Sanderson Farms, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 2003

340 N.L.R.B. 402 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 402
Sanderson Farms, Inc. (Production Division) and
United Food and Commercial Workers Union,
Local 1529. Case 15–CA–16450
September 29, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
SCHAUMBER
AND WALSH
The central issue in this case is whether the administra-
tive law judge correctly found that the Respondent vio-
lated Section 8(a)(3) and (1) of the National Labor Rela-
tions Act1 when it discharged employee Bill Noland.2
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,3 and conclusions4
and to adopt the recommended Order as modified and set
forth in full below.5
We agree with the judge’s finding that the Respondent
violated Section 8(a)(3) and (1) when it discharged
Noland on November 6, 2001.6 Under Wright Line,7 the
General Counsel has the burden of showing that
Noland’s union activity was a motivating factor in the
Respondent’s decision to discharge Noland. The burden

1 Other issues presented are whether the judge correctly found that
the Respondent violated Sec. 8(a)(1) of the Act: (1) when the Respon-
dent’s personnel supervisor, Derek Fletcher, asked Keith Wicker, as he
was applying to return to work for the Respondent, if he was for or
against the Union and when Fletcher impliedly threatened Wicker with
negative consequences if he associated with Noland, a known union
supporter; and (2) when its Division Manager Ed Putnam told em-
ployee Scott Boyd that the Respondent was experiencing problems over
the Union and was trying to weed out the troublemakers.
2 On November 20, 2002, Administrative Law Judge Pargen Robert-
son issued the attached decision. The Respondent filed exceptions and
a supporting brief, and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
4 The judge inadvertently found that the Respondent unlawfully re-
fused to reinstate Noland and included a remedy for this finding in his
recommended Order. We shall modify the recommended Order to
delete any reference to such refusal to reinstate, which was neither
alleged nor litigated.
5 We shall modify the judge’s recommended Order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996);
Excel Container, Inc., 325 NLRB 17 (1997); and Ferguson Electric
Co., 335 NLRB 142 (2001). We shall also add an expunction provision
under Sterling Sugars, Inc., 261 NLRB 472 (1982).
6 All dates refer to 2001 unless otherwise indicated.
7 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
then shifts to the Respondent to establish that it would
have discharged Noland even in the absence of his union
activity.
We agree with the judge’s finding that the General
Counsel met his burden under Wright Line. Thus, as the
judge found, the Respondent knew of Noland’s union
activity prior to his discharge and had reason to believe
that Noland was a chief proponent of the Union. The
Respondent demonstrated animus against the Union
when it unlawfully interrogated and threatened Keith
Wicker. Moreover, the Respondent’s threat to Wicker
demonstrates its animus against Noland in particular.
The Respondent’s admonition to Wicker to stay away
from Noland if Wicker did not want to get involved in
the Union, shows that Noland’s union activity was a fac-
tor in the Respondent’s decision to discharge him. Addi-
tionally, the Respondent displayed its unlawful motiva-
tion toward Noland when it unlawfully told Scott Boyd
that it planned to weed out troublemakers.
We also agree with the judge’s finding that the Respon-
dent did not meet its Wright Line burden of proving that it
would have discharged Noland even if he had not been
engaged in union activity. As set out more fully in the
judge’s decision, the Respondent asserts that it discharged
Noland for incurring a fifth unexcused absence under the
Respondent’s attendance rules when he left work early on
October 29. However, Noland’s credited testimony shows
that the Respondent’s dispatcher, Fred Jones, told Noland
on October 29 that the only truck that was available while
Noland’s truck was being serviced “would not pull” and
that Noland could go home. Thus, there was no available
truck on October 29, and Noland should not have been
assessed an unexcused absence for October 29 under the
Respondent’s attendance rules. Noland, accordingly, did
not have the five unexcused absences required for dis-
charge. On these grounds, we find that the Respondent’s
purported reason for its action, a fifth unexcused absence,
did not exist. Moreover, the Respondent’s failure to inves-
tigate the condition of Noland’s truck on October 29 be-
fore it decided to discharge him suggests that the Respon-
dent was not concerned whether it had legitimate, nondis-
criminatory grounds to discharge Noland. The Respon-
dent’s reason for discharging Noland was, therefore, pre-
textual and defeats its attempt to show that it would have
discharged Noland absent his union activities.8 Grand
8 The judge counted July 2 as an unexcused absence for Noland,
which would have been a fifth unexcused absence. However, July 2
was the date that Noland received a formal warning. The judge also
erroneously found that Putnam was present in Fletcher’s office when
Noland was told that he was being terminated. Neither of these factual
errors affects our decision.
In light of our conclusion that the Respondent failed to establish its
Wright Line defense that it discharged Noland for unexcused absences,
340 NLRB No. 59
SANDERSON FARMS, INC. 403
River Village, 326 NLRB 1215, 1219 (1998); Limestone
Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799
(6th Cir. 1982).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Sanderson Farms, Inc. (Production Divi-
sion), Fernwood, Mississippi, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating its employees about their
activity on behalf of the United Food and Commercial
Workers Union, Local 1529, or any other labor organiza-
tion.
(b) Impliedly threatening its employees with negative
consequences if they become involved with the Union.
(c) Threatening its employees that it is experiencing
problems and will weed out troublemakers who support
the Union.
(d) Discharging its employees because of their in-
volvement with the Union.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Bill Noland full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights
or privileges previously enjoyed.
(b) Make Bill Noland whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the remedy
section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any references to Noland’s unlawful dis-
charge, and within 3 days thereafter notify him in writing
that this has been done and that the unlawful discharge
will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic

we find it unnecessary to rely on the judge’s discussion of disparate
treatment.
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Fernwood, Mississippi, copies of the at-
tached notice marked “Appendix.”9 Copies of the notice,
on forms provided by the Regional Director for Region
15, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days 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 the notices are not altered, de-
faced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since October 10, 2001.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT coercively interrogate our employees
about their activity on behalf of the United Food and
Commercial Workers Union, Local 1529, or any other
labor organization.
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 404
WE WILL NOT impliedly threaten our employees with
negative consequences if they become involved with the
Union.
WE WILL NOT threaten our employees that we are
experiencing problems and will weed out troublemakers
who support the Union.
WE WILL NOT discharge our employees because of
their involvement with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days of the Board’s Order, offer
Bill Noland immediate reinstatement to his former job
or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
WE WILL make Bill Noland whole for any loss of
earnings and other benefits resulting from our discrimi-
nation against him, less any net interim earnings, plus
interest.
WE WILL, within 14 days of the Board’s Order, re-
move from our files any reference to the unlawful dis-
charge of Bill Noland, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that the unlawful discharge will not be used against
him in any way.

SANDERSON FARMS, INC. (PRODUCTION
DIVISION)

Kevin McClue, Esq., for the General Counsel.
Andrew C. Partee Jr., Esq., of New Orleans, Louisiana, for the
Respondent.
Roger K. Doolittle, Esq., of Jackson, Mississippi, for the Charg-
ing Party.
DECISION
PARGEN ROBERTSON, Administrative Law Judge. This
case was heard in Magnolia, Mississippi, on September 16 and
17, 2002. On the entire record, including my observation of the
demeanor of the witnesses, and after considering the briefs filed
by Respondent and General Counsel, I make the following
findings.
I. JURISDICTION
Respondent admitted that it is a corporation, with an office
and place of business at Fernwood, Mississippi. Respondent
admitted that in the conduct of its business it annually sells and
receives goods valued in excess of $50,000 directly from points
outside Mississippi, and has been an employer at material times
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admitted that the Charging Party (Union) has
been a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint includes allegations of unlawful interrogation,
threats, and discharge.
The Record
Bill Noland worked for Respondent as a truckdriver for
about 7 years.1 Noland and another employee were the em-
ployees that first contacted the Union in July 2001. Employees
then met with Union Representative Bill Johnson at Brian
White’s house. The employees decided to try and organize for
the Union. Johnson gave them authorization cards to distribute
among the employees. Noland passed out approximately 10 to
15 cards to employees in the parking lot of the feed mill over
the 3 or 4 days after the meeting.
Noland took a vacation during the week of September 10,
2001. After working on Friday, September 7, he flew to Salt
Lake City. The Union was elected representative of unit em-
ployees while Noland was away. Upon his return on Septem-
ber 17, Noland was given a writeup for not working on Satur-
day, September 8. The warning was marked “final warning,”
and included the notation “Vacation Starts Monday.”2 Noland
testified that employees do not work on Saturdays unless as-
signed.3 Bill Noland met with Personnel Supervisor Derek
Fletcher and asked to see the rule that required employees to
work while on vacation. Fletcher told him there was no such
rule. Noland then asked how anyone could plan a trip 2 months
ahead and not know he would have to work on Saturday. He
asked Fletcher, “can you get it through your thick skull about
that?” Fletcher got up, walked around his desk and said, “Bill,
you can ask some of the stupidest questions.” Then Fletcher
said, “Bill, you need to get with your union representative.”
Noland replied, “you are looking at one of the stewards now.”
Derek Fletcher interviewed Keith Wicker around October
17, 2001. Wicker was applying to return to work for Respon-
dent. Wicker testified that Fletcher asked him if he knew a
union had come in and if he was for or against the Union.
Fletcher told him to stay away from Bill Noland if he did not
want to get involved in the Union.
Scott Boyd4 phoned Respondent around October 19, 2001,
and talked to Lee Gill about returning to work for Respondent.
At that time Boyd had four outstanding traffic tickets and 13
over a period of time on his CDL. He understood that Respon-
dent had a rule prohibiting rehire for anyone with more than

1 Noland was discharged on November 6, 2001.
2 His vacation did not officially start until Monday, September 10,
and Noland was assigned to work on Saturday, September 8.
3 Noland testified that the normal procedure was for Respondent to
post Saturday assignments on Thursday or Friday. Noland did not
testify that notice of his September 8 assignment was not posted on
September 6 or 7, and there was no other evidence showing that Re-
spondent did not give proper notice of the September 8 assignments.
4 Scott Boyd is now a supervisor. At material times he was a truck-
driver.
SANDERSON FARMS, INC. 405
three traffic tickets. Boyd asked Gill if the traffic tickets meant
that he would not get a job. Gill replied that the Company was
having trouble with the Union and turmoil was going on. Boyd
cut Gill off and said that he wasn’t interested, that he wasn’t
part of that and that he just wanted a job. Gill told him to re-
port Monday morning.
Boyd was called into the office and met with Ed Putnam and
Derek Fletcher in October or November 2001. Before that
meeting he had been complaining to Lee Gill about split loads.
Boyd was asked to explain his problem. He complained that
the assignment system was unfair. Putnam said there were
problems they were having because of the union stuff and they
had a few troublemakers. Putnam said they were trying to
work around it. He told Boyd that they were trying to weed out
the troublemakers. Boyd said that he did not have anything to
do with that but that he was having problems with some of the
employees. Boyd told Putnam and Fletcher that somebody was
threatening to shoot him if he did not strike. Fletcher asked
Boyd to give him the “CB handles”5 for the truckdrivers. Boyd
gave Fletcher all the handles that he knew.
On October 29, 2001, Bill Noland was told that his truck
needed service. He asked to be assigned another truck. Noland
testified that the dispatcher, Fred Jones, replied that truck 4155
was out there but “it wouldn’t pull.” Noland then took his truck
to the shop. He stopped at truck 4155 but then decided not to
try and drive it in view of Jones’s comments. Noland went
back to Fred Jones and said that since Jones had said that 4155
would not pull, he would go to the house. According to
Noland, Jones gave him permission to go home.6 Noland
punched out around 11:30.
Noland’s timecard was missing when he reported to work on
November 6. He was directed to Derek Fletcher. Fletcher, Lee
Gill,7 and Ed Putnam8 were all present in Fletcher’s office.
Fletcher read out the list of Noland’s absences and said that
Noland had left early on October 29. Noland told them that
Fred Jones had told him that truck 4155 would not pull. Noland
asked if he was fired. Gill said no that he wanted Noland to haul
feed. Ed Putnam said that he wanted to check out truck 4155
and he would let Noland know at the end of the day.
At the end of the day Noland was directed back to Fletcher’s
office. Putnam, Gill, and Fletcher were all present. Fletcher
read off Noland’s unexcused absences and asked for Noland’s
badge. Noland asked how come the driver that left early on the
last day he worked was not written up. Lee Gill replied that
that driver should have been written up. Noland asked for his
termination paper and Fletcher replied he had been advised not
to give a copy to Noland.

5 Boyd testified that he overheard someone threatening to shoot him
over the CB radio. He testified that anyone listening to the CB conver-
sations could identify the speakers if they knew each speakers “handle”
(CB call name).
6 Fred Jones testified that he told Noland that the shop had cleared
truck 4155. He denied telling Noland that the truck would not pull and
he denied that he gave Noland permission to go home.
7 Gill was the mill supervisor.
8 Putnam was Respondent’s manager.
Findings
Credibility
I base my credibility findings on the full record including
demeanor of the witnesses and other evidence including espe-
cially whether the testimony was rebutted or supported by other
testimony. In determining credibility the testimony of Scott
Boyd was significant in regard to his credibility and that of
other witnesses. Boyd was employed as a truckdriver at the
time of material events and at the time he gave an affidavit to
the NLRB Regional Office. However, when he testified Boyd
had been promoted to supervisor.
I found Boyd to be a reluctant witness. Among other things
his testimony at the hearing conflicted with his sworn affidavit.
Additionally, it was apparent from his demeanor that he was
uncomfortable throughout his examination by counsel for Gen-
eral Counsel. Nevertheless, Boyd admitted among other things,
that Ed Putnam told him that the Company was having trouble
over the Union and Putnam was going to weed out the trouble-
makers. That testimony was in accord with testimony Boyd
gave in a prehearing affidavit. At that time Putnam and Derek
Fletcher were talking with Boyd in Fletcher’s office and the
three of them discussed, among other things, Boyd’s allegation
that other employees were harassing him regarding the Union.
In view of the consistency between his affidavit and that testi-
mony, his demeanor and the full record, I credit Boyd’s testi-
mony about Putnam weeding out the troublemakers.
Scott Boyd also testified in a prehearing affidavit that he
overheard Fred Jones say, “He had said he would get rid of that
son of a bitch.” Jones made that comment on the day Bill
Noland was discharged and Jones was referring to Noland.
Boyd disputed that testimony at the hearing. He testified that
he had not actually overheard Jones make those statements.
Instead he testified that his affidavit was incorrect and that he
had actually only overheard Keith Wicker say that he, Wicker,
had heard Jones make that comment. Keith Wicker was not
questioned about November 6, and when asked about that date
on cross-examination, counsel for General Counsel successfully
objected that that question was outside the scope of direct ex-
amination. In view of the entire record, and in view of the fact
that no testimony during the hearing supported a finding that
Fred Jones made comments regarding getting rid of Noland, I
am unable to credit evidence that Fred Jones said that he was
going to get rid of Bill Noland.
I considered the demeanor of Derek Fletcher and that of
Keith Wicker. Wicker testified that Derek Fletcher interviewed
him and that Fletcher asked him if he supported or opposed the
Union. Fletcher told Wicker to stay away from Bill Noland if
he did not want to get involved with the Union. Fletcher testi-
fied that it was Wicker and not himself, that first brought up the
Union and Fletcher denied that he told Wicker to stay away
from Bill Noland. I am convinced that Wicker was the more
credible of the two witnesses and I credit his testimony and do
not credit Fletcher to the extent Fletcher’s testimony was dis-
puted by credited evidence.
There was testimony regarding Bill Noland’s terminal inter-
views. It is evident from all the evidence, that there were two
interviews regarding Noland’s discharge and both occurred on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 406
November 6, 2001. The same four people were present at both
interviews. Those four were Noland, Ed Putnam, Derek
Fletcher, and Lee Gill. I found that Bill Noland was a credible
witness and other than noted below, I have fully credited his
testimony.
A determination of what occurred during the first interview is
of significant importance in determining why Respondent dis-
charged Bill Noland. However, three of the witnesses to that
meeting, Noland, Putnam, and Gill failed to gave a complete
account of the first November 6 meeting. Derek Fletcher’s tes-
timony involved the most complete recollection of that meeting
but, as shown above, in other respects Fletcher was not totally
credible. Therefore, I also considered credible evidence regard-
ing the key event that was discussed in the morning meeting.
That key event was the exchange between Bill Noland and Fred
Jones on October 29. In regard to what actually happened on
October 29, I credit the testimony of Noland, which showed,
among other things, that Jones told him truck 4155 would not
pull and that Jones gave Noland permission to go home.
Fletcher’s testimony of the first meeting on November 6, as
to what was said by Bill Noland, tracks what Noland testified
regarding his encounter with Fred Jones.
Nevertheless, I also considered other evidence including
what Fletcher testified regarding his role in the investigation
following the first November 6 meeting. Derek Fletcher testi-
fied that he talked with dispatcher Fred Jones. Among other
things Jones told Fletcher that he told Noland on October 29,
the shop had cleared truck 4155, that he did not tell Noland that
truck 4155 would not pull and that he told Noland he could
drive 4155 or go home. That evidence supported Derek
Fletcher’s account of the first November 6 meeting even though
Jones denied telling Noland that truck 4155 would not pull.
Moreover, there was no testimony showing that Fletcher’s
account of that meeting was incorrect. Although Noland, Put-
nam, and Gill were at the meeting, none of them testified in as
much detail as Fletcher. Nevertheless, Noland, Putnam, and
Gill did not dispute Fletcher’s account of that meeting. There-
fore, I credit Fletcher’s account of that first meeting.
In regard to the second meeting on November 6, I find the
evidence was not in conflict as to material issues. There was no
dispute but that Noland was discharged during that meeting.
Conclusions
The 8(a)(1) Allegations
Interrogation on October 10, 2001
Threat of Negative Consequences
The evidence regarding these allegations is found in the tes-
timony of Keith Wicker. As shown above Wicker testified
about a conversation he had with Personnel Supervisor Fletcher
around October 17, 2001. Wicker was being interviewed be-
fore returning to work for Respondent. I have credited testi-
mony that Fletcher asked Wicker if he knew a union had come
in and if he was for or against the Union. Fletcher told him to
stay away from Bill Noland if he did not want to get involved
in the Union.
The test frequently applied in allegations of illegal interroga-
tion is the one that was applied in Bourne v. NLRB, 332 F.2d 47
(2d Cir. 1964) (see Dorn’s Transportation Co., 168 NLRB 457
(1967)). The criteria applied there included, (1) the back-
ground; (2) the nature of the information sought; (3) the iden-
tity of the questioner; (4) the place and method of interrogation;
and (5) the truthfulness of the reply. Here, as to (1), there was
no showing that Respondent had a history of hostility and dis-
crimination. Regarding (2), the information sought could have
led Respondent to reject the job application of Wicker or it
could have coerced Wicker into avoiding the Union. As to (3),
the questioner was a high-ranking supervisor. Regarding (4),
the interrogation occurred in the office where employees were
interviewed for employment. As to (5), the record does not
show whether Wicker’s reply was truthful or not.
The Board has determined that an examination of the above
criteria need not involve a strict evaluation of each factor. In-
stead, the “flexibility and deliberately broad focus of this test
make clear that the Bourne criteria are not prerequisites to a
finding of coercive questioning, but rather useful indicia that
serve as a starting point for assessing the ‘totality of the circum-
stances.’” Westwood Health Care Center, 330 NLRB 935
(2000); citing “D” Perdue Farms Inc. v. NLRB, 144 F.3d 830
(D.C. Cir. 1998); Timsco, Inc. v. NLRB, 819 F.2d 1173 (D.C.
Cir. 1987).
In addition to the above-noted factors, Fletcher’s comment
that Wicker should stay away from Noland adds to the showing
of coercive interrogation and includes an implied threat of
negative consequence. In view of the above, I am convinced
that the interrogative and implied threat were coercive and con-
stituted violations of Section 8(a)(1).
Threat to Weed-Out Troublemakers
Scott Boyd9 was called into the office and met with Putnam
and Fletcher in October or November. Before that meeting
Boyd had complained to Lee Gill about split loads. Boyd was
asked to explain his problem. He complained about an unfair-
ness of the assignment system. Putnam said there were prob-
lems they were having because of the union stuff and they had
a few troublemakers. They were trying to work around it.
Putnam told Boyd that they were trying to weed out the trou-
blemakers. Boyd said that he did not have anything to do with
that. Boyd then said that he was having problems with some of
the employees. Somebody was threatening over the CB radio to
shoot Boyd if he did not strike. Fletcher asked Boyd to give
him the “CB handles”10 for the truckdrivers. Boyd gave
Fletcher all the handles that he knew.
It is clear from the above, that Putnam in threatening to weed
out troublemakers was threatening to discharge employees that
were supporting the Union. Those comments constitute threats
in violation of Section 8(a)(1).
The 8(a)(3) Allegations
Bill Noland was involved in union activities. He and another
employee were the employees that first contacted the Union in

9 Scott Boyd is currently a supervisor. He was called by counsel for
General Counsel and examined under Rule 611(c) FRE.
10 Boyd testified that anyone listening to the CB conversations could
identify the speakers if they knew each speakers “handle” (CB call
name).
SANDERSON FARMS, INC. 407
July 2001. Employees then met with Union Representative Bill
Johnson at Brian White’s house. Bill Noland passed out 10 to
15 cards to employees in the parking lot of the feed mill over 3
or 4 days after that meeting. The evidence showed that Re-
spondent learned that Noland was involved with the Union
shortly after September 17, 2001. Noland testified that he told
Derek Fletcher that he was a union steward when they met and
Noland complained about receiving his September 17 final
warning. Fletcher then told Lee Gill that Noland was a stew-
ard. Ed Putnam admitted that he received an unfair labor prac-
tice charge against the Company around October 12 alleging
that it had unlawfully discriminated against Noland because of
his union activity. Derek Fletcher cautioned Keith Wicker on
October 17 to stay away from Noland if he wanted to stay out
of the Union.
I have also considered whether Respondent demonstrated un-
ion animus. The evidence regarding animus rests on the testi-
mony of Keith Wicker and Scott Boyd. As shown above
Wicker was interrogated about how he felt about the Union
when rehired by Respondent on October 17, 2001. Derek
Fletcher told Wicker to stay away from Bill Noland if he did
not want to get in the Union. Scott Boyd testified that Ed Put-
nam said the Company was troubled by the Union and that he
was going to get rid of the troublemakers.
That testimony by Wicker and Boyd shows that the Com-
pany was opposed to the Union and that Ed Putnam11 intended
to get rid of the troublemakers. Putnam did not identify the
troublemakers in his comments to Boyd, but Derek Fletcher
illustrated to Keith Wicker on October 17, that Bill Noland was
the employee most closely identified with the Union. I find
that Respondent demonstrated union animus.
One other factor appeared to have some importance. That in-
volved the timing of Noland’s discharge. Noland’s final warn-
ing (GC Exh. 2(D)) included a notation of the unexcused ab-
sences that justified that warning. The first of those unexcused
absences occurred on May 5, 2001. Under Respondent’s con-
tinuing 6-month rule that particular unexcused absence expired12
on November 5, 2001. Therefore, when Respondent met to
consider discipline to Noland on November 6, the 6-month pe-
riod had just expired on the first unexcused absence used to
justify Noland’s final warning. The absentee system testified to
by Derek Fletcher, involved progressive discipline that involved
a formal warning after three unexcused absences, followed by a
final warning if the employee had another unexcused absence
within the continuing 6 months which would be followed by
discharge if that employee had an additional unexcused absence
within the same 6 months. When Putnam, Fletcher, and Gill
considered action against Noland on November 6, the 6-month
clock was just past its limit. However, the last incident that had
allegedly caused Putnam, Fletcher, and Gill to meet on Novem-

11 Putnam denied that he has had a conversation with Scott Boyd re-
garding the Union and he denied that he told Boyd that he was going to
weed out union troublemakers. As shown above, I credit Boyd and
discredit Putnam regarding their conversation.
12 Although there is no evidence that unexcused absences were re-
moved from employees’ records after 6 months, it was Respondent’s
practice to consider only unexcused absences that occurred in the 6-
month period immediately before contemplated disciplinary action.
ber 6, did occur on October 29, which was just before the end of
that continuing 6 months. Therefore, Respondent was under a
deadline of sorts, regarding use of all the unexcused absences it
had relied on in issuing Noland a final warning. It was apparent
that any chance to discharge Noland for absenteeism may pass
or at the very least be delayed, if Respondent failed to act on
November 6.
Another matter that should be considered at this point is
Noland’s final warning. The final warning was not alleged as
an unfair labor practice but there appeared to be some question
of whether the warning was issued because of Respondent’s
union animus. However, the evidence did not establish that
Respondent was aware of Noland’s union activities on Septem-
ber 17. Additionally, the evidence failed to show Respondent
treated Noland in a discriminatory manner on that occasion.
The September 17 warning arose over an incident on Satur-
day, September 8, 2001. That weekend preceded Noland’s va-
cation, which started on September 10, and lasted until he re-
turned to work on September 17. Saturdays were not regular
workdays but employees were routinely assigned Saturday work
on an irregular basis and, when assigned, Saturday was treated
as any other workday. Noland testified that Saturday work was
normally assigned on Thursday or Friday before the assigned
Saturday workday and there was no evidence showing that prac-
tice was not followed on the week ending September 8. There
was no evidence illustrating that Noland was unaware of his
September 8 work assignment before he left for vacation in Salt
Lake City. In view of that evidence, I find that Noland missed
assigned work on September 8. Moreover, the record failed to
show that Noland gave prior notice to Respondent that he was
going to miss that work. I find that Respondent did nothing
wrong when it issued a final warning to Noland on Septem-
ber 17, 2001.
It is well established that the General Counsel has the burden
of proving that Respondent was motivated to discharge an al-
leged discriminatee because of union animus (Manno Electric,
321 NLRB 1 fn. 12 (1996); Wright Line, 251 NLRB 1083
(1980), enfd. 662 F. 2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982); NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983)). The evidence shows that Respondent
knew before his discharge that Noland was involved with the
Union and Respondent had reason to believe that Noland was
perhaps the chief proponent of the Union. The evidence proved
that Respondent harbored animus against the Union and that it
was motivated by its union animus to discharge Noland.
As shown in the above-cited cases, I must consider whether
Respondent proved that it would have discharged Noland in the
absence of its union animus.
As shown herein, Derek Fletcher testified about the first of
two, November 6 meetings between Fletcher, Ed Putnam, Lee
Gill, and Bill Noland. Fletcher went over Noland’s unexcused
absences but Noland said that Fred Jones13 told him he could go
home on the day of his last absence. Fred Jones told Noland that
13 Fred Jones was the dispatcher that directed and supervised Noland
on October 29. Respondent does not dispute that dispatchers had au-
thority to permit employees to leave work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 408
the truck they wanted him to drive wouldn’t pull.14 At that point
the interview was delayed. The interview was delayed accord-
ing to Fletcher and Ed Putnam in order for Respondent to inves-
tigate the claims made by Noland. Fletcher participated in the
investigation by talking with the dispatcher, Fred Jones. Gill
participated in the investigation by riding along while a driver
took truck 4155 out on a run.
Although both Ed Putnam and Derek Fletcher testified that
attendance was the sole basis for Bill Noland’s discharge, it
was not a question of absence that allegedly caused Ed Putnam
to finally decide on discharge after the November 6 investiga-
tions. Instead, Lee Gill finding that truck 4155 was operational
on November 6 allegedly prompted the discharge.
I have several problems with the allegation that the Novem-
ber 6 test of truck 4155 was the deciding factor in the discharge
of Noland. In the first place Respondent never contended that
Noland was fired because he refused to drive truck 4155. In-
stead he was discharged allegedly because he left work before
his shift ended. As to truck 4155 the only relevant question
appeared to be whether Fred Jones told Noland that that truck
would not pull. Noland did not drive truck 4155 on October
29. Instead after Fred Jones allegedly told him that truck would
not pull, Noland decided against driving the truck, returned to
the shop and told Fred Jones that he had decided not to drive
4155.
Moreover, if the condition of truck 4155 had been a material
consideration, then the condition of the truck around October
29, should have been the focal point and, as to that matter, it
was not necessary to test drive the truck on November 6. In-
stead Respondent had numerous records including the daily
logs on truck 4155 that would have shown how truck 4155
performed at material times.15 Those records were not exam-
ined according to the testimony of Putnam, Fletcher, and Gill
regarding the November 6 investigation.
In view of the above, I find that the contention that Respon-
dent relied on a November 6 determination that truck 4155 was
operational, was pretext. In truth Respondent used that argu-
ment to justify its discharge of Noland even though the only
true question that may have been relevant under Respondent’s
alleged basis for its action, was whether Noland should receive
an unexcused absence for leaving work early on October 29.
As shown above, despite the alleged impact of Gill’s find-
ings regarding truck 4155, both Putnam and Fletcher testified
that the sole basis for Noland’s discharge was his absentee
record, I shall consider that matter. As explained by Fletcher in

14 Noland testified about the October 29 incident. Dispatcher Fred
Jones told Noland to take his truck to the shop for maintenance. Jones
told Noland that the only truck available for replacement service was
truck 4155. Noland testified that Jones also told him that truck 4155
would not pull and after he returned from taking his truck to the shop,
he told Jones he did not want to drive 4155 and Jones gave him permis-
sion to go home. As shown above I credit Noland’s testimony about
his October 29 conversations with Fred Jones.
15 Respondent’s daily logs show that truck 4155 was out of operation
for a short time on October 29 and for a longer time on October 30. In
fact the truck broke down twice on October 30 (R. Exh. 3). Moreover,
as shown in the record including testimony by Scott Boyd, truck 4155
was frequently not operational. It was frequently broken down and in
the shop.
his testimony, Respondent’s absentee rule provided that em-
ployees were subject to discharge for five unexcused absences
during any 6-month period. Employees received a warning
after three and a final warning after four, unexcused absences.
Noland’s attendance log (R. Exh. 11) shows unexcused ab-
sences on May 5, June 28, 29, and 30, and a formal warning on
July 2. Noland received a final warning after missing work on
Saturday, September 8 (GC Exh. 2(D)). That was his sixth
unexcused absence within 6 months. As shown above, Re-
spondent first learned of Noland’s union activity during
Noland’s discussion with Derek Fletcher about his final warn-
ing. That discussion occurred shortly after Noland received his
final warning on September 17, 2001.
The next incident regarding Noland’s absentee record alleg-
edly occurred on October 29. However, it was not until No-
vember 6 that Noland was called into a meeting with Putnam,
Fletcher, and Lee Gill allegedly because he had left work early
on October 29. I found that Derek Fletcher credibly testified
that Noland said in that meeting that Fred Jones told him truck
4155 would not pull and that he could go home. Fletcher went
on and testified that he talked with Fred Jones after the first
November 6 meeting and, among other things, Jones said that
he had told Noland that he could drive truck 4155 or go home.
That evidence shows that Bill Noland’s argument was sup-
ported by Respondent’s investigative findings regarding
Noland leaving work early on October 29. Noland as well as
Fred Jones recalled that Jones said that Noland could go home.
In view of that evidence, I shall question whether it was Re-
spondent’s practice to discharge or even discipline, employees
under similar conditions. In that regard I have considered Re-
spondent’s treatment of Noland and other employees. As found
below, Respondent showed itself to be lenient in the treatment
of Noland (before discovering his union affiliation), Joe
McDaniel, Mike Stubbs, and Scott Boyd.
As to Bill Noland, it was Respondent’s announced practice16
to discharge employees after 5 unexcused absences in a con-
tinuous 6-month period. Before Respondent learned of
Noland’s union activities he had more than 5 unexcused ab-
sences during the 6 months starting on May 5, and was not
discharged. Noland had unexcused absences on May 5, June
28, 29, and 30, July 2, and September 8, 2001. After Respon-
dent first learned of Noland’s union activity shortly after Sep-
tember 17, a situation arose that may not have involved disci-
plinary action before knowledge of Noland’s union activities.
Fred Jones testified that he normally did not count absences due
to a driver not having an operational truck. Nevertheless after
telling Noland that truck 4155 would not pull and that Noland
could go home, Respondent decided to treat that incident as an
absence and to discharge Noland.
Employee Joe McDaniel’s17 records were enclosed in Re-
spondent’s March 26, 2002 position statement (GC Exh. 3).18
Joe McDaniel served as the Company observer during the Sep-
tember 2001 NLRB election. McDaniel’s attendance log shows
that McDaniel received a formal warning for unexcused ab-
16 See especially the testimony of Derek Fletcher.
17 McDaniel was also known as Carmen McDaniel.
18 Other McDaniel records included R. Exh. 12.
SANDERSON FARMS, INC. 409
sences on December 10, 2001. The attendance log shows that
before McDaniel’s December 10 formal warning, he had unex-
cused absences on September 8, October 18, and November 6,
2001. He received “FMLA” time off on September 27 and 28,
2001. After his formal warning McDaniel’s attendance log
showed unexcused absences on February 2, 16, and 23, 2002.
As shown above Respondent’s routine called for a final warn-
ing for the next unexcused absence following a formal warning
and discharge on the next unexcused absence. In consideration
of his September 8 unexcused absence, a continuing 6-month
period started on that date and would have ended on March 8,
2002.
In regard to McDaniel’s February 16 unexcused absence the
hourly absentee report shows that McDaniel “left at 10 a.m. to
go & fix his wife’s car. Still had feed to haul—.” McDaniel
was absent on February 23, 2002, and no reason was given on
the absentee report. McDaniel was not disciplined on either of
those occasions even though under the rule applied to Bill
Noland, McDaniel should have received a final warning on
February 2, and been discharged following February 16, 2002.
However, the record shows that McDaniel was not discharged
even though he had an additional unexcused absence on Febru-
ary 23. Additionally, Respondent discovered a problem with
McDaniel’s absentee record when it updated its personnel re-
cords in February 2002, and it admitted in its March 26, 2002
position statement (GC Exh. 3), that it had to make adjustments
or McDaniel would have been discharged.
Respondent argued that a comparison with Joe McDaniel is
totally inappropriate. It argued that McDaniel should be treated
differently because he qualified for absences under the family
medical leave act. In that regard Respondent cited in its brief, a
doctor’s excuse dated August 20, 2000 (see GC Exh. 3). How-
ever, as shown in that alleged doctor’s excuse, Dr. Madnani did
not excuse McDaniel from Saturday work. Instead Dr. Mad-
nani merely noted that McDaniel reported to him that he is not
able to work 6 days a week and that McDaniel reported to him
that he can rest his shoulder 2 days on weekends.19 Moreover,
Respondent admitted that it made no adjustments in the han-
dling of McDaniel’s absences at that time (i.e., August 2000).
Instead Respondent argued that Derek Fletcher spoke with
McDaniel’s doctor and took steps to get the matter handled
under the proper FMLA procedure. That matter had not been
resolved when Derek Fletcher resigned in January 2002, and
there was no showing that it was ever resolved in regard to the
6-month period following September 1, 2001.
Nevertheless, Respondent argued that it continued to treat
McDaniel out of concern that it may engage in unlawful activity
under the family medical leave act. It contended that McDaniel
should not be compared with Noland in regard to missing Satur-
day work. It argued that it would be inappropriate to hold that it
treated Bill Noland in a discriminatory fashion by finding
unlawful its final warning to Noland for missing work on Satur-

19 In that regard I have also considered a certification of health pro-
vider dated April 29, 2002, where a doctor comments, among other
things, “Patient is currently incapacitated in regards that several hours
of continuous work or several days of continuous work make his pain
worse.” (R. Exh. 12). That form was completed after the 6-month
period that started on September 1, 2001, and ended on April 1, 2002.
day, September 8. As shown herein, I found that Respondent
did not engage in unlawful action by issuing a final warning to
Bill Noland for missing work on Saturday, September 8. There-
fore, I did not inappropriately compare Noland with McDaniel
in regard to Saturday work. Moreover, in considering McDan-
iel’s overall absentee record, I relied on Respondent’s own re-
cords, which were submitted to the NLRB Regional Office with
a letter dated March 26, 2001 (GC Exh. 3).
Mike Stubbs was shown to have received at least 12 unex-
cused, at least 25 excused, and 2 absences that did not count
during 2001. Stubbs exceeded the number of absences both
unexcused and excused, which Respondent alleged as prohib-
ited during a continuing 6-month period and he was not dis-
charged.
Some of Stubbs’s records were included in Respondent’s
March 26, 2002 statement of position (GC Exh. 3). The atten-
dance log shows that Stubbs received a formal warning for
attendance violations on January 10, 2001. He then received a
final warning on April 9, 2001, for unexcused absences from
February 13 through February 19, and April 2, 2001. Even
though Stubbs missed in excess of 6 workdays after his formal
warning, he was not discharged. Beginning in July, after or
near the end of the continuing 6 months for the period follow-
ing his first unexcused absence in 2001 on January 6, Stubbs
had unexcused absences on July 2 and 17, 2001, and was
awarded a formal warning for a July 23, 2001 absence. An
unexcused absence occurred on August 23, and Stubbs was
awarded another final warning for an unexcused absence on
September 3, 2001. Subsequently, but continuing in the 6
months beginning on July 2, 2001, Stubbs had a number of
absences where call in sick was noted on the hourly absentee
report. On some of those hourly absentee reports a doctor’s
note was attached showing that Stubbs qualified for excused
absences.20 However, an hourly absentee report dated 10–31–
01 included the notation that Stubbs called in sick but “needs a
doctor’s note for 10-31-01,” and the notation “7 combined oc-
currences (excused & unexcused) in 6-month period.” If Re-
spondent had applied its practice as explained by Derek
Fletcher, Stubbs would have been discharged.
Respondent’s treatment of Scott Boyd’s application for hire,
illustrated that Respondent was more lenient when the con-
cerned employee did not support the Union. As shown above
Scott Boyd phoned Respondent around October 19, 2001, and
talked to Lee Gill. Boyd asked about returning to work for
Respondent. At that time Boyd had four outstanding traffic
tickets and 13 over a period of time on his CDL. He under-
stood that Respondent had a rule prohibiting rehire for anyone
with more than three traffic tickets. Boyd asked Gill if the
traffic tickets meant that he would not get a job. Gill replied
that the company was having trouble with the union and tur-
moil was going on. Boyd cut Gill off and said that he wasn’t
interested, that he wasn’t part of that and that he just wanted a
job. Gill told him to report Monday morning. That evidence
20 Derek Fletcher testified that it was Respondent’s practice to
charge an employee with an unexcused absence when the employee
claimed illness but failed to provide a doctor’s excuse.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 410
shows that Respondent occasionally relaxed its rules especially
when the employee involved did not support the Union.
There was more evidence that Respondent did not routinely
discipline employees for leaving work after receiving permis-
sion from a dispatcher. Dispatcher Fred Jones admitted that he
routinely did not count absences when drivers left early because
of the unavailability of a truck.
In view of the above evidence I find that Respondent treated
Bill Noland in a disparate manner and Respondent failed to
prove that it would have discharged Bill Noland in the absence
of his union activities.
I find that Noland’s discharge was motivated by Respon-
dent’s antiunion animus, that Respondent engaged in pretext in
an effort to prove its November 6 investigation of truck 4155
justified the discharge of Noland and Respondent failed to
prove that it would have discharged Noland in the absence of
his union activities.
CONCLUSIONS OF LAW
1. Sanderson Farms, Inc. (Production Division) is an em-
ployer engaged in commerce as defined in the Act.
2. United Food and Commercial Workers Union, Local
1529 is a labor organization as defined in the Act.
3. Respondent, by coercively interrogating its employee
about the Union; by impliedly threatening its employee with
negative consequence if he became involved with the Union
and by threatening its employee that it was experiencing prob-
lems and would weed out troublemakers that support the Un-
ion; engaged in conduct in violation of Section 8(a)(1) of the
Act.
4. Respondent, by discharging and refusing to reinstate its
employee Bill Noland has engaged in conduct in violation of
Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent having discriminatorily discharged em-
ployee Bill Noland, it must offer Noland immediate reinstate-
ment to his former job, or, if that job no longer exists, to a sub-
stantially equivalent position and make him whole for all loss
of earnings and other benefits, computed on a quarterly basis
from date of discharge to date of proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]