Frank Smith and Sons Co.

National Labor Relations Board - Board Decisions

Jun 7, 1974

211 N.L.R.B. 182 (N.L.R.B. 1974)

182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frank Smith and Sons Company and Amalgamated
Meat Cutters & Butcher Workmen of North
America, AFL-CIO, Local 540. Cases
16-CA-5187 and 16-RC-6280
June 7, 1974
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On February 8, 1974, Administrative Law Judge
John M. Dyer issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the Charging Party
filed an answering 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
authority in this proceeding to a three-member panel.
The Board has considered the record 1 and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,2 and conclusions3 of the Administrative
Law Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Frank Smith and
Sons Company, Waco, Texas, its officers , agents,
successors , and assigns, shall take the action set forth
in the said recommended Order.
IT IS HEREBY FURTHER ORDERED that the election
conducted herein on June 14, 1973, be, and it hereby
is, set aside.
[Direction -Second- Election and Excelsior-of
footnote omitted from publication.]
CHAIRMAN MILLER, dissenting:
The findings of the Administrative Law Judge
upon which he premises his conclusion that Respon-
dent violated Section 8(a)(1) of the Act are found in
section II , B, of his Decision and read as follows:
I conclude and find that Respondent through
C.D. Shawd, Howard Smith, and Joe Padillo told
the employees that if the Union came in the plant
it would insist that their workweek be cut to 40
hours because the Union wanted to get more dues
and that consequently the employees pay would
be less since they would not be allowed to work
overtime. This message was given to the employ-
ees in the context that it would happen if they
selected the union as their bargaining representa-
tive. Coming from the Respondent in speeches
such as Shawd's where Respondent sought to
show that a union had little say in what
happened, this statement would be taken by
employees as a certainty. These Respondent
statements violated Section 8(a)(1) of the Act and
I so find and conclude.
In my view, the above finding and conclusion is
internally inconsistent and cannot provide a proper
basis for an 8(a)(1) finding.
It will be noted that the finding is to the effect that
the Union would insist that the employees' workweek
would be cut to 40 hours because of the Union's
desire for more dues, and hence a larger work force.
How that can be characterized as a threat of action
to be taken by Respondent I find most puzzling in
the first instance. But when it is then coupled with a
finding that Respondent had "sought to show that a
union had little say in what happened," I find the
conclusion that "this statement would be taken by
employees as a certainty" to be little short of absurd.
I therefore dissent from my colleagues' affirmation
of the Administrative Law Judge's conclusion as to
this matter. I would dismiss the complaint in its
entirety, since the Administrative Law Judge found
no other violations of the law to have occurred.
i We find that the Administrative Law Judge 's Decision is supported by
the record evidence herein . We do not rely on a fourth, independent
translation which the Administrative Law Judge had made of an exhibit
after the trial had concluded and which was not served on the parties
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3). We have carefully
examined the record and find no basis for reversing his findings.
3 The apparent inconsistency cited by our dissenting colleague, when
considered in light of the totality of the Administrative Law Judge's
findings, is merely an ambiguity which does not affect the validity of the
Administrative Law Judge's conclusion. As the Administrative Law Judge
found, based on credited testimony, Respondent's president told the
English-speaking employees that if the Union won, they would lose their
overtime and that they could work only 40 hours a week He further found
that, in addition to President Smith 's threat to the English-speaking
employees , Respondent told the Spanish -speaking employees that the
Union would insist that they not be allowed to work overtime and that
Respondent , in fact, would not allow them to work overtime , if they selected
the Union as their bargaining representative . The Administrative Law
Judge's conclusion , therefore , as quoted by our colleague , while somewhat
ambiguous, is clearly founded on the Respondent 's threats to discontinue
overtime if the Union won the election . The Administrative Law Judge's
finding that Respondent indicated that the Union had little to say in what
happened merely emphasizes that although the threat, when made to the
Spanish-speaking employees, was couched in terms of union insistence,
Respondent clearly conveyed to these employees that the Respondent
would, in fact, discontinue overtime if the employees selected the Union.
211 NLRB No. 20
FRANK SMITH AND SONS 183
DECISION
STATEMENT OF THE CASE
JOHN M. DYER , Administrative Law Judge: On June 11,
1973,1 the Amalgamated Meat Cutters & Butcher Work-
men of North America, AFL-CIO, Local 540, herein
called the Union, filed a charge against Frank Smith and.
Sons Company, herein called the Company or Respondent,
alleging that the Company had violated Section 8(a)(1)
and (3) of the Act. The Union filed an amended charge on
July 13 deleting the 8(a)(3) allegations.
Following the filing of an NLRB representation petition
by the Union, a Stipulation for Certification Upon
Consent Election was approved by the Regional Director
on May 15 and a secret-ballot election was conducted on
June 14, which resulted in 48 votes being cast for the
Union and 84 against and challenged ballots were
insufficient to affect the results of the election. On June 19,
the Union filed timely objections to the election, which
stated that the Company had failed to provide the Union
with a list of employees with correct addresses and that on
the day prior to the election the Company had held captive
audience meetings for Mexican national employees in
which they had been promised increased economic benefits
if the Union lost the election and threatened with reduced
benefits if the Union won the election. The objections also
alleged that the Company reduced the work hours of its
Mexican national employees. An allegation of a discharge
violative of the Act was later withdrawn. On July 20 the
Regional Director issued his Report on Objections and
ordered a hearing in regard to the three objections.
On July 27 the Regional Director issued an .order
consolidating cases, complaint and . notice of hearing.
The complaint alleges that Respondent through its owner
Howard Smith, Labor Consultant C. D. Shawd, and
alleged foreman,, Joe Padillo, on June 13 promised
employees a wage raise if they refrained from assisting the
Union and threatened that if the Union became their
bargaining agent the workweek would be reduced to 40
hours and their paychecks would be smaller and that they
would lose existing restroom privileges.
Respondent denied any violations of the Act and that
Padillo was a supervisor.
At the trial of this matter held on September 5 and 6 and
November 19, in Waco, Texas, the complaint was
amended to add an allegation that Howard Smith in
violation of Section 8(a)(1) made promises of benefit and
threats of loss of benefit on June 5 and 8 to employees. The
parties stipulated that such alleged activities were not to be
considered in the objections in the representation case.
Some facts in this case are not controverted but the
allegations regarding statements allegedly made on June 5,
8, and 13 are in dispute. One of the problems in this case is
the fact that some of the employees are Mexican nationals
who may be in this country illegally. Most of them do not
speak English and understand only Spanish. Mr. Smith
stated that his Spanish was very limited and as a
consequence if he spoke an interpreter was necessary. Mr.
Shawd's speech on June 13 was written in English and
translated into Spanish by Mr. Shawd who stated his
Spanish was adequate in most conversations. The parties
agree that in most cases it is impossible to make a literal
translation from English to Spanish or vice versa and that
translations must be a bit flexible.
I have concluded that Respondent violated Section
8(a)(1) of the Act in some of the instances alleged but not
in others and I will recommend that the election held on
June 14 be set aside and that an appropriate notice be
posted and that other allegations of the complaint and the
objections be dismissed.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally.
General Counsel, Respondent, and the Union have all filed
briefs which have been carefully considered.
Upon the entire record in this case including my
evaluation of the reliability of the witnesses based on the
evidence received and my observation of their demeanor, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND
THE LABOR ORGANIZATION INVOLVED
Respondent is a Texas corporation with its principal
office and place of business in Waco, Texas, where it is
engaged in poultry processing. During the past year
Respondent sold and shipped to points directly outside the
State of Texas products valued in excess of $50,000 and
during the same period received goods and services directly
from outside the State of Texas valued in excess of $50,000.
Respondent admits and I find that it is and has been at
all times material herein engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
Respondent admits and I find that the Union herein is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
Respondent is a chicken processor employing approxi-
mately 150 people in its production and maintenance unit.
Howard Smith is the president (and apparently the owner)
of the corporation and Joe Padillo is at present a foreman
but did not have that status at the time of the relevant
allegations . C. G. Shawd is an independent labor consult-
ant who was retained by Respondent for his services and
who on one event made a speech in Spanish to Respon-
dent's Mexican national employees. From the testimony it
is fair to assume that a large percentage of the Mexican
national employees are illegally in this country and are
subject to deportation.
Union Business Agent Allen Lewis distributed union
literature near the plant and in the plant's parking lot, held
meetings with the employees, and filed the petition for an
election referred to above. Pursuant to the Board rule,
Respondent gave the Union a list of its employees' names
but did not include their addresses. The Union complained
and a new list with names and addresses was submitted
I Unless otherwise stated all events took place in 1973.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Union 's agreement that it would not use the
omissions of the prior list as an objection to the election.
Using this new "Excelisor list" the Union mailed literature
to the employees and of the 150 on the list , it had some 23
envelopes returned with the notation that the addressee
was not there or that the letter was not deliverable at that
address . The Company had a notice on its bulletin board
in English stating that employees were to keep their current
addresses known to the Company. At some point between
May 15 and the date of the election , June 14 , Respondent
had one of its supervisors talk to some of the employees
and check addresses but any changes it found were not
given to the Union. According to undenied testimony
when Respondent received the objections from the Union
it checked the records and found that it did not have
correct addresses for the 23 employees whose mail was
undeliverable.
The Union's objection is that the employer should have
secured correct addresses of all its employees and made
such known to it, and should have forwarded to the Union
such correct addresses as became known to it in the interim
before the election.
It is problematical as to whether Respondent had some
corrected addresses it had not given to the Union within
the few days prior to the election . Where it is understood
that a portion of Respondent 's employees are illegal
immigrants, it is not surprising that the addresses given to
Respondent are not correct . It would be probable that
persons in such situations would not want correct
addresses on any record.
In the circumstances I find that Respondent provided
such addresses as it had and that its action or nonaction
did not interfere with the Union's right to a listing of
employees ' names and addresses . Accordingly, I would
recommend that the Union 's objection on this matter be
dismissed.
B. The June 5, 8, and 13 Meetings
Howard Smith testified that he spoke to the employees
some 20 to 25 times between the date that the stipulation
for an election was signed and the date of the election. At
the hearing General Counsel amended the complaint to
allege that Howard Smith, in employee meetings on June 5
and 8, threatened that employees would lose certain
benefits such as Christmas bonuses, retirement benefits, or
insurance benefits if they selected the Union as their
bargaining agent . The meetings on these two occasions
were with English speaking employees. Susanna Garcia
testified that at the first meeting Smith asked the
employees to give him a chance to win the election and
said they could lose items such as their Christmas bonuses,
retirement plan, or insurance benefits if they went with the
Union. She stated that at the second meeting Howard
Smith asked the employees to give him a chance and he
would pay them 5 or 10 cents more if he won the election
but if the Union won they would lose their overtime
because they would only be allowed to work 40 hours a
week. During cross-examination she said that Smith
threatened to withhold their Christmas bonus if he lost the
election and that they would also lose their insurance and
retirement plan.
Howard Smith denied that he had ever said anything
about a retirement plan principally because Respondent
does not have a retirement plan. Respondent does have a
profit-sharing plan. Smith specifically denied making any
statements about a 5- or 10-cent increase or threatening to
cut out the Christmas bonus, a retirement plan, or an
insurance plan. He testified that in one of his talks he told
the employees their wages were frozen but if the wage and
hour law was passed and signed , the Company would have
to follow the law and increase their wages . Smith denied
telling the employees that their workweek would be
reduced to 40 hours or they would get smaller paychecks, if
they joined the Union.
On June 13 a meeting of all the Mexican national
employees was held . Labor Consultant Shawd testified that
he drew up a list of questions and answers in English and
translated them into Spanish for his speech . Shawd stated
that he could get by in conversational Spanish but because
his Spanish was not the best Joe Padillo was brought up on
the stage for his translation abilities . Mr. Smith was present
and spoke to Shawd or Padillo several times during the
meeting which lasted about 45 minutes, of which about 25
minutes was consumed with Shawd 's question and answer
speech . The remaining time was spent in questions and
answers and although Padillo remembered only two
questions being asked in Spanish which he translated, the
testimony is not conclusive as to how much Padillo
participated . It is clear that on several occasions Smith
prompted statements by Shawd by telling him something
which Shawd or Padillo then expressed to the employees in
Spanish.
The Spanish notes from which Shawd spoke were
received in evidence as an exhibit . None of the parties was
particularly satisfied with the English translation given by
the other and three separate translations were received
from them, and I have had a fourth translation prepared
by an independent party. All the translations are similar in
that they express the Company's dominance in any
relationship with the Union. Shawd apparently tried to
make it clear to the employees that the Company had the
last word in everything so that if it didn't like what the
Union proposed the Union could either leave or it could
strike but final determination of issues was up to
Respondent . One unnumbered question and answer was
translated as follows:
Q. Why will the Union demand a 40 hour work
week for the employees?
A. It is clear-if nobody works more than 40 hours
a week-the Company will hire more employees from
whom the Union expects more money . The Union gets
more money but the employees will earn less.
Shawd testified that in addition to using his prepared
speech he told the employees how the election would be
run, what the voting procedure would be, showed them a
folded portion of the election notice which had the ballot
on it, and explained how to vote no. He told them the
election would be secret and no one would know how they
voted and that if the Union lost the Company would be
free to resume its normal practices , but if the Union won it
would come up with a contract proposal and there would
FRANK SMITH AND SONS
be negotiations which might last 3 weeks, 3 months, or
longer. Shawd testified he told the-employees that the wage
freeze then in effect would continue until the matter was
settled one way or another, but explained that if the wage
and hour law went into effect which it might do in 60 to 90
days, there would probably be an increase in the minimum
wage of 20 cents an hour.
Shawd testified that an employee asked about a 40-hour
workweek and he replied that under a union contract the
Union would likely have provisions which would make it
difficult or awkward for the Company to grant overtime to
the employees, and the result would be to reduce the hours
to 40 so the Company would have to hire more employees
and the Union could have more dues paying prospects. In
this particular Mr. Shawd's testimony is not as specific as
the question and answer on his notes , supra.
The parties agreed that there can be no direct word for
word translation of Spanish into English or vice versa and
there are some English words which have no counterpart in
Spanish. Therefore there must be some interpretation in
the translation. Accordingly I have concluded that since
Mr. Shawd made his own translation of English into
Spanish, if there is any ambiguity or doubt in the
translation it must be resolved against Respondent. The
employees who were receiving this message are not
sophisticates, but are Mexican nationals entirely unfamiliar
with the niceties of phrasing in labor matters and occupy
precarious positions in this country since most if not all of
them are subject to deportation. It appears that the
message was made clear to them , that if they persisted in
voting for the Union and bringing it into the plant, they
would lose a part of their wages since their overtime would
be eliminated . Similarly, since Shawd admits speaking
about the wage hour law, I conclude that something was
said to the employees about the possibility of wage raise.
The sum mentioned by Shawd is 20 cents an hour. Since
the evidence tends to show that about that time the
Company was paying $1.70 an hour, it is difficult to
imagine how a $2 minimum wage law would have been
complied with if Respondent raised its wages 20 cents an
hour. Padillo testified that Shawd told the employees the
wage would probably go to $2 per hour within a month or
so but he was not promising them anything.
From this testimony I conclude that Respondent
indicated to its employees that they would probably be
receiving a wage raise in the near future . It is doubtful if
the Mexican national employees understood the complexi-
ties of the wage hour law or its relation to a raise.
Unfortunately we do not have this part of Mr. Shawd's
speech in writing.
There is some testimony by General Counsel's witnesses
that they were told by the Company that if the Union did
come into the plant and employees reported to work with
alcohol on their breath they could be fired and that they
would not be permitted the same restroom privileges they
now enjoyed without the Union. It is possible that in some
of the Spanish conversations that took place Padillo might
have made such a reference but Respondent's witnesses
deny making such statements.
Padillo testified that at a meeting prior to June 13 he told
the employees that the Union wanted to get more people
185
employed in order to get more dues . As for the June 13
meeting Padillo admitted he said something about 40 hours
and believes he said that under a union contract the
Company would be forced to hire more people in order to
do the same work and the Union wanted more people in
order to get more dues. -
In those situations in which Padillo was acting as a
translator such as at the June 13 meeting and when he was
invited to speak at other meetings and addressed the
employees as he stated, I find that he was acting as an
agent of Respondent and that Respondent is responsible
for his statements.
I further find despite his denial that Howard Smith made
the statement about workweeks being cut to 40 hours and
wages lowered as a consequence. This statement was made
by Shawd and Smith was following Shawd's advice at that
time which enhances the probability of Smith making a
similar statement. I credit the employees' testimony in this
regard.
I conclude and find that Respondent through C. D.
Shawd, Howard Smith, and Joe Padillo told the employees
that if the Union came in the plant it would insist that their
workweek be cut to 40 hours because the Union wanted to
get more dues and that consequently the employees pay
would be less since they would not be allowed to work
overtime. This message was given to the employees in the
context that it would happen if they selected the union as
their bargaining representative. Coming from the Respon-
dent in speeches such as Shawd's where Respondent
sought to show that a union had little say in what
happened, this statement would be taken by employees as
a certainty. These Respondent statements violated Section
8(a)(1) of the Act and I so find and conclude.
The evidence convinces me that Smith and Shawd told
the employees they would be receiving a 20-cent raise
shortly after the election. I believe that Smith and Shawd
attempted to put this raise in the context of passage of a
wage hour law but from the testimony it appears they were
unable to make this clear to some of the employees.
Coming as such statements may have along with other
statements as to what the Union could do or what the
Company might do, it may have been misinterpreted by
employees who would mainly be interested in raises and
not in the niceties of how they would get them. Mentioning
raises to employees with as little knowledge of English as a
number of these employees had, it is quite conceivable that
they latched on to the promise of a raise without realizing
it was conditioned on a wage hour law being passed and
signed. It seems clear from Mr. Shawd's testimony that he
had counseled Respondent it could give no raises unless a
national wage hour law was enacted which would mean
that raises must be given. From the testimony I do not
conclude that Respondent was engaging in brinksmanship
in talking about raises but coupled its remarks with the
wage hour law provisions. Though Respondent's employ-
ees may not have understood this message or its implica-
tions, I cannot find that Respondent violated Section
8(a)(1) of the Act by these statements.
Respondent after receiving the objections to the election
attempted to negate the idea that it had made any threats
or promises in its June 13 speech by having some of its
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees sign a statement . Mr. Smith got a local
probation officer, Mr. Reyna, to act as translator and had
him translate an English statement orally into Spanish to
groups of the Mexican national employees who had
attended the June 13 speech. Padillo brought the employ-
ees in groups of six or seven to the office . Smith and a
notary public were present while this procedure went on.
The statement recites that there were no promises or
threats and was signed by 19 employees. No oath was
administered to the employees although it is signed by the
notary public indicating that it was sworn to.
I cannot credit this written statement which was not
made under oath and which was made in the circum-
stances recited above. Padillo stated he knew that Reyna
was a probation officer and whether this knowledge was
passed to the employees is not known. However, these
employees who probably are illegal immigrants would be
under severe compulsion to do whatever Respondent
wished, even if we credit Reyna that his translation was
good and that the employees understood it.
General Counsel urges that I find this Respondent action
violative of Section 8(a)(1) as an illegal interrogation of its
employees. This action was never alleged by General
Counsel as violative of the Act nor was such suggested at
the trial despite the testimony in regard to it. I cannot find
that such action violated Section 8(a)(1) under these
circumstances.
C. The Wage Raises
On the motion of the General Counsel and the Union the
trial in this matter was reopened on November 19 to
consider the question of whether raises given by Respon-
dent on September 21 and November 16 pursuant to a
written announcement by Respondent on September 14
was violative of Section 8(a)(l). The parties agreed that the
following notice signed by Howard Smith was placed on
the bulletin board on September 14:
NOTICE TO OUR EMPLOYEES
All new employees will start at the rate of $1.70 per
hour.
On September 21, 1973 all employees who have been
here 3 months or longer will receive $1.80 per hour and
on November 16, 1973 raised (sic) to $1.90 per hour.
There is no question but that the raises were given as the
notice indicates. In October after the motion to reopen was
made, Respondent posted the following notice signed by
Howard Smith on its bulletin board.
NOTICE TO ALL EMPLOYEES
TO ASSURE THERE IS NO MISUNDERSTANDING AMONG THE
EMPLOYEES THIS IS TO ADVISE THAT THE REASONS FOR
THE RECENT RAISES AND ANNOUNCEMENT WAS SOLELY TO
ENABLE THE COMPANY TO MEET OUR COMPETITION IN THE
LABOR MARKET, TO ENABLE US TO HIRE NEW EMPLOYEES,
AND TO HELP REDUCE THE LARGE TURNOVER AMONG
OUR PRESENT EMPLOYEES . NO OTHER REASONS ENTERED
INTO OUR DECISION TO TAKE THIS ACTION.
General Counsel maintains that the granting of these
raises shortly after the completion of the first part of the
case demonstrates that the promise of raises alleged as
violative by General Counsel was being kept by Respon-
dent in making the raises at this time and constitutes proof
that such promises were made and is a separate 8(a)(1)
violation in that the raises were given during the pendency
of the representation case. General Counsel offered no
statements or other evidence other then the fact that the
raises were given.
The parties stipulated that on September 6, President
Nixon vetoed a wage hour bill. Respondent offered
testimony that it had suffered an increasing amount of
labor turnover during the summer of 1973. It showed that
from a turnover rate which ranged between 21 and 25 in
May, the number jumped to 36 in June, dropped to 28 in
July, then jumped to 48 in August. Howard Smith testified
he believed the large turnover increase in August came as a
result of its competition, a turkey processor in Waco,
announcing in June that it was raising wages to over $2 per
hour effective in July. Respondent stated that if the wage
hour bill had been passed it would have raised its wages
pursuant thereto and believes it would not have suffered
the high rate of labor turnover it experienced in August.
Respondent also adduced testimony that some 3 or 4
weeks after the June 14 election there was a shutdown by
the "hangers" who start the chickens on the hanging line.
The testimony showed that the shutdown occurred
following the morning break and when Howard Smith
talked to the employees to ascertain the problem, he was
told they wanted raises since the employees at the turkey
processing plant had just received a large wage increase.
Smith testifed and his testimony was corroborated, that he
told the employees that due to the pendency of the
representation case he could not raise any wages and that
the employees could either go back to work or they could
go home. The employees returned to work. Smith said he
was then relying on Shawd's advice that Respondent could
not raise wages during this period that after the veto of the
wage hour bill he discussed the problem of labor turnover
and wage rates with his counsel since he felt it was
necessary to do something in order to keep his people and
be able to hire others. Attorney Parker advised him that he
appeared to have justification for the wage increases and
shortly thereafter the first notice was posted.
General Counsel asserts that it apparently was not
necessary for Respondent to grant the wage increases since
it did hire new employees and apparently felt it was able to
do so at the time of the brief strike.
Respondent also claimed that the labor market was tight
in its area and offered labor statistic summaries for Waco
and for McClennan County which was objected to by
General Counsel. I receive them in evidence but find them
not persuasive . The summaries as such show that the labor
market ran somewhat in the area of 3 percent unemploy-
ment which is a bit tighter than some other areas of the
country but it does not necessarily indicate that the labor
market was tight for Respondent 's needs.
In any event the undisputed testimony does show that
Respondent did suffer a large turnover in August which
amounted to almost a third of its employees in the
FRANK SMITH AND SONS
production and maintenance unit. With the uncontradicted
testimony of the wage increase at a competitive plant it
would seem that Respondent has made out a reasonable
case as to why it was necessary to raise wages. I find that
Respondent's actions, followed as it was by an announce-
ment to all the employees regarding the reasons for the
raise , negates the inference that the raises were made in
violation of the Act and consequently find that this activity
did not violate Section 8(a)(1) and does not support an
inference that wage raises were promised not tied to the
wage and hour law.
D. Objections to the Election
On the basis of finding the 8(a)(1) violation noted above
I find that part of Union's Objection No. 2 is supported by
evidence and that the election held on June 14 should be
set aside . No evidence was offered in support of Union's
Objection No. 3 and it should be dismissed.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II, and
therein , found to constitute unfair labor practices in
violation of Section 8(a)(1) of the Act, occurring in
connection with Respondent's business operations as set
forth above in section I, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor-disputes
burdening and obstructing commerce and the free flow of
commerce.
IV. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, I recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act as follows:
Having found that Respondent violated Section 8(a)(1)
of the Act by threatening that employees would not be
allowed to work overtime and would therefore have their
pay reduced if they selected the Union as their bargaining
agent and Respondent having unlawfully thereby sought to
have its employees reject the Union in a scheduled election
and since it is a part of the purpose of the Act to prevent
the commission of unfair labor practices, I recommend
that Respondent be ordered to cease and desist from
violating the Act in the same or a similar manner. On the
basis of the foregoing findings and the entire record, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
unlawfully threatening that employees would not be
allowed to work overtime and would therefore have their
pay reduced if they selected the Union as their bargaining
agent.
RECOMMENDED ORDER2
187
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case
considered as a whole, it is recommended that Frank Smith
and Sons Company of Waco, Texas, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully threatening that employees would not be
allowed to work overtime and would therefore have their
pay reduced if they selected the Union as their bargaining
agent.
(b) In the same or any similar manner interfering with,
restraining, or coercing employees in the exercise of rights
under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its plant in Waco, Texas, copies of the
attached notice marked "Appendix." 3 Copies of said
notice, on forms furnished by the Regional Director for
Region 16, shall, after being duly signed by an authorized
representative of Respondent, be posted by Respondent
immediately upon receipt thereof and maintained by it for
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
It is further recommended that the election in Case
16-RC-6280 conducted on June 14, 1973, be set aside and
a new election conducted at an appropriate time.
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
3 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a trial in which the company, the Union, and the
General Counsel of the National Labor Relations Board
participated and offered evidence, it has been found that
we violated the Act. We have been ordered to post this
notice and to abide by what we say in this notice.
WE WILL NOT unlawfully threaten that employees
would not be allowed to work overtime and would
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore have their pay reduced if they selected the This is an official notice and must not be defaced by
Union as their bargaining agent . anyone.
WE WILL NOT in the same or any similar manner This notice must remain posted for 60 consecutive days
interfere with , restrain , or coerce employees in the from the date of posting and must not be altered, defaced,
exercise of rights under Section 7 of the Act. or covered by any other material.
Any questions concerning this notice or compliance with
FRANK SMITH AND SONS its provisions may be directed to the Board's Office,
COMPANY Federal Office Building, Room 8-A-24, 819. Taylor
(Employer) Street, Fort Worth, Texas 176102, 1 Telephone 817-
334-2921.
Dated By
(Representative) (Title)