Alabama Poultry Enterprises

National Labor Relations Board - Board Decisions

Jan 27, 1959

122 N.L.R.B. 1100 (N.L.R.B. 1959)

1100 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD
or its agents, upon request, for examination and copying, all payroll records,
social security payment records, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back pay due under the terms of
these recommendations.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The operations of Argo constitute trade, traffic, and commerce among the
several States within the meaning of Section 2(6) and (7) of the Act.
2. Local 25 is a labor organization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Herman
Worley, thereby encouraging membership in Local 25, Argo has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1)
of the Act.
4. By causing Argo to discriminate against Worley in violation of Section 8(a)
(3) of the Act, Local 25 has engaged in unfair labor practices within the meaning
of Section 8(b)(2) and (1)(A) thereof.
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.
6. In all other respects the allegations of the complaints have not been sustained.
[Recommendations omitted from publication.]
Forrest Ingram and Ray Fechtel, a Partnership, d/b/a Golden
Rod Broilers, a Division of Alabama Poultry Enterprises and
Reba F. Sandlin
Forrest Ingram and Ray Fechtel, a Partnership, d/b/a Golden
Rod Broilers, a Division of Alabama Poultry Enterprises and
J. D. Jones
Forrest Ingram and Ray Fechtel, a Partnership, d/b/a Golden
Rod Broilers, a Division of Alabama Poultry Enterprises and
Emma Hamrick. Cases Nos. 10-CA-3315, 10-CA-3316, and
10-CA-3324. January 27, 1959
DECISION AND ORDER
On October 21, 1958, Trial Examiner Thomas A. Ricci issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Rodgers 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
122 NLRB No. 135.
GOLDEN ROD BROILERS 1101
Intermediate Report and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings,' conclusions,
and recommendations of the Trial Examiner.2
ORDER
Upon the entire record and pursuant to Section 10(c) of the
National Labor Relations Act, as amended, the National Labor Rela
tions Board hereby orders that the Respondent, Forrest Ingram and
Ray Fechtel, a partnership, d/b/a Golden Rod Broilers, Cullman,
Alabama, their officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discharging employees or otherwise discriminating against
them in their employment because of their exercise of the right to
self-organization or to join labor organizations.
(b) Telling employees that employees would lose their employ-
ment because of their union activities, and asking employees to
reveal their knowledge of union activities in a manner constituting
interference, restraint, or coercion in violation of Section 8(a) (1)
of the Act.
(c) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist any 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, as guaranteed in Sec-
tion 7 of the Act, or to refrain from any or all of such activities
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section S (a) (3) of the Act.
2. Take the following affirmative action -which the Board finds will
effectuate the policies of the Act:
(a) Offer to J. D. Jones, Emma Hamrick, and Reba F. Sandlin
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of earnings
they may have suffered as a result of the discrimination against
i Respondent ' s contention that the complainants are fronting for a noncomplying union
is without merit. N.L.R.B. v. Happ Brothers Company, Inc., 196 F. 2d 195 (C.A. 5),
and N.L.R.B. v. Alside, Inc., 192 F. 2d 678 (C.A. 6), upon which the Respondent relies
are, as found by the Trial Examiner, distinguishable from this case on their facts.
Thus, the charges in those cases were filed by officers of the noncomplying union on behalf
of a number of employees other than the charging parties themselves. The charges filed
in this case, however, involved only the individual complainants. See N.L.R.B. v.
Augusta Chemical Co., 187 F. 2d 63 (C.A. 5).
2 Respondent's "Motion to Reopen Record" is hereby denied. Respondent has not
shown what it would adduce at a reopened hearing that could alter our conclusions herein.
Moreover, Respondent has not justified its failure heretofore to make part of the record
any of the matters it now seeks to develop.
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them, as provided in the section of the Intermediate Report entitled
"The Remedy."
(b) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all records necessary to analyze the amount of back pay due and
the rights of employment under the terms of this Order.
(c) Post at their plant at Cullman, Alabama, copies of the notice
attached hereto marked "Appendix." 9 Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, shall, after
being duly signed by an authorized representative of the Respondent;
be posted by the Respondent immediately upon receipt thereof and
maintained by it for a period of 60 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 the Tenth Region in writing,
within 10 days from the date of this Order, what steps Respondent
has taken to comply therewith.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify our employees
that:
WE WILL NOT discharge or otherwise discriminate against our
employees in their employment because of their exercise of the
right to self-organization or to join labor organizations.
AVE WILL NOT tell our employees that employees will lose em-
ployment because of their union activities, or ask our employees
to reveal their knowledge of union activities in a manner con-
stituting 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 employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist any
labor organization, to bargain collectively through representa-
tives of their own choosing, or to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or
GOLDEN ROD BROILERS 1103
protection, or to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment as authorized in Section 8(a) (3) of the Act.
tiWTE WILL offer to J. D. Jones, Emma Hamrick, and Reba F.
Sandlin immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to any sen-
iority or other rights and privileges enjoyed, and make them
whole for any loss of pay suffered as a result of the discrimi-
nation against them.
All our employees are free to become or remain, or to refrain
from becoming or remaining, members of any labor organization,
except to the extent that this right may be affected by an agreement
authorized by Section 8(a) (3) of the Act.
FORREST INGRAM AND RAY FECHTEL,
A PARTNERSHIP, D/B/A GOLDEN ROD
BROILERS, A DIVISION OF ALABAMA
POULTRY ENTERPRISES,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before the duly desig-
nated Trial Examiner in Cullman , Alabama, on July 15, 1958 , on complaint of the
General Counsel and answer of Forrest Ingram and Ray Fechtel , a partnership
doing business as Golden Rod Broilers, a division of Alabama Poultry Enterprises,
herein called the Respondent . The main issue litigated was whether the Re=
spondent had violated Section 8(a)(3) and Section 8(a)(1) of the Act. The parties
filed briefs after the close of the hearing.
Upon the entire record and my observations of the witnesses , I make the fol-
lowing:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, the Respondent in its answer admits, and I find, that the
Respondent is now and has at all times material herein been an Alabama partner-
ship maintaining its principal office and place of business at Cullman, Alabama,
where it is engaged in the processing of poultry products. Respondent during the
past calendar year, which is representative of all times material herein, sold and
shipped directly outside the State of Alabama finished products valued in excess
of $50,000.
The record also shows, and I find, that at its Cullman plant the Respondent re-
ceives truckloads of live chickens daily, kills, dresses them, and ships them, as
processed, away from this plant. There is no indication in the record that the
employees working here do any work other than such processing of chickens.
Neither in its answer nor in the course of the hearing did the Respondent raise
any question respecting the Board's jurisdiction. For the first time in its brief the
Respondent moved to dismiss the entire complaint on the ground that it does not
appear that the Respondent's business effects interstate commerce within the mean-
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing of the statute. As the Respondent ships directly outside the State of Alabama
products valued in excess of $50,000, I find that its operations meet both the
statutory requirements for jurisdiction and the Board's established standards.' The
Respondent's brief apparently contends that the jurisdictional statement in the com-
plaint is inadequate because it does not expressly state that the out-of-State ship-
ments originate directly from the Cullman poultry processing plant involved in this
case. I find no merit in this contention. See The T. H. Rogers Lumber Company,
117 NLRB 1732. I also find that the Respondent is engaged in commerce within
the meaning of the Act.
Also for the first time in its brief the Respondent moved to dismiss the entire
complaint on the further ground that the Board lacks jurisdiction because the em-
ployees involved are agricultural workers. On this assertion, all that appears in
the record is that the employees in the Cullman plant work at processing chickens.
The chickens are received each morning in trucks and are shipped at the end of
each workday in trucks. The origin of the chickens, their ownership, and any
relationship between the Respondent as owner and operator of this plant and any
other business interests does not appear in the record. The only "evidence" of.
agricultural status, on which the Respondent rests, is a statement by Forrest Ingram,
an owner-partner, in identifying himself when testifying, that he is part owner of.
this business and that he "also [has] some allied business of a hatchery in connec-
tion with it." I find this evidence insufficient to require dismissal of the complaint.
on this ground?
II. THE LABOR ORGANIZATION INVOLVED
District 50, United Mine Workers of America, herein called the Union, is a labor
organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The heart of the complaint in this case is whether three employees were dis-
charged on April 7, 1958, because of their union activities. Most of the subsidiary
facts^what was done' and' ;what was said-which 'the General CdOi sel contends
prove an unlawful discharge are clear on the record. These include the employees'
union activities, the statement made by Respondent's representatives at the time of
the alleged discharges, the conduct of some of the employees involved immediately
preceding their separation from the company, and the time sequence of the per-
tinent events. The Respondent's defense to the charge is threefold: (1) it had no
knowledge of the employees' union activities; (2) they were not discharged but
voluntarily chose to resign; and (3) even if the record supports a finding of dis-
charge, it does not establish unlawful motivation. Each of these contentions
presents an issue to be decided on the record.
A. Union activities and the Respondent's knowledge thereof
On the uncontradicted testimony of the three Charging Parties, which I credit,
I make the following findings respecting their union activities. Jones' first activities
towards organizing the employees took place on the third Sunday of March 1958,
when he met Ledbetter, an agent of District 50, United Mine Workers, who gave
Jones a supply of union authorization cards. Jones enlisted the aid of Hamrick
and her sister-in-law, Sandlin. From the end of March up to the day of his
departure from the Company on April 7, Jones solicited a great number of em-
ployees to sign union cards. He did so before work and after working hours, in
all parts of the plant and the surrounding property.
Hamrick, as requested by Jones, started soliciting union cards during the last
days of March. She communicated with other employees by telephone and at the
place of work during her off hours. Sandlin began her union activities 1 week
before April 7; she solicited employees by telephone, met them in town, and also
approached them in the plant lunchroom and surrounding areas. The 3 of them,
acting as a team, within the week or 10 days of their activities, obtained about
60 signatures to union cards from the approximately 172 employees in the plant.
They were the active organizers among all the employees, and, apparently, the only
ones aggressively interested in bringing about collective bargaining. There is no
evidence in the record of union activities, extensive or otherwise, by any other
employees.
1 See Jonesboro Grain. Drying Cooperative , 110 NLRB 481. See, also , 42 LRRM 633.
Nephi Processing Plant, Inc., 107 NLRB 647; Brooksville Citrus Growers Association,
112 NLRB 707.
GOLDEN ROD BROILERS 1105
Because the departure of these employees from the Company came on the heels
of their extensive solicitation activities , and in order to weaken the inference that
arises from the coincidence of the two events , company officials , testifying for the
Respondent , suggested that there had been union activities going on from the very
inception of plant operations in about August or September of 1957. Their testi-
mony on this point, however, was extremely vague and, in my opinion, does
not establish that there were any organizational activity at this plant before the
last part, of March when Jones started it. Thus Gambrill, the plant manager,
described it as "nothing definite . We heard rumors of union ever since we started
way back in October, which you always hear around an operation like ours."
McDaniel, the plant superintendent , testified : "I hadn't heard any employees saying
anything about it. . . . No certain Union. . . . I would say just conversation ever
since I have been there of just union just in general ." Lastly, Ingram , an owner-
partner, said he had heard rumors concerning a union ". . . oh, I would say we
have heard union talk ever since we have been in the business . . . . Even before
we established Golden Rod Broilers there was talk of union. Nothing definite.
Wondering if they were going to organize , if I would organize , if I did what
would I do, and so forth."
The proof that company officials were aware of the union activities of these
three rests upon the direct testimony of the employees concerning their extensive
activities in signing up other employees in and near the parking area behind the
plant. Jones testified that from 5 to 6:30 a.m., on Friday, April 4, 1958, before
working hours he moved among the parked cars soliciting employees to sign au-
thorization cards, and that during that period McDaniel, the plant' superintendent,
was walking up and down near the scales watching him from about 50 to 75 feet.
Beginning at about 4:30 p.m., that same day, after their working hours, all three
(Jones, Hamrick, and Sandlin) sat in Hamrick's automobile soliciting employees to
sign cards. The car was parked less than 70 feet from the platform of the plant;
Sandlin and Jones sat in the front seat with the doors open; employees-as many
as 10 to 15 at a time-were grouped on both sides of the automobile signing
cards and using clipboards resting on the doors of the car. Hamrick sat in the
back of the car doing the same thing. They spent 30 or 40 minutes in this
activity. All three testified that for a period of time, ranging, according to their
separate testimony, from 5 to 8 minutes, McDaniel stood either on the platform
or in the yard itself just staring at them. They placed him 30 to 35 or 40 to 45
feet away. According to Hamrick, at one point when some girls saw McDaniel
watching they "scooted" away; McDaniel then "started back up the ramp" and the
girls resumed signing; and again McDaniel came back to the platform and stood
watching.
Jones also testified that he resumed soliciting signatures at the parking lot the
following Monday morning , April 7, before work . He said that again McDaniel
stood near the scales behind the plant from 25 to 30 minutes and saw him so
engaged.
Sandlin also testified that she arrived 30 minutes before her starting time of 6 a.m.
Monday to continue soliciting employees coming to work, and that while she was
"busy with my cards" she saw McDaniel standing "a few feet" away watching her.
She admitted she could not be sure McDaniel saw her actually talking with others
or in the act of obtaining a signature, because she did not know how long he had
been watching when she noticed him.
Concerning their presence behind the plant on these three occasions, their ac-
tivities in obtaining signatures to union cards, and the picture of the area generally,
the testimony of Jones, Hamrick, and Sandlin is uncontradicted, clear, mutually
corroborative, and fully plausible. I credit it entirely. Concerning McDaniel's
presence on these occasions, however, there is a conflict in the testimony.
McDaniel denied having seen any of these three employees engaged in obtaining
other employees' signature to union cards. He denied having seen Jones in the
parking lot on Friday morning or the group of three that evening in an automobile.
He could not recall having been in the parking lot Monday morning.
The evidence establishes that the plant manager's duties take him about the
plant everywhere in and out of the building; that they include ultimate respon-
sibility over the receipt and weight of truckloads of chickens as they arrive before
the plant begins operations in the morning. Two of the incidents here involved
occurred before the regular inside employees had started processing work Friday
or Monday, and therefore the likelihood that McDaniel was outside the building
was quite high. The same is true with respect to the Friday afternoon incident,
which occurred after a substantial number of employees had ceased work and were
505395-59-vol. 122 71
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leaving the parking lot. McDaniel might very well have been looking after things
outside the plant at that time for the processed chickens are shipped out in trucks
at the end of the day.
On the basis of the entire record I credit the testimony of the three employees
and find, as they testified, that on all three of the occasions involved McDaniel
saw them engaged in soliciting other employees to sign union cards, and in obtaining.
signatures to authorization cards.
In this brief the General Counsel speaks of McDaniel' s presence , while he
watched the activities of these employees, as "surveillance." The implication of this
contention is that McDaniel went out of his way, with a preconceived intention,
to spy upon the employees. I find no evidence in this record that McDaniel's
purpose, on any one of these occasions, was to place himself in a position to
survey or spy upon the employees. However, the important question here is
whether or not he learned of their union activities, be it by chance or plan. The
testimony of the three employees was direct, consistent, and absolutely clear.
While McDaniel denied having seen them at all on the parking lot on any one of
the occasions, his duties normally take him to the places behind the plant where
each of the employees placed him on those dates. Quite honestly, McDaniel ad-
mitted he could not remember whether or not he had been there on Monday
morning. The conclusion that McDaniel learned of the activities of these three
might be tenuous had only one witness testified, or even had the several witnesses
related only one occasion. The affirmative testimony, instead, is by three witnesses;
they related three occasions when McDaniel watched them obtain union cards;
and the composite testimony of all witnesses would place McDaniel about 45 or
50 feet away from them .3 Further, there is testimony that on one occasion at
least he was standing on the ground considerably closer. When to the foregoing
is added the length of time he stood and watched, the conclusion that he was
aware of the nature of the activities-of the type of papers that were being asked
for and signed-becomes entirely reasonable and supported by the record. I there-
fore conclude and find that the plant superintendent know that Jones, Hamrick,
and Sandlin were very actively engaged in organizing the plant by the time work
started within the plant Monday morning.
There is more in the record in its entirety tending to make the version of the
three employees the more credible one concerning McDaniel's watching the
solicitation activities. During April 4, the very day when Jones asserts McDaniel
watched them both morning and evening, McDaniel said to Gilley, another em-
ployee, "I hear you boys talking about getting a union in here." Again on the
same day, McDaniel, as he admitted, asked employee Collins. "Have you heard
anything about a union. . . Well, if you had I know you would tell me." This
further evidence, both of knowledge and curiosity concerning union activities, lends
credence to the version of the three employees concerning McDaniel's activities
on the parking lot on the other occasions. I also credit the uncontradicted testi-
mony of Hamrick that Claghom, who supervised her and Jones, one day said that
Jones would not "be here very long" because he was a union man.
Thus, on the credited testimony of Jones, Hamrick, and Sandlin I find that,
through the direct knowledge obtained by McDaniel as he watched these three in
their solicitation of other employees, the Respondent was aware on the beginning
of the workday, Monday, April 7, that they were engaged in union activities.
B. The discharges
Jones, Hamrick, and Sandlin were called into the office immediately after the
coffee break Monday morning, April 7, 1958. Their employment ceased at that
time. Appreciation of the Respondent's argument as to the meaning of the words
used there requires appraisal of the work record of the three employees.
The plant started operations in August 1957, when Jones was hired to work on
installation of equipment. When chicken processing work began, he was put on
a tow truck hauling chickens. He testified that he was never reprimanded for the
quality of his work.4
s Ingram stated he had paced off the distance from the chain at which Sandlin's car
was parked Friday afternoon to the plant platform, and that in his judgment the distance
was 72 feet. He added it might have been 6 feet less ; moreover, the car stood between
that chain and the platform, thus again necessarily lessening the distance by perhaps
10 or 15 feet more.
4 Jones also related how 6 or 7 months before his discharge, "at the beginning of the
plant," Ingram on one occasion had told him "you are the one that can hustle this
GOLDEN ROD BROILERS 1107
-Claghorn, always Jones' foreman, characterized him as a good worker; he also
said, he "had to get him a couple of times about leaving his truck" but not on
April 7. McDaniel, the plant superintendent, testified that Monday morning he
asked Jones not to leave his work; he then added that this had not happened
before, and then went on, vaguely, to say that there had been two occasions .
"when we had a little trouble about his leaving his truck." McDaniel finally char-
acterized the entire plant record before April 7 as "just minor trouble with the
work." McDaniel also stated that Claghorn had once complained to him about
Jones leaving work.
Hamrick started work on October 7, 1957, as a floorlady. She worked around
one of the processing lines, substituting for absentees, obtaining paper and other
equipment when necessary, and generally pitching in whenever and wherever
needed. She testified, without contradiction, that she had never been criticized for
her work or conduct. Claghorn, also her foreman, characterized her as a good
worker.
Some of the work performed by women who work with Hamrick was drawing
viscera from the chickens. This work injures the hands, sometimes causes in-
fection, and often requires the use of gloves for protection. The uncontradicted
testimony is that the Company usually purchased gloves for these girls; that some
brought their own gloves; and that Hamrick often loaned her own gloves to any
girl who might need them. A new girl was at this work early Monday morning,
on April 7. She needed gloves and Hamrick asked Curtiss (a new foreman sub-
stituting for Claghorn) to obtain them. Curtiss replied with a flat "no." Hamrick
explained that gloves were needed to help the girl. Claghorn used to go to the
office to obtain gloves whenever Hamrick asked for them. As Curtiss just stood
and watched, Hamrick told him to call the drugstore and have a pair of gloves
delivered and that if the Company refused to pay, she would do so. Curtiss did
not testify.
Reba Sandlin was employed in January 1958, and put to skinning chickens and
wrapping gizzards. Claghorn was also her foreman; she, too, testified that she had
never been reprimanded and that on Friday, April 4, Claghorn had found occasion
to say that she was a good worker. Concerning Sandlin's employment record with
the Company there is no further information.
According to Gambrill, the plant manager, he had the three employees brought
into his office on April 7, for the following reason. A few weeks earlier he had
overheard some girls in the common relaxation room remark that a certain "Reba"
was causing "trouble" in the plant, and that on inquiry, the plant superintendent
had said that Reba was a certain Mrs. Freeman. Still according to Gambrill, on
the morning of April 7 McDaniel advised him that there was some "tension" in
the plant; when asked to explain McDaniel had referred to Hamrick's remark
about the gloves and added that Jones "was running from one department to the
other, outside and inside the plant." On the basis of these reports, Gambrill
testified that he ordered McDaniel to bring "Reba, Jones and Mrs. Hamrick" into
his office. McDaniel in turn sent Curtiss, the foreman, to bring them. Curtiss
called Jones, Hamrick, Reba Sandlin, and Reba Freeman into the office.
McDaniel introduced the four persons to Gambrill. At this point Gambrill
stated the reason why he had called them into the office. The recollection of the
four employees and of Gambrill himself varies only slightly as to what he said.
From the witness stand, Gambrill quoted himself as: "I understand that you
people are unhappy with your work.... And I made the statement that we didn't
want unhappy employees around our plant and if there were, for any reason they
were unhappy I felt it better that they would clock out at that time."
Jones recalled Gambrill as having said "I understand that you people are un-
happy with your job, and don't like the way that we are running the plant here,
and just clock out." According to Hamrick: "Well, I hear you folks are unhappy
with your jobs . . . we don't want any unhappy employees working for us. If
you people don't like the way we run our business we are just sorry, and we think
it better that you be discharged." Sandlin as a witness quoted Gambrill as follows:
"I understand that you people are unhappy with your jobs and that you don't like
the way we are running our business and would feel like under those circumstances
it would be best that you are discharged."
Testimony concerning the responses to Gambrill's announcement also variesi
slightly, but presents no substantial question as to what followed. As Hamrick,
recalled, Reba Freeman spoke up: "Well, Mr. Gambrill, I would like for you to
job . . . let's hustle it up," and that Jones had answered he would have to find another
job It Ingram was not satisfied. There is no contention that this incident bore any rela-
tion to the events giving rise to this proceeding.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tell me what this is all about. I haven' t done anything to get fired for." Gambrill
replied, "I think you folks know what it is all about," and Freeman then added
she didn't have anything to do about this union mess."
Sandlin's version of Freeman's inquiry is slightly different. She said Freeman
asked "what was this all about and why were we being fired"; Gambrill replied
"I think you know what it is all about," and Freeman persisted with "if it is about
this union business she didn't know anything or hadn't had anything to do with it."
Freeman, called as a witness by the Respondent, did not deny the conversation
as reported by the other witnesses. She admitted having asked Gambrill why she
was called in, and on cross-examination, evaded the question whether she men-
tioned the union:
Q. You stated to him that you didn't have anything to do with this union
business, didn't you?
A. I didn't have anything to do with it.
According to Jones, there was a momentary pause, and then he asked: "Jack,
what is this all about?" and Gambrill again said: "Jones, you know what it is
about." The conversation ended with Jones saying, "Jack, if that is the way you
want it, that is the way it will be."
At this point, Jones, Hamrick, and Sandlin left the office and proceeded directly
to clock out. Freeman remained in conversation with Gambrill and never ceased
work.
As soon as Jones, Hamrick, and Sandlin clocked out, a number of employees
left their work stations and started to congregate in and about the lunchroom
inside the plant and to drift out of the building. Jones quickly sought out Led-
better, of the United Mine Workers Union, and when the latter arrived a number
of employees held a meeting with him. In consequence, a committee of employees
with representatives of that union called on the Respondent's officials later in the
day. Work was curtailed for the rest of the workday but returned to normal the
next morning. On the following Wednesday Hamrick and Sandlin were at the plant
and told McDaniel that they wished to return to work. McDaniel said nothing,
but laughed at them. Neither they nor Jones ever returned to work.
McDaniel, who was present during the office conversation, did not contradict the
employee witnesses at all. Gambrill first testified that the employees left without
saying a word in response to his opening statement. Later he admitted Jones'
statement that the employees would do as Gambrill wished. He also added that
Freeman did say she was happy and "not responsible for what is going on here
today," that he rejoined, "Well, Mrs. Freeman, what is going on?" and that she
said "this union thing." Unlike the other witnesses, Gambrill timed his con-
versation with Freeman as after Jones and the other two women had left.
Gambrill seemed to shift his testimony, probably due to a faulty recollection on
details. The only real disagreement among the witnesses is that according to
Gambrill the employees left with no one asking him any question. I credit the
testimony of Jones, Hamrick, and Sandlin that Gambrill was twice asked, in their
hearing, to explain what he was doing. It is little short of inconceivable that they
should silently depart after his statement, which, according to Gambrill, was
neither question nor order. I cannot discredit testimony which is logical , reason-
able, and in accord with normal human behaviour. Moreover, Gambrill altered
his testimony as he went along, and, as to Freeman's inquiry, he did not flatly deny
it but simply cast her words in another mold. On the entire testimony I find
that Freeman and Jones asked Gambrill to explain his demand upon them and
that he refused to do so.
There is also some disagreement among the witnesses as to the precise arrange-
ment of words used by Gambrill in advising the employees as to why they had
been called in. I deem the slight discrepancies in the recollection of the various
witnesses to be of little moment. For I am satisfied that Gambrill chose this way
of telling the employees that their employment was terminated, that they under-
stood his words to mean that, that theirs was a reasonable interpretation of what
he was saying under the circumstances, and that Gambrill knew they would so
understand the purport of his words. All this, precisely as Mrs. Freeman phrased
it when she reacted by asking why they were being discharged. Whether Gambrill
in fact used the word "discharged," as two of the employees recalled, or whether
he limited himself to saying "check out," is immaterial.
The Respondent contends that all Gambrill did was offer the employees a choice
of either continuing in employment or quitting, if they so desired; this position
rests upon the fact that he used the word "if" in his statement. It is true that,
among other things, Gambrill said "if you are happy." The Respondent would
have it that the turn of events depended upon whether or not the employees were
GOLDEN ROD BROILERS 1109
in fact unhappy , and that only they knew or could decide whether this was so.
The argument continues that as only the employees knew their own state of un-
happiness , and as it was suggested they leave "if" they were unhappy, it was the
employees themselves , and not the Respondent , who decided their employment
should cease.
This view of the case ignores all the related events shown in the record; it
overlooks the conversation that took place between Gambrill and the employees;
indeed, it appears as no more than an attempt to lift one word of Gambrill's.
statement out of context and give it independent , determinative significance. When
Gambrill opened by saying he understood these employees were unhappy, he vir-
tually told them they were unhappy, or that at least in his opinion this was so. In
any event , he never asked how they felt about continuing in their jobs. More
significantly , he told them quite bluntly he did not want unhappy people in the
plant . Even assuming , therefore , that he did ask the employees to decide whether
or not they were unhappy, his statement made it quite clear that if they felt
unhappy they had no choice but to leave the plant. I see no difference of sub -
stance between telling employee "I discharge you," and saying "I don't want you
in the plant." Considering this part of Gambrill 's statement , the question then.
becomes-what did he mean by unhappy?
Reserving that question for the moment , and still on the threshold inquiry
whether he discharged the three , the phrase "we don't want unhappy people in the
plant" is at least as important as the word "if" used later. Similarly , Gambrill's
end remark-"I felt it better that they would clock out"-which may also have
been "we think it better that you be discharged"-are words that leave no choice
to an employee when voiced by a plant manager to them personally in his private
office.
There are other facts pointing to discharge instead of voluntary quitting. To
start with , Sandlin had given no cause for offense whatever ; her work had always
been satisfactory , she had never complained either of work or unhappiness, and
no one had ever given her a hint of trouble to come. The word "unhappy" could
have no meaning to her coming out of Gambrill's mouth at that moment, unless it
was association with the only recent change in her activities related to the plant-
her solicitation of union cards . When, despite a double inquiry, Gambrill refused
to explain either what he meant by unhappy or the real reason why he called the
employees into the plant , Sandlin had no alternative but to view the entire in-
cident as a discharge.
Similarly, Hamrick , so far as she was told, had done nothing more that morning
than she had done on many other occasions . To call for gloves , to have sent
them from the drugstore to be paid later, to furnish them to an employee who was
in need of them, was a regular occurrence in her work .5 No mention had ever
been made to her or in her presence about unhappiness . Nor indeed , about any
dislike for the way the Company was running the business.
As to Jones, even assuming that he had not left his lift truck only once but
a number of times that morning, it is difficult to understand how the word "un-
happy" could have any meaning to him. If anything , the foreman might have been
unhappy over Jones' poor performance ; certainly Jones gave no evidence of un-
happiness nor stated anything to that effect. To the contrary , if the word
unhappiness had any meaning to him, it probably was that his attempt to organize
the employees into a union was viewed by management as an attempt by the
employees , led by Jones himself, to improve their working conditions because they
were unhappy in the terms of employment.
In view of the virtual incoherence of Gambrill 's words about unhappiness to
each of these employees , the stark fact that they stood before the highest authority
in the plant in a setting necessarily calculated to impress upon them the serious-
ness of the manager's frame of mind could not escape them . Each of the em-
6It will be recalled that Hamrick asked Curtiss for the necessary gloves. McDaniel
testified concerning the conversation between Hamrick and Curtiss and quoted Curtiss
as having reported that Hamrick "seemed" to be "creating confusion ." This was only
hearsay, as Curtiss did not testify . Gambrill, recalling how McDaniel had passed the
story on to him, in his testimony suggested that Hamrick had spoken in a loud voice
and that the entire occasion for calling for gloves was because Hamrick had put too
many girls on the processing line. Hamrick , who was there, gave the reason as the
inexperience of the new girl and the inherent danger of the work being done. Again, as
Gambrill's knowledge of the incident was third hand-reported by Curtiss to McDaniel
and then from McDaniel to Gambrill-I cannot consider Gambrill's implications as of
substance but accept instead the credible and plausible explanation of Hamrick, the
forelady on the spot.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees was an unskilled hand earning minimum pay. McDaniel 's formal pres-
entation of them to the manager strongly indicates that a personal call to the front
office in this fashion was an extraordinary event. When Gambrill added to their
obvious bewilderment his deliberate refusal to explain "what it is all about" and
in effect cut of any discussion or appeal they might attempt to protect their jobs,
he removed all doubt as to his real meaning. All that remained then of his words
was that he did not want them in the plant and that they should clock out. To
hold, on the foregoing, that Gambrill meant only to inquire concerning the hap-
piness of these people would be utterly unrealistic. I find that Gambrill dis-
charged Jones, Hamrick, and Sandlin on April 7, 1958.
C. Unlawful motivation
The fact that the Respondent was aware of the union activities of these em-
ployees, plus the fact that it discharged them, are not enough to prove the critical
allegation of the complaint that they were discharged because of such activities.
Consistent with its contention that it did not discharge the three, the Respondent
advanced no reason for the discharge. Its final argument instead is that the record
is insufficient to carry the ever present burden of the General Counsel to prove
unlawful motivation in the Respondent's conduct.
I think that the evidence, considered in its entirety, supports, indeed compels,
the conclusion that the Respondent discharged these employees because of their
activities in persuading others to sign union cards. As the Respondent correctly
points out in its brief, the evidence is not direct, and any one of the various per-
tinent facts shown by the record, standing alone, is not enough to prove unlawful
intent. However, the many strong indications that flow from the separate other-
wise unexplained aspects of the sequence of events have a cumulative effect and
together preclude any other explanation of the discharges. In fact, Gambrill's
refusal even to say to these employees what was the basis of his dissatisfaction
with them left open to their minds the only conclusion they could reasonably
reach-that is, that it had to do with the only recent events that had transpired,
their union activities. The case in support of the complaint allegation could only
have been made stronger if Gambrill had expressly told the employees he was
firing them because of their solicitation. Where substantial affirmative evidence
of unlawful conduct appears in the record, there is no need for confession to
support an unfair labor practice finding.
Shortly before the discharges about 60 employees signed union authorization
cards. So far as this record shows, however, Jones, Hamrick, and Sandlin were
the only ones, out of a complement of 170, who did more, and they-as a team-
did all the soliciting to obtain those signatures. Their activity was not only
singular, but also open, widespread, and conspicuous. They were also the only
ones to be fired.
McDaniel, the plant superintendent, knew of their extensive and persistent union
activities. And it was McDaniel, according to the testimony of the Respondent's
own witnesses, who first spoke of "tension" in the plant to Gambrill, and, after
singling out Jones and Hamrick as "causing" the tension, precipitated the dis-
charges. Thus the plant manager's recently acquired knowledge of the solicitation
activities appears as intimately related to the discharge event.
As the record stands, Gambrill's articulated reason for the discharge, as ex-
pressed to the three on April 7, was because they were "unhappy." The Re-
spondent advanced no other reason. As Hamrick had that. morning revealed
impatience with Foreman Curtiss' unwillingness to obtain a pair of gloves when
needed, she might be described as unhappy that day. Her record with the Com-
pany, however, was a long and satisfactory one, during which she had not once
indicated unhappiness nor been criticized in the slightest. As to her, therefore,
Gambrill was straining the word "unhappy" if he was really concerned only with
Hamrick's abruptness with Curtiss-a new foreman-when the latter refused to do
what Claghorn, her regular supervisor, had always done in these circumstances.
As to Jones and Sandlin, the accusation of unhappiness at the moment of dis-
charge could have no meaning at all. The thing came as a complete surprise to
Sandlin, for she had not done or said anything to call for it. Jones had left his
machine once, and maybe twice, during the morning shift; no other act or conduct
by him was advanced to indicate unhappiness. The two of them therefore neces-
sarily understood that Gambrill did not really mean "unhappy" when he used
the word, but spoke as he did to convey an unspoken, or indirect thought. And
Gambrill, who also knew there was no reasonable explanation of his use of that
word, for the same reason must be deemed to have expected the three to appre-
GOLDEN ROD BROILERS 1111
ciate the true implication of his. words. All doubt on this point is dispelled by
his refusal twice-once to Jones and once to Freeman-to tell the employees what
he meant by unhappiness , or what about their behavior had brought about the
decision to discharge them. An employer need not explicate in detail his reason
for the discharge of an employee; but when the total circumstances surrounding
his action reasonably and persuasively lead to a precise explanation , his silence
cannot serve to rebut the logical inference and conclusion.
Significantly, only Reba Freeman was shown on the record to have been unhappy
in her work. She had been refused more desirable assignments , had in fact com-
plained to others of her job; and had openly spoken offensively of her superiors .6
She honestly disavowed any union activities when Gambrill opened up the April 7
conversation, and, although the only one who had cause for unhappiness , she was
not discharged. Again, there is no direct proof that Freeman was singled out of
the four to remain because she stood apart from union activity. Still, the fact
remains she had not engaged in union activity, the company officials had no reason
to suspect her of such, she disavowed union activities, her statement on the subject
went unchallenged, and she was the only one of the four to remain.?
Concerning Reba Freeman's presence in the office, I find no plausible explana-
tion in the record. In any event, the absence of such explanation does not offset
the strong implication that arises from the fact that she, the only one of the four
who did not engage in union activities, was the only one not to be discharged.
The strongest link in the chain of casual relationship between union activities
and the discharge is in the relative time element. Jones and Hamrick had worked
8 and 6 months respectively; Sandlin 3 months. The Respondent asserts there had
been complaints about Jones in the past. Yet he, as well as Hamrick and Sandlin,
who had admittedly always been satisfactory, remained undisturbed. The Com-
pany learned of their union activity on Friday, April 4. The very next workday
all three were released. The Respondent's failure, or refusal to advance an
affirmative reason for the discharge in the course of this proceeding is under-
standable, in view of their basic theory of events that there was no discharge. But
Gambrill's refusal to tell these employees on April 7, as he was telling them to
"clock out," what he meant by "unhappiness" or what was his dissatisfaction with
them, is not understandable. The normal treatment of employees who prove
satisfactory for a long period is to give some explanation, however, brief or even
preemptory, of a sudden discharge. Here instead, there was no advance notice,
no warning, or explanation-only a cryptic and highly ambiguous phrase, followed
by "you know what it is about."
As stated, the Respondent saw fit, as is its right, not to state its reason for the
discharges. However the three were discharged. If the reason was not their union
activity, as the Respondent contends, the only possible cause I can discern on this
record was Jones' temporary neglect of duty that morning and Hamrick's remark
anent the gloves. Jones was not supposed to leave his work, and Hamrick's remark
could well be viewed as a slur on the Company. Each incident could, in the
judgment of an employer, be viewed as cause for discharge. In the total picture
6 Hamrick and Page, another employee, testified that Freeman had asked and been re-
fused a transfer of work, and that in wrath she had expressed the hope that the persons
who ran the Company would become ill and "have to crawl to the doctor." Freeman did
not contradict this testimony, which I credit. She admitted asking for a transfer and
having told other employees she "couldn't see why some got moved and some couldn't
get moved."
7 Gambrill explained the presence of Sandlin as an error by the person who went after
the employees he wanted. He said he asked for "Reba, Jones and Mrs. Hamrick" ; that
there turned out to be two Rebas ; and that he therefore believed two were called in by
mistake. I find it difficult to believe that Curtiss, a supervisor, asked to bring in "Reba,"
would call in two women instead of one without first checking with McDaniel, who gave
him the instruction, as to which was wanted, or whether one meant two. Also, to accept
Gambrill's explanation, means that McDaniel, who was charged by Gambrill to bring in
"Reba, Jones and Mrs. Hamrick," made the same error as Curtiss, because he introduced
two Rebas to Gambrill after the four persons arrived. A more plausible explanation of
Sandlin's presence is that in McDaniel's mind, she was in the same category as Hamrick
and Jones by virtue of the trio being the union organizers . In fact McDaniel's words
while relating the event at the hearing, reveals he was surprised to see Mrs. Freeman,
instead of Sandlin, with Hamrick and Jones . McDaniel testified : "On the way out I told
my assistant , Mr. Curtiss, to get Reba, Mrs. Hamrick and Jones and send them into the
office and whenever they came in, why, Mrs . Freeman her name is Reba , also come in."
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of this case, were the Respondent to urge these as affirmative justifications for the
discharge of two, I would nevertheless find that the real reason was the union
activity of the three. Again, the normal thing is to warn employees of dereliction
or offensive conduct, before applying the ultimate in punishment, or to afford an
opportunity to correct faults, or at the very least, to tell them why they suddenly
have become undesirable. None of these courses was chosen here.
On the basis of the entire record, including the time relationship between the
union activities of Jones, Hamrick, and Sandlin and their discharge, their unique-
ness in being the only employee to engage in such activities and to be discharged,
Gambrill's refusal to explain to them the reason for the discharge, the failure of
the Respondent to give them any advance notice of the sudden final action, and
the absence of any plausible reason that might otherwise explain the event, I find
that the Respondent discharged Jones, Hamrick, and Sandlin because of their union
activities, and thereby discriminated against them in their employment in violation
of Section 8(a)(3) and 8(a)(1) of the Labor Management Relations Act, 1947, as
amended. I also find that Foreman Claghorn's statement to Hamrick that Jones
would not be in the plant long because he was a union man, and McDaniel's
inquiry of Collins as to the latter's knowledge of union activities, constitute separate
independent violations of Section 8(a)(1) of the Act attributable to the Respondent.
IV. THE FRONTING ISSUE
Apart from the merits of the complaint, the Respondent moved for dismissal of
the entire case on the asserted ground that the individual Charging Parties are
not acting on their own behalf in this proceeding but instead are acting on behalf
of District 50, United Mine Workers of America, a labor organization which has
not complied with the filing requirements of Section 9(f), (g), and (h) of the Act.
Most of the pertinent facts, on which the Respondent relies, are set out above.
The thought of organizing the plant was born in Jones' mind. He approached
Ledbetter, an agent of District 50, who supplied the union cards. All the solicita-
tion done by Jones and his assistants, Hamrick and Sandlin, was towards member-
ship in that union. Immediately upon his discharge, Jones looked to Ledbetter
for help and a meeting took place, which was attended by many employees and
two representatives of District 50; shortly thereafter these same union agents
appeared at the plant, apparently in some effort to resolve the problem that had
arisen. Ledbetter prepared the original charge which Jones signed, and, apparently,
saw that it reached the Board's Regional Office. Each of the three separate charges
which the three employees filed was filed is the individual's name, and each sought
redress for the individual discharge. At the hearing, Hollyfield, a representative of
District 50, appeared on behalf of the three Charging Parties. None of the charges
sets out any allegation of unlawful conduct by the Respondent against District 50
as such, or against any other individual employees.
On these facts, I find the Respondent's fronting argument to be without sub-
stance. The Board and the courts have consistently held that individual employees
may assert their rights before the Board without regard to the filing requirements
of the Act. The right is not lost because the individuals may be members of a
noncomplying union, or because such a union may have advised, counseled, or
assisted the Charging Parties in the preparation and filing of the charges or in the
prosecution thereof. The controlling question is always one of fact: whether the
charge was filed to redress the individual right or to use the individual charge as
a device to enable the noncomplying union to reap a benefit and avoid the filing
requirements. On the facts appearing here there can be no doubt that the Charging
Parties were immediately concerned with their own individual rights, and that their
relationship with District 50 was not such as to constitute them agents or "fronts"
of that union. See: N.L.R.B. v. Augusta Chemical Co., 187 F. 2d 63 (C.A. 5);
Brookville Glove Co., 114 NLRB 213, enfd. 234 F. 2d 400 (C.A. 3); Atlantic
Freight Lines, Incorporated, 117 NLRB 464, and cases cited therein. The court
decisions in N.L.R.B. v. Happ Brothers, Inc., 196 F. 2d 195 (C.A. 5), and in
N.L.R.B. v. Alside, Inc., 192 F. 2d 678 (C.A. 6), on which the Respondent relies,
are substantially distinguishable on the facts and therefore do not support its
argument . The Respondent's motion to dismiss the complaint on the ground of
fronting is denied.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
I ECONOMY FURNITURE 1113
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 obstruct-
ing commerce and the free flow thereof.
VI. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent discriminated against J . D. Jones, Emma
Hamrick, and Reba F. Sandlin with respect to their hire and tenure of employment,
I will recommend that it be ordered to offer them immediate and full reinstate-
ment to their former or substantially equivalent positions , without prejudice to
their seniority or other rights and privileges , and make them whole for any loss
of earnings they may have suffered because of the discrimination against them, by
payment of a sum of money equal to the amount they normally would have earned
as wages from the date of their discharge to the date of the offer of reinstatement,
less their net earnings during said period, with back pay computed on a quarterly
basis in the manner established by the Board in F. W. Woolworth , 90 NLRB 289,
291-294 . I will also recommend that the Respondent make available to the Board
upon request , payroll and other records to facilitate the determination of the
amounts due under this recommended remedy.
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 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. By discharging J. D. Jones, Emma Hamrick, and Reba F. Sandlin the Re-
spondent has engaged in and is engaging in unfair labor practice within the meaning
of Section 8(a)(3) of the Act.
2. By the foregoing conduct, by asking Dwight Collins to reveal his information
concerning union activities, and by telling an employee that Jones' employment
would be terminated because of his union activity, the Respondent has interfered
with, restrained, and coerced employees in the rights guaranteed in Section 7 of
the Act and thereby has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Economy Furniture and Upholsterers' International Union of
North America, AFL-CIO and General Drivers and Helpers
Local Union No. 657, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, ' Petitioners. Cages Nob. 39-RC-1316 and S9-RC-1,1$0.
January 27, 1959
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9(c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Wilton Waldrop, hearing officer. The hearing officer's rulings made
'Petitioners are called Upholsterers and Teamsters , respectively.
122 NLRB No. 131.