Leeds Packing Co.

LEEDS PACKING COMPANY 755 refrain from forcing or requiring The New York Times Company, by means proscribed by Section 8(b) (4) (D), to assign the work in dispute in a manner inconsistent with the provisions of (1) above. Lumberjack Meats, Inc. d/b/a Leeds Packing Company and United Packinghouse, Food and Allied Workers, AFL-CIO James A. Davis, individually and as agent of Lumberjack Meats, Inc. and United Packinghouse, Food and Allied Workers, AFL- CIO. Cases Nos. 10-CA-5560 and 10-CA-5571. December 31, 1964 DECISION AND ORDER On June 5, 1964, Trial Examiner Robert E. Mullin issued his Decision in the above-entitled proceeding, finding that Respondent Employer 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 Trial Examiner's Decision. The Trial Examiner dismissed-the complaint against Respondent James A. Davis. Thereafter, only the Re- spondent Employer filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Jenkins]. 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 en- tire record in this case, including the Trial Examiner's Decision and the exceptions and brief, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order, the Order recommended by the Trial Examiner, and orders that the Respondent Employer, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, with the following modifications : 1. Add the following as paragraph 2(b), and renumber the fol- lowing paragraphs of section 2 accordingly : "(b) Notify Elvis J. Barnes, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon 150 NLRB No. 67. 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD application 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." 2. Immediately below the signature in the Appendix attached to the Trial Examiner's Decision, insert the following : NoTE.-We will notify the above-named employee, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application 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 STATEMENT OF THE CASE - Upon charges and amended charges filed on November 29, December 4 and 16, 1963, by United Packinghouse, Food and Allied Workers, AFL-CIO ( herein called Packinghouse Workers or Union), the General Counsel of the National Labor Rela- tions Board, by the Regional Director for Region 10 (Atlanta, Georgia); issued a consolidated complaint, dated January 16, 1964, against Lumberjack Meats, Inc., d/b/a Leeds Packing Company (herein called Company or Employer) and James A. Davis, individually and as agent of Lumberjack Meats, Inc. The complaint sets forth the specific respects in which it is alleged that the Respondents violated Sec- tion 8 (a)(1) and (3) of the Act. The Respondent Company duly filed an answer in which it conceded certain facts with respect to its business operations, but denied all alleged unfair labor practices with which it is charged. The Respondent Davis, although served with a copy of the complaint and notice of hearing, did not file an answer and did not appear at the hearing. Pursuant to due notice, a hearing was held before Trial Examiner Robert E. Mullin at Birmingham, Alabama, on February 25 and 26, 1964. All parties, except Respondent Davis, appeared at the hearing. All were given full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally after presenting the evidence, and to file briefs. The parties waived oral argument. On April 23, 1964, the General Counsel and the Respondent Company filed briefs which have been fully considered.' Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT Case No. 10-CA-5560 1. THE BUSINESS OF THE RESPONDENT EMPLOYER The Employer is an Alabama corporation with an office and place of business located at Leeds, Alabama, where it is engaged in the processing and marketing of pork. During the past calendar year, a representative period, the Respondent Com- pany purchased and received livestock for processing valued in excess of $50,000 directly from suppliers located outside the State of Alabama. Upon the foregoing facts, the Respondent Employer concedes and I find that Lumberjack Meats, Inc., d/b/a Leeds Packing Company, is engaged in commerce within the meaning of the Act. - 1 Subsequent to the hearing the Respondent filed a motion to correct the transcript in the following respects : ( 1) At page 17, line 22 , delete the word "noisey", and insert therefor the word "nosey". (2) At page 50 , line 14, delete the word "Leeds ", and insert -therefor the word "lead". ( 3) At page 145 , line 10, delete the word "office", and insert therefor the word "home". All parties having been served with a copy of the foregoing motion and no objections having been registered, the motion is granted and the record is corrected in accordance therewith. LEEDS PACKING COMPANY H. THE LABOR ORGANIZATION INVOLVED 757 The Respondent Employer concedes and I find that the Union is a labor organiza- tion within the meaning of the Act. M. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction and sequence of events The situs of the labor dispute here involved is the Employer's packingplant in Leeds, located approximately 18 miles from Birmingham, Alabama. The Respond- ent Company also has another packingplant located in the latter city. For some time the Company and the Packinghouse Workers have had a collective-bargaining con- tract covering the employees at the Birmingham plant. In the fall of 1963, the Union initiated an organizational campaign at the Leeds plant where the Company has about 95 employees. The discharge of Elvis J. Barnes, the principal issue in this case, occurred on November 25, 1963. B. The facts Elvis Barnes was hired by the Employer in September 1962 and until his discharge, some 15 months later, he worked with approximately 18 other employees in the curing room at the Leeds plant. His foreman throughout this period was James Byers. Barnes' starting rate of pay was $1 .50 an hour. At the time of his termina- tion it was $2.34. Barnes testified that he was hired by Donald Huey, the plant superintendent, and that, during the initial interview, he was asked, among other questions, whether he was a member of a labor organization. This testimony, however, was contradicted by both Huey and by Roy O. Russell, the latter being the plant manager. Accord- ing to Russell, it was he, and not Huey, who originally interviewed Barnes and hired him. Russell testified that Barnes was employed after having been recommended by one James Wright, a local businessman who was a mutual friend of both the plant manager and the new employee. Both Russell and Huey denied having questioned Barnes as to any past union membership . Russell's recollection with respect to this incident appeared to be the more accurate and convincing. For this reason it is credited by me. On about November 16, 1963, Barnes signed an authorization card in the Pack- inghouse Workers. On November 20 he requested, and received, permission from Foreman Byers to be off work for several hours on the following day to take care of some personal matters. On November 21, Barnes and Sam Jones , another em- ployee, met with union representatives and participated in a conference with Re- spondent's officials at which they requested recognition for the Union at the Leeds plant. Barnes did not report for work that day until about 8:30 p.m. The regular starting time of his shift was 3 p.m. On November 22 the supervisory personnel at the Leeds plant conducted an extensive interrogation of Barnes as to the reason for his absence and his activities on the preceding day. On November 25 Plant Superin- tendent Huey discharged him, allegedly for having requested time off on false pre- tenses and thereafter reporting for work late without an excuse and without calling his supervisor. To the facts in connection with this issue we will now turn. Barnes testified that on the afternoon of November 20 he told Foreman Byers that he would have to be off for a time the following day to take care of "financial, personal and other matters." According to Barnes, the supervisor, although re- luctant to release him because of the workload in the curing room, agreed to do so after Barnes promised to be back "about 6 o'clock. If not, shortly thereafter, or as soon as possible." 2 Foreman Byers testified that on the afternoon of November 20, Barnes told him that he was in serious financial difficulties because of a-debt which he was unable to pay, that he was in danger of having his wages garnisheed , and that he needed time off the following afternoon to take care of this pressing financial problem. Accord- ing to Byers, he told the employee that in view of this fact he would permit him to be off until 6 p.m. even though the department was extremely busy and Barnes' absence would necessitate securing a replacement from the day shift . Byers testified that Barnes assured him that he would return to duty by 6 p.m. It is my conclusion that the testimony of Foreman Byers is the more accurate as to the conversation which he and Barnes had on the day prior to the employee 's absence. The quotations in this paragraph are from Barnes' testimony. 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Barnes did, in fact, have some urgent personal financial problems related to a claim against him by the Adams Cushman Mercury Agency, a local automotive con- cern, for an unpaid bill. On November 21, however, he did not spend any time on this matter. Instead, on the morning of that day he and Sam Jones, the latter an employee in the cut and kill department, went to the union hall in Birmingham where they met Richard Rairy,3 president of Local 137 of the Packinghouse Workers and one of the union representatives who had been involved in the organizational campaign at the Leeds plant. At 3 that afternoon, Rairy, Barnes, and Jones, accom- panied by Tom Vincent, district director of the Packinghouse Workers, went to the Bankhead Hotel in Birmingham. There, at that hour, representatives of the Union and of the Employer were scheduled to discuss grievances which had arisen under the union contract at the Birmingham plant. Present at this conference for the Employer were Abe Kaplan, executive vice president of the Company, and Harold Nevilles, superintendent of the Birmingham plant. At the outset of the meeting Kaplan objected to the presence of two strangers, indicating Barnes and Jones, who, at that point apparently, were still unidentified. Thereupon, Vincent introduced Barnes and Jones as "employees of Leeds . . . [who] were there . . . asking recog- nition of the Union for the Leeds plant." 4 Shortly thereafter, when the parties began a discussion of the grievances pending at the Birmingham plant, Kaplan asked that Barnes and Jones leave the room on the ground that' none of the matters under dis- cussion pertained to the Leeds employees. Barnes and Jones then left the conference room and waited outside. Rairy testified that at the conclusion of the discussion on grievances, Vincent asked that the two Leeds employees be permitted to return to the conference room, but that Kaplan refused. According to Rairy, Kaplan further stated that although he was not then in a position to give the Union an answer to its request for recognition at the Leeds plant, he would relay the message to the proper authority. About 5 p.m. Kaplan and Nevilles left the meeting. Barnes and Jones remained with the union representatives for some time thereafter, both at the hotel and later at the union hall. According to Barnes, about 7 p.m. he departed for his home where he had his evening meal and then proceeded to the plant where he reported for duty about 8:30 p.m. The employee who had been taking his place since 3 p.m. then left and Barnes worked for the balance of the shift. In the meantime, the appearance of the two Leeds employees at the conference in Birmingham had set in motion an inquiry by the Employer's top management. Roy O. Russell, manager of the Leeds plant, testified that about 6:30 p.m., Harold Abroms, treasurer of the respondent corporation, telephoned him at his home to tell him that Barnes and Jones had appeared at the grievance meeting that after- noon to demand recognition of the Union at Leeds. Russell testified that immedi- ately thereafter he telephoned Donald Huey, his superintendent, to ask why Barnes was not at work. Huey was unable to answer this question, but volunteered the information that Jones had asked for, and had been given, the entire day off to take care of personal financial problems. At the conclusion of this call, Huey, in turn, telephoned Byers to ask why Barnes -was not, on duty, and to tell him that "Elvis [Barnes] and Sam Jones had been in a union meeting downtown." 5 Byers testified that he told Huey that he had excused Barnes until 6 p.m. that day because the employee had told him that he had to take care of some urgent financial problems. According to Byers, shortly thereafter, and about 8:45 p.m. in a telephone call from the plant, he learned that Barnes had just reported for duty. Russell testified that early the following morning he conferred with Huey and Byers at the plant and requested them to launch a complete investigation of Barnes' absence. The employee was not scheduled to work that day until 3 p.m. Some- time during the midmorning, however, Barnes visited the plant and Huey took ad- vantage of this opportunity to interrogate him about events on the preceding day. According to Huey, both he and Byers questioned Barnes in detail about what he had done the day before. Huey testified that Byers asked why Barnes had not returned to work at 6 p.m. and that the employee told them that he had been unable to con- clude his business as promptly as he had assumed and that he had not-had access to a' telephone to call the plant. According to Huey, the employee then told them at great length about his financial difficulties with the Adams Cushman Agency and the various proposals he had made to that organization to settle his obligations. Byers and Huey both testified that this meeting with Barnes began about 9:30 or 9:45 a.m. 8In the Employer's brief, it is suggested that the correct spelling of this name is R-a-r-y. However, since the spelling set forth above is found throughout the transcript, it will be used hereafter in this Decision. A The quotation is from the testimony of Barnes which, in this connection, was undenied. 5 The quotation is from Huey 's testimony. LEEDS PACKING COMPANY 759 According to Huey, it lasted until about 11 a.m. Both of these supervisors also testified that throughout their discussion with Barnes as to his whereabouts the day before they gave him no intimation that they, in fact, knew that he had been at the Bankhead Hotel. Huey testified that immediately after the conclusion of the conference with Barnes, he made a report on it to Russell, but made no recommendations as to what should be done about Barnes because Russell "did the talking." 6 The latter testified that at this time he gave orders to Huey and Byers that when Barnes reported for work that afternoon they were "to get the dates, time of day, and the people he saw . . . on the previous day, as he yet maintained that his reason for being off was to take care of a possible garnishment." Russell further asked that they secure a written state- ment from the employee. When Barnes reported for work at 3 o'clock that afternoon, Huey and Byers called him into the office of the latter where they again questioned the employee at great, length.,, Barnes' testimony as to this conference was as follows: When Byers asked him where he had been and what he had done the day before, Barnes at first refused to answer on the ground that since he had been granted time off, he owed them no accounting. Later, however, he told them he had been at a meeting. Byers then asked him to identify those present at the meeting. Barnes at first answered that he did not know all those in attendance. When asked substantially the same question a second time he told the supervisors that a Mr. Rairy and a Mr. Vincent were there. Byers then asked who these men were and what they did. Barnes stated that' he replied, "To my knowledge, they deal in labor relations." At that point Huey told the employee that the Company would have to have a written statement for the record to determine whether his absence was excusable. Barnes was then asked to repeat the story as to what he had done the preceding day while Byers took notes. When Barnes concluded, Byers left the room and shortly thereafter returned with a typewritten statement for the employee to sign. Barnes read over the state- ment, made one change, and then signed it.7 At the hearing Huey testified that at the time of this conference with the employee he realized that Barnes had been at a union meeting for part of the preceding day. Huey further testified that at the time of this interrogation he knew of Rairy's identity. Thus, in response to the following questions, Huey gave the answers which appear below: Q. Then when you were asking all those questions at that meeting on the afternoon of Friday . . . the 22nd, you knew exactly who these people were, and for what purpose did you keep asking questions? A. . . I only knew who one was. I had been told who one was. TRIAL, EXAMINER: What had you been told? A. I had been told by several of the employees that they had been visited by this Mr. Richard Rairy . . . . This man had visited them, and was asking them to sign a union card. 6 The quotation is from Huey's testimony. 7 This statement read as follows: iSubject: Tardiness on Elvis J. Barnes for November 21, 1963 Employee relates that he went to Birmingham on the 21st day of November with the purpose of checking financial situation regarding own motors, at Adams Mercury Cushman Agency. Time did not permit him to actually see anyone. Employee then proceeded to 1712 Seventh Avenue, North, Birmingham, Alabama, to meet with Mr. Richard Rary who is an advisor and an employee of reportedly Swift Packing Company. Employee does not specify reason for appointment At 3:00 p m., in the company of Mr. Rary, employee proceeded to the Bankhead Hotel and therein met Mr. Bob Vincent, an advisor. Employee was in conference with Messers Rary and Vincent until approximately 7:00 p.m., for advice on labor. Employee then returned home and to work, reporting approximately 21/_. hours beyond scheduled late reporting time. On day prior employee requested of Mr Byers, departmental supervisor, the privilege of reporting to work at 6:00 p.m. to handle various financial, personal problems This three hour late reporting time was approved on the basis of his personal financial situation. SIGNED: Elvis J. Barnes DATE. 11-22-63 Witnesses: James C. Byers Donald Huey DATE: November 22, 1963 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This second conference with Barnes lasted about 90 minutes. ' It was concluded about 4:30 p.m. when Huey told the employee to go back to work.8 Immediately after concluding their second conference with Barnes, Byers and Huey met with Plant Manager Russell and presented to him the statement which had been secured from the employee. Russell testified that he then told the two super- visors "it was evident that'Barnes had lied to us" and that he should be terminated for misrepresenting his reason for wanting to be off and for failing to call his super- visor for an additional delay in his reporting time. According to Russell, after some further discussion he concluded that he should secure advice about the matter from legal counsel and that final action to terminate Barnes would not be taken until the following Monday, November 25. Russell further testified that Byers objected to dis- charge of the employee on that very day because no replacement could be secured for Barnes' position in the curing room. Later that evening Russell had Barnes taken off the schedule for work the next morning, a Saturday: Huey informed the employee that he was not to work the following day, but that he was to report to the plant at his regular shift time on Monday. On November 23, although not scheduled to work, Barnes went to the plant to contact a fellow employee. Shortly after his arrival Byers asked him why he was not at work. Barnes replied that Huey had informed him that he had been taken off the Saturday schedule.; After Byers checked his records he conceded that the employee was correct. Shortly thereafter, when Barnes was still on the premises, Byers asked him to leave., At that point Barnes told the foreman that he wanted to make a statement in addition to the one which he had given his supervisors the day before. Barnes then asked several of the other employees who were standing nearby to listen and thereupon told them all, in Byers' presence, that on the preced- ing Thursday, along with other employees of the plant, he had gone to a union con- ference, that he had attended a meeting at the Bankhead Hotel on the employees' behalf, and that at that time Union Representative Vincent' had asked that the Packinghouse Workers be recognized as the bargaining agent of the employees at the Leeds plant. Barnes concluded with the declaration, "I am a union member, and I want everybody to know: it." When he finished, Byers repeated his order that the employee leave the plant area and Barnes departed. On the morning of November 25, Russell called Huey and Byers to his office. Byers told him about the incident on Saturday and Russell announced that he had not changed his mind about the need to terminate Barnes.. He then gave specific instruc- tions to Huey and Byers as to the manner in which the discharge was to be effected. At 3 o'clock that afternoon, when Barnes arrived at the plant he was met by Huey who escorted him to the superintendent's office and there, in the presence of Byers and another foreman, read the following statement to the employee: We are terminating you today because you 'asked for time off on false pre- tenses, and then you reported late without having an excuse and without calling your supervisor. Your termination is effective now.9 The Employer's supervisors conceded that prior to his termination, Barnes, had never been a problem as to, tardiness or absenteeism. Barnes himself testified that several weeks after his discharge he telephoned Superintendent Huey to ask what he could do about handling his obligation to the plant credit union, of which he was still an officer. According to Barnes, during the course of this conversation he ques- tioned Huey about his work record and the latter told him, "You have never been called into my office, you have never been reprimanded, or disciplined, or anything of that sort." Huey corroborated this testimony. According to the plant superin- tendent, "In this conversation Barnes asked me . . . if I had ever reprimanded him for being tardy or absent from work and I told him no, I had not." Once, in August 1963, Barnes had been a little late. Foreman Byers testified that he spoke to the employee about it and toldhim that "the Company frowns on tardiness, and that he should correct it." On the, other hand, this single occasion did not set Barnes apart from the other employees in the curing room. Byers testified that of all the 19 mem- A At the hearing Barnes testified that during the early portion of the conference he told Huey and Byers that he had not promised to report back at 6 p in. and that he had only assured Byers that he would return to the plant either at that hour or as soon as possible. Both Huey and Byers testified, however, that during this meeting Barnes did not deny that he was supposed to have been back to duty at 6 p in. Earlier in this Decision, I found that; contrary to Barnes' testimony, and consonant with that of Byers, the employee promised that he would be back at 6 o'clock on November 21. 9 Huey testified that Barnes did not at any time actually see this statement, but that he had it in an open desk drawer as he read it to the employee. LEEDS PACKING COMPANY 761. bers of his crew, he could recall only one who had never been late for work. At the hearing, when asked what he thought of Barnes' attendance record , Byers replied, "In my opinion, he had a good record." Other employees who had been tardy for longer periods , went undisciplined. At sometime during the summer of 1963, Willard Ishbell, a member of Byers' crew , was jailed for intoxication and reported for work 5 hours late . The Employer's supervisors conceded that no statement was ever secured from Ishbell about this occurrence and that the latter employee is still working at the plant. Superintendent Huey conceded that there are employees in the cut-and-kill department who, notwithstanding their being tardy on three or four occasions and having failed to call in, are still working at the plant . Byers testified that during the course of the investigation as to Barnes on November 22, he had not made any effort to compare the tardiness record of this employee with that of the other men in his department . Plant Manager Russell conceded that the Barnes case was the only one in which he had ever asked for a complete investigation as to why an employee did not report for work on schedule. The latter could recall no em- ployee other than Barnes who had been cross-examined by his supervisor and sub- jected to an investigation as to where he had been while away from his work. - Plant Manager Russell testified that the Employer has no written policy on tardi- ness, that it has no policy which establishes a maximum on the number of tardy appearances permitted , and that the company rule on tardiness is very flexible.10 At the hearing the Respondent Company asserted that the quality of Barnes ' work was not a factor in his discharge and that its reasons for his termination were solely those which were given to the employee at the time of his dismissal on November 25. On cross-examination, Russell testified that on November 21 he was not surprised to hear from Abroms, the corporate official who telephoned him at his home, that the Packinghouse Workers was active at the Leeds plant. In fact , according to Russell, he first learned this information in about mid-October 1963 and at that time assembled all of the employees for a speech in which he told them that the Company did not want a union in that plant. C. The allegations with respect to the alleged violations of the Act; findings and conclusions with respect thereto - The General Counsel contends that Barnes was dismissed discriminatorily in vio- lation ' of Section 8(a)(3) and that by its interrogation of this employee on Novem- ber 22 the Employer violated Section 8(a)(1) of the Act . These allegations are denied in their entirety by the Respondent Company. We turn first to the alleged unlawful interrogation of Barnes by the supervisory personnel . At the outset, it is clear that in view of the employee's having been absent for several hours the preceding day, the Employer was plainly entitled to make an investigation on which to base its determination as to what action it should take. Equally relevant is the fact that when Plant Manager Russell was asked why he ordered such an extensive investigation of Barnes ' absence, he answered: We knew Barnes' whereabouts on the afternoon in question . The only ques- tion was what was his justification for being off, and was there a specific reporting time . . On November 21 Barnes spent almost the entire day in the company of the union representatives. Insofar as he was on his own time this was activity protected by the 'Act . Furthermore, the Act protected him from having to divulge to Foreman Byers any plan he had beforehand to seek out the union organizers if granted leave. Accordingly, having been granted permission to be off duty until 6 p.m. on Novem- ber 21 , the employee's participation in union or concerted activities during his own time was fully protected by the Act from interference, restraint, and coercion. Most particularly did that protection extend to any contacts which Barnes had with union representatives such as Rairy and Vincent. Nevertheless , as found above, at two separate conferences on November 22, Plant Superintendent Huey and Foreman Byers engaged in an exhaustive cross-examination of Barnes as to where he had been and what he had done on the preceding day. When he mentioned the uriion ' repre- sentatives by name, Byers and Huey inquired as to their occupation and what he was doing with them. Under -their intensive questioning , Barnes finally characterized 10 Barnes testified that Foreman Byers once told him that an employee who was late three times was subject to dismissal When asked to comment on this testimony, Plant manager Russell testified that if Byers made such a statement to the employee, he had no authority for so,doing. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rairy as "a labor advisor." It is significant that, all the while, both Huey and Byers knew where Barnes had been the day before and Huey, in particular, was well aware of Rairy's identity as a union organizer. In view of the fact that Barnes and his associate, Jones, accompanied by the union representatives, had met with top management of the Respondent Employer on November 21, it might seem strange that he did not assume that by the following day his whereabouts would be common knowledge among all of the Employer's super- visory hierarchy. Obviously, however, he did not so conclude. It is equally appar- ent that he was reluctant to answer the questions by Huey and Byers which sought to compel him to identify Rairy and Vincent and to detail his activities while in their company. It is my conclusion that the circumstances under which this inter- rogation was conducted and the detailed questioning of the employee as to his asso- ciation with Union Representatives Rairy and Vincent on the day in question con- stituted coercion and a violation of Section 8 (a)( I) on the part of the Respondent Employer. We turn now to the issue as to Barnes' termination. In its brief the Respondent Company asserts that this is a case where the Trial Examiner is precluded from determining the appropriateness of the Employer's decision. It is, of course, a well- established principle that under the Act an employer is free to fire an employee for a good reason, a bad reason, or no reason, so long as the reason is not, in fact, the employee's union or concerted activities. The cases on this point are indeed relevant to the present consideration, for it is clearly not within the province of the Trial Examiner to substitute his judgment for that of the Employer as to how the latter should conduct his business. Thus, the question as to whether Barnes' discharge was harsh, unwise, or a reflection on the Respondent Company's business judgment is not before me. At the same time, it is also pertinent to recall an observation by the Court of Appeals for the Eighth Circuit that under the Act here involved "A justifiable ground for dismissal is no defense if it is a pretext and not the moving cause." N.L.R.B. v. Solo Cup Company, 237 F. 2d 521, 525 (C.A. 8).11 At the hearing Barnes' foreman testified that the employee had a good employment record and counsel for the Employer conceded that the quality of Barnes' work was not a factor in his termination. It is the Employer's contention that Barnes was terminated (1) for having asked for time off on false pretense, and (2) reporting late without an excuse and without calling Foreman Byers. The only issue, therefore, with which we are here concerned is whether the true motivation for that discharge was the reason given by the Employer or Barnes' union activity. Earlier herein it was found that Barnes was due back at the plant by 6 p.m. on the day in question and that he did not telephone his foreman to request an additional delay in reporting time. When he did not return until 8:30 p.m. he was plainly sub- ject to disciplinary action for this lapse. On the other hand, on the basis of the evi- dence in the record as to other cases of tardiness and absenteeism, it is manifest that never before had any employee been penalized by summary discharge on this ground. Moreover, different from other cases such as that of Ishbell, the employee who was 5 hours late after having been jailed for drunkenness, Barnes' absence had been anticipated and the Employer was not inconvenienced. Byers testified that Smith, the replacement he secured for Barnes during the period from 3 to 6 p.m., was pre- pared to remain on duty throughout Barnes' entire shift, if necessary, and, further, that Smith was not paid any ovetime for this duty. The only one who suffered any financial loss, therefore, was Barnes who, of course, received no pay for any time that he was not on duty. On the basis of the evidence in this record, it is my con- clusion that, under normal ; circumstances at the Leeds plant, Barnes' tardy arrival would have brought a reprimand, but in the absence of any other factors, would never have resulted in summary dismissal. In Barnes' case, however, there was another factor, namely, his having secured permission to be off from 3 to 6 p.m., allegedly to take care of his personal financial problems when, in fact, he planned to use that time for union activity. It is this which the Employer has characterized as having asked for time off "on false pre- tenses." No evidence was presented, however, to establish that Barnes had used the time to betray the Employer's trade secrets to a competitor, to libel or slander the Employer, or to engage in any illegal activity. Indeed, the only activity in which Barnes planned to engage was that which the Act guarantees an employee shall'be free to engage in without interference, restraint, or coercion from his employer. 11 Cf., N.L R.B. C. & J. Camp, Inc., et al, d/b/a Kibler-Camp Phosphate Enterprise, 216 F. 2d 113, 115 (C.A. 5),, where the court held that a justifiable cause for discharge cannot shield discrimination in employment shown to have been unlawfully motivated. LEEDS PACKING COMPANY 763 Insofar as Barnes failed to disclose to his foreman that the real reason for seeking time off was to participate in union organizational activities, he was adopting a course which most employees, under similar circumstances, would follow. It is-my conclusion that if Barnes had not engaged in any union activity from 3 to 6 p.m. on November 21, his tardy return to work later that day would have passed with no more than minor disciplinary action. With full knowledge, however, that he had been in the company of the union representatives during that period, Plant Manager Russell ordered Superintendent Huey and Foreman Byers to conduct an intensive investigation as to what Barnes would tell them he had done and whom he had seen the day before. When the employee adhered to his claim that he requested time off to solve his personal financial problems, Huey and Byers directed their interrogation to his association with union representatives Rairy and Vincent in a manner that has already been found to be violative of Section 8 (a) (1). After their first interro- gation of the employee on the morning of November 22, Russell ordered these two supervisors to resume their questioning of Barnes that afternoon and secure a written explanation from him. Russell testified that when this was accomplished and Barnes still clung to his original story, he decided that the employee should be discharged for having requested time off on false pretenses. Russell admittedly knew of the organizational campaign which the Packinghouse Workers had initiated at the Leeds plant. Over a month before he had told the employees that they had no need of a union to represent them. In his testimony at the hearing the plant manager equated Barnes' refusal to disclose the real reason why he sought time off with a degree of dishonesty which the Employer could not condone. In this respect, the testimony of Russell was unconvincing. In the light of facts found above, it is clear that "the basic interests which respondent seeks to protect" are not its right to have employees who disclose fully their off-time activities, "but rather its interest in having the em- ployees remain nonmembers of the Union." N.L.R B. v. Illinois Tool Works, 153 F. 2d 811, 816 (C.A. 7). On November 21, Barnes, along with representatives of the Packinghouse Workers, appeared at a meeting of the Respondent Employer's officials and requested recogni- tion of the Union at the Leeds plant. Thereafter, he was summarily discharged after Plant Manager Russell had the plant superintendent and Barnes' foreman carry out an unprecedented investigation as to precisely what the employee had done on No- vember 21, notwithstanding the fact that all the while Russell was well aware of where Barnes had been and what he had done. In view of the facts found above, it is my conclusion that the moving cause for Barnes' abrupt termination was his union activities, and that, in carrying out this course of action, the Respondent Employer violated Section 8(a)(3) and (1) of the Act. Case No. 10-CA-5571 With respect to the above-numbered case, the complaint alleged that: (1) James A. Davis is, and has been at all times material, an agent of the Respondent Com- pany; (2) Respondent Company, by its agent, Davis, on or about November 30 and December 1, 1963, initiated, sponsored, and circulated an antiunion petition among ,its employees in or about the vicinity of Respondent Company's plant and at the homes of Respondent Company's employees; and (3) the acts of Davis constitute unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. The pleadings disclose that James A. Davis was served with a copy of the charge, a copy of the order consolidating Case No. 10-CA-5571 with Case No. 10-CA-5560, the complaint in the consolidated case, and the notice of hearing. Davis, however, filed no answer,' did not appear at the hearing, and at no time in this proceeding has had any representative speak on his behalf. Counsel for the Respondent Company expressly disavowed any authority to represent Davis. The General Counsel moved for a summary judgment as to the allegations in Case No. 10-CA-5571, set out above. This motion is opposed by the Respondent Employer. Section 102.20 of the Board's Rules and Regulations, Series 8, as amended, provides: The respondent shall, within 10 days from the service of the complaint, file an answer thereto. . . . All allegations in the complaint, if no answer is filed . . . shall be deemed to be admitted to be true and shall be so found by the Board, unless good cause to the contrary is shown. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of the foregoing provision, the motion of the General Counsel, under normal circumstances, would have merit and should be granted. Liquid Carbonic Corporation, 116 NLRB 795, 797; County Electric Co., Inc., et al., 1-16 NLRB 1080, 1087; Verve Records, Inc., 127 NLRB 1045, 1049. This, however, is not the ordinary case where, after service upon the Respondent of the complaint and notice of hearing, no answer is filed and no appearance entered. Prior to the issuance of the complaint herein, the Regional Director consolidated Case No. 10-CA-5560 with Case No. 10-CA-5571 and issued a consolidated com- plaint, paragraph 9 of which reads as follows: Respondent Company, by its agent, Respondent Davis, and by its supervisor and agent, Cut-and-Kill Department Foreman Chester Graham, on or about November 30 and December 1, 1963, initiated, sponsored and circulated, an antiunion petition among its employees in or about the vicinity of Respondent Company's plant and at the homes of Respondent Company's employees. The only other allegation in the consolidated complaint with respect to Davis appears in paragraph 13, which reads as follows: The acts of Respondent Davis alleged'in paragraph 9 above constitute unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. The General Counsel offered no proof in support of the allegations in paragraph 9 and consented to a dismissal of so much of that paragraph as dealt with Foreman Chester Graham. Now, if granted, the motion for summary judgment would hold Davis individually and as an agent of Lumberjack Meats responsible for the alleged unfair labor practices. Davis' failure to plead, however, cannot be held to establish an agency relationship with the Respondent Employer, for this cannot be established solely on the basis of admissions by the alleged agent. Bell v. Swift & Company, 283 F. 2d 407, 409 (C.A. 5). Moreover, since the Regional Director ordered the consolidation of this case, with Case No. 10-CA-5560 and the General Counsel at no time during the hearing; or thereafter, moved to sever, the allegations in Case No. 10-CA-5571 are not to, be considered in a vacuum. At-the hearing the General Counsel offered,no evidence•to establish that Davis was any agent of the Respondent Employer and the latter denied that any such agency existed. Consequently, there can be no imputation now that the Respondent Employer was- responsible for any of Davis' activities. At the hearing no evidence was offered as to Davis' identity. In its brief, wherein the Respondent Employer sets forth its opposition to the General Counsel's motion, Davis is described as an employee at the Leeds plant. As an individual employee, and without the capacity of an agent, Davis would be free to refrain from union activity and to circulate antiunion petitions if he so desired. Only if he acted as an agent of the Respondent Employer could this latter type of conduct come within the prohibitions of the Act. Since, in the consolidated case, there was a complete failure of any proof as to such an agency relationship, it is my conclusion that the aforesaid motion for a summary judgment must be, and it hereby- is, denied,.and that the motion of the Respondent Employer to dismiss all allegations in the complaint with respect to Davis should be, and it hereby is, granted.12 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Employer set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY - Having found that the Respondent Employer has engaged in certain unfair labor practices, I will recommend ithat the Respondent be ordered to cease and desist there- from and take certain affirmative action of the type below, which is necessary to 2In view of this disposition of the motion for a summary judgment, -I conclude that it is unnecessary to consider any questions as to. (1) the type of remedial order that could be entered against the Respondent Davis; (2) where, if at all, Davis couldbe ordered to post the conventional cease-and-desist notice; and (3) whether, even if a violation of the Act is found, a remedial order is warranted. Cf. International Woodworkers of America, AFL-CIO (Central Veneer, Incorporated), 131 NLRB 189, 190; Canton Carp's, Inc., 130 NLRB 1451, 1452 LEEDS PACKING COMPANY 765 remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. For the reasons set forth in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, a broad cease-and-desist order will be recommended. Having found that the Respondent Employer discriminatorily discharged Elvis J. Barnes on November 25, 1963, I will recommend that the Respondent Employer offer Barnes immediate and full reinstatement to his former or substantially equiva- lent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date of discharge to the date of the Employer's offer of reinstatement. Backpay will be computed in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, with interest as directed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. The,Respondent Employer is engaged in commerce -and the Union is a labor organization, all within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of employment of Elvis J. Barnes, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices. within the meaning of Section 8(a)(3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent Employer has engaged ) in and is engaging in unfair labor practices within the meaning of Section 8 (a)( 1 of the Act. 4. The allegations in paragraphs 9 and 13 of the complaint should be dismissed. RECOMMENDED ORDER Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, it is hereby ordered that the Respondent, Lumberjack Meats, Inc., d/b/a Leeds Packing Company,- its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in any labor organization of its employees by dis- criminating in regard to their hire, tenure, or any other terms or conditions of employment. (b) Interrogating employees concerning union affiliation or activities in a manner constituting interference, restraint, or coercion, in violation of Section 8(a)(1). (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist United Packinghouse, Food and Allied Workers, AFL-CIO, or any labor organization to bargain collectively through representatives of their own choosing, to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Offer to Elvis J. Barnes immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner set forth in the section of this Decision 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 amount of backpay due. ,(c) Post at' its plants in Leeds, Alabama, copies of the attached notice marked "Appendix." 13 Copies of such notice, to be furnished by the Regional Director for Region 10, shall, after being duly signed by an authorized representative of the afore- said Respondent, 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 '3 If this Recommended Order Is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" In the notice If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order". 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 10, in writing, within 20 days from the receipt of this Decision, as to what steps the Respondent has taken to comply herewith.14 If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 10, in writing, within 10 days from the date of this Order, as to what steps the Respondent has taken to comply herewith." 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, we hereby notify our employees that: WE WILL NOT discourage membership in United Packinghouse, Food and Allied Workers, AFL-CIO, or in any other labor organization of our employees, by discriminating in regard to hire, tenure of employment, or any term or condi- tion of employment of any of our employees. WE WILL offer to Elvis J. Barnes immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination against him. WE WILL NOT interrogate our employees concerning their union activities in a manner constituting interference, restraint, or coercion in violation of Sec- tion 8(a)(1) of 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 join or assist the aforesaid Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to re- frain from any or all such activities. LUMBERJACK MEATS, INC., D/B/A LEEDS PACKING COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE.-In the event the above-named employee is presently serving in the Armed Forces of the United States, we will notify him of his right to full reinstatement upon application 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. 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, 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone No. Trinity 6-3311, Extension 5357, if they have any question concerning this notice or compliance with its provisions. Moon Corrugated Container Corporation and Paper Products and Miscellaneous Chauffeurs, Warehousemen and Helpers, Local 27, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 2-CA-10022. December 31, 1964 DECISION AND ORDER On October 15, 1964, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that the Respond- 150 NLRB No. 71.