NLRB v. Neuhoff Bros. Packers, Inc.

• Decision Date: 01 July 1968
• Docket Number: 24759.,No. 24752,24752
• Citation: 398 F.2d 640
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NEUHOFF BROS. PACKERS, INC., Respondent (two cases).
• Court: U.S. Court of Appeals — Fifth Circuit

398 F.2d 640 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NEUHOFF BROS. PACKERS, INC., Respondent (two cases).

Nos. 24752, 24759.

United States Court of Appeals Fifth Circuit.

July 1, 1968.

COPYRIGHT MATERIAL OMITTED

Marcel Mallet-Prevost, Asst. Gen. Counsel, Lawrence J. Sherman, Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Gary Green, Atty., N.L.R.B., Washington, D. C., for petitioner.

Fritz L. Lyne, Erich F. Klein, Jr., Lyne, Klein & French, Dallas, Tex., for Neuhoff Bros., Packers, Inc.

David Richards, Dallas, Tex., Sheli Rosenberg, Chicago, Ill., Eugene Cotton, Richard F. Watt, Irving M. King, Cotton, Watt, Jones & King, Chicago, Ill., for intervenor.

Before RIVES, BELL and GOLDBERG, Circuit Judges.

RIVES, Circuit Judge:

The National Labor Relations Board has petitioned this Court for enforcement of its orders promulgated in two proceedings, here consolidated, against Neuhoff Bros. Packers, Inc. In No. 24759, the Board found that Neuhoff Bros. had violated section 8(a) (3) of the National Labor Relations Act¹ by the discharge of Allen Ray Lewis, and section 8(a) (1) through a speech made by the president of the company. 159 N.L.R.B. 133. No. 24752 involved the Board's determination that Neuhoff Bros. violated sections 8(a) (1) and 8(a) (3) by the discharge of Lloyd Lewis. 162 N.L.R.B. 120.

The questions here presented involve the Board's findings of anti-union motivation behind each of the two discharges and its further finding that the speech threatened Neuhoff Bros.'s employees for participating in union activity and interfered with organizational rights.

Neuhoff Bros. is a Texas corporation engaged in the livestock slaughtering business at Dallas, Texas. It has been involved in various labor disputes since early 1964, when the union² began organizational efforts among the Neuhoff employees.³ An election was held September 22, 1964, which the union lost. The Regional Director set that election aside on January 12, 1965. The union won the second election, held February 18, 1965.

The Discharge of Allen Ray Lewis

The suspension and subsequent discharge of Allen Ray Lewis occurred in January and February of 1965, in the period between the two elections. He had been employed by Neuhoff Bros. for nine years, the last seven as tongue dropper at the hog head table in the fancy meat department. During his employment he received three merit salary increases.

The operation of the hog slaughter and production line, insofar as it concerns this discharge, is not complex. After the hogs are killed and dehaired, the carcasses, suspended by the hind legs, travel via a movable chain along the production line. Some twenty-five employees work on each carcass before it reaches the fancy meat department. At the viscera table, the head and intestines are separated and placed in a pan. Each pan travels just alongside the carcass from which the contents of the pan were removed. Government inspectors are stationed near the end of the viscera table to inspect the carcass, the intestines, and the head of each hog for possible rejection. Unless rejected, the head slides down an inclined chute to the hog head table, where it encounters, first of all, the tongue dropper. His duties include removing, and shredding the ears, severing the tongue, and trimming the head. From his position the head is passed on the table to employees who, in turn, snoot the head, pull the jawbone, trim the jawbone, and further check the head before it is broken open for removal of brains and glands.

The speed at which the hog carcasses and their component parts, including the heads, pass through the process depends in part upon the number of Government inspectors on the job and in part upon the ability of the company and its employees to handle the material in a sanitary and productive manner. The maximum speed is set by the supervisory veterinary meat inspector and his immediate supervisors. With two Government inspectors on duty since 1965, the maximum speed limit of the chain was 240 carcasses per hour. The supervisory Government inspector testifies that had three inspectors been utilized, they could have passed on as many as 300 carcasses per hour. When too much work accumulated at any one position, the inspectors and, presumably, plant supervisory personnel could stop the movement of the chain. At least one measured speed check, usually more, was made in the course of each working day. The Government inspectors testified that they were able to notice if the speed increased much above the established rate of 240 carcasses an hour.

Occasionally a piling-up of work at various points along the line will necessitate a halt to the movement of the chain. Such stoppages, if excessive in number or in length of time, naturally tend toward inefficient operation of the plant. Since the initial dehairing process passes the hogs through a vat of scalding water, a stoppage in excess of five or six minutes may result in a partial cooking of the hogs caught in the vat during the halt. Counter-measures, such as running cold water into the vat or manually removing the carcasses from the scalding water, may be necessary to avoid the deleterious cooking effect. Thus, in the interest of efficiency of operation and safety of process, the company kept records of all such stoppages lasting in excess of three minutes, with causes noted.

Neuhoff Bros.'s records show that on January 22, 1965, six of seven work stoppages resulted from hog heads piling up in the chute before the viscera table and the hog head table. A company supervisor, Conaway, concluded that Allen Ray Lewis, the tongue dropper, was at fault for not working fast enough. Conaway questioned Lewis as to his efforts and thereafter filed a written reprimand. On the next working day, January 25, Conaway noted two work stoppages due to the same effect and again felt Lewis to be the cause. The General Counsel argues in this proceeding, as it did before the Trial Examiner, that Conaway failed to demonstrate the basis for his conclusion on either day. Conaway testified, in effect, that since the heads were piled up between the viscera table and Lewis's position, the pace of Lewis's work on the heads must have been the cause. Lewis testified that he got behind because the speed of the production line had been increased.

In the early afternoon of the 25th, Conaway escorted Lewis to the office of William Hamzy, secretary-treasurer of Neuhoff Bros. and in charge of personnel problems. Present at the ensuing meeting were Hamzy, Conaway, Lewis, and Henry Neuhoff, III. Unknown to Lewis, a tape recording of the meeting was made. Hamzy determined to suspend Lewis for one week.⁴

Lewis returned to work on February 3. Conaway entered two notations of chain stoppages due to Lewis's slow pace as tongue dropper. Conaway further wrote up a second reprimand directed at Lewis's performance. He had spoken with Lewis after the first stoppage of that day. Another tape-recorded meeting was held in Hamzy's office. Lewis was discharged. Conaway accompanied Lewis to the locker room and out of the plant gate, as he had at the time of the suspension.

Before the Trial Examiner the General Counsel contended that Neuhoff Bros. had discharged Lewis because of the latter's union activities. Neuhoff Bros. responded that the discharge was occasioned by Lewis's performance, which had resulted in loss of time and production. The General Counsel attempted to show that the production line speed had been increased beyond the established rate and that Conaway had failed to make sufficient investigation for his conclusion that Lewis was not working at the proper level of production. The Trial Examiner concluded that Lewis deliberately had slowed down production. He also concluded that Lewis's discharge was the result of a just cause, citing NLRB v. Soft Water Laundry, Inc., 5th Cir.1965, 346 F.2d 930.

The Board disagreed with the Trial Examiner's recommendation that the 8(a) (3) allegation be dismissed. The Board stated:

"In the instant case we are satisfied that Allen Ray Lewis, absent his union activity, would not have been either laid off or discharged."

The Board's order noted that in its view the record did not support the Trial Examiner's finding that Conaway made his conclusion as to Lewis's culpability after investigation. The Board then accepted the argument of the General Counsel that Conaway merely guessed at the cause, after observation of the condition of the hog head table, without having questioned any of the other employees.

Neuhoff Bros. had installed a hidden camera during the period of Lewis's suspension. The camera was positioned at such a vantage point as would permit photographing activities at Lewis's post on the hog head table. The Board here argues that the movie-making and the tape-recording activities demonstrate a pattern of an effort to get rid of Lewis. Neuhoff Bros. has urged that such precautions were mere prudence, in that they were well aware of Lewis's position and activities within the union effort, and realized they would have to be able to show firm justification for any discharge.

The Examiner viewed the films as strong evidence of Lewis's deliberate slow-down of production. The Board felt that the films were inconclusive and potentially inaccurate, since they were not a constant, uninterrupted record of the day's activity, and since they showed signs of splicing. The Board credited Lewis's explanation of the most lengthy period of his inactivity; the Examiner had declined to credit the testimony of Lewis where it was in conflict with that of other witnesses.

The Board also concluded that even if the employer's asserted justification were to be credited, it did not constitute the moving cause for Lewis's discharge. The Board did not state expressly what it found to be the moving cause.

For a discharge to violate 8(a) (3), both discrimination and a...