Frosty Morn Meats, Inc. v. NLRB

Citation296 F.2d 617
Decision Date30 November 1961
Docket NumberNo. 18464.,18464.
PartiesFROSTY MORN MEATS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

John C. Godbold, Euel A. Screws, Jr., Montgomery, Ala. (Godbold, Hobbs & Copeland, Montgomery, Ala., of counsel), for petitioner.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Vivian A. Asplund, Atty., Stuart Rothman, Gen. Counsel, Melvin J. Welles, Atty., National Labor Relations Board, Washington, D. C., for respondent.

Before CAMERON and WISDOM, Circuit Judges, and CHRISTENBERRY, District Judge.

WISDOM, Circuit Judge.

Petitioner, Frosty Morn Meats, Inc., an Alabama corporation, is engaged in the slaughtering and processing of beef and the processing of beef by-products. The National Labor Relations Board found petitioner guilty of unfair labor practices under Sections 8(a) (1) and 8(a) (3) of the National Labor Relations Act, 29 U.S.C.A. § 158(a) (1, 3). The Board issued its usual cease and desist order and also ordered the petitioner to reinstate with back pay, Sam Judkins, the employee whose discharge was the basis for the 8(a) (3) finding. Frosty Morn Meats petitions this Court to review and set aside that portion of the order requiring the reinstatement of Judkins. We hold that the evidence does not support the Board's 8(a) (3) finding, and grant the petition.

Here, as in all discriminatory discharge cases, the Court must take a close look at the facts. Here, as in almost all of these cases, there is clear evidence of the employer's animus against unions and clear evidence of good cause for the employee's discharge.

The Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, the complainant in those proceedings, presented evidence showing animus of the employer against the union and against Judkins and another discharged employee, Hughie Shaw. In October 1958 a movement developed in the company plant to establish a union. Judkins and Shaw were its principal leaders. Judkins obtained union cards for the employees and arranged for a meeting Saturday, November 1 to discuss unionization. Plant Manager J. W. Camp and his assistant J. T. Bigger sharply opposed these unionization activities. Several employees testified that when they gathered to go to the November 1 meeting Bigger was near by watching them. Four of the employees stated that the following Monday morning they were called into Camp's office, where Camp interrogated them as to their activities regarding the union and told them not to vote for the union if there was an election. He threatened to close down the plant rather than to admit a union. William McKeithen, a former employee, testified that Camp approached him Friday, October 31, and said, "William, I want you to find out if Preacher Shaw and Sam Judkins are organizing a union. I want you to find that out, and tell me tomorrow." "If they are organizing a union, I will fire them; because there isn't going to be no union at Frosty Morn." When McKeithen reported the next day that Shaw and Judkins said they did not know anything about the union, Camp said, "They are lying." "They are the ones organizing the union." "I'll fire them. Before there will be a union at Frosty Morn, I'll close it down." Bigger discharged Judkins November 4 following his failure to perform a sweeping chore assigned to him.1

Frosty Morn Meats asserts that it discharged Judkins for cause, relying on the testimony of several witnesses that Judkins was not a satisfactory worker. Judkins worked in the Company's shipping department where workers give the beef a final dressing, store it temporarily, and as orders come in load it into trucks and trailers. In loading, the beef is pushed manually while it is hanging from an overhead rail, and at the end of the loading platform the workers cut it from the rail for loading onto the truck. Since pieces of fat, blood, and waste continuously drip from the beef, it is necessary to sweep the floor frequently and to apply fresh sawdust. Often one man is asked to sweep the floors after a loading has been completed while the others have a break, and that man takes his break after he finishes the sweeping.

J. T. Bigger, a supervisor, fired Judkins November 4. Bigger testified that after a trailer was loaded that morning he told Judkins "to clean up the dock and so forth." A few minutes later he noticed that Judkins was not cleaning up the dock and went to look for him in the cooler thinking that he might be sweeping that out first. Judkins was not there. Bigger found him coming out of the dressing room and said to him: "Sam, you haven't cleaned up like I told you. It seems like you are not going to do like we want you to and do a good job, and so I think that you had better be on your way; we don't need you anymore." Judkins, however, testified that he followed the instructions to sweep the floor and then reported to Bigger. Asked whether he completed the sweeping, he answered, "I certainly did", and when asked who was around when he did the sweeping, he stated that Luther Hall was sitting at the back of the cooler eating a sandwich. Judkins stated that he had swept only the cooler and not the loading platform because that was all Gates had asked him to do. Luther Hall flatly contradicted this testimony, stating that he left the cooler at the time Judkins was told to clean it and that he was not in the cooler eating a sandwich when Sam was sweeping. Willie Gene Majors also contradicted the testimony, stating that Judkins did not sweep out the loading dock or the cooler that day. When Bigger told Judkins that he was going to discharge him, Judkins, according to both versions, said "All right; have you got my money ready?" He received his money and left without asking the reason for his dismissal.

Johnny Gates was the senior member of the shipping crew and in the absence of Bigger sometimes took charge of supervising the men. The sweeping job was rotated, and Gates took his turn in doing it. Gates stated that two or three days before Judkins was fired he had instructed him to sweep up but that when he came back from the break Judkins had not done so. He said that he had reported this to Bigger. Gates also testified that although Judkins had worked well initially, "it seemed like he slowed down and just didn't do as good a job as he did when he first started." "It seemed like that he wasn't as fast as he was before, I mean, he slowed down; and we would be pushing cattle in the coolers, and he got to where he wouldn't watch where he was going, just push the cattle right on them." "It is pretty dangerous pushing those cattle. I mean, you can run over somebody if you don't watch what you are doing; and he would just put his head down and start pushing, and it didn't make no difference who was in front of him." Willie Gene Majors, one of Judkins's fellow workers who talked with him about union activities and signed a union card, also testified that Judkins was not a good worker. He said that when Judkins first started working, he "was a good worker — big and strong" but that "after awhile he became sullen, and he didn't like some of the things that he had to do." He said that Judkins was dangerous in pushing meat too fast, and that while other workers sometimes had pushed the meat too fast "there weren't any...

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