Tennessee Packers, Inc., 165 (1964)
DECISION AND ORDER
On October 18, 1963, Trial Examiner Leo F. Lightner issued hisâ€¢ Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions and a supporting brief. â€¢ Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with, 146 NLRB No. 15.
this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.
-The Board adopts as its Order the Recommended Order of the Trial Examiner.' 1 The Recommended Order is -hereby amended by substituting for the first paragraph therein, the following paragraph:
Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders ,that - Respondent, Tennessee Packers, Inc., Frosty Morn Division, its -officers , agents, successors, and assigns, shall:
The Appendix attached to the Trial Examiner 's Decision is hereby amended by adding the following immediately below the signature line at the bottom of the notice:
Nora.-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 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 proceeding was heard before Trial Examiner Leo F . Lightner in Clarksville, Tennessee, on July 30, 1963, on the complaint of General Counsel , as amended, and the answer of Tennessee Packers, Inc., Frosty Morn Division ., The issue litigated was whether the Respondent violated Section 8(a)(4), (3 ), and (1) and Section 2 ( 6) and (7) of the Labor Management Relations Act, 1947 , as amended, 61 Stat. 136, herein called the Act. Briefs filed by the General Counsel and Respondent and the oral argument presented by each have been carefully considered.
Upon the entire record and from my observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT Respondent is a Tennessee corporation , maintaining a plant and place of business at Clarksville, Tennessee,2 where it is engaged in the processing of meat and meat products. During the 12 months preceding the issuance of the complaint, on July 1 , 1963, a representative period, Respondent sold and shipped finished products valued in excess of $50,000 directly to points outside the State of Tennessee.
The complaint alleges, the answer admits, and I find that said Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
THE LABOR ORGANIZATIONS INVOLVED Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO;
Local 405, herein called the Union, is a labor organization within the meaning of Section 2 (5) of the Act.
1 The original charge herein was filed on May 27, 1963. An amended charge was filed on June 14, 1963 An additional amended charge was filed on July 1, 1963 On the latter date the complaint herein was issued 2In Case No. 10-CA-3956, reported in 124 NLRB 1117, of which I have taken official notice, other plants owned and operated by Respondent are noted We are here concerned with the Clarksville plant.
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION 167
111. THE ALLEGED UNFAIR LABOR PRACTICES The Issue The principal issue raised by the pleadings, as amended, and litigated at the hearing are whether the Respondent since on or about May 6, 1963, has failed and refused to reemploy or recall Shirley Holt, Nora Ann Black and Myrtle Lane because said employees joined or assisted the Union, or engaged in union or concerted activities, or because said employees filed charges and gave testimony under the Act, in derogation of the provisions of Section 8(a)(4), (3), and (1) of the Act. Respondent generally denied the commission of any unfair labor practices.
Background The Union has been unsuccessful in several efforts to organize the employees at Respondent's Clarksville plant, commencing in 1952. On October 8, 1959, the Board found that Respondent had engaged in conduct violative of the provisions of Section 8(a)(1) by: (1) threatening to close the Clarksville plant; (2) by granting wage increases in order to influence employees against the Union; (3) by photographing employees while, engaged in union activity; 'and (4) by interrogating employees regarding their union membership, activities, or sympathies in a manner constituting' interference, restraint, â€¢ or coercion. Specifically the Board found that it was Plant Superintendent Clay Barnes who had engaged in interrogation of employees, made threats to close the Clarksville plant, ordered the taking of pictures of employees while they were engaged in union activities, and selected the employees who received wage increases in order to influence said employees against the Union .3
On June 28, 1963, the Board found that Respondent had engaged in conduct violative of Section 8(a)(3) and (1) by reason of the discriminatory discharges of Ophelia Hutchison and Claudine Warren,' and, in addition, violative of Section 8(a) (1) by interrogation of employees. Specifically the Board found unlawful interrogation by Plant Superintendent Clay Barnes and Foreman Roy Cipriano, as well as others. It was Cipriano who effectuated the discriminatory discharges .4
In Case No. 26-CA-1388 it was alleged that the discriminatees herein, Holt,
Black, and Lane, were discriminatorily laid off on September 14, 1962, and that Respondent's failure to recall them was discriminatorily motivated. These allegations were dismissed, on a finding that the layoffs were in accordance with departmental seniority,5 and an absence of proof of discriminatory motivation. It was also found that as of the time of the hearing, on January 29 and 30, 1963, there were only five employees in the wiener packaging department and, accordingly, there had been no failure to recall the alleged discriminatees.
The Evidence It is undisputed that Bobby Langster, a male employee, was hired in May 1963, to work in the wiener department. Also undisputed is the fact John Suggs, a male employee, was hired in the same department in June 1963. Betty Mohon (spelled in this record 'Mahone' and in the prior record 'Mohon'), was recalled, or rehired, on May 6, 1963, and assigned to work in the ham room or ham department or smoked meats department. Fay Seay, who had been employed by Respondent some years previously, was rehired on May 7, 1963, and assigned to the ham room or smoked meat department. It is likewise undisputed that Nora Ann Black,
Shirley Holt, and Myrtle Lane had not been rehired or recalled at the time of the hearing herein. The hiring of the four individuals named and the failure to recall the three alleged discriminatees is the nub of this case.
See footnote 2.
I have taken official notice of Case No. 26-CA-1388, reported In Tennessee Packers,
Inc., Frosty Morn Division, 143 NLRB 494. Acts of Respondent's agents occurring more than 6 months prior to the filing and service of the charge are considered as background only, and will not be made the basis of any finding of unfair labor practices, in accordance with the provisions of Section 10(b) of the Act. Frost Lumber Industries, Inc, of Texas, 93 NLRB 1586, 1592, and footnote 3 (IR).
5 Five of ten employees in the wiener packaging department were laid off. The order of seniority of these five, with the highest in seniority first, were Nora Ann Black,
Shirley Holt, Myrtle Lane, Betty Mohon (identified in the instant record as 'Mahone'), and Aileen Harris.
The undisputed testimony of Black was that during the period of her employment by Respondent 6 she was assigned to the wiener department and worked there most of the time. However, it was normal practice for the employees to be assigned to work in other departments when they were needed. Black was so assigned to work in the ham room, on the bacon line, and on the lunch meat line.
Black asserted that while she was working on a night shift, which she estimated to have extended over a period of 2 or 3 months, she would spend 2 or 3 hours of a 10-hour shift each day working in the ham room where she would wrap hams, 'bacon, smoked meats, and jowls. When she worked on the bacon line she weighed 'bacon, sliced bacon, and packaged it in V2-pound or 1-pound packages. In the wiener department she ran the wiener peeling machine, which required lifting a tray of sausages of an estimated weight of 12 to 15 pounds and placing the wieners in the machine. She also helped pull out 'floats,' containing packages of wieners, with the help of two or three girls. Black explained they would go into the shipping room and' ask. one of the men to come in and pull the float out, but if they were in a 'hurry they would not wait for the men to pull them out. These floats would be pushed out four or five times a day and did not involve 'a whole lot of working time.' It is undisputed that Black testified, adversely to Respondent, in Case No.
26-CA-1388, on January 29, 1963, and this fact was known by Respondent.
The undisputed testimony of Lane was that during her employment by Respondent she worked in the wiener department, she was transferred to the ham room for 3, 4, or 5 months...
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