Samuels & Co., Inc.

SAMUELS & COMPANY, IN, C. 465 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. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board 's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone Cap- itol 8-4722. Samuels & Company, Inc. and United Packinghouse, Food and Allied Workers, AFL-CIO. Case 16-CF1-.482. August 10, 1966 DECISION AND ORDER On April 26, 1966, Trial Examiner Thomas A. Ricci 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 Exiunni- er's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision 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 [\[embers Fanning, 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 Trial Examiner's Decision , the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner, as modified herein. [The Board adopted the Trial Examiner's Recommended Order with the following 2 modifications: [l. Reletter paragraphs 2(b) through 2(d) as paragraphs 2(c) tlirougli 2(e) and insert the following new paragraph 2(b) (h) Notify any of the above-named employees presently serving in the Arnied Forces of the United States of their right to full rein- statenient upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces."] i We correct the Trial Examiner 's inadvertent reference to employee Standberry instead of employee Newton in the seventh line from the bottom of page 470, by substituting "Nea ton ' for "Standberry" therein 2 The address and telephone number for Region 16 , appearing at the bottom of the notice attached to the Trial Examiner's Decision, is amended to read S19 Taylor Street, Fort Worth, Texas, Telephone 335-4211, Extension 2145. 160 NLRB No. 38. 2d 7-551-67-vol. 160-31 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A hearing in the above entitled proceeding was held before Trial Examiner Thomas A. Ricci, on February 23 and 24, 1966 , at Mt. Pleasant , Texas, on com- plaint of the General Counsel against Samuels & Company , Inc., herein called the Respondent or the Company . The issues litigated are whether the Respondent vio- lated Section 8 (a)(3) and ( 1) of the Act. Briefs were filed by the Respondent and the General Counsel after the close of the hearing. Upon the entire record, and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Samuels & Company, Inc., a Texas corporation , maintains plants in various cities in the State of Texas, in which it is engaged in the business of meat packing and processing . During the past year , a representative period, it purchased , transferred, and delivered to its plants located in the State of Texas products and materials valued in excess of $50 ,000, which were transported to said plants directly from suppliers located in States other than Texas. During the same period the Company processed, sold, and shipped products and materials valued in excess of $50,000 from said plants directly to points outside the State of Texas. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED United Packinghouse, Food and Allied Workers, AFL-CIO, herein called a Union, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES Undisputed Facts- The Issues Presented During the last week of May 1965, the Union instituted an organizational cam- paign among the approximately 50 rank-and-file employees of the Respondent's Mt. Pleasant, Texas, meat processing plant, the only one of its locations involved in this proceeding. Organizers distributed union leaflets across the street from the entrance on Wednesday and Friday ; Sam Richmond, the kill room foreman over perhaps 35 of the employees , went out to accept a leaflet for himself. The union agent also distributed a one -page schedule of hourly rates taken from its current contract with Armour and Company, reflecting a higher scale generally than the wages paid by the Respondent here. Friday evening the overall plant manager, Tommy Joyner, telephoned the Company 's main office in Dallas to report the development and the next morning , May 29, about 9 a.m. called employees together to discuss the ques- tion of the Union with them . For this purpose the Company assembled both the employees at work that Saturday and others whom it called for that purpose from their homes. There is a dispute in testimony on whether the manager then told the employees that Sam Rosenthal , the company president , would "pull the switch" and close the plant before permitting a union to represent the employees , but it is clear one purpose of the meeting was to urge the employees not to join. The following Wednesday, June 2, when all employees arrived for work, another meeting was held on the dock in the rear of the plant, lasting well over an hour. As to this Foreman Richmond testified that it was the men who insisted upon having the meeting, while a number of employees , later discharged , said the foreman blew the whistle and himself called the employees to the back . In any event, there was much talk of employees wanting raises , references were made to the higher rate set out in the Union's leaflet, a number of individuals spoke up to request increases for themselves , and there was discussion about the advisability or disadvantage in join- ing a union toward these ends. A number of employees spoke in favor of the Union; one or two said they were against it. Again some employees quoted Foreman Rich- mond as threatening plant closure in retaliation , while he denied it. Richmond did say he could do nothing in the absence of the plant manager, and the men went to work after 8 o'clock. SAMUELS & COMPANY, INC. 467 Later that morning, at 9 or 10 o'clock, Richmond blew the whistle , a signal for all to cease work and gather around to hear him, and announced, Manager Joyner wished to speak to them. Now the manager spoke of the higher wages suggested in the union leaflet and called them outrageous . He explained , however, that he was disposed to help them earn more money provided the employees would be fair in their demands. He said he would have Richmond canvass each of them individually to ask what each man believed to be a proper. raise for himself, that the foreman would write all this down, that he, Joyner, would then consider the demands and let them know what he would do. Once again several employees testified Joyner too reminded them that the president of the Company would pull the switch and close the plant if they persisted in joining a union , while others said they did not hear this; Joyner himself denied it. When the men were back at their work stations , Richmond spoke to each sepa- rately and made a note of the raise each man wanted. Some asked for 10 cents an hour, some more; one man , Fuller, wanted 35 cents, seemingly the most any of them demanded . Richmond brought his list of numbers to Joyner's office. A little later, still before the noon hour, he returned to the kill floor to report . The witnesses did not agree, at the hearing, on what he then did. Some said he gathered every- body to him in the center of the floor and read aloud the individual raises he could grant and those he could not. Richmond insisted all he did was stand in the middle of the kill floor and "hollered " the whole thing was "outrageous ." He denied having agreed to give anybody a raise. At noon that day-12 o'clock quitting time according to Foreman Richmond, 12.30 returning time according to the employees-the Respondent discharged six workmen. Three were returned to work within a month ; the other three-Billy G. Glover, Billy.H . Glover, and Richard L. Brewer-later filed charges through the Union and now contend they were dismissed because of their union activities. The next day George Hines, another regular employee , was also discharged , and the complaint alleges that he too was dismissed in retaliation for his expressed prounion sentiments. Normal operations of this plant call for processing 170 head of cattle during the 5-hour morning schedule of 7 a m. to 12 o 'clock On June 2, when these various meetings and discussions took place , only 92 head were butchered . The Respondent denies that union activities had anything to do with the discharges . Affirmatively it says the dismissal of all seven of the men released on June 2 and 3 was a disci- plinary action in consequence of a deliberate slow down of operations by the employees, and that these particular persons were the responsible ones. There is also the assertion that the morning meeting-when the entire complement spent over an hour in discussion with the foreman-was forced upon Richmond by the employees themselves , that they had simply refused to work . While not literally labeling the discharges as resulting also from this alleged conduct, the Respondent merges the two offenses-refusal to start work on time with indifference to produc- tion later-into a single cause for dismissal. The conflicting oral testimony gives rise essentially to two truly significant ques- tions of fact : ( 1) whether it was the men who insisted that there be a meeting early in the morning of June 2, even refusing to work until it took place, or Fore- man Richmond himself called it, and (2) whether Richmond and Manager Joyner did say, during the various meetings, that the Company would close the plant before dealing with any union . The third subsidiary question-whether the men worked at the normal pace during those periods when the line was moving, or just talked instead of working-is in part dependent on the first, which includes how long the meetings took, and therefore how much time the discussion with manage- ment cut into working hours. As the very credibility questions involve allegedly anti- union statements and activities on the part of management, certain other of its conduct, as to which there is no dispute, must first be clarified . The positive steps the Company concededly took to put a stop to the Union's organizational campaign bear intimately upon the credibility of its agents and shed a revealing light upon the principal issue to be decided. Analysis, Resolution of Credibility and Conclusions Manager Joyner said that immediately upon learning of the distribution of leaflets and authorization cards by the union agents in front of the plant, he telephoned his superiors in Dallas and spoke to a Mr. Wood, vice piesident in charge of "security." 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Late that afternoon, according to the testimony of employee Richard Brewer, Foreman Richmond, who had stepped out to take a union leaflet from the orga- nizer, called Brewer to the front loading dock where Joyner was talking to a group of four or five workmen. Joyner said, as Brewer testified, "there was a gentleman outside passing out-distributing literature and cards and if you receive one of these cards to disregard it because if you took this card and signed it, or mailed it, you automatically joined the Union . . . the Union was a bunch of hogwash, just a bunch of guys sitting on their behinds and you pay 'em the fees and there wasn't going to be a Union. And Mr. Rosenthal was not going to have a Union at the plant." Early the next morning the manager had Foreman Richmond round up employees from their homes to come to the plant. Richmond and Joyner tried to create the impression that this involved only the employees in the limited Saturday shift plus whoever chanced to be nearby. One employee said Richmond went to his home to call him, and asked him to spread the word among others who were off duty. I believe this employee, for Richmond admitted "I went around and got the address-I got all the home addresses ...." He also said Joyner talked 15 or 20 minutes and Dees, the maintenance foreman about 10. For a half hour, therefore, the employees listened and those on the clock were paid. According to Joyner all he told the men was that signing a card automatically placed them in the Union and they would be precluded from dealing directly with the Company anymore. He also told them, he said, " . . . all the Union is after is dues and they got men that made $100,000.00 a year and that's all they want, people like Hoffa up there, and kept implying if you sign that card be darned sure you know what you're doing." Dees then took over, and, according to Richmond's testimony: "He told the fellows that the men that work in maintenance work, that if they had a union they couldn't work maintenance work, that's all." With this, I must credit B. G. Glover, and his brother, who testified that Joyner told the men . of they had [organizational cards] to tear them up, don't sign 'em, throw 'em in the trash.. ..." One employee, Finns Fox, a witness for the Company, said that Joyner also told the men "something about they would get more money, or something . . . he said something about he'd be fair with the boys out there." A company policy of intense opposition to self-organization is thus clearly established from the beginning. Moreover, telling this group that joining a union meant no more maintenance work was a direct threat of loss of employment, for there were some present then doing such work who functioned fulltime during the week in the kill or processing department. That threat by Foreman Dees, in the presence of the highest company authority in the plant, constituted illegal coercion upon the employees and, I find, an unfair labor practice in violation of Section 8(a) (1) of the Act. And in the context of Joyner's clear urging that the employees not join the Union, the promise of "more money" was an offer of financial reward for cooperation, and a further violation of the statute chargeable to the Respondent. The first meeting the following Wednesday morning lasted at least an hour and a quarter; Richmond was present, Joyner was not. Holding in abeyance for the moment many other things that were said, it is clear that the Union was the princi- pal subject of discussion. Richmond himself recalled that employees Hines, Richie, and Brewer spoke out in favor. Much of the talk was about the employee's desire for raises, and Richmond told them he could do nothing but must wait for the manager to arrive. Again, however, there is no question but that at the least the foreman spoke forcefully to dissuade the group from any mass resolve toward self- organization. "I told them that I went to Calhoun and worked at Calhoun at the time they were having trouble with the Union, and I went through when the boys were on strike. . . I told them after the strike ended and the Union was voted out the employees didn't come back to work." He said he also called Willie Goodloe to relate his experiences at the Calhoun plant, and Goodloe did so. That the senti- ment in favor of raises was intertwined in the minds of the employees with the thought of acting toward that end through the Union, and that the Company under- stood this fact, is absolutely clear. An hour or two later Richmond blew the whistle and gathered all of the employ- ees to hear Joyner. The General Counsel's witnesses testified that Joyner spoke very decidedly and directly about the Union, but Richmond insisted the manager never mentioned it at all, and in his own testimony Joyner was silent about it. That matter apart for the time being, it is not disputed that everyone talked of raises, of individual demands, and of the Company's position on the subject. According to Joyner, he said: "Now, boys, they passed this rate sheet out and its just outrageous, SAMUELS & COMPANY, INC. 469 but I'll do whatever I can for you. I will try to get you all a raise. . . . Now, what I will do, I will let Sam Richmond go around, while you're working, and you write down what you want and I will look it over and I will talk to Dallas and see what they will do about it." The rate sheet that he referred to is the union leaflet listing the Armour and Company contract wages, received in evidence, and it is promi- nently stenciled across the face: "U. P. W. A. AFL-CIO-District 5 office." Joyner even agreed to one raise then and there. Fuller, a witness for the Respondent, testi- fied that he was one of those who spoke out to demand a raise that moment, and that Joyner " . . . said, `You're going to get yours.' Just like that." Newton, another employee witness called by the Company, also said that he reminded Joyner he had been promised a raise, and that Joyner answered "I would get it, and that those who were eligible for raises would get it." Threat or no threat, certainly Joyner was combating the union propaganda at that moment by attempting to buy off the employees with a lesser raise than might be forced upon the Company should there be established a collective-bargaining representative. This was direct individual dealing with the employees for the express purpose of dissuading them from self-organizational activities. By this time the policy of discouraging union activities had progressed beyond the argument stage to bribery. That such conduct interferes with the employees' rights guaranteed by Section 7 of the Act, and illegally restrains and coerces them, is long established. I find that by dealing directly with the employees, in the face of their self- organizational campaign, and for the purpose of persuading them to abandon the Union, the Respondent violated Section 8(a)(1) of the statute. It is against this background of unquestionable determination to put a stop to the union campaign that the conflicts in testimony between Richmond and Joyner, on the one hand, and a number of employees on the other must be considered. Brewer and B. G. Glover testified that at the Saturday morning meeting Joyner said the Company would close the plant before having a union; Brewer added Joyner quoted Sam Rosenthal, the company president, as saying he would "pull the switch." Hines testified that in relating his experience at the plant called Calhoun, in Pales- tine, Texas, Richmond told the men "that plant had tried to go union and they fired and replaced the guys." As to the early Wednesday meeting, Brewer testified that among other things Richmond said: . that Mr. Rosenthal was not going to have a Union and that for the benefit of all of us we might as well forget about this Union, because it was not going to be a union, and that Mr. Rosenthal would pull the switch and close the gate." Hines gave similar testimony as to that meeting. "He [Richmond] said that Mr. Sam said before he'd have a union he'd pull the big switch and close the gate." Glover also recalled the talk about the Calhoun plant in Palestine. He related how Richmond called on Willie Goodloe to tell the story, and that Goodloe then said: " . . . it was eight or ten of the guys tried to vote in a union down there and they was fired and they hired new men and there they was without a job." This was followed by the foreman saying, still according to Glover, " . .. that was what was going to happen up there, he was going to fire him-fire the ones and then turn around and hire him a new crew." Coming to the mid-morning meeting where the manager said he would try to get the men raises if they limited themselves to what is "fair," there is Brewer's testimony that Joyner started by saying " . .. what was all of this crap about the Union. . . Mr. Rosenthal was not going to have a union and that was final and as far as this talk about the Union, we might as well forget about it. He also stated that they could get plenty of men and that if you wanted the job just forget about this Union." Hines testified that during his remarks Joyner said: . Mr. Rosen- thal said that before there'd be a union he'd pull the big switch and close the gate." Both Richmond and Joyner denied ever having told the employees, at any meet- ing, that the plant would close or the switch be pulled, or that President Rosenthal had said anything at all on that subject. They denied threats of any kind. In cor- roboration the Respondent called four employees; the first two, Standberry and Fox, said they heard no such statements. Fox added he remembered very little about what was said outside the plant in the morning because he was not interested and stood apart. Fox did recall Richmond saying: "Well, anybody want to quit, well, they can quit 'cause I can get some more men." And Newton, after saying he did not remember anybody quoting Rosenthal about pulling the switch or closing the gate, then added, "but I did hear that . I heard it that morning . . ." The fourth company witness, Fuller, ended by virtually corroborating the Government 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees . He, was present and outspoken at both meetings Wednesday. First he denied having heard either 'Richmond or Joyner say these things, and then added: "I had heard it said . .. I don't know exactly, it was just talk between the boys, the man said if you signed them cards they'd close the plant down, you know." - In the light of all relevant considerations , and on the basis of the demeanor of the witnesses, I credit the employees who said they heard both Foreman Richmond and Manager Joyner say the plant would be closed if they persisted in joining the Union. The Company's opposition to the Union is clear. Its agents resorted to illegal measures-the promise and grant of immediate raises are inducement-to prevail upon employees not to sign the authorization cards. Moreover, there is uncontra- dicted testimony by B. G. Glover that 8 months before these events in the Mt. Pleasant plant, and when a union was attempting to organize the Respondent's Dallas plant, Rosenthal, the president, visited here to exhort the employees not to become involved in a like program, and said to them then ". . . he wouldn't have a union , he would close the plant up first. He'd pull the switch up, 'cause his living was already made and he didn't have to open the plant." And more persuasive, is the tangential admission of Newton, that he did hear of the threat that morning, and the direct testimony of Fuller, who quoted "the man" practically in the very words of the Government witnesses. As will appear below, Fuller was making an effort to assist the Respondent's cause at the hearing, and its counsel necessarily offered him to be believed. I find that by Foreman Richmond's and Manager Joyner's repeated statement to the assembled employees that the Company would close the plant if they adhered to the Union and signed its authorization cards, and by Richmond' s statement to them Wednesday morning that the men would be released and others hired in their place, the Respondent unlawfully coerced its employees in the right to self-organization, and violated Section 8 (a) (1) of the Act. Each of the seven men discharged on June 2 and 3 spoke in favor of the Union to Richmond and Joyner in the Wednesday meetings. With four of them-the ones now named in the complaint-constituting a good portion of the witnesses at the hearing, the possibility arises they might only appear as, but not necessarily have been, the only ones to speak out so, or even especially noticeable in that class. The doubt is largely dispelled by the testimony of Richmond himself, who was present at all meetings and who kept repeating their names throughout his story as the par- ticular ones who did not hold back either in asking for raises or favoring the Union. In any event, the evidence shows clearly that by noon on June 2 the Company knew that Brewer, the two Glover brothers, and Hines wished to bring the Union into the plant. The first three were discharged at noon without advance notice; Hines the next day also without warning. The assertion that all four of the discharges were caused by the men's deliberate slowdown in work and- their insistence upon the early- Wednesday morning meeting rests primarily upon the testimony of Richmond him- self, who said he alone decided to discharge them and cleared with Joyner before doing so. Joyner said only that Richmond gave him the names of the "slow ones," and that after checking with the Dallas office, he approved the discharges. Why he had to obtain approval from Dallas when President Rosenthal was in the plant- Rosenthal only comes to Mt. Pleasant four or five times a year but had reached there that day by 11 a.m.-Joyner did not explain. Appraising Richmond's testimony in its totality, and in view of all other facts of records, he cannot be credited against the contrary testimony of the employees. The intimidating statements set out above cast the first cloud on his story. There are other infirmaties in his testimony. He stated flatly and repeatedly that when Joyner said each employee should tell Richmond how much of a raise each demanded, the manager said nothing at all about what he would do with such information, nor promised to give their requests any consideration. Such insistence is manifestly false, for there could be no logical reason for canvassing the employees unless it were to weigh their demands and to return some coherent response. Richmond at that point gave the lie directly to his own superior, for Joyner made it a point to stress his promise to the employees to be fair and to increase their pay if he could. Richmond unequivocally said he promised no one a raise that day. But this too conflicts with the admissions of the Company's own witnesses, Standberry and Fuller, each of whom said they were told by Joyner during the morning that their wage demands were being granted. Brewer and the two Glover boys explained directly and consistently how they had returned from lunch and were about to start work at 12:30 when the foreman called them with six timecards in his hand and discharged six men. Testifying after them, Richmond stated precisely that he told the men they were being released at "five minutes to 12.00." Then came Joyner as SAMUELS & COMPANY, INC. 471 a witness and said they were discharged "between 12 and 12:30," strong indication that the decision to act was reached during the lunch hour and carried out when the men returned, as they related. The men arrived well before 7 a.m. each day; they prepared tools and clothing and some gathered in the locker room for special shoes and things. A number were sitting there on June 2 waiting for starting time, and in their general talk some spoke of the Union and possible rates. More than one said he was not going to let such rates go by but would "do something about it." Here there were employees who had not been present at the Saturday morning meeting, where the Respondent had threatened to close the plant if the men signed authorization cards. Such talk therefore of "doing something" appears as the reaction to the intimidation of 2 days before, and could as well reflect an intention to persist in the union campaign, as any other purpose. Richmond went down to the locker room to call the two knockers, Crowder and Fuller, to start work. The knockers are the men who kill the cattle at the door at the plant and start the entire operation. The rest of the kill room complement work staggered locations along a moving line performing sequential operations in cleaning and separating the animal parts. From start to finish the operation requires 15 or 20 minutes on one steer. Richmond testified that when he entered the locker room there were 15 or 20 men there and "some of the employees, they weren't going to kill a cow until they had a meeting," and he named Hines, B. G. Glover and Richie, and "one or two men," as having taken this attitude. Richmond also said that he was there "prac- tically not hardly a minute, just in and out," that he paid little attention to what they were saying, but that he did hear they "were going to have a meeting and . . were not going to let this money get by." From there, he said, everybody just walked through the kill floor to the dock behind the plant. In a short while everybody was standing around on the dock. There is confusion in the testimony of the employees as to exactly how all of this came about. The Glovers, Hines, and Brewer said Richmond blew the whistle, and three of them recalled the foreman saying that there would be a meeting. Stand- berry, Fox, and Fuller did not hear any whistle. Some employees said they had already started work before leaving their posts, but it is clear that one or two had only done preparatory work, and not real processing of meat. Others said no work at all was done before the meeting. With Fuller, the knocker, saying directly he had killed no cows, it would appear that no real work had been performed. None of the employee witnesses corroborated Richmond's insistence that the employees had demanded a meeting on a "no meeting-no work" basis. The only evidence conceivably supporting him is that two recalled talk in the dressing room: of "doing something" about obtaining the higher rates promised in the Union's Armour and Company leaflet. The only explanation appearing in the record for this phrase is one man's statement that it meant adhering to the resolve to sign the union cards. One man testified squarely that he refused outright to do any more work that day until he received a raise. This was Fuller, the knocker, but he made clear he only spoke thus after the dock meeting had started and in the middle of the discussion. He testified that after Richmond said "Let's go back to work," he, Fuller, . . said, `Well, I'm not killing another cow until you give me a raise.' Just like that." Fuller also testified he heard no one else make such a statement. Fuller was the Respondent's witness and such arrogant language, if in fact he ever uttered it, must be considered in ielation to Richmond's further assertion that he selected offenders who refused to work properly for discipline only a few hours after that meeting. To the extent that there is any definitive proof that anyone refused to work at all, it is Fuller's professed admission set out here, No one could work on the production line so long as he refused, for his was the initial operation. Richmond said neither Fuller nor Crowder, the other knocker, were "knocking cattle" that morning, and also that neither "had anything to say" about the Union. These men were neither discharged nor disciplined. I do not believe Fuller ever spoke that way to his superiors, and I do not believe this meeting was forced upon Richmond. He participated in it, called upon and encouraged others to speak "When I got out there I got on it [a pile of lumber]" and the men "were kind of around" him. " .. . I let him [Hines] talk and he just kept talking away on and I told him to let some of the other boys say something so they could go to work." "I said, `Has anybody else got anything to say.' " Brewer, B. H. Glover, and Hines testified that at one point Richmond handed a sheaf of papers to Willie Goodloe and asked him to read from them. According to 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD each of these three Richmond said it was "illegal" for him to read from them, and that therefore he would have Goodloe do so. The statements were explanations of the disadvantages and dangers of being represented by a union.' As Goodloe read, the foreman at times interrupted to explain what various things meant. The testi- mony of these three witnesses was corroborated by three of the employees called by the Respondent, Standberry, Fox, and Newton; each of whom testified that Goodloe was reading from certain papers. I believe these men, for Richmond admitted that after he had explained how union activities had resulted in the loss of jobs at Calhoun, where he had once worked, he called on Goodloe to speak. "I asked Willie if he had anything to say, just as I asked the rest of the boys." And Goodloe repeated the same Calhoun story. It is also significant that although most of the employees had already punched their timecards, and were therefore being paid, Richmond made no attempt to advise his superiors of what he now calls an extraordinary mass act of disobedi- ence. He had called Joyner at home by telephone in the past, and he could have done so then, something any foreman would normally do if in fact he were faced with perhaps 50 people refusing to work during paid time. He waited for Joyner to arrive instead. All this, coupled with the fact the Respondent was determined to dissuade the employees away from the Union, requires a conclusion that the meet- ing was called by the Company, whatever its reason may have been. The record as a whole also fails to support the affirmative assertion that when they were at work on the moving line the employees deliberately refused to work. Again the only evidence offered in proof is the conclusionary language of Rich- mond, that, the men "lagged," were "just talking," "just dragging," "mostly they were talking." And again the employee witnesses called by the Company failed to corroborate Richmond on this point also. One of the men, Standberry, said "they kind of slowed down," and Fox, who was discharged, said "he didn't think" he was slowing down. There was confusion in the plant. The cumulative time covered by the successive discussions initiated by the Company-at least 75 minutes outside on the dock, 15 or 20 minutes more when Joyner blew the whistle to ask for individual requests for raises, plus whatever time Richmond took from each man's work while circulating among all to check on their individual thoughts of proper wage raises- may well have totaled 2 hours. And if, while processing the meat, the men did some talking, it should not have been surprising to the managers, what with threats to close the plant and promises of raises ringing in their ears. With all this, the men still butchered 92 head of cattle, just about the number that are normally processed in 3 hours of work. I find that the Company has advanced the assertion of refusal to work at the start of the shift and deliberate slowdown in performance as a fabricated pretext to cover an underlying illegal motivation to curb the union campaign. I conclude that the Respondent discharged B. G. Glover, Billy H. Glover, and Richard Brewer for the purpose of discouraging their union activities and thereby violated Section 8(a) (3) of the Act. Hines was discharged at noon the following day. It will be remembered that Rosenthal, the president, had arrived in Mt. Pleasant on June 2. Hines testified, and Rosenthal was not called as a witness to contradict him, that during the break at 10 a.m., Foreman Richmond called the employees to the center so that Rosenthal could speak to them, and that among his remarks the president said: ". . . that he had always tried to be fair with us and he wanted us to be fair with him. He said we didn't need no middle man; and he said that there just wasn't going to be no union there." Hines went on to state that when Richmond discharged him he said: "Well, George, they got you, too . I want you to know one thing, I didn't have nothing to do with it, I'm sorry." From Richmond, Hines went to Joyner, and asked why the sudden discharge, was it "anything concerning .my job"; Joyner said "no," and when pressed for an explanation, said "there is none." Three or four days later Hines stood next to a union organizer who was distributing leaflets near the plant. Joyner approached the men and told Hines: "I heard about you passing out those union cards." Hines had visited employee Simmons the week before and given him an authorization card. Joyner offered no testimony regarding Hines' discharge. i B G. Glover remembered one of the items read off by Goodloe as a question and answer form. "'What happens when a company have a union , they get on strike and they get the wages so high that they couldn't pay 'eni?' And then it is said in the answer, 'the Com- pany goes bioke and they close the plant' " SAMUELS &• COMPANY, INC. 473 Richmond said that Hines "seemed to be mad" that morning and "started talk- ing," that he warned him to "stop bothering the men" or he would be "let go," and that he released him for this reason. Hines denied having worked slowly that day, or being warned by Richmond to "speed up." I credit his testimony. Most of it stands uncontradicted and Richmond, on the entire record, is not a credible witness. The clear pattern of company animosity toward the Union so directly revealed on June 2 continued into the next morning, pointedly reannounced by its president. Hines was among those who did not hesitate to speak in favor of the Union, and the entire affirmative defense of slowdown finds no substantive support in the evi- dence as a whole. On the basis of the entire record, and particularly Hines' testi- mony as to the June 3 and subsequent conversation with Manager Joyner, I con- clude that his discharge on that day was a further violation of Section 8(a)(3) of the Act, as alleged in the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set out in section II, above, occurring in connec- tion with the operations of the Respondent set out in section 1, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has committed certain unfair labor practices, I shall recommend that it be ordered to cease and desist from such conduct and to take certain affirmative action designed to dissipate its effect. The four men illegally discharged on June 2 and 3, 1963, have not been recalled to their work; they must be reinstated to their former or substantially equivalent position. The Respondent must also be ordered to make whole these employees for any loss of earnings they may have suffered in consequence of the illegal discrimination against them in their employment. Backpay shall be computed in accordance with the formula prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and the assessment of interest shall be computed in the manner prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2 of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Billy Gene Glover, Billy H. Glover, Richard L. Brewer, and George L. Hines the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct, by the supervisor's statement that production employees could not perform maintenance work, that they would be replaced, and that the plant would be closed and the president would pull the switch if the employees chose to be represented by a union, by promising and granting wage increases for the purpose of persuading employees not to join or assist a union, the Respondent has engaged in, and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The 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 Samuels and Company, Inc., Mt Pleasant, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees because of their exercise of the rights to self-organization or to join labor organizations. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (6) Telling production employees that, they could no longer perform mainte- Hance work, that they would be' replaced, that the plant would be closed, and that the president-of the Company would pull the switch if the employees chose to be represented by a union,, promising and granting wage increases for the purpose of persuading employees not to join or assist a union , or in any other manner inter- fering with, restraining, or coercing employees in the exercise of their right to self organization, to form labor organizations, to join 'or assist United Packinghouse, Food and Allied Workers, AFL-CIO, or any other labor organization, to bargain collectively through, representatives of their own choosing, and to' engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer Billy G. Glover, Billy H. Glover, Richard L. Brewer, and George L. Hines immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previ- ously enjoyed, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set out under "The Rem- edy" section of this Decision. (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 records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its plant in Mt. Pleasant, Texas, copies of the attached notice marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for Region 16, after being duly signed by the Respondent's representative, shall be posted by Respondent 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 16, in writing, within 20 days from the date of receipt of this Decision, what. steps the Respondent has taken to comply herewith.3 .21n the event that 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 3In. the event that this Recommended Order is adopted by the Board, this provision shall be modified to read • "Notify the Regional Director for Region 16, in writing, within 10 days from the date of this Order, 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, as amended , we hereby notify our employees that: WE WILL NOT discourage membership by any of our employees in United Packinghouse , Food and Allied Workers, AFL-CIO, or in any other labor organization, by discharging or otherwise discriminating against employees in regard to their hire or tenure of employment or any other terms or condition of employment. WE WILL offer Billy G. Glover, Billy H . Glover, Richard L. Brewer, and George L. Hines immediate and full reinstatement to their former or substan- tially equivalent position, without prejudice to their seniority or other rights and privileges previously enjoyed, and WE WILL make them whole for any loss of pay they may have suffered as a result of the discrimination against them, in the manner described in the Trial Examiner's Decision. CARPET LAYERS , LOCAL 1238 475 WE WILL NOT tell our employees that production workers will not be per- mitted to perform maintenance work, that they will be replaced, that the plant will be closed and that the president will pull the switch if they choose to be represented by a union, promise our employees raises or grant them wage increases for the purpose of persuading them not to join or assist a union, or in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all of such activities. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization. SAMUELS & COMPANY, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas 76102, Tele- phone 335-4211, Extension 2145. Carpet, Linoleum & Soft-Tile Layers Local 1238 and its agent, Robert T. Wolfe and Nielsen Bros., Inc. Case 19-CC-f73. Au- gust 10, 1966 DECISION AND ORDER On November 2, 1965, Trial Examiner David F. Doyle issued his Decision in the above-entitled proceeding, finding that the Respond- ent Union 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. Thereafter, the Respondent Union filed excep- tions to the Trial Examiner's Decision, with 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 [Members Fanning, Jenkins, and Zagoria]. 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 Trial Examiner's Decision, the exceptions and brief, and the entire record 160 NLRB No. 39.