against them. All our employees are free to become, to remain , or to refrain from becoming or remaining, members of a labor organization of their own choosing. TENNESSEE PACKERS, INC., FROSTY MORN DIVISION, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) 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. Employees may communicate directly with the Board's Regional Office, 746 Fed- eral Office Building, 167 North Main Street, Memphis, Tennessee , Telephone No. 534-3161 , if they have any question concerning this notice or compliance with its provisions. United Mine Workers of America, Local No. 7083 [Grundy Min- ing Company] and Southern Labor Union. Case No. 10-CB- 1401. February 27, 196. DECISION AND ORDER On October 25, 1963, Trial Examiner Stanley N. Ohlbaum issued his Decision in the above case, finding that the Respondent had en- gaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in his attached Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reveiwed 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 Decision of the Trial Examiner and the entire record in this case, including the exceptions and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER The Board adopts as its Order the Trial Examiner's Recommended Order with the amendment noted below.' 1 The Recommended Order is hereby amended by substituting for the first paragraph therein, the following paragraph: Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent , United Mine Workers of America, Local No. 7083, its officers, agents , and representatives , shall: 146 NLRB No. 20.