Cagle's, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1975

218 N.L.R.B. 603 (N.L.R.B. 1975)

CAGLE'S, INC. 603
Cagle's, Inc. and Allied Workers District Union No.
454, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO. Cases 10-
CA-10452 and 10-CA-10644
June 18, 1975
DECISION AND ORDER
On October 31, 1974, Administrative Law Judge
Fannie M. Boyls issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt her recommended Order only to
the extent consistent herewith.
Briefly, the relevant facts, which were not disputed,
are as follows : Jewell, Inc. (hereinafter referred to as
Jewell), was for many years engaged in the pro-
duction of live poultry at Gainesville, Georgia, and
had a collective-bargaining contract with the Charg-
ing Party (hereinafter referred to as the Union) which
expired on April 30, 1975.2 In October 1972, Jewell
filed a voluntary petition for relief and reorganiza-
tion under chapter X of the Bankruptcy Act and a
trustee was appointed who immediately began to
wind down Jewell's operations. Jewell's operations
were completely closed on November 16-17, 1972,
and all but a few maintenance employees were laid
off.
The Respondent formally assumed control of
Jewell's business on August 6, 1973, under the terms
of a management agreement , approved by the
Bankruptcy Court in July 1973, which provided that
the Respondent would assume full responsibility to
manage and operate Jewell's business with rights to
use Jewell's trade name, trademarks, and formulas.
The Respondent was to receive no direct compensa-
1 In the absence of exceptions thereto, we adopt the Administrative Law
Judge's finding that the Respondent violated Sec. 8(a)(3) and (1) of the Act
by discriminatorily refusing to hue Kathleen Brown, Kathryn Greber, Olhe
Mae Mincey , Dora S. Pethel, Ida Mae Pinson , Vera Stevens, Hazel Wehunt,
Lurleen Williams, and Juanita Woody.
2 The contract covered approximately 672 production and maintenance
employees in Jewell's processing plant, feed mill , hatchery, and rendering
plant.
3 The Respondent produces 6 products , but retained Jewell's trademark
for only 1 of the approximately 200 products which Jewell had produced. In
addition , the Respondent does not sell any consequential amounts of its
products to former Jewell customers, and, although all orders are billed on
Jewell invoices, all sales are handled by the Respondent.
4 In the processing plant, the Respondent eliminated production of
precooked and frozen chickens, operations which had involved approxi-
mately 300 or more employees, and installed new machines to speed the
preparation ' of fresh chickens for sale (Respondent also has plans to install a
chill-packing , operation).
3 Jewell had employed 571 employees in the processing plant, 20 in its
Gainesville hatchery, 28 in the feed mill, and 36 in the rendering plant for a
218 NLRB No. 92
Lion for its managerial undertaking and was to
periodically remit a percentage of the assets and net
profits to the Trustee in Bankruptcy (hereinafter
referred to as the Trustee) for the benefit of Jewell's
creditors. The Trustee agreed to commit all working
capital and borrow an additional $1-1/4 million for
the operation of the business and would, at the
Respondent's recommendation, petition the court to
set aside certain of Jewell's executory contracts. The
management agreement additionally gave the Re-
spondent an option to acquire all of Jewell's stock
within 60 months and if it elected not to do so, the
Respondent could give 120 days' notice of its
discontinuance of operations and reimburse the
Trustee for cash and loans, thus turning back
operations in no worse a financial condition than
when it commenced operations.
The Respondent did not commence actual opera-
tions until November 6, 1973, after it had effected
certain operation changes. These changes included
the elimination of all but a few of the products
formerly -made by Jewell,3 mechanization of the
processing plant operation,4 and a reduction in the
number of job classifications and in the total
employee complement.5 In addition, the Respondent
appointed a new general manager, personnel direc-
tor, and seven front line supervisors 6
The Respondent refused the Union's requests for
recognition and bargaining, which were made in
August and September 1973, questioning the Union's
majority status among its present employees and
contending that it had hired only a fraction of
Jewell's former employees; that it made substantial
changes in the plant operations and the distribution
of products; that the products produced and identity
of customers as well as the identity of the employees
were radically changed; that none of the officers and
directors are the same; and that all of Jewell's
contracts were subject to cancellation by the court.7
total of 655 employees . When the Respondent commenced operations in
November 1973, it hued approximately 115 processing plant employees, 66
of whom were former Jewell employees. In addition , we have found that 9
former Jewell employees were discriminatorily denied employment by the
Respondent at that time. At the time of the hearing, the Respondent
employed only 275 employees in the processing plant , 20 in the Gainesville
hatchery, 28, in the feed mill, and 32 in a newly acquired hatchery, for a total
of 355 employees, 105 of whom had previously worked for Jewell.
Respondent also operates on a one-shift rather than two-shift basis as Jewell
did6
The Respondent retained Jewell's plant superintendent , four front line
supervisors , an accountant-office manager, and the plant nurse-private
secretary. No individuals who were officers or directors of Jewell at the time
the bankruptcy petition was filed were hired by the Respondent.
7 On October 15, 1973, the Trustee, on the Respondent's recommenda-
tion, petitioned the court to reject the Unions collective-bargaining contract
with Jewel as an "unduly burdensome" executory contract . The Union did
not respond to the court's order to show cause and on December 3, 1973,
the court granted the Trustee authority to rgect the contract , which the
Trustee then did.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Administrative Law Judge rejected the Re-
spondent's contentions, concluding instead, as ar-
gued by the General Counsel, that the Respondent
was an alter ego of Jewell and thus violated Section
8(a)(5) and (1) of the Act by refusing to recognize
and bargain with the Union, which, in her opinion,
presumptively represented a majority of the Respon-
dent's employees. In essence, the Administrative Law
Judge found that, because the Respondent was
operating Jewell's business under a terminable
agreement with the Trustee, who is, for the purposes
of Board law, an alter ego of Jewell, the Respondent,
by virtue of that agreement, was likewise an alter ego
of Jewell as a temporary guardian or custodian of its
assets . In view of this finding, the Administrative
Law Judge further found that the operational
changes made by the Respondent were not of a type
which would destroy the appropriateness of a
bargaining unit if made by Jewell or by the Trustee,
especially where a "substantial number" of former
Jewell employees were hired by the Respondent, and
that the Respondent, therefore, had no basis for
challenging the Union's majority status. The Admin-
istrative Law Judge also found that the high degree
of employee turnovers and the fact that most former
Jewell employees had not filed checkoff authoriza-
tions9 did not, without additional evidence regarding
a loss of majority status, provide a reasonable basis
to infer a loss of majority status.
We disagree with the Administrative Law Judge's
analysis of the facts of this case. Rather, we agree
with the Respondent's contention that the facts
herein present a successorship, rather than an alter
ego, issue, and that analyzed under successorship
principles, as is done infra, the facts do not support a
fording that the Respondent was under any obliga-
tion to recognize or bargain with the Union.10 In our
opinion, the Administrative Law Judge incorrectly
extended existing Board law regarding the obliga-
tions owed by a trustee in bankruptcy. In Marion
Simcox, Trustee of Wagner Shipyard and Marina, Inc.,
and Stateside Service, Inc., d/b/a Stateside Shipyard
and Marina, Inc., 178 NLRB 516 (1969), the Board
held that a trustee in bankruptcy is an alter ego of the
bankrupt employer, a "guardian" of the bankrupt's
assets, and a "temporary custodian" of its business;
that as such the trustee is bound by law to honor any
bargaining obligations owed by the bankrupt em-
s The record establishes that between October 20, 1973, and August 13,
1974, the Respondent hired a total of about 1,150 employees at its
processing plant but had no more than about 277 working there at any one
time.
9 Since the Union's contract did not compel its members to check off
dues, only a very small portion of Jewell's employees were on checkoff.
Thus, the Administrative Law Judge found that there was no connection
between the number of employees on checkoff and the degree of union
support, citing N.L.R.B. v. Gulfmont Hotel Company, 362 F.2d 588, 592
(CA. 5, 1966).
ployer to the union representing its employees, and,
conversely, is privileged to assert any claims or
defenses which the bankrupt employer might have
asserted. However, in Simcox, the Board found it
unnecessary to comment on the question of whether
the entity operating the bankrupt employer's busi-
ness under an agreement with the trustee owed any
independent bargaining obligation to the union
requesting the bankrupt employer's employees,
inasmuch as the complaint in that matter contained
no such allegation. In the circumstances of the
instant case, we are of the opinion that an extension
of the Simcox principle to an entity operating the
business of a bankrupt employer under a bona fide
management agreement with a trustee in bankruptcy,
such as the Respondent herein, is unwarranted and
unsupported by the facts.
As the Administrative Law Judge recognized, the
facts of the instant case do not fall into the usual
pattern of cases involving alter ego issues where there
is a mere technical change in the structure or identity
of the employing industry" or common ownership
or control by two separate entities.12 To the contrary,
in the instant case, when the court approved Jewell's
petition in bankruptcy, Jewell, realistically, ceased to
exist as an independent, viable business entity. Only
the corporate shell remained, and the Respondent
began to operate Jewell's former business with totally
different ownership and directors, a new general
manager, and a majority of supervisors who had
never worked for Jewell. In addition, the size of the
Respondent's initial work force amounted to but 17
percent of Jewell's, of which former Jewell employees
comprised a bare majority. The Trustee ceded any
and all control he may have had over Jewell's
business operation to the Respondent through the
terms of the management agreement which gave the
Respondent exclusive and absolute authority over
the management, operation, and production of
Jewell's former business operation. Thus, the Re-
spondent did not reopen Jewell's busines until almost
a year after Jewell had closed its doors; and when it
did reopen, the Respondent changed production
methods, installed new equipment, renovated Je-
well's building, drastically reduced the number of
products produced and altered the product line,
acquired new customers, and hired a much smaller
employee complement. In view of the record evi-
10 The Administrative Law Judge made no specific findings as to
whether the Respondent had violated Sec. 8(a)(5) of the Act under
successorship principles, although she said it was "possible ," inasmuch as
the complaint and the General Counsel's case were premised on an alter ego
theory.
11 Southport Petroleum Company v. N.LR.B., 315 U.S. 100 (1942).
12 Aluminum Tubular Corporation and American Flagpole Equipment Co.,
Inc., 130 NLRB 1306 (1961 ); Rapid Bindery, Inc., and Frontier Bindery
Corporation, 127 NLRB 212 ( 1960).
CAGLE'S, INC. 605
dence of substantial changes in the structure,
ownership, and operation of Jewell's business, as well
as the Respondent's obvious financial interest in the
productiveness of its new operation, it can hardly be
found that the Respondent is performing any
"custodial" duties over Jewell's business, which for
all practical purposes no longer exists. Accordingly,
we find that the Respondent is not an alter ego of
Jewell or of the Trustee.
We find that a sounder analysis of this case
requires application of traditional successorship
principles, It is well settled that a change in
ownership of a business enterprise does not, of itself,
relieve the new owner from an obligation to
recognize and bargain with the union that represent-
ed the predecessor's employees.13 The crucial test
developed by the Board and sanctioned by the courts
in determining whether the successor employer
inherited the labor obligations of the predecessor is
whether there was continuity in the employing
industry after the transfer.14 Application of this test
involves consideration of the totality of the circum-
stances surrounding the transfer as well as a
comparison of the operations of the predecessor and
the successor enterprises 15
In the instant case, we find the evidence insuffi-
cient to establish a continuity in the employing
enterprise or that the Respondent was engaged in a
substantially similar enterprise as Jewell, albeit on a
greatly reduced scale. Thus, the record establishes
that the Respondent did not reopen Jewell's plant
until November 6, 1973, almost a year after Jewell
had terminated its operations. This hiatus was not
caused by the Respondent whose operational plan
was not approved by'the court until August 6, 1973,
and which could not, and did not, begin to effect its
operational changes until that time. In addition, as
mentioned above, when the Respondent began
operations in Jewell's plant, it did so under new
ownership and basically new, management, with
more new than old supervisory personnel, different
equipment producing different and fewer products
for different customers, and an employee comple-
ment which was vastly reduced in number and which
contained almost as many new employee faces as
old.
Under these circumstances, especially the long
hiatus between the termination of Jewell's operations
and the commencement of the Respondent's opera-
tions, for which the Respondent was not responsible,
the drastic changes in management, operations,
products, and customers lawfully effected by the
Respondent during the hiatus, the low percentage of
former Jewell employees eventually working for the
Respondent, and the high degree of employee
turnover among those employees,16 we conclude that
the evidence is insufficient to support a finding that
the Respondent is a successor employer to Jewell 17
Accordingly, we shall dismiss the 8(a)(5) and (1)
allegations in the complaint.
ORDER
Pursuant to the provisions of Section 10(c) of the
National Labor Relations Act, as amended, the
National Labor Relations Board adopts as its Order
the recommended Order of the Administrative Law
Judge, as modified below, and hereby orders that the
Respondent, Cagle's, Inc. , Atlanta and Gainesville,
Georgia, its officers, agents , successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Delete paragraph 1(a) and reletter the remain-
ing paragraphs accordingly.
2. Delete paragraph 2(a) and reletter the remain-
ing paragraphs accordingly.
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
IT is FURTHER ORDERED that the allegations in the
complaint alleging that the Respondent violated
Section 8(a)(5) and (1) of the Act be, and they hereby
are, dismissed.
CHAIRMAN MURPHY AND MEMBER FANNING, concur-
ring in part and dissenting in part:
We agree with our colleagues ' adoption of the
Administrative Law Judge's findings that the Re-
spondent violated Section 8(a)(3) and (1) of the Act
by discriminatorily refusing to hire nine former
Jewell employees. However, contrary to our col-
leagues, we would adopt the Administrative Law
Judge's findings, for the reasons stated by her, that
the Respondent is an alter ego of Jewell where, as
here, the Respondent has not purchased Jewell's
business but is merely operating Jewell's business
13 N.L.R.B. v. Burns International Security Services, Inc., 406 U.S. 272
(1972); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964)
14 Georgetown Stainless Mfg. Corp., 198 NLRB 234 (1972); Radiant
Fashions, Inc., 202 NLRB 938 (1973); Norton Precision, Inc., a Subsidiary of
Norton Foundries Company, 199 NLRB 1003 (1972). See also NL.R.B. v.
Zayre Corp., 424 F.2d 1159, 1162 (C.A. 5, 11970); N.L.RB. v. F. G.
McFarland and S. R Huihnger, d/b/a McFarland & Hullmger, 306 F 2d 219
(C.A. 10, 1962); N.L.RB. v. Alamo White Truck Service, Inc., 273 F.2d 238
(C.A. 5,1959).
15 Id.
16 See fn. 8, supra While the Respondent discriminatorily refused to hue
nine former Jewell employees in violation of Sec. 8(a)(3) of the Act, the
record does not establish that, if applicants had been hired on a
nondiscriminatory basis, a majority of the employees eventually hired by
the Respondent would have been former Jewell employees.
17 Georgetown Stainless Mfg. Corp., supra Radiant Fashions, Inc., supra-
Norton Precision, Inc., supra
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under a terminable contract with the Trustee in
Bankruptcy who is himself the alter ego of Jewell.18
We are of the opinion that the analysis applied by the
Administrative Law Judge is entirely proper and that
the Respondent, as the alter ego of Jewell, should be
required to recognize and bargain with the Union as
the representative of Jewell's former employees.
Accordingly, we dissent from the dismissal of the
8(a)(5) allegations of the complaint.
is Marion Srmcox, Trustee of Wagner Shipyard and Marina, Inc., supra.
On this point, Srmcox clearly is controlling . That the Board in that case
refrained from passing on the precise issue presented here because it was not
before it does not mean that, had it dealt with the issue , it would have
reached a conclusion different from that we would and the Administrative
Law Judge did find. We are unable to perceive any significant distinction
between the status of the trustee and, in the circumstances of this case, the
Respondent . The latter, in our view, stands in the shoes of the former and
thus occupies the same position for the purpose of deciding this matter.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer to each of the nine employees
listed below a position at our Gainesville plant
which it has been found she was capable of
performing at the time she applied for work or, if
such position no longer exist, to a substantially
equivalent position, without prejudice to her
seniority and other rights and privileges, and will
make each whole for any loss of earnings she may
have suffered by reason of our previous refusal to
hire her, plus 6-percent interest.
Kathleen Brown Vera Stevens
Kathryn Greber Hazel Wehunt
Ollie Mae Mincey Lurleen Williams
'Dora S. Pethel Juanita Woody
Ida Mae Pinson
WE WILL NOT discriminate in regard to the hire
or tenure of employment of any employee
because of his or her union membership or
activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed under Section 7
of the Act.
1973, and a complaint issued on March 7, 1974. A hearing
in that case was held before me in Atlanta, Georgia, on
April 2, 1974. The issues presented were whether Respon-
dent, Cagle's, Inc., is an alter ego of J. D. Jewell, Inc.,
which had voluntarily instituted bankruptcy proceedings
under chapter X of the Bankruptcy Act and whether
Respondent had, in violation of Section 8(aX5) and (1) of
the Act, unlawfully refused to bargain with the Charging
Party which was the recognized' bargaining representative
of Jewell's employees and had a collective-bargaining
agreement with Jewell, which by its terms was not to expire
until April 30, 1975. Subsequent to the hearing both the
General Counsel and Respondent filed helpful briefs.
Case 10-CA-10644 was initiated by a charge and an
amended charge filed respectively on March 18 and April
24, 1974, and a complaint issued on May 1, 1974. The
issues presented in that case involved whether Respondent,
in violation of Section 8(a)(3) and (1) of the Act, failed to
hire 11 former Jewell employees named in the-complaint
because of their union membership and activities.
Because of certain common issues alleged to be present
in both cases, I granted a motion by the General Counsel,
unopposed by Respondent, to reopen Case 10-CA-10452,
consolidate it with Case 10-CA-10644, and set the
consolidated cases down for a hearing on August 13, 1974.
A hearing on the consolidated cases was held on that date
at Gainesville, Georgia. Thereafter, the General Counsel
and Respondent filed further briefs.
Upon the entire record in these consolidated cases, upon
my observation of the demeanor of the witnesses, and after
a careful consideration of the briefs, I make , the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent is a corporation having an office, plants, and
places of business located at, Atlanta and Gainesville,
Georgia, where it is engaged in the processing, sale, and
distribution of poultry and poultry products. During the
calendar year preceding the issuance of the complaints,
which is a representative period, Respondent sold and
shipped its products, valued in excess of $50,000, directly
to customers located outside the State of Georgia. On the
basis of these admitted facts, I find that Respondent is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
n. THE LABOR ORGANIZATION INVOLVED
Allied Workers District Union No. 454, Amalgamated
Meat Cutters and Butcher Workmen of North America,
AFL-CIO, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
CAGLE'S, INC.
DECISION
STATEMENT OF THE CASE
FANNIE M. BoYLS, Administrative Law Judge: Case 10-
CA-10452 was initiated by a charge filed on November 2,
III. THE UNFAIR LABOR PRACTICES ALLEGED
A. The Jewell Operations, the Bankruptcy
Proceedings, and the Operation by Cagle's under a
Management Contract with an Option To Buy
J. D. Jewell, Inc., herein called Jewell, had for many
years prior to the fall of 1972 been engaged in the
CAGLE'S, INC. 607
production of live poultry, which it processed at its plant at
Gainesville, Georgia. Since 1951, when the Union was
certified as the representative of its production and
maintenance employees, Jewell was under contractual
relations with the Union. The last collective-bargaining
agreement, executed on April 30, 1972, was, by its terms, to
expire on April 30, 1975.
On October 18, 1972, Jewell voluntarily filed a petition
for relief and reorganization under chapter X of the
Bankruptcy Act and on October 20, a Trustee, Robert E.
Hicks, was appointed by the U. S. district court to operate
and manage the business. He operated it for only a short
time and started closing it down about November 16 or 17,
1972, retaining only a few maintenance employees. Just
before the plant closed, Jewell's personnel director,
Hambrick, called the employees together and told them the
plant would be closing in view of the bankruptcy
proceedings but that he expected all of them to be recalled
in the order of their seniority if and when the plant
reopened.
At the time the Trustee was appointed the court also
appointed a referee, to act as Special Master, to hear and
determine certain matters arising in the bankruptcy
proceeding. Among the various plans for reorganization
and management contracts submitted for consideration by
the Trustee was one submitted by the Respondent, Cagle's
Inc. After hearings before the Special Master and an
amendment by Cagle's to its plan to operate under a
management agreement, the plan was finally approved by
the court on July 2, 1973.
Under the management agreement Cagle's was to
operate the Jewell business and have 60 months in which to
exercise an option to acquire 100 percent of the stock of a
reorganized Jewell or to terminate its operating arrange-
ments . The plan provided, inter abler, that Cagle's vice
president, James M. Evans, would manage and operate the
Jewell business ; that the Trustee would commit all of the
working capital available to him and, in addition, borrow
$1,250,000 from a bank as working capital; that Cagle's
was to receive no compensation for its managerial
undertaking and would remit to the Trustee 7 percent per
annum of the asset values'computed at the beginning of the
operation (estimated at $1,500,000), but that if 25 percent
of the net profits exceeded 7 percent, Cagle's would pay the
Trustee an additional amount equivalent to 25 percent of
the net profits; that Cagle's reserved the right to use
Jewell's trade name, trademarks, and formulas; and that
Cagle's reserved the right to recommend to the Trustee
which of Jewell's executory contracts, if any, it wished to
retain and which it wished the court to set aside. Cagle's
agreed that if it exercised its option to acquire the Jewell
stock within 60 months it would, in consideration for such
stock, transfer not exceeding $2,500,000 in Cagle's Class A
common stock to the Trustee for the benefit of creditors
and stockholders. Cagle's agreed that if it elected not to
acquire such stock it would give 120 days' notice of its
intention to discontinue operations, to see that the balance
1 A 10th alleged discriminatee, Ruby Johnson, who was on the Union's
dues-checkoff list, did not apply when told by other employees who met her
on the way to the plant office that no positions were open. Since
Respondent did hire some employees who were on the dues -checkoff hst, it
cannot be assumed that Respondent would not have hired Johnson , had she
of the loan made by the bank to the Trustee was paid off,
and to reimburse the Trustee for committed cash. In other
words, Cagle's obligated itself under the management
agreement to turn back the operations to the Trustee or
Jewell in no worse condition financially than when it
commenced operations, if it did not exercise its option to
buy.
Although Cagle's assumed control of the Jewell plant
and business on August 6, 1973, it did not start production
operations immediately. Cagle Vice President Evans (who
had been president of Jewell from 1967 to September 1969
when he resigned) decided to make substantial changes in
the operation of the processing plant. Most of the chickens
prepared and sold by Jewell were precooked and the
remainder were frozen. Evans decided to eliminate the sale
of precooked and frozen chickens for the most part and to
sell only fresh chickens, with a long-range view of selling a
chill-pack product. He found the plant badly in need of
renovation and proceeded to renovate the plant and to
mechanize as much as possible the work to be done in
order to make the jobs easier, to reduce the number of
employees required, and to reduce the skilled labor needed.
Production operations, accordingly, did not actually
commence until about November 6, 1973.
As of November 14, 1973, about 115 employees had been
hired for the processing plant, 66 of whom had previously
worked for Jewell. Nine other former Jewell employees
who applied for jobs prior to that period are alleged in the
complaint to have been discriminatorily denied employ-
ment.) The evidence regarding each of these nine will be
treated infra.
The Union, on and after August 9, 1973, has sought to
bargain with Respondent as the representative of Respon-
dent's production and maintenance employees at the
processing plant, feed mill, and hatcheries, but Respondent
has persistently failed and refused to bargain. The evidence
relating to this matter, and whether Respondent was under
a legal obligation to bargain, will be considered next.
B. The Refusal To Bargain Issue
Union Representative Sylvia Katz called Evans, who was
in charge of the plant operations, twice, first about August
9, 1973, and again shortly thereafter, to discuss with him
the adoption of a Blue Cross-Blue Shield insurance policy
for employees when the plant started operating. On the last
occasion Evans told her to consult Cagle's attorney, Currie.
Katz did call Currie about August 20 and he told her that
he was not sure that Cagle's had to recognize the Union
but that he would get back to her in 2 or 3 weeks. He never
thereafter returned her calls or got in touch with her. Katz
finally turned the matter over to the Union's attorney,
Isenberg. Isenberg, on September 19 wrote Currie, request-
ing a meeting with management representatives to discuss
the current contract, various grievances, and working
conditions at the plant. Currie replied on September 27
that Cagle's had hired "only a handful of hatchery people"
applied, the complaint accordingly will be dismissed as to her . An 11th
employee named m the onginal complaint as a discnminatee did not appear
at the hearing and his name was dropped from the complaint by an
amendment to the complaint.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plus some people to work on the Gainesville plant to ready
it for operation in November, that all contracts of Jewell
were subject to cancellation by the. Court, that hiring in
any volume would not be done for a number of weeks and
that management at that time was not in a position to tell
the Union anything definite.
Thereafter, at Respondent's request, the Trustee applied
to the court for authority to reject the union contract as
being an executory contract "unduly burdensome on the
estate." An order to show cause was issued by the court on
October 15 (to which the Union did not respond). The
court on December 3, 1973, issued an order granting to the
Trustee authority to reject the union contract.
Respondent has concededly refused to recognize and
bargain with the Union, contending that it is under no
legal obligation to do so because it merely succeeded to the
physical processing plant and some of the facilities of
Jewell; that the product produced, methods of operation,
and the identity of the customers, as well as the identity of
the employees, have radically changed; that the officers
and directors of Respondent are entirely different than
those of Jewell; and that the Union has never represented a
majority of its employees. The General Counsel, on the
other hand, contends that Respondent, operating under a
management contract which gives it the mere option to
buy-which it has not yet exercised-is in effect a
substitute Trustee in Bankruptcy and an alter ego of Jewell,
with a continuing obligation to bargain with the Union and
that, by refusing to bargain, Respondent has violated
Section 8(a)(5) and (1) of the Act.2
Let us at this point examine in more detail the various
changes which have taken place since Jewell closed down
its production operations in November 1972.
Respondent made a number of changes in the in
and administrative personnel of the new Jewell
operations. It hired none of the officers or directors of
Jewell who ran the Jewell operations at the time the
bankruptcy petition was filed. James M. Evans, vice
president and a director of Respondent, was named in the
reorganization plan approved by the court to head a
management team to operate the Jewell business. He had
been employed as president of Jewell in 1967 but had
resigned in September 1969 and had disposed of his stock
in that corporation prior to the filing of the bankruptcy
petition in October 1972. After assuming control of the
Jewell operations and establishing an office in the plant,
which he visited about once a week, Evans continued to
have total accountability for all Cagle's operations,
including the operation at Gainesville. He appointed as
general manager of the Jewell plant Gerald Kiser, from the
Cagle's organization, who had no previous connection with
Jewell. As superintendent of the plant and second in
command, Respondent retained William Barefield who
had held a similar position with Jewell for many years.
Other former Jewell supervisors or nonunit personnel
retained by Respondent in the same or similar positions
were Hoyt Dunnegan, in charge of the feed mill and
hatchery; Hope, accountant and office manager-comptrol-
ler; Dorothy Christianson, who served as the plant nurse
with Jewell and as plant nurse as well as private secretary
to the personnel director under Respondent; Albert Nicely,
picking room foreman; William Carter and William
Faulkner, assistant line leaders in the eviscerating depart-
ment; and Jess Brown, engine room foreman. On the other
hand Respondent hired from other companies three
foremen (one over the live department, one over packing,
and another over the maintenance employees), an assistant
picking department foreman, and three line leaders (two in
the eviscerating department and one in' the packing
department), as well as a new personnel director.
Prior to the institution of the bankruptcy proceedings,
Jewell had not only operated a processing plant but also a
feed mill and hatchery in Gainesville. It also operated a
rendering plant about 20 miles from Gainesville where the
byproducts of the chickens from Jewell as well as from
other sources were rendered and sold. Jewell, however, had
contracted to sell this rendering plant prior to the
institution of bankruptcy proceedings and it was sold on or
about April 16, 1973, after the bankruptcy petition was
filed. Respondent now sells its renderable products to
independent concerns. Respondent has continued the
processing plant, the feed mill, and the hatchery. In
September 1973, Jewell purchased the live inventory of a
hatchery at Royston, Georgia, and Respondent took a
lease of the physical hatchery and feed mill there, with an
option to buy them, in order to supply more poultry which
it needs in the operation of the Gainesville plant.
The union contract had covered the employees of the
rendering plant, the hatchery, and the feed mill as well as
those of the processing plant. Before the plant closure,
Jewell had employed approximately 571 employees at the
processing plant, 36 at the rendering plant, 28 at the feed
mill, and 20 at the hatchery. Respondent, at the date of the
hearings, was employing only about 275 employees at the
processing plant, 28 at the feed mill, 20 at the hatchery in
Gainesville, and 32 at the Royston hatchery. Thus, Jewell,
on October 21, 1972, just before shutting down its
processing operations, had a total of 672 employees, and
Respondent, as of March 30, 1974, ,had a total of 357
employees, a little more than one half of the Jewell
complement, working at or in ' connection with the
Gainesville facilities. Respondent utilized approximately
the same number of employees at the date of the second
hearing in August 1974.
The diminished number of employees used by Respon-
dent appears to be a consequence, principally, of Respon-
dent's decision to eliminate the production of precooked
chicken (cooking, breading, filleting, and the making of
chicken' rolls, etc.) and, for the most part, of frozen
chickens. Although, as Evans testified, Respondent has
"stored a little product of Cagle's" in the freezer "once or
twice" and still has some of Jewell's frozen products in the
freezing department which are yet to be sold, Respondent
does not intend to sell frozen chickens or chicken products
2 The General Counsel does not dispute the right of the court in the obligation which the Trustee or new management might have to recognize
bankruptcy proceeding to relieve the Trustee and the new management of and bargain with the Union. Carpenters v. Turney Wood Products, 289
any obligations under the collective -bargaining agreement between the F.Supp . 143 (D.C. Ark., 1968). Cf. Iron Workers Local 455 v. Kevin Steel
Union and Jewell, but this court action, of course, does not affect the Products, 87 LRRM 2311 (D.C.N.Y., 1974).
CAGLE'S, INC.
on a regular basis. Evans estimated that these eliminated
operations had employed about 300 or 400 employees.
Also contributing to the fewer number of employees
needed by Respondent is the mechanization of the plant
operations insofar as possible. Respondent uses forklift
trucks and hydraulic lifts in the receiving department to do
some of the work previously done by men. It has an
automatic killing machine in the live department which
displaces some employees who had been manually slaugh-
tering the birds. Even in the eviscerating department where
Respondent now employs about 120 employees, much of
the work has been mechanized. Respondent operates on a
one-shift basis, whereas Jewell had operated two shifts.
Jewell's hatchery and feed mill, on the other hand, do not
appear to have undergone operational changes under the
new management . Respondent now employs more employ-
ees in those operations than did Jewell.
Respondent's customers are substantially different from
those of Jewell. Jewell sold most of its approximately 200
products to frozen food distributors from coast to coast in
the United States and to the military market in this country
and abroad. Respondent, on the other hand, sells its six
products to national chain stores and large independent
chain stores, mostly in Georgia and Alabama, and to a unit
in Kentucky owned by Respondent. There are no amounts
of any consequence sold to former Jewell customers. As a
long-range project, Respondent plans to institute a chill-
packing operation, a process for which the Jewell plant,
with its freezing department, is especially suitable.
Although sales are made by employees in Respondent's
Atlanta office, the orders are given to the Gainesville plant
to fill and customers are billed on Jewell invoices.
Respondent has proposed to the court that Jewell pay
Respondent a brokerage fee to compensate its employees
for their sales services, but no action has thus far been
taken on this proposal.
The plant still has Jewell's name on the building and
Respondent still uses the name "J. D. Jewell, Inc." in
advertising for new employees and has promised in its first
ad that Jewell employees who are rehired "will retain
seniority status." Respondent continues to use the Jewell
trademark on one of its products, an ice-packed product.
The General Counsel contends that despite these
extensive changes in the processing and distribution of
chickens, in the management team and in the number and
identity of employees utilized, Respondent is merely an
alter ego of Jewell and, as such, is required to recognize and
bargain with the Union as the representative of Respon-
dent's production and maintenance employees. He bases
this contention on the following arguments and authorities.
"The existence or intervention of bankruptcy, or corpo-
rate reorganization of an employer is not allowed to
deprive his or its employees of the rights defined and
assured to them by the Act." (In Re Matter of American
Bus Lines, Inc., 151 F.Supp. 877 (D.C. Neb., 1957).)
Although a Trustee in Bankruptcy may legally reject an
existing collective-bargaining agreement as an "executory
contract" within the meaning of section 70, subtitle b of the
Bankruptcy Act (11 U.S.C.A. Sec. 110(b)), the union's
basic right to recognize and bargain survive such rejection
(Carpenters v. Turney Wood Products, 289 F.Supp. 143, 149
609
(D.C. Ark., 1968).)Moreover, the existence of a collective-
bargaining agreement between a union and the predecessor
employer raises a presumption of continuing majority
status (at least through the life of the contract) when a new
employer takes over the operation of the business
(Barrington Plaza and Tragniew, Inc., 185 NLRB 962
(1970)). These principles clearly apply to a Trustee in
Bankruptcy or receiver who takes over and operates the
business of the debtor . If the Trustee in this case had
continued, himself, to operate Jewell's business, as he at
first attempted to do, he undoubtedly would have been
legally required to recognize and bargain with the Union,
despite the fact that he could reject the collective-bargain-
ing agreement under which Jewell had been operating.
The General Counsel next asserts that Respondent,
under the management contract approved by the court,
merely took the place of the Trustee in operating and
managing Jewell's business ; that Respondent "became the
guardian of the assets of Jewell"; and that it is "in effect
Trustee for the Trustee" until and unless it exercises its
option either to purchase Jewell's stock or terminate its
management arrangements . In these circumstances, the
General Counsel argues, Respondent became the alter ego
of Jewell just as the Trustee, before it , was the alter ego,
and that "the duty to recognize and bargain with the
Union that devolved upon the Trustee also devolves upon
Respondent." For this proposition, the General Counsel
cites and relies upon the Board 's decision in Marion
Simcox, Trustee of Wagner Shipyard and Marina, Inc., 178
NLRB 516 (1969).
The Simcox case, however, leaves undecided the precise
issue which the General Counsel assumes was decided. In
that case, as a result of foreclosure proceedings against
Wagner , Simcox was appointed Trustee to continue the
operation of Wagner 's business . Simcox terminated the
services of Wagner's employees and shortly thereafter
leased the Wagner facilities and equipment to Stateside (a
corporation whose stock was wholly owned by Simcox and
his wife), all without notifying or consulting with the union
which was the collective-bargaining representative of
Wagner's employees. The complaint in that case alleged
that Simcox, as an alter ego of Wagner, had violated
Section 8(a)(5) of the Act by taking these actions. The
complaint further alleged that Stateside , as a successor
employer to Simcox, was responsible for remedying the
8(a)(5) violation by Simcox . The Board agreed that Simcox
as Trustee was an alter ego of Wagner, a "guardian of
Wagner's assets" and a "temporary custodian" of its
business, with the same rights and obligations vis-a-vis the
union which Wagner had. However , since Wagner's
contract with the union had contained a management
rights clause which permitted Wagner to do all the things
which Simcox as Trustee had done, the Board held that
Sinicox had not violated Section 8(aX5). The Board
expressly stated, "Whether Respondent Stateside owed any
independent bargaining obligations to the Union as a
result of the eventual ' transfer of the business to it is not
before us , for the complaint alleges no separate violations
on the part of Stateside" (178 NLRB at 519).
The Simcox case, therefore, while authority for the
proposition that Hicks, the Trustee in Bankruptcy in this
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case, may be regarded, while in control of and operating
the plant, as an alter ego of Jewell, with an obligation to
bargain with the Union, it cannot be considered as
authority for the proposition that the Respondent, Cagle's,
is an alter ego of Jewell or a mere guardian or temporary
custodian of Jewell's assets and business. Whether or not
Cagle's may be so regarded must be determined independ-
ently of Simcox and on broad basic principles applicable to
the particular facts of this case.
Clearly, in this case, we do not have a mere technical
change in the structure or identity of the employing entity
so as to make Respondent an alter ego, in the sense that it is
"merely a disguised continuance of the old employer"
(Southport Petroleum Co. v. N.LRB., 315 U.S. 100, 106
(1942).) Nor do we have an alter ego situation arising by
reason of common ownership and control which would
warrant an inference that the two separate legal entities
comprise a single employer. (Aluminum Tubular Corp., 130
NLRB 1306 (1961); Rapid Bindery, Inc., 127 NLRB 212
(1960).) The General Counsel argues that an alter ego
relationship should be found on the theory that Respon-
dent, under its management agreement, was operating
Jewell's business merely as a temporary guardian or
custodian of its assets.
I believe that the General Counsel is correct in his
assessment of the legal consequences flowing from Respon-
dent's operation of the plant and supporting facilities
under the management contract approved by the court.
One of the principal considerations influencing my
decision is the fact that Respondent may cancel the
management agreement upon 120 days notice to the
Trustee and turn the business back to the Trustee.
Although Respondent has obligated itself financially under
the agreement in such a way that one must assume that it
wants to and hopes to make a success of its business
venture and eventually, within 5 years of the date of the
management agreement, exercise its option to buy the
business, it has not yet done so. Until and unless it does so,
it must operate under the general authority of the Trustee
and the court, for the benefit of Jewell and its creditors.
Although Respondent, under the management agreement,
manages the day-to-day operations of the business, there
are still functions which the Trustee must perform. The
Trustee, for instance, purchased in the name of Jewell all of
the live chickens at the Royston hatchery, whose physical
facilities Respondent leased, and it was the Trustee, at
Respondent 's request , who had to apply to the court for
permission to reject the union contract which, by its terms,
was to be effective until April 30, 1975. It was the Trustee,
also, who borrowed the large sums of money necessary for
Respondent's use in renovating the plant and mechanizing
its operations.
The changes which Respondent made in the plant
operations, while extensive, were, in my opinion, of the
kind which Jewell itself or the Trustee could have made
under the supervision of the bankruptcy court without
3 The sale of the rendering or byproducts plant by Jewell and the lease of
an additional hatchery by Respondent had practically no effect upon the
total complement of employees . These facilities were mere adjuncts to the
processing plant, employing only a small percentage of the unit employees
and could not affect the essential nature or composition of a production and
maintenance bargaining unit spelled out in the union contract.
destroying the bargaining unit or being relieved of an
obligation to continue bargaining with the Union. I have
no doubt that successful businesses mechanize their
operations, renovate their plants, and eliminate or add
some of their products to increase profits and accommo-
date to the demands of the consuming public. These
changes made by an employer in the normal course of his
business would not normally alter the appropriateness of
the bargaining unit. If Evans, while president of Jewell, had
caused Jewell to discontinue the precook and frozen
chicken lines and instead sell all of its chickens fresh or ice-
packed, and to renovate its plant and mechanize its
operations to the extent Respondent has done, I doubt that
anyone would argue that the bargaining unit was destroyed
and that the Union ceased to be the employees' bargaining
representative.3 These extensive changes and improve-
ments, if made by Jewell or the Trustee, would undoubted-
ly have caused a shutdown of the operations and a lengthy
layoff of employees, with the result that many employees
might have been unavailable for employment at the end of
the layoff period. Nevertheless, if a substantial number did
return when operations started up again, as they did when
Respondent started operating on November 6, there would
be no reason to challenge the Union's majority status.
There was unquestionably a large turnover among Respon-
dent's employees. Between October 20, 1973, and August
13, 1974, Respondent hired about 1,150 employees at its
processing plant but had no more than about 277 working
at any one time. However, only 12 of the 137 former Jewell
employees hired subsequently left Respondent's employ,
whereas 861 of the 1,013 non-Jewell, employees hired
subsequently left during that period.4
Respondent asserts as a further basis for concluding that
a majority of its employees do not wish the Union to
represent them the fact that a majority had never signed a
union dues-checkoff authorization. The union contract did
not compel the checkoff of union dues from members. The
checkoff provision was solely for their convenience. At the
time Jewell filed its bankruptcy petition (when the Union's
majority status was not challengeable) less than a third-
only 220 of the 672 employees then on the payroll-were
on the checkoff list. Here, as in NLRB. v. Gu fmont Hotel
Co., 362 F.2d 588, 592 (C.A. 5, 1966), "there is no
necessary connection between the checkoff list and the
number of union supporters" and "no one knows how
many employees, who favored the [Union] had decided not
to authorize the Company to deduct union dues or how
many who favored union bargaining were not even
members of the [Union]." In the absence of discrimination
in hiring Jewell employees based upon their support of the
Union or other unfair labor practices which would tend to
discourage union membership, it should be presumed that
the percentage of former Jewell employees rehired who had
voluntarily authorized their dues to be checked off would
remain the same as before the new management took over
and that new employees hired would support the Union, in
4 It is well established that employee turnover standing alone does not
provide a reasonable basis for inferring that a union has lost its majority
status for "new employees will be presumed to support a union in the same
ratio as those whom they have replaced ." Laystrom Manufacturing Ca, 151
NLRB 1482, 1484 (1965); Kentucky News, Inc., 165 NLRB 777, 778 (1967);
Maywood Packing Ca, 181 NLRB 778, 781 (1970).
CAGLE'S, INC. 611
the same ratio as those they replaced. If unfair labor
practices by Respondent did cause a loss of majority
status , Respondent, of course, would not be in a position to
assert such loss of majority status as an excuse for refusing
to bargain. Franks Brothers Company v. N.LR.B., 321 U.S.
702,704-705.
Under all the circumstances outlined above, I find that
Respondent, while operating under the management
agreement, is, as the General Counsel contends, a
temporary guardian or custodian of Jewell's business and
its alter ego. As such, it is under a legal obligation to
bargain with the Union as the representative of the
Respondent's production and maintenance employees and
its refusal to bargain is accordingly in violation of Section
8(aX5) and (1) of the Act.
Even if I should be mistaken in finding that Respondent
is an alter ego of Jewell, it is possible that Respondent
might be regarded as under an obligation to bargain with
the Union under successorship principles. However, since
the General Counsel has not contended that Respondent
would be under an obligation to bargain as a successor to
Jewell, I shall not attempt to decide whether under the
principles discussed in the recent Supreme Court decision
in Howard Johnson Co. v. Detroit Local Joint Executive
Board 417 U.S. 249 (1974), in N.L.R.B. v. Burns Interna-
tional Security Services, Inc., 406 U.S. 272 (1972), and in
two recent Board decisions, Georgetown Stainless Manufac-
turing Corp., 198 NLRB 234 (1972), and Norton Precision,
Inc., 199 NLRB 1003 (1972), Respondent would be
obligated to bargain on that theory.
C. Respondent's Failure To Rehire the Alleged
Discriminatees
As already noted, in order to staff the processing plant
for operations which were to commence on November 5 or
6, Respondent advertised over the radio and in the local
newspaper for employees and started interviewing them on
October 20, 1973. The newspaper adl, in pertinent part,
reads as follows:
ANNOUNCING
J. D. JEWELL, INC.
IS RE-OPENING
WITH ALL NEW MODERN
EQUIPMENT AND FACnXrIES
Former J.D. Jewell, Inc. Employees who meet Employ-
ment Requirements and are Rehired Will Retain
Seniority Status.
We Will Havee Excellent Jobs For Both Men and
Women
Competitive Wages
Fringe Benefits
Poultry Processing Experience Preferred but will
train qualified applicants.
If you desire a job with a great future, excellent
working conditions, daytime work and excellent pay,
come on over and let Harold Smith, Personnel
Manager, or Gerald Kiser, Plant Manager, explain our
advantages.
There was nothing in this ad to suggest-as Personnel
Director Smith later informed the alleged discriminatees-
that Respondent would be hiring only eviscerating depart-
ment employees when it started interviewing applicants on
October 20 for the prospective plant reopening on
November 5 or 6. There was also nothing in the ad to
inform them that Respondent was eliminating the precook
or any other jobs. There was no reason, therefore, for the
applicants to list all of their prior poultry business
experience on their applications and most of the discrimi-
natees mentioned only the operation which they were
performing at the time of the plant shutdown. Indeed, since
Personnel Director Hambrick had informed all the
employees at the time the plant closed that if and when the
plant reopened they would be rehired in the order of their
seniority, and the newspaper ad to which the alleged
discriminatees were responding had announced that "J. D.
Jewell, Inc. is reopening" and that former Jewell employees
rehired "will retain seniority status," they could reasonably
assume that they would be returning to work with the
reinstatement, job transfer, and training rights to which
their union contract entitled them.
All applicants were interviewed by Respondent's newly
hired personnel director, Harold Smith, after they had first
been given application forms by Jewell's former nurse,
Dorothy Christianson, or by Jewell's former superinten-
dent, Barefield, and had filled out the forms in a room
separate from that in which they were later interviewed.
Among those interviewed on October 20 were seven of the
alleged discriminatees, all of whom had been officers or
otherwise active in the Union, and whose tenure with
Jewell had ranged from 13 to 27 years. Another alleged
discriminatee, Vera Stevens, with 8 or 9 years' tenure with
Respondent and whose union dues were being checked off
pursuant to a voluntary assignment when the Jewell plant
closed, applied on October 22. Still another alleged
discriminatee, Lurleen Williams, having 18 years' tenure
with Jewell, and who was a union officer at the time the
plant closed, applied on October 31. None of these nine
employees had been hired by the date of the second
hearing in this case. Let us turn now to the evidence
regarding each of these nine-their prior experience with
Jewell, their union activities, and what was told them at the
time they applied. The seven who applied on October 20
will be treated first.
Kathleen Brown had worked for Jewell for more than 18
years prior to the shutdown of the plant by the Trustee
about November 16 or 17, 1972. At the time of the
shutdown she was the Union's chief stewardess, was one of
its trustees , and was on the contract negotiating committee.
For most of her 18 years she had worked in the cutting
department as a knife sharpener. She had also learned to
do other things in that department, such as weighing,
cutting hocks, and sawing while filling in for the people
who were on vacation or ill. She had also, according to her
credited testimony, worked for about 3 months in the
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eviscerating department under Superintendent Barefield
during the first 2 or 3 years of her employment .-5 In that
department she had worked on the giblet table some,
sharpened knives, and cut necks and livers when regular
employees were absent.
Brown did not spell out all of her experience on her
application form. She wrote only "Cutting Dept." in the
space inquiring about what "Dept." she had worked in;
and she wrote "Knife Sharpener" in response to the
inquiry as to "Type Work Wanted." However Superinten-
dent Barefield, who had been employed by Jewell for over
31 years and who, as shown infra, assisted Smith in
deciding who to hire, was present during the time Smith
interviewed her. He knew of her prior work experience, as
well as her prominence in the Union. Smith told Brown
that he was looking only for experienced eviscerating
employees at that time and asked Brown if she would be
willing to do anything else besides the knife-sharpening
work she had been doing and she replied that she would.
He told her that he would call her if Respondent started up
a cutting line or if it could not get enough experienced
hands in the eviscerating department. Smith later noted on
her application "Will Train," (meaning, as he explained it,
that she would be willing to be trained for eviscerating
work) and that she should be called before noon. He also
wrote on her application that a knife sharpener who had
been working on the maintenance crew had already been
hired.
Kathryn Greber had worked for Jewell for more than 14
years prior to the plant shutdown. She was the Union's
recording secretary for about 8 years and its vice president
for about 3 years. She also served on the Union's
negotiating committee several times and was a member of
the Union's executive board for 3 or 4 years. She was also
on the union dues-checkoff list at the time the plant closed.
At the time the plant closed Greber was a line leader for
the precooked boning line. She had worked as a scaler in
the precook department, but precook work was seasonal
and during slack periods in precook she and others were
farmed out to other departments. During these slack
periods Greber had worked in the cut-up department and
in the eviscerating department. She had, according to her
credited testimony, worked in the eviscerating department
"many, many times through the years," when she had
performed a variety of tasks, including cutting good meat
from condemned birds, picking feathers, and rolling
giblets.6
Greber, like Brown, did not mention all of her work
experience with Jewell on her application form. She
mentioned only "Pre-Cook" as the department in which
she had worked, did not fill in the blank inquiring as to
"Type Work Wanted" and in listing the types of work she
had previously performed in the poultry industry, men-
tioned only "Scaler" while in the employ of Jewell and
"Bagger" while in the employ of another poultry concern.
She wrote under "Remarks" on the application, "I am
looking forward to coming back home to work." The nurse-
5 I do not credit Barefield's testimony that she had never worked for him
in the eviscerating department.
6 The latter task, according to Superintendent Barefield, consisted of
rolling the neck , gizzards , heart, and liver in a paper and , while performed-in
his department, was not done under his supervision and was not considered
secretary, Christianson, was in the office while Greber was
being interviewed by Smith. Smith, after reading her
application, told her that he noticed that she was a precook
employee and that Respondent was hiring only experi-
enced eviscerating hands at that time. Greber replied that
she "had worked from the front door to the back door of
the plant in every department." He nevertheless reiterated
that he was hiring only experienced eviscerating hands and
that if he was unable to get enough experienced ones he
would call her. Smith wrote on her application form "No
Pre-Cook Available."
Ollie Mae Mincey had worked for Jewell for more than
21 years prior to the plant closure. During practically this
whole period she had been a union steward. She had also
served on the Union's negotiating committee and was on
the dues-checkoff list.
At the time the plant closed she was a box maker for the
whole plant. She had also worked in every department-
from picking feathers in the picking department through to
the pack-out department. During the early period of her
employment with Jewell and prior to making boxes for the
cutting department, she had worked for 6 or 7 years in the
eviscerating department under Barefield, drawing, picking
the feathers, peeling gizzards, cutting gizzards, and doing
whatever other type of eviscerating work there was to be
done.
On her application, Mincey indicated that she had
worked in "All Departments" and wanted "the same" type
of work. She wrote, "Box and Supply, Cutting" to indicate
her prior experience with Jewell. She also wrote under
"Remarks," "I'll be glad to get back." Both Barefield and
Christianson were in the office with Smith when the latter
interviewed her. After looking at Mincey's application,
Smith told her that Respondent was then hiring only
experienced eviscerating employees. Mincey, according to
her credited testimony, then explained that she had worked
in the eviscerating department for 6 or 7 years at one time
under Barefield, before she had been assigned to making
boxes in the cutting department.? He told her that he
would call her if and when he needed her. According to
Smith, he wrote on her application "Call any time" and
"Will train," the latter notation meaning that she was
willing to train for other work such as eviscerating work.
He testified that he did not recall her saying that she had
worked in eviscerating for 6 or 7 years. He further testified
that the cutting department work at which she indicated on
her application she had had experience was not com-
menced until March or April 1974, and that the applica-
tions of 12 employees for that work were obtained from
walk-ins.
Dora S. Pethel had worked for Respondent for more than
14 years prior to the plant shutdown. She had been a union
steward for 4 or 5 years and had also been on the contract
negotiating committee. Her union dues were being checked
off by Jewell at the time of the plant shutdown.
Although her regular work with Jewell had been as a
boner in the precook department, that work -had been
by him a part of eviscerating work. He testified that he did not remember
Greber working in the eviscerating department.
7 Barefield testified that he did not remember her working in the
eviscerating department.
CAGLE S, INC. 613
seasonal and during seasonal slacks she had been farmed
out to the eviscerating, cutting, and packing departments.
While in the eviscerating department, she had not only
worked on the giblet table, but had also picked feathers
and transferred chickens.8 At another poultry company
where she worked while waiting to be recalled by Jewell,
she worked in the packing department where she weighted
and graded chickens, placed them in boxes, and set them
on belts which took them to the shipping department.
On her application she indicated only that she had
worked in the precook department at Jewell, did not
indicate which type of work she wanted and listed as the
type of work she had done the precook work at Jewell and
packing at another poultry company after her layoff from
Jewell. Christianson was present in the office when Smith
interviewed Pethel. Pethel told Smith that she was applying
for any type of work she could do. He mentioned that
Respondent was starting on a small scale and hiring only
experienced eviscerating help. Pethel mentioned that at the
place she was then working she had acquired experience in
the packing and grading departments and would like
something along that line if something opened up. Smith
replied that later on Respondent might have something of
that nature and that he might call her. Smith at the hearing
indicated a knowledge of the type of work Pethel had been
doing subsequent to the Jewell shutdown. He wrote "Call
around 8 p.m." on her application.
Ida Mae Pinson had worked for Jewell for over 27 years
prior to the plant shutdown. She had been a union steward
for 4 years and was on the dues-checkoff list at the time the
plant closed.
For the last 24 years of her tenure with Jewell, Pinson
had worked in the cutting department, but for several years
prior thereto, she had worked in what was then known as
the "eviscerating, picking and ice packing" department
where she had "dried chickens" and helped Barefield and
others pack them in ice packs. She credibly testified that
she had also graded chickens, put them in boxes, and
shipped them and had drawn the chickens (an eviscerating
job) when this work needed to be done .9 Pinson has since
then, while working in the cutting department, worked off
and on in the eviscerating department whenever she has
been needed there.
On her application she indicated only that she had
worked in the cutting department, wanted that type of
work, and was then performing that type of work at
another poultry company. Barefield and Christianson were
present while Smith interviewed her and the subject of her
long tenure with Jewell was mentioned. Smith told her that
Respondent would not be having a cutting department and
asked whether she would not be interested in some other
job. She replied that she "sure would." He said that he
would contact her and asked if there would be anyone at
home to answer the phone. She said that her brother would
be there. Smith asked if she would be interested in learning
some other job and she replied that she would. He next
inquired whether she had ever worked in the eviscerating
department. She replied that she had and described her
8 Barefield testified that he did not recall Pethel working in the
eviscerating department.
9 Barefield testified that he did not remember her work in eviscerating as
experience during the several years when all Jewell had was
the "eviscerating and picking department and ice packing."
Smith said that Respondent would probably call her in a
few days.
Smith wrote on Pinson 's application form , "Call any
time" and "Will train ." He did not deny that he told
Pinson that he would probably call her in a few days and
explained that he told applicants in general "that if we
needed them and could find them that I would be in touch
with them."
Barefield , later that day, wrote on Pinson 's application,
"Was offered eviscerating but said that she would rather
wait for something else." Pinson, when shown this writing
on the application, denied that Barefield or anyone else
had ever offered her a job at the plant . She credibly
testified that other than at the time of her interview she
never saw Barefield again except when she and another
employee made several trips to the office to see about
getting their money out of the credit union . Barefield
testified that after Pinson's interview by Smith he told
Pinson and other employees in the hallway that Respon-
dent was hiring only experienced eviscerating employees at
that time and that Pinson had remarked that she did not
believe she would be interested in eviscerating or that she
would rather wait for something else. It was on the basis of
this statement, he testified, that he wrote the above-
mentioned statement on her application. He acknowledged
that he had not in fact offered her an eviscerating job and
that the statement to that effect was in error.
Hazel Wehunt, having a tenure of over 13 years with
Jewell, and Juanita Woody, having a tenure of over 21
years with Jewell , came to the plant together on October 20
and were interviewed together. Neither of them was an
officer or steward in the Union, but each had been a
member for several years and was on the dues-checkoff list
at the time the plant closed . Each had also assisted the
Union in recruiting new members as new employees were
hired.
Each had worked as a cutter in the cutting department
and so indicated on their applications . Barefield and
Christianson were present while they were being inter-
viewed. Smith told them at that time that he was just
starting up one line in eviscerating . He marked on each of
their applications "Will train"-meaning that they would
be willing to train for that work-and that they should be
called after 5 p.m. Barefield volunteered that Respondent
planned to start a small cut-up line about the first of the
year and asked if they would not rather wait for that work.
Each indicated that she would . Barefield said that he
would call them.
The cut-up line, employing 12 people, was not actually
started up until late March or early April. According to
Smith, knowing 2 or 3 weeks in advance when the line
would start, he had time to recruit all the help Respondent
needed from walk-ins . Neither he nor any other representa-
tive of Respondent called Wehunt or Woody, as Barefield
had promised.
a draw hand but acknowledged that she had worked in eviscerating on a
spot basis.
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Barefield subsequently wrote on Wehunt's application,
"Did not want eviscerating work was offered." At the
hearing Barefield conceded that he had not in fact offered
Wehunt an eviscerating job and what he wrote on her
application was a result of confusing her with her sister-in-
law, to whom he did offer an eviscerating job which she
declined. During the conversation in which he made this
offer to the sister-in-law, he had called her "Hazel" and she
had corrected him and informed him that Hazel was her
sister-in-law. Barefield could not explain why he had
nevertheless written on "Hazel's" application a statement
which he then knew to be incorrect.
Vera Stevens did not file an application until October 22,
2 days after Respondent had started interviewing appli-
cants . She had worked for Respondent for 8 or 9 years
before the plant shutdown. She was a member of the
Union, was on the dues-checkoff list, and at times had
sought to recruit new employees in her department as
union members.
Stevens had worked on the breadline in the precook
department most of the time while working for Jewell, but
she had also done other types of work.
Only Smith was present when she was interviewed. On
her application she had mentioned only that she had
worked in the precook department on the breadline. Smith
explained to her that Respondent would not be operating a
precook line and asked her what other kind of work she
had done. When she told him she had worked in the pack-
out line, he wrote "Pack-Out" in the blank provided for
"Type Work Wanted" and asked her at what times she
could be reached. She told him any time after 6 p.m. and
he wrote that on the application and told her he would call
her within a week or two if something came up in the pack-
out department. Smith specifically inquired as to whether
she had had any eviscerating experience and she replied
that she had cut giblets, had cut, hung and racked off
chickens and also that she had rolled giblets.
Smith's only explanation for not hiring Stevens was that
her application showed she had experience in the precook
department and that Respondent was not operating a
precook department. He also stated that Respondent had
already hired all the eviscerating department employees it
needed on October 20.
Lurleen' Williams, who worked for Jewell for over 18
years, did not apply for work until October 31, 1973. At the
time of the plant closure, she was a union steward, a
member of the Union's board of trustees, a member of the
contract 'negotiating committee and was on the dues-
checkoff list.
For the last 15 years of her 18 years with Jewell, Williams
had worked in the eviscerating department. Prior thereto
she had worked in the picking department. In the
eviscerating department Williams did transfer work, that is,
10 Barefield gave a different account of this encounter with Williams in
January. He testified that he met her on the stairway and asked whether she
was coming back; that she said she did not know ; that he then responded,
"Why don't you come on back and work for us," to which she replied that
she was working at Pillsbury , had a vacation coming up, and guessed she
would stay down there. Barefield further testified that he went to the office
and asked Smith whether Williams had been in to see him, and that after
Smith replied that she had not Barefield told Smith about his conversation
with Williams . Barefield then pulled her application and wrote on it, "Was
she would pick the chickens up, hang them on a line, and
keep them going through the showers. Jewell's former
personnel director had commented at one of the negotiat-
ing meetings that Williams was one of the best and fastest
hands he had ever seen and he did not know how she did
it.
Williams and her husband came together to apply for
work on October 31. They were interviewed by Smith, in
the presence of Christianson. On her application she
indicated that she had worked in the eviscerating depart-
ment and had done transfer work for Jewell as well as for
another employer subsequent to the plant closure. After
looking over their applications, Smith told Williams and
her husband that he would let them know something in a
few days about a job.
In-January 1974, preparatory to starting up a second
eviscerating line on January 21, Respondent placed an ad
in the local newspaper for more employees, stating that
"Experienced eviscerating department personnel preferred
but would consider inexperienced" and that applications
would be received on Saturday, January 19, and thereafter.
In January 1974, apparently shortly before this ad was
placed, Williams, having heard nothing from Smith,
returned to the plant to check on her application.
According to her credited testimony, Smith told her that
Respondent had no opening for a transfer job which
Williams had applied for. He told her, however, that
Respondent was going to open up another eviscerating line
and asked if she would be interested in any other type of
work. She replied that she would be interested. After
Williams left the office and was still in the plant, she met
Barefield. He asked her where she was working and she
told him that she was still at Pillsbury, where she was
working when she filed her application in October. He did
not ask her about coming back to work or offer her a job 10
Smith testified that he could not remember talking to
Williams either on October 31 or in January, but that,
assuming she did apply on October 31, as she testified (the
date on her application was left blank), Respondent had all
the eviscerating hands it then needed. Since Smith was new
at the plant and did not personally know any of the old
Jewell employees, it may well be that at the time of the
hearing he did not specifically recall any-of the applicants
or what he or they said during the interviews.
The record shows that there were six union stewards
working at the time of the plant shutdown. Neither they
nor any of the union officers, trustees, or members of the
contract negotiating committee were ever hired by Respon-
dent. Six of the nine alleged discriminatees had been union
stewards, officers, trustees, or members of the negotiating
committee, most of them serving in several of those
capacities. The other three had been on the Union's dues-
checkoff list and had assisted the Union in recruiting new
offered work but said she would stay at Pillsbury." Williams impressed me
as a thoroughly reliable and honest witness and I find it inconceivable that
she would have returned to the plant in January to check on her application
and told Smith that she would be interested in other types of work as well as
transferring in the eviscerating department, then almost immediately
thereafter tell Barefield that she was not interested in coming back. I am
satisfied that the notation Barefield wrote on Williams application was no
more accurate than the notations he wrote on the applications of Hazel
Wehunt and Ida Mae Pinson , which he concedes are inaccurate.
CAGLE'S, INC. 615
members . Respondent had the information regarding
union stewards and those on the checkoff list available to it
at the time it interviewed and hired employees, for the
Union had notified Jewell each time a union steward was
appointed and Respondent kept all the old Jewell records,
including the checkoff lists. Was Respondent's refusal to
hire all the union leaders who applied the result of a desire
on its part to create "a leadership vacuum in the bargaining
unit" (Golden State Bottling Co. v. N.LR.B., 414 U.S. 168
(1974)), or was the refusal a mere happenstance unrelated
to union activities?
To answer this question, let us first examine the
explanations given by Respondent's representatives at the
hearing. Respondent's principal witness in regard to the
employment needs of Respondent and the method of
selecting applicants was Smith, its personnel manager,
hired by Respondent on October 10, 1973. His prior
experience had been limited to the transportation field. He
had had no experience in the chicken processing business.
According to Smith, he is the person who prepared the
newspaper ad announcing that the Jewell plant was
reopening, that excellent jobs for both men and women
would be available, that former Jewell employees meeting
employment requirements and rehired would retain their
seniority status and that Personnel Manager Smith or Plant
Manager Kiser would talk to people desiring a job. Prior to
the placing of the ad in the newspaper, however, he
submitted it to Cagle's management and obtained manage-
ment's approval. On October 20 when Smith began
interviewing applicants, Respondent already had its feed
mill and hatcheries in operation and did not need
employees there. Its immediate needs for the plant's
reopening on November 5 or 6, according to Smith, were
for 59 eviscerating department employees and 12 receiving
department employees, a total of 71 employees, and those
are the only classifications of employees Smith hired on
October 20 to start working on November 6. Smith
acknowledged that Respondent would also need packers
when it started operating about November 6 but explained
that he believed he would be able to hire a sufficient
number for that operation from walk-in applicants. It was
stipulated that by November 14 there were 115 employees,
44 more than those hired on October 20, working in the
processing plant and presumably they or most of them
were hired from walk-in applicants. Respondent has not
explained why, if it intended to hire only eviscerating and
receiving department employees on October 20, it did not
so state in its newspaper ad or why it did not so inform
employees prior to the time they filled out their applica-
tions. Nor has it explained why it encouraged former old-
time Jewell employees to apply by holding out the promise
that they, would retain their seniority status when it
intended to pay no attention to their applications or the
further information obtained during their interviews,
unless their primary, experience was at eviscerating or
receiving work.
Smith testified , consistently with the testimony of most
of the alleged discriminatees, that he told the alleged
discriminatees "that if we needed them and I could find
them that I would be in touch with them." Yet, he
concededly filed their applications away and never again
referred to them, hiring instead applicants who walked in
from the street for positions at which the alleged discrimi-
natees had had experience. Indeed, he hired approximately
1,150 employees to maintain a steady work force of not
exceeding approximately 277, without once attempting to
call any of the alleged discriminatees, with their 8 to 27
years of experience at the plant. His only explanations
were that it was easier to hire from the walk-ins than to
refer to the applications and that the alleged discriminatees
might have been hired if they had continued to check on
their applications and returned to the plant at a time when
he needed them. This, it seems to me, is a lame excuse,
especially since he had promised to call the alleged
discriminatees when he could use them and had taken the
pains to write on their applications the hours at which they
could be reached at home.
Smith was not at all a frank witness . He sought to leave
the impression that since he did not know any of the
applicants or their union sympathies, he could not have
discriminated against them on the basis of their union
positions or sympathies. He gave quite inconsistent
testimony on the subject of who made the decision as to
whether an applicant should be hired.
At the hearing in April, which was devoted to the issue as
to whether Respondent had unlawfully refused to bargain
with the Union, he testified that although he was not given
any instructions in regard to hiring employees Plant
Manager Kiser and Plant Superintendent Barefield helped
him. It was they, according to Smith, who made the
selection as to which of the applicants would be hired, for
when the plant was reopened Respondent was looking for
experienced eviscerating personnel and they had had many
years of experience at that work.
At the hearing in August when the question whether
Respondent had discriminated against employees on the
basis of their prominence in the Union was an issue, Smith
testified, on direct examination, that he made the decision
"more or less on the spot," after talking to each applicant,
whether or not to hire him. He further testified that he did
not receive any advice from anybody as to who to hire or
not to hire. On cross-examination, however, after being
questioned about the applications on which Barefield had
made notes to the effect that the applicant had been
offered and declined an eviscerating job, and conceding
that Barefield had informed Smith that he had offered
those employees a job, Smith was questioned and gave
answers as follows:
Q. As amatter of fact, no one was doing any hiring
but you that day, were they?
A. Most of it, yes, all of it.
Q. You did it all, didn't you, sir?
A. Yes.
Q. So that if Mr. Barefield was in the room and he
knew these people and knew their experience and knew
their capabilities, if you wanted to know something
about an applicant, would you ask him if he was in the
room or did you ask him, do you know Miss Pinson?
A. I could have asked him, yes, if he was there.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. But only you hired that day?
A. Yes. Made the final decision, yes.
Q. Did anyone else hire anybody but you?
A. Not to my knowledge.
Q. . . . What was Mr. Barefield's role?
A. He was a Jewell employee, had been there and
never left.
Q. Was he not assisting you on that day?
A. No, I wouldn't think so. He was just there.
Q. But he wasn't assisting you?
A. No, he didn't tell me who to hire.
* * * *
Q. Did he or did he not assist you in any way
during the hiring on October 20?
A. He assisted by helping take up applications,
passing them out, and first one thing and then another,
yes. He was there assisting, in a broad sense of the
word.
* *
Q. Did he have the authority to make those job
offers that he made to the people there. He has today,
as indicated on the applications?
A. Yes, if he had okayed it with me.
Q. Were they final offers, those that we referred to
today, as far as you're concerned?
A. As far as I'm concerned, yes.
Q. He did, in fact, assist you in offering jobs to the
applicants?
A. To some of them, in those cases, yes.
Barefield, who did not testify at the first hearing but
followed Smith on the witness stand at the August hearing,
conceded that he had taken a personal part in the decision
as to whether some of the applicants who applied in
October were hired. He testified that he was particularly
interested in seeing that the eviscerating department
employees who were working when the plant closed were
rehired and to accomplish this: "I would go in and I'd tell
Mr. Smith, I'd say, this is the people that worked for me
before, they worked here before. That is all I'd say to him."
The information thus imparted was, of course, supposedly
already on the applications of these former employees and
it is difficult to understand how a comment such as that
assertedly made by Barefield could have served any useful
purpose-unless it was a signal to approve or disapprove
the hiring of an applicant. In attempting to assist in the
selection of former employees, as we have already seen,
Barefield upon three occasions wrote false statements on
the applications of the alleged discriatees-those of
Pinson, Wehunt, and Williams-indicating that they had
11 There is testimony by Kathleen Brown that the door to the office was
open while she was waiting in line for an application and that she observed
Christianson standing behind each applicant being interviewed by Smith
and nodding or shaking her head at times but that Brown could not hear
what was being said . Other alleged discriminatees interviewed on October
been offered and had declined eviscerating jobs. I cannot
believe that these misstatements were inadvertently or
innocently made. Nor am I convinced that Barefield in fact
did not remember the eviscerating experience of six of the
alleged discriminatees, as he testified.
I am persuaded that Smith's role in interviewing and
hiring applicants was a somewhat perfunctory one, the real
decision, at least with respect to the former Jewell
employees, being made by Barefield or Personnel Manager
Kiser, as Smith testified at the first hearing, or by even
higher management. Barefield, by reason of his long tenure
with Jewell, and in a position similar to that now held by
him with Respondent, was in a position to know the
identity of the union stewards and officers. Plant Manager
Kiser, with the assistance of Nurse-Secretary Christianson
who handled the payroll records, was in a position to learn
which Jewell employees had been on the union checkoff
list and other information about the union prominence of
the former Jewell employees." Evans, in overall charge of
the Jewell operations, was also probably in a position to
know some of the union leaders, since he was president of
Jewell from 1967 to 1969. Neither Evans, Kiser, nor
Christianson were called to testify at the hearing regarding
the alleged 8(a)(3) violations.
According to their undisputed and credited testimony,
the work of none of the alleged discriminatees had been
criticized while they were working for Jewell. Each, while
working under former Jewell management, had some
experience in one or more of the positions which
,Respondent was filling on and after October 20, as
Respondent knew. As to a few there may not have been
openings available on October 20, but jobs at which they
had previous experience thereafter became available. For
example, even as Smith was purportedly hiring employees
on October 20 only for eviscerating jobs, he knew that
when the plant started operating Respondent would be
needing packing department employees too (jobs which at
least three of the alleged discriminatees, Pethel, Pinson,
and Stevens, had previously performed). In explanation for
not hiring packing department employees then, Smith
explained: "We had a couple of weeks before November 5
that we could get the packing department. We figured we
could get walk-ins for that." He knew also that Respondent
would need employees in the picking department, where
two employees are employed to pick feathers (an operation
at which Greber, Mincey, Pethel, and Williams had
previous experience). He knew that Respondent would
later set up a cutting line (at which Brown, Greber, Pinson,
Wehunt, and Woody had previous experience) and
although this line was not in fact started until late March
or early April 1974, Respondent did not offer any of the
alleged discriminatees this work, Smith explaining that,
since Respondent knew 2 or 3 weeks in advance of starting
the line that it would need 12 cut-up employees, it was able
to recruit them from walk-ins.
Even as to the eviscerating jobs, however, for which
Respondent says it was interviewing applicants on October
20 confirmed that Christianson was standing behind them as they were
interviewed . The inference sought to be made from this testimony is
apparently that Christianson was giving Smith a signal as to the union
proclivities of the applicant. While this is possible , I do not make any
finding based upon this speculative kind of evidence.
CAGLE'S, INC. 617
20 and again in January 1974, six of the applicants (Brown,
Greber, Mincey, Pethel, Pinson, Stevens, and Williams had
had previous experience, the latter 18 years of experience).
I believe, moreover, that Respondent has purposely
overemphasized the importance of experience. The eviscer-
ating department, like other departments at the processing
plant; was mechanized . The purpose of mechanizing the
operations, according to Evans, was, inter alia, to "make
jobs easier" or "to require less skilled labor." Evans
described the new automated eviscerating department
operations as follows:
Moving on into the eviscerating operation, we cut
our hocks automatically which requires no trimming
further down. We have the new vent cutters and oil-bag
cutters that are automated. We have the new eviscerat-
ing machines that eviscerate this poultry where it used
to be done by *hand. We have lung equipment that
removes the lungs from the birds automatically. This
was done by hand in the old operation. And we have
neck cutters which cut the necks now; that was done by
hand in the old operation.
Accordingly, even the experienced eviscerating department
employees would have had to learn the new methods.
Indeed, it night well be argued that other former Jewell
employees who had no previous eviscerating department
experience could also have learned as quickly as regular
eviscerating department employees how to operate a
machine which now performs work formerly done by hand.
In any event, it is clear from the record that, but for
Smith's hiring of walk-ins from the street instead of calling
the alleged discriminatees as he promised he would do,
each of them would have been hired for eviscerating
positions or other positions she was capable of filling, even
if no such position was immediately available when the
plant reopened.
I am convinced under all the circumstances that
Respondent adopted a hiring strategy designed to avoid
the hiring of the Union's leaders, in the hope that it could
in that way destroy the Union's majority status and relieve
itself of an obligation to bargain with the Union. I realize
that three of the alleged discriminatees (Wehunt, Woody,
and Stevens) were not union officers or stewards and had
merely joined the Union, signed union dues-checkoff
authorizations , and sought to sign up new union members.
Since Respondent did hire a number of other former Jewell
employees who were union members and on the checkoff
list, I do not believe it failed to rehire these three for that
reason. Wehunt and Woody had indicated on October 20,
in response to a suggestion by Barefield, that rather than
take an eviscerating job they would wait until Respondent
started a cut-up line, and Stevens was waiting for a pack-
out line job about which Smith promised to call her in a
week , or two . But for Respondent's policy, adopted for
discriminatory reasons, to hire walk-ins rather, than call
any of the employees whose applications were on file, I am
convinced that these three would have been hired when
12 I have reached this conclusion independently of any consideration as
to whether Respondent is the alter ego of Jewell . Regardless of whether
Respondent is an alter ego, it may not lawfully discriminate against
applicants on the basis of their union leadership or activities. What
openings in their regular or preferred line of work
occurred. Accordingly, they, like the six union stewards or
officers, must be regarded as victims of Respondent's
discriminatory hiring policy, and Respondent's refusal to
rehire them, like its refusal to rehire the six union stewards
or officers, was in violation of Section 8(a)(3) and (1) of the
Act. Steves Sash and Door Company v. N.L.RB., 401 F.2d
676, 680-681 (C.A. 5, 1968), and cases cited therein.12
CONCLUSIONS OF LAW
1. All production and maintenance employees em-
ployed by Respondent at its processing plant, feed mill,
and hatchery in or about Gainesville, Georgia, and its
hatchery at Royston, Georgia, including local truckdrivers,
but excluding all office and clerical employees, over-the-
road truckdrivers, sales employees, professional employees,
guards, and supervisors as defined by the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
2. At all times pertinent herein, the Union has been and
now is the exclusive bargaining representative of the
employees in the above-described appropriate unit for
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
3. Respondent, while operating the J. D. Jewell, Inc.,
plant and facilities under a management agreement
approved by the court in a bankruptcy proceeding, has
been and is an alter ego of J. D. Jewell, Inc.
4. Respondent, on or about August 20, 1973, and
continuously thereafter, has refused to recognize and
bargain with the Union, in violation of Section 8(a)(5) and
(1) of the Act.
5. By refusing on and after October 20, 1973 to hire the
employees named below, Respondent has discriminated in
regard to their hire and tenure of employment to
discourage membership in the Union, in violation of
Section 8(a)(3) and (1) of the Act:
Kathleen Brown Vera Stevens
Kathryn Greber Hazel Wehunt
Ollie Mae Mincey Lurleen Williams
Dora S. Pethel Juanita Woody
Ida Mae Pinson
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
The Remedy
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(5), (3),
and (1) of the Act, my recommended Order herein will
require Respondent to cease and desist therefrom and take
certain affirmative action necessary to effectuate the
policies of the Act.
To remedy the 8(aX5) violation, Respondent will be
required, upon request, to bargain collectively with the
Union as the representative of its employees in the unit
additional obligation, if any, Respondent may have had toward the old
Jewell employees by reason of its alter ego status is something which I need
not and do not decide
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein found appropriate and if an understanding is
reached, upon request, to embody such understanding in a
signed agreement.
To remedy the discriminatory refusals to hire the nine
employees listed in the Conclusions of Law, my recom-
mended Order will require that Respondent offer to each
of them a position at the processing plant of the kind which
she previously held with J. D. Jewell, Inc., or which by
reason of her work experience at the time she was
interviewed she is capable of filling, and make each whole
for any loss of pay she may have suffered by reason of the
discrimination against her, with backpay computed on a
quarterly basis, plus interest at 6 percent per annum, as
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962). Since two of the employees, Wehunt and Woody,
indicated at the time they were interviewed on October 20
that they preferred to wait for the opening of a cutting line
rather than take a job on the eviscerating line, Respon-
dent's backpay liability as to them will start only from the
date, around the last of March or first of April 1974, not
specifically shown in the record, when a cutting line was set
up. As to six of those who had previous eviscerating
department experience-Brown, Greber, Mincey, Pethel,
Pinson, and Stevens-backpay liability will start on
November 6, 1973, the date the first eviscerating line
started operating. As to Williams, who did not apply until
October 31, by which date all employees then needed for
the first eviscerating line had already been hired, backpay
liability will commence on the date after November 6,
1973, when the first vacancy occurred on that line.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended:
ORDER 13
Cagle's, Inc., Atlanta and Gainesville, Georgia, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain, upon request, with Allied
Workers District Union No. 454, Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-
CIO, as the exclusive bargaining representative of the
employees in the following appropriate unit:
All production and maintenance employees employed
by Respondent at its processing plant, feed mill, and
hatchery in or about Gainesville, Georgia, and its
hatchery at Royston, Georgia, including local truckdri-
vers , but excluding all office and clerical employees,
over-the-road truckdrivers, sales employees, profession-
13 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
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.
al employees, guards, and supervisors as defined by the
Act.
(b) Discriminating in regard to the hire or tenure of
employment or any term or condition of employment of
employees because of their union leadership or activities.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit described above, and if an understanding
is reached, upon request, embody such understanding in a
signed agreement.
(b) Offer to each of the nine employees listed below a
position at the Gainesville processing plant which it has
been found she was capable of performing at the time she
applied for work, without prejudice to her seniority and
other rights and privileges:
Kathleen Brown Vera Stevens
Kathryn Greber Hazel Wehunt
Ollie Mae Mincey Lurleen Williams'
Dora S. Pethel Juanita Woody
Ida Mae Pinson
(c) Make each of the above-named employees whole for
any loss of pay she may have suffered by reason of the
discrimination against her in the manner described in the
section hereinabove entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, 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 backpay due under the
terms of this Order.
(e) Post at its Gainesville, Georgia, plant and other
facilities copies of the attached notice marked
"Appendix." 14 Copies of the notice on forms provided by
the Regional Director for Region 10, after being duly
signed by an authorized representative of Respondent,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including , all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that the notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
14 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.'