Holly Farms Poultry Industries, Inc.

210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Holly Farms Poultry Industries, Inc. and Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO. Cases 5-CA-4469 and 5-CA-4525 October 31, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On July 6, 1970, Trial Examiner Robert Cohn issued his Decision in the above-entitled cases, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner'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 these cases to a three- member panel. 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 in these cases, and hereby adopts the findings,' conclusions, 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 adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Holly Farms Poultry Industries, Inc., Temperanceville, Virginia, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. ' Respondent's exceptions directed to the credibility resolution of the Trial Examiner are without merit . The Board will not overrule the Trial Examiner's resolutions as to credibility unless a clear preponderance of all relevant evidence convinces us that they are incorrect . On the entire record, such a conclusion is not warranted . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3). In adopting the Trial Examiner's finding that Respondent violated Section 8(a)(1) by photographing nonemployee organizers, we need not pass upon his conclusion that such conduct violates the Act even if not witnessed by employees . Instead, as we find no basis for disturbing the Trial Examiner's credibility resolution underlying his alternative finding that this incident occurred in the presence of employees, it is on this ground that we predicate our affirmance of the 8 (a)(1) violation. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT COHN, Trial Examiner: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended (herein the Act), was held on March 10, 1970, in Pocomoke City, Maryland, pursuant to due notice. One issue litigated was whether Holly Farms Poultry Industries, Inc. (herein the Respondent or Company) engaged in conduct to discourage membership in a labor organization when, on or about September 8, 1969,1 it terminated the employment of its employee, Clyde Scott. Also litigated were instances of conduct which allegedly interfered with, restrained, and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act.2 At the close of the hearing, counsel for the General Counsel made oral argument, and a posthearing brief was filed by counsel for the Respondent, all of which has been duly considered. Upon the entire record in the case, including my observation of the demeanor of the witnesses, and arguments of counsel, I make the following: FINDINGS AND CONCLUSIONS 1. JURISDICTION Respondent is a North Carolina corporation with plants and facilities located in the State of North Carolina and the Commonwealth of Virginia, where it is engaged in the processing of poultry and related products. Its plant at Temperanceville, Virginia, is the only facility involved in the instant proceeding. During an annual period, Respondent, in the course and conduct of its operations, sold and shipped products valued in excess of $50,000 from its Temperanceville, Virginia, plant directly to points located outside the Commonwealth of Virginia. Based upon the foregoing facts, which are admitted by Respondent, I find that Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Meat Cutters & Butcher Workmen of I All dates hereinafter refer to the calendar year 1969 unless otherwise specified. 2 Copies of the charge and amended charge filed in Case 5-CA-4469 on August I and September 15, respectively , were served on Respondent on or about August 4 and September 15, respectively . Copy of the charge filed in Case 5-CA-4525 on October 9, was served on Respondent on or about October 9. The order consolidating cases, amended complaint, and amended notice of hearing was issued by the General Counsel , through the Regional Director for Region 5, on November 6; Respondent's duly filed answer to the amended complaint generally admitted the jursidictional allegations of the complaint but denied the commission of any unfair labor practices. 186 NLRB No. 36 HOLLY FARMS POULTRY INDUSTRIES 211 North America, AFL-CIO (herein the Union), is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background As noted, the Respondent, at its Temperanceville plant, is engaged in the processing and sale of poultry. The plant opened in the spring of 1968, and employs approximately 600 production and maintenance workers. Although the record is somewhat vague on the subject, it appears that there has been some talk among employees concerning union organization since the inception of the plant. However, it was not until about May that an organizational drive was commenced by the Union which gave rise to the issues in the instant case. Counsel for the General Counsel presented evidence which, he asserts, shows that officials of the Respondent countered such organizational campaign with threats of economic reprisals against, interrogation about, and surveillance of such union activities, and finally discharged a prominent leader thereof all for the purpose of discouraging the drive. We now proceed to an evaluation of such evidence. B. Alleged Interference, Restraint, and Coercion3 1. By Plant Manager Blake Lovette Clyde Scott commenced working for the Respondent in March 1968, as a floorboy in the pinning room department. The principal functions of this department were the evisceration and cleaning of the chickens; Scott's primary responsibilities as floorboy were to adjust the machines and keep the floor clean. His immediate supervisor was Sylvester Annis. The record shows that Scott had been in favor of union representation in the plant since he commenced working there, and that his attitude in this regard had been communicated both to employees and to supervision, including Plant Manager Blake Lovette. However, Scott had not worked on behalf of the Union, i.e., passed out handbills or solicited union cards, until May. Indeed, because of an apparent personal animosity with the union leader in 1968 , he worked against the Union coming into the plant at that time. Scott testified as to three conversations he had with Lovette in latter July and August concerning the union campaign, which is alleged in the complaint to constitute coercive interrogation and creating an impression of surveillance of union meetings and activities in violation of 3 All evidence proffered by the General Counsel on this aspect of the case (except the allegation respecting alleged surveillance through photography) is supplied by the alleged discnminatee , Clyde Scott. In its beef, Respondent argues vigorously that Scott's testimony should be discredited in its entirety because of contradictions, improbabilities, and his obvious interest in the outcome of the proceeding. I have taken all of these contentions, along with the demeanor of this witness and those witnesses of Respondent who testified at variance with him, into consideration in making my ultimate findings herein , and, as will be observed, infra, I have discredited some aspects of his testimony and credited others As Judge Learned Hand once observed "It is no reason for refusing to accept everything that a witness says, because you do not believe all of it, nothing is more common in all kinds of Judicial decisions than to believe some and not all " (N L R B v Universal Camera the Act. The first conversation occurred while Scott was at work when Lovette approached and inquired concerning the health of his little boy. When Scott responded that he was all right, Lovette retorted that the next time Scott wanted to borrow money he should borrow from his union friends? When Scott inquired, "What union friends?", Lovette replied, "You know," and walked into Supervisor Ketterman's office. Scott followed him and attempted to assure Lovette that he (Scott) had attempted to stop the Union from coming in on the previous occasion and told Lovette that he was not for the Union. However, Lovette disagreed with him on that point and Scott left the room. The second conversation took place about 3 days later while Scott was washing the floor in the pinning room. Lovette came up and put his arm around Scott's shoulder and said that he had heard that Scott had been passing out handbills and that three people had brought him union cards that Scott had passed out to them. When Scott denied that he had been passing out union cards, Lovette walked away. The third conversation took place about 3 weeks later while Scott was at work. Lovette asked how the union meetings were going. When Scott feigned ignorance of such meetings, Lovette said the meetings "down at Luke's. ..."5 Scott denied that he was holding union meetings; whereupon, Lovette responded, "I should fire you right now, but I won't," and walked away. The foregoing statements attributed to Lovette were not denied by him nor by Ketterman to the extent that he was involved-and I credit Scott's testimony as to these incidents. Respondent's defense on this aspect of the case is bottomed principally on three contentions: (1) that there was no coercion involved in the remarks because of the friendship which existed between the two men; (2) that the remarks, even if made, do not legally constitute the creation of "an impression of surveillance of union activities"; and (3) if the remarks are capable of constituting coercion, they were not properly pleaded by the General Counsel. I do not agree with these contentions. First of all, the mere fact that friendship may exist between a supervisor and an employee does not, of course, negate the element of coercion.6 Each case must be analyzed on its own facts, and I note particularly as respects the instant situation that Lovette made no effort to reassure Scott that the answers to his inquiries would not result in any acts of recrimination by the Respondent.7 Also quite significant, in my view, is the fact that Scott felt sufficient fear to cause him to lie to Lovette concerning his Corporation, 179 F 2d 749, 754 (C A 2, 1950) ) 4 It appears that Scott had previously borrowed money from Lovette to help finance an appendectomy which was performed on his son. 5 The record shows that employees were, in fact, attending meetings with the union representative at a lounge called the Seaside Club, owned by one Luke Wharton, located several miles from the plant The Club was frequented by many employees of Respondent both as a place to imbibe alcoholic and nonalcoholic beverages as well as to play baseball in the summer months 6 See , e g., Juniata Packing Company, 182 NLRB No 140 (sec 4, Board's Decision) 7 See N L R B v Camco, Inc, 340 F 2d 803 (C A 5), Martin Sprocket & Gear Co v N L R B, 329 F 2d 417 (C A 5) 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activities. This factor has been considered to be indicative of restraint and coercion in the premises.8 As respects Respondent's second contention, as noted, I cannot accept Respondent's argument that Lovette's remarks did not constitute a creation of "impression of surveillance" as that term has evolved in labor law. In Hendrix Manufacturing Company, Inc. v. N.L.R.B.,9 Chief Judge Brown elucidated upon the meaning as follows: Surveillance becomes illegal because it indicates an employer's opposition to unionization, and the furtive nature of the snooping tends to demonstrate spectacu- larly the state of the employer's anxiety. From this the law reasons that when the employer either engages in surveillance or takes steps leading his employees to think it is going on, they are under the threat of economic coercion, retaliation, etc. Certainly the remarks of Lovette to Scott in the first and third conversations recited above can reasonably be said to indicate that he wanted to let the employee know that the employer had means of finding out-and was aware of-what was "going on" as respects the union activities of its employees. This satisfies, in my view, the test of an 8(a)(1) violation which is, as stated by the Board in American Freightways Company, Inc.,10 that the employer "engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act [citing cases]." Accordingly, I find that this allegation is legally sustainable by the proof. Finally, I find no merit in the Respondent's contention that the violation was not properly pleaded. While the allegations could have been articulated more clearly, the language of Chief Judge Murrah in J. C. Penney Co. v. N.L.R.B.,11 seems pertinent here: Courts as well as the National Labor Relations Board have held that a material issue which has been fairly tried by the parties should be decided by the Board regardless of whether it has been specifically pleaded [citing cases]." And, "...where evidence is received without objection, the pleadings are to be deemed amended [citing cases and Rule 15, F.R.C.P.]. 2. By Supervisor Jimmy Green During the summer of 1969, Jimmy Green was a line supervisor in the packing department and was also president of the Holly Farms Baseball Club, which played games on a baseball diamond adjacent to the Seaside Club.12 Scott was also an officer of the baseball club and was a friend of Jimmy Green. Scott testified that one Sunday in August while they were playing baseball, Green called him over and asked him why he did not "forget about the Union"-that Blake knew that he was passing out union cards. Scott replied that he was not going to forget about it, and that he was going to "keep right on passing them out." Green said, "okay." About 3 weeks later, according to Scott's testimony, he 8 N.L.R.B. v. Camco, supra; Bourne v . N.L.R.B., 332 F.2d 47, 48 (C.A. 2). was sitting inside the Seaside Club drinking a beer when Green came up and told him that there was a white man next to his department that knew that Scott was passing out union cards and that he was going to get fired for engaging in such conduct. Scott told Green that he would not get fired; whereupon Green stated that he could fire him which Scott denied. Green, who impressed me favorably as a witness, testified as follows as respects the two conversations: (1) Green was sitting on the hood of an automobile following a baseball game when Scott came to him and commenced talking about an ex-employee of the Company named Weldon Pitts, and about the Union.13 Green responded that he (Green) did not have anything to do with the Union and did not want to have anything to do with it. Green denied that he gave Scott any advice with respect to his union activities or that he said anything with respect to the possibility of Scott being fired. (2) As respects the second conversation inside the Seaside Club, Green testified that he was sitting with Scott, Luke Wharton, and the latter's wife when Scott commenced a conversation again respect- ing Weldon Pitts and in the course of such conversation asserted that "Blake couldn't come back there and fire me in my department." Green asserted that Blake could, in fact, fire him and that, indeed, if he (Green) caught Scott doing anything wrong, he could fire him also. Scott called him a "damn liar." Whereupon, Green, noticing that Scott had been drinking, stated that he could not talk with him and left. Green denied that the Union or Scott's passing out cards was mentioned in any way in connection with Green's authority to fire him or that Green said that he intended to fire him. Also, Green denied saying anything about a white man next to Scott's department having told Green anything about Scott's passing out cards. I am inclined to credit Green's denials, particularly in view of Green's assertion that Scott had been drinking on the latter occasion, which was admitted by Scott. Under all circumstances, I find a failure of proof of this allegation of the complaint and will recommend that it be dismissed. 3. By Al Powell The complaint alleges that "on or about September 24, 1969, Safety Director Al Powell engaged in surveillance by photographing union agents distributing literature as employees were leaving the plant...." In support of this allegation, Union Representatives Vernon Thomas and Bernard Hopkins testified that on one occasion in September when they were handbilling the plant Company Representative Powell came by and snapped their pictures during an afternoon as the employees were leaving work. Thomas testified that "every car that I walked up to, [he] clicked his camera." Powell conceded that he took pictures at the plant gate on one occasion in late summer pursuant to a request by Plant Manager Lovette solely for the identification of the union Respondent, although apparently many of the employees played on the team. 9 321 F.2d 100, at In. 7. 13 Weldon Pitts was named in the charge in Case 5-CA-4469 as having 10 124 NLRB 146, 147. been discriminatorily discharged on July 28; however, he was not named in 11 384 F.2d 479, 482-483 (C.A. 10, 1967). the complaint. 12 As noted, this baseball team was not in anywise sponsored by the HOLLY FARMS POULTRY INDUSTRIES 213 officials. He testified that he arrived at the plant gate at approximately 1:30 or 2 o'clock p.m. and stayed for only about 10 minutes at which time he took three pictures (Resp. Exh. 2(a), (b), and (c)).14 Bobby Reavis, a truckdriver for the Company, drove into the plant at approximately 1:45 or 2 o'clock that day for the purpose of picking up a truckload of chickens. He observed Powell and the union men as he approached the gate and stopped momentarily to talk with Powell. He then proceeded pass the gate into the plant and returned approximately 10 minutes later in his truck and, according to his testimony, Powell was no longer there. He stated that no company employees left the plant while he was there. In its brief, Respondent argues that no violation of Section 8(a)(1) occurred as regards this incident because, under its version of the evidence, no employees were present during the time of the picturetaking. It is contended (br., p. 23): Section 8(a)(1) of the Act speaks in terms of interfer- ence, restraint and coercion of employees, and it confers no special protection on professional union organizers except where that is incidentally necessary to the protection of employee rights. It follows that it is not a violation of Section 8(a)(1) to photograph union organizers so as to be able to recognize them later, at a time when no employees are present. I cannot agree with this argument since in the recent case of Simplex Time Recorder Co.,15 the Board affirmed a decision of Trial Examiner Samuel M. Singer who found a violation even though it did not appear that any photographs of rank-and-file employees were taken.16 The Trial Examiner quoted from the prior Board decision in Tennessee Packers Inc., 124 NLRB 1117, 1123: The taking of pictures by an employer . . . known to be adverse to the unionization of its employees .. . while [the employees are] engaged in union activities; to wit, receiving union literature from union organizers, necessarily has a normal and natural tendency to create fear and consternation in the ... employee that the employer is recording, for some present or future course of action involving him, an act of that employee's which that employee knows to be displeasing to the employer. Making such a pictorial record of union activities is like open surveillance in that the knowledge of its occur- rence among the employees necessarily tends to interfere [with], restrain, and coerce the employees into abandoning their rights to engage therein as guaranteed in Section 7 of the Act. Trial Examiner Singer noted that there may exist ample justification for the taking of pictures of union representa- 14 The record shows that all of the persons depicted on the photographs were union representatives except for Clyde Scott who had been an employee of the Company until discharged on or about September 8. 15 165 NLRB 812 (1967). 16 Id. at 816. 17 In view of this finding I deem it unnecessary to resolve the credibility issue as between the union organizers , on the one hand, and the company witnesses, on the other , as to whether Powell actually took pictures of the employees during the handbilling. However, in the event that any reviewing authority does not agree with the foregoing analysis, I would state that, were it necessary , I would credit the testimony of the union representatives over that of Powell (Reavis only testified that he left the premises prior to the employees' leaving work and that he did not view tives for use in legal proceedings where, for example, violence or mass picketing exists on a picket line. However, he found that the respondent in that case did not demonstrate "need or justification for its action," and I find a similar lack of need or justification here. Thus, although the record shows that the union organizers had handbilled the plant on several occasions, there is no contention or evidence that any mishap or violence occurred as a result thereof. Thus, there were no legal proceedings which required the identification of the union representatives. Moreover, Powell concededly knew the identification of three of the union representatives (Bell, Hopkins, and Gonzales) and Lovette knew the fourth (Thomas). While, under Respondent's evidence, there is no showing that any employee witnessed the picturetaking, I believe it to be a reasonable inference that the employees at Respondent's Temperanceville plant would soon learn of the existence of a company photographer taking pictures of the handbilling without apparent justification. I find that such conduct would tend to unwarrantedly impinge upon the free exercise of employees' Section 7 rights, in violation of Section 8(a)(1).17 f C. The Discharge of Clyde Scott As previously noted, Clyde Scott had worked for Respondent from March 1968 until his discharge on September 5, 1969, as a floorboy in the picking department. It appears that his work record was generally satisfactory as far as his ability to perform the job was concerned. However, it became apparent toward the end of 1968 that Scott had a "drinking problem" and that this tended to interfere with his being on the job particularly on Mondays and on Saturdays when his presence was required.18 Sylvester Annis, Scott's immediate supervisor, credibly testified that the trouble about Scott's failure to appear for work commenced around June, and that he had orally warned him about it. On August 16, Scott received a written warning from F. D. Shepherd who was identified as the assistant superin- tendent of the eviscerating department and immediately over Annis in the supervisory hierarchy. This warning, which was given to Scott in Shepherd's office, reads as follows: I have talked to Clyde about coming in late and being out of work and drinking on his job several times and told him that the next time it happened his job would be terminated. This warning was read to Clyde Scott on 8-15-1969. Witnessed by Jack Ketterman.19 Although Scott refused to sign the aforesaid warning slip, Powell at the plant gate at that time ; however, Reavis was admittedly not present at the time of the shift break so that he could not testify whether or not Powell had perhaps returned at that time). Although the evidence does not sustain the allegation in the complaint that Powell was "safety director" of the Respondent, I find that he was an agent of Respondent in view of the concession that he was taking the pictures at the direction of the plant manager, a conceded supervisor and official of the Company. 18 Although Saturday was not a regular workday, it appears that Scott was requested to come to work on Saturdays when chickens were scheduled to be killed or when there was maintenance work to be performed. 19 Ketterman, a supervisor in the receiving department, was present at (Continued) 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he admitted that he had been late on occasions and also missed work several times but claimed as to the latter that he had had Annis' permission. He acknowledged also that he did some drinking but contended that the supervisory personnel also engaged in that conduct. In any event, following the interview with Shepherd and Ketterman, Scott advised Annis of the occurrence, as follows: "I told him I would try not to be late no more. That's exactly what I told him. I told him okay that I would try not to be late no more and I won't miss no more time." 20 On or about September 2, Scott requested of Annis to be off the following weekend for the prupose of going to Delaware to pick up some furniture. He advised Annis that he was going with a fellow employee, James Johnson. According to Scott's testimony, Annis told him that he could be off Saturday, but Annis testified that, due to the fact that some maintenance work was scheduled for Saturday which would probably last all day, he told Scott that if the latter came in and worked until 2 p.m. he could take off the remainder of the day.21 The following Friday, September 5, Annis learned that the plant was scheduled for chicken killing the next day and at the close of work Annis saw Scott and said, according to Scott's testimony, "Clyde,. I will see you at 5 in the morning." Scott responded by saying "uh-huh" and "kept on walking." 22 Scott did not report for work either Saturday or Sunday, going instead, as indicated, to Delaware with his friend. It was necessary, under the circumstances, for Annis to do most of Scott's work since there was only one other floorboy whose responsibility was to the other line of production. Annis testified that he worked not only Saturday but also Sunday since it was necessary after killing chickens on Saturday to "finger the pickers" the following day. At that time he picked up Scott's timecard and placed it in the supervisors' lounge. Scott, upon noting the following morning that his timecard was not in the rack, approached Annis and asked him about it. The latter told Scott that he was no longer employed by the Company-that he was fired. Scott then went to Shepherd and told the latter what had happened. Shepherd told him that he could not be of any help. Scott then went to see Phil Thomas who apparently is the next highest in the supervisory hierarchy and told Thomas that the request of Shepherd, and testified at the hearing respecting the circumstances of the interview . Shepherd is no longer employed by the Company and was not called as a witness in the proceeding. 20 Scott admitted that he did not mention to Annis that the warning also had to do with Scott's drinking. 21 In view of the conversation which took place between the two men the following Friday, September 5, infra, I do not deem it necessary to resolve this particular conflict in the testimony. 22 Testimony of Scott. Annis testified that Scott said "okay." One need not delve into the question of whether these two terms have the same meaning since the important point is that Scott was aware on that Friday afternoon that his supervisor expected him to be at work in the morning and he made no indication that he did not intend to comply with such expectation. 23 There is credible testimony in the record that Scott did not, in fact, make the trip for the purpose of securing furniture, but merely to go on a drinking party. However, since this was not known to management prior to making the decision to discharge, I do not consider such evidence relevant on that issue, but only as to the credibility (or lack thereof) of the witness Scott. Annis had fired him after Scott gave "a whole week's notice that [he] had to go pick up some furniture." 23 Thomas advised Scott that he would look into it and Scott went home. From there, Scott telephoned Plant Manager Lovette and advised that Annis had fired him. Lovette acknowl- edged that he knew about the firing but that when Scott asked for his job back Lovette responded that he did not fire him and that he could not rehire him.24 ANALYSIS AND CONCLUDING FINDINGS It is well established that the task on this issue of the case is to ascertain, after a consideration of all the facts in the record, the "true purpose" or "real motive" for effecting the discharge.25 It is equally "well settled that a discharge which in fact is caused by union activities is unlawful and discriminatory within the meaning of Section 8(a)(3) of the Act, notwithstanding the concurrent existence of valid grounds for discharge.26 On the other hand, "if an employee is both inefficient and engaged in union activities, that is a coincidence that does not destroy the just cause for his discharge."27 On this issue, the burden is, of course, upon the General Counsel to prove by a preponderance of the evidence that the real or motivating reason for the discharge was Scott's union activities. I find, for reasons set forth below, that the General Counsel did not sustain his burden on this issue. It is true, of course, that Scott was a leading adherent in the Union, that this fact was known to management, and that management was against the Union coming into the plant. However, "engaging in protected, concerted activity ... does not perforce immunize employees against discharge for legitimate reasons."28 Certainly Scott, after having received verbal warnings as well as a written warning about being absent from work only a couple weeks before the incident giving rise to discharge, placed himself in a vulnerable position by absenting himself from work after receiving clear directions from his supervisor that he was expected to be at work on Saturday, September 6. While Scott may have understood earlier in the week that the supervisor had given him permission to be off that Saturday, there is no question that Scott knew that this permission had been abrogated by the new circumstances which arose on Friday. Even if Scott, at that late date, had indicated to Annis that due to circumstances beyond his 24 Scott's testimony as to this telephone conversation is substantially at variance from that found above, which is based upon Lovette's credited testimony. Scott stated that Lovette told him that the reason for the discharge was "about passing union cards out" and that, moreover, Lovette told him that he could go to another poultry company which was unionized, and obtain a job there . Lovette impressed me as being much too sophisticated a person to make such a damaging admission to the dischargee . Moreover, I was impressed by his testimony that he learned of the discharge from Supervisor Annis while making his normal morning tour of the plant and that when he inquired of Annis the reason for the discharge, Annis' reply was, "the same old thing," meaning Scott's absenteeism and drinking. 25 See Radio Officers' Union (A.H. Bull Steamship Company) v. N.LR.B., 347 U.S. 17; Local 357, Teamsters v. N.LR.B., 365 U.S. 667, 675. 26 See Topeka Discount, Inc., 181 NLRB No. 8 (sec. 5, Board's Decision). 27 N.LR.B. V. Birmingham Publishing Company, 262 F.2d 2, 9 (C.A. 5, 1958). 28 Mitchell Transport, Inc., 152 NLRB 122, 123; see also Motorist Insurance Agency, Inc., 182 NLRB No. 142 (TXD, pars. following In. 11). HOLLY FARMS POULTRY INDUSTRIES 215 control he would be unable to work on Saturday, Annis might have been able to have made other arrangements. But Scott, by his own admission, made no such indication and preferred to allow Annis to believe that he would report as directed. Certainly, engagement in union activities and the employer's antipathy thereto cannot excuse an employee under these circumstances.29 I so find, and will recommend that this allegation of the complaint be dismissed.30 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has violated Section 8(a)(1) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies 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. Holly Farms Poultry Industries, Inc., the Respondent herein, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act, as found hereinabove, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER31 Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, it is recommended that the National Labor Relations Board order that the Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union membership and activities. (b) Engaging in surveillance of union activities, including handbilling, through personal observations or photography. (c) Conveying to employees the impression that union activities are under surveillance. (d) Threatening employees in a manner violative of Section 8(axl) of the Act. (e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: (a) Post at its plant in Temperanceville, Virginia, copies of the attached notice marked "Appendix," 32 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by the Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing 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. (b) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith 33 IT IS FURTHER RECOMMENDED that the allegations of the consolidated complaint be dismissed in all respects other than those found to have been sustained in the above findings and conclusions. 29 Motorist Insurance Agency, Inc., supra; see also Metals Engineering Corporation, 148 NLRB 88, 89-90. 30 In oral argument, counsel for the General Counsel cited Family Laundry & Dry Cleaning, Inc., 147 NLRB 251, in support of his contention that the Respondent had long condoned Scott's derelictions and that his discharge came about only after he became actively engaged in soliciting for the Union. However, that case is readily distinguishable on its facts since the Board found that the employer there had smelled alcohol on the discriminatee's breath but still permitted him to work and "other employees had been discovered drinking on the job and were not discharged" (id. at p. 255). No such evidence appears on the record herein. 31 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 32 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." 33 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence, The National Labor Relations Board has found that we violated the law and has ordered us to post this notice, and we intend to carry out the Order of the Board, and abide by the following: WE WILL NOT coercively interrogate employees concerning their union membership and activities. a 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT spy on union activities, including handbilling, through personal observations or photog- raphy. WE WILL NOT give our employees the impression that union activities are being spied upon. WE WILL NOT threaten our employees in a manner violative of Section 8(a)(1) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. Dated By HOLLY FARMS POULTRY INDUSTRIES, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Federal Building, Room 1019, Charles Center, Baltimore, Maryland 21202, Telephone 301-962-2822.