Azalea Meats, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1966

159 N.L.R.B. 585 (N.L.R.B. 1966)

AZALEA MEATS, INC. 585
Azalea Meats, Inc. and Meat Cutter, Packinghouse & Allied Food
Workers, District Union 433, Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO. Cases 11-CA-
$800 and 2852. June 17, 1966
DECISION AND ORDER
On April 5, 1966, Trial Examiner William J. Brown issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent has engaged in and is engaging in certain unfair labor practices
alleged in the complaint and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Examiner also found
that the Respondent has not engaged in certain other unfair labor
practices, as to which he recommended that the complaint be dis-
missed. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision 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 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 recommendations of the Trial Examiner, with the following
modifications.
We agree with the Trial Examiner that the Union at all material
times represented a clear majority of the employees in the appropri-
ate unit. We would, however, count among the 109 cards, which the
Trial Examiner found valid and authenticated, the cards of Henry
Haynes, Fred Campbell, Quellie Calloway, and John Miller. These
cards, including that of Haynes (see footnote 13 of the Trial Exam-
iner's Decision) were among nine marked with an X and the names
of the employees affixed by the person or persons soliciting their
designations. The other five employees appeared and testified as to
the circumstances under which they affixed their marks. Accord-
ingly, there can be no question as to the validity of their cards.
However, these four did not appear and testify. But, their solicitors
did testify that each signed with an X in the presence of the respec-
tive solicitor and each was told that the card was "for the Union."
In these circumstances, we consider these cards equally valid and
entitled to be counted with all the others on the Union's behalf.
159 NLRB No. 55.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We also agree with the Trial Examiner that Respondent violated
Section 8 (a) (5) by refusing to recognize and bargain with the Union
as the majority representative of the employees 'in the appropriate
unit, and that the Respondent's assertion of a good-faith doubt as to
the Union's status is not substantiated by the record. We think the
Trial Examiner's Decision makes clear that his finding of an
absence of good faith is predicated on his conclusion that the
Respondent both before and after the Union's initial demand for
recognition engaged in various acts of interference, restraint, and
coercion, as detailed in his Decision, directed against the employees
in the exercise of their statutory rights. We are of the opinion that
the Respondent's conduct was calculated to undermine the Union's
position with the employees so as to dissipate its majority status,
and that such conduct clearly establishes the illegality of Respond-
ent's refusal to bargain.'
The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Add the following at the end of paragraph 1(e) : "or to refrain
from joining or assisting such labor organization."
[2. Add the following as paragraph 2(b), the present paragraph
2(b) and those subsequent thereto being consecutively relettered :
[" (b) Notify the above-named employee if presently serving in
the Armed Forces of the United States of his right to full rein-
statement upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces."
[3. Add the following as the fifth paragraph of the Appendix :
[WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
the above-named Union or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain
from joining or assisting such or any other labor organization.
[4. Add the following immediately below the signature line at the
bottom of the Appendix attached to the Trial Examiner's Decision :
[NOTE.-We will notify the above-named employee if presently
serving in the Armed Forces of the United States of his right to
full reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act,
as amended, after discharge from the Armed Forces.]
'Joy Silk Mills, Inc., 85 NLRB 1236, enfd . 185 F.2d 732 (C.A.D.C.), cert. dented'341
U.S. 914.
AZALEA MEATS, INC. 587
-TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended , hereinafter referred to as the "Act," came on to be heard before Trial
Examiner William J. Brown at Orangeburg, South Carolina, December 7, 8, and 9,
1965.1 The original charge of unfair labor practices had been filed on August 5,
by the above-indicated Charging Party, hereinafter sometimes referred to as the
"Union"; the consolidated complaint herein was issued October 21 by the General
Counsel of the National Labor Relations Board, hereinafter referred to as the
"General.Counsel" and the "Board," acting through the Board's Regional Director
for Region 11. The complaint alleged, in addition to jurisdictional matter and the
supervisory status of certain named individuals, the commission of unfair labor
practices defined within the scope of Section 8(a)(1), (3), and (5) of the Act on
the part of the above-named Respondent, hereinafter sometimes the "Company." 2
The Company's duly filed answer denied the allegations respecting the labor
organization status of the Union, the appropriateness of the bargaining unit set
forth in the complaint, and the commission of the unfair labor practices alleged.3
The answer affirmatively alleged, with respect to the allegations of refusal to bar-
gain , that it continuously offered to submit the issue of the Union' s claim to
majority status to an election and that the Union employed coercive tactics in
securing authorization cards from employees many of whom, it was alleged, were
unaware of what they were signing.
The Company separately moved by letter dated November 30, to make section 7
of the complaint, relating to alleged discrimination in pay, more definite and cer-
tain. With respect to this latter motion, the General Counsel replied by letter dated
December 1, to the effect that section 7 related to alleged discriminatory changes
on or about June 20 in working conditions of employees Leroy Jenkins, Edward
Chandler, and Ansel Ott whereby Jenkins was deprived of 1-month overtime work,
and Chandler and Ott were transferred to lower paid work. On December 3, Trial
Examiner W. Edwin Youngblood denied the Company's motion to make more
definite and certain on the basis of the sufficiency in this regard of the General
Counsel's December 1 letter.
At the hearing the parties appeared as noted above and participated with full
opportunity to present evidence and- argument on the issues. In the course of the
hearing the General Counsel moved to amend the complaint to add an allegation
of discriminatory discharge of John Edward Fine on or about December 6. Over
opposition of the Company, I allowed the amendment with assurance to the Com-
pany that it would be allowed time to prepare its defense in this regard at the
conclusion of the General Counsel's case in chief. -
At the conclusion of the General Counsel's case=in-chief, I granted the Com-
pany's motion, unopposed by the General Counsel, to dismiss the allegations
respecting discrimination with respect to Ott, and the motion respecting unfair
labor practices through the agency of Plant Manager Robert Maier. I denied the
company motion respecting allegations concerning Supervisors Arthur Felkel and
O'Neal Hill as well as the motion that an election be ordered to resolve the repre-
sentation matters.
Subsequent to the hearing briefs were received from the Company and the
Union; they have been fully considered. On the basis of the entire record herein,4
and on my observation of the witnesses and in consideration of the oral and
written argument of counsel, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The pleadings and evidence herein indicate and I find that the Company is a
corporation organized under the.laws of the State of South Carolina with a place
'Dates hereinafter relate to the year 1965 unless otherwise indicated.
2 The evidence indicates that the Company was known as "Southland Provision Com-
pany" until sometime in 1965.
$ The answer also denied the allegations of the complaint respecting dates of filing and
service of the charges but a stipulation of all parties entered into at the outset of the
bearing establishes the accuracy of the complaint's allegations in that regard.
' The transcript at page 476, line 8 , is corrected by substituting "part passu" in lieu of
"Perry Parcel."
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of business, the only plant here involved, at Orangeburg, South Carolina, where it
is engaged in the slaughter and processing of livestock. During a typical 12-month
period the Company receives at its Orangeburg plant materials and goods valued
in excess of $50,000 and shipped to said plant directly from points outside the
State of South Carolina. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act and assertion of Board
jurisdiction is warranted.
II. THE LABOR ORGANIZATION INVOLVED
The Company's answer denies the allegations of paragraph 4 of the complaint
respecting the labor organization status of the Union. This position is reasserted in
the Company's brief. Thomas Scarborough, a general organizer for the Union,
testified that it existed for the purpose, at least in part, of organizing meat plant
employees and representing them in dealings with their employers, and in nego-
tiating contracts respecting their wages, hours, and working conditions. In addition,
the evidence in this case abundantly establishes that the Union procured the sig-
natures of company employees on `cards which purport to authorize the Union to
represent the signer and on his behalf to negotiate and conclude with the employer
agreements respecting wages, hours, and conditions of employment. It also appears
from the uncontradicted testimony of Scarborough that employees of a plant, upon
successful organization by the Union, elect a committee to negotiate an agreement
with their employer, and that the employees vote on ratification of any agreement
consummated by the committee on their behalf. They also vote for local union
officers. The evidence establishes that the Union has, for some period prior to the
events herein concerned, represented employees of Hi-Grade Meat Products Corp.,
a meat packer in Orangeburg and that Hi-Grade employees members of the Union,
participated in efforts to organize employees of the Company looking to representa-
tion by the Union. On the basis of the foregoing, I find that the Union is a labor
organization within the purview of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and summary of events
As noted above, the Company is engaged at its Orangeburg plant in the purchase
and slaughter of livestock and the processing of meat for sale to restaurants and,
conceivably, other customers. Its principal executive is Griffith 5 but the extent of
Griffith's participation in day-to-day operation is uncertain on the record herein
which tends to indicate that the principal executive in residence is General Manager
Robert S. Maier. Working directly under Maier is Walter C. Emde, office manager
and J. Clyde Fairey, superintendent. Working under and reporting to Fairey are
Hugh Kea, livestock foreman; Arthur Felkel, packaging department supervisor;
O'Neal Hill, sausage kitchen supervisor; and Frank Griffith, garage supervisor.
The supervisory status under the Act of all the foregoing is established by the
pleadings.
Union organization among employees of the Company appears to have had its
inception when two employees of Hi-Grade, Thomas Moss and Willie Jennings,
members of the Union, approached company employees, secured some signatures
on union authorization cards 6 and prevailed upon Scarborough to undertake a
campaign of organizing company employees. Scarborough came to Orangeburg
sometime about mid-April and met some company employees at meetings at the
homes of Moss and Jennings. The company employees particularly active in
organizing on behalf of the Union included Mrs. Cornelia Binnicker, Woodrow
g General Counsel's Exhibit 2, the Union's letter of May 25 addressed to the Company
and representing Its initial request for recognition, Indicates transmittal of a copy to
A. D. Griffith, president, Southland Provision Co., Inc
6 The authorization cards involved In the present case measure 33/8 by 51/2 inches with
a space indicated for the employee signature beneath an unequivocal designation of the
Union as the signer's representative on one side, the other side bearing the return address
of the Union and standard addressee-postage-paid markings.
AZALEA MEATS, INC. 589
Morgan, Harry Lee Zimmerman, Leland Rutland, Dallas Simpson, and John Wes-
ley Jenning,7 each of whom testified not only to their signatures on authorization
cards but also to the signing of cards by other employees in their presence.
By letter dated May 24 the Union informed the Company of its claim to rep-
resent a majority of company employees in the unit herein concerned , the appro-
priateness of which, placed in issue by the Company's answer, is discussed below.
The May 24 letter transmitted photostatic copies of union authorization cards of
more than 100 employees and requested recognition and collective -bargaining nego-
tiations . Subsequent union letters transmitted additional authorization card photo-
stats and repeated the bargaining demand. On behalf of the Company, Attorney
Sims asserted a doubt as to the majority status of the Union , referred to informa-
tion on coercive organizational tactics and suggested that if the Union persisted in
its claim, the matter be submitted to the Board in the form of a representation
petition.
The complaint alleges and the Company's answer denies several instances of
company interference with employees self-organizational rights in the periods before
and after the Union 's initial demand for recognition.
The complaint also alleges and the Company denies discriminatory treatment of
Chandler and Leroy Jenkins on or about June 20 and the discriminatory discharge
of Fine on December 6. The pleadings also raise issues as to the appropriateness
of the unit in which the Union seeks recognition and its majority status in that
unit.
B. Interference , restraint, and coercion
1. Clyde Fairey: Superintendent Fairey is alleged to have interrogated employ-
ees as to their union membership , sympathies, and activities on certain specified
dates in the period May 19 through June 7, and to have threatened, on June 1 and
17, discontinuance of credit union loans to employees if the Union succeeded in
its campaign.
Harry Lee Zimmerman, an employee with 3 years' service with the Company
who signed a card at Moss' solicitation on March 12, testified that on May 19 he
was sent to Fairey's office by his foreman, Felkel, and that there Fairey in a
"man-to-man" talk asked him if he had signed a card Dallas Simpson, 15-year
employee with the Company and one of the active union organizers, testified that
on June 1, Fairey called him to his office and there asked him if he had signed
a union card and when given an affirmative reply, asked why he had done so.
Employee Jacob Myers testified that sometime in May, Fairey called him into
the office and asked him if he had signed a union card. Employee John Baker
testified that in the latter part of May, Fairey showed him the union demand let-
ter of May 24 and asked what his name was doing on it and why he had signed.
Testimony was given by employees Luther Brown and Samuel and David Green
to the effect that Fairey asked them why they had signed union cards.
Fairey conceded having a discussion with Harry Lee Zimmerman in his office
on or about May 19 but asserted that the discussion was about some other subject
when Zimmerman introduced the subject of the Union and asked Fairey's opinion
of it. Fairey testified that he gave his opinion to the effect that a man loses his
identity when he joins a union. Fairey denied questioning Zimmerman as to
whether he had signed a card. I credit Zimmerman's account of the discussion in
the office and find that Fairey did interrogate him as to whether he had signed a
card.
With respect to Dallas Simpson Fairey testified that he sent for Simpson after
learning from Foreman Collins that Simpson wanted to see him on a personal mat-
ter. He denied asking Simpson why he had signed a union card. I am convinced
on my appraisal of the witnesses that Simpson was scrupulously honest in his tes-
timony as to the conversation and I find that on the occasion in question Fairey
did ask him why he had signed a card for the Union. Particularly in the context
of Fairey's references to his experiences with the Union at Hi-Grade and his refer-
ences to loss of individual identity on joining a union , this question constituted
interference with employee rights under Section 7.
At the hearing and in its brief the Company objected to consideration being given to
cards which were identified by the solicitor but not by the signatory employee. This
objection was overruled by me. see Winn-Dixie Stores, Inc, 143 NLRB 848, affd. 341
F 2d 750 (C.A. 0), cert denied 382 U.S. 830.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fairey recalled talking to Jacob Myers in his office and said that only after
Myers brought up the subject of the Union did he relate his experiences at
Hi-Grade respecting . the drawbacks of union representation . I credit Myers'
account to the effect that Fairey asked if he had signed a card and conclude that
this constituted interference within the scope of Section 8(a)(1) of the Act.
With respect to the testimony of Baker, Brown , and the two Greens , Fairey tes-
tified that only after they introduced the subject of he Union did he relate his
experience at Hi-Grade and express his opinion of the loss of identity on joining a
union . I credit the testimony of the General Counsel 's witnesses which plainly
relates .to questioning after the union letter of May 24 had revealed the fact of
their signing. The question as to why they had signed constituted interrogation
and interference within the scope of Section 8 ( a)(1).
With respect . to the allegations that Fairey threatened discontinuance of credit
union loan privileges , Dallas Simpson testified that in the course of his talk with
Fairey in the latter 's office referred to above Fairey referred to previous favors to
Simpson and to Simpson 's borrowing from the credit union and said that if the
Union came in he would not be able to do that. On cross-examination Simpson
conceded that he did not regard the conversation as threatening . Fairey denied
telling Simpson that he would not be able to borrow or otherwise threatening
employees . He conceded giving Simpson , and the others he talked to, his per-
sonal opinion of the adverse consequences of union representation . I credit Simp-
son's account and find that Fairey threatened loss of credit union borrowing privi-
leges theretofore existing in the event the Union secured status as the employee's
representative . This threat constituted interference within the purview of Section
8(a)(1) of the Act.
2. Arthur Felkel : Felkel , supervisor of the packaging department , is alleged to
have interrogated employees on May 19 as to their support of the Union. Cor-
nelia Binnicker , an employee of the packaging department with 8 years ' service
with the Company , was one of the early card signers of the Union and engaged in
solicitation of a number of sister employees of the packaging department. She
testified that about the third week in May Felkel talked to her in Fairey's office
and asked her what she hoped to gain by her actions and whether she thought she
was leading people wrong and that he followed up these questions by showing her
a writing critical of the Union . At the conclusion of the talk , according to Bin-
nicker, Felkel asked if she didn 't think that Company had the right to prevent the
Union from coming if it did not want it.
Felkel denied talking to Binnicker about the Union . He conceded talking to
her in Fairey 's office about rates of pay, benefits , and working conditions but
asserted that the talk was merely pursuant to his practice of discussing individual
employee attitudes from time to time. I found Binnicker convincing in her testi-
mony and I do not credit Felkel 's denial that the Union was brought up by him
in their talk. I find that her account of his questioning her as to her solicitation
of other employees is correct and that by such questioning coupled with disparage-
ment of the Union , the Company engaged in interference within the scope of Sec-
tion 8(a)(1).
3. Hugh Kea: Kea, livestock foreman and cattle buyer , is alleged to have inter-
rogated employees as to their union activities and the union activities of other
employees and to have threatened them with loss of certain benefits and closing of
the plant if the Union succeeded.
John W. Jennings , an employee of the Company 's livestock department signed
a card early in April and procured signatures of at least two other employees on
union authorization cards. He testified that about June 9 while he was wearing
a union steward button , Kea asked him if he thought the button would help him,
and added that Company President Griffith said that if the Union came in he
would close the plant. Jennings also attributed to Kea the statement that if the
Union came the Christmas bonus would be discontinued as would the privilege of
buying meat from the Company.
Edward Chandler , an employee allegedly discriminatorily demoted in reprisal for
his union activities , testified that on June 20 Kea called him and his fellow
employee, Ott, to the office and said, "The Union 's got to you hasn't it?" and
when Chandler agreed , Kea asked if he had worked under a union previously, then
said could not say anything about it. Thereupon Kea informed Chandler that he
was being changed from a salaried to an hourly rated basis.
LeRoy Jenkins, an employee who signed a union card early in the campaign and
was allegedly deprived of a month 's overtime pay in reprisal for union activity,
AZALEA MEATS, INC. 591
testified that one Saturday night in mid-June Kea reproached him for not having
finished his work and said that he would show them how a union works by writ-
ing a report on him and that under union representation, upon three such reports
he would be out. According to Jenkins, Kea added that Company President Grif-
fith would not work with any union. Jenkins persisted in his account under vig-
orous cross-examination.
Kea denied having any conversation with Jennings about the Union. He testi-
fied,that he had reprimanded Leroy Jenkins for loafing and had referred to it as
a second or third offense but made no mention of the Union. Night Watchman
Loadholt corroborated Kea's account of the Jenkins' conversation. Kea denied
having accused Chandler of having let the Union get to him.
Neither Kea nor LeRoy Jenkins impressed me in their testimony. I found Jen-
nings and Chandler, on the other hand, convincing in their accounts and their
demeanor on the stand. In accordance with their testimony I find that Kea threat-
ened closing of the plant and loss of the Christmas bonus and meat purchase privi-
lege as a consequence of union success and that Kea engaged in interrogation into
employee union activity by asking Jennings if he thought the Union would help
him and by asking Chandler as to whether the Union had got to him. These
questions and threats constituted unfair labor practices under Section 8(a)(1) of
the Act.
4. O'Neal Hill: Hill, supervisor of the sausage department, is alleged to have
interrogated employees as to union activities in May. Leland Rutland, an
employee with 16 years service with the Company signed a union card on May 5
and thereafter procured other employees' signatures. He testified that sometime
in May as he was leaving the plant after punching out, Hill came to him. and
asked about a misunderstanding. When Rutland asked if he referred to the Union,
Hill, according to Rutland, said that he did. Hill then asked if Rutland thought
a union could help and when Rutland reported that it helped employees of
Hi-Grade, Hill expressed his personal opinion that it could not help at the Com-
pany. They parted amicably. After some difficulty with his recollection, Rutland
recalled that Hill asked him if he was signing up other employees.
Hill denied discussing the Union with Rutland. I found him an impressive wit-
ness and credit him in his denial.
C. Discrimination
1. Edward Chandler: As amplified by General Counsel's response to the com-
pany motion to make the complaint more definite and certain with respect to
alleged discrimination, the complaint charges that on or about June 20 Chandler,
in reprisal for union activity, was assigned to lower paid duties and his method of
compensation was altered with resultant loss of earnings. The evidence is some-
what confusing; the one certain element in the case is the clear portrayal of Chan-
dler as an employee of considerable skill at his meatcutter trade but with a record
of undependability both as to his absenteeism and his allegiance to the Union.
Chandler had been employed about 2 years at the time of the hearing. He
signed a union card at the solicitation of LeRoy Jenkins on June 13; there is no
indication that Chandler engaged in any union activity other than signing the
card, and the evidence indicates that sometime in August or September he talked
to Maier about withdrawing from his •support of the Union.8 In short, he was by
no means a particularly active or enthusiastic union adherent.
Chandler was hired as a meatcutter sometime about December 1963. There is
a conflict between his testimony and that of Kea as to his hiring rate. The pay-
roll records were not produced and I credit Chandler's account that he was initi-
ally hired on a salary basis at $75 per week and by degrees worked his salary up
to $90 per week by June 1965. He had initially been excused from the require-
ment of punching a timeclock but sometime prior to the Union 's organizing cam-
paign the timeclock punching rule was apparently made applicable to him, although
he continued to enjoy a salary status and the privilege of leaving when -his day's
quota of cutting was completed. There is some dispute in the evidence as to the
quality of his work, Chandler testifying that some (unidentified) salesmen praised
the quality of his cuts, whereas Kea testified to complaints from certain salesmen,
whom he identified, commencing almost immediately after Chandler' s initial
8 According to lea's testimony, Chandler asked him about withdrawing from the Union
sometime during the week after he signed the card
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment and continuing thereafter. Chandler conceded that Kea never praised
his work and in fact ordered him to observe his fellowcutter, Ott, to learn how to
improve his own cuts.
Sometime in April, Chandler quit for a period of some weeks when he heard a
rumor that the Company was getting ready to fire him and shortly after Kea had
discussed with him the difficulties caused by his drinking.9 When Chandler returned
after this absence he came back at $85 but was soon raised to the $90 figure.
As noted above , Chandler signed a union card on June 13. His name was
included among those additional signers set forth on the Union's third demand for
recognition, that of June 18. There is no doubt but that there was a discussion
among Kea, Chandler, and Ott on the night of'June 20. As to the contents of that
discussion there is a clear conflict between the accounts of Chandler and Kea; Ott
did not testify, the General Counsel stating that Ott could not be located. I credit
Chandler's testimony, as against Kea's contrary testimony, and find that on June 20
he was called to the office by Kea who said, undoubtedly referring to the union
letter dated June 18, that he saw that the Union got to him and Ott and that he was
going to take him off his salary basis and put him on an hourly rate. Chandler
also recalled that Kea said he would make it hard for him. The transfer was
apparently immediately effective as appears from Chandler's testimony that his next
paycheck amounted to $66 as contrasted with his previous $90 salary.
Sometime apparently within the next 2 months, Chandler was asked to transfer
to the shipping department, under the supervision of G. B. Thomas, to train as a
replacement for a man due to take a vacation . He remained there until the time
of the hearing, having rejected an opportunity to return to cutting sometime in
September or October on account of personal differences with Ott. His present rate
is $1.85 per hour.
The deficiencies laid to Chandler by Kea appear to have been long condoned
prior to his union affiliation. I was not favorably impressed with Kea's account of
poor quality reports of Chandler's cutting particularly since it does not appear that
a poor cut could be traced to one, rather than the other, of the two cutters.
Appraising the evidence with respect to Chandler's treatment I find, particularly
in view of Kea's conversation with him on June 20, that it preponderates in favor
of the conclusion that he was, in reprisal for his support of the Union, transferred
from a salaried basis to an hourly rated basis with consequent loss of earnings or
expenditure of greater effort to equal former earnings. This period of discrimina-
tion commenced June 20 and apparently had continued to the date of the hearing.
2. LeRoy Jenkins: LeRoy Jenkins is an employee with some 10 years service
with the Company. He signed a union card on March 23 and his name was
included among the signers in the Union's first demand letter of May 24. Accord-
ing to his testimony he had a talk with his boss, Kea, sometime in mid-June about
the Union as above mentioned. As above noted I find that the evidence does not
preponderate in favor of the conclusion that he was threatened on account of his
union activities in this conversation.
The contention of the General Counsel and the Union is that Jenkins was
deprived of overtime for a period of about 1-month commencing on or about June 20
and that this deprivation was in reprisal for his union activity or membership.
The evidence is somewhat difficult to untangle but, viewed in its totality, it clearly
appears that there is not a preponderance in favor of the conclusion either that
there was a deprivation of overtime or that, if there was, it was in reprisal for
union membership or activity.
In June , at the time of the discussion between Jenkins and Kea, Jenkins was
working in the beef department breaking beef, Jenkins was regularly, according to
his account, working 45 or 46 hours per week. He testified that about a month
later, his overtime opportunities were eliminated when Kea told him to punch out
when Ott and Chandler did, which would result in his working only about 30 to 35
hours per week. Jenkins testified that this condition continued for about a month
when he was assigned new duties to supplement his hours and restored to his over-
time opportunities. On cross-examination, Jenkins placed the period of his depriva-
tion as having occurred in August . He insisted that in some weeks he was not
making his hours he had theretofore enjoyed. Finally he conceded that he made
less hours in June than in July or August.
O There is an indication in pea's testimony that Chandler also had a broken foot about
this time.
AZALEA MEATS, INC. 593
The payroll record in evidence as a joint exhibit is inconclusive. The evidence
does not preponderate in favor of the General Counsel's contentions as to either
element of the alleged violation of the Act, viz neither discrimination nor motiva-
tion therefor.
3. John Edward Fine: Fine was hired May 8 or 9 as an employee of the Com-
pany's garage where he worked with fellow employee Adam Wayman under the
supervision of Frank Griffith. He signed a union card on May 14 and his name
was included among the card signers on the list attached to the Union' s initial
recognition demand of May 24. When he was first hired, his hours of work were
from 7 a .m. to 5 p .m., but soon thereafter his hours were shortened to a 7 to 4
schedule. Fine 's duties consisted of regular maintenance and servicing of the Com-
pany's trucks which are usually out on deliveries in the morning and return in the
afternoon , so that the bulk of the maintenance work is performed in the afternoon.
Sometime in June or July, Griffith cursed Fine over a difficulty arising in con-
nection with their installation of new axles on Griffith's sports car. Thereafter
Griffith frequently cursed Fine and he frequently reported this to Fairey. Griffith
also cursed Wayman.
About May 28 Griffith asked Fine why he had signed a union card and about 2
weeks later Griffith, referring to a union badge Fine was wearing at work, asked
him if he was passing out union badges. The evidence indicates that a number of
other employees wore union badges but apparently Fine was the only badge
wearer in the garage, although it appears from the Union's May 24 letter that Way-
man also signed a card sometime prior to that date.'°
Fine testified that on June 15, after punching in at 7 he was ordered by Griffith
to punch out at 8 and then return at 1 p.m.; Fine did this and punched out for
the day between 7:30 and 8 p.m. Griffith, according to Fine, said that the split
shift was ordered by Maier because the garage employees were making too much
time . This split shift continued to occur 1 or 2 days a week thereafter until Fine
was discharged on Monday, December 6.11
Fine was discharged by Griffith on reporting for work on Monday December 6.
The preceding Friday there had been an incident between them arising from Fine's
complaint about a mistake in his time records; there had apparently been previous
similar shortages and resultant disputes . On reporting on December 6, Griffith said
they had had their last run-in and that Fine was discharged. Fine had some discus-
sion with Fairey thereafter. The following day, Fine testified, he asked Griffith for
his job back and was refused and then referred to Fairey to obtain his termination
check.
Cross-examination of Fine developed that Saturday, December 4, was a regu-
larly scheduled workday for Fine. He testified that at noon on Friday December 3
he told Griffith that he would be unable to work the following day because he had
to take his children to a clinic; Griffith was angry and walked out without saying
anything.
Griffith did not testify. Fairey, whom I find a credible witness, testified that
Griffith reported to him that he had fired Fine for missing a work day and that
he had approved Griffith's action.
Fine's union membership was known to the Company long prior to his dis-
charge. I reject the notion that the split shift arrangement indicates a union ani-
mus directed against Fine since the evidence indicates it to be a natural arrange-
ment of the work schedules in the garage because of the ebb and flow of the
workload. There were apparently plenty of hours of work still available for Fine
as appears from the fact that the timecard disputes included one over whether 13
or 15 hours were worked on a certain day. There is no evidence that Wayman
who also signed a card was not similarly affected.
Outside of his signing a card, and wearing a union badge Fine does not appear
to have been particularly active in the Union and apparently did not solicit other
signatures either in or out of the plant.
10 Wayman's card was signed at the solicitation of Henry Lee Zimmerman who testified
that the card was signed on the date it bore, viz "the 30th." In fact, the card nears a
date of May 30 thus presenting a discrepancy which it appears unnecessary to resolve.
n The change to the split shift is not alleged as an unfair labor practice but apparently
offered to show animus against Fine in connection with the allegations of discriminatory
discharge on December 6.
243-084-67-vol. 159-39
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There was a -substantial lapse of time between the Company 's discovery of his
membership in the Union and his discharge . The evidence does not establish that
Griffith assented to Fine's Saturday absence. Viewed in its totality it does not
preponderate in favor of the conclusion that his discharge was an unfair labor
practice within Section 8(a)(3) of the Act.
D. The refusal to bargain
As noted above , the Union 's campaign to organize employees of the Company
commenced in early April. On May 24 the Union wrote Maier asserting that a
majority of employees in the production and maintenance unit 12 had signed cards
designating the Union as their bargaining representative . The letter attached photo-
static copies of the cards signed by the 100-plus employees whose names were
furnished in the union letter and set out a willingness to have the originals exam-
ined by the Company in the presence of -a neutral party. Company Attorney Sims
replied on June 2 that the Company needed time to investigate . Under date of
June 4 the Union forwarded photostatic copies of 10 additional signed cards. On
June 14, Sims wrote that many disciepancies had been found in the Union 's cards
and that reports of union threats had been received . Sims' letter concluded with
a suggestion that the parties submit the matter of majority representation to the
Board. The Union replied on June 18 with nine additional cards and a request
for speedy recognition . The charge herein including that of refusal to bargain
was filed August 5.
First, with respect to the appropriateness of the unit in which the Union seeks
recognition . It appears from a stipulation entered into at the hearing and the tes-
timony of the Company Office Manager Walter C. Emde, that General Counsel's
Exhibit 8 is a correct list, as of May 24, of all hourly paid employees and that
there are no salaried nonsupervisory production and maintenance employees. The
question becomes one as to the appropirateness of a production and maintenance
unit , including truckdrivers . A production and maintenance unit , a type specifi-
cally referred to in the Act , is presumptively appropriate . See Appliance Supply
Company, 127 NLRB 319, 321 . With respect to truckdrivers , they are includable
in a production and maintenance unit absent a labor organization's seeking sepa-
rate representation for them. Dayton Aviation Radio & Equipment Corporation,
124 NLRB 306, 307. The excluded groups are those normally excludable. In ac-
cordance with the foregoing, I find and conclude that the unit in which the Union
sought recognition was an appropriate unit for purposes of collective bargaining.
The evidence establishes beyond peradventure of doubt, that at all material times
a majority of company employees in the above -named appropriate unit had signed
cards on behalf of the Union as their bargaining representative . The cards received
in evidence at the hearing , see footnote 5, supra, were authenticated either by the
signer or by the solicitor of the signature who testified that the signer signed, or
made his mark , in the solicitor 's presence . These cards are not ambiguous or
dual purpose on their face , and it would require convincing evidence of fraud or
strong misrepresentations to exclude them from consideration as effective authori-
zations to the Union to act as the signer's representative. The total of such cards
received in evidence as to which there appeared no question as to authenticity or
validity as effective designations of the Union as bargaining representative num-
bered 109 , which as the Union points out in its brief , constitutes a clear majority
in the appropriate unit.13
The Company asserts that its refusal to bargain with the Union was based on
a good-faith doubt that the Union had a valid majority support and that its good
faith was established by its willingness to have the representation matter resolved
by a Board election. The Union contends that the Company 's campaign of inter-
12 The appropriateness of the bargaining unit is discussed infra.
13 General Counsel 's Exhibit 11-i, purporting to be a card signed by Elijah Jefferson,
14-i, by O'Dell Simpson and 15-f, by Robert Heyward, Jr , were rejected as exhibits.
Ruling was reserved on General Counsel's Exhibit 32 a union card on which employee
Henry Haynes made his X, at the solicitation of Thomas Moss, the Hi -Grade employee
referred to above, who told Haynes , it was a union ( unspecified ) card and would mean
better work conditions The evidence does not establish that Haynes signed with intent
to designate the Union as his representative and the card is rejected.
AZALEA MEATS, INC. 595
rogating and threatening employees soon after the commencement of the union
campaign establishes the absence of good-faith doubt on the Company 's part as to
the union majority representation.
This is not a case involving an ambiguous or "dual-purpose" card or one in
which false or misleading representations were made to significantly large groups
of card signers . The card is clear and unambiguous on its face and, making due
allowances for the low educational level of some of the signers , it is clear that the
signers knew what they were signing and intended to designate the Union as their
bargaining representative . Furthermore the Union 's demand letters, commencing
with the initial demand of May 24 listed the names of employee signers and
enclosed photostatic copies of their cards which would be available for check as
to signature against records undoubtedly ( IRS forms W-4 for example) in the
Company's possession . There is, furthermore , no basis in the record for a find-
ing that employees were threatened or coerced in connection with their signatures
or for the Company's assertion that it believed they were.
The Company relies on Briggs IGA Foodliner , 146 NLRB 443 and Norlee Togs,
Inc., 129 NLRB 14. Norlee Togs is distinguishable on the material basis that in
Norlee, unlike here, the Union never told the employer it represented a majority
or offered to show it the signed representation cards; in Norlee, unlike here, the Com-
pany filed a representation petition and refrained from acts of interference,
restraint , and coercion . Briggs IGA Foodliner is also unlike the instant case as
appears from the Board 's references to an employer representation petition, and
the absence of contemporaneous unfair labor practices.
With respect to its contention that its refusal to bargain with the Union was
based on a good faith doubt as to the Union 's majority , the Company presented
the testimony of employee Irvin, Godfrey to the effect that on June 3 employees
Leland Rutland and Odell Simpson threatened him with loss of his job and that
of his wife . He testified that he reported these threats to Emde and Fairey. The
testimony that he reported threats to Emde and Fairey is not corroborated by them.
I do not credit Godfrey's testimony of threats by Rutland and Odell Simpson. Even
if it were credited there would not be sufficient basis to warrant a conclusion that
the incidents be related could reasonably be said to have formed the basis for the
-Company's refusal to bargain here.
As detailed above, I find that the Company , both before and after the Union's
initial demand of May 24 engaged in various acts of interference , restraint, and
coercion directed against employees in the exercise of their statutory rights to
self-organization . While it is true that the Company 's General Manager Maier
instructed his supervisory staff, on receipt of the union demand , to refrain from
interference with or discrimination against employees , the evidence is clear that his
instructions were disregarded and the Company must bear the responsibility for the
several occasions of questioning and other acts of interference and discrimination.
American Oil Company, Inc., 14 NLRB 990, enfd. 114 F.2d 1009 (C.A. 4).
In the circumstances of the present case, including instances of interference both
before and after the Union 's initial demand for recognition and the absence of
substantial evidence that a good faith doubt actually existed, I find and conclude
that the Company 's assertion of good faith doubt is not substantiated on the entire
record herein , and that its refusal to bargain was an unfair labor practice within
Section 8 ( a)(5) of the Act . Since the Union at all material times represented a
clear majority of employees in the appropriate unit the Company should be
required to recognize and bargain with it. Hamburg Shirt Corporation , 156 NLRB
511.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section III, above and there found to
constitute unfair labor practices have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free flow thereof.
V THE REMEDY
In view of the findings above that the Company has engaged in unfair labor
practices defined within Section 8(a)(1), (3), and (5) of the Act, I shall recom-
mend that it be required to cease and desist therefrom and take such affirmative
action as appears necessary and appropriate to effectuate the policies of the Act.
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire record in
this case , I make the following:
CONCLUSIONS OF LAW
1. All production and maintenance employees, including truckdrivers, em-
ployed by the Company at its Orangeburg, South Carolina, plant, excluding all
office clerical employees , professional employees , cattle buyers, salesmen , sales pro-
motion men , guards and supervisors as defined in the Act, constitute a unit appro-
priate for collective bargaining within the meaning of Section 9 (b) of the Act.
2. At all material times, the Union has been and is the exclusive representative of
all employees in the aforesaid unit for the purposes of collective bargaining within
the meaning of Section 9 of the Act.
3. By refusing to bargain collectively with the Union as the exclusive repre-
sentative of employees in the unit herein found appropriate the Company has
engaged and is engaging in the unfair labor practices defined in Section 8(a) (5) and
(1) of the Act.
4. By interrogating employees as to their signing of union authorization cards
and their actions in soliciting other employees to sign such cards, and by threat-
ening discontinuance of Christmas bonuses and employee loan and meat purchase
privileges in the event the Union organized the plant, the Company engaged in
unfair labor practices defined in Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this case it is recommended that the Company, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of pay, wages, hours of
employment, and other terms and conditions of employment with the Union as
exclusive representative of its employees in the following appropriate unit: all
production and maintenance employees, including truckdrivers at the Orangeburg,
South Carolina, plant, excluding all office clerical employees, professional employ-
ees, cattle buyers, salesmen , sales promotion men, guards and supervisors as defined
in the Act;
(b) Interrogating employees concerning their activities in signing or soliciting
other employees to sign union authorization cards in a manner constituting inter-
ference, restraint, and coercion within the meaning of Section 8(a) (1) of the Act;
(c) Informing employees that existing Christmas bonus benefits and privileges as
to credit union loans and employee meat purchases would be discontinued or cur-
tailed if the Union succeeded in organizing the plant or otherwise threatening loss
of benefits in reprisal for support of the Union;
(d) Discouraging membership in the Union or any other labor organization of
its employees by altering their method of compensation from a salaried to an hourly
rated basis in reprisal for participation in union activities;
(e) In any like or related manner interfering with , restraining, or coercing em-
ployees in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist the above -named union or any other labor organization, to
bargain collectively through representatives of their own choosing and to engage
in concerted activities for the purpose of collective bargaining or other mutual aid
or protection.
2. Take the following affirmative action which appears necessary and appropri-
ate to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union as exclusive representa-
tive of employees in the unit found appropriate above, and embody any understand-
ing reached in a signed agreement.
(b) Offer to reinstate employee Edward Chandler to his former salaried basis
and make him whole for loss of earnings resulting from his change from a salaried
to an hourly pay basis during the period June 20, 1965, to the date of such rein-
statement, in accordance with Isis Plumbing & Heating Co., 138 NLRB 716.
AZALEA MEATS, INC. 597"
(c) Post at the Company's Orangeburg , South Carolina, plant, copies of the
attached notice marked "Appendix." 14 Copies of said notice , to be furnished by
the Regional Director for Region 11, shall , after being duly signed by an author-
ized iepresentative of the Company, be posted immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter , in conspicuous places
including all places where notices to employees are customarily posted . Reason-
able steps shall be taken by the Company to see to it that said notices are not
altered, defaced, or covered by other material.
(d) Notify the Regional Director for Region 11, in writing, within 20 days from
receipt of this Decision , what steps the Company has taken to comply herewith 15
It is recommended that the complaint be dismissed as to allegations of unfair
labor practices therein not herein specifically found to have been committed.
14 If 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. If the Board ' s Order is enforced by a decree of a United States Court of Appeals,
the notice will be further amended by the substitution of the words "a Decree of the
United States Court of Appeals , Enforcing an Order" for the words "a Decision and Order."
15 If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for Region 11, In writing , within '10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
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 Re-
lations Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain with Meat Cutters, Packinghouse & Allied
Food Workers, District Union 433, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO in the following appropriate unit:
All production and maintenance employees , including truckdrivers, at the
Company's Orangeburg, South Carolina, plant, excluding all office cleri-,
cal employees, professional employees , cattle buyers, salesmen , sales pro-
motion men, guards , and supervisors as defined in the Act.
WE WILL NOT interrogate employees concerning their signing of union
authorization cards of their soliciting of others to sign such cards.
WE WILL NOT inform employees that we will discontinue Christmas bonuses
or curtail credit union borrowing or meat purchase privileges or otherwise
threaten employees as a consequence of the Union's organizing employees.
WE WILL NOT discourage membership in or activities in support of the
Union by transferring employees from a salaried to an hourly basis or in
any other manner discriminating against them in regard to hire, tenure, or
terms or conditions of employment because of their union membership or
activity.
WE WILL offer reinstatement to a salaried basis to Edward Chandler and
make him whole for earnings lost due to his transfer from a salaried to an
hourly basis.
WE WILL, on request , bargain with the above Union as exclusive employee
representative in the above unit and embody any agreement in a written
signed contract.
All our employees are free to become or remain members of the above-named
or any other labor organization.
AZALEA MEATS, 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 question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 1831
Nissen Building , 310 West Fourth Street , Winston-Salem, North Carolina 27101,
Telephone 723-2911.