Agri-International Inc.

National Labor Relations Board - Board Decisions

Aug 13, 1984

271 N.L.R.B. 925 (N.L.R.B. 1984)

AGRI-INTERNATIONAL INC.
Agri-International Inc., a Wholly Owned Subsidiary
of Gold Kist, Inc. d/b/a Golden Poultry Co.
and UFCW District Union 433, affiliated with
UFCW International Union, AFL-CIO-CLC
Agri-International Inc., a Wholly Owned Subsidiary
of Gold Kist, Inc. d/b/a Golden Poultry Co.
and District Union 433, affiliated with
U.F.C.W. International Union, AFL-CIO-CLC,
Petitioner. Cases 10-CA-18359 and 10-RC-
12589
13 August 1984
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 11 October 1983 Administrative Law Judge
Hutton S. Brandon issued the attached decision.
The Respondent and the General Counsel each
filed exceptions and a supporting brief,2 and the
General Counsel and the Union filed answering
briefs.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision, Order, and Certification of Results of
Election.
The judge found that the Respondent became a
successor to Swift and Company at the Douglas,
Georgia plant 20 January 1982.3 The judge further
found that the Respondent violated Section 8(a)(5)
of the Act by refusing to recognize the incumbent
Union; that it thereafter violated Section 8(a)(1) of
the Act by making implicit promises of unspecified
benefits and by threatening employees with the fu-
tility of selecting the Union as their bargaining rep-
resentative and the inevitability of strikes; and that
said conduct as well as a mass interrogation of em-
ployees by the Respondent's supervisors interfered
with the election held 27 May. We agree with the
judge regarding the Respondent's status as a suc-
cessor employer. However, for reasons given
below, we do not agree that the Respondent en-
gaged in any unlawful conduct or interfered with
the election.
1. As indicated by the judge, the Respondent on
15 January and thereafter declined the recognition
request of the Union which had a collective-bar-
I The judge found, and the record shows, that despite the slight differ-
ence in name the same Union is involved in both cases.
2 The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
3 All dates below refer to 1982.
gaining agreement with the Respondent's predeces-
sor for the 2-year period ending I February. The
Union subsequently filed a representation petition
for the production and maintenance employees 26
March, a Stipulation for Certification Upon Con-
sent Election was approved 16 April, and the elec-
tion at the end of May was lost by the Union.4
The Respondent presented its position through
Jerry Cox, its general manager, and James Perdue,
its director of employee and labor relations, who
conducted a series of meetings with the employees
in the 3 weeks before the election.
The first of these meetings took place about 7
May when Cox, who was put in charge of the
Douglas plant, explained that it was his objective
to make profitable that facility which had been
losing money under Swift's operation. Cox stated
further that the Respondent had to "structure [the
plant] conservatively in such a way that its chances
of surviving were greatest" and that "if we do not
succeed here and go out of business this plant will
never be reopened." Cox then emphasized the im-
portance of the Company and the employees work-
ing together and asked the employees to "see the
situation through without a union " in order to
provide "a chance to succeed and you won't be
sorry."
In his second speech 14 May, Cox pointed out
that economics and productivity determined pay
and benefits and that the Respondent's plan was to
make "positive changes" in that regard so as to
bring the Douglas plant in line with the Respond-
ent's other plants.
The judge found that, standing alone, Cox's plea
to the employees for a chance to have his program
succeed without the Union did not constitute ob-
jectionable conduct. However, the judge linked
that plea to Cox's plan to make changes as soon as
practical on the basis of productivity. In finding
that these statements, when taken together, consti-
tuted implied promises of benefits if the employees
rejected the Union, the judge failed to take into ac-
count the context in which they were made. It is
clear that the Respondent, which took over an un-
profitable plant, acted in legitimate fashion as a
business enterprise by asking for the cooperation of
the employees, with whom it had no previous rela-
tionship, to increase productivity so as to make the
plant an economically viable operation. This in
turn would open up the possibility of pay and ben-
efits comparable to those of the Respondent's other
plants. That Cox's statements were permissible ex-
4 The tally of ballots showed that, of approximately 352 eligible voters,
158 voted for and 172 against the Union, with I void ballot and 4 chal-
lenged ballots.
271 NLRB No. 139
925
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pressions of concern about achieving success with
its acquisition of a hitherto financially ailing facility
is evident from the remainder of Cox's second
speech which, as the judge correctly found, was
neither objectionable nor unlawful. Thus, Cox con-
tinued to stress the Respondent's business interests
by making it plain that "in running the plant" he
would agree only to those things which he felt
were beneficial to the survival of the plant. Ac-
cordingly, we find, contrary to the judge, that the
Respondent through Cox legitimately sought the
cooperation of the employees to assure the survival
of the plant to the mutual advantage of both man-
agement and the employees. We therefore perceive
no justification for the judge's finding that the Re-
spondent expressly or impliedly conditioned any
possible increases in pay and benefits on the em-
ployees' rejection of the Union.5
2. As noted above, Perdue held meetings 19 May
in which he stated that as the director of labor re-
lations he would bargain in good faith with the
Union if it was selected by the employees as their
representative, but he would "do nothing to hurt
our chances of survival" and would not let the
Union "push us around." Perdue also made a slide
presentation of strike action by the Union against
the Respondent's other plants and some Georgia
employers and referred to the occurrence of strike
violence, plant closures, and loss of jobs. In this
connection, Perdue expressed the view that "a
strike could well kill this plant" because its only
customer might then turn elsewhere permanently
for a more reliable source of supply. Perdue then
explained that he related the "cold, hard facts"
concerning the adverse impact of strikes by the
very Union involved here "not because strikes are
inevitable, but because having no strike is certainly
not inevitable either."
As noted above, the judge found that Perdue's
speech, when considered in the context of the Re-
spondent's other conduct, namely, the speeches of
Cox, unlawfully threatened the futility of union se-
lection and the inevitability of a strike and also cre-
ated an atmosphere of coercion which interfered
with the election. In making these findings, the
judge improperly rejected as unworthy of serious
consideration Perdue's qualifying or disclaiming
statements to the effect that a strike was not inevi-
table and that he would bargain in good faith with
the Union if it was selected by a majority of the
5 Viacom Cablevision, 267 NLRB 1141 (1983).
The judge erred in relying on Royal Petroleum Co., 243 NLRB 508
(1979), in which the Board found objectionable a "give us a chance"
statement because it was made in the context of other objectionable con-
duct, including promises of benefit. We deem that case inapposite in view
of our finding here that there were no concomitant promises of benefit or
other objectionable conduct.
employees as their representative. The judge also
failed to take into account the Respondent's pro-
tected right under Section 8(c) of the Act 6 to set
forth its opinion based on demonstrable facts as to
the possibility of a strike and its consequences.
Contrary to the judge, the Respondent was under
no obligation to shield its employees from the
"cold, hard facts" concerning the detrimental ef-
fects of past strikes by the Union. Not only did the
Respondent legitimately attempt to persuade the
employees to vote against the Union by describing
the latter's strike history, but Perdue also clearly
and equivocally stated as an integral part of his
speech the Respondent's willingness to bargain in
good faith with the Union and the fact that strikes
are by no means inevitable. Accordingly, we con-
clude that Perdue's speech did not exceed the
bounds of permissible campaign conduct. 7 We
therefore find that Perdue's speech neither violated
the Act nor interfered with the election.
3. As indicated above, the judge also dealt with
the interrogation of many employees by a number
of supervisors 14 May. On learning of this admit-
tedly coercive conduct 4 days later, Cox posted on
company bulletin boards and mailed to all employ-
ees a disavowal notice spelling out employee rights
under the Act and pledging that employees would
not in the future be asked how they were going to
vote. On the same day, the Respondent directly
communicated in detail the contents of the notice
at group meetings on each shift. At these meetings,
each supervisor involved in the unlawful conduct
individually came forward before the group and
announced, "I understand and commit to the prin-
ciples set forth in the notice."
The judge found, and we agree, that by such ac-
tions the Respondent effectively repudiated the su-
pervisors' conduct and consequently did not violate
Section 8(a)(1) of the Act.8 However, the judge
I Sec. 8(c) provides in pertinent part as follows: "The expressing of
any views, argument, or opinion, or the dissemination thereof . shall
not constitute or be evidence of an unfair labor practice under any of the
provisions of the Act, if such expression contains no threat of reprisal or
force or promise of benefit."
7 Daniel Construction Co., 264 NLRB 569 (1982); Butler Shoes New
York, 263 NLRB 1031 (1982).
The following cases cited by the judge are inapposite: Grove Valve &
Regulator Co., 262 NLRB 285 (1982), in which the employer emphasized
the inevitability of a strike and threatened the loss of strikers' jobs and
plant closure in the context of other 8(a)(l) violations; Liquid Transportr-
ers, Inc., 257 NLRB 345 (1981), in which the employer created the im-
pression that the loss of jobs would be the direct result of unionization of
its employees; and General Dynamics Corp., 250 NLRB 719 (1980), in
which the employer left no doubt that bargaining would be futile.
Member Dennis does not reach the question whether these cases were
correctly decided.
8 Indeed, the judge stated, "[I]t is difficult to perceive what more Re-
spondent could have done to repudiate the unlawful questioning by its
supervisors." JD, slip op. at 23.
926
AGRI-INTERNATIONAL INC.
reasoned that the repudiation, while sufficient to
avoid a finding of violation of the Act, did not pro-
vide a sufficient lapse of time to dispel any linger-
ing vestiges of coercion and hence interfered with
the employees' free choice in the election. We
deem that reasoning to be faulty. If, as the judge
correctly concluded in dismissing the 8(a)(1) allega-
tion, the Respondent effectively disseminated and
communicated to its employees its strong disavow-
al of the interrogation and gave assurances that
there would be no repetition of conduct interfering
with the exercise of the employees' Section 7
rights, it follows that in wiping the slate clean by
its disavowal the Respondent restored in timely
fashion the laboratory conditions which permitted
the holding of a valid election. We therefore find,
contrary to the judge, that as a result of the Re-
spondent's disavowal the interrogation did not
interfere with the election.
4. We turn now to the question whether the Re-
spondent, whose campaign conduct did not violate
Section 8(a)(1) of the Act or interfere with the
election, has as a successor employer an obligation
to bargain with the Union despite its defeat in the
election. It is well established that a successor's ob-
ligation to bargain with an incumbent union is
based on a rebuttable presumption of the latter's
majority status.9 That presumption may be over-
come by proof that a union did not enjoy majority
status at the time of the successor's refusal to bar-
gain. As the Respondent did not engage in any un-
lawful or objectionable preelection conduct, we
find that the valid election herein constituted proof
that the Union in fact did not possess majority sup-
port and that consequently the Respondent had no
bargaining obligation. '0
In view of the foregoing, we conclude that the
Respondent did not interfere with the election or
violate Section 8(a)(1) and (5) of the Act. We shall
therefore certify the results of the election and dis-
miss the complaint. 11
ORDER
The complaint is dismissed.
9 See Grico Corp., 265 NLRB 1344 (1982); Merchants Delivery Service,
230 NLRB 290, 295 (1977); Barrington Plaza, 185 NLRB 962 (1970), enf.
denied on other grounds 470 F.2d 669 (9th Cir. 1972).
10 See Irving Air Chute Co., 149 NLRB 627 (1964), in which the Board
found, inter alias, that in the absence of meritorious objections it would
not grant a bargaining order with respect to a labor organization which
loses an election.
I In light of this conclusion, Member Dennis finds it unnecessary to
pass on the issues whether the Union's demand for recognition continued
until after the Respondent became a successor to Swift and whether the
Respondent ever rejected that demand. Since Member Hunter finds that
the Union failed to attain majority status, he does not pass on the above
issues.
CERTIFICATION OF RESULTS OF
ELECTION
IT IS CERTIFIED that a majority of the valid bal-
lots votes have not been cast for UFCW District
Union 433, affiliated with UFCW International
Union, AFL-CIO-CLC, and that it is not the ex-
clusive representative of these bargaining unit em-
ployees.
MEMBER ZIMMERMAN, dissenting.
For the reasons set forth in the judge's decision,
I find that the Respondent violated Section 8(a)(1)
by implicitly promising its employees benefits and
by threatening them with the futility of selecting
the Union and with the inevitability of strikes-all
to discourage employee support for the Union.
Consequently, I agree with the judge that the elec-
tion was tainted and that its results cannot serve to
rebut the presumption of the Union's majority
status. Accordingly, I would find, as the judge did,
that the Respondent violated Section 8(a)(5) and
(1) by refusing to recognize and bargain with the
Union. In making these findings, I find it unneces-
sary to pass on the issue of whether the superviso-
ry interrogations of employees on 14 May 1982
were adequately remedied by the subsequent notice
posted by the Respondent.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge.
This case was heard at Douglas, Georgia, on July 27-29,
1983. The charge in Case I0-CA-18359 was filed by
UFCW District Union 433, affiliated with UFCW Inter-
national Union, AFL-CIO & CLC (the Union) on July
14 1982,1 and a complaint and notice of hearing issued
thereon on September 2, alleging violations of Section
8(a)(1) of the National Labor Relations Act, by Agri-
International Inc., a Wholly Owned Subsidiary of Gold
Kist, Inc., d/b/a Golden Poultry Co. (Respondent or the
Company). An amended complaint issued on June 13,
1983, alleging that Respondent also violated Section
8(a)(5) of the Act.
The pleading with respect to Case 10-RC-12589 re-
flect that the petition was filed by the Union on March
26, that a Stipulation for Certification Upon Consent
Election was approved on April 16, and that an election
was held in the stipulated appropriate unit2 on May 27.
All dates hereinafter are in 1982 unless otherwise stated.
2 The stipulated unit which is also set forth in the amended complaint
and which I find herein to be an appropriate one for the purposes of col-
lective bargaining within the meaning of Sec. 9(b) of the Act is: "All pro-
duction and maintenance employees, including plant clerical employees
and truck drivers at the Employer's Douglas, Georgia, feed mill and
poultry processing facilities, excluding office clerical employees, quality
assurance employees, guards and supervisors as defined in the Act."
927
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Of approximately 352 eligible voters 158 valid votes
were cast for, and 172 against, the Union with 1 void
ballot and 4 challenged ballots which were not determi-
native. The Union on June 1 filed objections to the elec-
tion and on July 21 the Regional Director for Region 10
of the National Labor Relations Board, the Board, issued
a report on objections finding Objections 2 and 4 raised
material and substantial issues which could best be re-
solved at a hearing. On August 10 the Board adopted the
Regional Director's findings and issued an order direct-
ing hearing. Concluding that the objections were coex-
tensive with certain allegations in the original complaint
in Case 10-CA-18359 the Regional Director on Decem-
ber 21 issued an order consolidating Case 10-RC-12589
with Case 10-CA-18359 for hearing.
The cases present issues with respect to whether Re-
spondent engaged in violations of Section 8(a)(l) of the
Act or otherwise engaged in conduct providing a basis
for valid objections to the election by: (1) threatening in
speeches to employees that it would be futile to join or
select the Union; (2) threatening employees in speeches
that it would reduce benefits by commencing bargaining
from the minimum wage or negotiate less benefits for
employees than they then enjoyed; (3) threatening em-
ployees with plant closure and the inevitability of strikes
and violence if they selected the Union to represent
them; (4) promising its employees improved benefits if
they rejected the Union; and (5) interrogating its employ-
ees concerning their union membership, activities, and
desires. The alleged violation of Section 8(a)(5) in the
amended complaint raises the issue of whether Respond-
ent's conduct warrants the entry of a bargaining order
based on a persumption of the Union's majority status
flowing from its status as bargaining representative of
employees of Respondent's predecessor, a majority of
whom compose the employee complement hired by Re-
spondent.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filled by the General Counsel, the Union, and
Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Georgia corporation with an office
and place of business located at Douglas, Georgia, where
it is engaged in the processing of poultry and feed.
During the calendar year preceding issuance of the com-
plaint Respondent sold and shipped from its Douglas,
Georgia plant finished products valued in excess of
$50,000 directly to customers located outside the State of
Georgia. The complaint alleges, Respondent through its
answer admits, and I find that Respondent is an employ-
er engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
The complaint further alleges, Respondent also admits,
and I find that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II1. THE ALLEGED UNFAIR LABOR PRACTICES AND
OBJECTIONABLE CONDUCT
A. Material Facts
1. Respondent's status as a successor to Swift &
Company and the Union's efforts to seek
recognition
The parties entered into a stipulation that on January
20, 1982, Respondent and Swift & Company, herein
Swift, closed on an agreement of sale for the purchase
by Respondent of Swift & Company's Douglas, Georgia
facility including the production equipment, inventory,
and other assets of the plant. Swift, whose employees in
a production and maintenance unit had been represented
by the Union and covered by a collective-bargaining
agreement effective from February 5, 1979, to February
1, 1982, ceased operation of its Douglas facility on Janu-
ary 15 and terminated its employees. Respondent, begin-
ning on or about January 20, engaged in the same busi-
ness operations as Swift at the same location, providing
the same sevices to substantially the same customers, and
employing as a majority of its employees employees who
previously worked for Swift in the production and main-
tenance unit.
The complaint as amended alleges, and Respondent in
its answer denies, that Respondent was a successor of
Swift at the Douglas facility. Respondent did not argue
the point in its brief and cited no authority which would
reflect that based on the foregoing facts Respondent was
not Swift's successor. The traditional standard utilized by
the Board in determining successorships is whether there
is "a substantial continuity in the employing industry."
See Jeffries Lithograph Co., 265 NLRB 1499 (1982); Air-
craft Magnesium, 265 NLRB 1344 (1982); Premium
Foods, 260 NLRB 708 (1982), enfd. 113 LRRM 3261 (9th
Cir. 1983). The burden is on the General Counsel to es-
tablish the continuity of the employing enterprise. Where
there is such continuity there is a presumption that the
majority status of a union under the predecessor, as
shown by a collective-bargaining agreement, continues
under the successor unaffected by the change in owner-
ship Aircraft Magnesium, supra. Factors considered in de-
termining successorship are continuity in: (I) business op-
erations; (2) physical plant; (3) work force; (4) jobs and
working conditions; (5) supervisors; (6) machinery,
equipment, and methods of production; and (7) products
and services. Not all these factors are necessary for a
finding of a continuation of the employing industry,
hence successorship. Georgetown Stainless Mfg. Corp., 198
NLRB 234 (1972).
Based on the stipulated facts set forth above I have no
difficulty in concluding that Respondent was a successor
to Swift. I conclude that the employing industry was ba-
sically unchanged by the change in ownership. There
was a slight hiatus of about 5 days between the time
Swift ceased operations and Respondent began them.
Such a hiatus is immaterial, however, because it was of
such short duration that it could have had no impact on
the former Swift employees' expectations of rehire. Ac-
cordingly I conclude that Respondent was a successor of
928
AGRI-INTERNATIONAL INC.
Swift, so that a legal basis exists for the presumption that
the Union's majority status at Swift continued under Re-
spondent. 3
John Lee, secretary-treasurer and business manager of
the Union, testified that having heard that Respondent
was in the process of purchasing Swift he telephoned
James Perdue, Respondent's director of labor relations,
on January 14 or 15. Perdue acknowledged to Lee that
Respondent's board of directors would be meeting
within a week to decide whether to go through with the
purchase of Swift. Lee testified he told Perdue that the
Union was the certified bargaining agent at Swift and
they desired to be recognized as the bargaining agent
upon Respondent's purchase of Swift. According to Lee,
Perdue responded that he felt Respondent would recog-
nize the Union as the bargaining agent upon the employ-
ment of over 50 percent of Swift's employee force.
Perdue in his testimony for Respondent admitted the
telephone conversation with Lee, but denied any specific
request by Lee to meet and bargain with the Union.
Rather, according to Perdue, after discussing the pending
purchase of Swift, Lee referred to the expiring collec-
tive-bargaining agreement with Swift and said he would
like to know who he would be negotiating with or
words to that effect. Perdue assertedly responded that
there was no point in discussing bargaining since Re-
spondent did not know if it would have any employees
in Douglas. The conversation closed with Lee asking
Perdue to let him know something as soon as he heard
anything.
Lee's testimony regarding his request of Perdue was
clear and unambiguous and impressed me as credible.
Moreoever, it appears to be supported by a letter of
Perdue to Lee dated January 15 in which Perdue stated
an obvious response to Lee's call:
This letter is being sent to you as a courtesy to
inform you that Gold Kist Inc., is in the process of
purchasing the assets of Swift Independent Packing
Company operations in Douglas, Georgia. We are
not agreeing to assume the collective-bargaining
agreement you have with Swift, nor are we agree-
ing to recognize you as the bargaining representa-
tive of our employees.
Perdue did not specifically deny Lee's testimony re-
garding recognition of the Union upon Respondent's
hiring over 50 percent of Swift's work force.
The next communication between Respondent and Lee
took place on January 29 according to Lee. Lee testified
Perdue telephoned him on that date and advised him that
Respondent was experiencing financial difficulties and
would be seeking concessions from the Union where the
Union was recognized by Respondent at other of its
plants.4 Perdue reported he had met with Roy Williams,
s The record herein reflects that many of Swift's employees had au-
thorized union dues checkoff, and that of the 352 unit employees on Re-
spondent's payroll ending April 23 (the Excelsior list) 270 had been
former Swift employees who had authorized the checkoff of dues while
last employed at Swift.
4 It is undisputed that Respondent and other locals of the Union had
collective-bargaining agreements covering employees in Respondent's fa-
a district director of the Union, and the "question" about
Douglas, Georgia, came up. Lee testified that Perdue
then "indicated" Respondent would recognize the Union
at Douglas upon hiring more than 50 percent of Swift's
old employees, but then inquired of Lee's opinion about
a union authorization card check. Lee indicated his will-
ingness to undergo a card check and suggested a local
minister. Apparently, no decision was reached on the
matter, however.
Lee testified he next talked to Perdue on February 4
when Perdue called Lee and told him he had not gotten
the concessions from Williams that he had sought.
Perdue then "indicated" that Respondent would not co-
operate with the Union in Douglas and would "fight"
the Union in Douglas as a result of not getting coopera-
tion.
Perdue acknowledged only the February 4 conversa-
tion with Lee. He admitted that he had sought some eco-
nomic concessions from Williams concerning a wage in-
crease for Trussville, Alabama, employees of Respondent
which was to be effective on January 31. To this end
Perdue met with Williams and another union official on
February 1. Perdue found the Union's proposals on con-
ditions of any concession to be unacceptable. One such
condition proposed by Williams, according to Perdue,
was that Respondent recognize the Union at Douglas on
the basis of a card check. Perdue made no response to
the Williams proposal in this regard. Thereafter, Perdue
made the February 4 call to Lee, related his unsuccessful
attempt to get concessions from Williams, and reported
to Lee Williams' suggestion about a card check at Doug-
las. Perdue testified that while he and Lee discussed who
might be appropriately used to conduct a card check at
Douglas no conclusions were reached and no arrange-
ments were made for a card check. Perdue specifically
denied that he told Lee that he would have to fight the
Union at Douglas in view of Williams' failure to grant
Respondent concessions at its Trussville plant. On the
other hand, however, he admitted that he told Lee, in
effect, that Williams had defecated in his outstretched
hand and someday Perdue would fling it back on him.
Lee impressed me as an honest and sincere witness.
However, his testimony at some points was hesitant and
equivocal, and he exhibited uncertainty in recall regard-
ing dates and the full content of all his conversations
with Perdue. Perdue exhibited more certainty in his
recall, but on cross-examination he was on occasion coy
and evasive. Some truth may be found in the testimony
of both men. However, although I have credited Lee re-
garding the content of his first call to Perdue, because of
Lee's uncertainty regarding the next call, I conclude that
there was no call from Perdue to Lee on January 29.
There would apparently be no purpose for such a call
since Perdue was seeking concessions at that point in
time from Williams rather than Lee. Moreover, while
Lee testified that Perdue in that call referred to having
met with Williams, such a meeting did not take place
until February 1. Accordingly, it is more likely that
cilities at Live Oak, Florida; Durham, North Carolina; Jasper, Texas;
Trussville, Alabama; and Athens, Georgia.
929
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there was only one call to Lee, the one on February 4,
as Perdue claimed, and after Perdue's meeting with Wil-
liams.
I also find it unlikely and do not credit Lee's further
testimony that Perdue stated in either a Janaury 29 call
or the February 4 call that Respondent would recognize
the Union at Douglas on hiring 50 percent of Swift's em-
ployees. Based upon the stipulation of the parties herein,
Respondent on January 20 had already hired a majority
of Swift's employees. Thus, notwithstanding the uncon-
tradicted testimony of Lee regarding an identical remark
by Perdue on January 15 before employees had been
hired, it is improbable that Perdue on February 4 would
have expressed a willingness to recognize the Union
based on a condition which had already been met. More-
over, the expression of such a willingness would have
made superfluous any discussion of the conduct of a card
check which both witnesses agree was part of the con-
versation.
Finally, Perdue's version of his remarks to Lee about
Williams' response to Perdue's outstretched hand strikes
me as more accurate than Lee's. It would appear unrea-
sonable for Perdue to advise Lee that Respondent was
going to "fight" the Union at Douglas at the same time
he was discussing with Lee, and not specifically reject-
ing, a card check. Accordingly, I find and conclude that
Perdue did not state that Respondent was going to fight
the Union at Douglas because of Williams' rejection of
Respondent's requested concessions at other locations.
This conclusion, however, is not dispositive of Respond-
ent's obligation to recognize and bargain with the Union
under the Act which might otherwise attach by virtue of
its status as a successor to Swift.
Lee testified that he was unaware of the legal princi-
ples involving successorships when Respondent pur-
chased Swift. Presumably, therefore, he was unaware of
any obligations on the part of Respondent to recognize
the Union when a majority of its employee complement
was composed of employees of Swift who were repre-
sented by the Union. Accordingly, beginning around
January 29 the Union undertook an authorization card
signing campaign among Respondent's employees. By
letter dated March 22 Lee advised Perdue that the Union
had been requested "by what is believed to be a majori-
ty" of the company's employees in the Douglas plant
hatchery and feed mill to "recognize" the Union as the
collective bargaining agent for wages, benefits, and
"other conditions of employment." The letter further ad-
vised that the Union was filing a "petition for representa-
tion" with the Board.
Following the filing of the petition, Lee along with
union representatives Charles Arlove and Chuck Wil-
liams met with Respondent's attorney, James Edwards,
and reached an agreement regarding the conduct of the
election and the unit in which the election was to be
held. Although the Union had represented the hatchery
employees at Swift upon Edwards' objection to their in-
clusion in the unit on the basis of their alleged agricultur-
al employee status, the Union agreed to their exclusion.5
I According to Lee, the hatchery employed approximately 35-40 em-
ployees. I find, as argued by the General Counsel, this unit change leav-
As already noted the election was held on May 27.
The Union lost, also as noted. The conduct of Respond-
ent which the General Counsel contends violated Sec-
tion 8(a)(l) of the Act, and the Union contends inter-
fered with the election, must now be considered fol-
lowed by the General Counsel's and Union's arguments
regarding the alleged 8(a)(5) violation.
2. The speeches of Jerry Cox and James Perdue
Respondent General Manager C. Jerry Cox admittedly
conducted a series of mini-meetings with employees be-
ginning about May 6. The complaint alleges that Cox in
his speeches to employees promised employees improved
benefits if they rejected the Union as collective-bargain-
ing representative.6 To establish this allegation the Gen-
eral Counsel relied upon the testimony of three of Re-
spondent's employees, Ethel Hamilton, Minnie Carter,
and Fisher Pope.
Hamilton testified that Larry Paulk, then plant manag-
er for Respondent and formerly plant manager for Swift,
introduced Cox to a group of about 15 or 20 employees
including Hamilton at a meeting to which the employees
had been called in the main plant conference room.
Before introducing Cox, however, Paulk stated, accord-
ing to Hamilton, that all the Swift plants had closed
down because of the Union except for the broiler plant,
and there had been no one to pick up the broiler plant
except for Respondent. Cox then began his remarks. Ac-
cording to Hamilton, Cox stated he had come to Doug-
las to help them, but he could not help them if they had
outside help. He compared the plant with another plant
in town which had higher wages and whose employees
were not represented by a union. Cox asked the employ-
ees to give him a chance and stated that if the Union was
voted in, the doors of Respondent might have to close
and the employees would be without jobs. He added that
if the employees did not vote the Union in he would
promise them that when the Company started making a
profit the employees would start getting better benefits.
Cox was asked how long that would take, and he replied
that it would be 2 to 6 months.
Hamilton also testified regarding an additional speech
by Cox a few days after the first speech and in the same
place to a similar small group of employees including
Hamilton. In this meeting Cox had 156 $1 bills hung
around the room representing an employee's union dues
for a year. She could recall nothing particular about the
meeting except Cox's remarks about dues being raised
nationwide.
There was a third meeting conducted by Cox and at-
tended by Hamilton about which Hamilton testified. She
related that the third meeting occurred about a week
ing a complement of 350 employees in the production and maintenance
unit was irrelevant and immaterial to Respondent's successorship to
Swift. See Maintenance Inc., 148 NLRB 1299 (1964). I further find such
unit change has no impact upon any obligation of Respondent to recog-
nize and bargain with the Union under the circumstances of this case in-
cluding Respondent's failure to claim that any of its actions herein were
affected by the unit change or other unit considerations.
6 The allegations are coextensive with the Union's objection 4 which
asserted that Respondent "attempted to and did destroy conditions by
which a fair election could be held."
930
AGRI-INTERNATIONAL INC.
prior to the election, and in the meeting Cox talked
about bargaining, and stated if the Union were elected he
would be the one to do the bargaining, that the employ-
ees would not get anything the Company was not able to
give them, that even if the Company had to bargain with
the Union they did not have to come to any "decision,"
that they could bargain for a year and referred to a com-
pany in Valdosta where the union and employer bar-
gained for a year and the employees got mad and threw
the union out.
Finally, at an even later meeting, Cox showed employ-
ees television tapes of a newscast reporting union vio-
lence and strikes and showing bombings and killings.
Hamilton related that union people were the cause of
this, that U.F.C.W. was responsible for some it, and
asked why the employees wanted these people in the
plant.
Minnie Carter testified regarding a meeting she attend-
ed along with about 20 other employees 2 to 3 weeks
before the election at which Cox spoke. She said Cox
had one dollar bills hung around the room and Cox said
that this was the amount of money they would have at
the end of the year instead of giving it to the Union. Cox
further stated that if the employees put their trust in him
he could give them more benefits later adding that the
Union did not have anything to give the employee and if
they got anything it would come from the Company.
Carter further vaguely testified that Cox said "some-
thing" about strikes in different places, and how people
go out on strikes and are replaced, and they would lose
their jobs. Further, "something" was said "about the
Teamsters affiliating with the Mafia, or something, you
know, violence, striking, and things like that."
Pope's testimony was generally consistent with
Carter's. He related the first meeting he attended at
which Cox spoke was the meeting where the dollar bills
were posted around the room. Cox stated that the money
could be theirs if the Union did not come in and that all
the Union wanted was the employees' money. Next Cox
showed the employees some films about people losing
their jobs and stated that a lot of people lost their jobs
when they went on strike and he said it had happened in
other places. Cox further stated, Pope claimed, that there
could be a strike at the Company if the Union was voted
in, and he said there was violence in other places during
strikes.
Pope testified concerning an additional meeting con-
ducted by Cox which Pope claimed took place several
days after the first one. In this meeting Cox showed films
"about different things happening in different places,
about the Union, voting and fighting and stuff." While
Cox made comments in addition to showing the films
Pope could not recall what he said. Pope could not
recall Cox stating in any meetings Pope attended that the
employees would receive more benefits if there were no
union.
Cox, testifying for Respondent, specifically denied the
remarks attributed to him by Hamilton, Carter, and
Pope. He acknowledged that he conducted group meet-
ings with small groups of employees on four different oc-
casions, during which he spoke to employees about the
Union. The first group of meetings took place on about
May 6 with subsequent meetings taking place about May
14, 21, and 25. Although he conceded that Paulk talked
briefly at the first meetings on May 6, he denied that
Paulk stated that Swift closed because of the Union.
After verbally outlining what he stated to employees at
the May 6 meeting, he identified a prepared text of his
remarks which he testified he followed word for word
even though he did not specifically read the entire
speech. That portion he did not read, Cox testified, he
memorized and related from the prepared text. Similarly,
Cox identified written remarks he delivered to employees
on May 14, and testified he followed the written remarks
insofar as practical in the same manner as in the prior
speech but using visual aids displaying news articles, ex-
cerpts from Board and court decisions, and wage com-
parison data.
With respect to Perdue the complaint alleged that, in a
speech to employees about May 20, Perdue threatened
employees that it would be futile to join or select the
Union since Respondent would not grant employees ben-
efits additional to those it was willing to give anyway,
threatened employees that Respondent would reduce
benefits by starting any bargaining with the Union at
minimum wage, and threatened employees with plant
closure and the inevitability of strikes if the Union was
selected as the employee bargaining representative.7 The
General Counsel relied on Hamilton, Carter, Pope, and
two other employees, Willie Williams and Nathaniel
Dunnom, to establish the allegations.
Respondent concedes Perdue gave a speech to em-
ployees in a series of meetings with small groups of em-
ployees on May 19. Hamilton testified that Perdue, using
a projector and slides, talked to employees about strikes.
More specifically, Hamilton related that Perdue showed
a picture of an old bus which he called "Old Faithful"
and which he stated he used to transport striker replace-
ments across a picket line at one of Respondnet's plants.
Perdue stated, according to Hamilton, that if the Union
were voted in at Douglas a strike was a possibility, and
added that strikers did not get any benefits. Perdue went
on to stress the fact that if employees went on strike they
could be permanently replaced. He also talked about
houses being burned during strikes and about a crippled
man making deliveries across a picket line who was
beaten by strikers and later died.
In her testimony Carter related that at the Perdue
speech which she attended Perdue told employees he
hoped he would not have to sit down and bargain with
the Union, that bargaining could last a year and they still
would not have a contract. Perdue added that he would
give employees more or better benefits later, but he
would not want anyone to try to make him give employ-
ees anything. Perdue, still according to Carter, also said
that if he had to go to the bargaining table he could start
off bargaining at "minimum wages." With respect to
strikes Perdue showed a picture of a bus and explained
how it was used to carry nonstrikers and how it pushed
a car aside to cross a picket line. There was further
showing by Perdue of newspaper clippings about strikes
I These allegations are also coextensive with the Union's Objection 4.
931
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and violence associated therewith such as car and home
bombings. Finally, Perdue displayed a list of 87 employ-
ees at another of Respondent's plants with check marks
by the names of those employees who were replaced and
unable to get their jobs back at the conclusion of a strike.
Elements of the testimony of Hamilton and Carter
found support in the testimony of Dunnom. Thus,
Dunnom testified that in Perdue's speech Perdue showed
a bus taking "strikers" from one place to another and re-
lated that the bus had hit a car carrying strikers. With
respect to the listing of replaced strikers at Valdosta,
Dunnom related Perdue showed the replaced strikers
with an x by their name and stated John Lee was repre-
senting these people and did not any one of them get
their jobs back.
It was Pope's testimony that Perdue in the speech to
his group stated that if the Union was voted in the Com-
pany would negotiate in good faith but added that he
could not guarantee that they would reach an agreement.
Further in this regard Perdue stated that negotiations
would not start from the employees' present pay and ex-
plained that it could "go down" to minimum wage. Pope
confirmed 'that Perdute spoke also of strikes and showed
slides of strike violence, fighting, and riots. Perdue de-
scribed his experience of driving a bus transporting non-
strikers during a strike and colliding with a car of strik-
ers. Finally, Perdue pointed out that strikers could possi-
bly be replaced. Asked by an employee if the plant
would close in the event of a strike Perdue responded
that it was a possibility. Pope testified that he asked
Perdue what employees would get if the Union were not
voted in and Perdue replied that he could not give Pope
an answer and told him to ask someone in the hatchery.8
Williams testified that Perdue told his group that if
they voted for the Union the only thing the Union had
against the Company was a strike, but that the Union
could not force the Company to do anything. In connec-
tion with a strike Perdue stated that the Company would
keep working with nonstrikers and bring in chickens
from other places the Company ran or it could go out of
business. Further in connection with the subject of
strikes, Perdue showed newspaper clippings of strike vio-
lence involving shootings and one killing of a trucker in
North Carolina.
While Perdue in his testimony for Respondent admit-
ted to the meetings with employees on May 19, he spe-
cifically denied the remarks attributed to him by the
foregoing witness. He conceded, however, that he did
discuss strikes, showed transparencies of newspaper arti-
cles, and did refer to some strike violence. Perdue testi-
fied that he closely followed a written speech during his
talks to the employees and that written speech as well as
copies of the transparencies shown by Perdue were re-
ceived in evidence herein. Perdue related that he specifi-
cally read to employees those underlined portions of his
speech which related to the particular transparencies
which were being shown. Perdue admittedly had shown
P8 ope related that he subsequently asked someone at the hatchery and
was told by an unidentified employee that hatchery employees got an
extra holiday. No other record evidence substantiates any difference in
benefits existing between hatchery and plant employees.
a transparency listing Valdosta, Georgia employees with
an x by the name of such employees who had struck and
been replaced. His written remarks reflect that about 87
such employees had never returned to work at any time
after the strike concluded. It was conceded by Perdue
that more than half of his speech to employees on May
19 was devoted to the subject of strikes. The transparen-
cies shown clearly emphasized strike violence and the re-
placement of employees. However, Perdue's written ver-
sion of his speech clearly pointed out that replaced strik-
ers remained employees of the Company and were "simi-
lar to laid off employees" who could get back into the
company if and when permanent replacements left.
Although only briefly alluded to in the written version
of his speech Perdue confirmed that he talked about
"Old Yellow" in his remarks to the employees. He ex-
plained to them that Old Yellow was a bus which he had
personally driven while transporting nonstrikers across a
picket line, and he related how strikers beat on the bus
and threw rocks and sticks at it while it was crossing the
picket line. Perdue further related to the employees
about the bus having a collision with an automobile
driven by strikers who tried to block the bus at a time
when it had no passengers and was being driven back to
a storage area.9
Credibility of the various witnesses is important to res-
olution of the allegations of the complaint. Cox generally
impressed me as a credible witness with good recall and
obvious sincerity. Although as noted, Perdue exhibited
some coyness in testifying he appeared to have a good
recall of his speech and the union campaign generally. I
believe he was truthful. Moreover, Cox and Perdue were
corroborated by employees Fernell Carter, Mary Jane
Goolsby, Sandra Chaney, Marilyn Gaskie, and Cora
Mizell. All these employees testified they attended the
speeches of Cox and Perdue, and with the exception of
Fernell Carter they identified the written remarks of
both Cox and Perdue as the remarks, to their recollec-
tion, that were made by Cox and Perdue in their speech-
es. Although one may entertain suspicions above the
ability of employees to identify the entire content of
rather lengthy employer speeches delivered more than a
year earlier, the Respondent's employee witnesses con-
veyed an overall impression of sincerity in their testimo-
ny. In addition, from other records received in evidence
it appears that at least Fernell Carter and Mizell had for-
merly been union members while employed at Swift and,
thus, could not be suspected of bias against the Union.
Indeed, Fernell Carter was even a former steward for
the Union.
The General Counsel's witnesses, on the other hand,
exhibited some confusion in recall which is not surprising
considering the number of speeches to which they were
subjected. As a group the General Counsel's employee
witnesses were not impressive. Hamilton was particularly
unimpressive as a witness. She testified in a somewhat
hesitant manner at times, and at other times she testified
as if she had memorized what she was to testify to rather
9 Apparently, the use of "Old Yellow" is chronicled in Gold Kist, Inc.,
245 NLRB 1095 (1979).
932
AGRI-INTERNATIONAL INC.
than from a present recollection. On cross-examination
she appeared defensive and belligerent. Finally, Hamilton
had given a wrtten statement regarding Cox's speeches
to Respondent's attorney prior to the hearing. In that
statement she attributed to Cox none of the remarks she
testified about herein. In fact in that statement she denied
that Cox had said that the "people would receive more if
they rejected the Union," and added that if Cox had
made such a remark it would have stuck in her mind.
Minnie Carter also had an unimpressive recall. She ap-
peared tentative, uncertain, and lacking in conviction in
her testimony. Pope was hesitant and at times vague on
cross-examination. Williams' testimony was very brief
and largely consistent with Perdue's testimony, and the
written version of Perdue's speech. Dunnom's testimony
also was not inconsistent with Perdue's or Perdue's writ-
ten version of his speech. Finally, it is to be noted that
the General Counsel's witnesses were never confronted
with the written versions of Cox's and Perdue's remarks,
and thus, did not specifically deny that the language in
such versions was not in fact the language used in the
speeches.
Considering all the foregoing, and keeping in mind the
tendency of witnesses in general to testify as to their im-
pressions or interpretations of what they heard rather
than attempting a verbatim account, as well as the tend-
ency of a speaker testifying about his own remarks to
relate what was said or intended in more explicit lan-
guage than that actually used, I find and conclude that
the testimony of Cox and Perdue, supported by the writ-
ten versions of their speeches, is more accurate, credible,
and reliable. I therefore credit their testimony regarding
their respective speeches where it contradicts that of
other witnesses.
Crediting Cox and Perdue does not resolve the issue of
whether their admitted comments violated Section
8(a)(l) or otherwise constituted objectionable conduct.
Their comments require close scrutiny. Such scrutiny
provides no support for the contention that Respondent
threatened that bargaining would start from minimum
wage. Rather it was made clear that benefits could go up
or down as a result of bargaining. Such a statement was
truthful and amounted to nothing more than a noncoer-
cive expression of opinion. See Brooks Bros., 261 NLRB
876 (1982). Accordingly, I find no merit to the complaint
allegation that Respondent violated Section 8(aXl) by
threatening to start negotiations from minimum wage.
Further examination of the speeches of Cox and Perdue
reflect that they were hard-hitting and forcefully deliv-
ered at the repeated small group meetings of employees.
But the Board has held that "[a]ny party to an election
has a right to conduct a vigorous campaign in support of
its position, including the utilization of individual and
group meetings with employees." St. Francis Hospital,
263 NLRB 834 (1982). The Board has further refused to
find that employer statements which individually are not
objectionable become objectionable by virtue of their
repetition. Id. See also Blue Cross of Kansas City, 259
NLRB 483 (1981). And the Supreme Court has stated in
NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969),
"[ain employer is free to communicate to his employees
any of his general views about unionism or any of his
specific views about a particular union, so long as the
communications do not contain a 'threat or reprisal or
force or promise of benefit."'
Considering Cox's speeches first it must be noted that
his first speech on May 6 or 7 was a brief one describing
how he came to Douglas and explaining that Respondent
had to structure Respondent at Douglas "conservatively
in such a way that its chances of surviving were great-
est," but reminding employees that "if we do not suc-
ceed here and go out of business this plant will never be
reopened." Cox explained what factors he had found in
the Swift operation which he did not like and sought to
change. Cox stated that he was attempting to make the
plant a "we" company and emphasized the importance of
working together. Cox further asked employees to "give
this situation [the plant's operation without a union] a
chance to succeed and you won't be sorry."
He cautioned employees that union bosses from the
north wanted to suck blood money out of the employees
as they had in the past and concluded the speech stating:
I'm counting on you not to let them do it. And I'm
urging you as strong as I know how to let us con-
tinue our program here to its conclusion before you
even consider giving the union bosses from up
north the opportunity to get in your wallet again.
You owe yourself that much.
As can be seen, the speech was an aggressive one.
While Cox asked for a chance for his program to suc-
ceed prior to employees selecting the Union, such re-
quest does not constitute objectionable conduct. The
Union in its brief cites Royal Petroleum Corp., 243 NLRB
508 (1979), to support the proposition that an employer's
suggestion that employees wait a year before voting the
union in constitutes objectionable conduct. The Union
would apply this precedent to Cox's speech as well as to
the suggestions of the supervisors to employee Dunnom
as set forth, infra, so as to qualify those statements as ob-
jectionable conduct. I find Royal Petroleum applicable
here. In that case the Board found that a "give us a
chance-try it in a year" statement was objectionable be-
cause, in the context of other objectionable conduct in-
cluding promises of unspecified benefits, it conveyed a
promise of future benefits if the employees rejected the
union. In the instant case not only does Cox's speech set
forth that the employees will not be sorry if they give
Respondent a chance, but considered in context with re-
marks in his second speech, an implicit promise of bene-
fit becomes clearer. Thus, in his second speech in which
he emphasized that economics and productivity deter-
mined employee pay and benefits Cox stated:
Now as I told you our pay and benefits here are not
the best in the Gold Kist organization but remem-
ber our plan is to make positive changes here as
soon as practical to bring this plant into the main
stream of Gold Kist so far as pay and benefits are
concerned.
The employees asked to give Respondent a "chance"
were not likely to overlook the implications that Re-
933
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent would make their wait worthwhile by bringing
them into the "mainstream" of Respondent's overall pay
and benefits programs. It is easy to understand how some
of the General Counsel's witnesses interpreted Cox's re-
marks as promise of subsequent benefits if they rejected
the Union. I conclude therefore that these portions of
Cox speeches constituted an implied promise of benefits
which violated Section 8(a)(l) of the Act. I also find that
Cox's comments, in this regard a fortiori, constituted ob-
jectionable conduct which interfered with the election.
Examination of the remainder of Cox's second speech
reveals, in my view, no objectionable or unlawful mate-
rial. Thus, Cox reviewed Respondent's obligations under
the Act with emphasis on Section 8(d) and that portion
which states that neither party to negotiations is requried
to agree to a proposal or to make a concession. Cox as-
serted that, "in running this plant," he would agree to
only those things which he felt were beneficial to the
survival of the plant. He went on to point out that it was
not true that bargaining began with what employees had
and went up. Rather, he explained there was no assur-
ance that wages would be increased by bargaining and
cited Board cases where bargaining had resulted in re-
duced wages and benefits. However, he told employees
not to misunderstand him, adding "I am not saying that
you would necessarily lose," but pointed out the final
result would be determined by negotiation, and that get-
ting a union did not necessarily mean employees would
get more or less. Cox referred to union dues checkoff as
a likely bargaining object of the Union for which the
Union might trade employee benefits, but again remarked
that "No one knows what will happen." The Board has
found statements similar to those contained in Cox's
speech not to constitute objectionable conduct. See St.
Francis Hospital, supra; Brooks Bros., 261 NLRB 876
(1982); Robert Bosch Corp., 256 NLRB 1036 (1981). I find
these portions of Cox's speeches do not constitute objec-
tionable conduct.
Perdue's speech was even more hard-hitting than
Cox's, and he put heavy emphasis on strikes and strike
violence. Moreover, the speech does not appear to have
been responsive to any campaign claims or assertions by
the Union regarding strike action.
Perdue's speech started with an explanation of his
function as director of labor relations, and he stated that
Respondent would have its own personnel manager at
Douglas and its own personnel department "to see that
everybody stays reasonably happy." He explained that
bargaining with a union if one were selected would be
one of Perdue's functions but followed that with an asse-
tion that he, following Cox's guidelines, would not "let
this union push us around at all." However, he added:
I would bargain, if it becomes necessary, in good
faith. If we get a contract-fine. If we don't get a
contract-fine. To me it makes no difference; but
either way, I would do nothing to hurt our chances
of survival.
Perdue went on to state that:
The Union, of course, might try to push us for their
own selfish motives or through bad judgment, like
they have at countless other places throughout the
country by calling you out on strike, but that might
be a mistake on its part.
Thereafter Perdue began a slide presentation of strike
action by the Union at other employers in Georgia.
These slides consisted of graphic newspaper accounts of
arson connected with a strike of the Union in Thomas-
ville, Georgia. Perdue pointed out that as a result of the
strike "permanent replacements were hired and many,
many strikers were not able to come back to work when
the strike was over and could only come back when
openings occurred," and "many have as yet not returned
and may not even seek to return at this point." Perdue
observed:
The violence, the burning of homes, the smashing
of car windows, tacks in driveways, threatening
phone calls-all the things that you have probably
never seen first-hand, and I would assume never
want to see, happened right here in our backyard.
Perdue then talked about a strike in Buford, Georgia,
and projected a newspaper account of a year-old strike
by the Union which was also accompanied by striker re-
placements and violence including tires flattened, and car
windows smashed. Following this Perdue remarked:
So, as you can see, it would be foolish for you to
think we could never have a strike here, even
though we are in the State of Georgia, since history
has shown that the UFCW Union will call a strike
and will call a strike in which all honesty has led to
violence and destruction many times in the past.
Thereafter, Perdue went into the likely effect of a
strike on Respondent, on the pay of union officials, and
on the pay of employees. With regard to the latter
Perdue pointed out that the pay for strikers stopped and
that they could receive no unemployment compensation
under Georgia law. He then preceeded into the rights of
replaced strikers accurately stating such rights, after
which he expressed the hope the employees had a clear-
er understanding of how they would be affected by a
strike at the Company. Perdue said he was informing
employees of the "cold, hard facts" he believed the em-
ployees should be aware of "not because strikes are inev-
itable, but because having no strike is certainly not inevi-
table either."
At this point Perdue explained Respondent's position
on strikes as being opposed to them but not afraid of
them. He cited Swift as being a company which had
given in to the Union's demands ultimately causing plant
closure and loss of jobs. Emphasizing again Respondent's
tough stand, he proceeded into Respondent's strike expe-
rience at other locations including Canton, Georgia.
There it was said Respondent came within an eyelash of
closing the plant down for good. Also, according to Per-
due's remarks:
After the strike, there were only about two dozen
employees called back [out of the 135 original com-
plement]. Not because anyone was trying to punish
934
AGRI-INTERNATIONAL INC.
them, but simply because there wasn't any work to
do.
Bringing the point even closer to home Perdue told
the employees:
WAlong this same line, what would a strike do here?
Hopefully nothing, but an effective strike could kill
the goose tht lays the golden egg so to speak, in
that this plant only has one customer . . . and if
that customer were to leave us, I do not know how,
try as we may, that we could find sufficient work
for this plant to keep it open. That's a sobering
thought and one that we all need to keep in the
forefront of our minds. The short of it is, a strike
could well kill this plant.
There followed detailed accounts by Perdue of strikes
sustained by Respondent in plants in Calhoun, Georgia;
Durham, North Carolina; and Live Oak, Florida. The vi-
olence in these strikes was referred to as well as the fact
that strikers were replaced and "no longer had their
jobs." As already mentioned a list of Live Oak employ-
ees was shown by Perdue with those replaced as a result
of the strike having checkmarks by their names.
Perdue concluded his speech stating that he was not
trying to scare or frighten employees but he wanted
them to know the facts and to not allow them to know it
would be unfair to the employees. He described the lead-
ership of the Union as irresponsible and he saw "no
reason whatsoever that anyone . . . would want to bring
in people that have shown themselves to be irresponsible
and foolhearty [sic] with other people's fate as in the
past."
Perdue's speech in my view closely parallels the
speeches of the employer considered by the Board in
General Dynamics Corp., 250 NLRB 719, 722-723 (1980),
and found to be beyond the bounds of permissible cam-
paign speech. Here there is the same heavy emphasis on
strikes, strike violence, the loss of jobs by the strikers,
and the possibility of a permanent plant closure in the
event of a strike. This clearly created an atmosphere of
fear on the part of the employees, and Respondent's as-
sociation of the Union with the strike activity and vio-
lence had an obvious impact. The ultimate message
could hardly be missed by employees and that message
was that severe and adverse consequences would be a
direct result of unionization. That message was coercive
and prevented, I conclude, the employees from exercis-
ing their free choice in the election. See Liquid Trans-
porters, 257 NLRB 345 (1981).
To be sure, Perdue did include qualifying or disclaim-
ing statements in the speech. Thus, he suggested that
perhaps a strike was not inevitable, but threw in that
having no strike was not inevitable either. Given Per-
due's expressed tough bargaining stance and his assur-
ances that he and Respondent would not be "pushed
around" an unsophisticated employee would most likely
conclude, as I conclude Perdue intended, union selection
would be futile and even if the Union were elected a
strike was more probable than not. Certainly Respondent
ran the risk of this interpretation. As stated by the Board
in Turner Shoe Co., 249 NLRB 144 (1980), quoting from
Georgetown Dress Corp., 201 NLRB 102, 116 (1973):
Communications which hover on the edge of per-
missible and the [im]permissible are objectionable as
"[i]t is only simple justice that a person who seeks
advantage from his elected use of the murky waters
of double entendre should be held accountable
therefor at the level of his audience rather than that
of sophisticated tribunals, law professors, scholars
of the niceties of labor law, or 'grammarians'."
It is true that Perdue claimed in the speech that he
would bargain in good faith. But that claim was over-
shadowed by Perdue's tough bargaining stance revealed
in his assertion that Respondent would not be pushed
around, the emphasis on strikes with the suggestion the
Union was not only prone to strikes but to violent
strikes, the implication that there would be a strike if the
Union was elected, and the conclusionary assertion of
the "sobering thought" to be kept in the "forefront" of
employee minds that "a strike could well kill this plant."
Thus, the expression of the intention to bargain in good
faith considered in the context of the speech as a whole
and considered with Respondent's other coercive con-
duct does not insulate Respondent from the coercive
effect of the speech. Considering the foregoing, I con-
clude that, in context, Perdue's speech did threaten the
futility of union selection and the inevitability of a strike.
By these threats Respondents, I conclude, violated Sec-
tion 8(a)(1) of the Act as alleged. I also find that the
speech created an atmosphere of coercion which inter-
fered with the election process. See Grove Valve & Regu-
lator Co., 262 NLRB 285 (1982). I therefore find merit to
the Union's Objection 4.
3. The alleged interrogation of Nathaniel Dunnom
Dunnom had been employed by Swift prior to em-
ployment by Respondent. Moreover, he had been a night
shift steward for the Union while employed by Swift. He
testified he had supported the Union in its campaign at
Respondent by encouraging employees to vote for the
Union.
Dunnom testified that on May 26 he talked to Richard
Duane Elrod, night-shift superintendent for Respondent,
in Dunnom's work area. According to Dunnom, Elrod
asked him how he felt about the Union, and Dunnom re-
plied that he thought they needed the Union. Elrod next
inquired what Dunnom thought about Cox, and Dunnom
responded that he thought Cox sounded like a nice
person. Elrod then asked why they did not give Cox a
chance, and if things did not go all right they could vote
the Union in next time and adding that they would be
better off without the Union. Dunnom could recall noth-
ing further about the conversation.
It was also Dunnom's testimony that, on the same day
as his conversation with Elrod, Dunnom also had a con-
versation with Lemuel Horton, Respondent's employee
relations manager, at Dunnom's work area. Horton asked
Dunnom how he felt about the election. Dunnom an-
swered that he thought they needed a union.
935
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lastly Dunnom testified that still on the same day as
the conversations with Elrod and Horton he was ap-
proached at his work station by Tommy Rigdon, then a
second-shift supervisor. Rigdon asked Dunnom about the
Union and how Dunnom felt about it. The remainder of
the conversation, as Dunnom related it, was identical to
the conversation with Elrod related above.
The General Counsel and the Union contend that the
questions of Elrod, Horton, and Rigdon constituted un-
lawful interrogation in violation of Section 8(a)(1) of the
Act, as alleged in the complaint. Respondent relies on
the testimony of the three supervisors to rebut the allega-
tion. Thus, Elrod acknowledged that he talked to
Dunnom, but placed the conversation on May 25. He ad-
mittedly inquired of Dunnom what he thought about
Coz but specifically denied that he asked Dunnom how
he felt about the Union or remarked to Dunnom that the
plant would be better off without a union. Elrod testified
that he was aware at the time of the conversation that
Dunnom had been a union steward, and he was also
aware that Respondent had at that time taken specific
steps to remedy supervisory interrogation of employees
discussed infra.
Horton likewise denied he asked Dunnom how he felt
about the election although admittedly talked to
Dunnom 2 to 3 days before the election. Horton denied
asking Dunnom about his thoughts of Cox and, instead,
testified that it was Dunnom who asked him questions
about Cox. Horton conceded that he told Dunnom that
he hoped everybody gave Cox a chance to see what he
could do.
Tommy Rigdon, while generally displaying a poor
recall, admitted that he talked to Dunnom a day or two
prior to the election but denied discussing the union situ-
ation with Dunnom. He also denied asking Dunnom
about the election or how Dunnom intended to vote.
Weighing the testimony of Dunnom on one hand with
that of Elrod, Horton, and Rigdon on the other I credit
the latter. Dunnom appeared confused at times and
contrdicted himself on some points. Thus, on cross-exam-
ination he testified, contrary to his testimony on direct,
that Elrod asked him how he was going to vote. That
claim was contradicted further by a written statement
(given Respondent's counsel prior to the hearing) in
which he said Elrod had not asked him how he was
going to vote. Moreover, he did not in that statement at-
tribute to Elrod any question about how he felt about
the Union. The testimony of Elrod, Horton, and Rigdon,
was straightforward and, based on my perception,
honest. Rigdon in particular had no reason to prevaricate
in his denials since he had been terminated by Respond-
ent in March 1983 and would therefore have no interest
in giving testimony beneficial to Respondent.
Furthermore, it strains credulity that in a unit of over
350 employees the 3 supervisors would pick out a former
union steward, and thus a likely union supporter, to in-
quire of him about his union inclinations. Credulity is
strained to the point of complete disbelief in light of Re-
spondent's vigorous efforts to dispell the effects of some
admittedly coercive interrogation which had occurred
only a few days earlier as discussed below. Accordingly,
I find Elrod, Horton, and Rigdon did not unlawfully in-
terrogate Dunnom in violation of Section 8(a)(1) and I
shall therefore recommend that the complaint allegations
based on Dunnom's testimony be dismissed.
4. The alleged mass interrogation
In addition to the alleged coercive interrogation of
Dunnom the complaint alleges that Respondent through
nine named supervisors and Superintendent Larry Paulk
unlawfully interrogated employees concerning their
union membership activities and desires. This same con-
duct is coextensive with the Union's Objection 2 to the
election. The facts on which the allegation is based are
found in the written stipulation of the parties as follows:
4. On or about May 14, 1982, approximately 75
out of approximately 200 employees on the first
shift were questioned by supervisors Pete Peterson,
Bennie Lee Jandrain, James Threat, Herschell
Smith, Oscar McNeese, James Wright, James Scret-
chen, Lavern Johnson, and Dewey Chaney con-
cerning their vote in the election scheduled for May
27, 1982, and their responses were recorded. If
called to testify, these supervisors would testify that
company officials asked them and they did destroy
any records of employee responses.
5. The above supervisors listed in Paragraph No.
4, if called to testify, would testify that their ques-
tioning of employees was at the direction of super-
visor Larry Paulk who would testify tht at the time
that Mr. Paulk gave these instructions, he was un-
aware that such interrogation was unlawful.
6. Although a number of employees on the first
shift were questioned by the supervisors stated in
Paragraph No. 4, not all employees on the first shift
were questioned and no employees on second or
third shift or the Feed Mill were questioned on
May 14, 1982.
The facts on which Respondent bases its defense to
the illegality of the interrogation were also stipulated by
the parties. Thus, it was stipulated that:
7. Upon learning of the events of May 14, 1982,
General Manager Jerry Cox took the following
action:
(a) All Supervisors and Management personnel
were explicitly informed that conduct such as that
engaged in on May 14, 1982, was unlawful under
the National Labor Relations Act. They were fur-
ther informed that Section 7 of the Act gives em-
ployees the right to form, join or assist unions, to
bargain collectively, and to engage in concerted ac-
tivity.
(b) On May 18, 1982, a notice was posted on all
Company bulletin boards including the Feed Mill
and Hatchery disavowing the conduct of May 14,
1982, pledging that such conduct would not happen
again, and informing employees of their rights. A
copy of this notice is attached to this stipulation as
Exhibit A. This notice remained posted at the plant
for sixty (60) days. In addition, copies were mailed
936
AGRI-INTERNATIONAL INC.
to the Union and to the Regional Office of the Na-
tional Labor Relations Board.
(c) In addition to posting the disavowal notice on
May 18, 1982, Dr. Jerry Cox, General Manager,
and the Respondent's highest official at Golden
Poultry, called a group meeting of all employees on
each shift and read the notice (Attachment A)
aloud.
Although no employees at the Feed Mill were in-
terrogated, since employees at the production plant
had friends and relatives who worked at the Feed
Mill, Dr. Cox met with all Feed Mill employees on
May 18, 1982, and read the notice aloud to all of
these employees.
(d) During the meeting of all first shift employees
in the break room at the plant on May 18, 1982,
after reading the notice (Attachment A) aloud, Dr.
Cox asked each supervisor who participated in the
interrogation on May 14, 1982, to come individually
to the front of the meeting. When each supervisor
came forward individually, Dr. Cox asked the su-
pervisor, "Do you understand and commit to the
principles set forth in this notice?" Each supervisor
responded aloud, "I understand and commit to the
principles set forth in this notice."
(e) A copy of the Notice (Attachment A) was
mailed on May 29, 1982, to all employees of Golden
Poultry in Douglas, Georgia, including the employ-
ees in the Feed Mill and Hatchery.
Attachment A referred to in the stipulation is cap-
tioned "Notice to Employees" and constitutes what Cox
told the employees starting from acknowledgment that at
Paulk's direction named supervisors had asked employees
how they were going to vote in the election. The notice
continues with an assertion that Paulk had not realized
such questioning was unlawful under the Act, expresses
regret about the matter, and gives assurance that it will
not occur again. It goes on to outline employee rights
under the Act, asserts that Respondent recognizes these
"sacred rights," and pledges that it will not ask how em-
ployees are going to vote and that it would not "in any
other manner" interfere with employee rights under the
Act. The notice concludes with the assertion that it
would be posted on all bulletin boards for 60 days and
that copies of the notice, signed by Cox, were being
mailed to the Board's Regional Office in Atlanta, to the
Union, and to each employee.
The General Counsel and the Union assert that Re-
spondent's efforts to repudiate the unlawful conduct
flowing from its questioning of the employees was insuf-
ficient and inadequate to preclude the finding of 8(a)(l)
violation and the entry of an appropriate order by the
Board. In this regard, the General Counsel argues that
Respondent's repudiation was incomplete and ineffective,
and that Respondent failed to comply with its own
notice when it subsequently interrogated Dunnom. The
Union in its brief argues, in effect, that Respondent
planned and intended to violate the Act throught its
questioning of employees with the anticipation that it
could exculpate itself with the Notice, and that in view
of this "sophisticated scheme" its efforts to repudiate the
conduct should be held invalid. In arguing that it had ef-
fectively repudiated its unlawful conduct Respondent
relies on Passavant Memorial Area Hospital, 237 NLRB
138 (1978), and Broyhill Co., 260 NLRB 1366 (1982).
In Passavant the Board set forth the standards to be
utilized in considering whether an employer has effec-
tively repudiated its unlawful conduct so as to avoid the
finding of a violation of the Act based on such conduct.
These standards were stated at 138-139 as follows:
To be effective, however, such repudiation must be
"timely," "unambiguous," "specific in nature to the
coercive conduct," and "free from other proscribed
illegal conduct." Douglas Divison, The Scott & Fetzer
Company, 228 NLRB 1016 (1977), and cases cited
therein at 1024. Furthermore, there must be ade-
quate publication of the repudiation to the employ-
ees involved and there must be no proscribed con-
duct on the employer's part after the publication.
Pope Maintenance Corporation, 228 NLRB 326, 340
(1977). And, finally, the Board has pointed out that
such repudiation or disavowal of coercive conduct
should give assurances to employees that in the
future their employer will not interfere with the ex-
ercise of their Section 7 rights. See Fashion Fair,
Inc., et al., 159 NLRB 1435, 1444 (1966); Harrah's
Club, 150 NLRB 1702, 1717 (1965).
More recently, in Broyhill, supra, the Board in apply-
ing the Passavant standards concluded that an employer
had effectively disavowed unlawful conduct of a supervi-
sor even though the disavowal notice was not posted
until about 5 weeks after the unlawful conduct and the
supervisor involved was not specifically named in the
notice. In reaching its conclusion, the Board observed
that Respondent did all it reasonably could do to dis-
avow the unlawful conduct of its supervisor and pointed
out as a matter of apparent policy that "Such voluntary
action by employers should be encouraged by this
Board." Broyhill, supra, at 1367.
Apply the Passavant standards to the instant case it is
difficult to perceive what more Respondent could have
done to repudiate the unlawful questioning by its super-
visors. Since I have earlier found herein that Respondent
did not unlawfully interrogate Dunnom it appears that
every Passavant standard was followed in Respondent's
efforts to repudiate the interrogation of its supervisors.
Indeed, a notice provided for in a Board order could not
have been more clearly drawn to remedy the specific
conduct involved nor, under normal procedures, could it
be more effectively disseminated and communicated to
the employees.
The General Counsel's contention that the repudiation
was incomplete was based on the premise that employees
were not told in the repudiation that their recorded an-
swers given during the interrogation were destroyed.
While the parties stipulated that the supervisors would
testify that any records of employee responses resulting
from the interrogation were destroyed, a canvass of the
record does not reflect that employees were ever told or
otherwise knew that their responses were recorded. Ac-
cordingly, the absence of a reference in the notice to a
937
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
destruction of records is immaterial and does not ad-
versely impact on its effectiveness.
The General Counsel's argument with respect to the
ineffectiveness of the notice appears to be based on a
concern that the full 60-day posting period was not com-
plied with before the election. This argument, however,
obviously goes to the effectiveness of the repudiation as
it is related to the election, not the effectiveness in pre-
cluding the entry of a Board order based on a finding of
a violation of Section 8(a)(1) of the Act.
With respect to the Union's argument that Respondent
followed a "sophisticated scheme" to violate the Act
through the interrogation, there is little record support.
The Union's theory is based on undisputed record evi-
dence that Respondent, prior to the polling directed by
Paulk, had advised its supervisors, presumably including
Paulk, against threatening, interrogating, promising, or
surveilling employees in connection with their union ac-
tivity. Thus, the Union argues that Paulk, knowing inter-
rogation of employees was unlawful, went ahead and did
it anyway to accomplish coercion and then to avoid the
consequences through the repudiation. There is a sub-
stantive difference, however, between knowing that it is
unlawful to interrogate employees about their union ac-
tivities and knowing that it is unlawful to poll employees
regarding their intended vote in an election which Re-
spondent through Paulk did. The coercive effect may be
the same in each case, but in the absence of evidence
that Respondent gave specific instructions to its supervi-
sors regarding polling I am not prepared on this record
to conclude that Paulk understood that there was no
legal distinction between interrogation and polling.
The Union appears in its brief to attach some signifi-
cance to the fact the Broyhill decision issued 5 days after
the Union had filed its petition herein. It contends that
Broyhill was a model for Respondent's planned interroga-
tion and its subsequent "Notice." No doubt Broyhill was
a consideration in Respondent's repudiation efforts, but
the evidence in no way suggests that the issuance of
Broyhill provided a basis for, or sparked, any planned in-
terrogation. As already noted the standards for determin-
ing the effectiveness of repudiations of past violations
was set forth in Passavant 4 years prior to Broyhill.
In any event, under the circumstances of this case, it is
difficult to understand what unlawful and lasting coer-
cion Respondent could have hoped to accomplish when
it so quickly followed the polling with a notice as com-
plete and detailed as the one herein. I conclude that Re-
spondent's notice and its actions in communicating the
context of the notice to employees clearly complied with
all the Passavant standards, and that it effectively repudi-
ated the violation inherent in the otherwise coercive
questioning of employees. Accordingly, I would find no
violation of Section 8(a)(1) of the Act based on such
questioning and I shall recommend that the complaint al-
legation on this point be dismissed.
The absence of a finding of an 8(a)(1) violation on the
mass interrogation is not dispositive of the Union's elec-
tion objection based on the same conduct. "The test of
conduct which may interfere with the 'laboratory condi-
tions' for an election is considerably more restrictive
than the test for conduct which amounts to interference,
restraint, or coercion which violates Section 8(a)(1).'
Dal-Tex Optical Co., 137 NLRB 1782, 1786-1787 (1962).
Accordingly, there remains the question of whether by
the same repudiation Respondent removed the polling as
an act of interference which destroyed the laboratory
conditions necessary for a valid election. As the Union's
brief points out, that which would violate Section 8(a)(1)
of the Act a fortiori interferes with the exercise of a free
and untrammeled choice in an election. Playskool Mfg.,
140 NLRB 1417 (1963). This policy is not without excep-
tion, however, and the recognized exception is found
where the violations "are such that it is virtually impossi-
ble to conclude that they could have affected the results
of the election." Enola Super Thrift, 233 NLRB 409
(1977). "In determining whether a violation could have
affected the results of an election [the Board has] consid-
ered 'the number of of violations, their severity, the
extent of dissemination, the size of the unit, and other
relevant factors."' Custom Trim Products, 255 NLRB 787
(1981). In the instant case, of course, the interrogation
here extended to 20 percent of the unit employees and,
by virtue of Respondent's "Notice" it was brought to the
attention of all the unit employees. However, while seri-
ous, the interrogation was not accompanied by threats or
other coercion violative of Section 8(a)(1). The remain-
ing and dominant "relevant factor" is Respondent's repu-
diation of the unlawful conduct. Although Respondent's
notice was complete and fully disseminated to employees
it was posted less than 10 days prior to the election. The
Board as a standard policy requires that its remedial no-
tices be posted for a period of 60 days as a necessary
means of dispelling and dissipating the unwholesome ef-
fects of a respondent's unfair labor practices. "[T]he 60-
day posting requirement is not to be taken lightly or
whittled down as the purpose of the notice is to provide
sufficient time to dispel the harmful effects of Respond-
ent's discriminatory conduct." Chet Monez Ford, 241
NLRB 349, 351 (1979). See also Robertshaw Controls Co.,
263 NLRB 958 (1982).
Respondent's notice and efforts to repudiate its own
misconduct, while sufficient to avoid a finding of a viola-
tion of the Act based on such conduct, should be accord-
ed no greater vitality or validity than a Board remedy in
providing time in which to dispel the harmful effects of
misconduct. Moreover, although argument may be made
that full dissemination of the contents of Cox's announce-
ments of the matter and the mailing of the notice to em-
ployees should serve to shorten the time period for reme-
dial effect and posting, the posting for only 9 days before
the election, I find, hardly provides a sufficient lapse of
time to dispel any lingering vestiges of coercion in the
minds of employees flowing from the mass interrogation.
Under these circumstances it is not impossible to con-
clude that Respondent's interrogation interfered with the
election. Moreover, any uncertainty in this regard should
be resolved against the one whose conduct caused the
problem. Accordingly, I conclude that Respondent's ef-
forts to voluntarily remedy its coercive interrogation
were insufficient to preclude its conduct from intefering
with the employees' free and untrammeled choice in the
938
AGRI-INTERNATIONAL INC.
election. I thus find merit to the Union's Objection 2 to
the election based on this conduct of Respondent.
5. The appropriateness of a bargaining order
Based on the proposition that Respondent was a suc-
cessor to Swift the complaint alleges that the Union was
the representative of a majority of Respondent's employ-
ees in the appropriate unit, and that Respondent's refusal
to recognize the Union on and after Janaury 15, when
considered with the other violations of the Act alleged in
the complaint, constituted a violation of Section 8(a)(5)
of the Act. Both the General Counsel and the Union,
recognizing that an election has taken place, argue that
because of Respondent's objectionable conduct the elec-
tion must be set aside and a Gissel' ° bargaining order
issued." With the election set aside, and to establish the
Union's majority status as a basis for the bargaining
order, the General Counsel and the Union would rely on
the presumption of the Union's majority status flowing
from Respondent's status as a successor to Swift where
the Union was the recognized bargaining agent and had
an effective bargaining agreement at the time of Re-
spondent's purchase.' 2 In seeking this result the General
Counsel and the Union urge that by proceeding to the
election in this case, in the face of what appeared to be
an unlawful refusal to bargain, the Union did not waive
its right to invoke its representative status on the succes-
sorship basis. The Board's decision in Bernel Foam Prod-
ucts Co., 146 NLRB 1277 (1964), is cited in support of
this proposition. In Bernel Foam the Board held that a
union faced with a choice of filing a refusal-to-bargain
charge or proceeding to the normally quicker and less
expensive means of obtaining recognition, an election, is
not compelled to an "irrevocable option." There, the
Board stated at 1280, 1281:
The fact that in an election a vote favorable to the
union may obviate for it the necessity for pursuing
the unfair labor practice route does not, in our
view, warrant requiring that the union forfeit the
right to request that the effect upon it of the em-
ployer's unlawful conduct be rectified when it de-
velops that such conduct has been sufficiently oner-
ous to interfere with the election and to cause a
substantial deterioration in the union's status.
O NLRB v. Gissel Packing Co., supra.
" More specifically the Union asserted in its brief that "Gissel is perti-
nent as an example of the type of misconduct warranting a bargaining
order regardless of the basis for the Union's claim of majority status prior
to the election." And the General Counsel would also appear to invoke
the standards set forth in Gissel by asserting in his brief that "a fair
second election could not be held."
12 As the Board stated in Aircraft Magnesium, 265 NLRB 1344, 1346
(1982), "A union is not required to substantiate anew its majority status
when a successor assumes an employer's business. Rather, successor em-
ployer is obligated to bargain with the exclusive representative of the em-
ployees acquired from the predecessor unless it demonstrates either that
the representative no longer enjoys majority support on the date of its
refusal to bargain or that it has a good-faith doubt of the representative's
continued majority status." (Footnotes omitted.) Thus, in a successorship
situation a union is entitled to a presumption that it has majority support.
Raymond Convalescent Hospital, 216 NLRB 494 (1975); Barrington Plaza
and Tragwview, Inc., 185 NLRB 962 (1970), enfd. 470 F.2d 669 (9th Cir.
1972).
In addition, where the conduct engaged in is
found to be of a type which makes a fair election
impossible the election is set aside and regarded as a
nullity. There is absolutely no basis for holding the
participating union alone bound by an election
which has been delared a nullity. Either the election
is not a nullity or the union is not bound thereby.
To hold, as our dissenting colleague would, that by
participating initially in an ultimately void election
the union irrevocably committed itself to the repre-
sentation proceeding and, therefore, may seek a
remedy only in another election, overlooks the fact
that an election is not a remedy either in statutory
concept or in reality.
The Board's decision in Bernel Foam was reaffirmed in
Irving Air Chute Co., 149 NLRB 627 (1967), which made
it even more clear that a bargaining order could be im-
posed only where the election has been set aside on the
basis of meritorious objections to the election. Bernel
Foam was cited with apparent approval in Gissel, supra
at 615, and remains viable Board law.
Respondent defends against a bargaining order initially
on the premise that it committed no violations of the Act
and engaged in no objectionable conduct which would
warrant setting aside the election. These points have al-
ready been decided against Respondent.
Respondent would further argue that there could have
been no 8(aX)(5) violation before the election because the
Union never requested bargaining at a time after Re-
spondent had hired a majority of Respondent's employ-
ees. This point too must be decided against Respondent,
for Perdue, in his letter of January 15, said Respondent
was not agreeing to either assume Swift's agreement
with the Union or to recognize the Union as bargaining
representative of Respondent's employees. True, Re-
spondent's did not have as a majority of its employees
former Swift employees, or in fact any employees at all,
until January 20. But in view of Perdue's letter any fur-
ther express union request for recognition would have
been futile. And, in any event, the request for bargaining
and recognition which I have found Lee made on Janu-
ary 15 must be regarded as a continuing one. See Aircraft
Magnesium, 265 NLRB 1344 (1982); Williams Energy Co.,
218 NLRB 1080 (1975). Thus, the request was outstand-
ing as of January 20.
Respondent next argues that, even assuming its status
as a legal successor to Swift, and further assuming a
valid demand for recognition by the Union, a bargaining
order is not appropriate here because the Union chose to
proceed to an election which it lost thereby rebutting
any presumption of majority status to which it might
otherwise be entitled on a successorship premise. In
taking this position Respondent would distinguish Bernel
Foam on the basis that in that case the Union relied on
authorization cards to establish its majority status, and
then only after conduct by the employer which made a
"fair election impossible." Respondent argues that the
Board's use of the word "nullity" in reference to an elec-
tion interfered with by the employer in Bernel Foam was
implicitly restricted to situations where a fair rerun was
impossible, so that the Union was entitled to a bargaining
939
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order based on proving its majority status through cards
notwithstanding the results of the election. Respondent
then argues that "When an employer's conduct interferes
with an election but is insufficient to preclude a fair
rerun election the results of the election are a nullity
only in the sense that they are not conclusive on the
question of representation." Under these circumstances,
according to Respondent, the results of the election
stand to rebut any presumption of majority status that
the Union may have enjoyed prior to the election. Thus,
it is argued, assuming that Respondent interfered with
the initial election, only a rerun election is the proper.
I find no merit to Respondent's argument that the elec-
tion rebuts the presumption of the Union's majority
status. An election tainted by Respondent's misconduct
signifies nothing conclusive as to employee desires for
union representation.
Rather, I conclude that because Respondent engaged
in unlawful conduct which warranted setting aside the
election the Union was freed to pursue and litigate the
legality of Respondent's initial refusal to recognize and
bargain with the Union under the principles of Bernel
Foam and Irving Air Chute.
In reaching this conclusion I find it unnecessary to
assess Respondent's unlawful conduct which interfered
with the election under the standards set forth in Gissel,
supra.13 I find Gissel distinguishable and inapposite to
the case sub judice. First of all in this regard, Gissel in-
volved establishment of a union's majority status through
union authorization cards.1 4 The instant case does not
for the Union's status here is based upon a presumption.
Secondly, Gissel involved initial recognition of a union.
The instant case does not, for the Union here was recog-
nized by Respondent's predecessor and its representative
status derives from Respondent's successorship status.
Thirdly, the focus of Gissel was upon provision of a bar-
gaining order remedy for unlawful employer conduct
which precluded the holding of a fair election. Here
there is no reason to be more concerned with the em-
ployer's conduct that impact on the election than the un-
lawful conduct of the employer which necessitated resort
to the election process in the first instance as the speedi-
est and most inexpensive alternative to the unfair labor
practice route for the Union to secure recognition. 15
13 In Gissel the Court measured employer unlawful conduct which
would justify a bargaining order remedy in accordance with three stand-
ards: (I) "outrageous" and "pervasive" unfair labor practice which would
warrant entry of a bargaining order without regard to a union's majority
status; (2) less pervasive unfair labor practices which nonetheless have a
tendency to undermine majority strength and impede the election proc-
ess, therefore warranting the entry of a bargaining order where the
Union's majority status is otherwise established; (3) minor or less exten-
sive unfair labor practices which have little impact on the election ma-
chinery and which would not warrant entry of a bargaining order.
14 While under Gissel a union's majority status might be established by
means other than cards in the normal situation to which Gissel applies,
resort to an election is forced by an employer who does nothing more
than lawfully initially refuse to recognize a union or the basis of cards.
See Summer & Co. v. NLRB, 419 U.S. 301 (1974). In the case sub judice
if Respondent was obligated to recognize and bargain with the Union by
virtue of Respondent's status as a successor to Swift, Respondent could
not lawfully have insisted upon an election.
is While it may be argued that Gissel modified Bernel Foam ,which
was, like Gissel, a card case, to the extent that Gissel standards are im-
posed in determining the appropriateness of a remedial bargaining order
The Board has also indicated that Gissel standards are
not necessarily applicable to cases involving an employ-
er's unlawful refusal to recognize a union or unlawful
withdrawal of recognition from a union. Thus, in Auto-
mated Business Systems, 205 NLRB 532 (1973), the Board
considered the legality of an employer's withdrawal of
recognition from an incumbent union followed by an
election held pursuant to a decertification petition. The
employer was found to have interfered with the election
by engaging in various unfair labor practices. It was only
after the Board concluded that the withdrawal of recog-
nition was not unlawful that it determined that the case
was analogous to an original organization case to which
Gissel standards would be applicable. Thereafter, apply-
ing Gissel and measuring the employer's unfair labor
practices which interfered with the election under Gissel
standards, the Board concluded that the employer's con-
duct met the second Gissel standard warranting the entry
of a remedial bargaining order. In so concluding the
Board also relied on the presumption of the Union's ma-
jority status flowing from the Union's incumbency.' 6
Accordingly, I reject Respondent's argument in this
case that employer conduct which does not preclude a
fair rerun election will not warrant a bargaining order.
That argument has relevance only to bargaining orders
entered as a remedy for unfair labor practices which
interfere with an election and not to bargaining orders
necessitated by a respondent's antecedent refusal to bar-
gain which is unlawful in and of itself. 17
Based on the record herein I have found that Re-
spondent became the successor to Swift with whom the
Union had a collective-bargaining agreement. I have fur-
ther found that the Union on or about January 15 re-
quested recogniton of Respondent and Respondent de-
clined recognition. While Respondent did not become a
successor to Swift until January 20 when Respondent
employed as a majority of its employees former employ-
ees of Swift, the Union's original request for recognition
was entitled to be treated as a continuing request so that
it remained effective on January 20. This is particularly
in like situations, Gissel reaffirmed the basic premise underlying Bernel
Foam. That is "that there is nothing inconsistent in a union's filing of an
election petition and thereby agreeing that a question of representation
exists, and then filing a refusal-to-bargain charge after the election is lost
because of the employer's unfair labor practices." Gissel, supra, at 616, fn.
34. That principle of law remains whether or not Gissel standards are ap-
plicable.
Ie The Board's Order in Automated Business Systems was remanded by
the court of appeals, 497 F.2d 262 (6th Cir. 1974), on the issue of the
union's continuing majority status, but it approved the Boards's applica-
tion of Gissel to the case.
iF Respondent cites Mitchell Standard Corp., 140 NLRB 496 (1963),
and Tennsco Corp., 141 NLRB 296 (1963), enf. denied 339 F.2d 396 (6th
Cir. 1964), as having relevance and application to the instant case and as
showing the legality of Respondent's refusal to bargain. Without going
into all the details of the cases I find them clearly distinguishable from
the case sub judice. In Mitchell a successorship was found, but the Board
found the employer's refusal to bargain with the union was justified on its
good-faith doubt of the union's majority status premised in part on strong
evidence of employee discontent with the union. There is no such evi-
dence in the instance case. Tennsco is distinguishable for there, unlike
here, the employer was found not to be a successor. Moreover, evidence
in that case showed a substantial decline in dues-paying members while
employed by the preceding employer, a factor not found in the instant
case.
940
AGRI-INTERNATIONAL INC.
appropriate here where Respondent's January 15 refusal
to recognize the Union was unqualified and unlimited as
to time therefore making any renewed request for recog-
nition futile. By virtue of Respondent's becoming succes-
sor to Swift the Union is entitled to the "presumption"
that it was majority representative of Respondent's em-
ployees on and after January 20. There was no valid evi-
dence presented to rebut such presumption herein or to
otherwise provide a basis for a good-faith belief that the
Union no longer enjoyed majority status. Respondent
never accorded the Union recognition on or after Janu-
ary 20 even though the testimony of Lee, credited in this
regard, reveals that Perdue told him on January 15 that
he felt Respondent would recognize the Union hiring of
50 percent of Swift's former employees. These facts, I
conclude, establish a classic violation of Section 8(a)(5)
and (1) of the Act by Respondent. Respondent having
engaged in practices found herein to warrant setting
aside the May 27 election, and a timely charge having
been filed on Respondent's antecedent refusal to extend
recognition to the Union, there is nothing to preclude
the entry of a customary bargaining order for Respond-
ent's violation of the Act. I conclude, therefore, that Re-
spondent violated Section 8(a)(5) and (1) of the Act as
alleged and that a bargaining order is the appropriate
remedy for such violation.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent, by implicitly promising its employees
unspecified benefits in order to discourage them in their
union support, engaged in, and is engaging in, unfair
labor pracatices within the meaning of Section 8(a)(l) of
the Act.
4. Respondent, by threatening employees with the fu-
tility of selecting the Union and with the inevitability of
strikes if the Union were selected in order to discourage
their union support, engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. The Union's Objections 2 and 4 to the election in
Case 10-RC-12589 have merit and must be sustained and
the election held on May 27, 1982, set aside.
6. All production and maintenance employees, includ-
ing plant clerical employees and truck drivers at the Em-
ployer's Douglas, Georgia feed mill and poultry process-
ing facilities, excluding office clerical employees, quality
assurance employees, guards and supervisors as defined
in the Act, constitutes a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9
(b) of the Act.
7. Respondent became the legal successor to Swift and
Company on January 20, 1982.
8. The Union was at all times material the representa-
tive for the purposes of collective bargaining of a majori-
ty of employees of Swift & Company in the unit de-
scribed in paragraph 6 above and pursuant to Section 9
(c) of the Act was the exclusive representative of such
employees, and by virtue of Respondent's legal succes-
sorship to Swift the Union became on January 20, 1982,
and is, now, the representative for the purposes of col-
lective bargaining of the majority of the employees in
the above unit.
9. Respondent, by refusing to recognize and bargain
with the Union as exclusive representative of employees
in the above unit on and after January 20, 1982, engaged
in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
10. The unfair labor practices set forth above in para-
graphs 3, 4, and 9 affect commerce within the meaning
of Section 2(6) and (7) of the Act.
11. Respondent did not engage in any other unfair
labor practices alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act, I shall recommend to the Board that Respond-
ent be ordered to cease and desist therefrom, and to take
certain affirmative actions to include the posting of an
appropriate notice to employees. Further, having found
merit to the Union's election objections I also recom-
mend to the Board that the election in Case 10-RC-
23589 be set aside, and, in view of my conclusion that
Respondent unlawfully refused to bargain prior to the
election, the petition be dismissed.
Having found that Respondent, in violation of Section
8(a)(5) and (1), refused to recognize and bargain with the
Union in the appropriate unit on and after January 20,
1982, I shall recommend that it be ordered to cease and
desist therefrom, and that, upon request of the Union, it
bargain collectively with the Union as the exclusive col-
lective-bargaining representative of the employees in the
unit found appropriate herein.
[Recommended Order omitted from publication.]
941