American Tea & Coffee Co., Inc.

National Labor Relations Board - Board Decisions

Oct 12, 1966

160 N.L.R.B. 1783 (N.L.R.B. 1966)

AMERICAN TEA & COFFEE CO., INC. 1783
American Tea & 'Coffee Co., Inc. and Teamsters, Chauffeurs, Help-
ers and Taxicab Drivers Local 327, affiliated with International
Brotherhood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America . Cases 26-CA-2168, 2168-2, 0188, and 06-
RC-2/.63. October 12,1966
DECISION AND ORDER
On June 30, 1966, Trial Examiner Rosanna A. Blake issued her
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examin-
er's Decision. Thereafter, the Respondent filed exceptions and a sup-
porting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.,,
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Substitute the following for paragraph 2(a) of the Recom-
mended Order :
[" (a) Assign Jennie Jones, Margaret Jones, and Kathleen Hines to
their former or substantially equivalent positions."
[2. Substitute the following for paragraph 11 of Appendix A :
[WE WILL assign Jennie Jones, Margaret Jones, and Kathleen
Hines to their former or substantially equivalent positions.
i In adopting the Trial Examiner ' s finding that Respondent 's unlawful conduct vitiated
the results of the election , we find it unnecessary to pass upon the correctness of her
reliance on conduct occurring prior to the date of the filing of the Union's petition for an
election since Respondent 's unlawful conduct, which occurred after the petition was filed,
clearly had a substantial impact on the outcome of the election and constitutes a suf•
ficient basis for setting the election aside.
160 NLRB No. 143.
1784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[3. The telephone number for Region 26, appearing at the bottom
of the attached notice to the Trial Examiner's Decision, is amended
to read : Telephone 534-3161.]
[The Board dismissed the petition in Case 26-RC-2463 and vacated
all proceedings held in connection therewith.]
TRIAL EXAMINER'S DECISION
Upon charges filed on July 30 and August 25 and 31, 1965, the General Counsel,
acting through the Regional Direcetor for Region 26, issued a complaint on Octo-
ber 8, 1965, in which it was alleged that the Respondent had engaged in conduct
which violated Section 8(a)(1), (3), and (5) of the Act.' The Board conducted an
election on August 27, the Union lost, objections were filed by the Union, and the
Regional Director issued a report on objections to which Respondent filed excep-
tions. Case 26-RC-2643. On October 27, the Board issued an order directing a
hearing on two of the Union's objections to the election. On November 3, 1965,
the Regional Director issued an order consolidating the hearing on the objections
and the hearing with respect to the issues raised by the complaint and answer. In
its answer to the complaint, Respondent admitted certain allegations of the com-
pliant, such as the commerce allegations, but denied having committed any unfair
labor practice.
Pursuant to due notice, a hearing was held before Trial Examiner Rosanna A.
Blake on November 22, 23, and 24, 1965, in Nashville, Tennessee. All parties were
represented and given full opportunity to present evidence, to examine and cross-
examine witnesses, to argue orally, and to file briefs 2 A brief was filed by counsel
for the General Counsel and by counsel for the Respondent.
Having considered the entire record, the briefs, and upon my observation of the
demeanor of the witnesses while testifying, I make the following. 3
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT; THE LABOR ORGANIZATION INVOLVED
Respondent, a Tennessee corporation, has its principal office and place of business
in Nashville, Tennessee, where it is engaged in the business of processing coffee, tea,
mustard, and peanut butter. During the 12 months prior to the issuance of the com-
plaint, Respondent purchased and received at its Nashville plant goods valued in
excess of $50,000 directly from points outside the State of Tennessee and during
the same period, manufactured, sold, and shipped from its Nashville plant finished
products valued in excess of $50,000 directly to points outside the State of
Tennessee.
Upon the above undisputed facts, Respondent admits and I find that it is an
employer engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
Respondent admits and I find that Teamsters, Chauffeurs, Helpers and Taxicab
Drivers Local 327, affiliated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
H. THE ALLEGED UNFAIR LABOR PRACTICES
A. Chronology of events
1. Employee Jennie Jones initiates a union campaigniand a number of
employees sign cards
About July 12, 1965, employee Jennie Jones talked to employees Shirley Dabbs,
Margaret Spencer, Margaret Jones, and Oma Richardson about a union and Union
1 The complaint was amended at the hearing without objection.
a Documents submitted by Respondent, with leave, after the hearing was otherwise
closed are made a part of the record as Respondent's Exhibits 6 and 7.
3 All credibility determinations made herein are based in part upon my observation of
the witnesses while testifying.
AMERICAN TEA & COFFEE CO., INC. 1785
Representative David Hodgin later went to Jennie Jones' home after work . Hodgin
gave Jones some union cards and she signed one that same - night . The cards read:
I, the undersigned , hereby apply for membership in the above Union . . . and
voluntarily choose and designate it as my representative for purposes of
collective bargaining... .
A few days later, Jennie Jones went to the home of employee Shirley Dabbs and
gave Dabbs a union card. Jones was with Dabbs when the latter filled out the card
and saw Dabbs sign it .4 The same night, Jones went to the home of employee Oma
Richardson who also signed a card. Richardson identified her own card at the
hearing.
That same week , Jennie Jones visited employee Birdie Nicks at the latter's home
and Nicks ' signed card is dated July 19. Jones talked to employee Robert Anderson
at the plant , gave him three cards and he returned them all signed. Included was
his own, dated July 15, and those of employees James Mintlow and Samuel Hall,
both dated July 15. Each of the four above -named employees identified his or her
card at the hearing.
A union meeting was held on July 15 or 16, probably July 15, at the home of
Jennie Jones. Also present were employees Margaret Spencer , Margaret Jones, Shir-
ley Dabbs, Oma Richardson , and Robert Perkins. The cards of Margaret Jones,
Spencer, and Perkins are dated July 15 and each of the three identified his or her
card at the hearing.
2. The Company learns that a union meeting is scheduled and its
representatives visit the homes of three employees
Another union meeting was scheduled to be held on the evening of Monday,
July 19, also at the home of Jennie Jones. About 5:30 or 6 p .m., employee Ger-
trude Patrick called Plant Manager Robert Heltoh at the plant . According to Hel-
ton, an admitted supervisor within the meaning,of Section 2 ( 11) of the Act , Patrick
told him that "There was a move afoot to organize the union or words to that
effect." Helton said that he could not recall what else Patrick told him although he
admitted that she "certainly didn 't just say [the above sentence ] and hang up." He
went on to say that the "best" he could "remember ," Patrick said she thought "per-
haps" Helton "should or would" like to have the information but Helton could not
recall anything else that was said except that he "probably " asked Patrick if she was
"sure" or if she was "serious ." Helton admitted that he was "interested" in Patrick's
news and also admitted that he was "sure" that he asked Patrick some questions
about the union campaign . However, he said he could not recall what questions he
asked or Patrick's answers except that she told him there was going to be a union
meeting. He agreed that he could have asked Patrick and she could have told him
where the meeting was to be held. Helton also asserted that he did not remember
asking Patrick which employees were involved in the union campaign.
It is admitted that Plant Manager Helton promptly told Company Vice President
Marvin Bubis , who is also the general manager and the Company 's top, active
official, what Patrick had told him although he allegedly did not tell Bubis which
employee had called. According to Bubis, Helton reported that "some employees
had set up . a meeting that night to talk about all this, and , possibly, to talk
about a union ." 5 [Emphasis supplied.]
Admittedly , Vice President Bubis and Plant Manager Helton then went in Hel-
ton's car to the homes of employees William Watkins , Samuel Hall, and Robert
Anderson although Helton did not go inside Watkin 's home. Helton described the
purpose of the visits to be to talk to the employees "about any unhappiness or
unrest" and explained that these men had worked for the Company a long time and
"should have had some ideas of what was going on." In short , Helton agreed that
the visits were made "very definitely" because of the news about the union campaign
and meeting . Cf. the statement in Respondent 's brief that it "did not even know
that the Union was attempting to organize the employees until two days after these
visits... .
*Dabbs either went on maternity leave or quit about a week before the election . General
Counsel stated that he had expected to call Dabbs as a witness but she was in the hospital
having a baby.
Cf. Bubis ' statement in one of his prehearing affidavits, i.e. :
[I] did not know of [Jennie ] Jones ' union activities on the day she was laid off on
July 19 or 20. 1 did not know of any activity on or before those dates.
1786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. - Watkins, who had worked for the Company for 23 years, testified that Bubis had
come to his home before, about 10 or 12 years earlier. (Watkins had testified pre-
viously that Bubis had been at his home "many times .") After greeting Watkins,
Bubis commented that he had heard that "some of the employees" were having a
meetings (Cf. Bubis' testimony that his only reason for going to see Watkins was
to find out where employee Hall lived. However, Bubis did not claim that the Com-
pany's records did not contain Hall's address.) Watkins replied that he knew noth-
ing about it and Bubis then asked where Hall lived. Watkins testified that Bubis
did not stay "over ten minutes" and first testified that he and Bubis did not discuss
the Union in any way and appeared to be saying that Bubis did not ask him where
the meeting was to be held and that he had never told anyone that Bubis had asked
such a question. However, Watkins later testified, "I think I told Jennie" Jones that
Bubis came by and "asked me where the meeting was, but I didn't use the word
`union.' " Bubis did not testify about his conversation with Watkins except to say
that he asked Watkins Hall's address. Watkins also told Jennie Jones that he tried
to find Jones' telephone number "when they were having a meeting." Later, Watkins
said that Bubis asked if he knew "where the meeting was."
Samuel Hall, who had worked for the Company for 14, years, testified that Bubis
said he "understood that there was some misunderstanding among the help, and he
asked me how long had I worked there, and was I dissatisfied for something, and if
I was, that he was always willing to iron out our difficulties, and if I was dissatis-
fied to let him know." Hall replied that he was dissatisfied with the working space
and Bubis replied that "he was going to try to remedy that." According to Hall,
he remarked that he had heard that there was going to be a meeting and Bubis
answered that he had also "heard something of it. ." Hall told Bubis that he had
been invited to the meeting but did not know anything about it. This statement was
probably not true since Hall had signed a union card on July 15.
Both Vice President Bubis and Plant Manager Helton went into Anderson's home
although Bubis "did the talking" during the visit which Anderson testified lasted
"less than 30 minutes or an hour , I'm not sure ." Anderson , who had worked for the
Company for 13 years, said that he could not recall "right now" anything that Bubis
said although Anderson remembered that Bubis asked him "something." Anderson's
prehearing affidavit reads, in part:
About July the 19th, 1965, around 6:00 p.m., Mr. Bubis and Mr. Helton
came to my house and we had a conversation. Mr. Bubis asked me if I knew
anything about the union meeting and I told him I heard something about it,
but none of them that is union people had said anything to me about it. At the
time, both Mr. Helton and Mr. Bubis were present. They said nothing about
outside help coming into the plant. They stayed there about five minutes. Jen-
nie Jones ' name was not mentioned.
When asked at the hearing if the above statement was true, Anderson answered,
"Yes, sir. It's come to me." On cross-examination, Anderson was asked if Bubis
questioned him about an "employee" meeting or a "Union" meeting. Anderson
replied,
Well, I understand when he came down there-I don't remember anything
about a union meeting . I'm kind of mixed up. I just don 't recall what was said.
As noted supra, Anderson signed a union card on July 15, obtained signed cards
from Hall and Mintlow, and also attended the union meeting on July 19, a few
hours after the visit of Bubis and Helton. However, after the visit and before the
meeting, Anderson walked back to the plant and talked to Vice President Bubis
.,some more." When asked on cross-examination, "Of course you did that of your
own choosing," Anderson answered, "Of my own free will." There is no evidence
about what Bubis and Anderson talked about during their second conversation and
there is no evidence that Anderson admitted to Bubis at any time that he had joined
the Union and had been campaigning on its behalf. In fact , Anderson told Bubis
that • none,of the -"union people" had spoken to him about the meeting. (See supra.)
Patrick was called as a witness by counsel for the General Counsel but it is clear
that the latter did not know about her call to Plant Manager Helton'on the after-
6 When Bubis was asked repeatedly if he was interested in learning the identity of the
employees who went to the meeting , he never answered "yes" or "no" but always stated
that he understood that all of them would be there. Cf Bubis' testimony that Helton told
him that "some employees" had arranged a meeting.
AMERICAN TEA & COFFEE CO., INC. 1787
noon of July 19. In fact, Patrick had stated in her affidavit that she heard about
the meeting from her aunt, Birdie Nicks, and added, "I did not tell anybody."
Patrick was not questioned by counsel for Respondent about her call to Helton
although he questioned other witnesses for the General Counsel about matters
beyond the scope of direct examination. Nor did Respondent's counsel recall Patrick
after Plant Manager Helton testified about receiving the call from Patrick.
Although Vice President Bubis quoted Plant Manager Helton as saying that his
caller (Patrick) was "very much upset and disturbed" by the°"condition" that was
"developing," for some reason which Patrick did not explain, she attended the meet-
ing at the home of Jennie Jones that night and signed a union card. (There is no
evidence that Patrick had attended any of the earlier meetings.) Plant Manager
Helton testified that Patrick talked to him "in confidence," that he gave his "word
of honor" that he would not "divulge" the identity of his caller, and did so only
when directed to answer a question, on cross-examination, about who called him.
He did not explain why Patrick was so anxious that no one learn about her call.
I do not believe that Helton's recollection concerning his conversation with Pat-
rick was as poor as he would have me believe. In view of Helton's admitted "inter-
est" in Patrick's news and human nature being what it is, I cannot and do not
believe that Helton did not ask Patrick and that the latter did not tell Helton all she
knew about the campaign, including the identity of the employee or employees
chiefly responsible for the union campaign, the place where that night's meeting
was to be held, and which of the employees were interested in the Union. Cf. Hel-
ton's later admission that he "understood" or "felt" or was of the "opinion" that
Jennie Jones, Kathleen Hines (Jennie Jones' sister), and Margaret Jones (who is
not related to Jennie Jones) were the employees who "started" the campaign. How-
ever, Helton said he could not "tell" when he formed that opinion. Helton's alleged
loss of memory in other respects is noted infra. See, for example, Helton's answer
when asked what he said when two of the union adherents told him later that they
were quitting:
I said, "Well, that's good"-pardon me. Now after that, I don't recall
what else was said. There was some other conversation.
In short, I am convinced that Helton could have told considerably more about
his conversation with Patrick than he did and that his alleged ability to recall very
little of what was said then and later was asserted so that he could avoid disclosing
facts damaging to the Company. For this and other reasons noted elsewhere, I find
that Helton was not a reliable witness and credit little of his testimony concerning
disputed facts, in particular the Company 's response to the union campaign.
Nor does Helton's admission that he received a call from Patrick alter that con-
clusion. In view of the visits of Bubis and/or Helton to the three employees, visits
which were known to counsel for the General Counsel and about which the employ-
ees had testified, it was clear that the Company had learned about the meeting and
the Company had to explain how it learned about it. Helton therefore described
the allegedly relatively innocuous call from Patrick.
3. The July union meeting and the Company's alleged surveillance
of the meeting
Eleven employees, a clear majority, attended the July 19 meeting at the home
of Jennie Jones; i.e., Jones, Robert Perkins, Gertrude Patrick, Geraldine Hunt,
Birdie Nicks, Robert Anderson, Shirley Dabbs, Margaret Spencer, Margaret Jones,
Mary Kathleen Hines, and Oma Richardson. At least three of those present, Pat-
rick, Nicks, and Hunt, signed cards and identified them at the hearing.?
7 Hunt testified that she did not read the union card but admittedly filled it out and
signed it. She said that she signed the card because someone at the meeting, either Union
Representative Hodgin or more probably several of the employees said that if the em-
ployees did not sign cards, Bubis "would probably lay one of us older help off to prove to
[the employees] that he meant business " She agreed that something was said "to the
effect that [the] cards would be insurance for [the employees'] jobs." She added, "I
believe [Hodgin] said that they would be insurance for our jobs. . . . I believe that's the
way it was said...." According to Hodgin, he told the employees that "any time a
campaign was going on it was best to be on a card because your job was protected " As
set forth infra, Jennie Jones was laid off the next morning, Margaret Jones would have
been laid off if she had come to work, and Hines was discharged. Jennie Jones was again
refused work on August 16 and Margaret Jones was discharged on August 20 See infre.
1788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jennie Jones lives about seven blocks from the plant and her address was on her
job application. She testified that between 9 and 10 p m., while the meeting was in
progress, someone said there was a car out front, that she looked, and saw a car the
same color as the one driven by Vice President Bubis. The car, she said, drove up
and down the street two or three times and then pulled into the parking lot directly
across the street from her home. The street on which Jones lives is not a through
street but "deadendso at a galvanizing plant. She testified that she thought that there
were two persons in the car but that she could not recognize either. She also stated
that she could not recall having mentioned the car to anyone until after the meeting.8
There is a conflict between Jones' testimony and her prehearing affidavit for she
stated in the latter that she had seen Bubis and Helton drive by twice. She explained
that she had testified to what she remembered at the time she was a witness and
that her statement in the affidavit could be "wrong," that if she "lied," she did not
mean to,
Although Vice President Bubis and Plant Manager Helton admittedly went to
the homes of the three employees named above early in the evening, they said that
they returned to the plant about 7:15 p.m., that Helton had a dinner engagement
which he kept and Bubis went home. Bubis claimed that he did not know where
Jones lived until the hearing, and both he and Helton denied that they drove by
Jones' home.
It is difficult to believe that when Patrick called Helton to tell him about the
meeting that she did not tell him when and where the meeting was going to be,
information which was known to her for she attended it. The visits to the three
employees also disclose that Bubis and Helton wanted to find out what they could
about what was going on, including the meeting that was scheduled for that night.
And if Patrick did not tell Helton Jones' address, he or Bubis could have obtained
it from the company records .9 Furthermore, as set forth infra, Bubis told the
employees the next day that he did not need to tell them who attended the meeting.
In view of the foregoing facts, it seems very probable that Bubis, at least, drove
by Jones' home and that Jones saw him. I think that when Jones gave her affidavit,
she believed that she had seen Bubis' car and believed that he was in it and believed
that the other passenger was Helton. However, she was unwilling to testify to any-
thing more than that she saw a car very much like the one driven by Bubis and that
there were two passengers in it. With the passage of time, a person may become less
sure of what he actually saw and may begin to wonder if he saw in fact what he
thought he saw or whether he had seen something and jumped to conclusions about
the rest.
Although I think it likely that Bubis, at least, drove by Jones' home, I cannot
find that a preponderance of the evidence warrants a finding that Bubis and Helton
drove by Jones' home and parked across the street. Nonetheless, I do not consider
the conflict between Jones' testimony and her affidavit warrants my discrediting of
her testimony generally, most of which is undisputed.
4. The Union's status at the close of the meeting on July 19
As stated infra, the parties signed a stipulation for certification upon consent elec-
tion in August in which the appropriate unit was described as including production
workers and truckdrivers and excluding office clericals, guards, and supervisors.
Respondent has three types of employees. The first group is referred to as
"regular" employees all of whom work the year around and receive paid vacations
and insurance benefits. Apparently, there were 12 employees in this group on or
about July 20 and 9 of them signed union cards on or before July 19; i.e., Anderson,
Hall, Hunt, Mintlow, Nicks, Patrick, Perkins, Richardson, and Spencer.
The second group is referred to as seasonal, i.e., those employees who work dur-
ing the Company's busy season which, to a large extent, is tied to the demand for
tea and which varies somewhat from year to year. Some of these employees work
8 Under these circumstances , I do not credit the testimony of Margaret Jones that Jennie
Jones remarked , during the meeting, that Bubis' car had just gone by. However , Margaret
Jones' testimony in other respects is virtually undenied and is credited.
6 Patrick , who admittedly made several untruthful statements in her prehearing affidavit
(see infra ), testified that her uncle drove her to the meeting and the next morning Bubis
asked if she had a "new boy friend ," saying that he had seen a car parked in front of her
house.
AMERICAN TEA & COFFEE CO., INC. 1789
6 months or more and they are likely to work during the busy period for more
than 1 year. For example, the Company's records show that Jennie Jones worked
for 1 month in 1963, for more than 7 months in 1964, and was recalled in early
January 1965 and worked continuously until July 20, 1965. Margaret Jones worked
about a month in 1963, did not work in 1964, and worked in 1965 from January 25
to August 20. Respondent challenged the votes of these two employees and also
that of Dabbs, apparently a regular employee who had left to have a baby, and
Mary Kathleen Jones (Jennie Jones' sister) who was hired on July 19 for a period
of 4 to 6 weeks and allegedly was discriminatorily discharged on July 20. See infra.
Seasonal employees are put on the payroll but do not receive paid vacations or
insurance. All four of the above-named employees signed union cards.
The third group consists of casual or pickup labor hired off the street. Such
employees usually work a few hours at stevedoring work; i.e., loading and unload-
ing trucks. They may be hired repeatedly, if present and sober, but are not put on
the payroll, being paid in cash. On rare occasions, one of them may work in the
"factory," usually briefly. None of this,group signed a card.
In sum, 13 of the 16 employees on the payroll on July 19 signed union cards on
or before that date.
5. The layoff of Jennie Jones and the discharge of Mary
Kathleen Hines on July 20
a. The Company's action
Jennie Jones began working for the Company in January 1963 and was laid off
about a month later. She worked for more than 7 months in 1964 and returned
to work in January 1965 and worked until July 20, the day after the union meeting
at her home and the day after Vice President Bubis and Plant Manager Helton
learned about the union campaign, which she had initiated, and visited the homes
of employees Hall, Anderson, and Watkins.
Mary Kathleen Hines, who is Jennie Jones' sister, started working for the Com-
pany on July 19. She was interviewed that day by Plant Manager Helton who
explained that she would be needed for only about 4 or 6 weeks. The Company,
Helton said, was "at least three weeks behind on their orders" and he wanted Hines
to help get the work "caught up." 10 On July 19, Hines talked to "several of the
girls" at the plant about the union meeting that night and stated that she was going
to attend it as she in fact did.
Just after Hines and Jennie Jones arrived at the plant on July 20, the morning
after the union meeting at Jones' home, Plant Manager Helton told them that the
peanut butter line, on which Jennie Jones and Margaret Jones worked, was broken
down and that he would have to lay off Jennie Jones, Hines, and Margaret Jones,
who was not related to Jennie Jones, until the line was operating again." Helton
asked Jennie Jones to leave her telephone number so that he could call her. As
Jones and Hines were talking to Helton, an office employee came by with some
forms for Hines to fill out in connection with her employment but Helton said that
it would not be necessary for Hines to fill them out. However, Helton said Hines
would also be called when the line was operating. Jones was recalled on July 21 or
22 but Hines was not recalled until October, at or about the time the complaint
was issued, and I find that she was discharged on July 20. Cf. Vice President
Bubis' testimony that when Union Representative Hodgin inquired on July 20
about the laid-off employees, he first told Hodgin that no one had been laid off
10 The above findings are based on the credited testimony of Hines and Jennie Jones.
Helton testified that Hines was hired to "help us catch up a little bit" on tea, that he
told that "we could give her a few days work, depending on when we got caught up "
He later explained that a "few" days would be "maybe three, or four, or five days" and
he assertedly could not "recall" telling Hines that she would work between 4 to 6 weeks.
Helton's alleged ability to recall very little of the various events in which he was involved
only a few months before the hearing has already been noted and additional examples of
his lack of recollection are set forth infra. For this and other reasons noted elsewhere,
I do not credit his testimony concerning his interview with Hines.
n Margaret Jones did not come to work that day because one of her children was sick
but returned to' work the next day. Helton admittedly told Jennie Jones and Hines that
he did not want Margaret Jones to work on July 20.
1790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that the girls would return as soon as the peanut butter line was working again.
Bubis also testified that when Hodgin called the next day, he told Hodgin that:
by then . . . we were back in production and the girls were either back at
work or on their way in to work. One of them was back and the other two,
I think, had been called back. That was the next call, the next day, on
Wednesday.
Jennie Jones became ill about August 1 and her sister notified the Company,
saying that Jones was sick and would return as soon as she was able.
Jones went to the plant about August 16 and talked to Plant Manager Helton
who said that the work was "caught up," that he was laying her off, and would call
her when he needed her. About October 8, Jones received a registered letter notify-
ing her to return to work and she did so on October 11. (The complaint was issued
on October 8.)
As set forth infra, Margaret Jones was discharged on August 20 and was also
recalled to work at or about the time the complaint was issued.
When Jennie Jones, Margaret Jones, and Hines returned to work in October,
Plant Manager Helton told Jennie Jones that he wanted her to "run mustard" and
wanted one of the other two to help her. Helton said that when they were not
helping Jones, the other two could pick peanuts and dump old peanut butter. When
Jennie Jones had worked for the Company before, she had worked on the peanut
butter line "most of the time" but had also worked on tea and "run some mustard."
For the first 2 or 3 weeks after she returned on October 1-1, Jennie Jones "ran"
mustard everyday. About October 13 or 14, Helton told Jennie Jones that he
wanted her to keep a record of everything she "ran" and that he expected her to
fill 35 to 36 cases of 6-ounce mustard jars an hour. This was the first time Jones
had been required to keep records or to do a specific amount of work per hour.
When Plant Manager Helton was asked whether the two Joneses and Hines had
as much "contact" with other employees after they returned to work as before, he
answered, "I don't know about that . Well, that's a matter of opinion."
Although be seemed to be saying that they worked in the same room with the
others, the record suggests that there are distinct departments and more than one
floor. He was asked if it was not true that they worked more on jobs by them-
selves after October and answered that he did not think so, that he did not know
and that "They could have and they could not have." When Bubis was asked if
Jones' work was "more arduous" after she was recalled, he replied, "I wouldn't
say so."
As set forth, infra, after the women returned, Plant Manager Helton commented
to employee Henry that they were "agitators, trouble makers from the union that
started all that union mess.. ," that the Company had to hire them back "for
some reason," and directed Henry to keep them off the production line even if he
did not have the help otherwise to run the line. He also charged that one of them
had "tricked" Henry into signing a union card.
b. The Respondent's explanation for the layoff of Jones and the
discharge of Hines on July 20
According to Respondent's witnesses, it was discovered sometime on Monday,
July 19, that the peanuts on hand were too dry to process into acceptable peanut
butter Which meant that no more peanut butter could be produced until there was
another delivery of peanuts. However, no one was told on Monday afternoon not
to come to work the next morning. Vice President Bubis testified that he called
his broker, found out that a shipment of peanuts should be delivered before the
plant opened on Tuesday morning, July 20. However, the peanuts apparently did
not arrive until the middle of the morning which meant that the peanut butter
line could not operate at 8 a.m. or for a few hours thereafter. According to
Respondent, it was for this reason that Jennie Jones and Kathleen Hines were sent
home on Tuesday morning and the reason why Margaret Jones would have been
sent home if she had come to work that day.
When the peanuts arrived, it required an hour or so to get the machinery oper-
ating and no peanut butter was actually produced, in Bubis' words, until "Sometime
late in the morning or early afternoon"; i.e., on Tuesday, July 20. Jennie Jones
was recalled about noon either on Wednesday or Thursday and Margaret Jones
returned to work on the morning of July 21. However, Hines was not recalled until
AMERICAN TEA & COFFEE CO., INC. 1791
October. Cf. Bubis' asserted statement to Union Representative Hodgin on Wednes-
day that all three women were back at work or were on their way back. (See
infra.)
It is undisputed that Respondent had a sufficiently large backlog of tea orders
on July 19 to cause it to hire a new employee, i.e., Hines, who was told that she
would work 4 to 6 weeks. Also, in view of the backlog of tea orders, it would
seem that Jennie Jones, who had packed tea in the past, and Hines would have
been put to work on the tea line on Tuesday morning until the peanut butter line
was back in operation , especially since , as noted supra, the new peanuts were
expected to arrive any minute. Instead, Jennie Jones was sent home, Margaret
Jones would have been sent home, and Hines was discharged.
Respondent 's explanation for sending Jones home , for not needing Margaret
Jones, and for discharging Hines at 8 a.m. on July 20 was that they were not
needed; i.e., there was no work for them that morning. According to Helton, the
"flurry of orders" was not "over" on Tuesday morning but "we perhaps had packed
enough tea to take care of the flurry of orders." At another point, Helton explained
that the backlog of tea orders had been filled because the employees who normally
worked on the peanut butter line were assigned to tea Monday afternoon and
(except for Jennie Jones and Margaret Jones) would work on tea for some period
on Tuesday morning; i.e., until the peanuts arrived ' and the' peanut butter line was
operating again. However, on Monday, i.e., before Patrick's call, none of the three
women was told not to come in on Tuesday and, as indicated above, the new
peanuts were expected any minute. -
There is no real employee evidence that the peanut butter line employees worked
on tea either Monday afternoon or Tuesday morning nor is there any evidence
about how many employees were working on peanut butter on Monday. However,
the peanut butter line can operate with as few as five or as many as nine employees.
If only five were working on the line on July 19, this would mean that there would
be only three "extra" employees on the tea line on Tuesday morning.
Helton described the backlog of tea orders as a "flurry"; i.e., enough to require
a new employee for a few days. But if the backlog of tea orders was so small that
the "extra" orders could be filled by assigning several of the peanut butter line
employees to tea for a few hours, I cannot believe that the Company would have
considered the additional orders required the hiring of a new employee, Hines, on
Monday in order to solve the problem. Moreover, the backlog on Monday after-
noon, before Patrick's call, had not been so reduced that the Company told either
of the three women not to report on Tuesday. Finally, I note that all but one of
the employees (other than the Jones women) worked overtime that week. A num-
ber of them worked as much as 8 or 10 hours of overtime and Perkins, who
worked on the peanut butter line, worked 154 hours of overtime that week.
In sum, the hiring of Hines on Monday and the fact that the Company expected,
at the close of work on Monday and before Patrick's call, to work a full crew on
Tuesday morning convince me that there was a considerably larger backlog than
Helton claimed at the hearing. The same facts, as well as the amount of overtime
worked that week, also convince me that the backlog of orders had not been filled
by 8 a.m. on Tuesday and could not reasonably be expected to be filled by the
time the new peanuts arrived and that line began operating, events which were expected
very shortly. I cannot find, therefore, that there was no work on Tuesday morning
for Jennie Jones, Margaret Jones, and Kathleen Hines.12
Helton's testimony with respect to the "flurry" of tea orders, and his explanation
of the personnel action on July 20, which are inconsistent with the hiring of Hines
on Monday and his failure to notify the three women on Monday not to report on
Tuesday, and his claim that there was no work for the three women on Tuesday
morning are additional reasons why I do not credit his testimony with respect to
the Company 's response , in other . respects , to Patrick's news about the union
campaign.
Further evidence that the Company's claims concerning the personnel action are
not reliable is provided by Vice President Bubis' testimony, set forth infra, that he
first told Union Representative Hodgin that no one had been laid off and later told
12 There is testimony which suggests that the peanut butter line was out of operation
only briefly , if at all , and it is clear that sometime during that Tuesday, one of the casual
employees was brought in to work on the peanut butter line. It is also possible that one
of the other employees was assigned to the line that day.
1792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hodgin that all three women were either back at work or on their way back. Of
course, Bubis' alleged statements to Hodgin were clearly untrue and , as a matter
of fact , Bubis told Hodgin that Hines' work was not satisfactory and that she would
not be recalled . 13 (See infra.)
Further evidence that the personnel action was not motivated by the lack of work
is disclosed by the Company's failure to call Jennie Jones, Margaret Jones, or
Kathleen Hines when employees Richardson and Spencer quit on August 20.
Instead, it hired employees who, so far as it appears , had never worked for the
Company before. (See infra.)
6. The speech by Vice President Bubis on July 20
Just after lunch on Tuesday , July 20 , the day after the union meeting, all of the
employees on the payroll were called to the coffee department . Vice President
Bubis and Plant Manager Helton were present and Bubis made a speech after which
the employees asked questions.
According to Robert Perkins, a witness for the General Counsel , Bubis began
by saying that it seemed that a "few" of the employees had "problems ," that he
considered himself a friend of the employees and thought he and the employees
were "just one big happy family ." Bubis went on to say that the doors to his office
had always been open to discuss any problem, that it seemed that a "few" of the
employees "figured that an outside party would solve [ their] . . problems," adding
that he could not see how an "outside party" would help either the employees or
the Company . Perkins explained that the "outside party" had a membership of
over 5,000 and the members would buy the Company 's products . When Bubis
mentioned that one of the Teamsters ' "top officials" was being investigated , Perkins
asked only why the Government was behind the Union . Bubis stated that if the
employees had problems , they could come to him and that "if he had to pay ten
cents or 15 cents more per hour, that he would have to close his doors." Perkins
said that he would buy the lock but testified that he did not think that Bubis heard
him. Bubis told the employees that he wanted the employees to discuss this among
themselves , adding,
Now, I don ' t want you to be mad at each other or anything like that, but
discuss this between yourselves and come up with some kind of decision . . .
because we are a small company competing with large companies.
At some point , the word Union was used and Bubis said that the employees
knew what he was talking about , that he knew what they were talking about and
stated that he did not need to tell his audience who was at the meeting the night
before. Bubis added that "we couldn 't have a union coming in ," that it would tell
him what to do and if an "outside party" came in , he would have to put a lock on
the doors.
Employee Oma Richardson remarked that employee Birdie Nicks had asked
about fans and Richardson asked where the Company had to send for them, Africa
or maybe Alaska? Nicks spoke up to say that the bathroom facilities were inade-
quate and she or others mentioned that they were not allowed enough time to use
the bathroom . One or more of the women complained about the blisters they got
on their hands from putting the lids on the jars of peanut butter . ( Perkins testihed
that at one time each of the girls was given one rubber glove but when the gloves
wore out , they were not replaced .) As the employees voiced their complaints, Bubis
made notes. When the fans were mentioned , Bubis admittedly said , "That is some-
thing. Let me make a note of that."
Margaret Spencer, another witness for the General Counsel , testified that Bubis
talked about "one big family," stated that there had been "some misunderstanding,"
that everybody had different things they wanted straightened out, and that he
wanted the employees to talk these things over . When the question of a raise was
mentioned , Bubis said he could not afford to give a raise and commented "about
this outside help" the employees were wanting to bring in, that he "couldn 't afford
a union or any outside help to come in and help him run his place ," and "if he
let the outside help come in to help him run the place , he would have to lock the
13 This finding is based on Hodgin's credited testimony . Even if Bubis ' testimony con-
cerning what he told Hodgin were credited , it would cause me to discredit his testimony in'
other respects for it is undisputed that Jennie Jones was laid off and that Hines was not
recalled until October ; i e., at or about the time the complaint was issued.
AMERICAN TEA & COFFEE CO., INC. 1793
doors." According to Spencer, Nicks asked about the bathroom and Richardson
asked about the fans saying that she had asked before and was told they had been
ordered and asked where they had been ordered from, Africa?
The testimony of another witness for the General Counsel, Oma Richardson, was
generally similar to that of Perkins and Spencer. Richardson testified that after his
opening references to being friends and "one big happy family," Bubis told the
employees that if they had "problems" they "should have come to him instead of
going to outside help." Bubis also stated that "if this outside help came in, he
couldn't afford it. He said that he would have to close the plant, and he said he
didn't think [the] plant, as small as it was, needed a middle man; that [the employ-
ees] could always discuss our problems ourselves." Richardson testified that she
told Bubis, "We have requested fans and we have never received them" and that
one of the girls in the office had said that fans had been ordered the year before
and the employees would have them but that there were still no fans. Richardson
said she asked, "Where did they have to order [the fans] from, Alaska?" When
Richardson asked about a raise, Bubis reminded her that she was making more
than when she was hired but Richardson pointed out that there had been an increase
in the minimum wage rate.
As set forth infra, a number of the employees met in Vice President Bubis'
office on the evening of July 21 or 22 and wrote letters requesting that the Union
return their cards. Several of this group were called as witnesses by counsel for
the General Counsel and, in some cases, Respondent made them its own witnesses
on what otherwise would have been cross-examination. Although the General
Counsel's contention that they were "hostile" witnesses as a matter of law was
ruled to be without merit, their demeanor while testifying and their alleged ability
to recall very little of what Bubis said either on July 20 or in his office a day or
two later made it clear that they were anxious to say nothing damaging to the
Company. In sum, they were reluctant witnesses for the General Counsel and
apparently were testifying only because they had been subpenaed and/or had given
affidavits before they realized that their testimony could be used against the Com-
pany. Not only were their memories allegedly poor but at times their testimony
was internally inconsistent and at others it was inconsistent with statements in their
prehearing affidavits.
One of this group was James Mintlow who testified on "cross examination" that
Bubis said nothing about closing the plant or locking the doors. However, when
he was asked by Respondent's counsel what Bubis did say, Mintlow replied, "That's
all I remembei. It's been quite awhile back and I don't remember anything else."
Mintlow, in effect, said that he could not recall a single thing Bubis said. When
asked if he remembered Bubis saying something about being friends, Mintlow said
he thought he remembered hearing Bubis say that and he also agreed that he
remembered questions about the Bathroom and fans.
Another employee who clearly was friendly toward Respondent was William
Watkins who had worked for the Company 23 years. He was one of the three
employees visited by Vice President Bubis on the evening of July 19. He did not
sign a card because, he said, he was "of retirement age" and the Union would not
help him. He volunteered the statement that counsel for the General Counsel was
"right" about his being "hostile" toward the Union, adding "I'm strictly hostile."
(Watkins added that his hostility dated from some event in 1922.) When asked by
Respondent's counsel to state what Bubis said in his speech, Watkins replied, "To
tell you the honest truth, I don't remember anything that was said in that meeting
because I was not interested and I was just there because he required us to be
there." Respondent's counsel asked if Watkins remembered Bubis saying at that
time or any other time that he would close the doors or lock up the plant if the
Union came in. Watkins' answer was "I didn't hear him say it at that particular
meeting." The next question by Respondent's counsel was "Did you hear [Bubis]
say it at any other time?" Watkins answered, "I don't remember."
Another witness visited by Bubis who subsequently asked for his card back was
Samuel Hall. Hail had worked for the Company for 14 years and when asked by
Respondent's counsel if Bubis said anything about closing or locking the plant,
Hall first answered "No" and later answered a similar question with, "I don't
remember that." He did say that Bubis stated that if he had peanut butter sold, he
would fill the orders if he had to bring in his family. On being questioned again
by counsel for the General Counsel, Hall said that he could not remember any-
257-551-67-vol. 160-114
1794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thing else that Bubis said although he admitted that Bubis probably said something
else. He then agreed that Bubis said that the plant could get along without any
outside help coming in.
Robert Anderson had worked for Respondent for 13 years but left in Octo-
ber 1965. He also was visited by Bubis on July 19 and later asked for his card
back. He first said that he could not recall that Bubis made a speech but later did
so but said he could not remember "anything right now" that Bubis said in his
speech which Anderson estimated lasted 30 minutes. However, he remembered for
"sure" that Bubis said nothing about closing the plant if the Union came in. He
was then asked the following questions and gave the following answers:
Q. Do you remember [Bubis] ever saying anything about closing the plant
down if outside help or an outside party [came] in? Did you remember some
talk about outside parties?
A. Yes, sir, It's gradually coming to me again.
Q. What do you remember about outside parties?
A. Well, so far as I can remember, Mr. Bubis said if the Union [came] in,
that he would try to meet the demands as long as he could.
Q. You remember something was mentioned about outside help?
A. That's right.
Q. Did Mr. Bubis say what he would do if he couldn't meet the union's
demand?
A. I don't recall what Mr. Bubis said about it, but Mr. Bubis never did-
I think he said if the union came in there, that he would try to meet their
demands, other than that, I have never heard him say a thing about what he
would do.
* * * * * * *
Q. You just don't remember what was said, do you?
A. No, because after I went to the meeting and I got dissatisfied, after I had
... made up my mind, I didn't want to be bothered with it. I wasn't caring
anything about what was said. I wasn't paying any attention to nothing that
was said.
Gertrude Patrick, who began working for the Company in 1952, was the
employee who called Plant Manager Helton and reported about the meeting. (As
noted supra, Patrick stated in her affidavit that she told no one about the meeting.)
Although she was described as being "very much upset" and "disturbed" by the
developments, she went to the union meeting and signed a union card. She denied
that Bubis said that he would close or lock the plant but agreed that Bubis began
with a statement about feeling that "everybody there was his friend" and that ne
wanted the employees to feel free to discuss with him any problems or complaints
they might have. She agreed that something was said about fans and quoted Bubis
as having replied that "he had no idea that [the employees] felt that it was that
important. He felt like if they had, they would have said something to him about
it." (Cf. Bubis' testimony, set forth infra, in which he stated that he referred to
the "hot . . . conditions" in his speech, i.e., even before questions were asked.)
Patrick testified that she did not recall anything being said about closing the
plant if outside help came in. However, her prehearing affidavit contains the follow-
ing statement:
I remember a speech that Mr. Bubis made after this meeting. It was after
lunch in the coffee area on company time to the assembled employees. In the
speech he said he would close the plant if outside help came in; that he would
be forced to close.
Patrick also testified that she had said in her affidavit that she "hadn't attended
a couple of meetings which I had, but I told Mr. Baldwin I hadn't. He asked me if
I wrote my letter [asking for her card back] at home or at the plant and I told
him I had written it at home which I hadn't. I had written it at the plant." (Pat-
rick's affidavit also states that she wrote the letter "on the week-end" following the
July 19 meeting.) Although the Board representative admittedly handed Patrick
the affidavit, she said that she only "glanced over it" and signed it. She claimed
that she did not ask to read the affidavit, admitted that she did not object to any-
thing in it and that the Board representative told her to "raise [her] right hand."
However, she asserted that she did not pay any "particular attention" to the affi-
davit and did know that it was for the "purposes of court or anything like that."
AMERICAN TEA & COFFEE CO., INC. 1795
She stated that her testimony was true and that she "was confused. I have been
upset ever since this thing started. This whole business has upset me." 14
Gertrude Hunt, who also asked for her card back, was a witness for Respondent.
She denied that Bubis said anything about closing the plant or locking the doors.
She said that Bubis told the employees:
if we needed help, that he thought we should come to him instead of going to
outside help; that we had been with him a pretty good while . . . and that if
we needed help, we should come and talk to him about it, that he was willing
to talk to us anytime we wanted to talk.
On cross-examination, Hunt stated that she did not "remember too much" of what
Bubis said, adding:
He just said if we needed help that we should come to him first instead of
outside help . . . . Come to him first before we tried to go to outside help.
Bubis, Hunt said, stated that if he could not meet the Union's demands, he was
going to stay open if he had to bring his family in to help out. Hunt had worked
for Respondent for about 13 years.
Birdie Nicks, who is Gertrude Patrick's aunt, was a witness for Respondent. At
the plant meeting on July 21 or 22, Patrick wrote a letter for Nicks, which the latter
signed, asking for her card back. (See infra.) According to Nicks, Bubis said "if
the union came in and [took] over, that he would operate just as long as he could
meet the union's demands and when he couldn't, if he got to where he couldn't, he
would operate it with his own family." Bubis also said, Nicks went on, that the
employees were always welcome to talk to him anytime if they had anything they
wanted to talk about, if they thought they were not being treated right. Nicks testi-
fied that Bubis did not say anything about closing the plant or locking the doors.
She estimated that the speech lasted 10 or 15 minutes.
On cross-examination, Nicks claimed that she could not recall everything that
Bubis said but did recall his saying:
Any one of you that feels like you are not being treated right, you know you
are welcome to come and talk it over with me without having to go on the
outside and get help from the outside.
Nicks said that she could not recall asking any question including a question about
fans. Nicks had worked for the Company for about 12 years.
Aubrey Taylor, another witness for Respondent, first testified that all he could
recall was:
Well, particularly, the only thing [Bubis] said, he said he was going to keep
the plant open if he had to bring his own family in to run it.
Taylor denied that Bubis said anything about closing or locking up the plant.
Later, Taylor put it in these words:
This is about what I can remember. He said, "We are going to keep this plant
open as long as we can, and if'it comes to a showdown, I will bring my family
in to work."
Taylor expressed the opinion that Bubis made the above statement "right" at the
end of his speech and "imagined" that Bubis said something else. He explained
that "After you stay with a person as many years as I have, you will try to pick
out your own life" in what is said. He asserted that he could not recall any reference
to "outside help" or "outside parties" or that Bubis said that he would rather run
his business himself, or that he did not want any outside help to help run it, or
that Bubis asked about employee grievances or complaints. According to Taylor,
Bubis did not mention the Union in his 5- to 10-minute speech. Although Taylor
attended the office meeting, he claimed that Bubis "never opened his mouth in my
presence, as far as I can remember, anything about the Union at all."
Plant Manager Helton quoted Bubis as having said:
he understood that some of the people had some problems and if they did, he
would hope that they [would] come to him, rather than bringing in outside
"Patrick's manner and testimony convince me that she is better educated than some
of the other employee witnesses. However, that does not mean that she knew, when she
gave her affidavit, what things an employer can and cannot say in connection with a
union campaign.
1796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
help, that he felt that we were small ; that we had always dealt with each other
directly before, and his door was open to anyone with a problem. Essentially,
that's what [Bubis] said.
Helton assertedly was unable to recall anything else "specifically" that Bubis said
but denied that Bubis said anything about closing the plant or locking the doors.
He agreed that the employees mentioned that it was "extremely hot in the factory"
and that they needed or wanted fans. He said that he did not remember but some
question might have been asked about whether the fans had to be ordered from
Alaska or Africa He added that the Company had fans which were used in previous
summers, that, thereafter, they were "brought up," apparently from the basement,
and "put in the back of the plant."
Unlike the employee witnesses friendly to Respondent, Helton did not quote
Bubis as having said anything about bringing his family in to work.
Bubis said that this was his first experience with a union campaign and that he
consulted an attorney whose field, apparently, was not labor'law who, in turn,
advised him to consult the attorney who represented the Company at the hearing.
However, the latter attorney was out of town and Bubis was unable to talk to him
until the following Monday or Tuesday; i.e., July 26 or 27.
As for his speech, Bubis said that he made notes in advance and followed them
closely. (Notes dated 7/20/65 were introduced into evidence.) By looking at the
notes, Bubis testified that he said, basically:
I understand that there is some unhappiness among the employees. This is
only normal-it happens in families, among friends, and particularly in hot,
crowded conditions.
I have known some of you most of my life and some only a few months.
I think I am your friend and hope you are mine. When you have had problems
I have tried to help. Now if you are unhappy, we both have problems. Let's
see if we can work out our problems before we seek outside help which can
become outside interference.
Our big problem is space. We are crowded and we need to cooperate with
each other not to bring in interference. An even bigger problem is competi-
tion. Our business is tough and competitive. We must keep our expenses down.
We should all work hard to accomplish this and by working together we can
do it.
We are trying to build our volume so we can afford more space and better
conditions. In this condition, I know you will agree we are better off without
outside interference.
If we have a problem, let's try to solve it as friends. You know that some
of you depend on this company for your food. You should also know that
the company depends on you to keep the plant going. I need your help. You
need my help.
My door is always open to talk to employees individually or in groups.
We do not drive the employees with stop watches.is
If it comes to negotiations and we are called on to do more than we can
afford, "Then what are we going to do?" 16
It is clear that Bubis could not recall having said anything about bringing his
family in to work and the notes, which he allegedly followed closely, contain no
such statement. And, as noted supra, Helton did not refer to any such remark by
Bubis. Either the employees were mistaken, or were knowingly quoting something
Bubis did not say, or were quoting something he said on a different occasion.17
Unless the employees were in error, Bubis clearly made at least one remark which
is not in the prepared notes.
As set forth infra, although Patrick denied at the hearing that Bubis said any-
thing about closing the plant, I cannot and do not credit her testimony in view of
her admission in her affidavit that Bubis did make such a statement . And it is sig-
nificant that Watkins, another witness friendly to Respondent, first testified that he
15 Cf. the production quota given Jennie Jones when she returned in October. (See supra )
le The notes say also "go out and we hire others " There is also a page on which is
written FANS and a reference to the inadequate bathroom facilities.
17 Employee Richardson testified that she heard no such remark and that Bubis did not
make it in his July 20 speech. However, she heard some of the employees quote such a
remark by Bubis, sometime after the July 20 speech. Bubis admittedly met with some of
the employees in his office on July 22 and talked to all or most of them individually be-
fore the election on August 27. (See infra )
AMERICAN TEA & COFFEE CO., INC. 1797
could not recall Bubis having made such a statement "at that particular meeting."
Hall, another friendly witness, admitted that Bubis said that he would try to meet
the Union's demands as long as he could but Hall allegedly could not recall what
Bubis said he would do if he could not meet the demands. Taylor, a witness for
Respondent, testified that probably at the end of his speech, Bubis referred to a
"showdown" and said that if one occurred, he would bring his family in to work.
(Of course, a statement that Bubis would bring his family in to work, if he could
not meet the Union's demands, would mean that the plant was, in effect, closed
to its regular employees.)
Moreover, Bubis' own version of his speech shows that he told the employees
that competition was a big problem, that expenses must be kept down, and that he
asked, in conclusion, "If it comes to negotiations and we are called on to do more
than we can afford `Then what are we going to do?"'
Bubis is an intelligent and experienced business man and in determining his
credibility, I have considered, inter alia, his repeated failure to give direct answers
to questions. I have also considered his statement in one of his' prehearing affidavits
that he visited the employees because he had "heard' through the grapevine that
there was some unrest among the factory employees" and-
[I] did not know of [Jennie] Jones' union activities on the day she was laid
off on July 19 or 20. 1 did not know of any activity on or before those dates.
[Emphasis supplied.]
I also note that, despite Helton's testimony-and the visits to the employees, Bubis
asserted at the hearing that he did not really know on July 20 about the union
activity but knew only that there had been a meeting and the employees might be
talking about a union.
In evaluating Bubis' credibility, I have also considered the statements he claimed
to have made to Union Representative Hodgin on July 20 and 21, statements which
were clearly untrue, i.e., that no one had been laid off and later, that the three
women laid off while the peanut butter line was not operating were either back at
work or were on their way back. (See infra.)
On July 20, unlike August 26 when Bubis made another speech, he had not con-
sulted experienced labor counsel and had not been advised about what an employer
can say and what he cannot say to counter a union campaign.is Under these cir-
cumstances , it would only be natural for Bubis to answer his own question about
what would happen if the Union asked more than the Company could afford by
saying that the plant would have to close. Of course, this does not mean that Bubis
had any intention of closing the plant but the employees could not know that or, at
at least, could not be sure Bubis did not mean what he said.
In view of the foregoing facts as well as the alleged inability of all the wit-
nesses friendly to Respondent, including Plant Manager Helton, to recall much of
anything that Bubis said on July 20 or what went on at the meeting in his office a
day or two later (see infra), I am convinced that their memories were not as con-
sistently poor as they claimed and that, instead, they were seeking to avoid testify-
ing to what Bubis said lest they make a "slip" and inadvertently disclose what Bubis
really said.
In sum , having considered the record as a whole, I credit the testimony of the
witnesses for the General Counsel and I find that Bubis said that he would have to
close the plant if "outside help" came in and that he probably made the statement
in connection with his question about what would happen if the Union asked more
than the Company could afford.
I conclude that Bubis also said, inter alea:
1. He thought that the employees should have come to him first; i.e., before going
to an outside party. (See, for example, the testimony of Respondent's witnesses Hunt
and Nicks.)
2. If the employees had problems, he hoped they would come to him "rather
than bringing in outside help" and that the Company and employees had always
dealt with each other directly in the past . (See, for example , the testimony of Plant
Manager Helton.)
3. The Company and the employees should try to work out their problems before
the latter sought "outside help" which could become "outside interference"; the
Company was trying to increase the amount of business so that it could afford more
space and better conditions and that, under these circumstances , he knew the
18 Cf. Bubis' claim with respect to later statements attributed to him that "by then,"
he knew what he could and could not say.
1798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees would agree "we are better off without outside interference"; that some
of the employees depended on the Company for their food and the Company
depended on them to keep the plant running . (See the testimony of Bubis.)
4. He did not need to tell the employees who had attended the meeting the night
before. (See testimony of Perkins.)
5. The employees should discuss the situation and come to a decision. (See the
testimony of Perkins.) Of course, the employees had already discussed their prob-
lems and reached a decision ; i.e., 13 of the 16 had signed union cards.
It is also clear that Bubis sought to learn the employees' complaints or grievances,
both in his visits and in his speech, told the employees that they should discuss their
problems with him directly rather than bringing in outside interference, and when
the employees mentioned their grievances, he made notes. It is also clear that a
major complaint was the absence of fans and they were promptly produced.
Although Bubis sought to make it appear that the fans were already in place and
that he felt that the employees ' complaints about the absence of fans were frivolous,
Plant Manager Helton 's testimony discloses that, at the very least , it was necessary
to bring some of the fans up from the basement. The record also makes it clear
that the employees had asked about fans in the past without getting results. (It is
undisputed that, whatever the fan situation was, an employee had brought a fan
from home in the summer of 1964.) -Surely, it is not surprising that employees
would want fans in a factory in Nashville in July and I am far from convinced that
fans were available at all times . In fact, Bubis himself conceded that one or more
of the fans was in the basement and some repairs were necessary and that when
the subject was mentioned; he commented, "That is something. Let me make a note
of that." 19
7. The emergency union meeting on the evening of July 20 and the
wearing of union buttons the next day
On the evening of July 20, the day Jennie Jones was laid off and Hines was dis-
charged, Union Representative Hodgin called an emergency meeting and handed
out union buttons. He told the 8 or 10 employees present to wear them to "show"
the Company "how strong" the Union was.
On July 21, many of the employees, probably a majority of them, wore their
buttons at the plant and some continued to wear them. -Others did not do so
after the meeting in Bubis' office on the evening of July 21 or 22. •(See infra.) '
8. The meeting in Vice President Bubis' office
As stated above, by the close of the union meeting on July 19, 13 of the 16
employees on the payroll had signed union cards , i.e., 9 of the 12 "regular"
employees, each of the 3 seasonal employees, and Shirley Dabbs who had quit
or was on maternity leave on election day. An hour or so before the July 19 meet-
ing, Vice President Bubis and/or Plant Manager Helton visited the homes of
employees Watkins, Hall, and Anderson and asked questions about the meeting and
the employee "dissatisfaction."
The next morning, Jennie Jones, who initiated the union campaign and at whose
home the union meetings were held, including the one on July 19, was laid off;
Margaret Jones would have been laid off if, she had come to work; and Hines, Jen-
nie Jones' sister, was discharged. That afternoon, Bubis made the speech described
supra in which, inter alia, he threatened to close the plant, criticized the employees
for bringing in "outside help" which he characterized as "interference," and directed
them to get together, discuss the matter, and reach a decision. Bubis also reminded
the employees that some-of them-depended on the Company for their food, asked
what their complaints were, and promptly remedied one of them; i.e., the absence
of fans.
On Tuesday or Wednesday, employees Gertrude Patrick, Geraldine Hunt, • and
Robert Anderson "talked it over," as directed by'Bubis, and decided they "didn't
want to' be in the' Union:" -At the' hearing, Hunt stated the reason for the decision
in almost the same words used by Bubis in his speech, i.e., that "she decided that
the Union wasn't the answer `to the problems there; we should [talk] 'them over
with [Bubis] first; we didn't feel like a union could help us out there."
ie My doubt that fans were available at all times is based upon my conclusion that the
testimony of Bubis and Helton was generally unreliable
AMERICAN TEA & COFFEE CO., INC. 1799
Patrick, Hunt, and Anderson talked to Bubis about how they could get their
cards back, he said that he would consult an attorney, and later told them they
could write letters to the Union. They asked Bubis if they could have a meeting but
neither Patrick nor Hunt explained why the employees felt it necessary or desirable
to ask Bubis' permission to have a meeting. Employee Aubrey Taylor, who had not
signed a card, explained that Bubis was invited because "there were a lot of things"
the employees "needed to know." When asked to list some of the things, Taylor
answered, "Things a person with a better education would know" such as "maybe
how to spell something, ask a question about it.or something." However, Taylor
stated that the employees did not "particularly" obtain the answers from Bubis but
found them out by talking'among themselves."
According to the credited testimony of Patrick, when the employees asked about
holding a meeting, Bubis replied, "Well, do you want the use of the office?" The
employees answered in the affirmative and a-meeting was scheduled for 8 p.m. at
which both Bubis and Helton were present, the latter at Bubis' invitation.
Patrick was, asked if, when she spoke' to, Bubis about ameeting, he said some-
thing like "why" the employees' "went ahead with the union without asking him
'first, talking. to him about it first?" She first answered that she did not recall any
such statement but then conceded, "'It's possible, yes" that Bubis said something
like that but, if so, she had forgotten it.
Ptrick did not explain why she. went to the union meeting and signed a card
after' she talked to Helton, although she -had attended none of the earlier meetings
and was reported to be "very much- upset'-' and "disturbed" about what was
happening.
It is clear that Patrick was one of the employee's if not the employee chiefly
responsible for arrangiiig the meeting with Bubis in his office. See, for example, the
testimony of her aunt, Birdie Nicks, that Patrick "informed [her] to be there at
the meeting." Of course, both Patrick and Nicks were at the meeting. However,
Patrick stated in her affidavit:
I did not attend any meeting at the company of the older employees on the
night of July 22 or 23 or about that time. I have never attended any meeting
at the plant of just the older employees 20 ,
The meeting was held in Bubis' office on either Wednesday or Thursday night
(July 21 or 22) with Bubis and Plant Manager Helton present during all or most
of the meeting. Eight employees attended the meeting: Patrick, Nicks, Geraldine
Hunt , Robert Anderson, William Watkins, Samuel Hall , Walter Wooten, and Aubrey
Taylor. Three of the men, Watkins, Anderson, and Hall, had been visited by Bubis
and/or Helton a day or two before and three of them, Watkins, Wooten, and Taylor,
had not signed union cards.
According to Patrick, the meeting lasted "About an hour or better, maybe."
When first asked "What part did [Vice President Bubis ] play" in the meeting,
Patrick answered, "What do you mean, what part did he play?" The question was
repeated and Patrick said that Bubis said at the very beginning that the meeting
was the employees' meeting, asked if they wanted him to stay or leave, saying he
would do whichever they wished. The employees said that they wanted him to
stay and he stayed, at least most of the time.
Employee Anderson was asked who "ran" the meeting and his answer was that
the employees asked Bubis to stay and "I think that [Patrick] was asking most of
the questions. I'm not for sure on that." Anderson asserted that the only thing
Bubis did throughout the meeting was to ask, at the outset, if the employees wanted
him to stay or leave . However, Anderson admitted that questions were asked and
he thought , but-was not "sure," that Bubis answered them . He claimed that he
did not know what the questions were because he "wasn 't paying any attention."
Anderson further testified that someone asked about getting the cards back, that
Bubis said'he did not know-how they could do it, that he would have to check with
his attorney .. Nicks also ' said that after Bubis ' opening remark , neither he nor
Helton said anything.
Patrick testified that the only 'question she asked was how the employees could
go about getting their cards back (a question which Bubis had answered earlier),
that she did not ask more questions than anyone else , and that "There wasn't really
20 The witnesses consistently described the meeting as a meeting of the "older" em-
ployees ; i e., those who had worked for the Company a number of years.
1800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anyone asking a lot of questions . It was just a discussion among ourselves , really."
She said that she did not recall any other question asked Bubis and could not recall
Bubis saying anything in the hour -long meeting except his opening statement and
his answer to her question . When asked the following question , she gave the
following answer:
Q. [Bubis] sat there and didn 't say anything except the one time that you
have told us about; is that what you are testifying to?
A. You are confusing me.
She then said that "I'm not saying that . He could have , but not that I recall, not
that I paid any particular attention to."
According to Nicks, all Bubis said was that he was leaving the room and Nicks
said that Bubis and Helton left "quite a few times."
Hunt testified that Bubis only pointed out that it was an employee meeting and
that he would stay or leave . Unlike the other witnesses , Hunt said that Bubis was
out of the room "the biggest majority" of the time.
Aubrey Taylor said that he did not believe that he asked any questions but
"some of the rest of them might have ." However , he could not recall anything that
Bubis said except the opening statement quoted by Hunt . (See above.)
Hall was asked what happened when the employees met and answered that "they
discussed the meeting" and the problem of getting their cards back . Hall did not
identify the "meeting" which was discussed . When asked what Bubis said, Hall
replied , "It was news to him," that he would stay or leave as the employees wished.
Each of the - employees present, who had signed a union card , wrote a letter to
the Union asking it to return his or her card . According to employee Aubrey
Taylor, everyone knows that he goes to the post office every day for the Com-
pany, that he volunteered to mail the letters, and went to a near-by drive-in and
bought envelopes and stamps . Taylor did not say when he mailed the letters, i.e.,
whether . he did so that night or the next day when he made his regular trip to the
post office.
Employee Anderson said that he wrote his own letter but did not address the
envelope. Thereafter he, "Put it in the mail" but he admitted that he did not mail
the letter himself and could not say who mailed it. He agreed that he gave it to
someone to mail but asserted , "I don 't know who it was. I just don 't know right
now. I don 't recall exactly ." Anderson said that he did not believe that he gave
the letter to Bubis, that he did not know whether or not Bubis bought the stamp
but knew only that he himself did not buy the stamp . Anderson said nothing about
Taylor's having left the meeting to buy envelopes and stamps.
Nicks explained that Patrick "informed" her to attend the meeting, that she and
the others "just decided we wanted to pull out" of the Union. She said that Patrick
wrote her letter for her because she cannot see well at night but that she signed it.
She then gave the letter to Taylor to mail but said nothing about a trip by
Taylor to buy envelopes and stamps and did not say where the paper , envelopes,
and stamps came from.
Patrick testified that the letters were given to Taylor and he mailed them. She
said that she did not know whether or not the Company furnished the stamps
and did not mention that Taylor went out to buy stamps and envelopes . As noted
previously, Patrick stated in her affidavit that she wrote her letter at home the
following weekend.
Hunt asserted that Taylor "got" the stamps but admittedly was not with him
when he did so. Later, Hunt testified that Taylor went out and bought stamps and
also explained that Taylor "picks up the mail every morning . . . . So, we had
him to mail [the letters ] for us."
Hall had worked for the Company for 14 years and was one of the employees
visited by Bubis. He testified that he was invited to attend the meeting "by one of
the girls," that he wrote a letter, gave it to Taylor to mail, and that Taylor bought
the, amp. Hall described Taylor as the employee who goes to the post-office for
1e Company . If Taylor went out, during the meeting , to buy envelopes and stamps,
Hall did not say so.
Patrick was asked what "happened" that caused her to write for her card and
she explained that when she went to the union meeting, i .e., the one she told
Helton about, "I didn't fully believe in it, and I just decided I didn't want any
part of it ." When asked if anything "specific" happened that caused her to change
her mind, she replied that she thought that the "most important thing" was an
AMERICAN TEA & COFFEE CO., INC. 1801
incident "the day of the election ," i.e., an incident which did not occur for more
than a month after the meeting in Bubis' office.21
Nicks said that during the meeting, she asked the others "how they really, deep
down in their hearts felt about wanting a union in there, and they said they felt like
. we didn't need nothing like that there."
Hall testified that he changed his mind about the Union on July 16; i.e., the day
after he signed his card. He explained that a local bread company was having "a
little trouble with the Union, too," that he talked the matter over with his wife
who said that the employees had tried but failed to get a union where she worked
and that the Union was not going to cause anything but "trouble."
Anderson had signed up two other employees before the events of July 19 to 20,
i.e., Bubis' visit to Anderson's home, Bubis' speech, and the layoff of Jennie Jones
and the discharge of Hines. He testified that after he signed the card, there was
some conversation at the meeting he did not understand and he "studied" about it
when he got home. He thought about it some more the next morning at the
plant and "got dissatisfied." However, he said he "didn't do anything," that he was
still thinking about it, and that he "didn't say anything to anybody about it."
Hunt explained that she asked for her card back because she "decided that the
union wasn't the answer to the problems out there; that we should talk them over
with [ Mr. Bubis] . . . that we should [talk ] them over with [Bubis ] first; that
we didn't feel like a union could help us - out there ." (Cf. Hunt's testimony con-
cerning what Bubis said in his July .20 speech.)
Plant Manager Helton , who was invited to the meeting by Bubis, said that he
took no part in the meeting but sat in the back of the room part of the time and
spent part of the time in his own office , i.e., in a different room . On direct exam-
ination , Helton said that the subject discussed was the "union situation , or organi-
zational efforts" and the procedures by which the employees could get their cards
back. On cross-examination, Helton was asked what was said about the organiza-
tional campaign and answered , "What organizational campaign?" He was then
asked, "Didn't you state that you discussed the organizational campaign at this
meeting?" He answered, "No, sir . . . If I said that, it's incorrect." He then
seemed to be saying that he had misunderstood the question, that he understood it
to be what he personally said but he then said that he did not recall what was
said about the "organizational campaign" but stated, as his "conjecture," that
nothing was said about the organizational campaign "as such" but that the employ-
ees were "very much concerned with getting these, quote, union cards, end of
quote?" back, which they had signed. As I recall this was really the big problem
with them, "their big concern." A few minutes later, Helton said that although
he did not remember that the campaign was discussed, "I would bet a button that
it was." Helton never stated what anyone said at the meeting but only that the
employees wrote letters asking for their cards back. If Taylor went out for
envelopes and stamps, Helton did not say so.
Bubis testified that the employees asked how they could get their cards back,
that he said he would be "glad" to call his attorney, that they decided they would
rather meet at the plant, asked if they could do so, and he said he would be "glad"
to make the office available any time they wanted to meet. (Cf. Patrick's testi-
mony, set forth supra, that when she asked if the employees could have a meeting,
Bubis asked if they would like to use his office.) Bubis told Helton about the meet-
ing and said he would "rather not come back by himself."
According to Bubis, at the outset of the meeting he instructed one of the employ-
ees to sit in his chair and told the employees that he could not be a part of their
efforts to get their cards back except to answer questions. However, none of the
other witnesses, including Plant Manager Helton, quoted any such statements by
Bubis. Although Bubis said that he did not buy the envelopes and stamps, he did
not say where they came from and made no reference to a trip by Taylor to buy
envelopes and stamps . Despite his earlier conversations with employees Patrick,
Hunt, and Anderson, Bubis also claimed that the only question he could recall was
one about how the employees could go about getting their cards back.
21 On the day of the election , Jennie Jones ' sister-in -law, who is not employed by Re-
spondent, jumped out of Jones' car and "ran up" in Patrick's face and called Patrick
"filthy" names. Patrick said she would have the woman arrested and the latter kicked
Patrick. These facts were contained in an offer of proof which was rejected but which
must be accepted as true. N L It B v. Ideal Laundry and Dry Cleaning Co., 330 F 2d 712,
716 (C.A. 10).
1802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The reasons given by the employees for asking for their cards back are quoted
above and none claimed that he signed the card or wanted it back because he was
"frightened." Bubis, however, described the employees who asked for the meeting
as "shaken" or "scared" and those at the meeting as "afraid." Although Bubis did-
not quote a single statement by a single employee to that effect or quote a single
statement indicating the reason why the employees were afraid, he told about
stories in local papers about serious acts of violence in Nashville attributed to the
Teamsters generally and Union Representative Hodgin in particular.22
James Mintlow did not attend the meeting and his letter to the Union is dated
July 28 and reads: "I am an employee at American Ace Coffee Co., and I would
like for you to send my card back to me at 2424 Charlotte Avenue." Mintlow
asserted that he asked that his card be sent to him at the plant because someone
might have taken it out of his mailbox at home.23 He said that he wrote the letter
first in longhand in the basement of the plant and then asked one of the office
employees to type it. He "believed" he read the typed letter and "believed " it said'
something about asking for his card back. He first said that he "found" the address
but later testified that he asked the office employee to look up the address but said
he mailed the letter.
Bubis testified that Mintlow asked if he could have a letter typed, and that it
was not the "practice" to type employee' letters unless they are in. a "jam." He asked
Mintlow what the problem was, that Mintlow said the letter was a "personal" one
and he told Mintlow he could have it typed. Bubis agreed that it was "conceivable"
but that he could not recall that Mintlow told him the subject of the letter until
later; i.e., while the letter was being typed or later that same day. Mintlow, Bubis
said, "volunteered" the information about the subject of the letter but Bubis could
not recall when Mintlow did so because, in Bubis ' words, "I didn't attach that much
importance to it that I remembered it specifically or anything like that." 24 Bubis did
not claim that he raised any objection when he learned the subject of the letter
typed by the office employee.
Mintlow testified that no one "threatened" him, that the way he "figured it one,
was, "I've got to live like everybody else," that he had been in two unions before
which were not "such as this union," that both had helped him, but that he knew
nothing about this one. He went on to say that he talked to "two or three people,"
whom he did not name, that they wanted out of the Union, so he "just figured
[his] own way" and wrote the letter.
It is clear that the Union did not return any of the cards.
Although Patrick was described as "very much upset" and disturbed about what
was going on when she told Plant Manager Helton about the union meeting on
July 19, she not only went to the meeting, her first, but also signed a union card.
It is obvious from her testimony that she was anxious to conceal, prior to the
hearing, her "contacts" with the Company during the week of July 19, for, as set
forth previously, she said in her affidavit that she did not tell anyone about the
meeting, that she did not attend the meeting in Bubis' office, and wrote her letter
to the Union at home, the following weekend. It is also clear from Patrick' s testi-
mony that when the employees said they wanted to meet , Bubis suggested that
they meet in his office. In addition, all of the witnesses were obviously reluctant
to recall what was said at the meeting, particularly by Bubis. It is also clear that
the employees could have met without notifying the Company, that they could have
met somewhere other than at the plant, and that there was no need for Bubis and
Helton to be present since Bubis had told them previously they could write letters
asking for their cards.
Having considered Patrick's call to Helton, her efforts to conceal her connection
with the Company, the visits of Bubis and/or Helton to the three employees on
July 19, the personnel action on July 20, Bubis' speech on the same day in which,
inter alia, he threatened to close the plant, criticized the employees for going to an
zz Bubis did not explain why, if the employees were scared, they were willing to meet
openly with management and ask for their cards back. Under the circumstances described
by Bubis, it would seem that the employees would have felt it wiser to keep quiet about
their change of heart and then vote against the Union in the election By so doing, no
one could know or be sure how each employee voted.
23Although Mintlow said that he was no "dummy" and drafted his own letter, his
demeanor and testimony disclosed that he is not very well educated and the above letter
is shorter, more concise, and more "official" than such a person would be likely to write.
It sounds more like a "form" letter which required only a signature.
24 Testimony of this type is one of the reasons why I discredit BuMs' testimony generally.
AMERICAN TEA & COFFEE CO., INC. 1803
"outside party," directed them to deal with him directly and to discuss the situation
and come to a decision, the production of fans after the employees had complained
about the lack of fans, the part played by Patrick and Bubis in arranging the office
meeting, the reluctance of the witnesses to testify to what Bubis said on July 20 and
at the meeting in his office, the reasons given by the employees for asking for their
cards back, the presence at the meeting of Bubis and Helton and of all three of the
employees visited by Bubis and/or Helton, I cannot find that the office meeting was
the independent and uncoerced idea of the employees and that management played
no role in its inception or in the employees' decision to ask for their cards back.
Although I seriously doubt that Taylor bought the envelopes and stamps, even if
it is assumed that he did, that fact would not cause me to conclude that the meet-
ing and letters were unrelated to Bubis' visits to three of the employees present,
the personnel action on July 20, Bubis' speech that same day, and were not the
result of Patrick's association with Bubis and Helton during this period, contacts
which she was so anxious to conceal that she made flagrantly untrue statements in
her affidavit.
9. The Union's letter of July 20 and the Company's reply
On the morning of July 20, Jennie Jones called Union Representative David
Hodgin and reported that she, Margaret Jones, and Mary Kathleen Hines had been
laid off. Hodgin called Vice President Bubis about 10:30 a.m., identified himself,
said that he represented a majority of the Company's "people" and has written
Bubis a letter. (See below.)
Hodgin told Bubis that he felt that the three employees had been laid off because
of their union activity and asked Bubis to put them back to work. Bubis replied that
the three would be recalled, that there had been some trouble on the peanut butter
line, and told Hodgin to call him the next day. According to Bubis, he told Hodgin
that "we hadn't laid anybody off. I didn't know what he was talking about; that
just as soon as the line started back up the girls were going to be working. I didn't
understand the nature of the call, because we hadn't laid anybody off ...:. If
Bubis made the statement to Hodgin, it was untrue for it is undisputed that Jennie
Jones was laid off and that Hines was not recalled until at or about the time the
complaint was issued; i.e., in early October.
Hodgin's July 20 letter to Bubis reads as follows:
This is to advise that a majority of your truck drivers, maintenance employ-
ees, excluding outside salesmen, have requested that Teamsters Local Union
327 represent them for the purpose of negotiating wages and working condi-
tions. We stand ready to submit our proof of representation to any impartial
third party.
We would like to meet with you at your Company's office at 10:A.M.,
Thursday, July 22, 1965. If the time and place is not convenient, please
contact the writer.
In his reply, dated July 21, Vice President Bubis stated:
We have received your letter of July 20. We regret to advise you that 10.00
A.M., Thursday, July 22, 1965, will not be convenient. Would Thursday,
July 29, be convenient with you? Please let us hear from you.25
'ffi Pubis was asked the following questions by Respondent' s counsel and gave the follow-
ing answers:
Q. In the letter of July 20th to you from Mr. Hodgin, the essence of it is that be
requests recognition of his union. Did you recognize his union?
A. No, sir.
Q. Why didn't you?
A. Frankly this was my first experience with anything like this.
Q. Did you hear my question? Why didn't you 9 Now, go ahead.
A. Excuse me. I didn't think he did. I didn't know my rights in this situation and
I wanted to consult an attorney. . . .
Q Did you consult an attorney? -
A. Yes, sir.
Pubis then testified that he consulted an attorney who recommended that Bubis consult
Sims and that he tried to talk to Sims but that Sims was out of town and he was not able
to talk to Sims until the following Monday afternoon. Cf. The statements in Respond-
ent's brief to me considering the Union's letter and the reasons why the Company refused
to bargain. The brief states, inter alma, that the Union did not offer to prove its majority
status.
1804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 21, before the Union's' letter had been delivered, Union Representative
Hodgin talked to Bubis on the telephone. Bubis said that he had just recalled Jennie
Jones and Margaret Jones, that the troubles on the peanut butter line were over.
When 'Hodgin asked about Hines, Bubis said that her work did not "suit" him.
Hodgin reminded Bubis that Hines had worked only 8 hours and asked if Bubis
thought that was long enough to be a "fair trial." Bubis answered that he was not
going to rehire Hines, that he was going to check with an attorney, and Hodgin
should talk to him (Bubis) the next day.26
According to Bubis, he told Hodgin that the three women are "either back at
work or on their way in to work." If Bubis made such a statement to Hodgin, it
was not true for it is undisputed that Hines was not recalled until October.
A few days later, Bubis told Hodgin that he had "contacted" his lawyer and that
he was going to let the Union go,through the National Labor Relations Board.
Hodgin asked again about Hines and Bubis repeated that he was not going to rehire
her. Hodgin told Bubis that he would file both a representation petition and unfair
labor practice charges.
There is no evidence that Bubis ever questioned the Union's majority, or referred
to the Union's offer to submit its proof to any "impartial third party," or raised
any question about the unit described in Hodgin's letter.
10. The conversations between Plant Manager Helton and employee
Robert Perkins on or about July 26
On some undisclosed date, probably in July, Robert Perkins, who attended the
union meetings, signed a card, and did not write a letter requesting it back, bor-
rowed $20 from the Company "through" Plant Manager Helton. In May, Helton
had signed, personally, with Perkins a note for $200 to enable the latter to obtain
a bank loan. The $20 company loan was to be paid back by deducting $5 a week
from Perkins' paycheck and, apparently, $5 a week was to be deducted to be
applied to the bank loan.
It.is undisputed that the week of July 19 to 23, the week of the events pre-
viously described, an additional amount, appaiently $5, was deducted from Per-
kins' check to be applied to the $20 company loan 27 This action irritated Perkins
and, as a result, he did not report for work on Saturday morning, July 24, as he
was supposed to do. Although there is no allegation that Perkins was a supervisor,
he was "in charge of" the peanut butter line and his absence caused the Company
some, probably considerable, inconvenience.
On Monday, July 26, Helton'-asked Perkins why he did not come to work on
Saturday and Perkins explained that it was because of the "extra" money deducted
from his check the week before and Perkins charged that the money had been
deducted because of his affiliation with the Union and stated that he did not think
that was right.
Helton told Perkins that he should have told him [Helton] that he went to the
union meeting and Perkins replied that he did not think that it was any of Helton's
"business." Helton's answer was, "Well, from now [on], you don't expect [any]
favors from the Company any more. You go to the union and get them."
Helton did not claim, at the hearing, that there was no basis for Perkins' charge
that the extra money was withheld because of Perkins' union activity and did not
deny Perkins' testimony concerning their conversation. He admittedly talked to
Perkins about not coming to work but "frankly" could not remember everything
that was said. However, he recalled telling Perkins that if he needed financial help
in the future, not to come to him "but to go to the Union."
21 In view of the fact that there was a layoff and that Hines was not recalled, ,I credit
Hodgin's testimony. It may be that Bubis also made the statements he claimed in an
effort to avoid further questions by Hodgin about the layoffs generally and the discharge
of Hines in particular. Early in the hearing, Respondent's counsel stated that Hodgin had
been found guilty of having guns and hand grenades in his car and that evidence to that
effect would be introduced if Hodgin was a witness However, no such evidence was in-
troduced although Hodgin was a witness and his testimony conflicted with that of Bubis.
Whatever had happened, Hodgin was present throughout the hearing
x Perkins testified without denial that he was not behind on the bank loan at that time,
that he got behind later, after leaving the Company.
AMERICAN TEA & COFFEE CO., INC. 1805
11. The conversations in the office of Vice President Bubis
A week or two after July 20, Vice President Bubis called employee Oma Rich-
ardson into his office as she was leaving the plant after work. Bubis told Richard-
son, who had signed a union card and not asked for it back, that he would "just
like to know" if she thought she would benefit from "outside help." The answer
to such a question was almost certain to reveal and did reveal Richardson's attitude
toward the Union for she answered in the affirmative. Richardson mentioned that
the employees had requested fans but had not got them and that they needed
something to keep them from getting blisters on their hands from tightening the
lids on the peanut butter jars.
Bubis also asked Richardson if she would like to see the blueprints of some new
machines and she said no, that she would believe him. Bubis told Richardson that
there was machinery which could replace all but two of the girls on the tea line
and could take the place of the men on the coffee "roaster" for one man could run
it only 15 minutes a day. Bubis also told Richardson that he could not discuss raises
"because of the Union situation." 28
On the afternoon of August 19, i.e., about a week before the election, (see
infra), Bubis called employee Margaret Spencer into his office. Spencer, like Rich-
ardson, had signed a union card and had not asked for it back. After commenting
that she had worked for the Company a good while, that her work had been "good"
and that there had been no complaints from Plant Manager Helton, Bubis told
Spencer, "I just want to know how you feel about the Union . . . I see you wear
your union button . . . which . . . is fine. . It's up to you.... I don't tell
you not to. . It's your business to wear the pin as long as you want to" and
asked Spencer how she felt about the Union. She replied that she thought a union
is a good thing if it is run right and everyone works together. Bubis disagreed,
saying "he didn't feel like he could afford a union to come in, or any other outside
help to come in to help run the place." Bubis added that it was a small plant and
he felt they could all continue to run it together. Bubis also suggested that Spen-
cer bring her son in and let him work during the summer.
Bubis assured Spencer that he was not going to ask her how she was going to
vote because it was her business, that no one would know how she voted, that it
was "between [her] and God" but asked that she think about what he had told
her and expressed the hope that she would vote his way.29
When Bubis was asked if he asked Spencer how she felt about the Union, he
replied, "I would say it did not happen" and "I feel confident that I never asked
her questions like" that his explanation being that "by then" he had learned what
he could not do and, "I try to not to do what I'm not supposed to do." Having
considered the whole record, including Bubis' testimony in other respects and his
statements in his affidavit, I do not credit his testimony and find that his conver-
sation with Spencer was that which she described.
Nicks, but not Vice President Bubis, testified that on one occasion she went to
Bubis' office because she did not know whether she was "safe" working in the
plant, "the way some of the girls" were throwing glass and "crying and squalling
back there." According to Nicks, Bubis told her to notify him if "they start trou-
ble" and he would transfer her so she would not have to work with "them."
Assuming that Nicks' testimony is true, she did not identify the "girls" involved
so that it is impossible to determine whether the prounion or antiunion employees
were chiefly responsible or whether it was six of one and a half a dozen of the
other.
The above findings are based on the credited testimony of Richardson. Bubis' testi-
mony to the contrary is discredited. He did admit that a machine could be bought which
could perform much of the work done by the girls on the tea line, that salesmen had been
calling for years, leaving blueprints and cost estimates, that the Company weighs each
year whether to purchase the machinery and had "paced off" where the machinery would
be placed. He asserted that the machinery would not affect Richardson's job because she
worked on the peanut butter line. However, the Company's own testimony establishes that
the women working on tea are transferred to the peanut butter line when tea work falls
off, thereby causing the layoff of peanut butter line employees.
2OAccording to Spencer, Bubis told her that Union Representative Hodgin had been
caught with guns and grenades in his car but Spencer commented, "I don't know that that's
the truth. I didn 't read it." It may be that Spencer was confused in this respect and was
quoting a statement Bubis made in a speech about a week later.
1806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
12. The Company's refusal, in August, to allow Jennie Jones to work
and its discharge of Margaret Jones
As noted supra, Jennie Jones was sick during the first 2 weeks in August and
when she sought to return to work on or about August 16, she was told that she
was not needed because the work was "caught up."
On or about August 20, Plant Manager Helton told Margaret Jones that he was
"going to have to let [her] go" but gave no reason. She went back to the plant a
few days later to pick up her check and separation slip. As she was leaving, Vice
President Bubis called her back to ask if Helton had told her that she would be
"rehired" when work picked up. Jones answered "No," that Helton had said only
that he would have to let her go. Bubis then said that Helton had told him that
he had told Jones that he would call Jones when there was more work. Jones
replied, "Well, he didn't."
Jones' separation slip read both "laid off" due to "lack of work" and "perma-
nently terminated." 30
According to the Company, there was no work for Jennie Jones and Margaret
Jones and each knew or was told that she would be recalled when there was work
for her.
Although the Company seeks to avoid overtime, its records show that during the
week of August 20, the employees worked a total of 63 hours of overtime and
that during the week of August 27, a total of 89 hours of overtime was worked.
Among those working substantial overtime those weeks were Gertrude Patrick (8
and 10 hours), Birdie Nicks (7 and 10 hours), Geraldine Hunt (7 and 10 hours),
and Margaret Spencer (7 and 10 hours)31
In addition, the testimony of Bubis discloses that there was considerable absen-
teeism during this period and that he called Jennie Jones about August 11 or 12
to find out if she was coming back to work. As he put it, "If we were going to use
her, we needed her when we needed her . . . and if she was coming back to work
we needed her then and not later because the work was fast running out. .. .
Also, as set forth infra, Oma Richardson and Margaret Spencer, both regular
employees, quit on August 27. However, there is no evidence that the Company
made any effort to recall either Jennie Jones, Margaret Jones, or Kathleen Hines.
Instead, it hired new and inexperienced employees.
13. The resignation of employees Richardson and Spencer on August 27
Oma Richardson and Margaret Spencer were year-round employees who joined
the Union and did not attend the meeting in Bubis' office and did not write to the
Union asking for their cards back. They quit the Company on August 27, the day
of the election. Vice President Bubis asked them not to quit saying that they had
jobs with the Company as long as they wanted them. However, when Richardson
and Spencer later talked to Plant Manager Helton, he told Richardson, "Well,
that's good. We will be better off here without you." Helton did not direct his
remark at Spencer specifically but as she put it, "I was with [Richardson]." There
is no claim that Richardson's or Spencer's work had ever been criticized and, in
fact, Vice President Bubis had told Richardson not long before that her work was
"good."
When asked about his conversation with Richardson, Helton answered:
I said, "Well, that's good"-pardon me. Now after that I don't know
what else was said. There was some other conversation.
This testimony provides further evidence of Helton's loss of memory, in this case,
a very sudden loss under circumstances which make it abundantly clear that his
"loss of memory" about the rest of the conversation was due to the fact that
Helton preferred not to have it in the record.
Spencer explained that she quit because "there was so much confusion going on
[at the plant] that I just didn't feel like I wanted to work in it." She testified that
she did not quit because of anything Bubis or Helton said to her and the complaint
contains no allegation that the Company was responsible for the decision of Rich-
ardson and Spencer to quit.
As stated above, the Company did not recall either Margaret Jones, Jennie Jones,
or Hines at this time but hired new and inexperienced employees.
30 The above facts are based on Jones' undenied and credited testimony.
81 These figures are rounded off to the nearest figure.
AMERICAN TEA & COFFEE CO., INC. 1807
14. Plant Manager Helton 's conversations with employee George
Stephen Henry in September and thereafter
As noted supra , Respondent hired a number of new employees in early Septem-
ber, some brought in by other employees and some sent by the State employment
service. The applicants were interviewed by Plant Manager Helton and some were
hired and some were not hired . Helton concededly said substantially the same thing
to everyone interviewed during this period.
One of those interviewed and hired by Helton was George Stephen Henry. Dur-
ing the interview , Helton asked Henry if he or anyone in his family was a mem-
ber of the Union . Henry answered that his stepfather belonged to the Teamsters,
that he (Henry) had worked for another company and the Union tried to get them
to join there, the company told him not to join, and that he had not signed a
card. Helton asked what Henry thought about the Union and Henry said he had
no opinion because he was new and did not know either side of the argument.
Helton explained that there had been a "mix up" at the plant , that the Union
had lost an election, that people got mad and quit and that was the reason a new
employee was needed.
Helton 's version of the interview was that he told Henry, as he did all job appli-
cants at that time , that there had been an election which the Union lost, that
the Company had been threatened with pickets ( although there is no evidence to
that effect ), and "I want you to understand that this could happen [ i.e., there
could be a picket line], and if it does, you would have to decide whether or not
you want to cross a picket line and come to work." Helton admitted that Henry
said his stepfather belonged to the Teamsters , that there had been a union cam-
paign where he worked before but that he had not joined the Union.
On direct examination , Helton denied asking Henry if he was for or against the
Teamsters or what his opinion was of the Teamsters or of "a union ." On cross-
examination , he said he did not recall and did not know whether he asked the job
applicants during this period about their "ideas on the union in general ." He admit-
tedly hired some but not all the employees interviewed and could not recall "specif-
ically" whether be hired anyone who said he or she would not cross a picket line.
For the reasons set forth previously , I have concluded that Helton was not a
reliable witness and am convinced that, as on other occasions , he did not testify
truthfully or fully about what he said to Henry, whose testimony I credit.
Henry, though not a supervisor , was "in charge of" one or more of the produc-
tion lines. A month or so after Henry was hired , the complaint issued and Mar-
garet Jones, Jennie Jones, and Kathleen Hines were recalled. Helton told Henry
that he wanted the three women kept "off the line," that they were the three "agita-
tors, trouble makers from the union that started all that union mess . . That
they had to hire them back for some reason ." Helton also told Henry , "If the line
breaks down and you are out of help . . . just shut the line down and come and
get me." On one occasion , there was some old peanut butter to dump and Helton
told Henry to "get one of them three deadheads back there that picks peanuts,"
meaning the two Jones women and Hines.
Henry had made a comment to the effect that something would not have hap-
pened if there was a Union and on some undisclosed date Margaret Jones and
Jennie Jones asked Henry to sign a union card and he did so while sitting in a car
with Jennie Jones and Hines. The next day , Plant Manager Helton told Henry, "Of
course, you know that we know that you signed a union card," adding that Henry
had been "tricked into" doing so , that he was "misled by that young girl back
there" who had offered him something for signing the card . Helton did not men-
tion a name but Henry believed that Helton was talking about Margaret Jones.
About 2 weeks before the hearing , Henry and a Negro employee got in a fight
which, according to Henry, started when he gave the Negro an order and the latter
hit Henry . Helton's version was that Henry called the Negro a black s.o.b.; the
Negro hit Henry, and there was a fight . Helton talked to both employees and
they shook hands. He then talked to Henry alone and told him that if Henry said
anything like that again, he would be discharged whether or not he had signed a
union card . Helton explained that an employee , whose name he did not give, had
told him that Henry had signed a card .32
32 I believe that if Helton had received his information from Jennie Jones, Margaret
Jones, or Kathleen Hines , as suggested by Respondent , he would have been quick to say so.
1808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It may well be true that Henry called the Negro a name but, again, I do not
credit Helton's testimony concerning his statements to Henry about Margaret Jones,
Jennie Jones, and Hines. I find, instead, that Helton made the statements attributed
to him by Henry in this and other respects.
15. The election, the Union's objections, and the Board's Order
with respect thereto
The Company having refused to bargain, the Union filed a representation petition
on July 30 and on August 18, the Company and the Union signed a stipulation for
certification upon consent election which was approved by the Regional Director
the next day. The unit was described as including production workers and truck-
drivers and excluding office clericals, guards, and supervisors as defined by the
Act.33 The election was scheduled for August 27.
On August 26, i.e., the day before the election, the Union signed a request to
proceed with the election which states:
The undersigned hereby requests the Regional Director to proceed with the
above-captioned representation case, notwithstanding the charges of unfair labor
practices filed in Case No. 26-CA-2168. It is understood that the Board will
not entertain objections to any election in this matter based upon conduct occur-
ring prior to the filing of the petition.
The election was held on August 27 and the certification of conduct of election,
which was signed by Robert Perkins on behalf of the Union, stated that the ballot-
ing was fairly conducted, that all eligible employees were given an opportunity to
vote their ballots in secret, and that the ballot box was protected in the interest of
a fair and secret vote.
The tally of ballots stated that there were 16 eligible voters, that there were 9
votes against the Union, 3 for the Union, and 4 challenged ballots. The challenged
ballots were those cast by Jennie Jones, Margaret Jones, Kathleen Hines, all "sea-
sonal" employees who had been laid off or discharged, and Shirley Dabbs who had
either quit or was on maternity leave.
The Union filed timely objections on August 31 and a timely amendment on Sep-
tember 1, i.e.:
1. The basis for the objections is that the Company violated the Act from
July 20, 1965, forward; generally, their conduct was one of harrassment [sic],
discrimination and violation of the people's individual rights under this Act
with the purpose in mind of destroying the majority status of this Local Union.
Specifically, the Company laid off Jennie Jones, Margie Jones and Kathleen
Hines upon learning of their affiliation with this organization.
2. On or about July 20, 1965, Mr. Marvin Bubis held meetings individually
and collectively with at least 5 employees in one group and in these meetings
castigated the Union and its membership, urged them to bring their troubles to
him and disaffiliate themselves with the above named organization.
3. On Thursday, August 26, one day preceding and within 24 hours of the
time the N.L.R.B. conducted the election, [Bubis] held a captive audience
meeting in violation of the National Labor Relations Act, urging them to vote
against the Union,and took this opportunity to personally attack the character
of one Mr. David Hodgin, a representative of the above named labor
organization.
On October 6, the Regional Director issued his report on objections in which he
stated that an investigation had been conducted and that all parties had been given
an opportunity to submit evidence. As to objections 1 and 2, he pointed out that the
incidents relied upon were the same as those which were alleged in unfair labor
as Although the bargaining unit described in Union Representative Hodgin's letter of
July 20 differed somewhat from that set forth in the stipulation for certification upon con-
sent election, it is clear that Respondent did not challenge the unit proposed by Hodgin
and that it did not base its refusal to bargain on a good-faith doubt of the appropriate-
ness of the unit set forth in the Union's July 20 letter. It is equally clear that, in view of
the 13 cards signed, the Union had a majority in any unit which the Company might have
suggested. Finally, Bubis clearly learned from his conversations with the employees that
all of the factory employees, i.e., all of those on the payroll, were involved in the orga-
nizational campaign.
AMERICAN TEA & COFFEE CO., INC. 1809
practice charges and that a complaint, based thereon, would issue shortly. He con-
cluded, therefore, that these two objections "raise material and substantial issues
which may best be resolved on the basis of record testimony."
After carefully reviewing Bubis' speech on August 26, he concluded that it con-
stituted "legitimate campaign propaganda" and that the Union's third objection
was without merit.
The Company filed exceptions to the report and on October 27 the Board issued
an order directing hearing in the representation case in which it adopted the recom-
mendations in the Regional Director's report which included rejection of the
Union's objection 3. It ordered that a hearing be held to resolve the issues raised
by objections 1 and 2 and stated that the hearing could be consolidated with the
hearing in the unfair labor practice cases. It also directed that, after the hearing,
the Trial Examiner or the Hearing Officer prepare and cause to be served on the
parties a report containing resolutions of the credibility of witnesses, findings of
fact, and recommendations to the Board as to the disposition of the issues raised by
objections 1 and 2.
The hearing on objections and the hearing on the allegations in the complaint
were subsequently consolidated.34
C. Analysis and conclusions
1. The interference, restraint, and coercion
a. The Company's conduct in July
As set forth supra, the union campaign was initiated about the middle of July by
employee Jennie Jones and by the close of the union meeting on July 19, 13 of the
16 employees on the payroll had signed union cards.
The Company learned about the union campaign a few hours before the meeting
on July 19 and Vice President Bubis and/or Plant Manager Helton immediately
went to the homes of three employees, i.e. Anderson, who had signed a card and
obtained signed cards from two other employees, Hall who had also signed a card,
and Watkins who had not signed a card because he was of "retirement age." Bubis
asked about the dissatisfaction among the employees, indicated that he knew about
the union meeting scheduled for that night, asked what the employees knew about
it, expressed his desire to "iron out" difficulties, and when Hall complained about
the working space, Bubis told him he was going to try to "remedy" that situation.
One of the effects of the visits was that Watkins tried to find Jennie Jones' tele-
phone number and later told Jones about Bubis' visit and inquiry about the meet-
ing. Another was that Anderson immediately made a special trip to the plant to
talk to Bubis again although neither testified to what he said. A few days later,
Anderson, Hall, and Watkins attended the meeting in Bubis' office and Anderson
and Hall wrote letters to the Union asking for their cards back. (Watkins had not
signed a card because he was of "retirement age.")
Respondent admittedly believed that Jennie Jones, Margaret Jones, and Kathleen
Hines were the leaders of the union campaign and Jennie Jones , was sent home the
next morning, Margaret Jones would have been sent home had she reported for
work, and Hines was discharged. As found infra, the Company's action was moti-
vated by the union activity generally and of the three employees in particular and
violated Section 8(a) (3) and (1) of the Act.
x In an offer of proof, which was rejected, Vice President Bubis described a call, after
the election, from Teamster Representative James Craighead in which the latter asserted
that the campaign and/or election had been "hashed up" or "blown" by Union Representa-
tive Hodgin, sought a meeting with Bubis, and claimed that he did not want to do to
Respondent what the Teamsters were doing to Sunbeam Bakeries. A few minutes later,
a truck painted like a Sunbeam truck drove by with a sign stating that Sunbeam Bakeries
had been fined thousands of dollars for putting bugs in their bread. (The record does not
indicate whether or not the sign was true or whether the bakery brought an action against
the Union ) If these facts are in fact relevant to the Company's obligation to bargain, it
should also be noted that Bubis did not meet with the Union and that there is no evidence
of any Teamster action against Respondent at any time other than its filing of the unfair
labor practice charges. - ,
257-551-67-vo] 160-115
1810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also on July 20, the employees, other than the three named above were called
together and Vice President Bubis made a speech in which, inter alia, he:
(1) Stated that he would close the plant and/or lock the doors if the Union
came in and reminded the employees that some of them depended on the Company
for their food;
(2) Directed the employees to discuss the situation and come up with a decision;
i.e., a decision other than the one they had already made when 13 of the 16 signed
union cards;
(3) Criticized the employees for going to an "outside party," characterized "out-
side help" as "interference," said that the employees should have come to him first,
and pointed out that, in the past, the employees and the Company had always dealt
with each other directly;
(4) Sought to learn the employees' grievances and promptly remedied one of
them; i.e., the absence of fans.
A day or two later, Patrick, who had notified the Company about what was going
on, and two other employees asked Bubis how they could get their cards back and
indicated that they would like to have a meeting to talk about it. Bubis, in turn,
told them they could write letters, offered them the use of his office and the meet-
ing was in fact held there with Bubis and Plant Manager Helton present. Allegedly,
no one who attended the meeting was able to recall much of what was said at the
hour-long meeting, particularly by Vice President Bubis, but all of those present
who had signed cards wrote letters asking for them back. Included in the eight
employees present were Patrick, her aunt, Birdie Nicks, and all three men who
were visited by Bubis and/or Helton; i.e., Anderson, Watkins, and Hall. It seems
likely that the Company furnished the paper, envelopes, and stamps and the letters
were mailed by the company "mailman." About a week later, another employee
asked for and was given permission to have a similar letter typed by one of the
office employees and, significantly, asked that his card be returned to him at the
plant.
Also in late July, a larger amount than had been agreed to was withheld from
the paycheck of employee Robert Perkins to reduce a loan he had obtained from
the Company. When Perkins, who had signed a card and had not asked for it back,
charged that the Company's action was motivated by his union activity, Plant Man-
ager Helton did not deny Perkin's charge. Perkins had not reported to work on the
previous Saturday and the Company had good cause to reprimand him and to warn
him not to expect any more favors from the Company. However Helton disclosed
that the Company's irritation with Perkins was not based entirely upon his failure
to report for work for he told Perkins that Perkins should have reported the fact
that he attended the union meeting and told Perkins to go to the Union for money
in the future.
Having considered Respondent's questions, threats, statements, comments, and
actions "in connection with the position of the parties, with the background and
circumstances in which they were made and with the general conduct, of the par-
ties," I find that the acts set forth above were "part of a general pattern of course
of conduct" which interfered with, restrained, and coerced the employees in viola-
tion of Section 8(a) (1) of the Act. N.L.R.B. v. Kropp Forge Co., 178 F.2d 822,
828-829 (C.A. 7), cert. denied 340 U.S. 810. These acts included interrogation,
threats of reprisal, particularly the threat to close the plant, the Company's orders
to the employees to reach a decision other than the one they had already reached,
to deal with the Company directly, as in the past, its criticism of the employees
for seeking "outside help," its inquiries about their complaints and the prompt pro-
duction of fans, the role played by the Company in arranging the meeting in the
office of Vice President Bubis at which five of the employees wrote letters asking
for their cards back, and the presence at that meeting of Vice President Bubis and
Plant Manager Helton. N.L.R.B. v. Tru-Line Metal Products Company, 324 F.2d
614, 616 (C.A. 6); United Fireworks Mfg. Co. v. N.L.R.B., 252 F.2d 428, 430
(C.A. 6), N.L.R.B. v. Wilbur H. Ford d/b/a Ford Brotheis, 170 F.2d 735, 738
(C.A. 6); N.L.R B. v. Camco, Inc., 340 F.2d 803, 804-807 (C.A. 5).
b. Respondent's conduct in August
In late July or early August, Vice President Bubis called Oma Richardson into
his office. Richardson had signed a union card and had not asked for it back. Bubis
said he would like to know if Richardson thought she would benefit from "outside
AMEIUCAN TEA & COFFEE CO., INC. 1811
help" and Richardson said she did and gave her reasons . Bubis also told Richard-
son about machinery the Company could buy which would do the work of a sub-
stantial number of the employees.
On August 19, about a week before the election , Bubis called employee Margaret
Spencer into the office, Spencer, like Richardson , had signed a union card and not
asked for it back. Bubis asked Spencer how she felt about the Union , commented
on her union button, implied that she was wearing it only with his permission, i.e.,
by telling her that he was not telling her not to wear it , stated that he "didn't feel
like he could afford" to have the Union "come in," and suggested that Spencer's
son work for the Company.
I find that the above conduct, including interrogation , implied threats, and
implied promises of benefits , particularly when considered in the light of the Com-
pany's earlier conduct, constituted interference , restraint , and coercion , and violated
Section 8 (a)(1) of the Act. See cases cited infra.
c. Respondent's conduct in September and thereafter
When Plant Manager Helton interviewed job applicant Henry in September, he
questioned Henry about his attitude toward the Union,35 later told Henry that the
Company knew he had signed a union card, and commented that he had been
"tricked" into doing so. In other conversations with Henry, Helton also referred to
Jennie Jones, Margaret Jones, and Kathleen Hines as "agitators," "trouble makers"
and as the employees who were responsible for the union "mess." Helton also told
Henry that the three women had been recalled only because the Company had to
take them back and instructed Henry to keep them off the production line, i.e.,
away from the other employees, even if it meant shutting down the line.
Thus, even after the election, the Company engaged in interrogation, created the
impression that the Company was engaging in surveillance, i.e., was keeping itself
informed about the union activity of the employees, and made statements which
revealed the Company's hostility toward and its willingness and intent to discrimi-
nate against employees who engaged in union activity. The reasonable tendency of
such conduct, especially when considered in the light of Respondent's earlier con-
duct, was to interfere with, restrain, and coerce the employees in the exercise of
the rights guaranteed them by the Act. Cf. N.L.R.B. v. Ford, supra. It follows there-
fore, and I find that Respondent thereby violated Section 8(a)(1) of the Act. See
also N.L.R.B v. Community Motor Bus Co., 335 F.2d 120, 122 (C.A. 4); Hendrix
Manufacturing Company v. N.L.R.B., 321 F.2d 803, 805-806 (C.A. 5). As the
court said in the latter case, the question is the interpretation the employees reason-
ably could give the Company's statements and "whether, from the listener's point
of view, these statements .. . constituted forbidden coercion, threats, or
intimidation." 36
2. The discrimination against Jennie Jones , Margaret Jones, and
Kathleen Hines
a. The discrimination in July
It is undisputed that Jennie Jones initiated the union campaign, visited a number
of employees at their homes and/or talked to them about the Union at the plant,
and got them to sign union cards. In addition, all of the union meetings were held
at her home. Mary Kathleen Hines, Jennie Jones' sister, stated openly at the plant
that she was going to the July 19 union meeting, in fact did so, and signed a card.
Margaret Jones, who is not related to Jennie Jones but who Respondent may well
have believed was related to Jennie, also signed a card and attended the meeting.
Of course, Plant Manager Helton admitted that he "understood" or "felt" or was
of the `opinion" that these three women started the union campaign and it is
undisputed that both Bubis and Helton knew that there was a union wetting on
July 19.
w As noted supra, Helton testified that he said substantially the same thing to all of the
job applicants he interviewed during this period.
36 Although some of the Company's conduct was not specifically set forth in the com-
plaint, the question of whether the employer engaged in the conduct previously set forth
was fully litigated. Rocky Mountain Natural Gas Company, Inc v. N.L.R.B., 326 F.2d 949,
951, footnote 3 (C.A. 10).
1812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As set forth supra, when Jennie Jones and Kathleen Hines arrived at the plant
on July 20, the morning after the meeting at Jones' home and after the Bubis and/
or Helton visits to the homes of the three employees, they were told that the peanut
butter line was broken down and Jones was sent home and Hines discharged
although she had been hired only the day before for 4 to 6 weeks because the Com-
pany was "at least three weeks behind" on tea orders. It is also undisputed that
Margaret Jones would have been sent home but she did not come to work that
day because one of her children was sick.37
That same afternoon, Bubis made a speech to the remaining employees in which,
inter alia, he threatened to close the plant, criticized the employees for seeking
"outside help," referred to such help as "interference," ordered them to deal with
him directly about their problems, made notes of their grievances and promptly
remedied the major complaint, i.e., the absence of fans, referred to the July 19
meeting, saying that he did not need tell the employees who had attended that
meeting, and directed them to discuss the situation and reach a decision; i.e., a
decision other than the one they had already made when they signed union cards.
The above facts, as well as Bubis' role in the meeting in his office a day or two
later, the refusal to bargain, Bubis' subsequent questioning of prounion employees
Richardson and Spencer, Helton's conversation with Perkins, Helton's comment
when Richardson and Spencer quit, i.e., "good," that the Company was better off
without them,38 and Helton's questioning of and statements to job applicants and
later employee Henry, establishes both the Company's hostility toward the Union
and the Company's willingness to commit unfair labor practices in an effort to
avoid its obligation to bargain by destroying the Union's clear majority.
It is undisputed that the backlog of tea orders was such that Hines was hired on
July 19 to help get the "extra" orders filled. She was told that she would work for
4 to 6 weeks. Furthermore, no one was sent home on Monday and no one was
told not to report to work the next morning.
However, an hour or two after the plant closed on Monday, the Company admit-
tedly learned about the union campaign and the meeting that night. It would be
naive indeed to doubt that it did not also learn from Patrick or one of the men
visited by Bubis and/or Helton that the meeting was to be held at the home of Jen-
nie Jones and that she was chiefly responsible for the campaign and that Margaret
Jones and Kathleen Hines were also prounion.
The next morning, Respondent allegedly had no work for Jennie Jones, Margaret
Jones, or Kathleen Hines and discharged the latter. For the reasons set forth supra,
including the Company's failure to tell anyone on Monday afternoon not to report
for work the next morning, the backlog of tea orders which was large enough to
cause the Company to hire Hines on July 19, and the fact that new peanuts were
expected any minute which meant that the peanut butter line would be in operation
shortly, it has been found that the Company's action at 8 a.m. on July 20 was
not caused by the reason it alleged; i.e., that there was no work. Moreover, accord-
ing to Bubis, he first told Union Representative Hodgin that no one had been laid
off and, a day or so later, told Hodgin that all three employees were either back
at work or on their way back, statements which, if made, were clearly false. (If
Bubis made such statements, he was clearly seeking to mislead the Union about
the Company's actions on July 20-21.) In fact, Bubis told Hodgin that Hines'
work was unsatisfactory, a charge which was not repeated at the hearing.
The above chain of events, without more, would be sufficient to warrant the
conclusion that the Company's action was motivated by the fact that the three
women were either responsible for or active in the union campaign. Cf, Angwell
Curtain Company, Inc. v. N.L.R.B., 192 F.2d. 899, 903 (C.A. 7) in which the
court stated, "It stretches credulity too far to believe that there was only a coin-
cidental relationship between [the employees'] enthusiastic solicitation upon behalf
37 Cf. The following statement in Bubis' affidavit :
[Il did not know of [Jennie] Jones' union activity on the day she was laid off on
July 19 or 20. I did not know of any activity on or before those dates [Emphasis
supplied I
-As noted supra, there is no claim that the work of either employee had ever been
pgriticized.
AMERICAN TEA & COFFEE CO., INC. 1813
of the union on Monday , Tuesday and Wednesday and the abrupt termination of
[their] employment on Thursday , at a time when there was plenty of work in
[their] department." 39
However, there is further evidence that the Company's treatment of the three
women was not based upon the lack of work. Thus, during this period most of
the employees worked a substantial amount of overtime . And, more importantly,
when Richardson and Spencer quit on August 27, the Company did not make
any attempt to recall Jennie Jones, Margaret Jones, or Kathleen Hines but, instead,
hired new and wholly inexperienced employees. Although Hines had no experience,
Jennie Jones and Margaret Jones had worked for the Company not only in 1965
but in previous years and as the court observed in N.L .R.B. v. Northwestern
Publishing Company, 343 F . 2d 521 , 526 (C .A. 7), absent contrary evidence, it
would appear that "seasoned" employees are likely to be better employees than
"green hands."
Although the two Jones women , but not Hines , returned to work on July 21
or 22 , neither was on the payroll on election day; i .e., August 27. Furthermore, the
Union put Bubis on notice on July 20 that it would claim that the women were
terminated because of their union activity and Bubis must have known that the
Company's records would not support an assertion that there was no work for
them . In any event , the two had done all the harm they could do for the time
being and Respondent in fact needed employees badly, as disclosed by the amount
of overtime worked that week.
Finally, when Jennie Jones, Margaret Jones, and Kathleen Hines were recalled in
October, at or about the time the complaint issued , Plant Manager Helton referred
to them as "agitators ," "trouble makers" and those responsible for the "Union
mess" who the Company had to recall for some reason . During the same period,
Helton charged that one of the three had "tricked" a newly hired employee into
signing a union card and ordered that they be isolated as much as possible even
if they were needed to keep the regular production lines operating . And they were
isolated from the other employees as much as possible and were assigned , at least
in part, to odd jobs.
Having considered all of the foregoing facts , including Respondent 's threats of
reprisals for union activity and its repeated illegal efforts to destroy the Union's
majority, I conclude that a preponderance of the evidence establishes that Jennie
Jones was laid off on July 20 and Kathleen Hines was discharged the same day
because of the union activity generally and their union activity in particular. It
follows, therefore , and I find that Respondent thereby violated Section 8(a)(3)
and (1) of the Act . See N.L.R.B. v . Putnam Tool Company, 290 F .2d 663, 664-
665 (C.A. 6), in which the court 's summary of the facts indicates that it consid-
ered significant the close relationship between the company 's actions and the var-
ious stages of the employees ' efforts to obtain union representation . And the court
in N.L.R.B. v. Camco , Incorporated , 340 F .2d 803 , 810, 811-812 (C .A. 5), refused
to believe that the events in that case were nothing more than "an incredible
series of coincidences."
b. The discrimination in August
The Union filed its representation petition on July 30 and the Board-conducted
election was scheduled for and held on August 27.
Jennie Jones was sick during the first 2 weeks of August and when she sought
to return to work on or about August 16, i.e., about 10 days before the election,
she was told there was no work for her. On August 20, i.e. , a week before the
election , Margaret Jones was discharged , allegedly because of a lack of work.
However, as set forth supra, although the Company understandably seeks to
avoid overtime , virtually all of the employees worked a substantial number of
hours of overtime during the weeks of August 16 and 20 . Furthermore , neither
Jennie Jones nor Margaret Jones nor Kathleen Hines was recalled when Richard-
son and Spencer quit on August 27. Instead , the Company hired new and inexpe-
rienced employees . Then , they were recalled at or about the time the complaint
issued although fall is supposedly a slow season.
It is possible that Bubis also wanted these women not to hear his speech that day
lest they report to the Union what he said.
1814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having considered the foregoing facts, as well as what had gone before and
the relationship between the dates on which Jennie Jones and Margaret Jones
were refused employment in August and the election , I find that a preponderance
of the evidence establishes that Jennie Jones and Margaret Jones were removed
from the payroll at that time because of their union activity and because of the
forthcoming election at which they could be expected to vote for the Union. It
follows, therefore, and I find that Respondent thereby violated Section 8(a)(3)
and (1) of the Act.
c. The discrimination in October and thereafter
Even after the Union lost the election , Respondent did not relax its efforts to
make sure that its employees would have nothing to do with the Union. Thus,
when Plant Manager Helton interviewed job applicant Henry in early September,
he asked how Henry felt about the Union and later let Henry know that he knew
that Henry had signed a union card.
After Jennie Jones, Margaret Jones, and Kathleen Hines returned to work in
October, Helton referred to them as "agitators ," "trouble makers," and "dead-
heads" and described them as the employees responsible for the "union mess."
Helton also directed Henry to keep them off the production lines even if additional
help was needed and they were assigned in considerable part to odd jobs which
kept them , at least to some extent , away from the other employees . Jennie Jones
was also given for the first time, a production quota and told to make a production
report.
Having considered the above facts, in the light of what had gone before, I con-
clude that a preponderance of the evidence establishes that after the three women
were recalled , Respondent sought to reduce their contacts with the other employ-
ees, assigned them as undesirable jobs as possible, and that its purpose was to penal-
ize the three women because of their union activity and to discourage the other
employees from engaging in union activity and that Respondent thereby violated
Section 8(a)(3) and (1) of the Act.40
3. The refusal to bargain in violation of Section 8(a)(5) and ( 1) of the Act
On or before July 19, 13 of the 16 employees on the payroll signed union cards
which read:
The undersigned hereby apply for admission to membership in the above
Union . . . and voluntarily choose and designate it as my representative for
purposes of collective bargaining ... .
It is clear from the employees ' testimony that they understood , when they signed
the cards , that they were choosing union representation and even on July 21, the
day after the layoff of Jones , the discharge of Hines , and Bubis' speech, many of
the employees , probably a majority of them , wore union buttons in the plant. Not
a single employee testified that he misunderstood the meaning of the card or that,
when he signed the card, he did not want to be represented by the Union.41
In its letter of July 20 , the Union claimed to represent a majority of the employ-
ees, offered to submit its proof to "any impartial third party" and suggested a meet-
ing date. Vice President Bubis clearly understood that the Union was requesting
recognition and bargaining and in his reply did not question the Union 's majority
claim or refer to its offer to submit its proof. Moreover, if the Company had not
learned the true state of affairs from Patrick and/or the three employees visited
by Bubis, it learned the facts when most of the employees wore union buttons on
July 21 . Finally, Bubis did not raise any question about the unit described in the
Union 's letter. Instead , Bubis said only that he could not meet on the date suggested
by the Union and proposed a meeting the following week.
Nor did Bubis question the Union's majority, nor refer to its offer to submit
proof of its claim, nor raise any question about the unit on July 22 or thereafter.
"It will be recalled that Respondent hired a number of new employees in September
who might have been persuaded to sign union cards.
n It is possible that Patrick did not wish to be represented by the Union but signed a
card in order to avoid suspicion about why she attended the meeting.
AMERICAN TEA & COFFEE CO., INC. 1815
All he ever did was to state that he had consulted an attorney and would allow
the Union to "go through" the Board; i.e., seek an election.42
In the period between learning of the union campaign from Patrick, i.e., on
July 19 , and the Company's statement indicating that there should be an election,
Bubis visited the three employees in their homes, Jennie Jones was sent home,
it was announced that Margaret Jones would be sent home, and Hines was dis-
charged. On July 20, Bubis made his speech in which he threatened to close the
plant, criticized the employees for seeking "outside help," in effect instructed
them to deal with him directly, in fact dealt with them directly, and directed
them to discuss the matter and come up with a decision. On July 21 or 22, Bubis
was informed that some of the employees wanted to ask for their cards back, a
meeting for that purpose was scheduled to be held in Bubis' office and was held
in his office under the circumstances described above.
Having considered the facts just summarized, including the Company's failure
to express any doubt the Union's majority or the unit proposed by the Union, the
Company's failure to mention the Union's offer to submit its proof, and its conduct
on July 19, 20, 21, and 22, I conclude that Respondent's failure to recognize and
bargain with the Union, upon request, was not motivated by a good-faith doubt
of the Union's majority or of the unit but by a desire to gain time within which
to destroy the Union's majority or by a belief that its conduct had already
destroyed that majority. It follows therefore, and I find that Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union which
in fact represented a substantial majority of the employees when it requested recog-
nition and bargaining. Joy Silk Mills, Inc., 85 NLRB 1263, enfd. as modified 185
F.2d 732, 741-742 (C.A.D.C.), cert. denied 341 U.S. 914. Cf. Overnite Trans-
portation Co. v. N.L.R.B., 308 F.2d 279, 283 (C.A. 4) in which the court com-
mented that the employer "unmistakably demonstrated" that it gave some credit
to the union's majority claim by embarking upon a course of "illegal" conduct.
Such conduct, according to the court, constituted an "absolute refutation" of a
claim of good-faith doubt, a claim which was never asserted in the instant case.
Also here, as in N.L.R.B. v. Inter-City Advertising Co., 190 F.2d 420, 421-422
(C.A. 4), Respondent made no effort to determine whether the Union's claim
was justified but instead engaged in unfair labor practices "in an attempt to get
rid of [the Union] as a bargaining representative." See also N.L.R.B. v. Philamon
Laboratories, Inc., 298 F.2d 176, 180 (C.A. 2). In short, the record as a whole
demonstrates that the Company's refusal to bargain was due to its "positive rejec-
tion . of the principle of collective bargaining." N.L.R.B. v. Inter-City Adver-
tising Co., supra, 422.
It has long been settled that an election is not the only means by which a union
may establish its majority status. United Mine Workers v. Arkansas Oak Flooring
Co., 351 U.S. 62, 71-72; N.L.R.B. v. Sunrise Lumber & Trim Corp., 241 F.2d
620, 624 (C.A. 2), cert. denied 355 U.S. 818. In short, an employer has no abso-
lute right to an election as a condition precedent to bargaining, especially where,
as here, he has engaged in conduct which has made a free election impossible.
(See infra.) Cf. N.L.R.B. v. Stow Manufacturing Co., 217 F.2d 900, 904 (C.A. 2),
cert. denied 348 U.S. 964.
In sum, an employer who does not assert any doubt of the union's majority
claim or of the appropriateness of the unit and who does not take any steps to
determine the merits of the union's claim but instead attempts to defeat the union
by means of conduct violative of Section 8(a)(1) and (3) of the Act may not
later claim that he had a right to refuse to bargain until the union had won a
Board-conducted election . "Such a rule," as one court has said , "would encourage
employers to commit unfair labor practices rather than promote the freedom of
employees to decide for or against a union in an atmosphere free from restraint
or coercion ...... Overnite Transportation Company v. N.L.R.B., supra.
42Although the agreed-upon unit differed somewhat from the unit described in the
Union's letter, it is clear that Respondent's refusal to bargain was not based upon a doubt
concerning the appropriateness of the unit. It is equally clear that the Union had a majority
in any unit Respondent might have proposed. Finally, Respondent was aware on July 19
and thereafter that the Union was seeking in fact to represent all of its "factory" em-
ployees I conclude, therefore, that the variance between the unit described in the Union's
letter and that agreed to by the parties is immaterial. The Lone Star Company, 149 NLRB
688, 701-702 and cases cited therein.
THIS DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor can the Respondent rely on the fact that the Union failed to win the elec-
tion on August 27 -for, as found infra, Respondent's conduct rendered a free and
uncoerced election impossible. Clearly, Congress did not provide for Board-conducted
elections in order to provide an employer with an excuse not to bargain with
a union which in fact represented a majority of the employees and about whose
majority the employer had no good-faith doubt. Even more clearly, Congress did
not provide for such elections in order to give an employer time within which to
destroy the union's majority or to provide him with an opportunity to demonstrate
that his conduct had achieved that result.
As the court said in N.L.R.B. v. Armco Drainage & Metal Products, Inc., 220
F.2d 573, 577 (C.A. 6), in such cases a Board order which would not restore to
the union the status it enjoyed prior to the employer's unfair labor practices would
allow the employer to benefit by his own illegal conduct. See also Irving Air Chute
Company V. N.L.R.B., 350 F.2d 176, 181-182 (C A. 2), enfg. 149 NLRB 627,
628-630.
4. The effect of Respondent's conduct on the election
By the close of the union meeting on July 19, 13 of the 16 employees on the
payroll had signed union cards. However, shortly before that meeting, Patrick
reported what was going on to Plant Manager Helton who, in turn, reported to
Vice President Bubis. Within an hour, Bubis and Helton started out on their visits
and Watkins, one of those visited, was sufficiently disturbed that he tried to call
Jennie Jones. Another, Anderson, who had not only signed a card but had obtained
signed cards from two other employees, was sufficiently disturbed that he did not
answer Bubis' questions truthfully and immediately after the visit made a special
trip to the plant to talk to Bubis again.
The next morning, the employees learned that Jennie Jones, who had initiated
the campaign, was laid off, that her sister, Hines, was discharged, and that Mar-
garet Jones would have been laid off had she come to work that day although, as
the employees must have known, there was plenty of work.
That afternoon, the employees were addressed by Bubis who, inter alia, threat-
ened to close the plant, criticized the employees for seeking "outside help," which
he characterized as "interference," indicated that he knew which employees had
attended the union meeting, instructed the employees to deal with him directly,
dealt with them directly, granted benefits in an effort to avoid collective bargaining,
and directed them to discuss the situation and reach a decision other than the one
they had already made when 13 of the 16 had signed union cards.
- In the light of the foregoing facts, it is scarcely surprising that some of the
employees decided on July 21 or 22 that they wanted their cards back and that
two of the leaders of this antiunion movement were Patrick and Anderson, the
latter being one of the three employees visited by Bubis and/or Helton. Nor is
it surprising that the employees made sure that Bubis knew about their change of
heart and that he was present when they wrote letters asking for their cards back.
Nor is it surprising that the others present included Hall and Watkins, the other
two employees visited by Bubis and/or Helton, and Nicks, Patrick's aunt. About a
week later, another employee wrote asking for his card back , again making sure
that Bubis knew that he had done so and, in fact, asking that his card be returned
to him at the plant. In short, not a single letter was written away from the plant
and without the direct knowledge of and assistance from the Company.
In the meantime , the Company refused to bargain with the Union even though
it did not doubt the appropriateness of the unit suggested by the Union or the
Union's majority, and made no effort to verify its claim in the manner suggested
by the Union or in any other manner. Instead, it merely stated that the Union
should seek an election.
During the same period, an extra amount of money was deducted from the pay-
check of Robert Perkins who had signed a union card and had not asked for it
back, Plant Manager Helton told Perkins that Perkins should have told him that
Perkins had gone to the union meeting and warned Perkins to go to the Union
for favors in the future.
Either in late July or early August, Vice President Bubis interrogated employee
Richardson, who had signed a card and had not asked that it be returned, about
her attitude toward the Union and reminded her that the Company could buy
machinery that could do the work of a substantial number of the employees.
AMERICAN TEA & COFFEE CO., INC. 1817
Although there was plenty of work, as disclosed by the amount of overtime
worked, Jennie Jones was refused employment on August 16, about 10 days before
the election, and Margaret Jones was discharged on August 20, a week before the
election.
And about August 19, Margaret Spencer, another employee who had signed a
card and had not asked for it back, was interrogated by Bubis who also suggested
that the Company employ her son.
In sum, by election day, the employees had ample reason to believe that their
jobs might be in danger if they voted for union representation. And, as the court
noted in N.L.R.B. v. W.C. Nabors d1b/a W.C. Nabors Company, 196 F.2d 272,
276 (C.A. 5), cert. denied 344 U.S. 865, when statements of the type made by
Bubis are made by "one who is a part of the company management and who has
the power to change prophesies into realities, such statements, whether couched in
the language of probability or certainty, tend to impede and coerce employees in
their right to self-organization and therefore constitute unfair labor practices."
Most of the employees who asked for their cards back were either women or
Negroes who had worked for the Company for 10 years or more. Such employees
might find it difficut to find and/or learn new jobs and, as Bubis reminded them in
his speech on July 20, some of them depended on the Company for their food. It
is surely reasonable to conclude, as I do, that the employees might decide that
they preferred their present jobs, without union representation, to the possibility
of no jobs at all.
Nor would employees with good reason to wish to avoid antagonizing their
employer be likely to testify in his presence that their decision to ask for their
cards back and their decision to vote against the Union resulted from the employ-
er's illegal conduct. Furthermore, as the Supreme Court pointed out in N.L.R.B. v.
Donnelly Garment Company, 330 U.S. 219, 230-232, the absence of a sense of
constraint is a "subtle thing" and recognition of "constraint calls for a high degree
of introspective perception." As a result, employee testimony is not sufficient to
overcome the more positive evidence concerning company acts which prevented
a free choice by the employees.
As set forth previously, the Union lost the election conducted on August 27
and thereafter filed three objections to it, the first two of which were based in
considerable part upon the Company's conduct in July; i.e., prior to the filing of
the representation petition. In his report on objections, the Regional Director
found no basis for the Union's third objection which was based on a speech Bubis
made the day before the election. However, the Regional Director noted that the
first two objections were based on incidents which the Union had charged consti-
tuted unfair labor practices and that a complaint, based on those charges, would be
issued shortly, as in fact occurred. He concluded, therefore, that those objections
raised material and substantial issues which could best be determined on the basis
of record testimony.
The Company filed exceptions to the report and on October 27, 1965, the Board
issued an order directing hearing in which it ordered that a hearing be held to
resolve the issues raised by the Union's objections 1 and 2 and stated that the
hearing could be consolidated with the hearing with respect to the complaint and
the two hearings were later consolidated. The Examiner hearing the case was
directed to prepare and cause to be served upon the parties a report containing
resolutions of credibility, findings of fact, and recommendations to the Board with
respect to the questions raised by the Union's objections 1 and 2.
Having considered the Company's conduct in July which included the various
events previously described, such as the visits to the employees on July 19, the
discriminatory personnel action on July 20, Bubis' speech on the same day, and
the meeting in Bubis' office a night or two later, Plant Manager Helton' s state-
ments to employee Perkins on July 26, and the Company's refusal to bargain, on
request, much of which constituted unfair labor practices, i.e., violations of Section
8(a)(1), (3), and (5) of the Act or of more than one of those sections, I conclude
that there is merit in the Union's objections 1 and 2, i.e., that Respondent engaged
in conduct in July which rendered a free and uncoerced election impossible and
that when the employees voted on August 27, they had been subjected to conduct
which makes it impossible to say that the results of the election reflected the true,
uncoerced wishes of the employees. I shall recommend, therefore, that the petition
in Case 26-RC-2463 be dismissed and that all proceedings in connection therewith
1818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be vacated. Irving Air Chute Co., Inc., 149 NLRB 627, 629-630, enfd 350 F 2d
176, 181-182 (C.A. 2). As the Board pointed out in that case, the Boaid holds
that a union which "loses an election may nevertheless seek bargaining relief
under Section 8(a)(5) of the Act or Section 8 (a)(1) in appropriate circumstances,
where it appears that the employer has engaged in conduct requiring that the elec-
tion be set aside."
Although the Union signed , on August 26, a request to proceed which states
that it is understood that the Board will not entertain objections to the election
based on conduct occurring before the petition was filed, i.e., before July 30, the
Board directed a hearing and findings with respect to the effect of such conduct on
the election and such findings have been made 43
In any event, the Union' s objections referred not only to the Company's specific
acts in July but also to its violations of the Act from July 20 "forward," the alleged
purpose of which was stated to be to destroy the Union's majority. And the Com-
pany's illegal conduct was not confined to the events in July for in August, it
violated Section 8(a)(1) of the Act by interrogating employee Spencer and violated
Section 8 (a)(3) and (1) of the Act by discriminatorily denying Jennie Jones
employment on August 16 and by discriminatorily discharging Margaret Jones on
August 20. The Company's conduct in August, of course , followed the filing of
the Union's representation petition on July 30. (It is also possible that Bubis' coer-
cive interview of employee Richardson took place in August . See infra.)
Having considered Respondent 's conduct in August, I conclude that it also , either
standing alone or when considered in the light of the Company's July conduct,
rendered a free and uncoerced election impossible.
In restoring the status quo which existed prior to the Company's unfair labor
practices, the Union is given no more than it was entitled to at the time it requested
recognition and bargaining . An election at this time would be "manifestly unfair"
to the Union and would allow Respondent to benefit by its own illegal conduct.
Irving Air Chute Co., v. N.L.R.B., supra, 182. See also N.L.R.B. v. Armco Drain-
age & Metal Products, Inc., supra.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of the
Act.
2. The Union is a labor organization within the meaning of the Act.
3. On and after July 19, the Union was the statutory bargaining representative
of Respondent 's employees in an appropriate bargaining unit; i e., its production
workers and truckdrivers , but excluding office clericals , guards, and supervisors as
defined by the Act.
4. Respondent violated Section 8(a)(1) of the Act by interrogating employees
and job applicants about the union activity and their attitude toward the Union, by
creating the impression of company surveillance of union activity , by criticizing
employees for seeking union representation , by threatening reprisals if the employ-
ees engaged in union activity or chose to be represented by the Union , by directing
them to reach a decision with respect to union representation other than the one
already reached, by directing them to bargain directly with the Company, by
bargaining directly with them in an effort to avoid collective bargaining , by promis-
ing and granting benefits in the course of direct bargaining and/or in order to
avoid collective bargaining , by promoting , assisting and taking part in a meeting
43 The Company , of course, was not a party to the request to proceed and in no way
relied upon it in determining its course of action In cases such as this, the union may
not be aware of the extent of the company's conduct and/or may not be able to evaluate
accurately the effect of the company's illegal action on the employees The Act, of course,
is designed to protect public , not private rights , and the basic issue is one which the Act
rests in the Board , not one of the parties , the right and duty to determine , i e., whether
the results of a Board -conducted election can be said to reflect the free and uncoerced
desires of the employees It would surely defeat, rather than effectuate , the policies of the
Act to allow one of the private parties to determine conclusively that a free election is
possible and to hold that the Board is bound by the union's opinion , often based on in-
adequate facts and formed by laymen. It is certainly true that , under such circumstances,
the union cannot be heard to complain if the Board chooses not to consider prepetition con-
duct but to allow the employer to rely on the union ' s action to avoid the consequences of
Its own illegal conduct would encourage employers to engage in such conduct , hoping that
the union will be unaware of the nature or extent of the company 's conduct and will be
unable to determine , accurately , the effects of such conduct on the employees.
AMERICAN TEA & COFFEE CO., INC. 1819
the purpose of which was to encourage employees to ask for their cards back, and
by indicating its hostility toward and its willingness and intent to discriminate
against employees who engage in union activity.
5. Respondent violated Section 8 (a) (3) and (1) of the Act by laying off Jennie
Jones and discharging Kathleen Hines on July 20, by refusing Jennie Jones employ-
ment on August 16, by discharging Margaret Jones on August 20, and by isolating
and harassing Jennie Jones, Margaret Jones, and Kathleen Hines after they were
recalled in October.
6. Respondent violated Section 8(a) (5) of the Act by refusing to bargain, on
request, with the Union, the majority representative of the employees in an appro-
priate bargaining unit.
7. Respondent's conduct either in July or in August or in both months, con-
sidered either separately or together, rendered a free and uncoerced election
impossible.
8. Respondent did not violate the Act by engaging in conduct other than that
summarized in paragraphs 4, 5, and 6 above.
THE REMEDY
Having found that Respondent engaged in the unfair labor practices set forth
above, the recommended order will direct it to cease and desist therefrom and to
take the affirmative action normally required in such cases . Any backpay found
to be due Jennie Jones, Margaret Jones, and Kathleen Hines shall be computed
in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB,
289 and Isis Plumbing & Heating Co., 138 NLRB 716.
Having found that the Union represented a majority of Respondent's employees
in an appropriate bargaining unit when it requested bargaining, and having found
that Respondent did not refuse to bargain because it had a good-faith doubt about
the Union's majority or the appropriateness of the unit described in the Union's
July 20 letter, the Order will direct Respondent to bargain with it, on request.
N.L.R.B. v. Armco Drainage & Metal Products, Inc., supra; Irving Air Chute Com-
pany v. N.L.R.B., supra, 181-182; Greystone Knitwear Corp., 136 NLRB 573,
575-576, enfd per curiam, 311 F.2d 794 (C.A. 2); Piasecki Ai,craft Corporation
v. N.L.R.B., 280 F.2d 575, 591-592 (C.A. 3), cert. denied 364 U.S. 933; Editorial
"El Imparcial," Inc. v. N.L.R.B., 278 F.2d 184, 187 (C.A. 1); D. H. Holmes
Company, Ltd. v. N.L.R.B., 179 F.2d 876, 879-880 (C.A. 5).
The unit set forth in the stipulation for certification upon consent election, which
was approved by the Regional Director, included the Company's "production work-
ers." Under well-established Board precedent, a unit of production workers includes
"seasonal" employees of the type employed by Respondent, i.e., employees who
do the same work as the full-time employees, who work substantial periods and
usually year after year and who have a close community of interest with the year-
round employees. Delight Bakery, Inc., 145 NLRB 893, 906. Board precedent also
establishes that casual, off-the-street employees who work for brief periods and who
do production work rarely if at all are not included in the unit . Marvel Roofing
Products, Incorporated, 108 NLRB 292, 294, footnote 6. Under these circumstances,
the order directing Respondent to bargain is to be interpreted as requiring it to
bargain with respect to the "seasonal" production employees but not with respect
to the men hired off the street for stevedoring work primarily.
Having found that Respondent's illegal conduct in July and between August 1
and 27, either separately or in combination, rendered a free and uncoerced election
impossible, the order will direct that the petition in Case 26-RC-2463 be dismissed
and that all proceedings in connection therewith be vacated.
In view of the broad range of Respondent's illegal conduct, including its past
and current discrimination against Jennie Jones, Margaret Jones, and Kathleen
Hines, action which goes to the very heart of the Act (N.L.R.B. v. Entwistle Mfg.
Co., 120 F.2d 532, 536 (C.A. 4), I believe that Respondent may engage in sim-
ilar conduct in the future if the employees renew their efforts to obtain union
representation. The order will therefore direct Respondent not to discriminate
against employees in the future because of their union activity, even though the
three discriminatees have been recalled, and will also direct Respondent to cease
and desist from engaging in any conduct which denies its employees the rights
guaranteed them by the Act.
Needless to say, nothing in the order is to be construed as denying Respondent the
right to layoff or discharge employees for any reason other than their union activity
as, for example, because of lack of work or any other reason.
1820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
American Tea and Coffee Co., Inc., its officers, agents, successors and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in or activity on behalf of Teamsters, Chauffeurs,
Helpers and Taxicab Drivers Local 327, Affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any
other labor organization, by laying off, discharging, by discriminating in job assign-
ments, or in any other manner discriminating against employees because of their
union membership or activity.
(b) Refusing to bargain, on request, with the above-named Union, the statutory
representative of its employees in the following appropriate unit:
Production workers and truckdrivers excluding office clericals, guards, and
supervisors as defined by the Act.
(c) Interrogating employees and job applicants about the union activity and
their attitude toward the Union, creating the impression of surveillance of union
activity, criticizing employees for seeking union representation, directing employees
to bargain with the Company directly, engaging in direct bargaining in an effort
to avoid collective bargaining, promising or granting benefits in the course of
direct bargaining and/or in order to avoid collective bargaining, threatening employ-
ees with reprisals if they engage in union activity and/or choose to be represented
by the Union, directing employees to reach a different decision with respect to
union representation other than the one they had already reached, promoting,
assisting and taking part in a meeting the purpose of which is to encourage employ-
ees to ask for their union cards back, and indicating its hostility toward and its
willingness and intent to discriminate against employees who engage in union
activity.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to form, join, assist, or be represented by Teamsters,
Chauffeurs, Helpers and Taxicab Drivers Local 327, Affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization, to bargain collectively through a representative of
their own choosing, or to engage in other concerted activity for the purpose of
collective bargaining or other mutual aid or protection , or to refrain from any or
all such activity.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Assign Jennie Jones, Margaret Jones, and Kathleen Hines to the jobs they
would have been assigned to but for their union activity.
(b) Make Jennie Jones, Margaret Jones, and Kathleen Hines whole for any
losses they may have suffered by reason of the discrimination against them in the
manner set forth in the section entitled "The Remedy."
(c) Bargain collectively, upon request, with Teamsters, Chauffeurs, Helpers and
Taxicab Drivers Local 327, Affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, the statutory bargaining rep-
resentative of its employees in the above-described appropriate bargaining unit,
with respect to rates of pay, wages, hours of employment, and other terms and
conditions of employment, and, if an understanding is reached, embody such
understanding in a signed agreement.
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records and
reports, and all other reports necessary to analyze the amount of backpay due
under these recommendations.
(e) Post at its plant copies of the attached notice marked "Appendix A" 44 Copies
of said notice , to be furnished by the Regional Director for Region 26, after being
signed by Respondent's representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 consecutive days thereafter,
44 In the event that this Recommended Order is adopted by the Board, the words, "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words, "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words, "a Decision
and Order."
AMERICAN TEA & COFFEE CO., INC. 1821
in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 26, in writing, within 20 days
from the date of receipt of this Decision, what steps the Respondent has taken to
comply herewith.45
IT IS FURTHER ORDERED that the petition in Case 26-RC-2463 be dismissed and
that all proceedings held in connection therewith be vacated.
IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects.
45 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in or activity on behalf of Teamsters,
Chauffeurs , Helpers and Taxicab Drivers Local 327, Affiliated with Interna-
tional Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, or in any other labor organization , by discharging , by laying off, by
discriminating in job assignments , or by discriminating in any other manner
against employees because they engage in union activity.
WE WILL NOT question any employees about the union activity or their atti-
tude toward the Union.
WE WILL NOT make threats , including threats to close the plant or to buy
machinery to replace employees , because of employee interest in or efforts to
obtain union representation.
WE WILL NOT indicate to employees that we are keeping ourselves informed
concerning their union activity.
WE WILL NOT criticize our employees for engaging in union activity or for
seeking union representation.
WE WILL NOT direct our employees to change their decision with respect to
union representation.
WE WILL NOT order our employees to bargain with us directly.
WE WILL NOT bargain with our employees directly and remedy their griev-
ances through direct bargaining in an effort to avoid collective bargaining
WE WILL NOT promise our employees benefits in an effort to persuade them
to reject union representation.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to form, join , assist, or to be repre-
sented by the above-named Union , or any other labor organization , to bargain
collectively through a representative of their own choosing , or to engage in
other concerted activity for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all such activity.
WE WILL assign Jennie Jones, Margaret Jones, and Kathleen Hines the same
jobs to which they would have been assigned but for their union activity.
WE WILL make Jennie Jones, Margaret Jones, and Kathleen Hines whole for
any losses they may have suffered as the result of our discrimination against
them.
WE WILL bargain, on request, with Teamsters , Chauffeurs , Helpers, and
Taxicab Drivers Local 327, Affiliated with International Brotherhood of Team-
sters , Chauffeurs , Warehousemen and Helpers of America , as the representa-
tive of the employees in the unit set forth below , concerning wages, hours, and
other terms and conditions of employment and, if agreement is reached, WE
WILL put the agreement in writing and will sign it:
Production workers and truck drivers but not office clericals, guards, and
supervisors as defined by the National Labor Relations Act.
All of our employees are free to become, remain , or to refrain from becoming
or remaining , members of Teamsters , Chauffeurs, Helpers, and Taxicab Drivers
1822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Drivers Local 327 , Affiliated With International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America , or any other labor organization.
AMERICAN TEA & COFFEE CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any questions concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Tele-
phone 534-3161.
Evans Products Company and General Drivers , Salesmen, and
Warehousemen 's Local Union 984, affiliated with International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America. Cases 26-CA-2217, 2228, and 2235. Octo-
ber 12, 1966
DECISION AND ORDER
On May 10, 1966, Trial Examiner Herman Tocker issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint, and recommended that such allegations be dismissed.
Thereafter, the Respondent filed exceptions to the Trial Examiner's
Decision and a brief in support thereof, and the General Counsel filed
a reply brief thereto. The Respondent's subsequent motion for leave
to withdraw certain of its exceptions and to file a supplemental brief
by substituted counsel was granted. The Respondent thereafter filed
substitute exceptions and a supporting brief.,
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Jenkins and
Zagoria].
'The brief originally filed by Robert L. Taylor, the attorney then representing the
Respondent , was not addressed to the issues In the case, and , moreover, was extremely
scurrilous in nature , and made an attack on the Trial Examiner ' s integrity which we find
to be unwarranted, unfounded , and without merit. The Respondent , thereafter , pursuant to
leave granted by the Board , substituted as Its counsel the firm of Bogle, Gates, Dobrin,
Wakefield & Long , who requested leave to file the substitute exceptions and brief on the
ground that the Respondent , after reviewing the original exceptions and brief submitted
on Its behalf , had concluded that they contained statements which "do not reflect the
attitude of Respondent and that in Respondent's opinion they additionally do not reflect
the proper attitude towards an agency of the United States Government."
160 NLRB No. 141.