Sunnyland Packing Co.

National Labor Relations Board - Board Decisions

Mar 1, 1965

151 N.L.R.B. 322 (N.L.R.B. 1965)

:322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sunnyland Packing Company and Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO. Case
No. 10-CA-5665. March 1, 1965
DECISION AND ORDER
On November 30, 1964, Trial Examiner Harold X. Summers
issued his Decision in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices within the meaning of the National Labor Relations
Act, as amended, and recommending that, it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Decision.
Thereafter the Respondent filed exceptions to the Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the National Labor Relations Board has delegated
its powers in connection with this case to a three-member panel
[Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, and the entire record
in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order the Order
recommended by the Trial Examnier with the following modifica-
tions, and orders the Respondent, Sunnyland Packing Company,
its officers, agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order, as thus
modified :
Insert the following paragraph 2(c) and renumber all subsequent
paragraphs accordingly :
"(c) Notify the above-named employee if presently serving in
the Armed Forces of the United States of his right to full rein-
statement upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces."
TRIAL EXAMINER'S DECISION
This case was heard upon the complaint 1 of the General Counsel of the National
Labor Relations Board , herein called the Board, alleging that Sunnyland Packing
1 The complaint was issued May 24 , 1964 . The charge initiating the proceeding was
filed March 31, 1964.
151 NLRB No. 44.
SUNNYLAND PACKING COMPANY 323
Company, herein called Respondent , had engaged in and was engaging in unfair
labor practices within the meaning of Section 8 (a)(1) and ( 3) of the National Labor
Relations Act, herein called the Act. Respondent 's answer to the complaint admitted
some of its allegations and denied others; in effect , it denied the commission of any
unfair labor practices . Pursuant to notice , a hearing was held before Trial Exam-
iner Harold X. Summeis at Thomasville, Georgia, on July 14, 1964. All parties
were afforded full opportunity to examine and cross -examine witnesses , to argue
.orally, and to submit briefs. Briefs filed by the General Counsel and by Respondent
have been fully considered.
Upon the entire record of the case, including my evaluation of the witnesses based
upon the evidence and my observations of their demeanor , I make the following:
FINDINGS OF FACT
1. COMMERCE
Respondent is a Georgia corporation engaged in the processing, sale, and distri-
bution of meat products. During the 12 months preceding the issuance of the
instant complaint, which period is representative of all times material herein,
Respondent sold and shipped products valued at in excess of $50,000 from its plant
at Thomasville, Georgia, directly to points outside the State of Georgia.
I find that Respondent is an employer engaged in commerce within the meaning
of the Act.
II. THE UNION
The Charging Party, Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, hereinafter called the Union, is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent's production and maintenance employees have been the object of a
number of union organizing campaigns, and they have participated in at least one
Board-conducted election, in 1955.
The Union's most recent campaign began during or about January 1963. On this
record, I find that this campaign continued until at least March 1964, but that two
major clusters of activity took place early in 1963 and early in 1964, respectively.
Union meetings were held on Friday evenings during the campaign.
By registered letter dated January 11, 1964, received January 13, the Union sent
Respondent a list of 184 of Respondent's employees who, according to the letter,
had signed union authorization cards.2 Very shortly thereafter, Respondent posted,
in each of its departments, a list of the employees in that department who, according
to the Union, had signed authorization cards.3
B. Chronology of events 4
1. A week or two before the posting by Respondent of the list of union card
signers-in other words, between January 2 and 7, 1964 5-J. B. Brinkley, sliced-
bacon foreman,° asked Lenzie Brinson, an employee in his department, if he had
heard anything about "union cards going around." Receiving a negative answer,
he said "he hoped" that those who were signing the cards knew what they were
doing-the Company had been so good to them that he felt they should not sign
the cards.
2 There were 600 to 700 employees altogether.
8 The purpose of the posting is without explanation. But the General Counsel makes
no attack upon the posting-indeed, a witnesss who had been active in the organizing
campaign testified that the posting was "helpful" to those soliciting signatures-and r
shall draw no unfavorable inferences therefrom
' Unless otherwise indicated, these findings are based upon uncontradicted, credited
testimony. The findings contained in this section will not be repeated elsewhere in
this report; later references to them will take the form of the abbreviation "chron."
followed by the item number or numbers being alluded to.
6 Unless the contrary is noted, all dates referred to herein fall within 1964
6 Established by the pleadings and here found to be a supervisor of Respondent within
the meaning of the Act.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. On January 14-the same day as or the day after the "Union list" was posted
by Respondent-Alvin Heard, night shipping foreman,7 asked employee Raymond
Johnson if he had signed a union card yet. (Johnson's name was not on the posted
union list).
3. On or about January 17, Amos Fallin, a meatcutter for Respondent, was
approached by Bill Chastain, his foreman, and by his brother Estes Fallin, Jr.,
sausage-vacuum-pack foreman.8 Chastain said that he "couldn't talk to" Amos but
he had talked to a third Fallin brother employed by Respondent; and Estes Fallin
said that Amos was "doing the wrong thing" by signing a union card. When Amos
volunteered that he had signed a card-rather superfluously, since his name appeared
on the posted list-and would sign another if necessary, Estes repeated, "You're
doing the wrong thing. I believe you'll be sorry of it, and I think you should sign
a withdrawal." When Amos said he would do no such thing, his brother reiterated
his belief that Amos would be sorry.
4. Also in January-after the list was posted-Jesse Luke, kill floor foreman,9
asked A. J. Stapleton, a killing floor employee whose name appeared on the list,
"what was wrong with the boys on the job," to which Stapleton replied that the
problem was "money and the work load."
5. At or about the middle of January, Donny Lewis, beef cooler foreman,1° went
into the beef cooler where employee Howard Fulghum was working. He said he
was disappointed in Fulghum-he had seen his name on the "wrong list." (Fulghum's
name appeared on the union list.) Fulghum said that his having signed a union
card "was no reflection on" Lewis, since he had signed the card while working under
a previous foreman, and Lewis asked him, "Would you reconsider? It looks bad
on my part." Fulghum declined, saying he had signed the card "in good faith."
6. By February 14, Raymond Johnson (see chron. 2) had signed a union card.
On or about that date, Alvin Heard (also involved in chron. 2) asked him what the
Union would do for him. Johnson said that a union would equalize hours and
bring better pay, to which Heard said, "Well, I don't know anything about the
Union," and walked away.
7(a). On Thursday, February 13, Howard Fulghum, a beef tagger (see chron. 5),
was scheduled to report for work at 4 p.m. At 1 o'clock that day, Donny Lewis, his
foreman, called him, asking him to come in to the plant at 3:15. When Fulghum
arrived there at that time, Lewis told him that Hosea Vann (vice president, plant
superintendent, and a supervisor within the meaning of the Act) wanted to talk to
him about a sales job, and they went to Vann's office.
7(b). There, Vann told Fulghum that a salesman's job was open, that he thought
Fulghum would make a good salesman, and that he wanted Fulghum to try the job.
At that time, Fulghum was neither asked if he was interested nor did he say that he
was interested; on the other hand, neither did he display any lack of interest in the
proposal." He was thereupon told to go to the sales office.
7(c). At the sales office, Assistant Sales Manager "Red" Stringer spoke to him,
in the presence, for almost the entire time, of Sales Manager William Kennington.
Stringer said that a sales job was open and asked about Fulghum's "home" situation
Fulghum said he had just bought a new home into which he planned to move the
following week and that, even if he made a change, he would need time off to make
the move. Stringer, saying that the necessary time would be given him if he took
the job, asked if he would have any trouble disposing of the home if he became a
salesman and had a permanent territory elsewhere. (The answer is unrecorded
here.) Stringer then gave specific information about the job requirements. Fulghum
would begin as a trainee; at least at first, he would be required to attend sales meet-
ings at Miami, Savannah, and Augusta, returning to Thomasville between each meet-
ing; his expenses for attending the sales meetings would be defrayed by Respondent,
but he himself would be expected to advance the funds for travel costs at the first
(Miami) meeting; salesmen ordinarily had new automobiles, but at least for the
7 And a supervisor of Respondent within the meaning of the Act.
8 Both Chastain and Estes Fallin were supervisors within the meaning of the Act.
9 A supervisor within the meaning of the Act.
io A supervisor within the meaning of the Act
"Vann, testifying, said Fulghum "talked as if he were interested" ; Fulghum testified
that he expressed neither interest nor a lack of interest. (The two versions aie not
necessarily inconsistent.) Under the circumstances-no details having yet been given
him-I find Fulghum's verbal reaction (or its lack) to have been as noted in the text.
As a matter of fact, until he gave thought to the whole matter-see infra-he ions
"interested" in the proposed move.
SUNNYLAND PACKING COMPANY 325
present, he would not need one-he could ride buses and/or travel with other sales-
men. As for compensation, he was told that, as a salesman-trainee, he would receive
a wage equivalent to that of his past 6 months-approximately $90 per week. No
mention was made, nor did Fulghum make inquiry, of the pay he would receive if
and when he became a journeyman salesman; nor was mention made of how long
the training period would consume. He did ask whether, if he failed to make out
as a salesman, he would get his old plant job back; and he was told that, while nor-
mally one could go back to his job under such circumstances, there was no "guaran-
tee" of a job in the plant.
Fulghum asked for time to consider the matter until Monday morning; among
other things, he wanted to discuss it with his wife. Stringer said he wanted an answer
by the following morning (Friday) since he was planning to leave town, and Ful-
ghum said he would comply with the request.
7(d) Thereupon, Fulghum went to his job of tagging beef. (He worked late
afternoons and evenings, from Sunday through Thursday, inclusive.) At his 11.30
p.m. supper break, he telephoned his wife, asking her to awaken him at 8 the next
morning. He told her that Vann wanted to talk to him about a sales job, but he
gave her no details except to say that he "didn't think it was on the level "
7(e). Having gone over the matter with his wife, Fulghum reported to Stringer
the next morning. He said that neither he nor his wife would "appreciate" his being
on the road, that he was satisfied with and happy in his present work, and that he
would rather not make a change. Stringer's comment: "If you are happy where
you are at, I see no need for you to take a sales job." Fulghum went home.
7(f). At 12:30 p.m., Donny Lewis (upon Vann's instructions) called Fulghum and
asked him to come to the plant, saying he wanted to talk to him again. At 1 p.m.,
Fulghum arrived at the plant, and Lewis took him to Vann's office. Vann opened
the conversation by noting that he understood Fulghum had turned down the sales
job. Fulghum verified this, indicating his satisfaction with his present job. Vann
then said, "I guess you know you've been training for about a year for the sales
department, and you are blocking the line of promotion that we have set up in the
plant." Fulghum disclaimed any knowledge of a training program, saying, "This is
the first I've heard of it .... This is the first I've heard of any sales department-
the man that was in [my job before me] was in the position about 7 years,12 and that
is the first I had known of any sales training." Vann repeated that he had been
trained for a sales job, said that Respondent could pick its salesmen from anywhere
in the plant, and concluded by remarking that if he did not take the job Respondent
was going to let him go. Again, he expressed his confidence that Fulghum would
make a good salesman if he tried, pointing out that, on his job, he had learned to
recognize grades of beef. Fulghum asked a question he had asked of Stringer the
day before, with a slight variation-if he failed to make the grade as salesman,
could he have a job back at the plant, not necessarily his old jobs but any job?
Vann's answer was a variation on Stringer's-there were no guarantees but, with
his experience, Fulghum would be able to get a good job "somewhere else." Ful-
ghum then asked for time until Monday morning "to reconsider," and Vann said he
could have until that time.13
7(g). After this meeting ended, Lewis told Fulghum that he had checked with
Vann and that Fulghum should not report on his next regular workday, Sunday-
that Gene Rogers would fill in for him that day. Therefore, Fulghum did not work
on Sunday.
7(h). On Monday morning (February 17) at 9 o'clock, Fulghum went to the plant.
Learning that Vann was in conference, he looked for and found Lewis. In response
to the latter's query, he said that his mind was made up-he was not going to take
As discussed in greater detail infra, Fulghum stepped into his current job in July 1963.
'8 The conversation thus found to have taken place substantially accords with the
testimony of both Fulghum and Vann. Vann, but not Fuighum, testified that, when
Fulghum asked if he could come back to the plant if things did not work out, be (Vann)
said he could if he had not "hurt Sunnyland's name" ; in my findings, I have credited
Fulghum on this minor point. Also, Vann, but not Fulghum, testified that, at this
Friday conversation, Fuighum again expressed an interest in the sales job by saying he
thought he could perform well ; I regard this to lack plausibility in view of the decision
Fulghum had tentatively formed, and I do not credit it. In fact, to the extent there are
minor variation in Fulghum's and Vann's testimony, I have credited the former. (1)
I was favorably impressed by Fulghum's apparent candor in testifying ; I regarded Vann,
on the other hand, as hesitant and wary. (2) Management officials who were present at
the conversation-Russell Bozeman, assistant superintendent, and Donny Lewis, fore-
man-were not called as witnesses.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the sales job. He added that he did not believe the offer was "on the level." When
Lewis replied, "I believe it is on the level, and I think you could make a good sales-
man if you tried," Fulghum said, "Well, I'm not trained for it, and I don't believe I
could make it. I don't have any education." 14 He then went to the offices of
Respondent's employee credit union to discuss his outstanding indebtedness to them 15
There, he found that (1) his loan-history card has already been pulled from the
files and (2) his final paycheck (for the previous week) was already in the hands
of the credit union. He thereupon engaged in a discussion-not relevant hereto-
with a credit union representative about the possibilities of refinancing the loan at
"outside" sources.
7(i). This conversation was interrupted by Lewis, who said that Vann was now
available.
They went to Vann's office. Expressing regrets that Fulghum had turned down
the sales job, Vann said that "his word still went"; when Fulghum asked if this meant
he was fired, he verified this. Fulghum again asked if he could have any job in the
plant, and Vann said there was nothing-if he did not take the sales job, he could
go find a job with which he would be more satisfied. Fulghum left.
7(j). One week later-on or about February 24-Fulghum moved into his new
home. At that time he visited the plant to return the keys of his former rented home
to Vann.'6 Vann asked if he had changed his mind about the sales job; Fulghum
said he had not but would take any job in the plant.
8. Meanwhile, on Thursday, March 13, Bill Chastain called Stapleton (see chron.
4) off the killing floor into a small room and asked him if he would consider with-
drawing from the Union. Stapleton-who did not work directly under Chastain-
said he had no time to talk, that he must return to his job. When Chastain per-
sisted, Stapleton said he would give his answer on Monday.
On Monday, the 17th, Chastain went to Stapleton at his workplace and asked for
the answer. Stapleton said that he had thought about it but that he would not con-
sider withdrawing. At this, Chastain said that Stapleton "would be sorry."
9. The name of Joseph Hurst was included on the union list. On or about March 1,
Bill Chastain called him into a small room off the hog-cutting floor and asked him
what the Company had ever done to make him sign a union card. Hurst pointed
to several things: he was making no more, in some cases less, than others who had
been hired after he was; also, he had not received compensation for the full period
of a prior absence through injury. Chastain asked Hurst if he didn't want to "sign
a withdrawal paper and get out of the Union"; in reply, Hurst said he didn't think it
was any use-there was no way to get out.
10. A conversation took place between Bill Chastain and Amos Fallin (see chron.
3) on a date uncertain, but between January 31 and March 31.17 Chastain asked if
Fallin wasn't ready to give up and sign a withdrawal from the Union. Fallin said he
was not. Chastain said he was doing "the wrong thing." Among other things-the
conversation consumed 30 minutes-he enumerated benefits of employment with
Respondent and said that Respondent "could pay [Fallin] a certain amount of money,
and they should be able to do as they pleased." Fallin did not withdraw from the
Union.
C. Independent interference, restraint, and coercion
I found, as alleged in the complaint, that, on a number of occasions, Respondent's
supervisors asked employees about their or other employees' union activities or
leanings: J. B. Brinkley, between January 2 and 7, 1964 (see chron. 1); 18 Alvin
14 He had a sixth -grade education.
15 By prior agreement, the final check of an employee-debtor whose employment was
terminated could be applied to the existing indebtedness.
16 He had rented from Respondent. Four weeks earlier-on or about January 27-
he had given Respondent notice that he had bought a new home and that he intended to
move from the rented quarters
17 Only Fallin testified about the incident, and both because I was impressed by his
demeanor and because it comported with the pattern emerging from the credited testi-
mony of others, I believe that the incident occurred as detailed above. He was, how-
ever, vague as to the date. At one point he said the conversation occurred 2 weeks
after that noted at chron. 3, which would place it as having occurred on or about
January 31; at two points, he thought it took place 4 months after the first conversa-
tion-or May 17 I set March 31 as the latest possible date, for I cannot believe Chastain
would have engaged in this conduct after Respondent received notice of the filing of the
instant charge.
18 The date alleged in the complaint for this incident was on or about January 15
SUNNYLAND PACKING COMPANY 327
Heard, on January 14 (chron. 2); Jesse Luke, sometime in January after the 13th
(chron. 4); 19 Heard again, on or about February 14 (chi on. 6); and Bill Chastain,
on or about March 1 (chron. 9) 20 In addition, supervisors, by telling employees
who refused to withdraw from the Union that they would be "sorry" (Estes Fallin
on January 17 21 and Bill Chastain on March 16 22), were thereby threatening eco-
nomic or other reprisals for continued union activities, as alleged in the complaint.
Finally, the complaint's allegations of supervisory solicitation of employees to with-
draw from the Union are fully supported by my findings heretofore made: the con-
duct of Lewis in mid-January (chron. 5); 23 of Fallin on January 17 (chron. 3);
and of Bill Chastain on March 1 (chron. 9) and on March 13 and 17 (chron 8).
As I understand Respondent's position, the acts complained of, if they occurred,
do not constitute unfair labor practices because, considering the words used and the
absence of independent evidence of union animus by Respondent, they were not
aimed at, and they did not have the effect of, inhibiting employees' self-organizational
rights. I cannot agree. The words used in each case were clear and unambiguous;
and coming as they did, upon the revitalization of better than a yearlong union cam-
paign, there was no mistaking the motivation behind them 24 Even if there were
no independent evidence of union animus,25 such animus was self-evident in the
conduct of the supervisors heremabove found to have occurred. To ask employees
about union activities, to tell them they will be sorry if they participate therein, and'
to solicit their withdrawal therefrom can have but one purpose; attributing rational-
ity to the supervisors, it can only have been designed to stop the Union's renewed
drive.
In sum, I find that the above acts of interrogation, threats, and solicitation were
directed at the employees' self-organizational efforts and, as such, constituted inter-
ference with, and restrain and coercion of, employees in the exercise of rights guar-
anteed them in Section 7 of the Act 26
Respondent argues further that, even if the acts complained of occurred and even
if they might be considered to have been violative of the Act, they were so isolated
as to call for no remedial action. Apart from the allegedly unlawful discharge-to-
be discussed infra-I do not regard 8 separate incidents involving 6 different super-
visors and constituting 12 distinct violations as being "isolated," even in a plant of
600 to 700 employees.
D. Fulghum's discharge
The General Counsel takes the position that Howard Fulghum's discharge-
described in detail in chron. 7-resulted from his activities on behalf of the Union.
Respondent, on the other hand, contends that Fulghum was discharged because he
rejected a promotion to salesman after first accepting it, because he was blocking
lines of promotion, and because, therefore, he "would not perform in the best inter-
est of the Company."
Fulghum was first employed by Respondent late in August 1959 in the beef cooler
on the night shift. In mid-1963, he heard that Gene Rogers, who had been a "beef,
tagger" for 7 years, was going out on the road as a salesman, and he asked Plant
Superintendent Vann if he could take Rogers' place. Vann told him that Rogers'
new work was only temporary and that he would be back in the plant at a later date.
19 The date alleged in the complaint was on or about January 15.
20 In the complaint, dated on or about March 5.
21 Chron. 3.
s2 Chron. 8.
22The complaint alleged this incident to constitute unlawful interrogation as well as
solicitation. I do not consider it to be such.
211 might have regarded Supervisor Estes Fallin's threat toward and solicitation of his
brother Amos in a different light if they had not been uttered in the presence of Amos'
(nonbrother) supervisor.
"There was credible, uncontradicted testimony at the hearing that, at an earlier stage-
of the Union's campaign-in the summer of 1963-Vice President and Plant Superintend-
ent Vann told an employee who had asked him if he had heard how the Union was
making out that he had no definite information but that Respondent's employees were,
better off than anyone else in town-their parking lot was full of new cars , and, finally,
that he was sure there were three to five employees backing the Union and "there was
a way of making them be sorry."
2e In so finding, I do not rely on the incident related in chron. 10. I do not find,
that conversation alleged as a violation in the complaint, and I had the impression that
counsel for the General Counsel was learning of it for the first time at the hearing ,
furthermore, he did not urge it as a violation in his brief.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rogers' job was thereupon filled by another individual, but in July 1963 Fulghum
replaced that individual. Thereafter, until he was discharged, Fulghum's job was
that of beef tagger.27
As a beef tagger-still working the night shift-Fulghum, in frequent telephonic
contact with salesmen, was told of the particular preferences of individual customers
as to the kinds and qualities of meats ordered, thereupon, he would make selections
from among the meat ready for shipment and, by tagging selected pieces, would
earmark them for specified customers. During this period, the only other person
doing beef tagging was Beef Cooler Foreman Donny Lewis (Fulghum's supervisor),
who, among his other duties, tagged beef during the day. I find, in accordance with
one of Respondent's contentions, that the job of tagging beef tended to give the
incumbent a degree of familiarity with customers' requirements and preferences
which would constitute an asset in a sales position.
There is no evidence in this record controverting Respondent's position, as estab-
lished by Plant Superintendent Vann's testimony, that there was an opening for a
salesman at or about Thursday, February 13, 1964. Furthermore, I credit Vann's
testimony to the effect that, in considering persons to fill the vacancy, having given
thought to the qualifications and potential of Fulghum and three or four other indi-
viduals, he decided that Fulghum was the "best qualified." Thereupon, he decided
to offer the job to Fulghum.
Thus-notwithstanding any implications to the contrary contained in the General
Counsel's arguments-I find that Vann's decision to offer Fulghum a sales job was
based upon considerations unrelated to unions or unionism and was not originally
designed to culminate in the termination of Fulghum's employment.28
The offer having been made, however, I am at a loss to understand Vann 's reac-
tion to Fulghum's subsequent failure to take advantage of the offer. Vann was, I
find, fully aware of Fulghum's reasons for his decision-his satisfaction with present
job, his and his wife's objections to his being away from home frequently, his wife's
fears that the cost of new clothing would result in a pay decrease, the necessity for
them to relocate so so soon after purchasing a new home, Fulghum's self-doubts
arising out of his lack of education, and the absence of a point of return at the plant
should he fail to make the grade as a salesman. Indeed, Assistant Sales Manager
Stringer, with whom Fulghum had been dealing on this matter, accepted far less as
a reasonable basis for Fulghum's decision.29
Respondent's explanations for Vann's reaction, as displayed in his testimony or in
argument herein, do not stand up under scrutiny:
(1) Fulghum agreed to make the change, then backed out: Assuming, without
finding, that this would have made Fulghum a less desirable beef tagger, there is no
factual basis for the statement. At no time (as I have found) did he accept the
offer of a change, I find, further, that Vann was aware of this fact.
(2) Fulghum was blocking lines of promotion: (a) As above found, Vann told
Fulghum that he had been on a training program for a salesman's job for a year, a
"fact" which (I find) came as a surprise to Fulghum, since he had never been made
aware of it. Moreover, even if it be assumed that the job of beef tagger was a
sales-training operation, (i) Fulghum had not been on the job a year (he had been
on it for 7-plus months), and (ii) Fulghum's predecessor, Gene Rogers, had been
on that job for 7 years before he was given a 2-month stint as a salesman. (b) In
the past, salesmen-there are 25 to 27-were drawn from a number of sources. The
"biggest portion" came from plant jobs-most of them from the night shipping
employees with some others from among the truck drivers, from the curing cellar,
and from other parts of the plant. During the past 12 years, three salesmen (one
no longer with Respondent) have come from the meat department, in which the
beef tagger works; but only one (Gene Rogers, the erstwhile salesman earlier
referred to) came from the job of beef tagger. (c) The short answer is contained in
the testimony of Vann, who stated that Respondent had no formal lines of promotion.
vrAlthough, after several months "on the road," Gene Rogers returned to a job in
the plant , he did not go back to his old job at that time
28 Despite the absence, in this record, of evidence bearing upon the working conditions
of a journeyman-salesman for Respondent, the General Counsel makes no contention
that a transfer from beef tagger to salesman would constitute a demotion Nor, since
I detect no unlawful motivation in the offer of a sales job, do I perceive any materiality
in the fact that sales jobs are outside the bargaining unit which the Union seeks to
organize
2D See chron 7(e).
SUNNYLAND PACKING COMPANY 329
Contributing to the total picture are the facts that Respondent had no complaints
about Fulghum's performance as a beef tagger-on the contrary, he was considered
a good employee; although, some months earlier, Gene Rogers had returned from his
salesman's job, he was not placed back on his old job as beef tagger, which was now
filled by Fulghum; and, as of the date of this hearing, according to Vann's testimony,
Rogers himself (who upon Fulghum's discharge, was assigned to the job of beef
tagger and has been there ever since) was "blocking promotions" and "may be back
[on the day shift, or] back on the road" as soon as "we can get another man." 30
In sum, I find the reasons assigned by Respondent for Fulghum's discharge to
lack plausibility 31 and must look further for the actual reason.
Fulghum was active on behalf of the Union since the inception of its drive in
January 1963. He signed a union bargaining authorization card at the outset and
solicited the signatures of fellow employees on such cards. His direct efforts, either
alone or with two others, resulted in the procurement of 75 signed cards and, from
the beginning, he was the repository of all cards signed by employees, whether or
not the product of his personal solicitation. With respect to union meetings held
weekly during the campaign, he helped to procure meeting places and to spread
word of meetings among Respondent's employees. In January 1964, during the
Union's "second drive," he signed a new authorization card.
As indicated, Fulghum's name appeared on the list of union adherents received
by Respondent on January 13, 1964. (His was one of the three or four-out of
nine in the beef department night shift-whose names appeared thereon.) Shortly
afterward-see chron. 5-his supervisor, Donny Lewis, expressed his disappoint-
ment, called it a "wrong list," and (as I have found) unsuccessfully solicited
Fulghum's withdrawal from union participation.
Normally, knowledge of union activities acquired by Supervisor Lewis would be
chargeable to Respondent.32 Here, however, we have more. Plant Superintendent
Vann's disclaimer of knowledge of Fulghum's union activities or interest must be
examined in the light of all the circumstances. Vann, according to his own testi-
mony, received reports from supervisors about employees' union activities. (As he
said in his testimony at this hearing, "We were entitled to keep up with it [i.e., such
information].") When he first addressed himself to the question he unequivocally
denied hearing of any connection between Fulghum and the Union execpt for the
fact that his name was on the union list; later, asked if he had not learned from
supervisors that Fulghum favored the Union and he was signing up a lot of employ-
ees, Vann answered, "No, not from any of the employees." [Emphasis supplied]
Just before offering Fulghum a job as a salesman, but not necessarily before he had
decided to make the offer, Vann (so he testified) consulted Fulghum's supervisor,
Lewis. I cannot believe that Lewis, at least at this time, would have omitted report-
ing his earlier conversation with Fulghum about the Union. I find, on this record,
that Vann was aware of Fulghum's union activities and sympathies, at least by the
date of discharge.33
2° Presumably, for the fob of beef tagger, which Fulghum is fully qualified to fill.
81 In this determination, I am unable to find significant, and I do not rely on, the fact
that there is some confusion as to the actual moment the decision to discharge was
made and as to why Fulghum's final paycheck was ready on the morning of Monday,
February 17.
82 Montgomery Ward & Company, Incorporated, 115 NLRB 645, 647, enfd. 242 F. 2d
497 (CA. 2), cert. denied 355 U.S 829
a3 Knowledge of union activity may and often of necessity must be based upon reason-
able inference drawn from circumstantial evidence (See, e g , N.L.R B v Link-Belt
Company, 311 U.S 584, 602; N.L.R.B v. C W. Radcliffe and W. W. Maneke, d/b/a
Homedale Tractor f Equipment Company, 211 F 2d 309, 315 (CA. 9). Also see F. W.
Woolworth Company v. N.L R B., 121 F 2d 658, 660 (CA. 2) ; Hickory Chair Manu-
facturing Company v. N.L.R B., 131 F 2d 849, 850 (CA. 4) , Angsvell Curtain Coni.
pany, Inc v NLR.B., 192 F. 2d 899, 903 (C.A. 7).) In assessing such evidence, how-
ever, I do not rely on testimony to the effect that (1) Fulghum was active in helping
the Union find meeting places, (2) one of the meeting places requested by the Union
(and refused) was the county courthouse, and (3) Vann-who was also chairman of
the county commissioners-knew of the request and refusal ; in the absence of testi-
mony that Fulghum was involved in this particular request, the chain of logic attribut-
ing to Vann an awareness of Fulghum's part, if any, in making the request is missing
a vital link. Nor do I rely on testimony (although credited) that in the summer of 1963,
Vann told an employee he knew there were three to five employees backing the Union ;
even though Fulghum fitted this description, the testimony has no probative value in
establishing knowledge of this fact by Vann
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, and on what I am convinced is a fair preponderance of the
,credible evidence (giving full consideration to the other unfair labor practices here
'found, the implausibility of the reasons assigned for Fulghum 's discharge , his union
activities and Respondent 's awareness thereof as found by me , and the timing of the
discharge relative to the surrounding circumstances ), I conclude and find that
Respondent 's underlying reason for discharging Howard Fulghum was his activities
,on behalf of the Union ; and that, by such discharge , Respondent not only interfered
with, restrained , and coerced employees in the exercise of rights guaranteed them in
Section 7 of the Act , but also discouraged membership in a union , in violation of
Section 8 ( a) (1) and ( 3) of the Act.
IV. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it be ordered to cease and desist therefrom and to take certain
affirmative action in order to effectuate the policies of the Act.
Having found that Respondent discriminated with respect to the hire and tenure
of employment of Howard Fulghum, I shall recommend appropriate action: I shall
recommend that Respondent offer him full and immediate reinstatement to his former
or substantially equivalent position , without prejudice to his seniority or other rights
and privileges , and make whole for any loss of earnings suffered by him because of
the discrimination by payment to him of a sum of money equal to the amount he
would have earned from the date of his discharge to the date of Respondent's offer
of reinstatement , less his net earnings during said period. Backpay shall be com-
puted on a quarterly basis in the manner prescribed by the Board in F . W Woolworth
Company, 90 NLRB 289, with interest at the rate of 6 percent per annum computed
quarterly.
As the unfair labor practices committed by Respondent are of a character striking
at the roots of employee rights safeguarded by the Act , it will also be recommended
that Respondent cease and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
Upon the foregoing factual findings and cocnlusions , I come to the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2 ( 6) and ( 7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discriminating in regard to the hire and tenure of Howard Fulghum by
terminating his employment on or about February 17, 1964, and failing and refus-
ing to reinstate him thereafter , because of his activities on behalf of a union,
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( a) (1) and ( 3) of the Act.
4. By the foregoing conduct, by interrogating employees with respect to their or
'other employees ' union activities or leanings , by threatening economic or other
'reprisals should employees continue to engage in union activities , and by soliciting
employees to withdraw from membership in a union, Respondent has interfered
with, restrained , and coerced employees in the exercise of rights guaranteed them
in Section 7 of the Act , in violation of Section 8 (a) (1) thereof.
The aforesaid unfair labor practices are unfair labor practices within the meaning
of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby rec-
ommend that the Respodnent , Sunnyland Packing Company , Thomasville , Georgia,
its officers , agents, successors , and assigns , shall:
1 Cease and desist from
(a) Discouraging membership in any labor organization by discriminating in
,regard,to hire, tenure , or other conditions of employment.
(b) Interrogating employees as to their or other employees ' activities on behalf
of a union.
(c) Threatening employees with economic or other reprisals should they continue
to engage in activities on behalf of a union.
( d) Soliciting employees to withdraw from membership in a union.
(e) 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 any labor organization , to bargain collectively through representatives
SUNNYLAND PACKING COMPANY 331
,of their own choosing , to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection , and to refrain from any and all such
activities.
2 Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Offer Howard Fulghum immediate and full reinstatement to his former posi-
tion even though this may necessitate displacement of a present incumbent (or, if his
former position no longer exists , to a substantially equivalent position ), without
prejudice to his seniority or other rights and privileges.
(b) Make Howard Fulghum whole for any loss of earnings suffered by reason of
the discrimination against him , in the manner set forth in the section above entitled
"The Remedy."
(c) Preserve and, upon request , make available to the Board or its agents, for
,examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
.amount of backpay due and the right of reinstatement.
(d) Post at its place of business as Thomasville , Georgia, copies of the attached
notice marked "Appendix ." 34 Copies of such notice , to be furnished by the Regional
Director for Region 10, shall, after being duly signed by an authorized representa-
tive of Respondent , be posted immediately upon receipt thereof, and be maintained
by it for a period of 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 such notices are not altered , defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 10, in writing , within 20 days from
-the date of the receipt of this Decision , what steps the Respondent has taken to com-
ply herewith.35
14 If this Recommended Order is adopted by the Board , the words " a Decision and
-Order" shall be substituted for the words " the Recommended Order of a Trial Examiner"
in the notice . If the Board ' s Order is enforced by a decree of a United States Court of
Appeals , the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals , Enforcing an Order" for the words "a Decision
and Order."
151f this Recommended Order is adopted by the Board , this provision shall be modified
to read : "Notify the Regional Director for Region 10, in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
aions Act, we notify our employees that
WE WILL NOT discourage membership in Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, or any other labor organiza-
tion, by discriminating as to the hire , tenure , or any other term or condition of
employment of any of our employees.
WE WILL NOT ask employees about their or others ' union activities ; threaten
them with reprisals if they continue to engage in activities on behalf of a union;
,or try to influence them to withdraw from membership in a union.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to organize ; to form, join, or assist a
labor organization ; to bargain collectively through a bargaining agent chosen by
themselves; to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection ; or to refrain from any such
activities.
WE WILL offer Howard Fulghum his former or a substantially equivalent job
(without prejudice to seniority or other employment rights and privileges) and
WE WILL pay him for any loss suffered because of our discrimination against
him.
All our employees are free to become or remain members of any labor organization.
SUNNYLAND PACKING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify the above-named employee if serving in the Armed Forces
of the United States of his right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act
of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 528
Peachtree-Seventh Building , 50 Seventh Street NE., Atlanta, Georgia, Telephone No.
Trinity 6-3311, Extension 5357, if they have any questions concerning this notice or
compliance with its provisions.
The Fafnir Bearing Company and International Union , United
Automobile, Aerospace and Agricultural Implement Workers
of America , Local No. 133, UAW, AFL-CIO . Cases Nos. 1-( A-
4175,1-4361, and 1-CA-4477. March 1, 1965
DECISION AND ORDER
On November 30, 1964, Trial Examiner Samuel Ross issued his
Decision in the above-entitled proceeding, finding that Respondent
had not engaged in unfair labor practices as alleged in the com-
plaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Charging Party filed exceptions to the Trial Exam-
iner's Decision and a supporting brief. The Respondent filed a
brief in support of the Trial Examiner's Decision, and later filed
cross-exceptions, a supporting brief, and an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the briefs, and the
entire record in this case, and hereby adopts the findings, con-
clusions,' and recommendations of the Trial Examiner .2
1 The conclusions of the Trial Examiner are basically in accord with our recent decision
in Westinghouse Electric Corporation (Mansfield Plant ), 150 NLRB 1574. Of par-
ticular significance in this case is the lack of adverse impact on unit employees of
the contracting out by Respondent.
We do not, however, adopt the Trial Examiner' s conclusions as to the significance of
the general management rights clause in the contract . Cf. General Motors Corporation,
Buick Motor Division Parts Warehouse , 149 NLRB 396; Shell Oil Company, 149 NLRB 283.
2 As the record , including the exceptions and briefs , adequately sets forth the issues
and the positions of the parties , the Respondent 's request for oral argument is hereby
denied.
151 NLRB No. 40.