Sunnyland Packing Co.

National Labor Relations Board - Board Decisions

Jul 30, 1953

106 N.L.R.B. 457 (N.L.R.B. 1953)

SUNNYLAND PACKING COMPANY 457
SUNNYLAND PACKING COMPANY and UNITED PACKING-
HOUSE WORKERS OF AMERICA, CIO. Case No. 10-CA-
1489. July 30, 1953
DECISION AND ORDER
On May 22, 1953, Trial Examiner George A. Downing issued
his Intermediate Report in the above-entitled proceeding,
finding 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, and recommending that it cease and
desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the
complaint and recommended that the complaint be dismissed
with respect thereto. Thereafter, the Respondent filed excep-
tions to the Intermediate Report and a supporting brief.
The Respondent's request for oral argument before the
Board is hereby denied as the record, including the exceptions
and brief, adequately present the issues and positions of the
parties.
The Board' has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions and
brief, and the entire record in the case, and hereby adopts
the findings, conclusions, and. recommendations of the Trial
Examiner.'
ORDER
U on the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondent, Sunnyland
Packing Company, Thomasville, Georgia, its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in United Packinghouse
Workers of America, CIO, or in any other labor organization
of its employees, by discriminatorily discharging or refusing
to reinstate any of its employees, or by discriminating in any
other manner in regard to their hire or tenure of employment
or any term or condition of employment.
(b) Threatening its employees with economic or other
reprisals in the event of the advent of the Union; spying on
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board
has delegated its powers in connection with this case to a three-member panel[Members
Murdock, Stiyles, and Peterson].
2 We are satisfied that these persons admitted on the record by the Respondent to be fore-
men, as stated in the Intermediate Report, are supervisors within the meaning of the Act.
106 NLRB No. 86.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and keeping under surveillance union meetings and activities;
and interrogating its employees concerning their union senti-
ments.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization , to form labor organizations, to join or assist
United Packinghouse Workers of America, CIO, or any other
labor organization , to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted
activities for the purposes of collective bargaining and other
mutual aid or protection, or to refrain from any or all. such
activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Offer to Lawrence F. Folsom and Charles T. Williams
immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority
or other rights or privileges, and make each of them whole
for any loss of pay he may have suffered by payment to him
of a sum of money equal to that which he normally would have
earned as wages from the date of the discrimination against
him to the date of the offer of reinstatement, less his net
earnings during said period (Crossett Lumber Company,
8 NLRB 440, 497-8), said back pay to be computed on a
quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289.
(b) Post at its plant at Thomasville, Georgia, copies of the
notice attached to the Intermediate Report and marked "Ap-
pendix A." 3 Copies of said notice, to be furnished by the
Regional Director for the Tenth Region, shall, after being
signed by Respondent' s representative , be posted by Respondent
immediately upon receipt thereof and maintained by it for
sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for the Tenth Region, in
writing, within ten (10) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges that Preston C. Hurst
was discriminatorily discharged in violation of Section 8 (a)
(3) and (1) of the Act.
3 This notice shall be amended by substituting for the words "The Recommendations of a
Trial Examiner" in the caption thereof the words "A Decision and Order." In the event that
this Order is enforced by a decree of a United States Court of Appeals, there shall be substi-
tuted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of
the United States Court of Appeals, Enforcing an Order."
SUNNYLAND PACKING COMPANY
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
459
This proceeding, brought under Section 10 (b) of the National Labor Relations Act as amended
(61 Stat. 136), was heard in Thomasville, Georgia, on March 9 and 10, 1953, pursuant to due
notice. All parties' were represented by counsel or by representatives and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant
evidence, to argue orally, and to file briefs, proposed findings of fact, and conclusions of
law. The General Counsel has filed a brief.
The complaint, issued on January 14, 1953, by the General Counsel, and based on charges
duly filed and served, alleged in substance 2 that Respondent had engaged in unfair labor
practices proscribed by Section 8 (a) (1) and (3) of the Act by (a) discharging discriminatorily
Charles T. Williams and Lawrence F. Folsom on March 19, 1952, and Preston C. Hurst on
September 8, and thereafter refusing to reinstate them; and (b) engaging in other specified
acts of interference, restraint, and coercion on certain dates on and after February 16.
Respondent's answer, filed January 23, 1953, denied the allegations of unfair labor practices.
Upon the entire record in the case, and from his observation of the witnesses, the under-
signed makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent Is a Georgia corporation (formerly known as the Georgia Packing Company),
with its principal office and place of business and a meat packing plant located at Thomasville,
Georgia. Respondent sells and ships annually to customers outside the State of Georgia meat
and meat byproducts valued in excess of $ 250,000. Respondent is, therefore, engaged in
interstate commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
Respondent's supervisory staff, as identified by the record, are J. L. Roberts, president,
L. B. Harvard, vice president and general manager, Hosea H. Vann, superintendent, and
Foremen Parkman, Bozeman, Virgil Knight, Hobson Willis, Ernest Rickert, Dewey Hide,
Hillman Sadler, and Austin Griffin. There is no evidence that Stockbuyer Chasteen possessed
supervisory status.
The incidents involved herein grew out of attempts by the Union to organize the employees
of Respondent's Thomasville plant in February, March, and in August, 1952. Respondent
countered both drives with speeches in the canteen to both day-shift and night-shift employees,
portions of which speeches the General Counsel assails as coercive. The General Counsel
also asserts that the discharge of Folsom and Williams on March 19 and the discharge of
Hurst in September were made to discourage union activities. The remaining incidents
of consequence included the alleged surveillance of a union meeting on August 31, and
the interrogation, also in August, by Harvard of an employee concerning his union senti-
ments.
i The General Counsel and his representative at the hearing are referred to herein as the
General Counsel and the National Labor Relations Board as the Board The above-named
Respondent is referred to as Respondent and as the Company, and the charging Union as the
Union.
2 The summary of the pleadings here made includes amendments made at the hearing. All
acts referred to herein occurred in 1952.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Interference , restraint , and coercion
1. The canteen speeches
The General Counsel's evidence related mainly to the February meeting which Respondent
held with the night -shift employees . A petition favoring the organization of a union had been
circulated among the employees around the middle of February, and about 2 days later
Respondent's officials held separate meetings in the canteen with the day-shift and night-shift
employees , at which Roberts , Harvard, and Vann made speeches concerning the union
activities.
Folsom and Williams , who attended the night-shift meeting , testified that one of the speakers
made statements substantially to the following effect that: The employees could have a union
if they wanted one, but that they should have come to him about it; he owned the plant, would
not take orders from a union , or let anyone tell him how to run the plant, and would close it
down before he would have a union; and the Christmas bonus would be cut out if a union came
in. Folsom testified on cross-examination that Harvard also stated that hours would be cut to
40 a week if a union came in. Williams testified that one of the speakers stated that he wanted
to know who was heading the union activities, and whether any of the employees had anything
to say about the subject, and that one of the office employees stated that he had started the
union activities and was sorry that he had done so. Folsom's testimony, however, does not
corroborate Williams that any of the speakers inquired who the union leaders were, though he
testified that the employees were given an opportunity to speak and that one of them did
so.
Preston Hurst testified to a similar meeting with the day-shift employees, in February,
at which Roberts stated that if the Union got in he wanted nothing more to do with the Company
and that the Christmas bonus "would be knocked out."
Respondent stipulated, without binding itself on credibility, that if called by the General
Counsel, Arbeth Dugget, A. Jones, Joel Creech, and Milton Halstead would testify sub-
stantially to the same effect as Folsom, Williams, and Hurst.
Roberts testified for Respondent that he had made substantially the same speech at all the
canteen meetings; that he explained among other things that the employees were free to
join or not to join the Union, and that they would not be threatened, coerced, or discriminated
against because of joining; that if the employees decided to join the Union. he and the other
officials would try to get along with it, but that if they could not, they would either sell the
plant or close it up, rather than to submit to harassment of the type he had heard about at
a unionized plant in Moultrie; that the Company had an opportunity to sell the plant to other
concerns which were unionized, and that if it would not get along with the Union, it would
sell out to one of those concerns. Roberts also referred to existing benefits, such as the
Christmas bonus , paid vacations , etc., and stated that he did not know what would become
of those benefits if the Union was voted in because he did not know what sort of contract could
be negotiated with the Union ; he also referred to the practice of certain unionized plants of
making layoffs during slack seasons, and to the Company's contrary policy, and stated that
if the Union came in he did not know what kind of contract might be reached. Roberts also
testified that, he stated, speaking as an individual, that he was not entirely dependent upon
the plant for an income, and that before he would let the Union "run him crazy," he would
get out of the Company.
Harvard testified that his own remarks related to his advancement up through the ranks,
and that he did not attempt to duplicate Roberts' statements with reference to the financial
condition of the Company. He testified that his only reference to the Union was in comparing
the benefits the employees had received in the past and that he made no statement or predic-
tion concerning how the advent of a union would change existing benefits or conditions. There
is no evidence as to specific statements attributed to Vann.
It is unnecessary , for the determination of the issues herein, that the foregoing testimony
be reconciled with exactness, since the main difference between the two versions was whether
Respondent 's speakers made direct and express threats of retailiatory action in event of the
unionization of the plant , or whether such threats were only indirect or implied . 3 Thus, under
Roberts' testimony , his statements constituted at best thinly veiled threats of reprisals; they
were calculated to convey the impression--and didsoas to the General Counsel's witnesses--
3The actual truth would be found somewhere between the respective versions ; i.e., the
threats were doubtless less explicit than claimed by the General Counsel's witnesses and more
explicit than admitted by Roberts.
SUNNY LAND PACKING COMPANY 461
that the plant might be closed or sold, and that existing employee benefits might be lost, upon
the advent of the Union.
But threats are not less coercive because expressed in veiled or indirect terms. Cf. D.H.
Holmes Co. v. N. L. R. B., 179 F. 2d 876, 879 (C. A. 5); Joy Silk Mills v. N. L. R. B., 185 F.
2d 732, 740 (C. A. D. C.). Where the words used are reasonably calculated, or intended, to
convey an impression that unionization may result in the sale or closing of the plant or in the
loss of existing benefits, cf. Linde Air Products Co., 86 NLRB 1333, 1334-5; Union Screw
Products, 78 NLRB 1107; Hinde & Dauch Paper Co., 78 NLRB 488; Scripto, Inc., 102 NLRB
872, such implied or indirect threats of reprisal are as much outside the protection of Section
8 (c) of the Act as those which are express or direct. Beatrice Foods Co., 84 NLRB 493, 508,
enfd. 183 F. 2d 726 (C. A. 10). When such statements are made by one who is a part of the
company management and who has the power to change prophecies into realities, such state-
ments. whether couched in language of probability or certainty, tend to impede and coerce
employees in their right of self-organization, and therefore constitute unfair labor practices.
N. L. R. B. v. W. C. Nabors Co., 196 F. 2d 272, 276 (C. A. 5), cert. den. 344 U. S. 865; cf.
Collins Baking Co. v.)i L. R. B., 193 F. 2d 483, 486 (C. A. 5); N. L. R. B. v. Beatrice Foods
Co., 183 F. 2d 726, 728-9 (C. A. 10); N. L. R. B, v. Continental Oil Co., 159 F. 2d 326, 330
(C. A. 10); N. L. R. B. v. American Furnace Co., 158 F. 2d 376 (C. A. 7). For employers
still may not , under the guise of merely exercising their right of free speech, pursue a course
of conduct designed to restrain or coerce their employees in the exercise of rights guaranteed
them by the Act. N. L. R. B. v. Gate City Cotton Mills, 167 F. 2d 647, 649 (C. A. 5); cf.
N. L. R. B. v. Kropp Forge Co., 178 F. 2d 822 (C. A. 7), cert. den. 340 U. S. 810; N. L. R. B.
v.. Ford, 170 F. 2d 735 (C. A. 6).
It is therefore concluded and found that Roberts' statement that the plant might be closed
or sold, and that existing benefits might be lost if the Union came in, constituted interference,
restraint , and coercion , and that Respondent thereby committed an unfair labor practice
in violation of Section 8 (a) (1) of the Act.
The evidence does not, however, establish that the August speeches were of coercive effect,
despite Roberts ' testimony that he spoke generally to the same effect at all the meetings.
Carol Hurst and James B. Chasteen, witnesses for the General Counsel, testified to a version
which was not substantially different from Respondent's witnesses, Carl Thomas, Morgan
Yandle, Austin Joiner, and Louis Gay. 4 The testimony of the latter witnesses, all in relation
to the August speeches, reflected nothing which was not privileged as free speech.
2. Surveillance
On the last Sunday in August, the Union scheduled a meeting to be held at the home of
Preston C. Hurst, an employee who lived on the outskirts of Thomasville. Shortly before
the meeting was to commence, a number of foremen, including Knight, Rickert, and Willis,
drove up and parked close to the building in which the meeting was to be held. As the em-
ployees began to arrive , some of them , upon seeing the foremen , drove past without stopping.
In one instance a car occupied by colored employees pulled in and stopped . Rickert went over
to the latter car and spoke to the occupants , inquiring what they were doing there and stating
that the meeting had been concluded. Thereupon the employees left.
Later, some of the foremen entered into a conversation with union representatives , stating
that they did not feel that the Union should sneak around the bushes to hold a meeting; that
they (the foremen) would like to "get in on it" too; and that if the Union wanted to hold a
meeting, it should come to the plant.
4 The General Counsel stipulated, without binding himself on credibility, that Respondent
could call "any number of witnesses" to testify substantially to the same effect as Thomas,
Yandle, Joiner, and Gay.
Though the testimony of some of the six witnesses was indefinite as to the time of the speech
which they heard, the evidence as a whole establishes that their testimony related to the Au-
gust speeches. Thus Hurst, Yandle, and Gay referred to the fact that DeLoache was present
(he was stipulated to have been at the August meeting ), and Hurst also related it as close in
point of time to the visit of the "union man" to his home , which was also in August. Joiner,
though first fixing the time as early in the year, finally recalled that it was during the em-
bargo, which had begun in July. Thomas could not state definitely which speech he heard, but
thought he had heard the day- shift speech in February. However, his testimony closely parallels
that of the other five witnesses above, and it is concluded that he, too, heard the August
speech.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Not only did the open surveillance of the meeting place operate to restrain the employees
in their concerted activities, but the presence and activities of the foremen were so dis-
ruptive on the occasion that no actual meeting was held. By the said acts of its supervisors,
Respondent engaged in interference , restraint , and coercion within the meaning of Section 8
(a) (1).
3. Interrogation
During the union activity in August, Harvard called into his office Carol A. Hurst and
questioned him as to his position on and his feeling about the Union and as to his feeling
toward the Company.5 Harvard also inquired whether Hurst could inform him what complaints
there were on the part of the employees, and Hurst stated that, for his own part, he thought
things were getting along fine and that a union was not necessary.
Haa this incident stood alone , it might not have furnished an adequate basis for a remedial
order. Cf. Waffle Corp. of America, 103 NLRB 895. However, it constituted, and must be
viewed as, a part of Respondent's course of unfair labor practices as found herein, including
surveillance and discrimination . It is , therefore , concluded and found that by Harvard's
interrogation of Hurst concerning his sentiments and his position on the Union, Respondent
engaged in interference , restraint , and coercion within the meaning of Section 8 (a) (1).
, Standard-Coosa-Thatcher Co., 85 NLRB 1358;,Syracuse Color Press, Inc., 103 NLRB 377.
C. Discrimination
1. The Folsom-Williams discharge
Employee interest in the Union had continued after the canteen speeches in February.
Williams testified that he later went to Moultrie, saw Wright Littles, obtained some applica-
tion cards, and made an appointment with Littles to come to Thomasville. A week or so later
Littles came to Williams' house on a Saturday and the two of them picked up Folsom and
drove around Thomasville to the homes of various employees, soliciting membership in the
Union.
On Sunday, Monday, and Tuesday evenings, Williams and Folsom continued their solicita-
tion of members at the plant among their fellow employees on the night shift. On Wednesday
(March 19), when they reported to work, they were stopped at the plant entrance and told to
wait. Parkman, their foreman, came to the gate, took them to the office, obtained their
signatures on their timecards, gave them their pay envelopes, and stated in effect that they
"would know better next time." Upon inquiry as to why they were being discharged, Parkman
told them there was no reason. They then asked for and received permission to speak to
Vann, who informed them they were discharged because they were not needed any more and
that the plant would be better off without them. Vann has since refused repeated requests by
Folsom for reinstatement.
Respondent offered evidence to the following effect : About 10 days or 2 weeks before the
Folsom-Williams discharge, Folsom had been discharged individually for having permitted
a long-distance call to be charged to Respondent's telephone . Between the Friday morning
when he was discharged and the following Monday, Folsom had conferences with Vann and
Harvard looking to his reinstatement. During those conferences Folsom was questioned about
his knowledge of pilferage from the Company and as to other misconduct by night-shift
employees, including particularly the practice of "clock-bumping," by which the employees
erroneously received credit on their timecards for more time than actually worked. Though
denying that he had himself participated in the misconduct (save for eating part of a can of
spiced meat offered him by another employee), Folsom readily admitted knowledge of the
practices and volunteered to help the Company to catch those who were guilty of the pilferage
if the Company would reinstate him. The Company had already circumvented the clock-bumping
practice by requiring that all timecards be turned in to foremen during actual working
hours.
Harvard and Vann later discussed the matter further and decided to take advantage of
Folsom's offer. Folsom was thereupon reinstated on Sunday or Monday and was discharged
5 Hurst, who had been visited the night before by Folsom and Littles in connection with the
Union's organizational campaign, inquired how Harvard knew he had been visited by the
"Union man " Harvard denied that he knew of the visit, and there is no evidence that he did.
SUNNYLAND PACKING COMPANY 463
again (along with Williams) on Wednesday of the following week under the circumstances
above recounted.
Harvard testified that, after a few days, having had no report from Folsom, he and Vann
decided that nothing was being accomplished by the arrangement and that Vann thereupon
discharged Folsom again.6 Harvard and Vann testified that Williams was then discharged
also because, during Folsom's reinstatement interviews, Folsom had named Williams as
the employee who had broken open the can of spiced meat, part of which Folsom had admitted
eating. Folsom denied that he had implicated Williams in that incident, but testified that he
had attributed it to another employee, Gene Barrett. However, the Harvard-Vann testimony
is credited that Folsom had implicated Williams.
Although Harvard's testimony was to the effect that Folsom was discharged for failure
to report further pilferages, Respondent endeavored to support, through Vann's testimony,
a contention that a variety of other considerations had entered into the discharge, namely,
that Folsom was a generally undesirable employee who had been found "in and around the
fringes of the improper conduct of the employees"(i.e. pilferage, clock-bumping, a suspected
stealing of uniforms, etc.). 7 However, Vann made a rambling witness whose demeanor
and manner of testifying rendered his testimony unconvincing. Vann's testimony has, there-
fore, not been credited except where it is corroborated by Harvard or where it is reconcilable
with other evidence. Furthermore, though Vann's testimony in its entirety indicates that
Folsom's alleged undesirability as an employee was a circumstance which was considered
at the time of his first discharge, yet it is compatible in its entirety with Harvard's testimony
concerning Folsom's second discharge.
Concluding Findings
The burden was upon the General Counsel, of course, to establish by a preponderance of
the evidence that Respondent discharged Folsom and Williams because of their union member-
ship and activities. W. C. Nabors Company, 89 NLRB 538, 540, enfd. 196 F. 2d 272 (C. A. 5),
cert. den. 344 U. S. 865. Consideringthe case first as it was postured by the General Counsel's
evidence, a prima facie case was clearly made out that Respondent was discriminatorily
motivated in making the discharges. Thus, the evidence showed that the men were actively
engaged in an organizational campaign at the plant among night-shift employees. Knowledge
of their activities must be presumed to have reached Respondent in view of the small number
of employees on the night shift and their supervision by Parkman. N. L. R. B. v. Abbott
Worsted Mills, 127 F. 2d 438, 440 (C. A. 1); Quest-Shon Mark Brassiere Co., Inc.. 80 NLRB
1149, enfd. 185 F. 2d 285 (C. A. 2), cert. den. 312 U. S. 812. Indeed Respondent had shown
awareness, by the February canteen speeches, of the organizational movement among the
employees and a disposition to defeat the Union's campaign.
The manner of discharge, without warning, was both precipitate and unusual. The two men
were stopped at the gate in midweek and required to wait for Parkman, who paid them off
and discharged them without explanation save for his cryptic remark that they would know
better next time. Vann's subsequent statement that the plant would be better off without them
was similarly devoid of explanation as to the cause of the discharge.
The question remains whether Respondent's evidence is sufficient to overcome the General
Counsel's prima facie case, cf. Law and Son v. N. L,. R. B., 192 F. 2d 236, 238 (C. A. 10),
citing Montgomery Ward and Company v. N. L. R. B., 107 F. 2d 555, 560 (C. A. 7); and see
Sixteenth Annual Report of the National Labor Relations Board (1951), p. 162, and to over-
come the inference, plainly supported by the foregoing circumstances,8 that Respondent
discharged Folsom and Williams to discourage the membership drive in which they were
active participants. And preliminarily, it is important to note that even though a valid cause
6 Folsom testified that he had seen no further signs of pilferage on his shift, and there is
no evidence that any occurred , though Harvard testified generally that the Company 's records
continued to reflect shortages.
7Respondent also developed from Folsom on cross-examination an admission that he was
once refused employment by the ACL Railway because of an incident in 1942, involving theft
of a can of cream in Minnesota . However, Respondent had no knowledge of that matter until
after Folsom's final discharge
8It is well recognized that a finding of discrimination must frequently rest on inference,
since direct evidence of an intention to violate the Act is rarely obtainable . N L.R B. v.
Piedmont Wagon and Mfg . Co., 176 F. 2d 695 (C. A. 4); Hartsell Mills v. N.L.R.B., 111 F. 2d
291 (C. A 4).
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may exist for the discharge or discipline of an employee , that fact does not excuse the dis-
charge if the evidence establishes that the employer 's real reason was to discourage union
activities . Sixteenth Annual Report , pupra, pp. 162 -3, and cases cited.
The heart of Respondent's defenses, as disclosed by Harvard's testimony, is that Folsom
was discharged because he had made no reports of pilferage or other misconduct as agreed
at the time of his reinstatement 10 days earlier , and that Williams was discharged because
Folsom had implicated him earlier in the spiced-meat incident. This defense fails to with-
stand close scrutiny for the following reasons:
In the first place , it does not appear that further incidents of misconduct had occurred on
the night shift, or that Respondent had reasonable grounds for so believing .9 Williams'
selection for contemporaneous discharge was suspect , despite acceptance of Respondent's
evidence that Folsom had implicated him, since under the Harvard-Vann testimony, Folsom
had implicated all but two of the night-shift employees in the misconduct. The actual dis-
charge was made by Parkman, who, so far as is shown by the evidence, was unaware either
of the basis of Folsom's reinstatement or of the basis on which the discharges were allegedly
made . Finally, no reason appears why, if Respondent's reasons were those advanced at the
hearing, Parkman and Vann should have hesitated to assign them, particularly when the men
sought an explanation. 10 Indeed , there was every reason, in view of the current organizational
campaign , why Respondent should have assigned the cause as explicitly as possible . However,
Parkman 's and Vann's evasive and equivocal statements were singularly inappropriate and
inadequate as explanations of Respondent's alleged reasons . Cf. Sawyer Downtown Motors,
supra. The giving of such evasive reasons in fact lent further support to the General Counsel's
case that the discharges were due to the active and current participation by the two men in the
membership campaign. 11
Nor does the evidence support Respondent 's contention that the discharges were made for
economic reasons and to obtain greater efficiency of operations. Though Respondent introduced
various tables which reflected a decrease in personnel beginning around March 15, as well
as a contemporaneous reduction in the unit cost of production, it made no showing how those
facts were related to the Folsom-Williams discharge; its claims were not only patent after-
thoughts , cf. Sawyer Downtown Motors, supra, but seemed designed to support a species of
post hoc-propter hoc reasoning . Vann's testimony in that connection was unpersuasive; it
has not been credited for reasons stated above.
Respondent may, of course, have considered Folsom to have been an undesirable employee;
and it gave cumulative weight to its appraisal of him in reaching the decision to make the
first discharge because of the telephone call. But there was no evidence of misconduct
thereafter, either on the part of Folsom or of other employees, nor were there other untoward
circumstances save that the organizational drive had been renewed and that Folsom and
Williams had become active participants in it. Though it is possible that Respondent may
have considered that those circumstances indicated , or would result in, a partial failure of
consideration for Folsom 's reinstatement , that fact would neither disentitle Folsom to exercise
his right , guaranteed under Section 7, to participate in the concerted activities , nor entitle
Respondent to discharge him for having done so.
It is , therefore , concluded and found , on the basis of the entire evidence , that Respondent
discharged Folsom and Williams in order to discourage union membership and activities,
and that it thereby engaged in unfair labor practices proscribed by Section 8 (a) (3) and (1)
of the Act.
9Respondent had previously circumvented the clock-bumping practice , and there is no evi-
dence that it continued after Folsom 's reinstatement . Though Harvard testified generally that
Respondent 's records indicated continuing shortages , Respondent made no effort to support
that testimony by the records themselves, nor was there any indication that, if pilferages con-
tinued, they had occurred on the night shift.
10Cf. N.L.R B. v. Piedmont Wagon and Mfg. Co., supra; Sawyer Downtown Motors, 103
NLRB 1735. The lack of specificity at this point contrasted sharply with the direct and specific
assignment of cause on the occasion of Folsom 's first discharge.
"The giving of evasive or contradictory reasons for a discharge may, of course, be con-
sidered in determining the real motive for a discharge, N.L.R.B v . Condenser Corp., 128 F
2d 67 , 75 (C. A 3); and the employer 's shifting or inconsistent explanations of a discharge is
a circumstance indicating an antiunion motivation. Mooresville Mills, 99 NLRB 572; Sandy
Hill Iron & Brass Works, 69 NLRB 355, enfd. 165 F. 2d 660 (C. A. 2); cf N L.R.B v. Inter-
national Furniture Co., 199 F. 2d 648 (C. A. 5), enfg. 98 NLRB 674.
SUNNYLAND PACKING COMPANY
2. The Hurst discharge
465
Preston Hurst was the employee at whose home the union meeting was scheduled for the
last Sunday in August (August 31). He was employed on the day shift in the smoked-meat
room and the wrapping room.
Late in July the State of Florida had imposed an embargo on pork products, and since much
of Respondent's trade territory was in that State, it began to suffer a diminution of business.
This was reflected in turn in a reduction in the number of hours worked by most of the
employees, including Hurst and the others in his department. For example, Hurst worked
the following hours the last 6 weeks of his employment:
July 26
August 2
August 9
August 16
August 23
August 30
September 6
48*
23*
351
17
3*
(off)
19
Hurst testified that the week before the union meeting, he had worked 3 hours on a Monday.
In that time the crew had worked up all the meat on hand and were then informed that there
would be no more work for the week and that if the employees found other work, they should
accept it ; if not, they might report back the following Monday to see whether there was
anything available for them. Hurst testified, however, that lie did not report as suggested
because he was repairing his house. On Wednesday afternoon of the week ending September 6,
Griner came to his house and requested him to report for work. Hurst worked on Thursday
and Friday, and was then again laid off by Griner, who told him there was no need to return.
About 3 weeks later, Hurst applied to his foreman, Bozeman, for reinstatement and was
told that there was no work for him and that Bozeman and Vann had decided to let him go
finally because of his failure or inability to perform his job properly and because of his too
frequent visits to the restroom.
The foregoing evidence fails to establish that Hurst was either laid off, discharged, or re-
fused reinstatement because of his union activities. The only suspicious circumstance is that
the union meeting which Respondent's foremen disrupted was to have been held at Hurst's
home on August 31. However, his initial layoff had occurred prior to that meeting, as a part
of the general layoff resulting from the embargo. What is of crucial significance, is that sub-
sequent to the incident of the union meeting, Respondent sent for Hurst and gave him 2 days
work. In view of Hurst's admitted failure to report on Monday of that week as suggested at the
time of his initial layoff, Respondent, had it been moved to retaliate against him because of the
union meeting, would obviously have accepted the ready-made opportunity of replacing him,
cf. New York Steam Laundry, Inc., 85 NLRB 1470,1480, if it needed to, on the excuse that it had
construed his failure to report as indicating that he had obtained other employment. There is
no suggestion, and certainly it cannot be assumed, that Respondent deliberately recalled
Hurst for the purpose (or pleasure) of laying him off again in retaliation for permitting a
union meeting to be held at his home.
Nor does the evidence support the contention that the failure to recall and the final dis-
charge were discriminatorily motivated. Hurst admitted that Respondent then informed him
that its final decision was based on his shortcomings as an employee. Respondent offered
evidence that Hurst's performance was inadequate, and its appraisal of him was concurred in
by James B. Chasteen, a witness for the General Counsel.
Upon the basis of the foregoing findings of fact and upon the entire record in the case the
undersigned makes the following:
CONCLUSIONS OF LAW
1. The activities of Respondent set forth in section III, above, occurring in connection with
the operations of Respondent described in section I, above, have a close, intimate , and sub-
stantial relation to trade, traffic, and commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and the free flow thereof.
2. The Union is a labor organization within the meaning of Section 2 (5) of the Act.
3. By discharging Lawrence F. Folsom and Charles T. Williams on March 19, 1952, and
by thereafter failing and refusing to reinstate them, because of their union membership and
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities, Respondent engaged in discrimination and committed an unfair labor practice within
the meaning of Section 8 (a) (3) and (1) of the Act.
4. By interfering with, restraining, and coercing its employees in their rights guaranteed
in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
(Recommendations omitted from publication.]
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board and in order to effectuate the policies of the National Labor Relations Act we hereby
notify our employees that:
WE WILL NOT discourage membership in United Packinghouse Workers of America,
CIO, or in any other labor organization of our employees , by discharging or refusing to
reinstate any of our employees , or in any other manner discriminating against them in
regard to hire or tenure of employment or any term or condition of employment.
WE WILL NOT threaten our employees with economic or other reprisals in the event
of the advent of the union ; spy on or keep under surveillance union meetings or activities;
or interrogate our employees concerning their union sentiments.
WE WILL NOT in any other manner interfere with, restrain , or coerce our employees
in the exercise of their right to self-organization , to form labor organizations , to join or
assist United Packinghouse Workers of America , CIO, or any other labor organization, to
bargain collectively through representatives of their own choosing , and to engage in other
concerted activities for the purposes of collective bargaining and other mutual aid or
protection , or to refrain from any or all such activities except to the extent that such
right may be affected by an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Lawrence F. Folsom and Charles T. Williams immediate and full
reinstatement to their former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make them whole for any loss of pay
they may have suffered as a result of our discrimination against them.
All of our employees are free to become or refrain from becoming members of the above-
named union or any other labor organization.
SUNNYLAND PACKING COMPANY
Employer.
Dated ................ By.......................................................................... ....................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
JAMESTOWN STERLING CORPORATION and UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF
AMERICA, AFL. Case No. 3-CA-596. July 30, 1953
DECISION AND ORDER
On May 12, 1953, Trial Examiner Dent D. Dalby issued his
Intermediate Report in the above-entitled proceeding finding
106 NLRB No. 88.