Neuhoff Bros., Packers, Inc.

National Labor Relations Board - Board Decisions

Mar 22, 1965

151 N.L.R.B. 916 (N.L.R.B. 1965)

916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT enter into nor give effect to individual employment contracts
with employees in the appropriate unit composed of:
All production and maintenance employees , including working leadmen,
employed by the Employer at its Paragould , Arkansas, plant, excluding
office clerical employees , professional employees , engineering department
employees , watchmen , guards, and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of the right of self-organization , to form labor
organizations, to join or assist Lodge No. 1568, International Association of
Machinists , AFL-CIO, or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in any other con-
certed activities for the purposes of collective bargaining or mutual aid or
protection , or to refrain from any and all such activities.
WONDER STATE MANUFACTURING COMPANY
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE-We will notify the above-named employee if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 746 Fed-
eral Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No.
534-3161, if they have any question concerning this notice or compliance with its
provisions.
Neuhoff Bros ., Packers , Inc. and United Packinghouse , Food and
Allied Workers of America, AFL -CIO. Case No. 16-CA-2073.
March 22, 1965
DECISION AND ORDER
On December 29, 1964, Trial Examiner Arthur E. Reyman issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found that Re-
spondent had not engaged in certain other unfair labor practices
and recommended that these allegations of the complaint be dis-
missed. Thereafter, the General Counsel and Respondent filed
exceptions to the Trial Examiner's Decision and supporting briefs.'
1 By an order dated January 19, 1965, the Board extended the time for filing of excep-
tions until January 27 , 1965, and for the filing of briefs until February 2, 1965 Re-
spondent filed its exceptions within the specified period , and on February 1, 1965, filed
its brief . In its brief, however , Respondent "restated" its exceptions We shall disregard
any matters contained in the "restated" exceptions which were not contained in the
exceptions which were timely filed.
151 NLRB No. 103.
NEUHOFF BROS., PACKERS, IN C. 917
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board
has delegated its powers in connection with this case to a three-
member panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and briefs, and the entire
record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner as modified herein.
1. The Trial Examiner found that Respondent violated Section
8(a) (1) of the Act by a series of speeches made by Respondent's
president; by certain letters sent to the employees and their families;
and, by the circulation of pamphlets and other printed propaganda
material during the course of the organizing campaign. The General
Counsel, however, did not allege in the original complaint or in
the amended complaint that Respondent violated the Act by such
conduct. Indeed, the General Counsel asserted during the hearing
that he was not alleging that such conduct was unlawful and that
evidence as to these matters was offered solely for the purpose of
demonstrating Respondent's hostility to the organization of its
employees. Under these circumstances, we do not believe it would
be appropriate to adopt the Trial Examiner's finding that Respond-
ent violated Section 8(a) (1) by its speeches, letters, and other anti-
union material circulated at the plant.
2. The Trial Examiner found that Respondent did not violate
Section 8(a) (3) of the Act by discharging employee Billie Joe
Willie, and that Willie had been discharged for cause .2 The Trial
'Examiner also found, however, that Respondent refused to rehire
Willie for discriminatory reasons and had thereby violated Section
8(a) (3) and (1) of the Act.
All that appears on the record in this respect is that Respondent's
Vice President Hamzy and Respondent's Counsel Dunlap agreed
to interview Willie ostensibly for the purpose of affording Willie
an opportunity to relate his version of the circumstances leading
to his discharge and consideration of his application for reemploy-
ment. It appears that Dunlap utilized the interview mainly to
interrogate Willie with respect to the pending unfair labor practice
charges against Respondent, and informed Willie at the time that
the Company intended to defend itself against the unfair labor
practice charges, including the charge that Willie had been dis-
2 The General Counsel did not take exception to the Trial Examiner 's findings in
this respect.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criminatorily discharged . After Dunlap had completed his inter-
rogation of Willie, Hamzy retrieved Willie's employment application
before Willie had a chance to complete it , and refused to rehire him.
The record shows that at the time of Willie's discharge, Respond-
ent had demonstrated its strong opposition to the organization of
its employees , and that Respondent had reason to believe that
Willie was an active union adherent . The Trial Examiner con-
sidered these facts in connection with the allegation that Willie
was discharged for discriminatory reasons, but the Trial Examiner
concluded that Willie was discharged for cause . We find nothing
in the conversation between Willie and Hamzy and Dunlap, nor
are we referred to any other evidence on the record , which would
support the inference that Respondent 's reason for refusing to
rehire Willie was different from that which caused Respondent to
discharge him.
Accordingly , we shall dismiss the allegations of the complaint
in this respect.
3. The Trial Examiner found , and we agree , that Respondent
violated Section 8 ( a) (1) of the Act by coercively interrogating em-
ployees with respect to their union activities , threatening employees
with economic reprisal for their union activities , and indicating to
employees that the Respondent engaged in surveillance of their
union activities ; and that Respondent also discriminatorily dis-
charged employee Franklin because of his union activities in viola-
tion of Section 8(a) (3) of the Act.
At the hearing before the Trial Examiner , the General Counsel
was permitted to amend the complaint by adding allegations that
Respondent acting through its counsel , Dunlap, violated Section
8 (a) (1) of the Act by interrogating employees in a coercive manner
as to the testimony the employees were to give in connection with
the instant unfair labor practice proceeding . The Trial Examiner
dismissed this allegation on the ground that the interview between
Respondent and Willie had been arranged by Board Agent Boyd.
The Trial Examiner did not make any reference to the incidents
involving employees Lewis and King.
The undisputed evidence on the record shows that Dunlap inter-
viewed Willie 3 on August 5, 1964, and employees Lewis and King
on September 28, 1964, in Hamzy's office as to the testimony these
employees were to give in the pending unfair labor practice pro-
ceeding. In order to assure employees that their statutory rights
will be safeguarded , the Board has established certain standards
9 Although Willie had been discharged prior to this date , he was an applicant for em-
ployment at the time of the interview and, therefore, enjoyed the protection of the Act.
See Shawnee Industries Inc., Subsidiary of Thiokol Chemical Corporation , 140 NLRB
1451, 1452-1453.
NEUHOFF BROS., PACKERS, IN C. 919
for the conduct of such interviews.4 As the record herein establishes
that Respondent was openly and vigorously hostile to the Union,
and that the employees were not advised of their right not to make
statements or assured that no reprisals would be taken against them,
we find that Respondent did not meet the minimum standards for
such interviews. Accordingly, we find that Respondent violated
Section 8(a) (1) of the Act by Dunlap's interrogation of Willie,
Lewis, and King.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
its Order the Order recommended by the Trial Examiner, with the
following additions and modifications :
1. Substitute the following for paragraph 1(b) :
"(b) Threatening employees with economic reprisals in the event
they select a labor organization as their collective-bargaining agent,
interrogating employees as to their union membership and activities
in a manner violative of Section 8(a) (1) of the Act, indicating to
employees that their union activities are under surveillance, or in
any like or similar manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to
form, join, or assist the Union herein or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection as guaranteed
in Section 7 of the Act, or to refrain from any and all such activities."
2. Substitute the following for paragraph 2(a) and 2(b) :
"(a) Offer to Floyd Franklin, Jr., immediate and full rein-
statement to his former or substantially equivalent position, with-
out prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have suffered by
reason of discrimination against him, in the manner set forth in
the section of the Trial Examiner's Decision entitled "The Remedy."
"(b) Preserve and, upon request, make available to the Board or
.its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary or appropriate to analyze the amount
of backpay due Floyd Franklin, Jr."
3. Add as paragraph 2(c) the following:
"2. (c) Notify the above-named employee if presently serving
in the Armed Forces of the United States of his right to full rein-
* See Johnnie's Poultry Co , 146 NLRB 770
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces."
4. Substitute the following Appendix :
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended, we hereby notify
our employees that :
WE WILL NOT discourage membership in United Packing-
house, Food and Allied Workers or America, AFL-CIO,
or any other labor organization, by discriminating against
employees in regard to their hire or tenure of employment
or any term or condition of employment, or in any like or
related manner interfere with, restrain, or coerce our em-
ployees in the exercise of their rights to self-organization,
or any other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
WE WILL NOT threaten our employees with discharge
because of their union activities on behalf of said Union,
or any other labor organization; interrogate employees with
respect to their union activities and membership in a manner
violative of Section 8(a) (1) of the Act; or indicate to em-
ployees that their union activities are under surveillance.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of their
rights to self-organization, to form, join, or assist the above-
named or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
WE WILL offer to Floyd Franklin, Jr., immediate and full
reinstatement to his former or substantially equivalent po-
sition, without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earnings he
may have suffered by reason of the discrimination against
him.
NEUHOFF BROS., PACKERS, INC. 921
WE WILL notify the above-named employee if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after dis-
charge from the Armed Forces.
NEUHOFF BROS., PACKERS, INC.,
Employer.
Dated-------------- By-----------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from
the date of posting, and must not be altered, defaced, or covered
by any other material.
Employees may communicate directly with the Board's Re-
gional Office, Sixth Floor, Meacham Building, 110 West Fifth
Street, Fort Worth, Texas, Telephone No. Edison 5-4211, Ex-
tension 2131, if they have any questions concerning this notice
or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act, as
amended, 29 U.S C. Sec 151, et seq., herein called the Act
United Packinghouse, Food and Allied Workers of America, AFL-CIO, herein-
after sometimes called the Union, on June 23, 1964, filed an original charge, on July 6,
1964, a first amended charge, and on July 20, 1964, a second amended charge, it
being asserted as a basis for each charge and amended charge that Neuhoff Bros.,
Packers, Inc., hereinafter sometimes called the Respondent or the Company, has
engaged in and is engaging in certain unfair labor practices affecting commerce as set
forth and defined in the Act. On August 5, 1964, the General Counsel of the National
Labor Relations Board, herein called the Board, on behalf of the Board, by the
Regional Director for Region 16, issued a complaint against the Respondent with
notice of hearing, the complaint alleging that the Respondent had engaged in and
was engaging in certain unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act. Timely answer was filed on behalf of the Respondent, effectively
denying the violations set forth in the complaint 1
Pursuant to notice, this case came on to be heard before Trial Examiner Arthur
E. Reyman at Dallas, Texas, on October 14, and was closed on October 16, 1964.
At the hearing, the General Counsel and the Respondent each was represented by
counsel , and the Union was represented by its field representative. Each party
was afforded the right to call, examine, and cross-examine witnesses, to present
evidence relevant to the issues, to file proposed findings and conclusions, to present
oral argument, and to file briefs. Briefs have been filed on behalf of the General
Counsel and the Respondent and have been carefully considered
Upon the whole record in the case, and from my observation of the witness, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times material herein, a corporation duly
organized under, and existing by virtue of, the laws of the State of Texas, maintain-
ing its principal place of business at 2821 Alamo Street, Dallas, Texas, where it
1 Certain amendments to the complaint were allowed at the hearing and amendments to
the answer were allowed.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is engaged in the livestock slaughtering business. During the year immediately
preceding the issuance of the complaint herein, which period is representative of
all times material herein, the Respondent in the course and conduct of its business
operations shipped meat products valued in excess of $50,000 directly to points out-
side the State of Texas, and during the same period of time it received cattle and
meat directly from points outside of the State of Texas valued in excess of $50,000.
The Respondent is now, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Packinghouse, Food and Allied Workers of America, AFL-CIO, is, and has
been at all times material herein, a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Issues of Fact
These may be briefly stated: (1) Whether the Respondent by certain named agents
threatened employees with termination of a Christmas bonus and a retirement
plan; (2) whether the Respondent by its supervisors and agents, William Conaway,
Joe Talbert, and Arnold Zajdl, on certain dates orally interrogated employees at
the plant concerning their union membership, activities, and desires; (3) whether
the Respondent by its supervisor and agent, Joe Talbert, on or about April 9, 1964,
threatened employees of the Respondent at the plant with discharge because of
their union activities; (4) whether the Respondent by its supervisor and agent, Joe
Talbert, on or about April 16 and 30, May 14 and 28, and June 29, 1964, created
the impression of surveillance at the plant by stating to employees that the Respondent
knew when union meetings were taking place and how many employees attended
said union meetings; and (5) whether the Respondent discharged employees Billy
Joe Willie on June 9, 1964, and Floyd Franklin on June 29, 1964, because they
joined or assisted the Union or engaged in other union or concerted activity for
the purpose of collective bargaining or mutual aid or protection. The complaint alleges
that all of the alleged activities of the Respondent were in violation of Section
8(a)(1), and that the discharges of Willie and Franklin were in violation of
Section 8(a)(3) of the Act.
Union Organizational Activities
At the times pertinent hereto, the Respondent employed somewhat more than 700
production and maintenance employees at its plant.
On or about February 1, 1964,2 several men employed by the Respondent called
on Leo Scott, a field representative for the Union, and as a result of this meeting
these employees, constituting an organizing committee, with the aid of Scott, com-
menced an organizational campaign among the employees at the plant. Names
and addresses were obtained through employees' license plates, and on February 19
the Union mailed letters, with union authorization cards attached, to approximately
250 plant employees, and thereafter, after having received a substantial number of
signed cards returned to them, sent letters to the employees who had returned
signed cards, requesting a union meeting. The Union held its first meeting about
March 8, and subsequent meetings were held every Sunday during the next 4 months
On March 16 the Union began the distribution of handbills, starting handbilling
once a week from 2 until 6 p.m, and from 8 until 11 p.m. The handbilling was
at the plant entrance and continued until about the first week in June. As more
cards signed by employees came in, more letters were mailed to employees. In
all about 250 letters were sent during the month of February, about 300 the first time
and 300 to 400 the second time in March, and from then on during the course
of the campaign, 300 to 600 letters per month were sent The original organizing
committee of employees appointed by Scott were Allen Ray Lewis, Floyd Franklin,
Billy Joe Willie, John Salters, and Laif Miller.
On June 22, Scott, for the Union, addressed a letter to the Respondent , assert-
ing that the Union represented a majority of the production and maintenance
employees in a described unit, offering to prove the Union's majority status, request-
ing recognition of the Union as the exclusive bargaining agent for the employees
2 Unless otherwise noted, all dates hereinafter mentioned are for the year 19434.
NEUHOFF BROS., PACKERS, INC. 923
in the described unit, and asking for a date of meeting for the purpose of negotiat-
ing a contract between the Union and the Company with respect to hours, wages,
and other conditions of employment of the employees in that unit. The Company,
by its attorney, Fritz Lyric, on June 24, acknowledged the Union's letter of June 22
and advised that the Company "has a strong doubt that you represent a majority
of their employees, and we, therefore, on behalf of our client, refuse your request for
recognition." On June 25, Scott acknowledged Lyne's letter of June 24, repeated
the offer of the Union to prove its majority status by submitting signed authorization
cards to a mutually selected impartial person, naming three suggested qualified
persons, and inviting the Company to suggest qualified persons in the event the
names offered by the Union were not acceptable. Attorney Lyne responded to
this letter, under date of June 30, in which he said that it had come to the attention
of representatives of the Company, from what they considered reliable sources,
that a number of instances existed where unauthorized persons had affixed other
persons' signatures to union authorization cards, and that there was a strong pos-
sibility that a number of the cards had signatures of men who could not possibly
be included in an appropriate bargaining unit. Therefore, the request made in the
Union's June 25 letter was refused; the Union was referred to the election procedure
provided in the Labor Management Relations Act; the Union was advised that "it
would appear appropriate for you to request a National Labor Relations Board
election in order to establish your status in a proper and legal manner." On July 6,
Scott replied to Lyne, acknowledging the latter's letter of June 30, expressing the
willingness of the Union to have the authorization cards held by the Union authenti-
cated and counted by a mutually acceptable third person, suggesting that if the Com-
pany would not agree to a card check, the Company agree to a consent election to
be conducted under the auspices of the Board, and renewing and continuing the
Union's request for recognition.
Before his letter of July 6 to Lyne, and July 1, Scott, on behalf of the Union, filed
a petition for certification of representative with Region 16 of the Board (Case
No. 16-RC-3720). A hearing was held in Fort Worth, Texas, on July 27 and 28; a
Decision and Direction of Election was issued by the Regional Director on August 31;
an election was held on September 22, which the Union lost 347 to 315, with
43 challenges which were determinative of the election. The Regional Director
has not yet determined whether the challenged ballots should be counted. It
appears that the Union by its field representative, on September 28, filed a "request
to proceed" with the Regional Director: "In the matter of Neuhoff Bros., Packers,
the undersigned hereby requests the Regional Director to proceed with the above
captioned representation case notwithstanding the charge of unfair labor practices
filed in Case No. 16-CA-2073. It is understood that the Board will not entertain
objections to any election in this matter prior to the filing of the petition."
Company Policy
The Respondent, from the beginning of the Union's campaign, acted according to
a policy of opposition to union organization. It was the Company's position that
the Union did not represent a majority of employees in an appropriate bargaining
unit Further, management believed that union representation would not be ben-
eficial to the employees and would be detrimental to the best interests of the Company.
Having very soon decided after the inception of the Union's organizational efforts,
top management met with its attorneys and its top supervisors and foremen for
the purpose of instructing the supervisors and foremen concerning company policy
and what it intended to do to discourage union organization. The supervisors and
foremen were told that it would be permissible for them to speak to employees
concerning existing benefits provided by the Company and to inform employees in
general terms of the Company's position in regard to union organization and its
feeling that it would not be to the benefit of the employees to be represented by the
Union in collective bargaining. The supervisors and foremen were specifically
warned not to interrogate employees concerning their union memberhip or activities,
not to in any way threaten the withdrawal of existing benefits, and not to promise
anything to the employees if they would not aid or join the union or other employees
in concerted activities on behalf of the Union
Subsequently, and beginning on or about March 4, Henry Neuhoff, Jr., the presi-
dent of Respondent, gave a series of speeches or talks to employees assembled within
the plant, the employees having been notified of the meetings by their foremen or
leadmen. After this time, the Respondent mailed a series of communications in the
form of letters and questions and answers to employees and their families. Some
foremen did talk to individual employees as hereinafter related.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is obvious that company policy could be maintained lawfully only if manage-
ment, including its supervisors, adhered to it strictly and manage not to infringe
on the rights conferred upon its employees by Section 7 of the Act. That it did not
lawfully attain its objective clearly appears from the activities of its officers and
agents.
Letters and Other Material from Company to Employees
A newspaper story carried in the March 3, 1964, issue of the Fort Worth Star-
Telegram with a headline "Gas Bomb Hurled at Non-Striker's Home" was reproduced
and mailed by the Company to individual employees about the same time the
Union began its organizing efforts at the Respondent's plant. The news story
reported that a member of the United Packinghouse Workers of America, of the
welfare committee of Local 620, tossed a "Molotov cocktail" on the porch of an
employee who had been engaged in picketing at a plant where Local 620 was on
strike. This excerpt or reproduction of the news story had a hand-blocked message
at the top as follows:
THESE TWO PAGES ARE EXACT REPRODUCTIONS FROM FRONT
PAGES OF THE FORT WORTH STAR-TELEGRAM. This is one example
of the misuse of union power. This is the same Union which asks your support.
You vote of "NO" against the Union will be in complete secrecy. You have
nothing to fear. No one but yourself need ever know how you voted.
Also on the front of this newspaper article, hand blocked, was the following message:
"Now look on the back of page to see just how much this Union Welfare Committee-
man really did know about the bombing " This message referred to a newspaper
article with a headline "Packer Admits Watching Man Toss Explosives," the article
itself reporting that a number of the Local 620 welfare committee had admitted
that he was in an automobile from which an individual tossed a "Molotov cocktail"
on the porch of the employee who was picketing at the plant struck by Local 620.
Subsequently, the Company sent to its employees an excerpted article from the
AFL-CIO News, of Washington, D.C., dated June 22, 1963, the article describing
the closing of a meatpacking plant in Sioux City, Iowa, owned by Armour & Co. The
closing of this plant was reported to have caused 1,100 members of Local 34 of
the Packinghouse Workers to lose their jobs.
A booklet was distributed to the employees containing pictures of babies with
various visual contortions or expressions, the pictures being captioned by words
connoting that the baby represented a union official or representative, and belittling
them. The final page of this booklet contains language intended on the surface to
cause a reader to consider the disadvantages as against the benefits of union organiza-
tion. The booklet is entitled "You Can't Fool a Baby!"
Shortly after the Board had ordered an election to determine the representation
question in Case No. 16-RN-3720, the first of a series of letters signed by President
Neuoff directed to "Dear Neuhoff Employee and Family" was mailed, this letter
being followed by other letters all on the letterhead of Neuhoff Brothers. The first
letter refers to the pending election and describes election procedure. It includes
statements that the Company "believes that a Union would be bad for the employees
and bad for the Company" and that "we intend to fight the Union in every way we
can and stay within the law."
The second letter, following shortly after the first, is company propaganda pure
and simple and undertakes to point out to employees the advantages they enjoyed
as employees of Neuhoff Brothers, and refers to other companies in the area repre-
sented by the Union whose plants were closed or where employment was sharply
reduced. Another document circulated among the employees and their families
is entitled "Some Questions and Answers About a Union" and is again a company
propaganda vehicle.
A letter carrying the date September 4, 1964, to "Dear Neuhoff Employees and
Family" discusses the company benefit program from the Company's point of view
in some detail. The following day another question and answer letter was sent to
the employees and the answers propounded are obviously slanted to discourage union
membership.
A final letter to "Dear Neuhoff Employee," dated September 10, is signed by Jack
Craft, a supervisor, in which he strongly urges the Company's position in opposition
to the Union and concludes by saying, "I would consider it a personal favor if you
will weigh all the facts very carefully-and then vote 'NO' in the election."
The General Counsel contends that the newspaper excerpts above referred to
represent a prime example of the violent union animus possessed by Respondent and
demonstrates an effort to engender fear into the minds of its employees by attempt-
NEUHOFF BROS ., PACKERS, INC. 925
ing to convince them that union officials are criminals and that when a union comes
on the scene it spells nothing but strikes , conflicts, and bloodshed . It further is urged
on behalf of the General Counsel that the excerpt from the AFL-CIO News con-
stitutes a part of the Respondent 's pattern to instill fear into the minds of its
employees by equating union representation with loss of jobs , and by depicting unions.
as synonymous with decimation of job security . The baby booklet is said to sketch,
a picture of the Union as disinterested in the employees it represents and hints that
unions are controlled by bosses who are criminals ; that the exhibit portrays the event
of a union as synonymous with strikes and loss of pay as far as Respondent 's employ-
ees are concerned . Counsel for the General Counsel summarizes what he considers
to have been conveyed in the letters directed to the employees and their families,.
as follows: admonishing the Respondent 's employees that a union would be bad for
them and for the Company and bring its employees to vote against the Union;,
attempting to inculcate fear into the minds of the employees by adopting the thesis.
of equating union representation to loss of jobs and loss of job security and pointing
out the futility of a union to represent them because it would be detrimental to the
employees ; that the letters contained the same veiled threats and message of fear
that union representation is equal to loss of jobs, loss of job security , and strikes.
An examination of the content of these various communications discloses a plain
intent to present the Company's disapproval of the Union and a strong effort to
persuade its employees to adopts its point of view.
Speeches of the Company 's President to Employees
On March 4, President Henry Neuhoff , Jr gave the first of a series of speeches
to the employees at the plant . He spoke four separate times on that day to four
different groups , delivering the same sentiments each time. He had before him a
memorandum or an outline of points covered in his speech , which he apparently
following rather closely.3 Each employee had been notified before the meeting
attended by him by his foreman or a leadman that the meeting would be held; there
is credible testimony from several employees to the effect that they would not have
attended except for being so notified , and assumed that attendance was obligatory.
Be that as it may, the meetings on March 4 , as well as the subsequent meetings, were
held on company premises during working times and the employees were compensated
for the time spent by them at such meetings . At the first meetings , held in the plant
cafeteria on March 4 , Neuhoff, Junior, exhibited a letter sent to the employees by
the Union on February 19, commented on it, and proceeded to express his views
concerning the benefits which the Union might be able to promise or obtain as
against existing benefits. He indicated that it was his belief that the Union desired
representation of employees in order to raise money in the form of union dues without
particular regard to the welfare of the employees ; that the Company could not be
forced to enter into an agreement with the Union , which might cause a strike result-
ing in financial loss of the employees as well as the Company; that the only thing
the Union could do was to make promises to the employees as to what the Union
hoped it could accomplish ; that in his opinion it would be better for the employees to
bargain individually with their Employer rather than to attempt to bargain through
the Union if the Union became the employees ' representative . Comparison was
made between the wages and benefits of the Respondent and those of companies.
referred to by name as Rath, Texas Meatpackers , including guaranteed hours of work,.
hours, take -home pay, sick pay, vacations , premium pay , holidays, insurance pension,
plans, knife sharpening , funeral leave , rest periods or coffee breaks , profit sharing,
and Christmas bonuses After commenting again on his belief that all the Union
was interested in was dues from the employees , the following comment was made:
Anything they promise you, they got to come to management and they got to sit
down and bargain . And, you all never had to bargain with us, and you don't
have to pay anybody to bargain for you now. And if we can 't agree-say the
Union was representing you all. And , they came in and said , "We want so-and-
so," and we said , "Well, we don't think that 's right, we don't want that." They
say, "Well, you go to," and we say, "No, we don ' t have to." So , what happened
back in '51? Maybe some of you remember that? So, they had a strike around
3 The memorandum followed by Neuhoff , Junior , for this speech as well as memorandums
used for other speeches hereinafter mentioned , were not available at the hearing. A tape
recorder was used and Neuhoff ' s remarks recorded at each one of the times he spoke on
March 4, as well as the other times he spoke, mentioned below. Tape recordings were
read into the record at the hearing , no written transcription was made available.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and who got hurt? We had a lot of disruption and a lot of people got hurt and
no-it didn't help anybody. The Company got hurt. The employees got hurt.
But, it didn't help anybody.
During this talk, Neuhoff, Junior, made it clear that in his opinion the Union
could not accomplish anything more for the employees than what the employees
already had. He closed this speech by the following comment:
Now, you can see if there is 1,000 people here and they can get $5 a month,
they can get $5,000 a month. That's a pretty good take for doing nothing.
Because I guarantee you, they can't do anything for you. I don't care what they
tell you.
Obviously Neuhoff felt, and told the employees, that it would be futile for the
employees to select the Union as their bargaining agent.
President Neuhoff again addressed from two to five audiences on April 3, again
asserting his belief and urging the employees that it would not be to their best
interests to select or designate the Union as their bargaining agent because such an
agent could accomplish nothing for them that they did not already have. On this
date, Neuhoff told the employees, in part:
Now I presume that they are going to offer you more or better wages. But did
they ever tell you how they are going to get it? There is a question I want you
to think about. They promise you anything. They can tell you and have you
believing black is white maybe, and make you believe it. That they could do
this for you and that they are going to do that for you. Did you ever ask them
how they are going to do its I want to say to each and every one of you right
here and now that the Union can't force your Company to do anything and, I
want to repeat it. The Union can't force your Company to do anything. Why
not ask them how far they are going to make us pay anything? I think that is
a fair question. It is something you ought to think about.
So, I want to talk to you to let you know how the Company feels; and I want
you all to use your own thinking. We have already been over the benefits
There is nobody can touch the benefits that I can find. What they are promising
is a promise. They haven't told you how they are going to do it, but I am saying
to you that the Union can't force the Company to do anything. You are looking
at me and I am telling you. Somebody else says well so-and-so says so-and-so;
this is nothing like that, I am telling you right now. You are looking at me and
you know who I am. I am telling you they can't force the Company to do any-
thing. I just want to get that point straight. I don't care what they tell you.
You can believe me if you want to; if you don't, that is your privilege But, I
have never yet made any statement to you that I couldn't back up over the period
that you have all been here since 1932 and that is a long time.
I wanted to bring these points before you to give you the Company's thinking
on the whole thing. The best way is not to vote for it and let's get this mess
behind us and get it done with.
President Neuhoff on May 1 spoke to several audiences, saying that it had been
"almost 2 months now since we met in this room to discuss the matter of union
agitators wanting to come into our plant." He proceeded again to view and compare
existing benefits with other companies, the question of dues, job security, and so on:
They have not told you that the Company could not give individual merit in
raises under a union setup. They do not mention all of the strikes, conflicts,
and many times bloodshed, that we read about in the newspapers. Just recently,
according to the newspapers, the FBI arrested some union agitators who were
trying to blow up the railroads in Florida. Have they mentioned the ugly word
"strike"; the idle days; the loss of pay that always goes with the strike? Haven't
they told you that you may be called out on strike; have they told you that
economic strikers may be replaced permanently9 They haven't told you that
the Government guarantees your right not to belong to a union. T could go on
and on telling you reasons why we don't want a union here and why we don't
think you want a union here. After all, what is good for the Company is good
for the employees; what is bad for the Company is bad for the employees.
* * * * * *
Now, I undeistand that there are some bad leaders amongst us. And, they
are dissatisfied. I want to ask you this and I want to ask these agitators; if they
are dissatisfied with their jobs, why are they staying here? I think a man stays
NEUHOFF BROS., PACKERS, INC. 927
on a job that is satisfied. Otherwise, he would go some place else. If he is not
satisfied, why don't he go to work at the Texas Meat Packing Company. And,
talking about these agitators, I say again, take a good look at them. They are
promising you one thing and we are telling you another. It will be up to you
to decide if they can deliver what they promised or if what we are telling you-
if what we are telling you straight about what the Union can and cannot do.
But, remember what I told you when we last met. The Union cannot force the
Company to do anything.
Allen Ray Lewis testified to a speech President Neuhoff made on May 8 to some
50 employees in the same canning room during working hours. Lewis testified:
He said, "I guess you all know who I am. If you don't, I hope you do. I
know that some of you have signed cards and some of you want them back and
I want you to know that you have a right under the law to get them back. If
you go and ask for them and they do not give them back to you, that will still be
all right. Because, if it comes to an election, which I doubt, you can still vote
against the Union. Then, if it goes to an election, I believe that I have enough
loyal employees to defeat the Union by a landslide."
Again, Lewis testified that President Neuhoff on September 21 told the employees in
the fancy meat department:
He said that he wanted to thank all the people for bearing with him through the
campaign and that he knew that he had been hard on them. He said that he
did not want to keep them too long, but in view of his tour through the plant
and the greeting that the people had given him he was sure that we would win
this election by a landslide. He said that he had one more thing that he wanted
to tell the people and he wanted to tell them to think about it when they go into
the ballot. He said on one side of the ballot you have your company who you
know have been fair with you and honest and have never lied to you. He said
that on the other side, you will have the United Packinghouse Workers Union
with their vague promises that they cannot possibly deliver and their sorry
record. He said that he wanted us to think about it and he let them think for
a moment, he said, "I will repeat that on one side of the ballot, you have your
company who you know have always been honest and fair with you and never
lies to you. On the other side of the ballot, you have the vague promises,
promises that they cannot possibly deliver and the sorry record of the United
Packinghouse Workers Union; I want you to think about it carefully before you
mark your ballot."
On September 23, the day after the election, Neuhoff spoke to the entire plant
complement on the back dock at the plant saying, according to Lewis
Good morning-and it is a good morning, I want to thank all the good people
who voted against the Union and stood by me in this thing. You people will
never know how much I appreciate it. All of those who don't like the way
things are being run around here, the gate is always open to you. Don't think
you will make Mr. Joe or Mr. Martin or myself angry by leaving. Now, you
can get on back to work like you was before this union agitating started.
The recordings of all the speeches of Neuhoff read into the record are too lengthy
to repeat. I have chosen the above parts of speeches which seem to me to be fairly
representative of the whole tone of the Neuhoff talks. The literature sent to the
employees from time to time during the period over which these speeches extended,
which necessarily had some impact upon the employees, coming as they did from
management, combined with the interviews of employees by supervisors and the
discharges of two of the most active adherents to the Union (mentioned below),
necessarily requires a strict construction of Section 8(c) of the Act. Warnings of
possible strikes with consequent loss of employment, inferences of danger to existing
benefits, or the possible curtailment of employment in the plant if the Union should
be successful in its campaign, are inherent within many of the comments contained
within the several speeches. Considered together, and in sequence of time and event,
I find that the Respondent, through its president, by these speeches, exceeded the
permissible limits of the free speech provisions contained within Section 8(c) of the
Act. I find that in full sum the remarks contained within Neuhoff, Junior's speeches
were unlawful in that they plainly were calculated to arouse employees' fear of losing
their jobs and create the impression that selection of the Union as their representative
would be futile. The speeches go far beyond an exercise of the Employer's protected
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right to inform employees that unionization might entail disadvantages. The situa-
tion here is similar to the factual situation in Herman Wilson Lumber Company,
149 NLRB 70. There, the employer had advised his employees that he did not want
a union in the plant and would fight it in every legal way possible.
Interrogation and Threats
Henry Neuhoff III, assistant to the superintendent, attended the meetings of super-
visors and foremen when they were instructed as to the extent of their permissible
activities in talking to employees about the Union. According to the uncontradicted
testimony of Billy Joe Willie, on or about April 1 Neuhoff III talked to Willie in the
toolroom and discussed the fringe benefits provided by the Respondent. Neuhoff III
expressed the view that the Union could not do a better job for the employees than
the Company already had done; that the Company had been in existence for 32 years
without anyone having to tell it what to do and that he did not understand how a
strange person could do more for the employee than the Company had already done
for him.
The supervisor of the loading department, Joe Edward Talbert, testified that he
was in attendance at the meetings where foremen and supervisors were instructed
concerning the avoidance of unfair labor practices.
On or about April 9 he approached employee Floyd Franklin, Jr., who was under
his supervision, and talked to him at a spot near the beef cooler. According to the
testimony of Franklin, Talbert told him that he was talking to him as a part of a
companywide interview which the Company had undertaken for the purpose of
informing employees of the benefits which the Company had provided its employees;
that Talbert related what the then present benefits were and then brought up the
subject of the Union. Franklin, in response to Talbert's question as to what he
thought of the Union, said that he thought the Union was to the benefit of all employ-
ees and that he was going to push it all he could, whereupon Talbert said that the
employees did not need a union, were doing all right without one, and that if he
found out that any man in his department had signed a card he would fire him Refer-
ring to what appears to be the same conversation, Talbert, on cross-examination,
denied that he had asked Franklin if he had signed a union card or that he had told
Franklin that he did not believe the Union would help him. He said that on one
occasion, on April 13, Franklin walked up to him near the back dock and asked
Talbert how many employees had signed cards, to which Talbert replied he did not
know; Talbert said that Franklin then remarked that the Union did not make sense
to him, informing Talbert that "some guys inside the plant that came to him that
day and tried to get him to sign a card and, also, to be a mouthpiece for them "
Franklin said that Talbert on April 27 told him that he heard there was a union meet-
ing the previous day and that not too many employees had attended it. Again, accord-
ing to the uncontradicted testimony of Franklin, on May 11 Talbert approached him
on the back loading dock and told Franklin that he had heard that there was a union
meeting the previous day and that not too many employees attended. Franklin said
that Talbert approached him a third time on May 25 at the back loading dock and
told Franklin that he had heard there was a meeting "yesterday" and that not too
many employees had attended it. On June 3, between 2:30 and 3 o'clock in the
afternoon, as Franklin was leaving the plant, he was stopped by Talbert and told by
him that he had made a mistake and he had better watch himself. Franklin said
Talbert did not explain himself but just turned and walked away and that Franklin
does not know even now what mistake Talbert was talking about.
William Conaway, supervisor over fancy meats, tank and hide departments, testi-
fied to a conversation he had with employee Allen Ray Lewis on April 16. He tes-
tified that somewhere around 2 o'clock on that afternoon:
I went down there and told him [Lewis] I would like to talk to him about the
company benefits, some of the company policy which we discussed in the form
of the insurance and hospitalization and the doctor insurance and the insurance
policy which was covered on each employee after they are there a year. And
Allen Ray asked me one question on-he asked me the question if a man had
worked there lacking a few months being 20 years, if the Company would allow
him to work the following few months to complete his 20 years. I told him that
I did not know the answer to that question right then, but I would get it for him.
I also asked him if he knew that the Union was trying to organize the plant he
NEUHOFF BROS ., PACKERS, INC. 929
said yes, that he had heard it and that he had gotten some letters and papers and
that he had not read them all but he had read most of them. I told him he had
the same right not to sign a card as he had to sign a card and at no time did I
mention the Company bonus.
Lewis testified that after Conaway had explained to him the fringe benefits then in
effect, Conoway told him that if the plant went union there would be no more Christ-
mas bonus or retirement plan Conaway said that he was present at the meetings
with management, had received instructions not to promise anything, threaten employ-
ees, or interrogate them about their union activities; that he observed these instruc-
tions when he talked to a substantial number of employees.
As further evidence of the animus held by the Company against union activities,
testimony was introduced showing that on September 22 at the Regional Office a
preelection conference was held at the Respondent's plant in the foreman's lounge
at which Attorneys Lynne and Dunlap and Vice President Hamzy were present with
a representative of the Board and the Union. At that meeting the Respondent was
advised that because Willie and Franklin were parties to this unfair labor practice
case and allegedly had been discharged in violation of Section 8(a)(3) of the Act,
they had a right to vote in the election to be held at the plant that afternoon, and
that Respondent had a right to challenge their votes. Between 2 and 6 p.m. on that
day, when the election was in progress, Willie and Franklin attempted to vote but
were prevented from doing so by Boyd Neuhoff who ordered them off the plant
premises. The Regional Office representative, who was present, advised Boyd Neu-
hoff of the right of these two employees to vote which Neuhoff ignored. The effect
of the Company's refusal to permit these two men to vote at this particular time in
a public place when other employees were present, as they were, could have affected
the thinking of the other employees who witnessed the episode
During the preparation of this instant case for trial, L. C. King was called into
the Company's office where he met with Attorney Dunlap in Hamzy's office and in
the presence of Conaway was questioned by Dunlap concerning Willie's conversa-
tion with Conaway on the day Willie was discharged, and other questions were asked.
During this interview King said Conaway, during the course of his conversation,
referred to the fact that he overheard Conaway tell Willie that he had heard that
Willie was one of the union leaders, and referred to a "god-damn union card."
King refused to sign the record of this interview with Dunlap, which was reported
by a Dallas County, Texas, court reporter.4 Allen Ray Lewis was taken by Conaway
to Hamzy's office on September 28, and was questioned by Attorney Dunlap in the
presence of Conaway and a court reporter. Lewis refused to give a sworn statement.
King testified as follows:
He [Dunlap] told me that he was preparing a defense on the charges that had
been filed against-unfair labor practice charges-and that he was a company
lawyer. He asked me if I had heard any foremen threatening to cut off any of
the benefits that the Company had if the Union should happen to come in.
I told him, "Well, right now, I couldn't say." He asked me "Did I hear of any
conversation between Orville Hixon and Herbert Square, as to the termination
of Herbert Square." I told him that yes, I had. Then he went back to threaten
to cut off benefits and he said would I make a sworn statement at this time that
I did not hear any of the foremen threaten to cut off any of the benefits that the
Company had. I told him no, that I would not. He told me that would be all.
Then I left.
The General Counsel contends, and Respondent does not deny, that company
supervisors talked to employees on an individual basis during the months of April,
May, June, July, August, and September in regard to the Company's existing benefits
and informed the employees concerning the Company's opposition to the Union.
The proof supports the contention.
4 Counsel for the General Counsel points out that at no time during this conversation
did Attorney Dunlap advise employee King that he need not make a statement, or advise
him that if he desired to make one, that the Respondent would take no retaliatory action
against him. King said that he would not have gone to Hamzy's office to talk to Dunlap
if he had not been asked to do so by Conaway.
783-133-66-vol. 151-60
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The discharge of Billy Joe Willie
The employment record of Willie was good or comparatively good up until Janu-
ary 1, when he became involved in a series of circumstances resulting in his discharge
on June 9. For the period January t through June 9 Willie had a record of absentee-
ism and lateness. He previously had been suspended following a reprimand in
November 1963.5
Willie started work for the Respondent on May 18, 1960, and worked continuously
until the date of his discharge on June 9, when he was fired by Conaway. Generally
he worked in the fancy meat department, occasionally working in other departments
as needed. He advanced from $1 50 per hour to $1.75 per hour and in January 1961
and again in July 1962 received merit increases. According to his testimony he had
never been criticized because of his work performance, although, as noted, he had
been reprimanded and suspended.
Willie signed a union authorization card on April 22 and became a member of the
original union organizing committee on May 2. After that, he was active in solicit-
ing employees to join the Union in attending union meetings, and during this time
before working hours, at lunch periods, and engaged in such union activities after
working hours. He solicited and acquired four signed union authorization cards.
On January 27, April 20, and May 8 Willie was absent from work without permis-
sion, according to the testimony of Conaway. Willie, having damaged his uncle's
car, and being unable to obtain a loan from Respondent's credit union, did not report
to work on Friday, June 5. On that day he attempted to obtain a loan from several
different loan companies in Dallas in order to have the car repaired. He was unable
to obtain a loan from any loan company. About 1 p.m. on Monday, June 1, he went
to the plant because he wanted to pick up his paycheck and to inform his supervisor,
Conaway, why he did not report to work on that day. According to Willie, he met
Conaway on the parking lot at the plant, situated near the hide cellar, and told
Conaway the reason he did not report for work. Willie says that Conaway offered
to assist Willie in getting a loan from the credit union. Willie testified that he was
not reprimanded by Conaway for not reporting by telephone and explaining his
absence according to company rule, and that Conaway did not reprimand him in any
way for not reporting to work 6 Conaway then drove Willie to the main part of the
plant where Willie obtained his check, ready the preceding Friday. As Willie was
leaving Conaway said he would see him on Monday.
Willie missed work on Monday, June 8, because on the previous day he had been
arrested in Mineola, Texas, on a drunkenness charge and had spent Sunday night
and all day Monday in jail at Quitman, Texas. Willie was released from jail at 4.30
p.m on Monday, June 8, and was picked up by his uncle who drove him back home
to Dallas, where they arrived at approximately 8 a in. Willie then changed his
clothes, had breakfast, and proceeded to the plant where he arrived at approximately
9 a.m. when he engaged in a search of the plant to find Conaway to explain to him
why he had not been to work on Monday. He met Conaway and informed him that
he could not work on Monday because he was in jail in Quitman and showed Cona-
way the receipt demonstrating that Willie had paid a fine. According to Willie,
Conaway then remarked that Willie had "signed a god damn union card" to which
Willie replied that he had, and told Conaway that he hoped the plant would go union;
that Conaway then told him that he had heard that Willie was one of the union
leaders to which Willie replied that he was and told Conaway that the plant needed
a union to protect the workers; that Conaway then told him that because of this he
and Willie were to part friendship and that Willie was fired. L. C. King, who also
worked in the fancy meat department, testified to overhearing this conversation.
I was impressed by the demeanor of Conaway on the witness stand as contrasted to
that of Willie, and conclude that Conaway's testimony concerning the conversation
between him and Willie at the time Willie was fired on June 9 is to be accepted as
5 The reprimand notice signed by William Conaway, under whose supervision Willie
worked, read "the above employee was reprimanded by me today for not keeping up
with his share of the bead table, he was warned a week ago about the slowness of his
work. Suspended 11/15/63 12 p in. until 11/18/63 7 a in
6 The company records show that Willie was late in reporting to work on January 2,
8, 14, 17, and 18, was 5 hours late on February 24, was late on March 2, 6, 18, 20,
and 25, April 2, 16, 17, 22, 23 24, 27, 29, and 30, May 5, 7, 22, 26, and 29, 41/2 hours
late on June 1 and late on June 4 Willie conceded that in July 1963, August 8, 1963,
February 2, April 4, and May 22, 1964, he had been jailed for drunkenness.
NEUHOFF BROS., PACKERS, INC. 931
more exact than that of Willie. Other than the difference in the places near the
parking lot or on the parking lot where the conversation was supposed to have
occurred, I think that the testimony of Willie that Conaway would and did at that
time refer to a union was first invented by him and repeated to the point where he
believed it. It does not seem probable that Conaway would interpose such a com-
ment when the main subject of the discussion concerned Willie's failure to report to
work. King's corroboration of Willie's statement is not a factual report but is what
was obviously a rehearsed version of what Conaway really said.
Willie said, and Conaway did not disagree with him, that sometime in January or
February Conaway had told Willie that he had been reporting to work late altogether
too frequently, that it appeared that Willie could not get to work at the 7 a.m. start-
ing time, and that Conaway then said that he was going to change Willie's starting
time from 7 to 7:30 a.m. because Willie was too good a worker to lay off.
Following his discharge , Willie applied for unemployment compensation with the
Texas Employment Commission, his application being denied and the denial affirmed
on appeal. His written application on June 9 stated inter alia, "I am no longer work-
ing for this employer because put in jail Sunday night and [did not] get out until
Monday and was unable to work." At that time he had no doubt as to the reason he
was fired.
The question is whether Willie was discharged for cause or whether he was dis-
charged because of his union activities. It is satisfactorily proven that Willie became
a member of the Union's organizing committee on May 2, and that thereafter he was
active in union organization. From Willie's activities, counsel for the General Coun-
sel would have the Trial Examiner draw an inference leading to a finding that Willie
was discriminatorily discharged because of these activities . The facts will not sustain
such a finding. On behalf of the Respondent, it is pointed out and, correctly so,
that Hamzy, assistant vice president of the Respondent, actually discharged Willie.
The discharge was based on reports given to Hamzy by Conaway and others. Fur-
ther, on behalf of Respondent the credibility of Willie as a witness is strongly attacked
and inconsistent statements made by him on the witness stand are emphasized, and
correctly so.
The conversation between Conaway and Willie is reported differently by them.
Willie's version is this:
When I walked up to him and I told him I had been in jail at Quitman and was
not released until 4:30 and that my uncle had come and picked me up, and that
is why I did not come to work until 9. I showed him my receipt-which shows
that I had been in jail-and he looked at it for approximately 3 or 4 minutes
then he told me he heard that I had signed a god damn union card. I told him
that I had and that I hoped that the plant goes union. Then he told me that lie
also heard that I was one of the union leaders. I told him that I hoped that I
was because we needed a union in the plant to protect the workers. He told me
that we was going to part-depart friendship; that I was fired as of now. He
walked off and L. C. talked to him on the steps before you get into the fancy
meat department. After L. C. left, he went on into the fancy meat department
door and I asked him what did he mean by departing friendship, and he told
me that I was fired.
L. C. King's version of the conversation was substantially the same as to what Cona-
way was reported to have said. Conaway's version is somewhat different:
I said, "good morning Willie" and I said, "Willie, how come you did not report
to work yesterday morning7" And he said he was in jail. And I said, "You
know you was down here Friday and we talked about you being off so much
and you promised me you would be in Monday morning and on time." And
he said, "You were not." And he handed me a slip of paper I did not read it,
I gave it back to him and I told him I needed somebody I could depend on that
we were going to have to part company and I went on into the plant.
On August 3, Willie said, he gave the Texas Employment Compensation officials
practically the same story that he testified to as quoted above. The August 3 state-
ment is obviously completely different from his statement given to the commission
on the day of his discharge when he said he was no longer working for this employer
because he was put in jail on Sunday night and did not get out until Monday and
was unable to work."
7 After giving this statement to the Texas Employment Commission on June 9, Willie
got in touch with Scott and upon Scott's advice saw Stewart the next day for his
assistance.
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I do not think that Willie's union activities were such as alone to impel the.
Respondent to discharge him. Certainly he had a poor record of performance for
the period after January until the time his employment was terminated. Consider-
ing all the testimony and its inherent probabilities, I -credit the testimony of Conaway
against that of Willie. I was favorably impressed by the demeanor of Conaway on
the witness stand. I find that Willie had afforded adequate cause and reason to the,
Respondent for his discharge for poor work performance, lateness, and absences.
from work, outside of anything connected with his union activities.
It is argued on behalf of the General Counsel that the uncontroverted record evi-
dence establishes that Respondent discriminatorily refused to rehire Willie on,
August 5. This contention has basis for support.
George C. Dunlap, one of the attorneys for the Respondent was called as a witness.
by counsel for the General Counsel. He testified on July 27 or 28 he was approached!
by Stilton Boyd, a representative of the Regional Office of the Board. He said:
Mr. Boyd had called my office on several occasions and, in fact, twice on the-
telephone within a week, preceding that and kept asking me if we could not
settle the case between Billy Joe Willie and Neuhoff Brothers. Pursuant to that
conversation, I promised Mr. Boyd to pursue our investigation and see what
could come of settling the case. Over there at the R case hearing on the second'
day, he came in and said he wanted to see me when I got back. So, I went back
to his office and sat down he again pursued the matter of wanting to settle the
case. I said, "well if you will send Billy Joe Willie back out to Neuhoff Brothers,
Packers, perhaps they will listen to his side of the story. I do not know. I do•
not have any authority to hire or fire or do anything about it, but, if you are so
interested in settling the case I know they did not talk to Mr. Billy Joe Willie
specifically the day he was fired."
That was the extent of Dunlap's testimony. Subsequently Steward told Willie to
call by the office of the Company and Willie did call there on August 5 Dunlap was
present with Hamzy. According to Willie he arrived at Hamzy's office about 7 a.m ,
saw Hamzy at approximately 8.30 a m. and asked to talk to him, and about 9:30
a.m was instructed to go to Hamzy's office. Dunlap and Hamzy were present
together with a third person, one Dave Handley, when Willie told Hamzy that he
had been notified that if he reported to the plant he would be reinstated to his job.
Dunlap spoke to Willie and Hamzy gave him a job application form, told him to fill
it out just as if Willie was applying for a new job and, said Willie, Hamzy said he
would be reinstated to his job. He said that Dunlap began questioning him while
Hamzy took notes; that Dunlap asked Willie to tell them exactly what had happened
when Conaway had fired him on June 9 and also asked Willie if he had ever brought
any liquor into the plant Willie denied bringing liquor and explained the circum-
stances surrounding his discharge on June 9. Willie says that Dunlap asked Willie
if he had gone to the Texas Employment Commission, to which Willie replied in the
affirmative; that Dunlap then inquired as to why he did not inform them what Cona-
way had said, and Willie replied that he did not think of it at the time. Willie said
that Hamzy then retrieved the job application form, did not afford him a chance to
fill it out, and that he was told to leave the meeting-8
Willie, having been sent in, the Company did not consider his request for reem-
ployment in a lawful, nondiscriminatory manner, and I will find that, without regard
to the fact that the Employer had found good cause to discharge Willie when it did,
he was refused reemployment mainly and basically because of his union activity.
Shawnee Industries, Inc., et al, 140 NLRB 1451, 1452-1453. Plainly, Respondent
violated Section 8(a)(1) of the Act in refusing to reemploy Willie. N L R.B. v.
Burnup and Sims, Inc., 379 U.S. 21. The Respondent violated Section 8(a)(3) in
O It is emphasized on behalf of the General Counsel that at no time during this con-
versation did Dunlap Inform Willie that he was questioning him in order to prepare a
defense for the defendant against the outstanding complaint of unfair labor practices
against the Respondent or advised Willie that he need not make any statement what-
soever, that if Willie desired to make a statement that Respondent would not take any
retaliatory action against him because of the statement; and at no time was Willie
advised that if he desired to give a statement the Respondent would not use it to prevent
him from being rehired at that time. I take it that the General Counsel wishes to have
attributed to the Respondent unlawful interrogation by its attorney under the principles
expressed in Johnnse's Poultry Co., 146 NLRB 770 This I will not do; Dunlap, in his
professional capacity, saw Willie at the request of Boyd.
NEUHOFF BROS., PACKERS, INC. 933
that, having discharged Willie for cause, it then refused to reemploy him, not because
•of prior offenses, but because he was a union adherent. The Little Rock Downtowner,
Inc, 145 NLRB 1286.
The discharge of Floyd Franklin, Jr.
Employee Franklin was an early adherent of the Union and his activities in con-
nection with the organizational efforts of the Union were well known to the Respond-
ent. He signed a union authotization card on March 20 and then became a member
of the Union's organizing committee. Thereafter, he obtained signatures to approxi-
mately 25 authorization cards from employees, soliciting and obtaining these signa-
tures during his breaktime, lunchtime, and in the afternoon after work At these
times he called upon employees in various departments of the plant to solicit and if
possible to obtain signatures He attended union meetings at times which appar-
ently were known to the Company or at least to Talbert, his foreman. On April 13,
Talbert spoke to Franklin at the loading dock, and told him that he had heard that
there was a union meeting the previous day and that not too many employees had
attended it. A similar statement was made by Talbert to Franklin on April 13 and
27 and May 11 and 25. Conaway and Superintendent McRedmond also had knowl-
edge of Franklin's activities on behalf of the Union prior to the time of his discharge.
Franklin had been employed by the Respondent and worked continuously from
September 1951 to June 29, 1964, when he was discharged by Talbert and McRed-
mond. Franklin began working at 97 cents per hour and at the time of his termina-
tion was receiving $2.25 per hour. On April 16 he received an 8-cent-an-hour
increase from $2.17 to $2.25 per hour. In all, from the time he was hired to the
time he was fired, Franklin received 10 or 11 merit increases, and at the time he
received them was told that they were granted because of his good work. During
the first 10 years of his employment Franklin worked as a freezer clerk; in May 1962
he was transfeired to the loading department where he worked as a checker and as
a shipping clerk on the loading dock, and for approximately a year and a half prior
to his discharge he assisted in keeping the time of employees in the loading depart-
ment. He was informed by McRedmond that he was being transferred to the load-
ing department because Talbert needed assistance there and McRedmond felt that
Franklin would fill the job. About a week before he was transferred from the
freezer department to the loading department, Franklin was told by Talbert that the
latter had requested the transfer be made.
With respect to the conversation between himself and Talbert on April 9, Franklin
testified:
Joe Talbert came up to me where I was working at the desk and said for me to
come and go down the hall, that he wanted to talk to me. So, I followed him
down the hall and after he got to the desk, he told me, he said, "Franklin, this
is a plant wide interview. We are talking to all the employees, informing of
the benefits of the Company; what the Company has given them, and telling
all of the employees about it. I want to tell you about the benefits " So, he
went on to tell me about the insurance, retirement plan, bonus, sick leave, sick
pay, and then he asked me, he said, "I know you've heard about the Union;
what do you think about it?" I told him, "I feel the Union is to all of our
benefits and I will push it all I can
So, he told me, when he started to tell me, he said, "Now, you seem like you're a
nice and smart boy so I won't cut any corners with you." So, after he asked me
what I thought about the Union, he told me that we did not need a Union there;
that we were doing all right without it. He said, "If I find out that any man in
my department has signed a union card, I am going to fire them." After I told
him what I thought about the Union, he just started at me and got real red and
that ended the conversation."
Franklin was discharged on June 29 for making a mistake in checking on Friday,
June 26, the workday preceding the day of his discharge. This was one of a series
of mistakes that Franklin had made beginning on April 21, with others on April 27
and 29 and May 11, 13 and 18. Talbert had made a written record of mistakes made
by Franklin after the original discussion about giving Franklin his last pay raise and
according to Talbert the record was kept to see if the pay raise given him on April 16
would cause him to take pains not to make mistakes in the future.
The mistake of June 26, the immediate cause of Franklin's discharge, concerned
the number of boxes of hams to be shipped to an A & P warehouse; the order called
for 400 boxes of hams, 400 were actually received by the warehouse, but Franklin
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had tallied only 380 boxes on Respondent's tally sheet, an order resulting in a mistakeof 20 boxes At this time, Talbert was on vacation and Paul England, assistant fore-
man, was in charge of the department. There is some question as to whether Eng-
land had authorized to let the order go out short or when, later in the afternoon,
when England informed Franklin of the mistake, that England had reprimanded
Franklin.9
Talbert had no authority to discharge an employee on June 29 because the Com-
pany, in its effort to avoid the commission of unfair labor practices when union
activity commenced in March, had changed its policy to allow discharges to be made
only by Henry Neuhoff, Jr., Joe Neuhoff, or Leonard Hamzy. The June 29 incident
was called to the attention of President Neuhoff by Joe Boyd Neuhoff at a meeting
around noon on June 29, the meeting being attended by Neuhoff, Junior, Joe Neu-
hoff, Hamzy, Joe Boyd Neuhoff, and Attorney Dunlap. Talbert, upon the request
of the others, furnished the written record showing Franklin's mistakes; President.
Neuhoff advised Talbert that he would let him know what was to be done, and subse-
quently Joe Boyd Neuhoff was commissioned to obtain a verifying affidavit concerning
Franklin's June 29 mistake from the receiving clerk at the A & P warehouse to which
the hams were consigned. Such an affidavit was obtained and after Joe Boyd Neu-
hoff had given it to President Neuhoff and further discussion was had between them
and Dunlap, President Neuhoff decided to discharge Franklin and told Superintend-
ent McRedmond to tell Talbert of his decision. According to the testimony of Frank-
lin, categorically denied by Talbert, Talbert on June 29 commenced a conversation
in the ham room while Franklin was working to fill an order, and said Talbert at
that time said that he had heard that Franklin had attended a union meeting and
Franklin replied that he, had; Talbert thereupon asked him what kind of a meeting
and Franklin told him that it was a committee meeting; Talbert then asked Franklin
if he had signed a union card and when Franklin told him that he had, Talbert said'
that he could not use Franklin any more, and that he was going to fire him and
walked off while Franklin continued to work. About 3:30 p m. upon instruction
from Talbert, Franklin turned over his work to another employee adjacent to a spot
where other employees were at work and McRedmond joined them. Talbert told'
Franklin that he had made a mistake on the preceding Friday, that the Company
could not use a man who made mistakes; McRedmond commented that that mistake
could have cost the Company about $600 to which Franklin replied that it had not
cost them any money. Talbert thereupon discharged Franklin and gave him his pay-
check which Franklin accepted.1° Talbert's denial of his alleged remark to Franklin
when the latter was discharged, that Talbert had asked Franklin if he had signed the
union card and then said that he was going to fire Franklin, under all the circum-
stances in the case, on admitted facts and contradicted testimony, is hardly to be
believed. I infer from the circumstances that Talbert made such a remark or remarks.
All of the inherent probabilities of the case point to the fact that Franklin was fired
because of his union activities and his membership in the Union and not because he
made the mistake he did make on June 26. His prior good record of employment
U The General Counsel called Franklin to introduce testimony showing that on about
June 9, Harry Call, a checker on the loading dock, made a mistake on an order of calves
livers which were to be delivered to the A & P warehouse, and that on or about June 22
Assistant Foreman England and Call made a mistake on an order of hams which were
to be delivered to a customer of the Respondent; that these employees were neither
reprimanded nor discharged because of these mistakes It is further emphasized that
neither Call nor Powell Haley, another checker who worked on the loading dock had
signed authorization cards, had not worked as checkers in the loading department for
the length of time Franklin had, and that the testimony of Talbert substantially cor-
roborates the testimony of Franklin
10 Joe Boyd Neuhoff on June 24 had reprimanded Franklin and another employee for
taking too long a break Franklin denies that he and the other employee were justifiably
censored by Neuhoff because they had gone out on the break late and had taken only
10 minutes instead of the 20 minutes that Neuhoff had accused them of taking Neuhoff
on that day put a memorandum in the file- "Floyd Franklin and Randolph Whiteside
were reprimanded by me today for coming in late from afternoon recess They came
back into work at 2.25 p in at which time I reprimanded them. When I asked what
time they went out to break they both said 2 05 p in This constituted a 20-minute
break. I told them I didn't want any more breaks of this duration " This report was
considered along with Talbert's record of Franklin's mistakes, mentioned above.
NEUHOFF BROS., PACKERS, INC. 935
up until the time he became active in the Union and thereafter, the comment made
to him from time to time by Talbert concerning the Union, and the time and sequence
of events, support the inference that his discharge was discriminatory in nature.
Concluding Findings
The brief filed on behalf of the Respondent concludes with the general proposition
that the General Counsel has not presented any corroborated evidence as to violations
of Section 8(a)(1) of the Act; that all evidence which was presented was directly
disputed and is not credible because of the nature of the contradictory evidence and
because of the conflicting surrounding circumstances. It is argued that even if any
such evidence was believable, it only represents an isolated event in the midst of a
hard fought campaign by both Union and management. I disagree. There is no
rule applicable in cases such as this that uncontradicted testimony must be corrobo-
rated before it can be considered; nor is there a rule forbidding the resolution of
questions of credibility where any such questions exist. The activities of the Respond-
ent which I find to constitute unfair labor practices herein are not such isolated
instances as to remove them from consideration.
This case viewed in complete perspective shows a continuing pattern of activities
which in sequence of time and event support a finding that the Respondent has
engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1)
of the Act. I find that the Respondent engaged in unfair labor practices by the series
of speeches made by its president and by the letters sent to the employees or to the
employees and their families over the signature of the president; the circulation of
other printed material; by interviews or through conversations of supervisors, includ-
ing Talbert, Henry Neuhoff III, Joe Boyd Neuhoff, and Conaway, threatened employ-
ees with the termination of the Christmas bonus and retirement plan, that certain
supervisors, including Talbert, orally interrogated employees at the plant concerning
their union membership, activities, and desires; that its supervisor, Talbert, threatened
employees of the Respondent at the plant with discharge because of their union
activities and at other times created the impression of surveillance at the plant by
stating that the Respondent knew when union meetings were taking place and how
many employees attended said meetings; discharging employee Floyd Franklin on
June 29 because he joined or assisted the Union and engaged in other union activities
or concerted activity for the purpose of collective bargaining and the mutual aid or
protection; and by refusing to reemploy Billy Joe Willie because he had joined or
assisted the Union and had engaged in other union activity or concerted activity for
the purpose of collective bargaining and mutual aid or protection. The discharge
of Franklin and the refusal to reemploy Willie I find to also constitute violations of
Section 8(a) (3) of the Act.
In Ideal Baking Company of Tennessee, Inc., 143 NLRB 546, the Board, in finding
an 8(a) (1) violation, in part said (p. 547) :
In its campaign to defeat the Union, the Respondent emphasized that if the
Union won the election and made economic demands which the Respondent
would not meet, the Union's sole course would be to call a strike, in which event
the Respondent could permanently replace the strikers. While the Respondent
did not state specifically that it would not bargain with the Union should the
Union win the election, an analysis of Respondent's entire antiunion campaign
reveals an implicit warning that in dealing with the Union the Respondent would
so conduct the negotiations that the strike would result. Thus, there was but
one theme: The inevitability of a strike if the employees selected the Union as
their bargaining representative, and the dire consequences of such a strike,
mainly, ensuing violence and the loss of jobs by the strikers.
See also General Industries Electronics Company, 146 NLRB 1139; Herman Wilson
Lumber Company, 149 NLRB 693.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III above, occurring in con-
nection with the operations of the Respondent as described in section 1, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among sev-
eral States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in vio-
lation of Section 8(a) (1) and ( 3) of the Act , it will be recommended that Respondent
cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
It will be recommended that the Respondent offer employee Floyd Franklin, Jr,
immediate and full reinstatement to his former or substantially equivalent position,
and to offer immediate reemployment to Billy Joe Willie to his former or substan-
tially equivalent position from which he was discharged on June 9, 1964 , without
prejudice to their seniority and other rights and privileges , and make them whole for
any loss of earnings they may have suffered by reason of the discrimination against
them, by payment to each of them of a sum of money equal to which which he would
have earned as wages from the date of the discrimination against him to the date of
the offer of reinstatement , and in a manner consistent with Board policy set forth in
F. W. Woolworth Company, 90 NLRB 289 Interest on such sum of money shall be
computed according to the pimciple laid down by the Board in Isis Plumbing &
Heating Company , 138 NLRB 716 . It will also be recommended that the Respond-
ent preserve and make available to the Board, upon request, payroll and other rec-
ords to facilitate the computation of backpay.
It also will be recommended , in view of the nature of the unfair labor practice the
Respondent has engaged in, that it cease and desist from infringing in any manner
upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. United Packinghouse , Food and Allied Workers of America, AFL-CIO, is a
labor organization within the meaning of Section 2 ( 5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Floyd
Franklin, Jr, and Billie Joe Willie, thereby discouraging membership in the Union,
the Respondent has engaged in unfair labor practices within the meaning of Section
8(a)(1) and ( 3) of the Act.
4. The Respondent , by threatening its employees with adverse consequences,
including job loss, in the event they select a union as their collective -bargaining agent,
including loss of existing benefits or loss of jobs , and by attempting to dissuade
employees from joining the Union, has engaged in and is engaging in violations of
Section 8 ( a)( I) of the Act.
5. By engaging in the conduct set forth in section III, above , the Respondent has
interfered with, restrained , and coerced its employees and has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 ( a)(1) and (3)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to Section 10(c) of the
National Labor Relations Act, as amended , it is recommended that the Board order
that the Respondent , Neuhoff Bros., Packers , Inc., its officers , agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership of its employees in United Packinghouse, Food
and Allied Workers of America, AFL-CIO, or any other labor organization, by
discriminating against its employees in regard to their hire or tenure of employ-
ment or any term or condition of employment.
(b) Threatening employees with adverse consequences, including job loss, in the
event they select a labor organization as their collective -bargaining agent, or in
any like or similar manner interfering with, restraining , or coercing employees in
the exercise of their right to self-organization , to form, join, or assist the Union
herein or any other labor organization , to bargain collectively through representa-
tives of their own choosing , and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection as guaranteed in
Section 7 of the Act, or to refrain from any and all such activities.
SUPERIOR TRUCKING COMPANY, ETC. 937
2. Take the following affirmative action which it is found will effectuate the poli-
cies of the Act:
(a) Offer to Floyd Franklin , Jr., immediate and full reinstatement to his former
or substantially equivalent position , and offer immediate employment to Billy Joe
Willie in his former or substantially equivalent position held by him on June 9, 1964,
without prejudice to their seniority or other rights and privileges , and make each of
them whole for any loss of earnings he may have suffered by reason of the discrimi-
nation against him, in the manner set forth in the section of this Trial Examiner's
Decision entitled "The Remedy ." The seniority and backpay due Billy Joe Willie
shall run from June 9, 1964.
(b) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary or appropriate
to analyze the amount of backpay due Floyd Franklin , Jr., and Billy Joe Willie.
(c) Post at its plant in Dallas, Texas, and at such offices as the Respondent may
maintain , copies of the attached notice marked "Appendix ." [Board's Appendix
substituted for Trial Examiner 's Appendix .] 11 Copies of said notice, to be furnished'
by the Regional Director for Region 16, shall, after being duly signed by the Respond-
ent's authorized representative , be posted by the Respondent immediately upon
receipt thereof , and be maintained by it for a period of 60 consecutive days there-
after, in conspicuous places, including all places where notices to employees are cus-
tomarily posted . Reasonable steps shall be taken by the Respondent to ensure that
said notices are not altered , defaced, or covered by any other material.
(d) Notify the Regional Director for Region 16, in writing , within 10 days from
the date of this Trial Examiner 's Decision , what steps Respondent has taken to com-
ply herewith.12
It is further recommended that, unless Respondent shall within the prescribed
period notify the said Regional Director that it will comply with the foregoing
recommendations , the National Labor Relations Board issue its Order requiring the
Respondent to take the aforesaid action.
u If this Recommended Order is adopted by the Board , the words "a Decision and
Order" shall be substituted for the words " the Recommended Order of a Trial Examiner"
in the notice . If the Board 's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals , Enforcing an Order" for the words "a Decision
and Order."
sa If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for Region 16 , in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
Superior Trucking Company and G. E. Gray ( Joint Employers)
and Odes Glassco
Superior Trucking Company and G. E. Gray (Joint Employers)
and C. W. Neal. Cases Nos. 10-CA-5613-1 and 10-CA-5613-2.
March 22, 1965
DECISION AND ORDER
On September 3, 1964, Trial Examiner Lloyd Buchanan issued
his Decision in the above-entitled proceeding, finding that Respond-
ents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the attached
Decision. The Trial Examiner also found that Respondents had
151 NLRB No. 104.