Drennon Food Products Co.

National Labor Relations Board - Board Decisions

Feb 11, 1959

122 N.L.R.B. 1353 (N.L.R.B. 1959)

DRENNON FOOD PRODUCTS CO. 1353
Pursuant to Section 3(b) of the Act, the Board has delegated its
powers herein to a three-member panel [Chairman Leedom and
Members Rodgers and Jenkins].
Upon the entire record, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations named below claim to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer, within Section 9(c) (1)
and Section 2(6) and (7) of the Act .2
4. The following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining within Section
9(b) of the Act:
All production and maintenance employees of the Employer at its
Bloomfield, New Jersey, plant, excluding office clerical employees,
professional employees, sales employees, guards, and supervisors as
defined in the Act .3
[Text of Direction of Election omitted from publication.]
9 The Employer and the Intervenor, Local 108, Retail, Wholesale and Department Store
Union, AFL-CIO, contend that their current collective-bargaining agreement is a bar to
an election. The union-security provision of the contract provides:
All present employees and all employees hired in the future who are covered by
this agreement shall become members of the Union not later than thirty (30) days
after the date of their employment or the date of this agreement, whichever is later,
and shall continue and maintain their membership in the Union as a condition of
their employment, subject to the terms and conditions of any applicable federal or
state laws. The Union shall be the sole judge of the standing of its members, in-
cluding whether each of them has fully paid all dues and initiation fees as requested
by the Union, and the Company agrees to be bound by all decisions of the Union
with respect to the standing of its members. The Employer furthermore agrees,
upon notice by the Union, to discharge forthwith any of its employees who have not
fully paid up all dues and initiation fees due to the Union and to replace such
employees in accordance with and subject to the terms of this agreement.
The Board is of the opinion that the above provision exceeds the permissive limits of
union security allowed by the proviso of Section 8(a) (3) of the Act. See Keystone Coat,
Apron & Towel Supply Company, et al., 121 NLRB 880. Accordingly, we find that the
contract is not a bar.
3 The parties stipulated as to the above unit.
Drennon Food Products Co. and Local 60, Bakery & Confec-
tionery Workers' International Union of America .' Case No.
10-CA-3003. February 11, 1959
DECISION AND ORDER
On July 7, 1958, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that
1 The Board, having been notified by the AFL-CIO that it deems the Bakery Workers'
certificate of affiliation revoked by convention action, the identification of the Charging
Party is hereby amended.
122 NLRB No. 163.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. He also found that the Re-
• spondent had not engaged in certain other alleged unfair labor
-practices and recommended dismissal of the complaint with respect
.to such allegations. Thereafter, the Respondent filed exceptions to
the Intermediate Report and a supporting brief.2
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Jenkins].
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
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the modifications and addi-
tions hereinafter set forth 3
1. We agree with the Trial Examiner that the Respondent inter-
fered with, restrained, and coerced its employees in violation of
Section 8 (a) (1) of the Act by interrogating its employees regarding
their union activity, threatening employees with economic reprisals,
-and promising economic benefits if they abandoned the Union and
by otherwise interfering with the efforts of the employees to exer-
cise the rights guaranteed in Section 7 of the Act. In so doing, we
rely on the following incidents :
. (a) Shortly after the Union notified the Employer of its claim
to majority representation, Superintendent Graden 4 questioned em-
-ployee Mary Poore about the Union and asked her "if [she] was for
the Union and if [she] thought the Union would do [them] any
.good," adding that "he knew [they] could stay there and keep work-
ing but if the Union was voted in [they] could not."
(b) About a week before the election on May 9, Graden asked
employee Ila Lamb if she thought the Union would "help [them]
there," observing in a questioning manner "did [she] know that they
could hire new girls and carry the work on just the same."
(c) About a week before the election, Floorlady Smallwood asked
employee Lamb if she was for the Union and added that "she be-
lieved Mr. Drennon was going to talk to [her] about it, joining."
(d) Shortly after the election, Floorlady Hammond asked em-
The Respondent 's request for oral argument is hereby denied as the record ; exceptions,
and brief adequately present the issues and positions of the parties.
3 As no exceptions have been filed to the Trial Examiner 's recommended dismissal of
the 8(a) (5) allegations of the complaint, we adopt his recommendation.
4 The parties stipulated that Superintendent Graden and Floorladles Smallwood and'
Hammond, whose conduct is also discussed herein, were supervisors.
DRENNON FOOD PRODUCTS CO. 1355
ployee Vera Layton "which way did [she] vote; did [she] vote for
the Union or did [she] vote for the Company," and remarked to
Layton that Mr. Drennon had told her (Hammond) to find out who
voted for or against the Union.
(e) Floorlady Smallwood asked employees Smith and Lamb
shortly before the union meeting, whether they were going to attend
the meeting, advising them in each instance not to go to the meeting
if they valued their jobs. Smallwood also told Lamb that "if we
stay here and work, it will be hard on us till the union talk dies
down, but after it does, we will have more money and a better job
than the Union could pay."
(f) President Jake Drennon told employee Fred T. Green that
"whoever voted for the Union would catch hell," and on a subse-
'quent occasion, repeated this sentiment, that "whoever voted for the
Union would get it."
(g) President Drennon stated in a speech to the employees before
the election that "Somebody-[wanted] to buy his place out," asking
them to bear this and other things in mind and to do what "was
right" when they cast their vote.
(h) Similarly, Vice President Grady Drennon told employees 1
week after his father's address to them that "some employers have
sold out their businesses to keep from accepting the union."
(i) Floorlady Hammond stated to employee Ruby Johnson, "Ruby,
I want to let you know one thing, there ain't going to be no Union
in because Mr. Drennon said he would not sign any contract and
that nobody could make him, and if you girls walk out on strike
he would just hire a new crew to come in and take your place."
(j) Floorlady Smallwood told employee Bradley that she had
better pull out of the Union, adding that "I have been working for
him [Jake Drennon] 25 years and I think I know him, he will never
sign a contract."
(k) Floorlady Hammond informed employee Layton shortly after
the election that "Mr. Drennon has said that before he signed a
union contract that he would rather drop dead, and furthermore he
never intended to sign no union contract and the girls that went
with that Union would end up being out of work."
(1) Hammond told Layton, on the day before the union meeting,
"not to get mixed up with those people, that Mr. Drennon was not
going to stand for us girls getting mixed up with this Union, that
we was going to keep on till we was going to all be out of work."
(m) Smallwood told employee Poore, after the latter had asked
for help on her machine, "You will have to do the best you can.
You asked for it. . . .", and on the next occasion told her, "That is
what the Union has done for you."
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
' Contrary to the Respondent's contention, we find that the Respond-
ent is responsible for the coercive statements of Floorladies Small-
wood and Hammond . Not only are these acts imputable to the
Respondent because of the conceded supervisory authority of Small-
wood and Hammond, but, also as indicated above, their remarks
actually reflected the policy of company officials. Equally without
merit is the Respondent's contention that no violation could be found
because employees were not actually coerced. It is settled law that
conduct, otherwise unlawful, need not have the desired result to be
in violation of the Act.' Finally, Superintendent Graden's state-
ment to a few employees that their jobs would not be affected by
their attitude to the Union and by the results of the election is insuf-
ficient to relieve the Respondent of liability under the Act. This
asserted change in policy was neither communicated to employees as
a whole nor amounted to a disavowal of the coercive conduct of
higher officials, President Jake Drennon and Vice President Grady
Drennon e Indeed, as discussed in the Intermediate Report and
hereinafter, the Company later discontinued a department for dis-
criminatory reasons and Graden himself made coercive remarks to
employees.
2. We find, as did the Trial Examiner, that the Respondent, in
violation of Section 8(a) (3) and (1) of the Act, discontinued opera-
tion of its sandwich department and discharged the seven employees
working there in reprisal for its employees' union activities, and not
for reasons of economy as the Respondent alleges.' As discussed in
the Intermediate Report and as shown in the record, the employees
were discharged on July 15, 1957, when they reported for work that
morning. These discharges were effectuated without prior notice to
the Union, with whom the Respondent was then engaged in collective
bargaining, and without any intimation of such action to its em-
ployees. The notice given by the Respondent to each employee at the
time of the discharge assigned as the reasons therefor the purported
fact that the Company was no longer in the sandwich business.
Significantly, there is no evidence in the record substantiating the
Respondent's claim of economic necessity for closing the sandwich
department.8 On the other hand, there is ample evidence establish-
8 School-Timer Frocks, Inc ., 110 NLRB 1659.
e Goode Motor Co., 101 NLRB 43, 53.
T In view of this determination , Mount Hope Finishing Co. v. N.L .R.B., 211 F. 2d 365
(C.A. 4), as well as other similar cases relied upon by the Respondent , is plainly dis-
tinguishable . In the Mount Hope case the court found that the plant closing and removal
was for economic reasons. Here , however, we find that the discontinuance of the depart-
ment was for discriminatory reasons.
8 As the count held in N .L.R.B. v. Wallick and Schwalm Company, 198 F. 2d 477, 453
(C.A. 3). "This evidence [ i.e., the respondents ' profit and loss position ] was vital, and it
was clearly within the respondents ' power to produce it. The Board would have been
warranted in drawing an inference that such evidence, if adduced , would not have been
favorable to respondents. See 2 Wigmore on Evidence , Section 285."
DRENNON FOOD PRODUCTS CO. 1357
ing that the discontinuance of the department with the consequent
discharges was the culmination of the Respondent's antiunion cam-
paign. Indeed, Superintendent Graden admitted this much when he
obliquely remarked to Floorlady Smallwood, in the presence of the
terminated employees, that the discharges were because the employees
were "for the Union."
Moreover, the record establishes, contrary to the Respondent's
contention, that the closing of the sandwich department was not a
bona fide abandonment by the Respondent of the sandwich manu-
facturing phase of its business. The evidence shows that, as a tem-
porary expedient in its antiunion campaign, the Respondent con-
tracted with Bullock Paper Company, a concern engaged in the
manufacture of paper products, to make cracker sandwiches for it.
To accomplish this purpose, the Respondent, through K & J Corpo-
ration, principally a real estate corporation ° which was admittedly
controlled by the Respondent's president, Jake Drennon, purchased
a new sandwichmaking machine and immediately leased it to the
Bullock Paper Company.1° The lease agreement dated July 1, 1957,
was for a period of 1 year only. It accorded the lessee no option of
renewal but, instead, provided that, notwithstanding anything con-
tained in the lease to the contrary, either party could cancel the
agreement on a 90-day notice. Contemporaneously with the execu-
tion of this agreement, the K & J Corporation leased a portion of
its building, which adjoined the Respondent's premises, to Bullock
for the conduct of Bullock's regular business."
Although the lease agreements were written, the agreement under
which Bullock undertook to manufacture the product for the Re-
spondent was oral. The Respondent offered no evidence concerning
the terms of this oral agreement. Of particular importance, however,
is a written agreement between the Respondent and Bullock, also
dated July 1, 1957, in which the Respondent specifically reserved to
itself all right, title, and interest in and to its trade names and trade
marks and provided that Bullock was to use them only as long as it
continued to manufacture the sandwich product for the Respondent.
In view of the foregoing, we find, that the asserted discontinuance
of the sandwich department was not a bona fide abandonment by
the Respondent of its sandwich manufacturing business. On the
9 Apart from its involvement in the Bullock transactions, there was no evidence to
show that K & J Corporation served any other purpose than to hold title to real property.
10 It is significant that the Respondent was in the process of installing this machine as
a replacement of two others then in use when it closed its department . The reason given
for the failure to install the new machine was that it had too many defects. However, it
was claimed that when purchased by the B. & J Corporation shortly thereafter all defects
had been remedied.
'u Both the agreement for the lease of the machinery and the lease of the premises were
executed on behalf of K & J Corporation by John P. Kanes , who was the attorney and
accountant for the Respondent.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contrary , we find that at all times material herein, the Respondent
retained its right , interest , and control both over its machinery and
the manufacture of its sandwich products.12
Accordingly, we find that, as the Respondent was motivated by
antiunion considerations in closing its sandwich department and dis-
charging the employees working there, the Respondent violated Sec-
tion 8 ( a) (3) and ( 1) of the Act.
THE REMEDY
Having found in agreement with the Trial Examiner that the
Respondent had engaged in and is engaging in unfair labor practices
in violation of Section 8 (a) (1) and (3) of the Act, we shall order
the Respondent to cease and desist therefrom and take affirmative
action necessary to effectuate the policies of the Act.
We have also found that on July 15, 1957 , the Respondent dis-
criminatorily discharged Louise Amerson, Hazel Bradley , Willie Mae
Brady, Ila Lamb, Mary Poore, Idell Smith, and Thelma Worley, all
of whom worked in the sandwich department , because of their activi-
ties on behalf of the Union . We shall, therefore , order the Respond-
ent to offer these employees immediate and full reinstatement to
their former or substantially equivalent positions , without prejudice
to their seniority and other rights and privileges.
The Respondent contends , in effect, that having closed its sandwich
department , the Board may not require it to reopen the department
in order to give employment to the discharged employees, even if it
should be found that the closing was for discriminatory reasons. We
do not agree . As we have found above, the Respondent has not
actually abandoned the sandwich manufacturing phase of its busi-
ness or relinquished its control or interest in this operation, which
ostensibly is being conducted by the Bullock Paper Company. In
these circumstances , we find that , in order to prevent the Respondent
from continuing to benefit from its unfair labor practices , it will
effectuate the policies of the Act to direct the Respondent to resume
operations of the sandwich department under the conditions prevail-
ing before the discrimination occurred ," subject to the following
qualification : If the Respondent has substantially equivalent posi -
tions in its other operations for the above -named individuals, it may
offer them these jobs, without reopening the sandwich department.
We shall also order the Respondent to make whole the above-
12 For this reason , the present case is unlike N.L.R.B. v. New Madrid Manufacturing
Company, et at ., 215 F. 2d 908 ( C.A. 8), and other similar cases cited by the Respondent-
13 Cf . The R. C. Mahon Company, 118 NLRB 1537. Whatever legal rights Bullock
Paper Company may have against the Respondent , they are not involved in this case and
do not affect the Board 's authority to issue the remedial order herein , without making
Bullock a party. Id. at page 1544 . Member Bean, who dissented in that case, deems
himself bound by the principle of that decision.
DRENNON FOOD PRODUCTS CO. 1359'
named individuals for any loss of pay they may have suffered by
reason of the Respondent's discrimination against them by paying,
each of them a sum of money equal to the amount that each would
normally have earned during the period from July 15, 1957, the date
of the Respondent's discrimination against them, to the date of offers
of reinstatement, less her net earnings during such period.14
As we are persuaded that the Respondent's past conduct reveals;
an attitude of opposition to the Act, we find that a potential threat
of future violations exists. We shall therefore provide a broad cease
and desist order herein.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor-
Relations Board hereby orders that the Respondent, Drennon Food
Products Co., Atlanta, Georgia, its officers, agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Discouraging membership in, or activities on behalf of labor
organizations of its employees, by discriminatorily discharging any
of its employees because of their union membership or activities, or
by discriminating in any other manner in regard to their hire or
tenure of employment or any term or condition of employment, ex-
cept to the extent permitted by Section 8(a) (3) of the Act.
(b) Interrogating its employees as to the manner in which they
voted, and their membership in, or activities on behalf of, any labor-
organization, in a manner constituting interference, restraint, or-
coercion in violation of Section 8(a) (1) of the Act; threatening to-
discharge its employees, or to sell its plant or to take any other eco-
nomic reprisals against them because they voted for or supported a
union; and promising more money and better jobs if the employees
abandoned the union.
(c) In any other manner, interfering with, restraining, or coercing-
their employees in the exercise of the right to self-organization, to
form, join, or assist any labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities,,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act.
(a) Offer Louise Amerson, Hazel Bradley, Willie Mae Brady, Ila
14 F. W. Woolworth Company, 90 NLRB 289; Crossett Lumber Company, 8 NLRB 440:.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lamb, Mary Poore, Idell Smith, and Thelma Worley immediate and
full reinstatement to their former or substantially equivalent posi-
tions restoring, if necessary, its sandwich department to its former
status, without prejudice to their seniority or other rights and privi-
leges and make them whole for any loss of pay suffered by them by
reason of the discrimination against them in the manner set forth
in the section of this Decision and Order entitled "The Remedy."
(c) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all payroll records, personnel
records and reports, and all other records necessary to analyze the
amounts of back pay due and the rights of employment under the
terms of this Order.
(d) Post at its plant in Atlanta, Georgia, copies of the notice
attached hereto marked "Appendix." 15 Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, shall, after
being duly signed by the Respondent's representative, be posted by
the Respondent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents to insure that
said notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Tenth Region in writing,
within 10 days from the date of this Order as to what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent engaged in sur-
veillance and refused to bargain with the Union in violation of
Section 8(a) (1) and (5) of the Act.
is In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf
of any labor organization of our employees, by discriminatorily
discharging any of our employees because of their union mem-
bership or activities, or by discriminating in any other manner
in regard to their hire or tenure of employment or any term or
condition of employment, except to the extent permitted by
Section 8(a) (3) of the Act.
DRENNON FOOD PRODUCTS CO. 1361
WE WILL NOT interrogate our employees as to the 'manner in
which they 'voted, or their membership in, or activities on behalf
of, any labor organization, in a manner constituting interfer-
ence, restraint, or coercion in violation of Section 8 (a) (1) of the
Act; or threaten to discharge our employees, sell our plant, or
take any other economic reprisals against them because they
voted for or supported a union, or promise more money and
better jobs if the employees abandoned their union.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organi-
zation, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to re-
frain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
WE WILL offer Louise Amerson, Hazel Bradley, Willie Mae
Brady, Ila Lamb, Mary Poore, Idell Smith, and Thelma Worley,
immediate and full reinstatement to their former or substan-
tially equivalent positions, restoring, if necessary, our sandwich
department to its former status, without prejudice to their
seniority or other rights and privileges.
WE WILL make the above-named individuals Whole for any
loss of pay suffered by them by reason of the discrimination
against them.
All our employees are free to become or remain members, or to
refrain from becoming or remaining members, of any labor organi-
zation. We will not discriminate in regard to hire or tenure of
employment or any term or condition of employment against any
employee because of membership in, or activity on behalf of, any
such labor organization.
DRENNON FOOD PRODUCTS CO.,
Employer.
Dated---------------- By-------------------- -----------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDATIONS
ISSUES
The complaint herein charges Drennon Food Products Co., Respondent herein,
with engaging in conduct violative of Section 8(a)(1), (3 ), and (5 ) of the National
505395-59-vol. 122-87
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Relations Act, as amended (herein called the Act) by coercive statements
and acts , by discriminatory discharges of certain employees and by refusing to
bargain with Local 60, Bakery & Confectionery Workers' International Union of
America. Respondent's several defenses are hereinafter discussed. However, for
convenience to the reader of this Report it is here noted that the primary issues
concern (1) conflicts of evidence; (2) whether the Union involved is entitled to
be recognized as the bargaining agent; and (3) whether Respondent may be re-
quired to reopen a department which it closed and reinstate and make whole the
employees discharged when this department was closed.
FACTS
On or about March 9, 1957, Respondent's sandwich department employees initi-
ated union activity among Respondent's employees by signing union authorization
cards-cards designating or selecting Local 60, Bakery & Confectionery Workers'
International Union of America, AFL-CIO, as the bargaining agent.
On or about March 28, 1957, Respondent's president and majority stockholder
(Jake C. Drennon) wrote "an office memo" to Respondent's secretary and treas-
urer (Mr. Ewing) stating
Effective for payroll week starting this date, you are instructed to increase the
hourly rate by 10 cents per hour on all "wage-hour" employees, excepting ...
These instructions were carried out and the wage increases were reflected in the
pay which the employees received on or about April 5, 1957, and thereafter.
By letter dated April 2, 1957, C. A. McFarland, then business agent for Local
60, Bakery & Confectionery Workers' International Union of America, AFL-CIO,
advised Respondent that said Union represented a majority of Respondent's em-
ployees and asked for "representation as their bargaining agent." Also, on or
about April 2, 1957, said Union filed a Petition for Certification (Case No. 10-
RC-3832). Following an election conducted on May 9, 1957, pursuant to a
stipulation for certification upon consent election, said Union was certified on
May 17, 1957, as the collective-bargaining representative of Respondent's employees
in the agreed-upon appropriate unit.'
About 2 or 3 weeks before the election (before May 9, 1957), James Graden,
superintendent, asked Mary Poore
. . . if I was for the Union and if I thought the Union would do us any
good. I told him I had never worked under a union and I just did not really
know a thing about it. He said he knew that we could stay there and keep
working but if the Union was voted in we could not.
Fred T. Green testified that about the first week of April 1957, Jake Drennon,
president and majority stockholder of Respondent,
. said he [Drennon] was opposed to the Union and it looked like they was
going to come in on him and he said whoever voted for a union would catch
hell.
Green testified further that 2 or 3 weeks later Jake Drennon told him that who-
ever voted for the Union would get it and that on this occasion somebody inter-
rupted and Drennon did not explain what he meant by "would get it."
Jake Drennon denied making the statements attributed to him by Green. On
the basis of personal demeanor, conduct and attitude of witnesses, careful evalua-
tion and weighing of evidence and inherent probability, the Trial Examiner credits
Green's testimony and finds that Drennon made the statements attributed to him
by Green.
Vera Layton testified that about 2 weeks before the election Jake Drennon made
a speech to the employees in which he told the employees that he (Drennon) was
opposed, to the Union and "talked about somebody wanting to buy his place out"
and in which he reminded employees that sometimes unions cause strikes and
people to be out of work and which he concluded with a statement that the em-
ployees should bear these things in mind and do what "was right" when they cast
their vote. Layton testified further that Grady Drennon, son of Jake Drennon and
vice president of Respondent, made a similar speech about a week before the elec-
tion in which he (Grady Drennon) suggested that employees bear in mind when
voting that (1) unions do strike and thus cause employees to be out of work;
'All employees employed by Respondent, excluding truckdrivers, driver-salesmen, office-
clerical employees, professional and technical employees, guards, and supervisors defined
in the Act.
DRENNON FOOD PRODUCTS CO. 1363
(2) some employers have sold out their business to keep from accepting the union;
and (3) a union victory in the coming election did not mean that Respondent
would be required to increase wages. Hazel Bradley, Thelma Worley, and Willie
May Brady also testified concerning these speeches. The general tenor of their
testimony is to the same effect as the testimony of Layton. Bradley, however,
added that Grady Drennon expressly stated that Respondent might go out-of busi-
ness rather than deal with the Union. In the light of the entire record it appears
unlikely that he made such a positive announcement . Rather it appears that that
was inferred or implied rather than stated.
Jake Drennon denied that in his speech he stated that he "knew of someone
who wanted to buy the business." Grady Drennon did not testify in this proceed-
ing. Examination and appraisal of all elements of the evidence taken together, in-
cluding the interrelationship of the testimony of witnesses, inherent probabilities,
the bearing and delivery of witnesses, and the apparent temperament of witnesses,
convinces the Trial Examiner that the Drennons made the statements noted above
and the Trial Examiner so finds.
Ruby Johnson testified that about a week before the election Floorlady Idell
Hammond
came up to me and said, "Ruby, I want to let you know one thing, there
ain't going to be no union in because Mr. Drennon said he would not sign
any contract and that nobody could make him, and if you girls walk out on
strike he would just hire a new crew to come in and take your place."
Hammond denied making the statements attributed to her by Johnson. In the light
of the entire record herein and the personal demeanor of witnesses, the Trial Ex-
aminer considers the testimony of Johnson more reliable than that of Hammond
and finds that Hammond made the statements attributed to her by Johnson.
Hazel Bradley testified that about the first of April 1957, Ruby Smallwood, floor-
lady in the sandwich department, told her (Bradley) that she had better pull out
of the Union and that Smallwood further stated "I have been working for him
[Jake Drennon] 25 years and I think I know him, he will not never sign a con-
tract." Floorlady Smallwood categorically denied making the statements attributed
to her by Hazel Bradley. In fact, her testimony for the most part consists of denial
of statements attributed to her by various employees. In the light of undisputed
facts and inherent probabilities and from observations of witnesses, it appears that
many, if not all, of these denials, including the one under consideration, were made
with "tongue in cheek." The Trial Examiner credits the testimony of Hazel Bradley
noted above, and finds that Smallwood made the statements attributed to her.
About the last of April, James Graden, superintendent, asked Hazel Bradley what
she thought about the Union and its chances of winning the election and assured
her, and others, that jobs were not dependent upon the outcome of the election and
that regardless thereof they would still have their jobs. Also, about 2 weeks before
the election, Graden addressed the employees in the sandwich department and told
them that the rumor then circulating that votes for the Union would mean dis-
charges was not true and that "which ever way it [the election] goes you still have
your jobs."
About 2 weeks before the election, Superintendent Graden told Ila Lamb there
was "a rumor going around if you vote for the Union you will not have a job, but
that is not true. Regardless of how you vote, you will still have a job." About
a week before the election Superintendent Graden again talked to Lamb about the
election and on this occasion asked if she thought the Union would "help us here"
and, when she answered she did not know, Graden "asked me did I know that they
could hire new girls and carry the work on just the same." 2 Lamb further testified
that about the same time as the second conversation with Graden, her supervisor,
Floorlady Smallwood, asked her (Lamb) if she was for the Union and, upon being
told that she had signed a union card said,
. that did not mean that I had joined the Union.
Q, Was there anything else said, that you recall?
A. She said that she believed Mr. Drennon was going to talk to me about
it, joining.
Smallwood did not testify concerning this conversation. She did, however, deny
that she ever mentioned the Union to any of the employees. In the light of the
entire record herein, this denial is not credited by the Trial Examiner.
2 The above finding is based upon the undisputed testimony of Lamb.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 9, 1957, an election was conducted pursuant to a stipulation for certifi-
cation upon consent election.
Vera Layton testified that on the Monday following the election Floorlady
Hammond:
. Called me over there and asked me when I voted, which way did I vote;
did I vote for the Union or did I vote for the Company, and I told her I
voted Union and asked her why she wanted to know and why she was asking
me. She said that Mr. Jake Drennon told her to find out which voted for this
Union and which girls voted against it and that was all she said. I went on
back to work.
Layton further testified that on the same date:
. When we was dressing to leave to go home, she [Floorlady Hammond]
said that she wanted all of us girls to know that Mr. Drennon had said that
before he signed a union contract, that he had rather drop dead, and further-
more he never intended to sign no union contract and the girls that went with
that Union would end up being out of work.
Hammond denied engaging in the conduct or making the statements attributed to
her by Layton. The Trial Examiner credits Layton's testimony noted above.
Mary Poore testified that about 4 weeks after the election, she asked Floorlady
Smallwood for additional help and that Floorlady Smallwood on one occasion
answered "you will have to do the best you can. You asked for it" and on an-
other occasion, around the first of June, answered "You will have to do the best
you can. That is what the Union has done for you."
Smallwood testified that she did not recall mentioning the Union to Poore and
did not recall the second conversation noted above. Smallwood did not testify
concerning the first conversation. The Trial Examiner credits the testimony of
Poore and finds that Smallwood made the statements attributed to her.
On May 17, 1957, Local 60, Bakery & Confectionery Workers' International
Union of America, AFL-CIO, was certified as the collective-bargaining representa-
tive of Respondent's employees.
On May 25, 1957, Local 60, Bakery & Confectionery Workers' International
Union of America, AFL-CIO, held a meeting in the Labor Temple (located on the
corner of Washington Street and Woodward Avenue in Atlanta, Georgia), which
was attended by employees of Respondent.
Idell Smith testified that on May 24, 1957, Floorlady Smallwood "asked me if
I was going to the union meeting [on May 25] and I told her that I had been
thinking about it. She said 'if you value your job, you will not go to the meet-
ing.' " Smallwood testified that she did not recall making any such statement. The
Trial Examiner credits Smith's testimony and finds that Smallwood made the state-
ments attributed to her by Smith.
Ila Lamb testified that during the week immediately preceding the union meeting
'held on May 25, Floorlady Smallwood asked her (Lamb) whether she was going
to the meeting and advised her not to go if she valued her job and further said
"if we stay here and work, it will be hard on us till the union talk dies down, but
after it does, we will have more money and a better job that [sic] the Union could
pay." Smallwood did not testify concerning this conversation. The Trial Exami-
ner credits Smith's testimony and finds that Smallwood made the statements attrib-
u.ted to her by Smith.
Vera Layton testified that on May 24, 1957, Floorlady Hammond told her not
to go to the union meeting and "not to get mixed up with those people, that Mr.
Drennon was not going to stand for us girls getting mixed up with this Union, that
we was going to keep on till we was going to all be out of work." Hammond did
not testify concerning this matter. The Trial Examiner credits Layton's testimony
and finds that Hammond made the statements attributed to her by Layton.
Mary Poore testified that as she approached the Labor Temple around 10 a.m.
on May 25, she noticed John P. Kanes, an attorney and accountant for Respondent,
sitting in a parked automobile across the street from the Woodward Avenue en-
trance to the Labor Temple.
Willie Mae Brady testified that as she left the Labor Temple on May 25, she
observed John Kanes sitting in a parked car across the street from the Washington
Street entrance to the Labor Temple.
On Monday, May 27. 1957, Floorlady Smallwood remarked to the sandwich
department employees that Superintendent James Graden had remarked to her
DRENNON FOOD PRODUCTS CO. 1365
(Smallwood) that all of the sandwich department employees had been seen attend-
ing the union meeting at the Labor Temple on May 25 3
Kanes denied being in the vicinity of the Labor Temple on the date under con-
sideration. Assuming, arguendo, that Kanes did sit in a parked automobile across
the street from the Labor Temple, there is no evidence that he did anything other
than sit-no evidence that he was engaged in observing the Labor Temple, con-
ferring with employees entering or leaving the Labor Temple, making notes, etc.,
or that he reported to Respondent's officials the activities taking place at the build-
ing.4 Under all of the circumstances and in view of the order hereinafter recom-
mended, the Trial Examiner believes and finds it unnecessary to make a specific
finding as to whether Kanes did sit in a parked car and whether such conduct
constitutes a violation of the Act (surveillance).
By letter dated May 27, 1957, C. A. McFarland, then business agent for Local
60, Bakery & Confectionery Workers' International Union of America, AFL-CIO,
notified Respondent that it had been selected as the bargaining representative and
requested a meeting for the purpose of negotiating an agreement. By letter dated
June 4, 1957, John Wesley Weekes of the law firm of Weekes and Candler notified
McFarland that he (Weekes) had been authorized to bargain for Respondent and
suggested a meeting on June 12, 1957. The parties met on June 12, at which time
the Union presented a proposed contract which was discussed section by section.
During this meeting McFarland asked for a listing of employees with a breakdown
as to their job classifications. Such a list was supplied on or about June 19, 1957.
The next bargaining session was held on July 11, 1957. Meanwhile, on or about
July 1, 1957, K & J Corporation, a corporation in which Jake Drennon and his
wife are the sole stockholders,5 leased the building next to Respondent to Bullock
Paper Company, Inc. At the same time (on or about July 1, 1957) agreements
were executed 6 whereby Bullock Paper Company, Inc., acquired the machinery,
raw materials, and trade name or trademark then being used by Respondent in the
manufacture of peanut butter, sweet cream, and cheese sandwiches, and Bullock
Paper Company, Inc., agreed to manufacture and sell to Respondent peanut butter,
sweet cream, and cheese sandwiches. The transfer of machinery and materials
occurred on or about July 13 and 14, 1957, and Respondent ceased the manufac-
ture of the aforementioned sandwiches and discharged its sandwich department em-
ployees on or about July 15, 1957. At the same time (on or about July 15, 1957),
Bullock Paper Company, Inc., went into the sandwich-making business for the first
time. As noted above, the parties met and conferred concerning terms of a col-
lective-bargaining agreement on July 11, 1957. At this meeting the parties discussed
the various sections of the Union's proposed contract and of Respondent's counter-
proposals (which were submitted to the Union at this meeting), including wages.
However, the Union was not informed or made aware of any plans by Respondent
to abandon its sandwich department and no mention was made of this at the
July 11 meeting. The Union was not informed about or made aware of the closing
of the sandwich department until it was a fait accompli. On the morning of
July 15, one of the employees concerned notified the Union that the sandwich
department had been closed and the employees in this department discharged. The
Union immediately contacted Respondent's negotiator, Weekes, and arranged for
a meeting with him. At this meeting the Union, unsuccessfully, sought reemploy-
ment of the laidoff employees and sought further bargaining concerning this matter
and concerning the terms of a contract. Weekes agreed "to schedule another bar-
gaining session as soon as possible." By letter dated July 19, 1957, the Union
sought the written documents pertinent to the closing of the sandwich department,
8 Based upon the testimony of Poore, Smith, Bradley, Brady, Lamb, and Amerson.
Smallwood did not testify concerning this matter except to deny that Graden had made
any such remark to her.
" The only evidence from which an inference could be made that Kanes did make such
a report would be the evidence that Floorlady Smallwood remarked that she had been
told by Superintendent Graden that the employees had been seen. Thus, such an in-
ference would have to be based on hearsay twice removed.
s Jake Drennon is also the majority stockholder in Drennon Food Products Company
(Respondent herein ) and its president . The other stockholders of Respondent are Grady
Drennon (son of Jake Drennon and Respondent's vice president), Raymond Ewing
( secretary-treasurer of Respondent ), and James Graden ( superintendent for Respondent).
$ Two agreements , one between K & J Corporation and Bullock Paper Company, Inc.,
and the other between Respondent and Bullock Paper Company, Inc.
1366 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD
sought reinstatement of the employees laid off and sought to meet and confer about
these matters. By letter dated July 22, Respondent's negotiator , Weekes, advised
the Union:
IN RE: DRENNON FOOD PRODUCTS CO.
Receipt is acknowledged of your letter of July 19th with further reference
to the closing of the sandwich department of the above company.
Mr. Drennon nor the Company has any interest in the Company which will
now make the sandwich and sell them to Drennon Food Products Company.
As a matter of good business , it was decided by the Company to discontinue
the operations of this Department and to buy the products outright from an-
other company . Drennon Food Products Company has no authority whatever
over the employees of this other company and would not be in position to
bargain for them.
Since our last meeting the Company has been unable to see its way clear
toward granting any of the additional wage benefits and wage increases as out-
lined in your proposal. We are willing to continue the same vacation , holidays,
and present wage scale as we have been doing. However , the Company is
studying this and it is hoped that some agreement can be reached in the future.
By letter dated July 26, the Union renewed the requests made in its letter of July
19, 1957, and sought "a further bargaining meeting to be held not later than
Wednesday of next week , that is, July 31, at which these matters may be presented
to us and discussed with you and any other representative of the Company and
Mr. Drennon . It is also requested that you be prepared at this meeting to discuss
all other matters of the general contract provisions with a view toward entering
into an agreement ." By letter dated July 29, Respondent negotiator Weekes' law
partner (Charles Murphey Candler, Jr.) advised the Union that Weekes had left
the city and Would not return until about August 13 or 14, and that he (Candler)
was not available to "participate in a bargaining conference Wednesday as you
requested ." By letter dated July 31, the Union expressed its surprise and dis-
pleasure at Weekes' "being out of the city " and requested Respondent nevertheless
arrange for a bargaining conference during that week ( during the week of July 31,
1957 ). By a letter dated July 31, Respondent negotiator Weekes' law partner
(Candler ) informed the Union that he, Candler , was not available that week for
a conference but that he ( Candler ) would call on Friday his "status at that time
and we could discuss the matter at that time ." Candler was unable to reach the
union negotiator ( McFarland ) on Friday . No further efforts, except for the filing
of the charges herein , have been made by the Union or Respondent to meet and
confer about the matters involved herein.
When the sandwich department employees reported for work on July 15, 1957,
they were given discharge notices stating as the reason for the discharge "the Com-
pany is no longer in the manufacture of sandwiches , and therefore that department
is discontinued."
Three employees ( Mary Poore, Hazel Bradley , and Willie Mae Brady ) testified
that Floorlady Smallwood told them that the discharges were because of union
activities . Poore and Bradley also testified that Floorlady Smallwood, upon inquiry
as to whether she (Smallwood ) was being laid off was told, in their presence by
Superintendent Graden , that she ( Smallwood ) was "not union" and was not being
laid off. Graden and Smallwood denied making the statements attributed to them.
On the basis of observation of witnesses and analysis of the record herein and
inherent probabilities in the light of the credited evidence , the Trial Examiner
believes and finds that Graden and Smallwood engaged in the conduct and made
the statements noted immediately above.
Jake Drennon testified that he closed the sandwich department for "economical
reasons-it was costing too much to operate and we could buy cheaper than we
could make because the machine the Party [Bullock Paper Company , Inc.] had
would take less employees." Drennon testified further that he determined from
Respondent 's records that it was cheaper to buy than to make sandwiches. How-
ever, no such records were made a part of this proceeding . ( See N .L.R.B. v.
Wallick and Schwalm Company , et al., 198 F . 2d 477, 483.) As previously noted
in this Report , Bullock Paper Company , Inc., acquired the machinery which it uses
to manufacture sandwiches from Respondent and K & J Corporation and this
machinery was moved from Respondent 's place of business on or about July 13
and 14 . Drennon testified at length as to how long it was costing too much to
operate and how long the closing of the sandwich shop was in contemplation but
DRENNON FOOD PRODUCTS CO . 1367
his testimony on these matters is far from clear, in places self -contradictory,7 and
inconsistent with other undisputed facts in the record , i.e., the wage increases made
effective on or about April 5 , 1957, and the fact that no one ever consulted with
the floorlady in charge of the sandwich department (Smallwood ) as to whether or
not this department could be run more efficiently . Under the circumstances just
noted , the Trial Examiner rejects the testimony of lake Drennon that business rea-
sons motivated the closing of the sandwich department . (See I . C. Sutton Handle
Factory v. N.L.R.B., 255 F. 2d (C.A. 8).)
As noted earlier in this Report, on May 17, 1957 , Local 60, Bakery & Confec-
tionery Workers' International Union of America , AFL-CIO, was certified as the
collective-bargaining representative of Respondent 's employees . On December 12,
1957, Bakery & Confectionery Workers' International Union was expelled from the
AFL-CIO which thereafter issued a charter to American Bakery & Confectionery
Workers' International Union, AFL-CIO. On December 21, 1957, the membership
of Local 60 voted to disaffiliate from the Bakery & Confectionery Workers' Inter-
national Union and to affiliate with the American Bakery & Confectionery Workers'
International Union, AFL-CIO.
The original charge herein was filed on August 13 , 1957, by Local 60, Bakery &
Confectionery Workers' International Union of America , AFL-CIO, and alleges
violations of Section 8(a)(1), (3 ), and (5 ) of the Act . The amended charge was
filed on January 3, 1958, by Local 60, Bakery & Confectionery Workers' Interna-
tional Union of America and alleges violations of 8(a )( 1), (3), and (5).
Contentions and Conclusions
Respondent seems to assert that the amended charge is not properly an amended
charge-because the amended charge was not filed by the same organization which
filed the original charge-and that the instant proceeding based on a complaint
sounding on the amended charge 8 should be dismissed . The Trial Examiner hereby
rejects any such assertion . The Trial Examiner believes that there is sufficient
identity of interest between the organization which filed the original charge and
the organization which filed the amended charge so that they cannot be classified
as strangers and the amended charge may properly be called an amended charge.
Furthermore , the validity of a charge upon which a complaint is based is not
dependent upon the motive or interest of the one who filed it and the purposes of
the Act would be defeated by a holding that the amended charge herein is inade-
quate for the reasons asserted above.
Respondent seems to contend that no issue concerning its coercive conduct was
raised prior to the filing of the original charge and that therefore no findings
against it involving conduct prior to the date of the filing of the original charge
may now be made. Any such contention is hereby rejected . The facts are not in
accord with this contention . The conduct complained of, and under consideration
herein , did not occur more than 6 months prior to the filing of the original charge
(see Section 10(b) of the Act). The doctrine of estoppel announced in Aiello
Dairy Farms , 110 NLRB 1365, is not applicable to the facts involved herein.
Respondent contends that "the complaint encompasses far more allegations than
were contemplated by the charge and amended charge." If true, such would not
warrant dismissal of all, or part of, the complaint . See Triboro Carting Corpora-
tion , 117 NLRB 775, 777-780.
The evidence of Respondent 's hostility towards the organizational efforts of its
employees and its desire not to operate with a union, noted above, is overwhelm-
ing and lends persuasive support to the contention that the layoffs were motivated
by Respondent 's opposition to the union movement then underway . However, in
view of Superintendent Graden's remarks that jobs would not be affected by the
outcome of the election , a question arises as to whether Respondent adequately
repudiated and disavowed the coercive conduct involved herein . Graden , and other
supervisors , after the remarks under consideration engaged in coercive conduct and
at no time did Respondent bring home to its employees that supervisors were not
7 For example , he first testified that it was contemplated for about a year, and later
that he did not know about the costs until he went over Respondent's records the last
part of June 1957.
s The complaint does not specify whether it Is based upon the original or the amended
charge. It states "it having been charged by Local 60 , Bakery & Confectionery Workers'
International Union of America ( herein called the Union ) that. . . .
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
acting for Respondent in making, and engaging in, coercive conduct. In the opin-
ion of the Trial Examiner, Respondent is responsible for the coercive conduct noted
above. See Goode Motor Co., 101 NLRB 43, 53, and cases cited, therein.
One of the major problems herein is whether the union as now formed is the
same union as was certified and entitled to the rights flowing from the certification.
In Drennon Foods Products Co., Case No. 10-RC-3832, the Board rejected a simi-
lar contention and ruled that the question of whether the union as now formed is
entitled to the rights flowing from the certification must "be determined through
a petition and-secret ballot of the employees concerned." 9 In view of this holding
of the Board, the Trial Examiner believes that the refusal to bargain allegations
of the complaint must be dismissed regardless of whether such allegations have
merit. Accordingly, the Trial Examiner is not ruling upon the merits of the re-
fusal to bargain allegations.
Having found that Respondent closed its sandwich department on July 15, 1957,
contracted the work thereof, and terminated the employment of all its sandwich
department employees on that date, in violation of the Act, a question now arises
as to whether, on the basis of The R. C. Mahon Company, 118 NLRB 1537,
Respondent should be ordered to reopen this department, and offer the employees
concerned reinstatement with back pay. Respondent attempts to distinguish the
instant matter from the Mahon case by noting that in the Mahon case the services
continued at the same plant, whereas herein sandwich making moved to another
location. The Trial Examiner believes this distinction insufficient to warrant devi-
ating from the policy set forth in the Mahon case. Furthermore, to refuse to
apply the Mahon case policy and not order reopening of the department and rein-
statement with back pay would permit Respondent to enjoy the fruits of its un-
lawful conduct, shift the hardship resulting from Respondent's conduct to the vic-
tims of the unfair labor practice, and serve to encourage rather than discourage
unfair labor practices by others.
As noted above, a wage increase was granted during the same month that union
activity was initiated. The complaint seems to have been drawn on the theory that
this wage increase was granted after the request for bargaining and was violative
of Section 8(a)(5) of the Act. The facts reveal that this wage increase was made
prior to the request for bargaining and, as noted above, the Trial Examiner believes
that in any event the refusal to bargain allegations of the complaint must be dis-
missed. Events subsequent to the granting of this wage increase cause suspicion
that it was part of Respondent's attempt to interfere with, restrain, or coerce its
employees in the exercise of the rights guaranteed in the Act. Suspicion, however,
is not proof and the Trial Examiner believes the evidence adduced insufficient to
warrant a specific finding of independent violation of Section 8 (a) (1) of the Act
by virtue of this wage increase.
ULTIMATE FINDINGS AND CONCLUSIONS
In view of the foregoing and upon the entire record in this matter, the Trial
Examiner makes the following findings of fact and conclusions of law:
1. The evidence adduced in this proceeding satisfies the Board's requirements for
the assertion of jurisdiction herein.10
2. The evidence adduced establishes that Respondent discharged Louise Amerson,
Hazel Bradley, Willie Mae Brady, Ila Lamb, Mary Poore, Idell Smith, and Thelma
Worlev and thereby violated Section 8(a)(1) and (3) of the Act.
3. The evidence adduced establishes that Respondent interfered with, restrained,
or coerced employees in the exercise of rights guaranteed in the Act by the afore-
mentioned discharges, by interrogating employees as to their union activities, by
threats of reprisal or force, and by promises of benefit, and thereby violated Sec-
tion 8 (a)( I) of the Act.
4. The aforesaid activities are unfair labor practices affecting commerce within
the meaning of Section 2(6) of the Act.
5. The evidence adduced does not warrant an order directing Respondent to
bargain.
[Recommendations omitted from publication.]
9 Reported in 120 NLRB 624.
10 Respondent engages In Atlanta, Georgia, In the manufacture and sale of food products.
During the fiscal period ending September 30, 1957 , it sold and shipped products valued
at $340,230 directly to customers located outside the State of Georgia.