Tennessee Packers, Inc.

National Labor Relations Board - Board Decisions

Jul 13, 1965

153 N.L.R.B. 1411 (N.L.R.B. 1965)

TENNESSEE PACKERS, INC ., FROSTY MORN DIVISION 1411
APPENDIX C
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-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT tell our employees that we are discharging them or laying them
off because we have received a letter from the Union.
WE WILL NOT discharge or lay off any employee to discourage membership in
International Union of Electrical, Radio and Machine Workers, AFL-CIO,
Local No. 768, or any other union.
WE WILL offer Vincent Pugh, Carl Gambrel, Glen Thacker, and William
Walters backpay for the wages lost since they were discharged until we offered
to reemploy them.
WE WILL NOT in any like or related manner restrain or coerce our employees
in the exercise of their right to self-organization, to form, join, or assist Inter-
national Union of Electrical, Radio and Machine Workers, AFL-CIO, Local
No. 768, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted activity for
their mutual aid and protection as guaranteed by Section 7 of the Act, or to
refrain from any and all such activities, except to the extent that such rights
may be affected by an agreement requiring membership in a labor organization
as a condition of employment as authorized by Section 8(a)(3) of the Act as
modified by the Labor-Management Reporting and Disclosure Act of 1959.
All of our employees are free to become or remain, or refrain from becoming or
remaining, members of any labor organization.
LENZ COMPANY,
Employer.
Dated------------------- By--------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Room
2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No.
381-2200, if they have any question concerning this notice or compliance with its
provisions.
Tennessee Packers, Inc., Frosty Morn Division and Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-
CIO, Local No. 405. Cases Nos. 26-CA-1863 and 26-CA-1934-2.
July 13,1965
DECISION AND ORDER
On April 28, 1965, Trial Examiner Morton D. Friedman issued his
Decision in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint and recommended
153 NLRB No. 122.
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dismissal of those allegations. Thereafter, Respondent filed limited
exceptions to the Trial Examiner's Decision, and a supporting 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 these cases to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
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 brief, and the entire record
in these cases, and hereby adopts the findings,2 conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and orders that Respond-
ent, Tennessee Packers, Inc., Frosty Morn Division, Clarksville, Ten-
nessee, its officers, agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order.3
'Thereafter , the General Counsel moved to strike Respondent 's limited exceptions and
supporting brief on the ground that they were mailed to the General Counsel via third-
class mail and received by him approximately 1 week after the filing date , and thus were
not "served promptly" as required by the Board ' s Rules and Regulations , Series 8, as
amended Respondent filed an opposition to the motion, citing an error in mailing in-
structions as the reason for the use of third -class mailing, and contending that strict
compliance with the Rules would be unduly harsh. As Respondent 's pleadings were timely
filed with the Board , and as the General Counsel was not prejudiced by his delayed receipt
thereof , the motion is denied
2 In the absence of exceptions to the Trial Examiner ' s finding that employee Marable Lyle
was not discriminatorily discharged , we adopt that finding pro forma.
3 The telephone number for Region 26 , appearing at the bottom of the Appendix attached,
to the Trial Examiner 's Decision , is amended to read: Telephone No. 534-3161.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed in Case No. 26-CA-1863 on July 7, 1964, by Amalgamated'
Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local No. 405,
herein referred to as the Union , and a first amended charge filed on August 13, 1964,
the Regional Director for Region 26 of the National Labor Relations Board, herein
called the Board , issued a complaint on August 19, 1964, on behalf of the General
Counsel of the Board and an amended complaint on October 6, 1964. Upon a charge
filed in Case No. 26-CA-1934-2 filed September 29, 1964, by the Union , the said
Regional Director issued a complaint on October 8, 1964. Both complaints were
issued against Tennessee Packers, Inc., Frosty Morn Division , herein referred to as
the Respondent or the Company , and both complaints alleged violations of Section
8(a) (1) and ( 3) of the National Labor Relations Act, as amended (29 U.S.C. Sec.
151, et seq .), herein called the Act. On October 8, 1964, the said Regional Director
issued an order consolidating the above -named cases In its duly filed answers to,
the aforesaid complaints, the Respondent , while admitting certain of the allegations
thereof, denied the commission of any unfair labor practices.
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 1413
Pursuant to notice, a hearing was held before Trial Examiner Morton D. Friedman
in Clarksville, Tennessee, on October 21, 1964. All parties were represented and
were afforded full opportunity to be heard, to introduce relevant evidence, to present
oral argument, and to file briefs. Oral argument was waived. Briefs were filed by
the Respondent and counsel for the General Counsel.
Upon consideration of the entire record in this case, including the briefs of the
parties, and upon my observation of the demeanor of each of the witnesses testifying
before me, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Tennessee corporation, operates a plant in Clarksville, Tennes-
see, where it is engaged in the processing of meat and meat products. During the
12-month period preceding the issuance of the complaint in Case No. 26-CA-1863,
a representative period, Respondent sold and shipped finished products valued in
excess of $50,000 from its Clarksville, Tennessee, plant to points located outside the
State of Tennessee.
It is admitted, and I find, that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes
of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor organization within the meaning
,of Section 2(5) of the Act.
HI. THE ISSUES
1. Did Respondent's plant superintendent, Clay Barnes, unlawfully interrogate
employee James G. Ray as to whether the latter was for the Union and whether Ray
would serve as an observer for the Union in a pending election to be conducted by
the Board?
2. Did Barnes unlawfully interrogate employee Willis Stowe concerning whether
the latter would help defeat the Union in an election to be conducted by the Board
and at the same time promise Stowe a benefit in return for such help?
3. Did the Respondent discriminatorily discharge employee Marable Lyle on or
about July 2, 1964?
4. Did the Respondent reduce the working hours of employee Helen Latta from
on or about June 22, 1964, to on or about July 31, 1964?
5. Did the Respondent discharge Helen Latta on or about July 31, 1964?
6. Did the Respondent discriminatorily lay off employee Lloyd S. Floyd on or
about September 28, 1964, and thereafter unlawfully refuse to recall said employee?
IV. THE UNFAIR LABOR PRACTICES
A. Background
The Union has been attempting to organize the Respondent's employees for several
years. It filed a petition for a representation election on August 26, 1963. Pursuant
to stipulation, an election was held on September 27 and 28, 1963. This election was
set aside upon objections filed by the Union and another election was held on June 19
and 20, 1964. In connection with this organizational campaign and the elections
held in 1963 and 1964, the Board has found that the Respondent was in violation
of Section 8(a) (3) and (1) of the Act in several respects as reflected in cases reported
at 143 NLRB 494 and 146 NLRB 165.
The results of the election held on June 19 and 20, 1964, were not conclusive since
challenges were filed and the determination of the case with regard to the challenges
was, at the time of the hearing held herein, before the Board for determination.1
During the conduct of this latter election and the events that followed, employees
Marable Lyle and Helen Latta served as observers, and employees Latta and Lloyd
S. Floyd testified on behalf of the Union at the hearing on the challenged ballots.
These are the three individuals whose termination of employment is alleged as having
been violative.
1 Upon disposition of the challenges, the Union was certified as the bargaining representa-
tives of the Respondent's production and maintenance employees on December 11, 1964.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Interference , Coercion , and Restraint
1. The events
Approximately 2 weeks before the June 1964 election at the plant, at a time when
the machine which employee James Ray was operating had broken down , Superin-
tendent Clay Barnes engaged Ray in conversation stating, "I hear you are going to
sit in on the election ." Ray replied , "Well, you don 't have to worry about me sitting
on it , the election . I might vote for it if we don't get no more money ." The subject
of the election was injected into the conversation by Barnes.
Within a week or two before the June 1964 election , employee Willis Stowe sought
to borrow some money from the Respondent as he had done a number of times before.
He proceeded to the Respondent 's office where Barnes came out, upon learning that
Stowe wanted to borrow some money , and told Stowe that he would help anyone
who would help keep the Union out. Stowe answered to the effect that he was with
Barnes all the way and upon that remark Barnes told Joe Johnson , the pay clerk,
to loan Stowe the money.3
2. Conclusionary findings as to the alleged interference,
coercion , and restraint
The Respondent contends that Barnes ' statement to Ray was made by Barnes for
the purpose of ascertaining whether Ray would act as an observer for the Company
and that, in any event , the statement was too ambiguous to be interpreted as inquiry
into Ray's union activity or sympathy . I do not agree.
It is the probable effect on the employee, rather than the subjective intent of the
employer, which determines whether a statement is violative . In the instant case,
a reasonable inference , on the face of the statement , in view of the fact that the
election was scheduled for the very near future , is that the inquiry was as to Ray's
intention of acting for the Union . This inference is made more certain in the light
of Ray 's answer to the effect that Barnes did not have to worry ; that Ray was not
"sitting in on it ." The implication is clear, even though the Union was not specifi-
cally mentioned . Moreover, if Barnes desired Ray to act as an observer for the
Respondent , he would have made this clear.
Accordingly , I find that the statement was in the nature of an inquiry into Ray's
union activity and therefore was violative of Section 8(a)(1) of the Act.
Barnes' remark to Stowe to the effect that Barnes would help anyone who helped
keep the Union out, I find also to be violative . In view of the fact that Stowe was
asking for a loan, a favor from the Respondent , the implication is clear that the money
was being loaned in return for Stowe 's voting against the Union in the impending
election. And I find this is so whether the remark was made before the loan was
approved or after the approval because in either event the basis for the loan was an
expectation that Stowe would vote against the Union in return for this loan or any
other possible favor from the Respondent.
B. The alleged discriminatory discharges, layoff, and reduction in pay
1. Marable Lyle
Lyle was hired by the Respondent on September 26, 1955, and was discharged on
July 2, 1964, approximately 2 weeks after the election of June 19 and 20, 1964, at
which Lyle acted as an observer for the Union.
During his entire period of employment Lyle was assigned as a cattle stunner, at
first under the supervision of Clarence Mayo and for approximately 1 year before
his discharge under the supervision of William Dowdy. Lyle's work consisted of
driving cattle into the stunning pen, stunning the cattle with a special rifle, and hang-
ing the stunned cattle on a dressing rail where others performed additional work in
2 From the credited testimony of James Ray which was not controverted by Barnes.
Barnes, however, testified that he and Ray frequently joked together and that there was
no mention or intention of mentioning the Union in this conversation
8 From the testimony of Willis Stowe Although Barnes at first denied the exact state-
ment which Stowe attributed to him , be finally admitted that he may have made the
statement . However, Barnes contended that he did not condition the lending of the
money on any commitment of any type from Stowe Upon my observation of Barnes
and Stowe and because of Barnes ' uncertainty regarding what he said to Stowe, I credit
Stowe 's testimony and accept his version of the conversation
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 1415
dressing the beef. The live cattle are brought first by other employees to a holding
pen from which they are herded, six to eight at a time, through a gate into a shoot
where they pass single file through another gate into the stunning pen.
In driving the cattle from the holding pen into the shoot and from the shoot into
the stunning pen the stunner, Lyle, used a 50-watt electric prod to move the animals
along. The shock emitted by the prod is sufficient, under normal conditions, to keep
the animals moving without the use of more violent means which could result in
bruising the animals and causing a loss of meat.
It is apparent that the problem of bruising is a continuous one inasmuch as meat
which bears bruises must be trimmed and the bruised portion discarded before the
meat will pass inspection of the U S. Department of Agriculture inspectors
stationed at the Respondent's plant. Thus, the more bruises, the greater the loss.
During the 9 years that Lyle worked as a cattle stunner he received some com-
plaints about the way he did the work but, according to Lyle, not too often. He
stated that he never received any written warnings. However, he did admit that
during the month before he was discharged he received several complaints about
bruising cattle from his foreman, William Dowdy.
On the day of his discharge, Lyle was performing his usual duties of leading cattle
into the stunning pen and performing his normal stunning operation. That day there
were quite a large number of cattle, mostly heifers, who, according to Crosby Moore,
another employee of the Respondent whom I credit, and Dr. W. R. Barrowman, a
Government veterinary, are unusually mild and easy cattle to handle.4 Early in the
afternoon of that day, Moore, who had just driven some cattle into the holding pen
and was walking in the direction of the kill floor, noticed that Lyle had his electric
prodding stick against one of the cattle who was on top of another heifer which was
down on its back in the shoot, having slipped. Lyle was using the prodding stick
against the back of the top animal which was at that time bellowing and had been
bellowing for such a long time that its tongue was hanging out. Moore asked Lyle
to ease up on the cattle on top because it was kicking the other animal. Lyle paid
no attention. Then, Doctor Barrowman, the chief Government inspector stationed
at the Respondent's plant, who also observed what was going on, went to the back
of the shoot and opened the back gate so that the other animals could come back
out of the shoot enabling the one that was on the ground to get up. Finally, Lyle
stopped using the prod. Moore testified without contradiction that the cattle, which
had been bought that morning, were almost all heifers and that he had been able to
lead them from the stockyard to the holding pen merely by using his hands. Accord-
ing to Doctor Barrowman, whom I credit, the animal on bottom was being struck
with hoofs of the animal on top, surely receiving many bruises
After this incident, Moore discussed the matter with his father who is the plant
manager. The elder Mooie told his son to report the matter to Plant Superintendent
Barnes. Moore did so and shortly thereafter Lyle was summoned to Barnes' office
where he was discharged. The discharge slip which Lyle was given read that he was
separated for abusing livestock. He was also told by Barnes that he was being dis-
charged for bruising cattle. Lyle testified that after he left Barnes' office he was
accompanied by Assistant Plant Superintendent Parker Suggs, who told Lyle that he
tried to persuade Barnes not to fire Lyle, but Barnes was the boss and wanted to let
Lyle go.
Lyle further testified that he had never received any direct complaints or warnings
from Barnes before the date of his discharge. However, as noted above, he had
received complaints from Dowdy, his present foreman, within the month before he
was discharged, and he was also reprimanded several times in the year before that by
Mayo, his former supervisor.
According to Barnes, he had received complaints from time to time with regard to
Lyle and had instructed Suggs, Mayo, and Dowdy about warning Lyle about the
indiscriminate use of the prodder. In the period immediately before Lyle was dis-
charged, according to Barnes, he received complaints from Plant Manager Moore
and from the beef department foreman that there were too many fresh bruises on the
cattle and, therefore, on the beef that was being dressed. The reason that lie did not
discharge Lyle earlier was that the complaints were never as fiequent as they were
4As noted, this classification of these cattle as being mild and gentle was verified by
the testimony of Doctor Barrowman, chief , Department of Agriculture Veterinaries, sta-
tioned at the Respondent 's plant Under these circumstances I find that Crosby Moore
was a reliable witness inasmuch as Barrowman , a United States Government employee,
was one of the two completely disinterested witnesses who testified in this case.
6 There was no direct testimony that when this animal was finally slaughtered and
dressed it was found to be badly bruised.
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
just before the period immediately before Lyle was discharged. As a matter of fact,
there was quite an increase in bruising from the first of the year of 1964 until the
time that Lyle was discharged. The reason that he did not personally warn Lyle was
that he had instructed his subordinates to do so. Further Barnes testified, since Lyle's
discharge he has received far fewer complaints about bruising and that there has been,
in fact, less bruising. Barnes spoke to the Government inspectors and they sustained
the statement of Thompson, the meat department foreman, that there was much less
bruising in the period after Lyle's discharge.
Barnes' testimony was supported by the testimony of W. R. Barrowman the chief
Government inspector. Barrowman testified, as heretofore noted, that he had
watched the incident of July 2 in which, in his opinion, Lyle had been unduly rough
in his treatment of the cattle being led into the stunning pen. In his opinion, Lyle
was using a completely improper method for getting the animals into the pen and
getting the top animal off the animal that had fallen down and was on the bottom.
Barrowman further testified that until this event, during the months of June and July
1964, there were a particularly great number of new bruises on the flanks of animals
that were being slaughtered.
In fact, Barrowman complained to the plant manager on the number of bruises that
the veterinarians were requiring to be trimmed out. According to Barrowman, Lyle
had a problem of attempting to get too many animals in the knocking shoot and that
this was one of the reasons for his complaint to management. Barrowman further
testified credibly that from his observation, and from his questioning of the Govern-
ment force which he supervises, since Lyle's discharge there has been a marked
decrease in the number of fresh bruises appearing on the slaughtered cattle. More-
over, Barrowman's immediate superior, who was visiting the plant, stated that there
had been less bruising and that they were doing a good job on that problem.
This testimony was further supported by the credited testimony of Stanton Thomp-
son, also a Federal Government employee stationed at the plant, who is classified as
a meat grader.6 He testified that when the cattle is unshrouded each morning he goes
through and looks at each carcass and grades the beef. He testified that he had
noticed that during the weeks between the time that Lyle was discharged and the
hearing there was a marked decrease in the bruising of cattle. Thompson further
testified that this was a significant improvement and meant a lot of money to the
Respondent.
Clarence Mayo, Lyle's former supervisor, also testified that Lyle was rough with
cattle and that he had warned Lyle about this on many occasions.? Kenneth Bearden,
a maintenance man in the plant, had occasion to observe Lyle at work. He testified
that at one time he observed Lyle applying the prodding stick to the eyes of some
of the cattle. When he asked Lyle why the latter was doing this, Lyle said that this
was to blind them so that they would go into the pen more readily.
I credit and accept the testimony of Barnes, Barrowman, Thompson, Mayo, and
Bearden in the respects heretofore related. Their testimony was supported mutually,
and from my observation of them I find that they were credibly at least in this respect.
Moreover, both Barrowman and Thompson were Government employees neither paid
by the Respondent nor having any interest whatsoever in the Respondent's business
aside from their duties at the Respondent's plant on behalf of the Government.
Accordingly, as I find them disinterested witnesses, I find that their testimony in sup-
port of the testimony of the Respondent's officials, renders all of the testimony
believable.
In connection with Lyle's discharge, Barnes admitted that he knew of Lyle's union
activity and he knew that Lyle had acted as an observer for the Union. However, he
testified further that Lyle's union activity had nothing to do with the latter's discharge.
2. Helen Latta
Latta had worked for the Respondent for a period of approximately 71/2 years
before her discharge on July 31, 1964. During that entire period of time, she worked
in the smoked meat department and in the sliced luncheon meat department under
the supervision of Roy Cipriano, smoke meats department foreman. Latta served as
an observer for the Union at the elections of September 19, 1963, and June 1964. She
also attended, pursuant to subpena, the unfair labor practice hearing held on July 30,
1963, but did not testify. Barnes admitted to knowledge of Latta's union activities.
Therefore company knowledge of Latta's union activities is established.
O Like Barrowman, Thompson Is a Federal Government employee and, in this respect, is
disinterested.
71 credit Mayo in this respect because his testimony is supported by the testimony of
others and also is consistent with Lyle's admission.
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 1417
Soon after Latta's appearance at the unfair labor practice hearing in July 1963,
Latta was transferred from her long-time job of slicing smoked meats and placed on
the job of boxing smoked meats. She remained in this job until February 1964 when
she was transferred, again without any request on her part, to a new job that was,
created by the purchase of a sausage patty machine.
About the time of her transfer to the sausage patty machine, Latta had a conversa-
tion with Cipriano in which he assured her that she would continue to receive the
same pay while working on this machine as she had previously received in the other
department. Latta agreed to this although it involved Saturday work which had not
been required of her before the transfer. The operation of the sausage patty machine
did not provide Latta with sufficient work to keep her pay up to its former rate of 40
or more hours per week. Therefore when Latta finished her work on the sausage
machine each day, Cipriano permitted her to work in the ham room to make up the
difference in time. This procedure continued until her service as an observer at the
election on June 19 and 20, 1964. Immediately after that, Latta was no longer sent
to the ham room to fill out her pay but was sent home after finishing her daily work
on the sausage patty machine. According to Latta, Cipriano explained to her that
he could no longer send her into the ham room because it would take away from time
and pay of the girls who were working in the ham room.
In addition to the foregoing, on the Monday following Latta's serving at the elec-
tion, Cipriano told her that she would no longer be able to take her break with the
girls from the other department, as she had formerly done, but would have to wait
and take her break with the employees of the sausage department. Also, on that same
day, she was discharged for breach of a smoking rule after she had clocked out for
the day and had lit a cigarette on her way out of the building. However, this action
with withdrawn immediately after Assistant Superintendent Suggs, who had dis-
charged her, had a conversation with Superintendent Barnes.
Sometime in April-1964, Latta informed Cipriano that she was pregnant and that
her physician had informed her that she could work at her present work as long as she
felt up to it. Cipriano assented to this. Nothing further was said to Latta about her
being pregnant until shortly before the June 19 and 20, 1964, election. Then she was
asked by Barnes as to when she was going to quit by reason of her pregnancy. Latta
told Barnes that the doctor had informed her that she could work as long as she felt
like working. Nothing further was said at that conversation but on June 29, after the
election, Barnes again inquired of her as to her plans and informed her, according to
Latta, that due to a change in policy, pregnant women would not thereafter be allowed
to work beyond the fifth month of their pregnancy. Latta again advised Barnes as to
her doctor's consent to hei working as long as she felt up to it. Barnes informed
Latta that she could not work beyond the fifth month of her pregnancy unless, accord-
ing to Latta, she would furnish a statement to Barnes from her doctor saying that she
could work longer than the period Barnes had mentioned. Thereupon, Latta secured
the statement from her doctor and mailed it by registered mail to Barnes on July 8.
There is no question that Barnes received this statement in the regular course of the
mails
On July 31, 1964, Latta was discharged by Foreman Cipriano. At that time Latta
reminded Cipriano of Barnes' statement concerning the furnishing of a doctor's certifi-
cate. Thereupon, Cipriano said that he would check on this matter and did so.
However, when he returned from Barnes office he stated, once again that Latta was
being discharged. Latta's separation notice stated that she was terminated because of
pregnancy due to a company policy to terminate female employees after the first 4 or
5 months of pregnancy.
Barnes testified that the policy to terminate pregnant employees after 5 months of
pregnancy was established "Three, four, five years ago. I'm not sure about the time."
Barnes admitted that to his knowledge the policy had never been written down, trans-
mitted to the employees by any means or explained to the employees by the super-
visors. Barnes further testified that one reason for the establishment of the policy
was discussion with the Respondent's insurance carrier, which recommended that
pregnant female employees be separated after 5 months of pregnancy. However,
Barnes further testified that this discussion took place around the first part of 1964,
whereas he had testified previously that the policy had been established 3, 4, or 5
years ago. Barnes further testified that he asked for the statement from Latta's
doctor with regard to the time during which Latta could work, only for the purpose
8 All of the foregoing from the credited testimony of Latta who testified in a most
straightforward manner. By reason of this and from my observation of Latta, I find
her to be a reliable witness.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of confirming the fact that Latta was pregnant. However, on cross-examination,
Barnes admitted that he also wanted to know how long she could work and that was a
reason for his request for the statement.
In addition to Barnes, Payroll Clerk Joe Johnson and Smoked Meat Department
Foreman Roy Cipriano both testified as to the alleged established company policy
Johnson testified that the policy had been in effect "the last several years" but he could
not fix the exact time that the policy was in effect. Cipriano was in an almost equal
position. He testified that he thought that perhaps it went back close to 4 or 5 years.
Cipriano further testified that if Latta suffered a reduction in the hours of work just
before the weeks before her discharge and after the June 1964 election, this did not
result from any desire to retaliate against her. He further explained that the changing
of the time of Latta's work break came about because Latta came in later than the
girls in the ham department and worked during the hours of the sausage department
employees; that it was more convenient for the Respondent to have Latta take her
break and her lunch hour with the sausage department employees.
With regard to the alleged reduction in Latta's workhours, received in evidence was
an exhibit which constituted a comparison between the hours that Latta worked during
the year 1964, the hours worked by another employee in her department during the
same period of time, and the average hours worked by employees in Latta's depart-
ment during the same period. There is no question that from this exhibit, which
Respondent furnished, Latta's hours of employment were reduced, whatever the
cause, subsequent to her acting as an observer at the 1964 election.
In connection with the separation policy as to pregnant employees, Latta testified
that Jean Winfrey, a former employee, worked until she was 8 months' pregnant and
Velma Wright worked until she was 6 months' pregnant. Barnes testified that Win-
frey left before the policy was in effect and that it was, in fact because Winfred did
work as long as she did that the policy was established. Undisputed testimony by
Johnson shows that Winfred had her last child 6 years before the hearing and that
Wright's child was born 4 years before. Moreover Wright's child was due in April
and she quit in December.
3. Lloyd Floyd
Floyd had been employed by the Respondent for approximately 10 years before the
incidents related herein. During this entire time he had worked on the kill floor with
varied duties. At the time of his termination, he was assigned to weighing cattle,
pushing them into the cooler, and shrouding the lower half of each carcass. He also
had the duty, at least on Monday mornings, of washing out the cooler one-half hour
before the other employees arrived in order to prepare the cooler for the day's work.
At the time of the events herein, Floyd's supervisor was William Dowdy and the
assistant foreman of the kill floor was Bobby Morrison. As in the case of Lyle,
Clarence Mayo had been the kill floor foreman and Floyd's supervisor until approxi-
mately a year before Floyd's termination.
Floyd had been interested in the Union for some time in its efforts to organize the
employees of the Respondent. His enthusiasm for the Union was such that he was
the only man on the kill floor who wore a union button at work. He talked daily to
other employees about the Union. He also testified for the Union at the hearing on
challenged ballots which was held after the 1964 election. The hearing was held on
July 21 and 22, 1964.
On September 26, 1964, Floyd received a notification from the Internal Revenue
department as a result of which it was necessary for him to secure proof of losses
which he had claimed and deducted from his tax return. On Sunday, September 27,
he attempted to make contact with his insurance agent who had these proofs of loss,
but was informed that the agent was out of town and would be in his office on
Monday, September 28. Accordingly, Floyd decided that he would visit the insurance
agent on Monday, September 28. About 7:30 a in. on Monday, September 28, Floyd
instructed his wife to call the plant to inform Dowdy, his supervisor, that it was neces-
sary for him to take off for several hours to secure the information from the insurance
agent. This Floyd's wife did. According to both Floyd and his wife, Mrs. Floyd
was unable to make the call earlier since the switchboard at the plant did not open
until 7 a.m. and before that time it was impossible to reach the kill floor where Dowdy
was stationed.
When Mrs. Floyd called at 7:30 a.m. she was able to reach Dowdy. She told the
latter that her husband would be delayed in reporting to work because of the necessity
of his obtaining the information from the insurance agent. Dowdy replied, "Well
have him call me when he gets in." Mrs. Floyd then informed Dowdy that Floyd was
still at home shaving and could speak to him. However, Dowdy told her, "No,
just have him call me back."
TENNESSEE PACKERS, INC ., FROSTY MORN DIVISION 1419
Several minutes later, when Floyd had finished shaving, he did attempt to call
Dowdy but was unable to reach him . He then left home, completed his business
with his insurance agent, and reported to the plant ready for work at approximately
10.30 a.m. However, when he went to the clock to punch in, he was unable to locate
his timecard and he thereupon asked Dowdy where the card was . Dowdy replied,
"Floyd, we've decided to lay you off for 2 weeks ." Floyd thereupon inquired of
Dowdy as to the reason for the layoff and was informed that he was being disciplined
for his having been late in reporting to work. After some conversation between the
two men which resulted from Floyd 's surprise at hearing there was a rule with regard
to reporting late, Floyd accepted Dowdy's action with the understanding that he was
being laid off for 2 weeks.
On September 29, 1964, at Floyd's request , the Union filed a charge in this case
alleging discriminatory layoff and on that day a copy was served upon the Respondent.
When the 2 -week layoff period had expired , on Monday , October 12 , 1964, Floyd
reported to the plant prepared to work. However , he was again unable to locate his
timecard in its usual place and upon inquiring of Dowdy the reason therefore was
told by the latter, "We have decided to let you go until it is all over." When Floyd
asked the reason he was again told by Dowdy, "Well, we 've decided to let you go."
To the date of the hearing Floyd did not receive any separation notice.9
Floyd admitted that he knew of a company rule that required a worker who was
going to be absent to call in, but he had never been informed of any rule to the effect
that an employee would be laid off if he was late to work after calling in. Floyd
testified that he had never been reprimanded as to the performance of his duties, but
did admit that at one time his former superintendent, Clarence Mayo , had told him,
after he had been absent, that he could be discharged for that absence . However,
Mayo told him that he was not being discharged then because he was a good employee.
Plant Superintendent Clay Barnes testified with regard to Floyd's separation , admit-
ting that he did not have specific knowledge of Floyd's separation , which was handled
by Foreman Dowdy who did not testify . Barnes stated that Floyd was separated for
cause, specifically because of his failure to report until approximately 7.30 a m.
on September 28, 1964, that he intended to be late. Barnes testified that the rule
requiring an employee to call in when he was to be late or absent had been in effect
throughout the years and that the rule required the employees to call in as early as
possible. However, Barnes could not testify with any specificity as to employees who
had been disciplined for violation of this rule . He could not name a single individual
who had been disciplined for an infraction of the rule.
However, Barnes did testify that on Monday mornings Floyd 's work began at
6 o'clock when he was required , according to Government regulations , to wash down
the cooler so that freshly dressed meat could be put into it by 6.45 or 7 o'clock. If
this job is not performed, then the entire production line is held up until the work
is performed since this cleaning of the cooler is a matter of necessity and Government
requirement . The job must be done before production for the day can be started.
Barnes further testified that he had been informed from time to time by Dowdy and
Mayo that Floyd's absence had caused inconvenience on the kill floor. Barnes addi-
tionally testified that there is a city salesman , Ed McNeese, who is available at the
Company's phone from 5 a.m to take calls and then relay the calls to the (proper
individual in the plant , even though the switchboard does not open until 7. In this
respect, Dowdy was supported by the testimony of McNeese and I credit this
testimony.
Mayo testified that when he was supervising Floyd, approximately a year or so
prior to the events herein, he reprimanded Floyd severely in one instance when Floyd
had called in saying that he would not be able to attend his work because of illness.
At that time Mayo investigated and found out that Floyd had not been to the doctor
whom Floyd claimed he was going to see. Mayo testified that he found out that
Floyd, instead of seeing the doctor that day, was actually fixing an automobile
engine. Contrary to Floyd, Mayo testified that the reason he did not discharge him
that day was because Floyd begged him not to. But he did warn Floyd that this
course of action would result in the latter's discharge if it occurred again. I do not
credit Mayo as to the auto incident which Floyd denied.
6 All of the foregoing from the credited testimony of Lloyd Floyd and his wife, Jean
Floyd This testimony was unrefuted in most respects and Dowdy was not called by
the Respondent to testify Accordingly , from my observation of the witness and because
the testimony stands uncontroverted on the record , I credit it
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Conclusions with regard to the discharges
The General Counsel contends that the discharge of Lyle, the layoff and discharge
of Floyd, and the reduction of hours and eventual discharge of Latta were all dis-
criminatorily motivated and, consequently, were violative of Section 8 (a) (3) and (1)
of the Act. The Respondent, on the other hand, generally contends that all its actions
with regard to the three named employees were taken for cause and that the employ-
ees' union activities did not enter into Respondent's consideration for proceeding
as it did.
Before considering them individually, it is well to note significant similarities
between each of the three cases. For example, each of the individuals involved was
an employee of long standing at the time of the discharges, each had but recently
been openly active on behalf of the Union either as observer at the most recent elec-
tion (Lyle and Latta) or as a witness on behalf of the Union at the most recent
challenged ballot hearing (Floyd and Latta). Thus, in each case Respondent's knowl-
edge of prounion activity is established and I so find. In each case the Respondent
presented a reasonable cause for discharge. In each case the discharge followed by
a very short time the open prounion activity of particular employee involved. And,
finally, in each case the discharge occurred against the background of Respondent
union animus as demonstrated in the earlier Board cases heretofore cited.
The issue thus presented in each case is whether the Respondent discharged the
particular employee for the cause presented and only for that cause or whether the
cause was seized upon by the Respondent as a pretext for ridding itself of an
employee who had demonstrated prounion proclivities. Otherwise put, but for the
employee's union activities would the Respondent have ignored the cause for the
discharge presented?
In the case of Marable Lyle, I conclude, by reason of the unimpeached testimony
of disinterested witnesses Barrowman and Thompson that there was expensive dam-
age to the beef being produced at the Respondent's plant during the period immedi-
ately prior to Lyle's discharge. Lyle himself admitted that he had been reprimanded
by both Dowdy and Mayo for causing bruising to the beef through unnecessarily
rough handling of the cattle just prior to slaughter. Furthermore, there is no doubt
but that the incident which was observed by Everett Moore, the son of the plant
manager, and by Doctor Barrowman on the day of Lyle's discharge occurred in the
manner in which they related in their undisputed testimony and that Lyle did, in
fact, handle the situation at that time in a far less than efficient manner. While it is
true that there is no direct evidence that the particular cattle involved were found
after slaughter to have been badly bruised, nevertheless, in view of the fact that
Lyle permitted and, indeed, caused by his ineptness one animal to trample heavily
upon the animal that was down, I can but conclude that such damage must have
ensued.
Therefore, were no more shown than Lyle's history of having been reprimanded
by both his present and former supervisor, and the increase in the amount of bruising
which occurred in the months just before Lyle's discharge, together with the undis-
puted credited testimony that such bruising fell off considerably in the period
immediately following Lyle's discharge. I would find, without hesitation, that Lyle
was discharged for cause. However, the common heretofore recited factors, in con-
nection with all the discharges, do raise a suspicion that Lyle was discharged for
his union activities. But, even in the light of these factors, I find that only a sus-
picion is raised. An employer's general hostility to unions, without more, does not
supply an unlawful motive as to a specific discharge and an inference that a dis-
charge of an employee was motivated by his union activities must be based upon
substantial evidence, not upon mere suspicion. While it is true that the Respondent's
antecedent unfair labor practices, the timing of Lyle's discharge, and his long-term
employment cast some doubts on the bona fides of the Respondent's action, in view
of Lyle's evident shortcoming and in view of the incident which culminated in his
discharge, I find that the General Counsel has not carried his burden of proving
that Lyle was discharged because of his union activity I find, on the other hand,
that Lyle was discharged because of the extended heavy loss to the Respondent caused
by Lyle's work habits which resulted in the abusing and bruising of cattle.
Accordingly, I shall recommend dismissal of the complaint insofar as it relates
to Lyle.
The case of Helen Latta presents a different situation There, against the back-
ground of Latta's known union activities. the Respondent's demonstrated union
animus, the fact that Latta was a long-time employee. and the timing of her dis-
charge soon after acting as an observer for the Union and testifying on its behalf,
the Respondent attempted to defend its action in terminating Latta, an otherwise satis-
factory employee, by its assertion of a rule requiring pregnant employees to terminate
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 1421
their employment after 5 months of pregnancy. In proof of the existence of this
rule, which admittedly was never published or passed on to the employees until the
case of Latta, Barnes testified very hesitatingly that the policy was established either
3, 4, or 5 years before that time and was generally unsure about the time of its
establishment. Barnes further testified that the policy resulted from several miscar-
riages and was based on the advice of the Respondent's insurance carrier. But there
was no testimony offered by the Respondent from the carrier that such was the case.
Furthermore, on cross-examination, Baines testified that the recommendation from
the insurance carrier occurred as best he could remember around the first part of
1964. This statement contradicted his earlier statement that the policy was in
effect some 3, 4, or 5 years.
Moreover, Barnes admitted, on cross-examination, that he desired a statement
from Latta's doctor partly to find out how long she could work after having testified
on direct that the sole reason for the statement was to ascertain whether Latta was
pregnant. I cannot accept, therefore, the Respondent's clhim that the rule or policy
which the Respondent proffers as the reason it discharged Latta was, in fact, in
existence before Latta's discharge, because the necessity for the statement from
Latta's doctor would seem to be nil, if, in fact, Latta would have been let go because
,of the policy regardless of her physical condition or her doctor's opinion as to how
long she could work.
Moreover, even Payroll Clerk Joe Johnson, a witness called by the Respondent,
could not with any specificity testify as to the length of time which the alleged rule
had been existence. Additionally, Cipriano, Latta's supervisor, was unsure with
regard to the details of the alleged rule. I note in connection therewith that both
Cipriano and Barnes had demonstrated antiunion activity in earlier cases and that,
for this reason, their testimony with regard to the establishment and existence of
the rule is, to say the least, somewhat suspect.
I therefore conclude, under all of the circumstances, that the rule was asserted by
the Respondent not for any purpose of protection of the employees who were
pregnant but merely for the purpose of the Respondent's ridding itself of a strong
union adherent. I conclude therefore that Latta's discharge was motivated by her
union activity and was, by reason thereof, violative of the Act.
For like reason I find that the Respondent violated the Act with regard to the
reduction in Latta's workhours which occurred after the June 1964 election. Prior
to that time Latta was permitted to work in the ham room to make up the difference
of time between the hours worked at the patty machine and a full 8-hour day. The
Respondent's payroll records with regard to Latta and other employees in that
department shows that Latta, unlike the other employees, did not work as many
hours after that date. Although I note that in Latta's case some of the time she lost
was caused by a holiday and by Latta's leaving her work to testify in the challenged
ballots proceeding before the Board, I nevertheless conclude that the lessening of
her workhours was in reprisal for her union activities.
With regard to Lloyd Floyd, I accept the testimony of Barnes to the effect that
Floyd's absence from the kill floor at 6 a.m. on the day he was laid off caused
inconvenience and loss of time in the Respondent's plant. Floyd, himself, admitted
that part of his work was to report at 6 a.m. to wash down the cooler to prepare for
the storage of beef, the run of which started at approximately 6.30 a.m., the reporting
time of the remainder of the crew on the kill floor. Furthermore, I also accept the
Respondent's testimony to the effect that Floyd had upon occasion been late to work
and had absented himself upon several occasions. Floyd admitted this and also
admitted that there was a rule that an employee who was to be away from work or
late had to report in and inform his supervisor of his proposed absence or lateness.
However, as in the case of Latta, Floyd was a long-time, otherwise satisfactory,
employee and his discharge was timed soon after his most conspicuous activity on
behalf of the Union. Moreover, I accept Floyd's testimony that he personally knew
of several cases where individuals had been late in reporting for work and, yet, had
not received either dismissal or reprimand. Also, the individual who discharged
Floyd and knew more about his work record than anyone else was Floyd's immediate
supervisor, William Dowdy. Yet, Dowdy was not called by the Respondent to testify.
This, in view of the other factors in the case, leaves me to believe that Dowdy, who
knew more about Floyd's layoff than anyone else, would not have testified favorably
for the Respondent.
Additionally, although Barnes testified that there had been trouble on the kill
floor with regard to employees being absent or late he could not testify to a single
specific instance when individuals had been disciplined with regard to these matters.
The most he could testify to was, "Well we have disciplined from time to time on
matters of that sort, the chronic violaters of these rules." He could not recall however
,when the last such discipline occurred or to whom or under what circumstances.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, I accept as credible the testimony of both Floyd and his wife to the effect
that they had tried on a number of occasions to reach the kill floor before 7 o'clock in
the morning and had been unable to do so. I accept this despite the fact that the
Respondent's city salesman testified that he accepted calls earlier than that and
tried to reach the particulai supervisor involved. Also, I note that when Mrs. Floyd
called Dowdy on the morning of Floyd's layoff Dowdy himself stated that it was
not necessary for him to speak to Floyd at that moment. This, it would seem,
would be a very peculiar attitude for Dowdy to take if in fact he wanted Floyd to be
in the plant immediately. He could have conveyed this message to Floyd either
personally as Floyd volunteered, or through Mrs. Floyd. Neither of these actions
however were taken by Dowdy. It would seem that if the matter was so acute and
important to the Respondent, Dowdy under all of the circumstances would have
acted differently
I therefore conclude that Respondent's application of the rule in Floyd's case to
the point of laying him off was a mere pretext, and that the rule was applied in
reprisal for Floyd's union sympathies. In arriving at this conclusion, I have con-
sidered the testimony of Mayo to the effect that at an earlier time he had almost
discharged Floyd for being absent for an alleged illness whereas, according to Mayo,
in fact Floyd was out repairing an automobile. I do not credit Mayo in this respect.
With regard to Floyd's ultimate discharge, aside from the disparate treatment of
Floyd with regard to the incident which led to his layoff, I conclude that his ultimate
discharge was also discriminatory. The discharge followed by a very few days the
filing of the charge by the Union on behalf of Floyd for the alleged discriminatory
layoff. When Floyd returned to work on October 12 he was informed by Dowdy
that the Respondent decided to let him go until "it is all over." In view of all the
background and circumstances in this case, I conclude that what Dowdy meant by
"it is all over" was until the unfair labor practice charge was disposed of. This, I
conclude, is an admission on the part of Dowdy that the Respondent was letting
Floyd go for having filed an unfair labor practice charge. No other explanation
is reasonable.10
Accordingly, upon the entire record, I find that Floyd was discriminatorily laid off
on September 28, 1964, and that this layoff was converted to a discriminatory dis-
charge on October 12, 1964, and that both discharge and layoff were therefore
violative of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section IV, above, occurring in con-
nection with the operation of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
VI THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take affirmative action
designed to effectuate the policies of the Act.
It having been found that the Respondent, by interrogation and promises of
benefit, interfered with, restrained, and coerced its employees in violation of Section
8(a)(1) of the Act, I shall recommend that the Respondent cease and desist
therefrom.
Having found that Lloyd Floyd was laid off and discharged discriminatorily with
respect to his hire and tenure of employment, I shall recommend that the Respondent
be ordered to offer him immediate and full reinstatement to his former or substan-
tially equivalent position, without prejudice to his seniority and other rights and
privileges, and make him whole for any loss of earning he may have suffered because
of the discrimination against him, by payment of a sum of money equal to the
amount he normally would have earned as wages from the date of his layoff to the
date of the offer of reinstatement, less his net earnings during this said period, with
backpay computed on a quarterly basis in the manner established by the Board in
F. W Woolworth Company, 90 NLRB 289, 291-294, with interest thereon payable
in accordance with Isis Plumbing & Heating Co, 138 NLRB 716.
Having found that Respondent has also discriminated against Helen Latta with
respect to her hire and tenure of employment by reason of the reduction in her
workhours prior to the time Latta was discriminatorily discharged, it will be
10 Although the refusal by Respondent to allow Floyd to return to work on October 12,
1964, was not specifically alleged as a violation, it was fully litigated at the hearing. See
Oman Construction Co Inc, 137 NLRB 111, enfd 316 F 2d 230 (C.A. 6).
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 1423
recommended that Respondent make Latta whole for any loss of earnings she may
have suffered because of said discrimination against her by payment of a sum equal
to the amount she would normally have earned as wages for the hours of work of
which she was deprived from the respective dates her hours of work were reduced
to the date of her discharge, together with interest thereon. The loss of pay and
interest should be computed in the manner set forth hereinabove.
Having found that Helen Latta was discriminatorily discharged, it will be recom-
mended that Respondent make her whole for any loss of earnings she may have
suffered because of the discrimination against her by reason of the discharge by
payment of a sum equal to the amount she would have earned from the date of her
discharge until the date when she would have left the Respondent's employ because
of her pregnancy 11
In the view of the nature of the unfair labor practices committed, the commission
of similar and other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to cease and desist from in
any manner infringing upon rights guaranteed to its employees by Section 7 of
the Act.
Upon the basis of the foregoing findings of fact, and on the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Amalgamated Meat Cutters and Butchers Workmen of North America,
AFL-CIO, Local No. 405, is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent interfered with, restrained, and coerced its employees in the exer-
cise of rights guaranteed in Section 7 of the Act in violation of Section 8(a) (1) of
the Act by interrogating its employees with regard to their union sympathies and
activities and making promises of benefit to its employees in order to induce them
to abandon their union affiliations.
4. Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily
discharging Lloyd Floyd, discriminatorily laying off Lloyd Floyd, discriminatorily
reducing the hours of work of Helen Latta, and discriminatorily discharging Helen
Latta.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in this case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I recommend that the Respondent, Tennessee Packers Inc,
Frosty Morn Division, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees with regard to their union activities and
sentiments.
(b) Promising its employees benefits to discourage their affiliation with or support
of Amalgamated Meat Cutters and Butchers Workmen of North America, AFL-CIO,
Local No. 405.
(c) Discouraging membership and activities on behalf of Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-CIO, Local No. 405, or
any other labor organization of its employees, by discharging, laying off, refusing to
reinstate, or reducing workhours or in any other manner discriminating in respect to
their hire or tenure of employment or any terms or conditions of employment.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights to self-organization, to form labor organizations, to
join or assist Amalgamated Meat Cutters and Butcher Workmen of North America,
AFL-CIO, Local No 405, or any other labor organization, to bargain collectively
through representatives of their choosing, or to engage in other mutual aid or protec-
tion, or to refrain from engaging in such activities.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Offer to Lloyd Floyd immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority or other rights and
"Because the record does not show when this event would have occurred, it is recom-
mended that the date be determined in any compliance proceeding which may result from
the Recommended Order herein.
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
privileges , and make him whole for any loss of earnings he may have suffered as a
result of the discrimination against him as provided in the section of this Decision
entitled "The Remedy."
(b) Make Helen Latta whole for any loss of earnings she may have suffered as a
result of the discrimination against her as provided in the section of the Decision
.entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for
examination or copying, all payroll records, social security payment records, time-
cards, personal records and reports, and all other records necessary to determine the
amount of backpay due under the terms of this Recommended Order.
(d) Post at its plant at Clarksville, Tennessee, copies of the attached notice
marked "Appendix." 12 Copies of such notice, to be furnished by the Regional
Director for Region 26, shall, after being duly signed by an authorized representative
of the Respondent, be posted immediately upon receipt thereof, and be maintained
by the Respondent 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 the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 26, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondent has taken to
comply herewith.13
(f) Notify the above-named employees if presently serving in the Armed Forces
of the United States of their right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
(b) Those allegations of the complaint herein which allege that the Respondent
discriminatorily discharged Marable Lyle be, and the same hereby are, dismissed.
1' 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 shall be further amended by substituting the words "a Decree of the
United States Court of Appeals , Enforcing an Order" for the words "a Decision and Order".
19 If this Recommended Order is adopted by the Board , this provision shall be modified
to read . "Notify the said Regional Director , 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-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their union affiliation or
activities in the manner constituting interference , coercion , or restraint in viola-
tion of Section 8 (a) (1) of the Act.
WE WILL NOT promise our employees benefits to discourage their affiliation
with or support of Amalgamated Meat Cutters and Butcher Workers of America,
AFL-CIO, Local No. 405.
WE WILL NOT discourage membership in any labor organization by discrim-
inating in regard to hire, tenure of employment, or any other terms or condi-
tions of employment of any of our employees.
WE WILL offer to Lloyd Floyd immediate and full reinstatement to his former
or a substantially equivalent position, without prejudice to any seniority or
other rights or privileges previously enjoyed, and make him whole for any loss
of pay suffered as a result of the discrimination against him.
WE WILL make whole Helen Latta for any loss of pay suffered as a result of
the discrimination against her.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form labor orga-
nizations, to join or assist Amalgamated Meat Cutters and Butcher Workmen of
North America, AFI-CIO, Local No. 405, or any other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any and all such activities.
COCA-COLA BOTTLING CORPORATION 1425
All our employees are free to become or remain members of the above-named
Union or any other labor organization.
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NoTE.-We will notify the above -named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion 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.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 746
Federal Office Building, 167 North Main Street , Memphis, Tennessee , Telephone No.
535-3161, if they have any questions concerning this notice or compliance with its
provisions.
Coca-Cola Bottling Corporation and William N. Waite
Cleveland Local Union No. 235, International Union of the United
Brewery, Flour, Cereal , Soft Drink and Distillery Workers of
America, AFL-CIO and William N. Waite . Cases Nos. 8-CA-
3515 and 8-CB-824. July 13,1965
DECISION AND ORDER
On April 6,1965, Trial Examiner Harold X. Summers issued his De-
cision in the above-entitled proceeding, finding that Respondents had
not engaged in the unfair labor practices alleged in the complaint 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 Decision and a supporting 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 Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error has been committed.
The rulings are hereby affirmed. The Board has considered the Deci-
sion , the exceptions, the brief, and the entire record in the 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 National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders that
the complaint herein be, and it hereby is, dismissed in its entirety.
153 NLRB No. 123.
796-027-66-vol. 153-91