Industrial Agrico Processing, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 711 (N.L.R.B. 1985)

INDUSTRIAL AGRICO PROCESSING
Industrial Agrico Processing , Inc. and General
Teamsters Union , Local No. 431 , International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Cases 32-
CA-5626 and 32-RC-1835
28 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 31 August 1984 Administrative Law Judge
Harold A. Kennedy issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed his posthearing
brief in support of the judge's decision.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,I and
conclusions2 and to adopt the recommended Order
as modified.3
The election results were four for the Union,
eight against, and seven challenged ballots. The
judge sustained four challenges, including the
Union's challenges to Shawn Bakke, Deanne
Bakke, and Daniel Arms whom the judge found in-
eligible solely because they were related to the Re-
spondent's general manager Jerry Bakke. In Bur-
lington Food Store, 272 NLRB 336 (1984), we held
that employees related to nonowner supervisors
would be included in the unit unless the employees
enjoyed "special status" on the job. The present
record does not indicate whether Jerry Bakke's rel-
atives had special privileges or benefits not accord-
ed other employees. Accordingly, we sever Case
32-RC-1835, remand it to the Regional Director
for the taking of evidence on the special status
issue, and direct him to make a determination on
I The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 The judge concluded that the Respondent discharged James LeBeau
3 June because of his union activities The judge found that LeBeau at-
tended a union meeting 31 May, signed an authorization card, and began
distributing cards to fellow employees, General Manager Bakke either
knew or suspected LeBeau was actively supporting the Union, Bakke
strongly opposed the Union, Supervisor Emmett Byrd told employee Ed
Duval that the Respondent fired LeBeau for union activities, Controller
Richard Bergeron, who effected the discharge, admitted to LeBeau the
real reason was his union activities, and LeBeau's job performance was
satisfactory
The Respondent asserts that it discharged LeBeau because he loitered
in Controller Bergeron's office We find, particularly given Bergeron's
and Duval's testimony and a context of numerous unfair labor practices,
that the Respondent failed to demonstrate that it would have discharged
LeBeau even in the absence of his union activities
9 We conform the notice with the judge's recommended Order
711
the ballots of Shawn Bakke, Deanne Bakke, and
Daniel Arms consistent with the Burlington Food
test and take further appropriate action.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , Industrial Agrico Processing , Inc., San
Joaquin , California, its officers , agents, successors,
and assigns , shall take the action set forth in the
Order as modified , except that the attached notice
is substituted for that of the administrative law
judge.
IT IS FURTHER ORDERED that Case 32-RC-1835
is severed from Case 32-CA-5626 and remanded to
the Regional Director for appropriate evidentiary
findings and determinations on Shawn Bakke's,
Deanne Bakke's, and Daniel Arms' ballots, under
the standard set forth in Burlington Food Store, 272
NLRB 336 ( 1984). If the challenges to at least two
of their ballots are overruled , it is further ordered
that the valid ballots be opened and counted, along
with the ballots of James LeBeau , Donald Weeks,
and Ray Mains . If the Union obtains a majority, it
shall be certified as the bargaining representative of
employees in the appropriate unit . If the Union
does not obtain a majority , then because of the Re-
spondent 's unfair labor practices , the election shall
be set aside and a new election conducted when
the Regional Director deems appropriate.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for supporting General
Teamsters Union, Local 431, International Brother-
274 NLRB No. 102
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other union.
WE WILL NOT violate Section 8(a)(1) of the Act
by informing employees that we will issue a book-
let that prohibits union activity; inform employees
that they can either support the Company against
the Union or leave; interrogate employees concern-
ing their membership and/or activities on behalf of
the Union; threaten employees with termination if
they support the Union; interrogate employees as
to whether their absence was due to attendance at
a union meeting; inform employees that we will
impose more onerous working conditions on em-
ployees who support the Union; inform employees
that we will refuse to negotiate and bargain with
the Union; threaten to close down our facility if
employees select the Union as their exclusive bar-
gaining representative; inform employees that we
will reduce wages of employees if they select the
Union as their exclusive collective-bargaining rep-
resentative; make any inquiry as to whether our
employees will vote for the Union; state that we
can ascertain how employees vote in an NLRB
election; state that employees may lose their homes
if they vote for the Union; inform employees that
no union activity will be allowed; inform employ-
ees that an employee has been terminated for union
activity; inform employees that employees who had
worked for another unionized company should
never be employed; or inform employees that we
do not intend to have employees who are repre-
sented by a union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer James LeBeau, Chester Copher,
and Lloyd Murry Jr. immediate and full reinstate-
ment to their former jobs or, if those jobs no
longer exist , to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed and WE
WILL make them whole for any loss of earnings
and other benefits resulting from their discharge,
less any net interim earnings, plus interest.
WE WILL expunge from our files any reference
to the discriminatory action taken against them and
notify each of them in writing that this has been
done and that the evidence of our unlawful dis-
crimination will not be used as a basis for future
personnel action against them.
INDUSTRIAL AGRICO PROCESSING,
INC.
DECISION
STATEMENT,OF THE CASE
HAROLD A. KENNEDY, Administrative Law Judge.
These matters were heard before me on March 20 and
21, 1984, in Fresno, California.
The unfair labor practice case, Case 32-CA-5626, is
based on a charge filed by General Teamsters Union,
Local No. 431, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (the
Union) on June 16 and August 16, 1983, and a complaint
which issued August 29, 1983. The complaint alleges Re-
spondent Industrial Agrico Processing, Inc. violated Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act
(the Act) by discharging three of its employees, James
A. LeBeau, Chester Copher, and Lloyd E. Murry Jr.
The complaint also alleges that Respondent violated Sec-
tion 8 (a)(1) and (5) by failing and refusing to bargain in
good faith with the Union. Finally, the complaint alleges
Respondent violated Section 8(a)(1) of the Act through
certain statements made in June 1983 by two of its offi-
cials, General Manager Jerry Bakke and Foreman
Emmett Byrd.'
The other matter before me, Case 32-RC-1835, in-
volves objections and challenges made in connection
with an election conducted by the General Counsel on
June 29, 1983.
Summary of the Proceedings
The complaint alleges Respondent terminated the
three employees-Copher and Murry about June 13 and
LeBeau about June 4, 1983-because they "joined or as-
sisted the Union or engaged in other protected concerted
activities for the purposes of collective bargaining or
other mutual aid or protection."
Paragraph 6(a) of the complaint alleges Respondent
violated Section 8(a)(1) through statements made by
Bakke at Respondent's facility in San Joaquin, California,
as follows:
1. On several unknown dates in early June 1983, in-
formed employees that they could either support Re-
spondent against the Union or be considered against Re-
spondent, and interrogated the employees concerning
whether they supported Respondent or the Union
2. On an unknown date in June 1983:
(a) Interrogated an employee regarding whether his
absence from work was due to his attendance at a union
meeting
(b) Informed an employee that Respondent would
impose more onerous working conditions on employees
who supported the Union and thereby force the employ-
ees to quit their employment with Respondent
(c) Informed an employee that Respondent would
refuse to negotiate and bargain with the Union even if
the employees selected the Union to be their exclusive
collective-bargaining representative
' The complaint alleges Bakke was also part owner of Respondent, but
the record indicates he had no propriety interest At the time of the trial
the whereabouts of Bakke were unknown
INDUSTRIAL AGRICO PROCESSING
(d) Threatened an employee that Respondent could
shut down its San Joaquin, California facility if its em-
ployees selected the Union to be their exclusive collec-
tive-bargaining representative.
(e) Informed an employee that Respondent would
reduce the wages of certain of its employees if the Union
were selected by employees to be their exclusive collec-
tive-bargaining representative.
3. On an unknown date in the first week of June 1983,
and in the presence of an employee:
(a) Requested a person not employed by Respondent
to find out whether an employee would vote for the
Union during an upcoming NLRB representation elec-
tion.
(b) Instructed a person not employed by Respondent
to inform an employee that Respondent could ascertain
how employees would vote during an upcoming NLRB
representative election.
(c) Instructed a person not employed by Respondent
to inform an employee that if certain employees voted
for the Union during an upcoming NLRB representation
election, Respondent would impose onerous working
conditions on the employees and thereby casue the em-
ployees to quit their employment with Respondent.
4 On an unknown date during the second week of
June 1983, and during the course of a telephone conver-
sation , informed an employee that the employee could
lose his company-provided housing if he voted for the
Union during an upcoming NLRB representation elec-
tion.
5. About June 10, 1983.
(a) Informed employees that it would issue to employ-
ees a rule book prohibiting them from engaging in activi-
ties on behalf of the Union.
(b) Informed employees that they could support Re-
spondent against the Union by refraining from engaging
in activities on behalf of the Union or, in the alternative,
by terminating their employment with Respondent.
(c) Interrogated an employee concerning the employ-
ee's membership in and/or activities on behalf of the
Union.
(d) Threatened employees that employees who sup-
ported the Union would be immediately terminated.
(e) Informed employees that Respondent would termi-
nate all of its employees and replace them with a "whole
new crew" if employees selected the Union to be their
exclusive collective-bargaining representative.
(f) Threatened employees with layoffs if they selected
the Union to be their representative for the purpose of
collective bargaining.
Paragraph 6(b) of the complaint alleges Respondent
violated Section 8(a)(1) about June 21, 1983, through
statements of Bakke made at the Federal Building in
Fresno, California, as follows
1. Informed employees that Respondent should never
have hired individuals who had been affiliated with the
Union prior to their employment by Respondent
2. Informed employees that Respondent did not intend
to have its employees represented by the Union and
would not be a unionized employer.
Paragraph 6(c) of the complaint alleges Respondent
violated Section 8(a)(1) of the Act during the second
713
week of June 1983 through statements made by Emmett
Byrd at Respondent's San Joaquin, California facility as
follows-
1. Informed an employee that another employee of Re-
spondent had been terminated because of his membership
in and/or activities on behalf of the Union.
2 Informed an employee that Respondent did not
want any of its employees engaging in any activities on
behalf of the Union
The complaint also contains the following failure-to-
bargain allegations:
1 The following described employees of Respondent
constitute an appropriate unit within the meaning of Sec-
tion 9(b) of the Act:
All full-time and regular part-time employees em-
ployed by Respondent at its 8105 South Lassen, San
Joaquin, California facility; excluding feed lot and
agricultural employees, professional employees,
guards, and supervisors as defined in the Act.
2. A majority of the employees in such unit designated
and selected the Union as their collective-bargaining rep-
resentative at a time between May 3 and June 6, 1983.
3. The Union is a labor organization as defined in Sec-
tion 2(5) of the Act.
4. By virtue of Section 9(a) of the Act the Union has
been the exclusive bargaining representatives of the em-
ployees in the unit since June 6, 1983
5 The Union, about June 6, 1983, by a hand-delivered
letter, requested Respondent to recognize and bargain
with it with respect to terms and conditions of employ-
ment for employees in the unit.
6. Since about June 6, 1983, Respondent has failed and
refused to recognize or bargain with the Union
The complaint further alleges that the challenged con-
duct of Bakke and Byrd and the terminations of LeBeau,
Copher, and Murry Jr. have precluded the holding of a
fair election among the employees in the unit.
With respect to Case 32-RC-1835, the following ob-
jections filed by the Charging Party Union are before me
for determination
1. Prior to the holding of the election the Employer,
through Jerry Bakke, threatened employees with dis-
. charge if they supported the Petitioner
2. Prior to the holding of the election the Employer,
through Jerry Bakke, discriminatorily discharged em-
ployees, and caused the constructive discharge of other
employees, because of their support for and/or member-
ship in the Petitioner.
3. Prior to the holding of the election the Employer,
through Jerry Bakke, repeatedly threatened employees
with plant closure and other economic consequences
should Petitioner prevail in the representation election
4. Immediately prior to July 29, 1983, the Employer,
through Jerry Bakke, flagrantly misrepresented the legal
and economic consequences which would result should
the Petitioner prevail in the representation election.
5. On July 29, 1983, the Employer, through Jerry
Bakke, prevented eligible employees from voting in the
representation election held herein.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6 On July 29, 1983, at the representation election held
in this matter, the Employer used a supervisor, Ray
Mains, as its observer
The ballots of the following persons were challenged
by the Charging Party Union and are also before me for
determination.
Shawn Bakke Jim LeBeau
Deanna Bakke Donald Weeks
Daniel Arms Patricia Rojas
Ray Mains
The Union's challenges to Shawn Bakke, Deanna Bakke,
and Arms are based on their relation to Jerry Bakke,
general manager of Respondent. LeBeau and Weeks
were challenged on the basis that their names were not
on the Excelsior list. (The General Counsel also chal-
lenged LeBeau and Weeks for the same reason.) Rojas
was challenged on the basis she was not employed at the
time of the election, and Mains was challenged on the
basis he was a supervisor.
The conduct involved in Objections 1, 2, 3, and 4, ac-
cording to the Regional Director, involves "the same
conduct" challenged in the complaint issued in Case 32-
CA-5626 The Regional Director requests resolution of
Objections 5 and 6, as well as the challenged ballots, in
this consolidated proceeding in the interest of obtaining
"substantial savings in time and expense to all concerned
parties."2
Undisputed Matters
Many of the issues raised by the complaint are not
now in dispute By virtue of Respondent's answer
(which was amended at the trial) and stipulations or con-
cessions made during the trial, the following matters are
found to be facts:
1 The original and first amended charges were filed
and served as alleged in paragraph 1 of the complaint.
2 At all times material Respondent has been a Califor-
nia corporation with an office and place of business in
San Joaquin, California. It has been engaged in the busi-
ness of feeding cattle and milling and producing agricul-
tural products and during the year prior to issuance of
the complaint, it purchased and received goods or serv-
ices valued in excess of $50,000 directly from suppliers
located outside of the State of California.
3 At all times material, Respondent has been an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act
4. The Union at all times material has been a labor or-
ganization as defined in Section 2(5) of the Act.
5. Jerry Bakke and Emmett Byrd were at all times ma-
terial supervisors and agents within the meaning of Sec-
tion 2(11) and (13) of the Act.
6. The unit described above (set forth in par 9 of the
complaint) has been at all times material an appropriate
unit for purposes of collective bargaining under Section
9(b) of the Act.
2 The election conducted on July 29, 1983, resulted in a tally of ballots
showing 30 eligible voters , 4 ballots for the Union , and 8 ballots against
Thus the seven challenged ballots are determinative
Respondent admits discharging LaBeau, Copher, and
Murry as alleged in paragraph 7 of the complaint, but it
denies the discharges were for protected conduct or
were otherwise unlawful.
It was stipulated that on June 6, 1983, the day the
Union admittedly made a demand for recognition, there
were 20 employees in the bargaining unit.
The parties stipulated that "except for General Coun-
sel [Exhibit] 8, there is no record in any of the three per-
sonnel files whatsoever to give any kind of suggestion
that the Employer was dissatisfied with the work per-
formance of James LeBeau, Chester Copher and Lloyd
Murry, Jr."3
The Evidence
There were 15 witnesses who testified, 10 for the Gen-
eral Counsel and 5 for Respondent. One witness called
by the General Counsel, Ernest Martinez, mill supervisor
at Industrial Agrico, was recalled and questioned again
on Respondent's defense.
Gillbert G. Grieve is currently employed by Teamsters
Local 431 as a business representative. Grieve conducted
a union organizational meeting at the Teamsters Union
Hall located in Fresno, California, in the afternoon of
May 31, 1983, with certain employees of Industrial
Agrico, Inc. (Agrico) 4 His speech at this meeting con-
cerned getting the Agrico employees to sign union au-
thorization cards. Grieve testified that he explained to
those present that by using the signed cards he would go
to their employer for union recognition or submit them
to the National Labor Relations Board so that an elec-
tion could be held. Accordingly, Grieve said he passed
out the authorization cards and that he received all of
them back after being filled out and signed by the
Agrico employees.5
Grieve also testified that he was present at an NLRB
hearing to determine Agrico's unit eligibility which, he
said, took place sometime in June or July 1983 at the
Federal Building in Fresno.6 He indicated that others
present included Agrico Official Jerry Bakke, Teamsters
counsel, Respondent's counsel, and certain Agrico em-
ployees, including Lloyd Murry Jr, Charles LeBeau, and
Jim LeBeau Grieve stated that while at the hearing
Bakke addressed a group which included Agrico em-
ployees, saying that a "goon" had been out to his busi-
3 G C Exh 8 is a copy of a State of California form sent to Respond-
ent in connection with a claim for unemployment benefits made by Jim
LeBeau The exhibit indicates that Respondent reported to the State that
LeBeau's employment was terminated because "he was not performing
his job to employer 's satisfaction " The exhibit also indicates that LeBeau
"was performing to the best of his ability" and that "he had no prior
warning " The State form also had boxes checked stating that the dis-
charge was "not for misconduct in connection with work"
4 Grieve testified that he remembered Ernest Martinez , Jim LeBeau,
Charles LeBeau , Daniel DellaMaggiore , Chester Copher, and Ray Mains
being present at the meeting He said there was one other person there
whose name he could not recall
All dates refer to 1983 unless otherwise stated
s The authorization cards of Copher , LeBeau, DellaMaggiore, Mains,
Martinez , and LeBeau were admitted into evidence as G C Exhs 4(a)-
(0
6 This hearing actually took place on June 21, 1983
INDUSTRIAL AGRICO PROCESSING 715
ness demanding union recognition.7 Grieve testified that
Bakke also stated he was not going to be a "Penny-
Newman "8 Bakke indicated, according to Grieve, that
certain of his employees, particularly former Penny-
Newman employees, Murry and Copher, were "rabble
rousers" and "shit disturbers " Bakke stated "he didn't
need . ex-Penny-Newman employees on his payroll."
Bakke also made a comment directed toward LeBeau
and Murry, in Grieve's opinion, to the effect that he
should send flowers to some of his employees On cross-
examination Grieve agreed that this statement of Bakke
meant he should send flowers to the person who had
called CAL-OSHA asking them to come out and investi-
gate Agrico.9
During cross-examination Grieve acknowledged telling
the Agrico employees present at the May 31 organiza-
tion meeting that the purpose of having the authorization
cards signed was to have an election conducted by the
NLRB. Grieve said he pointed out that there was "no
other obligation on their part at that point; that was just
strictly for the NLRB or the employer to recognize the
union as the bargaining agent." Also during cross-exami-
nation, Grieve acknowledged that the comparison Bakke
made between Agrico and Penny-Newman at the hear-
ing could infer that it was unfair for a union to look at
Agrico in the same way it would look at Penny-
Newman. Also, Grieve said he had not taken Bakke's use
of the word "goon" personally, adding that his "hide is
very thick " Grieve testified that in response to his
demand for recognition (G.C. Exh. 5) he received a
letter from a law firm which indicated the appropriate
way to resolve the representational question was to have
the NLRB conduct an election.
Richard A. Bergeron said he was employed by Agrico
as controller from May 2 to June 17, 1983. His duties in-
cluded processing the payroll for 21-22 employees as
well as supervising 2 office employees and LeBeau He
described LeBeau's job at Agrico as a parts chaser10 and
later as shop mechanic. Bergeron testified that he found
LeBeau to be an "excellent employee" who was always
willing to work late if necessary. He said he was given
the word to terminate LeBeau on Friday, June 3, by
Jerry Bakke and that he carried out the termination
process with LeBeau on Saturday, June 4. LeBeau told
Bergeron that his discharge was probably due to his
union organizing activities This was the first time, ac-
cording to Bergeron, that he heard of union activity at
Agrico Bergeron stated that, subsequent to LeBeau's
discharge, Agrico's electrician Ray Mains began per-
forming the duties of parts chaser I1 His rate of pay was
$15 per hour as compared to LeBeau's which had been
$5 Bergeron also stated that, based on the general au-
thority he had from Joseph Jaoudi, Agrico's owner and
principal stockholder, 12 Bergeron had raised LeBeau's
wage to $7 50 per hour for the mechanical work he per-
formed on a company sweeper.
Bergeron said that he had the opportunity to discuss
the subject of LeBeau's discharge with Jaoudi on the fol-
lowing Tuesday after the discharge. According to Ber-
geron, Jaoudi told him that Emmett Byrd, an Agrico su-
pervisor, "had informed Bakke and that he and Jaoudi
together had made the decision to fire LeBeau for union
activity." 1 3
Bergeron stated that he had a conversation with Bakke
shortly afterward concerning unionism at Agrico Ac-
cording to Bergeron, Bakke accused him of organizing
the Union, which he denied. Bakke commented to him
that he had a discussion with the owner of Penny-
Newman about Lloyd Murry Sr., Lloyd Murry Jr., and
Chester Copher who were ex-Penny-Newman employees
then working for Agrico. Bergeron testified that Bakke
claimed that he had examined personnel files with the
owner of Penny-Newman and that the latter had report-
ed that such employees were "not very good " Bakke
said the Penny-Newman owner also said Murry and
Copher "had started trouble." Bergeron said he told
Bakke in response that Lloyd Murry Sr. had worked for
Penny-Newman for 17 years and that it did not seem like
Bakke had spoken with the owner at all.
Bergeron was asked about the status of Jerry Bakke
with Respondent According to Bergeron, Respondent's
owner Jaoudi had stated that Bakke was a "partner in a
corporation," that Bakke had gone through bankruptcy
and would ultimately share in Respondent's profits.
Jaoudi also told Bergeron that Bakke was primarily re-
sponsible for handling sales for Respondent. Bergeron
stated that certain of Bakke's relatives began working for
Respondent shortly before Bergeron left the Company.
Bakke's son, Shawn, worked in the scale house, his
daughter, Deanna, worked in the office; and Bakke's
cousin, Donald Weeks, did cement work Bergeron re-
garded Weeks, who had no certificate of insurance for
workmen's compensation purposes, as an employee, but
Bakke had insisted that Weeks be treated as an independ-
ent contractor Bergeron said a weekly paycheck was
issued to Weeks which Bergeron thought was shared
with Weeks' crew of three or four There was no with-
holding from Weeks' paycheck except his last one, as
Bergeron recalled. Bergeron testified that "Bakke came
r Grieve said he had left a letter of demand dated June 6, 1983 (G C
Exh 5), at Bakke's office but did not talk to him as Bakke was not there
at the time
8 According to Grieve, Penny-Newman is a longstanding dairy and
poultry feed manufacturer which had been unionized by Teamsters Local
431 for some time
0 But Grieve indicated he was not sure what Bakke's comments meant
Grieve said "Mr Bakke was somewhat discombooberated [sic] that day,
and it was very difficult to determine whether he had any relationship
between one sentence and another, as far as I was concerned "
10 According to Bergeron, a parts chaser would pick up parts or mate-
rials from town (usually Fresno) which were needed at Agrico in build-
ing the new plant and refurbishing the feed mill
11 Mains' hours increased after Jim LeBeau was terminated Prior to
June 3 , Mains had worked approximately 8 hours per day with the excep-
tion of May 26 when he worked 12 hours Beginning June 7 he worked
9-1/4 hours, June 8, 8-1/4 hours, June 9, 11 hours, June 10, 16 hours,
June 13 , 11-3/4 hours, June 14, 8-1/4 hours, and June 15, 9-1/4 hours
i 2 Respondent conceded that Jaoudi was a supervisor at Agrico within
the meaning of Sec 2(11) of the Act and an agent of Agrico under Sec.
2(13) of the Act
13 Although Bergeron did not specifically state what information Byrd
gave Bakke , he inferred it concerned LeBeau's union activities Byrd
later denied he told Bakke or Jaoudi of LeBeau's union activities. Ber-
geron said he later told LeBeau that , based "primarily [on] a conversa.
tion with Joe Jaoudi , he had been fired for union activity "
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in and screamingly told me I was fired" one Saturday in
June 1983. Bergeron said Bakke "always thought" Ber-
geron had organized the Union, and that Bakke told him
that was the reason for his discharge Bergeron also
talked with Jaoudi about his termination, but Jaoudi said
nothing about union activity.
Bergeron also testified that after his discharge he had
contacted the California Unemployment Compensation
Board and reported that Jim LeBeau had a good per-
formance record, which enabled LeBeau to receive un-
employment benefits. Bergeron said he furnished such as-
sistance to LeBeau after LeBeau had contacted him and
reported that benefits had been denied because Agrico
had reported LeBeau was a "terrible employee." Ber-
geron agreed that Bakke did not want LeBeau spending
time around the office-that he should check with Fore-
man Emmett Byrd about jobs to do "if there wasn't a
parts chasing job at the time."
Bergeron characterized his working relationship with
Bakke as "tolerable " He conceded that there may have
been some arguments, but if anyone raised his voice it
was Bakke 14
James Anthony LeBeau, one of the three alleged discri-
minatees, was hired by Tony Bakkeis as a laborer, parts
chaser, and mechanic for Agrico from April 1983 to
June 3, 1983 He said he worked primarily under Con-
troller Bergeron, who supervised his parts chasing, but
he also worked under Foreman Emmett Byrd. LeBeau
testified that when he was hired by Tony Bakke he was
informed that his job was permanent and that as soon as
things got settled at Agrico there would be a wage in-
crease for everyone. He said that he worked full time
and also put in overtime on occasion.16 LeBeau stated
that he received favorable comments concerning his
work from Bergeron, Jaoudi, and Skip Semmrick, an-
other Agrico supervisor at that time. He said he never
received any negative criticism or oral warnings con-
cerning his performance and was never suspended from
work Bergeron told LeBeau on his last day of work that
he would be getting a raise for "the good job" he was
doing.
LeBeau said he had attended the union meeting held
on May 31 at the Teamsters hall and signed an authoriza-
tion card while there He also stated that he later distrib-
uted authorization cards among certain Agrico employ-
ees and explained what they were for and how to fill
them out. The cards he distributed, which he said were
filled out in his presence, were received in evidence as
General Counsel Exhibits 79(a)-(e).17
14 As noted, infra, Emmett Byrd testified that Bakke and Bergeron had
a "terrible relationship" with "arguments at least once a day "
is Other employees, including Jim LeBeau, had been hired by Tony
Bakke It was never made clear what , if any , relationship there was be-
tween Tony and Jerry Bakke
16 Copies of check stubs showing LeBeau's regular and overtime earn-
ings were received as G C Exhs 6(a)-(d)
17 LeBeau testified that Grieve indicated that the authorization cards
would enable Agrico employees to start a union and have a vote
through the National Labor Relations Board " Grieve also stated, accord-
ing to LeBeau, that the cards would help Grieve represent the employees
and give them "some kind of security" in case "they find out we were
having a Teamsters vote." LeBeau also said Grieve stated that the Union
would send Respondent "a letter demanding recognition to see if they
could negotiate a contract and bargaining order" LeBeau remembered
With respect to his discharge, LeBeau testified that
Bergeron told him that "they just don't want you around
here no more " In a subsequent conversation with Ber-
geron about a week later, however, Bergeron stated to
him that "the reason [he] was fired was because of union
activities."
With respect to the representation hearing held in June
1983, LeBeau recounted that Bakke had addressed the
Agrico employees present, saying that he was going to
send flowers to LeBeau for turning him into OSHA, that
none of the Agrico employees were permanent, and that
"the bunch" of ex-Penny-Newman employees then work-
ing for him were "troublemakers" which he was "going
to do something about "
LeBeau denied on cross-examination that Bakke had
often mentioned to him to get out of the office and find
something to do. LeBeau admitted, however, that there
was an occasion when he was waiting for Bakke to sign
a check, that Bakke did tell him to get out of the office
and find something to do.
Yvette Martinez is the wife of Agrico employee Ernest
Martinez. Yvette Martinez testified that she had two
conversations with Bakke regarding union activity. The
first took place in early June in the office of Agrico and
in the presence of secretary Patricia Rojas. The ex-
change went as follows:
Jerry had asked me if Ernie, my husband, would be
voting for the union , which way he was voting.
And I said I didn't know. And he said, "I'm going
to give everyone different colored pens to see who
voted for the union, yes or no," and if Ernie had
voted for the union, he was going to make it so dif-
ficult for him that he'd ma-that he'd want to quit
his position. At that time, I asked him if he was se-
rious, and he said yes.
In a subsequent telephone conversation with Bakke,
according to Yvette Martinez, Bakke again indicated that
he was serious about what he had said to her in the
office about making it difficult for her husband. He
added that the Martinezes had "a home there" for which
they paid no rent and he did not understand "why Ernie
would want to vote for the union because it really wasn't
worth it." Yvette Martinez said that she informed her
husband of Bakke's remarks shortly after these conversa-
tions with Bakke took place.
Ernest S. Martinez has been an employee of Agrico
since February 1983 and since January 1984 has been the
mill supervisor. Martinez indicated that he had signed a
union card at the Teamsters meeting on May 31, 1983.
Martinez testified that he and Bakke had had a conversa-
distributing cards to Eddie Duval , Robert Whitson, Robert Dawson,
George Williams, and Doug Allen (on Agrico premises he thought
except in the case of Williams ) LeBeau said he told the Agrico employ-
ees "basically the same thing"-that if they signed a card a secret-ballot
election would be held LeBeau said "I just-I told them there would be
a union election that I knew for sure and I didn ' t know what was going
to happen after that " LeBeau said he understood that signing of the
cards did not obligate Agrico employees to pay dues and that no initi-
ation fees would be required of them. He said he never became a member
of the Union, and he never told a supervisor that he had distributed the
cards
INDUSTRIAL AGRICO PROCESSING
tion regarding union activities approximately a week
after the union meeting took place. He described the
conversation as follows:
Well, I came into the switch room and he asked me
how come I didn't show up on a Saturday, and I
told him I just took the day off And he came and
said, "Well, I needed you here Where were you, at
a union meeting or something ," to me I said, "No,
I just took the day off." So then he goes, "Let's go
down to my office " And he says that he wouldn't
have any dealings to do with the union, that if he
found anybody working for the union, that he
would work 'em so hard that they would quit, and
that he wouldn't-he would rather close down the
plant than to deal with the union, and that, anyway,
if you vote for the union, the union rate is four dol-
lars an hour, so everybody'll have to take a cut in
pay
Q Do you recall anything regarding his saying
what position he would take in negotiating with the
union?
A That he wouldn't negotiate with them
Martinez stated that to his knowledge employee Skip
Semmrick was an architect for Agrico who never hired
or fired any employees but would talk to Emmett Byrd
or Lloyd Murry Senior if he needed something done.
On cross-examination Martinez said he understood that
the NLRB election would be by secret ballot and that
Bakke could not find out how he voted.
Martinez was recalled two more times (on the case-in-
chief and on rebuttal) to the stand by the General Coun-
sel and another time by Respondent. During his first
recall examination he stated that Jerry Bakke had told
him around June 1 that Chester Copher and Lloyd
Murry Sr. were former Penny-Newman employees and
that Penny-Newman had trouble with them
Testifying as a defense witness, Martinez said he had
worked both regular and graveyard shifts for Respond-
ent in June 1983 He indicated that if the Company
"needed to run" he would have to work He said he was
scheduled to work on the weekend of June 11 and 12
(Saturday and Sunday) but did not go to work those
days. He stated that he went on the graveyard shift after
that weekend, and his timecard corroborates his testimo-
ny.18 Martinez also said he had a conversation with
Lloyd Murry Jr in the switch room on June 13 during
which Murry said he did not want to work nights or
weekends and that Murry had discussed such with
Bakke.
Martinez indicated on cross-examination as a defense
witness that he thought the regular weekday shift would
have been adequate to handle the amount of material
that was produced without any weekend work. He said
he could not recall any extraordinary amount of material
being brought into the plant for processing just prior to
18 Martinez' timecard (R Exh 1) indicates he worked from 6 57 am
to 3 40 p in on Friday, June 10, that he worked from 6 59 a in to 12 57
p in on Monday , June 13 , and that he returned again that Monday night
,to work the graveyard shift (starting at 11 25 p in and ending 7 37 a in
June 14)
717
the weekend of June 11-12 He said the pellet mill could
process about 3 tons an hour.' 9
Testifying again on rebuttal as the General Counsel's
witness, Martinez was questioned about how much mate-
rial could have been produced on the weekend of June
11-12-a period when he did not work He testified that
"as I see it" the Company produced about 25 tons based
on what he thought was in the finished tank on Friday
and what was there on the following Monday It is clear
from his testimony, however, that his testimony was
based in part on "what Chester [Copher] told [him] "20
Edward L. Duval is currently employed by Agrico to
work primarily as a parts purchaser ("I order and I chase
the parts, pick them up"). He has previously worked as a
loader operator for the Company 21 Duval testified that
since Jim LeBeau 's discharge in June 1983 parts have
continued to be chased. Duval indicated that he was
present on two occasions when Jerry Bakke made
known his position concerning union activities at Agrico
The first time, according to Duval, was at an employee
meeting called by Bakke which took place in the scale
room with 15 to 20 employees present.22 The gist of
Bakke's remarks, according to Duval, was elicited on
direct as follows-
Q. What did Mr Bakke say to the group assem-
bled?
A. He was informing us that he never had a
union , never will, and he wouldn't allow a union.
Q. Do you recall anything further that he said to
you, to the group gathered there?
A. Yes. He looked amongst all the workers and
said , "Either you're for-either you're for the
union . If you are, you won't work for me If you're
not, you have your job." And he also stated that
when he hired new employees, that he would make
up a-a booklet stating if you hired on for this job,
this is the way it's going to be
Q And by "this is the way it's going to be," did
he-did-
A. No union, no union activity at all
Q Do you recall anything further that he said to
the group?
A He more or less-well, he told us that if union
activity occurred, that he would shut the place
down , or, in other words, he would hire a new
group of people to come in Added to that, he also
told us that as far as being permanent employees
and temporary-temporary employees, that-he
18 Respondent 's owner and president Joseph Jaoudi later testified that
the mill operation had been disappointing and at that point the mill had
been operated only on a test basis He indicated that Martinez had mis-
stated the capacity of the mill At "three ton an hour ," Jaoudi said,
"[Y]ou go bankrupt in 30 days "
20 Copher later testified himself that he did not look at the tank on
Monday, which was the day he was dismissed
21 Duval said he quit working for Respondent in July 1983, but re-
turned to work around late October He stated that in addition to pur-
chasing parts he continues to operate the loader and does "maintenance
work on the equipment "
22 Duval stated that the employee meeting took place approximately I
week after he signed an authorization card (G C Exh 7(b) dated July 1,
1983)
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
looked at me and another co-worker, since we had
the majority of the time, we had most seniority, and
said , "If anything, you two are the only permanent
employees we have." And that was me and Doug
Allen.
Q. On that note of temporary and permanent em-
ployee status, do you recall him saying what effect,
if any, being temporary or permanent would have
in regards to union activity?
A. In regards to that, the statement that he made
of that would be that these people would be let go,
as far as-there would be no vote.
Q. Do you recall anything further as to what he
said?
A. Yes. He mentioned the CETA program to me
also, as far as bringing in workers, that government
would pay half their wages, to replace people
Q Do you recall anything further?
A. I'm puzzled a little bit here.
Q. Do you recall whether or not he addressed
any-any employee in particular?
A Yes. He . . . he made a statement as regards
to Daniel DellaMaggiore, looked at him eye to eye
and said, "What do you think of this, Daniel?" And
Daniel walked . . got up and walked out.
Q. When Bakke said this, did he specify what he
meant by this? "What do you think of this," is-
A. Oh. In other words, if you wanted the union
to come in, you might as well walk out the door,
so. That's what it .. . that's what it was. Daniel
got up and walked out.
Duval said that a second conversation took place 4 to
6 days afterward when he, Doug Allen, and Frank
Morrow were working on a waterline. Duval stated that
Bakke again reiterated his position by declaring that
either they were for him or against him. Duval said that
"for the reasons being of having a family" he "went
along" with Bakke.
Duval stated he had a discussion with another supervi-
sor at Agrico, Emmett Byrd Duval said he asked Byrd
whether he might be the "next [to go] in regards to
having union activity." Byrd replied, according to
Duval, that LeBeau had been fired for union activity He
recalled no other response but after seeing his affidavit
stated that "Jerry Bakke would not allow union activity
in his organization."23
Duval also articulated what he observed as the job
duties of employee Ray Mains. He said Mains had been
an electrician at Agrico until the early part of 1983 when
he was given new duties previously performed by Lloyd
Murry Sr., the mill foreman Duval testified that Mains
was given a "temporary rate" and supervised a crew of
three workers-Lloyd Murry Jr., Ernest Martinez, and
Chester Copher-a position Mains held up until the time
Duval left Agrico temporarily just before the election.
Duval was asked about Skip Semmrick. Duval indicated
in response that Semmrick, an engineering draftsman,
was made a temporary supervisor at a time when man-
23 In testifying for Respondent , Byrd denied ever telling Duval that
LeBeau's union activities resulted in his discharge
agement was not "too good" and Tony Bakke had been
let go.
On cross-examination Duval stated that he had quit
Agrico 3 days prior to the NLRB election but had been
rehired by Agrico sometime in October 1983. He also
testified that he and Doug Allen had told Jerry Bakke at
the employee meeting that they signed authorization
cards, but Duval never told Bakke, Byrd, or anyone else
in management where he had gotten his card
Duval said he had a succession of supervisors to
whom he was answerable. The first was the man who
hired him, Tony Bakke, then Skip Semmrick, next Ray
Mains, and finally Emmett Byrd who was placed in
charge of the feed mill before Duval left in July. As to
Main's supervisory function, Duval agreed that Mains
worked primarily as an electrician and that Duval never
actually saw Mains give an order to anyone other than
himself Duval also agreed that because of his experience
as an electrician Mains could have been pointing out
problems to workmen that needed correction.
Daniel DellaMaggiore was an employee of Agrico from
mid-April 1983 to early June 1983. DellaMaggiore testi-
fied that at the employee meeting held at Agrico's scale
house a week or so after the union meeting (May 31)
Bakke stated the employees were either for the Union or
for the Company. He quoted Bakke as saying, "[I]f you
were for the union , you could leave now," also, that if
employees for the union keep on working he would
"make it harder . . you would quit."
According to DellaMaggiore, Bakke went on to ask
him specifically how he felt about the Union and the
Company personally. DellaMaggiore replied by saying
that he did not know. It was "real sudden," and "I just
didn't know what to say." DellaMaggiore said Bakke
told everyone that he "could fire everybody who was
for the union and within a couple of days he could hire a
whole new crew from somewhere else " Also, according
to DellaMaggiore, Bakke said he planned to issue a
handbook which would explain that there would be no
union at Agrico.
DellaMaggiore testified on cross-examination that after
this employee meeting he had a discussion with Bakke.
He said he told Bakke that he was going to quit because
he felt Agrico was in a state of disarray and he did not
want to "be troubled." He said he also asked Bakke
about receiving unemployment, and Bakke replied that
he would put DellaMaggiore down as being laid off so
he could receive unemployment benefits.
DellaMaggiore testified that Bakke never stated he
would terminate him, but had looked straight at him as
"he knew I signed one of the cards." DellaMaggiore
acknowleged, however, that he never actually told
Bakke that he had signed an authorization card.
Charles J. LeBeau, the father of discharged employee
Jim LeBeau, was also an employee of Agrico in 1983
Charles LeBeau testified that he attended the union
meeting on May 31. He said that Gil Grieve explained
how if they filled out the authorization cards, he would
INDUSTRIAL AGRICO PROCESSING
represent the employees "with the company, with bar-
gaining and the election "24
Charles LeBeau said he was hurt on the job on May
28 and did not return after his disability because he "felt
there was no job" for him at Agrico. He testified on re-
direct that when hired by Tony Bakke, he was told he
could "come to work here and you could retire from the
company "
Manuel R. Sousa is currently employed by Penny-
Newman Grain Company as office manager and secre-
tary-treasurer of the corporation He is in charge of per-
sonnel and payroll records. Sousa stated that he met
Jerry Bakke on one occasion when Bakke came to his
personnel office, but denied that Bakke has ever been al-
lowed to go through the personnel or payroll records of
Penny-Newman. Sousa also denied that he ever gave
Bakke any information regarding any employees at
Penny-Newman Sousa agreed on cross-examination that
Frank Moradian, the president of Penny-Newman, has
access to company files but expressed doubt that Bakke
was ever given access to them Also on cross-examina-
tion Sousa stated that the meeting between him and
Bakke occurred several years ago. Sousa thought Penny-
Newman had been organized by Teamsters Local 431 as
long as 35 years ago
Chester Copher was employed by Agrico as a pellet
mill operator from May 3 until June 1983. Copher testi-
fied that he never received any negative criticism of his
job performance during the time he was at Agrico. He
stated that he had worked as a pellet mill operator for
many years with other companies including Brown Feed
& Seed (3 years), Derad Warehouse (4-1/2 years), and
Penny-Newman (7 years) Copher said his usual hours of
work at Agrico were from 7 a.m to 3 p.m. but that on
certain days just prior to his discharge he came to work
at 7 a m. and was sent home at 11 a.m. to return at 4
p.m. Copher said that he complied with these new hours
assigned and stated that he never told anyone in manage-
ment that he was opposed to working a swing or
evening shift
Copher testified that he was present at the May 31
union meeting and that he had previously been a Team-
sters member when he worked for Penny-Newman.25
Copher stated on cross-examination that he was laid off
at Penny-Newman because of a change in the method of
operation of the mill there
Copher was asked on cross-examination whether he re-
called being scheduled to work at Agrico on the week-
end of June 11 and 12, 1983, and whether he had failed
to show up for work He answered such questions in the
affirmative and explained he was ill at the time. Quoting
from his direct examination-
24 When asked on cross-examination if he had discussed his testimony
with anyone since the morning session of the trial, LeBeau answered that
he had discussed the union meeting and whether Grieve had referred the
use of the cards to obtain an election or for representation purposes An
authorization card he signed is in evidence as G C Exh 4(b)
25 Copher also testified that Business Representative Grieve explained
at the union meeting that the authorization cards would be used to obtain
an election Copher also stated that Grieve "said something about the"
cards being used in demanding recognition
719
I called in on a Friday and told them that I
was sick. That's why I didn't work that weekend.
Q Okay Who had told you to work that week-
end?
A Well, they said that, you know, that it was
going to run through the weekend
Q. Okay Do you remember
A. And Jerry Bakke's the one that told . . . said
it.
Copher stated that this was the first weekend he had
been scheduled to work and also said he was unaware of
whether Ernest Martinez or Lloyd Murry Jr. was also
scheduled for that same weekend. Copher reported to
work at Agrico on the following Monday, June 13, and
was terminated that day.26
Lloyd E Murry Jr. was employed at Agrico as a pellet
mill operator on June 3, 1983, and discharged 10 days
later on June 13. Murray stated that his father, who was
then employed at Agrico, told him to see about a job
there. He said he went to Agrtco on June 3, 1983, and
was hired that day by Jerry Bakke. Bakke asked him
about his prior experience, and Murry responded that he
had previously worked at Penny-Newman. Murry said
he told Bakke he had been a member of the Union while
employed at Penny-Newman. During the same conversa-
tion, Murry said he explained to Bakke that he had "half
and half" custody of his children which precluded him
from working nights or weekends. Murry said Bakke
told him his position would be full time. Additionally,
during this same discussion, Murry said Bakke told him
that he would receive a raise in 90 days. Murry said his
work was never criticized while he was at Agrico
Murry stated that he received and signed a union au-
thorization card (G C. Exh. 9), dated June 6, 1983, at
Agrico from Jim LeBeau
Murry also testified about his attendance at the June
21, 1983 NLRB representative hearing in Fresno. Murry
stated that Bakke came over to the group of Agrico em-
ployees and made a statement to the effect that he had
checked the Penny-Newman personnel files of Lloyd
Murry Jr, Lloyd Murry Sr., and Chester Copher and
commented that Penny-Newman employees were "trou-
blemakers "
Joseph A. Jaoudi is the owner and president of Agrico
He described its business during direct examination as
follows:
26 There is an inconsistency between the testimony Copher gave on
the General Counsel's case-in-chief and what he gave on rebuttal He ini-
tially indicated he called in sick on Friday, June 10, but later claimed on
rebuttal he worked between 7 and 9 p in (being off work between 1 l
a in and 4 p m) that day When asked if he could estimate the amounts
of material in a tank on Friday and Monday, Copher said he had not had
a chance to look in the tank He also stated on rebuttal that he was called
in to work by Emmett Byrd on Monday, June 13, but was dismissed
when he showed up at 4 p m that day (Ernest Martinez had previously
testified that Copher was at work on Friday, June 10, and had reported
to him on the amounts in the tank on that day and later on Monday) It
was stipulated at the hearing that Copher's personnel file did not contain
any timecards for June 1983
Copher also stated on rebuttal that Robert Dawson began chasing parts
after Jim LeBeau was discharged
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Industrial Agrico was formed to set up a congen-
eration power plant, a biomass congeneration power
plant, whereby we take the agricultural waste, like
chicken manure, cotton gin trash, we use the used
rice hull In other words, the intent be is that you
take the chicken manure from the poultry houses
where it is mixed with rice hull or shavings; you
separate . . . you have a process to separate the
. . . the used rice hull and shavings You use that as
solid fuel You burn it in a biomass burner. You
generate energy, and this heat will do two func-
tions. In the first phase, is supposed to do a drying
operation. In the second phase, that heat, you
should send it through a boiler, you generate steam;
and then the steam will drive a turbine. And the
excess heat that you wind up . . . you use that for
drying. Right now, up till now, we are still in the
first phase. We have not even declared the first
phase operational. So that is the main goal of the
plant.
As far as the mill, it was a side issue It was .
it was there; there was a feed lot. When I was .
when I bought the site, Jerry Bakke led me to be-
lieve in three months he could have 10,000 heads of
cattle in there. And supposedly, we fix the mill for
about 75,000 dollars, and all will be nice and rosy.
We spent three quarters of a million dollars on that
mill, and I think till about two weeks ago we were
not able to get more than ten ton an hour out of the
rollers. And I want to correct something here.
Three ton an hour, you go bankrupt in 30 days.
There's no way you can operate a mill unless it is
producing at least, minimum 15 ton an hour in
order to be anywhere economical. All the work we
have done was strictly testing. And up till now, un-
fortunately, when we got the mill running, the
market is not there; and the cattle are not there In
other words, this 10,000 head of cattle I was prom-
ised they're going to be in the feed lot, the only
cattle we have right now is a couple o' hundred
heads that I bought myself. Supposedly, we were
going to attract ranchers to bring cattle and so on.
So this is basically where we are.
Q. Okay. Now, Mr. Bakke is no longer employed
by the company, is that . . . .
A. No, sir.
Q. . correct?
A. Mr. Bakke, unfortunately, he did not have an
orange peel contract. He owed the people 250,000
dollars to California Citrus which he did not de-
clare to the bankruptcy court in Reno in . yeah,
in Las Vegas, sorry; it was transferred later on. And
Mr. Bakke did not generate any business for the
company . . . .
Jaoudi described Jerry Bakke's position at Agrico as a
salesman .27 He said Bakke had authority to hire and fire
27 Jaoudi described Bakke's duties as follows during cross-examination
He was supposed to promote business for Industrial Agrico, and
originally let's start from the beginning Originally, he was sup-
posed to secure the citrus pulp contracts, which actually are for the
biomass plant, in other word, for dehydration And and unfortu-
employees but denied that Bakke was ever a corporate
officer or had any "direct" interest in Agrtco 28
Jaoudi testified that Bakke left Agrico sometime in the
fall of 198329 when some of his allegedly questionable
business practices came to Jaoudi's attention. According
to Jaoudi, Bakke generated virtually no business for
Agrico and had defrauded the Company. Jaoudi stated
that Bakke had been indicted by the district attorney in
Fresno and that his whereabouts were unknown.
In contrast to Bergeron's testimony that he and Bakke
had a "tolerable" relationship, Jaoudi claimed that Ber-
geron and Bakke did not get along well at all Jaoudi ar-
ticulated that Bergeron had been discharged because
Jaoudi felt Bergeron had extended the scope of his job
duties beyond that of accountant/controller and that he
was not satisfied with Bergeron's performance of the ac-
counting functions. Jaoudi indicated that it had been
more his decision than Bakke's to discharge Bergeron.
Jaoudi denied that Bakke ever stated to him that Jim
LeBeau was fired for union activities.
Jaoudi testified that he got along well with unions and
that he had a union shop in his other operations .30 He
said he did feel a union was premature at Agrico because
the plant was not yet completed and "the election was
kind of forced on me." He testified that he indicated to
Agrico workers at the employee meeting held a few days
before the election to "vote your own conscience."
Jaoudi denied ever telling Bergeron that Byrd or
Bakke ever informed him that Jim LeBeau had been dis-
nately, he did not I had to do them myself, California Citrus and
Riverbend Beyond that, he was supposed to go out and solicit busi-
ness from the feeders, you know, to feed the dairies, major dairies,
and secure some business, be it for the orange peel or for whatever
the mill and and the rollers will produce, right, either rolled
products or milled products I mean, pelletized products, excuse
me So that was his function
28 Jaoudi explained Bakke's interest in Agrico during direct examina-
tion as follows
The only thing, when we bought the plant from the bankruptcy
court, there was supposed to be 35 percent of the profit that would
go to the unsecured creditors That's part of the condition of the
purchase of the plant
Q And and had Mr Bakke been in some way involved at
that plant before the time that that you
A Yea,
Q purchased it?
A Mr Bakke owned the feed lot and he was in default six
hundred thousand dollars, to Mr Thomas And we took it through
the bankruptcy court We had to get the approval of the unsecured
creditors before we were able to finalize the transaction And I
bought the plant free of lien, that was one of my conditions, that
that the only thing I agreed to is that for Mr Bakke doing cer-
tain considerations, that is supplying an orange peel contract because
supposedly of his knowledge of the valley, of all the cattle people,
the the feed lot operation, the mill, the pellet mill, and all of
this, I I have to play ignorance [sic] here because at the time
when I bought the plant, I was not very familiar with mills and
pellet mills I can't say I'm not very familiar with mills and pellet
mills I can't say I'm not now after spending three quarter of a mil-
lion dollars, but I am at that time I didn't And so Mr Bakke,
while we were building the plant, he was trying to help out, support
the-to fill the gap because basically we're going through a con-
struction phase and not a production phase
29 Jaoudi expressed difficulty in remembering exactly when Bakke left
Agrico
so Jaoudi asserted that this other operation included a chain of import
export warehouses, a food business, and a family-owned palm oil planta-
tion, all located in West Africa
INDUSTRIAL AGRICO PROCESSING
charged for union activity. He denied that Bakke ever
told him he had fired anyone for union activity. Jaoudi
stated that he often saw Agrico employees sitting in Ber-
geron's office, which was located next to his, and that he
thought he had indicated to Bergeron and Bakke his dis-
pleasure concerning that situation.31 Jaoudi stated that
the amount of time he spent at Agrico in May and June
1983 was around 2 or 3 days per week
On cross-examination Jaoudl downplayed the parts
chasing function at Agrico He testified that 90 percent
of the parts required at Agrico were delivered. He ex-
plained that only if someone happened to be in the area
or if it was an emergency situation would it be necessary
to send someone for a part.32 Chasing parts, Jaoudi
maintained , was not a full-time job
According to Jaoudi, the total mill output between
August 1982 and August 1983 equaled only the amount
that would be produced during a 2-week period in a
fully functioning mill He said that at the time of the
trial, the pellet mill at Agrico was operating on a part-
time or on-again , off-again basis. According to Jaoudi,
Bakke had been overly optimistic, and the Company had
operated three shifts on two different occasions. Jaoudi
indicated that he felt Bakke had not been very accurate
in estimating how much material could be produced or
sold.
William Edward Allen testified he had been employed
by Agrico as a painter and maintenance person for ap-
proximately a year and a half. He stated that Lloyd
Murry Jr. once told Ernest Martinez and himself that he
did not want to work nights or weekends but Murry's
reason was never given. Allen also had conversations
with Bakke concerning both the discharge of Jim
LeBeau and Lloyd Murry Jr. Allen said Bakke indicated
that LeBeau was dismissed because he often saw LeBeau
"wandering around and didn't think he was doing his
job " With regard to Lloyd Murry Jr, Bakke told him
that Murry was let go because he was not willing to
work nights or weekends and that it was not right for
the other employees to have to work when he would
not. Allen stated that no supervisor at Agrico had ever
told him that either LeBeau or Murry had been dis-
charged for union activity
John "Jack" McDermott has been employed since
August 1983 as the general manager of Agrico McDer-
mott testified that Jerry Bakke was not "officially dis-
charged" but left of his own volition around the first
week of September 1983 after "some of his misdoings"
were uncovered. McDermott stated that Agrico current-
ly employed someone in a position of parts chaser named
Ed Duval who also does purchasing and "other duties."
McDermott estimated the percentage of Duval's time
currently spent on pricing and chasing parts around 30-
40 percent. McDermott indicated that he thought the
amount of time spent chasing parts is greater now than
in the past due to the "extensive refurbishment" in
progress at the time of Agrico McDermott said that
31 Jaoudl said he thought that there were more than one employee
who chased parts, but he did not "get involved to that level "
32 He indicated that the only kinds of parts that had to be picked up
were items like a switch, bolt, screw, or a motor on occasion
721
parts chasing had always been necessary since he had
been at Agrico and various individuals had chased parts,
including Emmett Byrd, who also had authority to pur-
chase parts 33
Emmett Byrd was employed by Agrico from January
1983 to January 1984. He had been in charge of the feed
lot part of Agrico's operations, had supervised approxi-
mately 15 employees in another section of the plant and
later took over as mill supervisor when Lloyd Murry Sr
went on disability Byrd said he observed Bakke "irritat-
ed" at Jim LeBeau on two occasions. Byrd testified that
he was present once in Bergeron 's office when Bakke
told LeBeau to stop hanging around the office, adding
that if he could not find something to do Byrd would
provide something. Byrd said this conversation occurred
in early June. Another discussion took place a few days
later when Byrd was present in Bakke's office. Byrd
stated that Bakke saw LeBeau walk by his office and
Bakke angrily told Byrd that it was the last time LeBeau
was going to come into, the office. Bakke then said he
was going to let LeBeau go.
According to Byrd, Bakke and Bergeron had "a terri-
ble relationship." "They fought," he said, "at least on av-
erage of once a day; maybe three or four."
Byrd said he also supervised Donald Weeks who was
the concrete contractor at Agrico from May through
July 1983. Byrd stated that Weeks had a crew of two
persons-his brother and Bakke's brother-in-law, a man
named Arms Byrd also stated that Arms had been at
Agrico for a long time but was laid off on July 18, 1983.
Byrd also testified that he was not aware of any type
of written or verbal warning system that supervisors
were supposed to use at Agrico. Byrd denied that he had
told Duval that LeBeau had been discharged for union
activity. Byrd also denied he told Bakke or Jaoudi that
LeBeau should be dismissed for union activity. Byrd as-
serted that after LeBeau's dismissal no one held the spe-
cific position of parts chaser. He said after Bergeron left
parts chasing was rare, and he usually did it himself,
along with other duties.
Byrd disagreed with Jaoudi's testimony that bolts and
switches were the only types of parts which had to be
chased. Byrd explained that these materials were sup-
plied to Agrico "on a regular basis" by a salesman from
Hopper Steel.34
Byrd testified that the Company began operating three
shifts in approximately mid-June and that as of his last
day at Agrico in January 1984 the plant was still operat-
ing on a three-shift basis.35 Byrd stated that Lloyd
33 McDermott indicated that since he arrived at Agrico in August
1983 there had also been general laborer duties to perform Kenny Mohr
had performed such work as well as chased parts McDermott said parts
chasing was now limited primarily to keep the dehydration plant operat-
ing
A document, R Exh 2, was introduced through McDermott which
shows the cost of Agrico's payroll, on monthly basis, from January
through November 1983 and the amount of monthly sales of milling
products (broken down under "custom milling," "manufactured feed"
and "rolled grain") for the same period
34 Byrd said Agnco is located 4 miles north of San Joaquin and 25-27
miles southwest of Fresno
3s Byrd said Lloyd Murry Sr was the mill supervisor at that time and
left when he hurt his back in early June Timecards of several employees
Cont,nued
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Murry Sr, Chester Copher, Lloyd Murry Jr, and Ernest
Martinez were scheduled to work the weekend on June
11-12, but that they did not report for this assignment
Byrd then testified that Bakke notified him and asked
him to procure Ray Mains to work and that he did so
Byrd said that he and Mains, along with Bakke (on
Sunday only), Robert Dawson, Doug Allen, Elgin Sum-
mers, and Daniel Arms worked over the weekend at the
pellet mill. The operation was "excellent," he said, with
the mill being down only for an hour and 15 minutes
during a 36-hour period.
Byrd stated that he had a conversation with Lloyd
Murry Jr on the day he was discharged and that Murry
told him he had been let go because he could not work
nights. Byrd said Murry did not say anything about
being let go for union activities.
Regarding Chester Copher's job performance at
Agrico, Byrd testified that during a discussion with
Lloyd Murry Sr., Bakke and himself, Murry Sr had told
Bakke that he felt Copher needed a couple of weeks
more of training before going on the evening shift After
Murry left, according to Byrd, Bakke stated that he was
"not going to put up with that," adding that if Copher
with his experience did not know how to run a pellet
mill at that point "he never will " Byrd said he believed
this conversation took place on Thursday, June 9.36
Byrd testified that around June 10-12 Agrico had on
hand at least 500 tons of raw pelleting materials, "maybe
a hundred tons of barley" alone He said the pellet mill
could produce at that time 2 to 3 tons an hour
Byrd identified and testified concerning a list of em-
ployees who had worked under him at Agrico. The list
(G C. Exh. 6), which Respondent offered to show "the
tremendous amount of turnover" at Agrico, indicates the
employee's name, dates of employment, and reason for
leaving 37
On cross-examination Byrd stated that approximately 2
to 2-1/2 hours of his workday during the January-May
period were spent in feeding and caring for cattle at the
feed lot which was located a distance away from the mill
operations After two other employees were hired in
May to perform feed lot duties, he was required to spend
only 5 to 10 minutes each day at the feed lots, making
sure such employees performed their job duties properly
Byrd stated that after Murry Sr left in June the
number of employees Byrd supervised increased from 12
to 15 to 20 to 25. He had occasion, he said, to comment
negatively on the job performance of employees that he
supervised. Byrd noted that there was a "healthy grape-
vine" at Agrico so that events involving anyone at
Agrico would become common knowledge. He said he
would speak with Bakke about 3 or 4 times a day in
June, but he denied being involved in the decisions to
who worked during the January 1983-January 1984 time period were in-
troduced by Respondent to show that Agrico did operate on a three-shift
basis (R Exhs 3, 4, and 5)
as Byrd said he understood Murry Jr and Copher were hired to be
crew chiefs for the extra shifts
37 Byrd testified that the list was compiled by a secretary but not
under his direction He did not know why Donald Weeks and his brother
were not on the list He said that the information on the list was correct
to his knowledge, but he had not himself verified the information on the
exhibit by examining pertinent company records
dismiss James LeBeau, Chester Copher, and Lloyd
Murry Jr. He recalled observing Copher at work on an
evening shift under Lloyd Murry Sr about a week
before Copher was discharged Byrd stated that Copher
indicated that evening that he did not like working late
shifts, but Byrd agreed that he never heard Copher say
he would not do so Byrd indicated he thought Copher
had been fired because of his absence from work on the
week of June 11-12.
Byrd testified that sometime at the end of May Bakke
had asked Byrd if he had heard rumors that union cards
were being circulated at Agrico and whether he had
"any ideas." Bakke questioned him "about everybody,"
including Jim LeBeau, Lloyd Murry Jr., and Chester
Copher, and his knowledge of their participation. Bakke
"singled out about a dozen" who he suspected of circu-
lating cards, according to Byrd. Byrd recalled that at a
meeting with Bakke, Bakke told him he had seen an at-
torney and had decided to fight the union election Byrd
said Bakke had stated a couple of days before the June
10 employee meeting that "he could hold a meeting."
Byrd said he did not attend the meeting.
Byrd testified that during the week after James
LeBeau had been discharged by Ray Mains he made
"one parts chase"; also, that Robert Dawson "could have
went after a part or two" but "went straight to work in
the mill." Byrd said he took over the job of chasing parts
"in a limited form because we made a dramatic change"
at that time. Trips were made to Fresno, which took an
hour and 15 minutes, only when "absolutely necessary "
Byrd testified that subsequent to the discharge of
LeBeau, Copher, and Murry, two trainees were hired to
work in the mill operations. Byrd stated that, although
he supervised the mill workers, he personally had little
experience himself in running the machines He said he
had watched Copher closely that one evening and also
seen Murry Sr. work "real close." Byrd indicated that on
the weekend he rounded up workers (June 11-12). Bakke
was "pretty upset" and had directed that Ray Mains be
brought in to get the pellet mill operating. Byrd said.
. . . And maybe he was being irrational, but, you
know, so we went in, took two hours, it took us at
least two hours to get it fired up because we
weren't that familiar with the buttons and the
auger-auger movements, and . . . I wasn't because
I had been working directly with it Eventually, we
figured it out and fired out the machine up That's
how it happened.
Byrd said he did not recall any comment of Bakke that
indicated a connection between union activity and the
absence from work that weekend of Copher, Lloyd,
Murry Jr., and Ernest Martinez. Byrd said Bakke had in-
dicated that Jaoudi "was on his back," and he wanted
the mill to operate.
Finally, Byrd testified that to his knowledge James
LeBeau had no problems with other employees follow-
ing directions or attitude toward work He said he had
no part in providing the information that Agrico had fur-
INDUSTRIAL AGRICO PROCESSING
nished the State in connection with LeBeau's claim for
unemployment benefits 38
Discussion and Conclusions
1. The alleged unlawful statements
The evidence is persuasive that Jerry Bakke was
strongly opposed to the Union and communicated such
hostility in remarks he made at the employee meeting
held at the Agrico facility in San Joaquin on June 10, at
the representation hearing held at the Federal building in
Fresno on June 21, and during conversations with indi-
vidual employees 39 Such remarks of Bakke included
threatening and other coercive statements which fall
within the allegations of the complaint and the proscrip-
tion of Section 8(a)(1) of the Act.
The credible testimony of Edward Duval alone con-
vinces me that Bakke did, in the presence of employees
assembled at the June 10 employee meeting, make re-
marks which established virtually all of the allegations of
paragraph 6(a)(5) of the complaint 40 Such remarks in-
cluded statements to the effect that Bakke would prepare
a booklet for new hires that would inform them that at
Agrico there would no union, no union activity at all;
employees may keep their jobs if they are against the
Union, otherwise they may as well leave; that he had
never allowed a union before and never would in the
future; that employees at Agrico have only temporary
status and that Bakke would let them go, either by shut-
ting the facility down or by hiring a new group of em-
ployees, in order to keep the Union out; and, addressing
Daniel DellaMaggiore, "What do you think about the
union, Daniel?" (inviting a statement as to DellaMag-
giore's sentiments about the union).41
Duval's testimony concerning other remarks of Bakke,
uttered a few days later in the presence of Doug Allen
and Frank Morrow, sustained that part of paragraph
6(a)(1) which alleges Bakke told employees that they
could either support Respondent or the Union-"either
you're for me or against me "42
38 G C Exh 10, a copy of the Company's response signed by John J
McDermott (referred to supra ), indicates that he was let go because of
"poor working habits, unable to follow directions," and had "a very poor
atttitude as far as working with his fellow employees "
as Bakke also expressed antiunion remarks to Yvette Martinez, wife of
Agrico employee Ernest Martinez , in two separate "interrogations"
which were promptly passed along by Yvette Martinez to her husband
40 As the General Counsel 's attorney points out in his brief, Bakke in
effect issued an ultimatum to Agrico employees on June 10-either sup-
port the Company against the Union or you will be gone
Some of the allegations of par 6 (a)(5) are repetitive (as well as repeti-
tive of other allegations of par 6 (a)), and no purpose is served by making
cumulative findings Subpars iv , v, and vi are duplicative , and the latter
two subparagraphs are being dismissed for that reason
41 DellaMaggiore , also a credible witness , corroborated Duval 's testi-
mony that Bakke had singled him out at the June 10 meeting to state
whether he was for or against the Union-a question he was understand-
ably reluctant to answer at the time DellaMaggiore also gave credible
testimony in support of other allegations of par 6(a)(5)-"you could
leave now" if you are for the Union, and if not "I can make it hard on
you", "a little handbook" for old and new employees so they would
know " the union wasn ' t going to be there", and "he could fire everybody
who was for the union" and then "hire a whole new crew "
42 The allegation is actually repetitive of par 6(a)(5) It is not apparent
that Bakke also interrogated Duval , Allen, and Morrow at that time, but
par 6(a)(5)(ui), a similar allegation , I have found sustained
723
Ernest Martinez, currently a supervisory employee of
Respondent and one who impressed me as a forthright
witness, established the substance of the allegations of
paragraph 6(a)(2).43 Martinez persuasively testified that
Bakke asked if he had failed to show on Saturday, June
11, because of a union meeting Bakke then impressed on
Martinez that he would not negotiate with the Union,
that he would close the Agrico plant down rather than
deal with the Union and that he would take reprisals
against persons engaging in union activity by working
them harder and for less money
Martinez was also coercively questioned and threat-
ened by Bakke through two conversations Bakke had
with Yvette Martinez, a credible witness. (She reported
Bakke's remarks to her husband Ernest immediately )
Bakke asked in conversations with Yvette Martinez
whether Ernest Martinez would be voting for the Union
and added that he would make it "so difficult" for her
husband that he would want to quit Bakke indicated to
Yvette Martinez that he would know how employees
would vote (through use of colored pens), that he was
serious about (prohibiting) employee union activity, and
that the Martinez family would lose its rent free home if
Martinez were to vote for the Union. Thus, paragraph
6(a)(4) and the substance of the allegations of paragraph
6(a)(3) were sustained 44
Duvall also testified credibly that Foreman Emmett
Byrd had told him, following James LeBeau's discharge,
that Bakke "would not allow union activity" and that
LeBeau had been discharged "for stirring up union activ-
ity." Such testimony sustained paragraph 6(c) of the
complaint.45
The testimony of Union Official Gilbert Grieve, James
LeBeau, and Lloyd Murry Jr, all credible witnesses,
gave testimony concerning the comments Bakke made at
the June 21 representative hearing and sustained the sub-
stance of his allegations of paragraph 6(b) of the com-
plaint It is clear from such testimony that Bakke stated
before a group there, which included Agrico employees
and union representatives, that he did not want persons
working at Agrico who had previously worked for
Penny-Newman , a union employer, and that he was
going to take action against Agrico employees who met
such description. He claimed that he had checked with
Penny-Newman about ex-Penny-Newman employees
who were at the time employed at Agrico Bakke specifi-
cally referred to two ex-Penny-Newman employees then
working at Agrico, Chester Copher (who was not
present at the representative hearing) and Lloyd Murry
Jr. He referred to ex-Penny Newman employees general-
43 The allegations contained in the subpart (Q, (u), and (iii) of par
6(a)(2) are, again, somewhat duplicative
44 The allegations contained in par 6 (a)(3) are somewhat repetitive,
and it is, of course, only necessary to make one finding that a particular
statement was made, if it was, however , many times it may have been
uttered
45 Byrd denied telling LeBeau he had been fired for stirring up union
activity, but Duval, currently an employee of Respondent, impressed me
as a more credible witness than Byrd Byrd , whose conduct is challenged
in the complaint, seemed anxious to support Agrico whenever possible
even though he was no longer an employee of the Company when he
appeared as a witness
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly as -"rabble rousers" and troublemakers, and Copher
and the Murrys particularly as "shit disturbers." Bakke
also referred to James LeBeau, implying, by stating that
he was sending him flowers, that action as to him was
for having "turned [Bakke] in to OSHA."
2. The discharges
I find that Respondent unlawfully discharged James
LeBeau for union activity
It is clear from the record that Bakke was well aware
of union activity at Agrico prior to June 3, the day
LeBeau was terminated. With Byrd acknowledging that
there was "a healthy grapevine" at work at Agrico,
Bakke probably knew LeBeau had been distributing
union authorization cards early on Byrd testified that
Bakke stated in late May that he suspected that LeBeau
had been circulating cards. In any event, there is con-
vincing evidence that Respondent's own supervisors had
expressly stated that • LeBeau had been discharged for
union activity. Such evidence is certainly persuasive
proof of Respondent's - true motive in discharging
LeBeau Byrd told Ed Duval that LeBeau was fired for
stirring up union activity, and on another occasion a few
days after LeBeau's discharge, former controller Richard
Bergeron told LeBeau that he had been fired for union
activity.46
I reject Respondent's contention that "the fact that
Jim LeBeau may have attended a union meeting and
signed a union authorization card is purely coincidental."
In light of the persuasive testimony of both Duval and
Bergeron, Respondent did not demonstrate that it would
have terminated Jim LeBeau for "hanging around the
office area," "for wandering around or staring out the
window," because it no longer needed a full-time parts
chaser or for any other valid business reason 47 James
LeBeau had worked for Respondent as a laborer and as a
mechanic , as well as a parts chaser, in a satisfactory
manner, and I am convinced Respondent terminated him
only because of his union activities.
The timing of the discharges of Chester Copher and
Lloyd Murry Jr , the disparate treatment involved in
such actions, and the credible testimony concerning
statements attributed to Bakke persuade me that both of
these employees were terminated for union activity as al-
leged.
46 Byrd denied that he had stated LeBeau had been discharged for
union activity , but I credit the testimony of Duval , a more impressive
witness than Byrd, to the effect Byrd did so The source of Bergeron's
information was Agrico ' s owner and president Joe Jaoudi , who had in-
formed Bergeron that he and Bakke together had made the decision to
fire LeBeau for union activity Bergeron, who had been dismissed by Re-
spondent , was not an unbiased witness , but I credit his testimony on this
point Jaoudi did not deny Bergeron 's statement directly He made a gen-
eral statement as to his view of unions and indicated that Bakke had not
told him that LeBeau had been discharged for union activity
4' A report of Respondent , submitted under the name of John McDer-
mott, to a California unemployment office gave other reasons for Jim Le-
Beau's dismissal-poor working habits , unable to follow directions, and
poor attitude (G C Exh 10) William Edward Allen testified that Bakke
told him that LeBeau was let go because he wandered around and did
not do his job The credited testimony of Duval and Bergeron, however,
convinces me that Bakke communicated to them his real motive for dis-
missing LeBeau-his union activity
Bakke in effect admitted at the June 21 representative
hearing that he had discharged Murry Junior and
Copher for an antiunion reason He publicly declared
that he did not want "shit disturbers" such as these two
former Penny-Newman employees working at Agrico.
Bergeron, who was accused by Bakke of helping to
organize Agrico employees, testified credibly that short-
ly after LeBeau's discharge on June 3 Bakke said he had
checked on both Murry Junior and Copher at their
former employer, Penny-Newman, and that he regarded
them as troublemakers and agitators
While Copher and Murry Junior were absent from
work on the weekend of June 11 and 12, 1983, Ernest
Martinez , who was not subjected to any discipline, also
failed to report for work that weekend . It is apparent
that on Monday, June 13, the day of the discharge,
Bakke suspected that Copher and Murry Junior were in-
volved in union organizing activity at Agrico which he
had forcefully denounced only the previous Friday at
the employee meeting. He thus took sudden action by
summarily dismissing both employees. Union activity at
Agrico was obviously very much on Bakke's mind be-
cause he specifically asked Ernest Martinez if his absence
from work the previous weekend had been due to his at-
tendance at a union meeting It is evident that Bakke be-
lieved Martinez was not involved in union activity and
accepted his assertion that he "just took the day off' and
therefore took no retaliatory action against him.
At the employee meeting held on Friday, June 10,
Bakke made it plain that any Agrico employee suspected
of union activity would be in trouble. When Copher and
Murry Junior failed to show up for work on the week-
end, Bakke was ready to take reprisals against them and
promptly did so.
There is further evidence that Copher and Murry Jun-
ior's discharges were a result of union activity. Emmett
Byrd, the former foreman of Agrico who was not cer-
tainly biased against Agrico, testified that Bakke had in-
dicated during a conversation with him in late May that
Bakke suspected Copher and Murry Junior, as well as
Charles LeBeau, had been involved in the distribution of
union cards
I believe, and find, that Copher's and Murry Jr.'s
union activity was the real motivation for their dis-
charge. A refusal to work on a scheduled shift is of
course a legitimate basis for the discharge of an employ-
ee as Respondent argues, but I reject the notion that
either Copher or Murry Junior was fired for such
reason.48
48 1 give no credence to Byrd's claim that Murry Junior told him he
was let go for not being able to work I give no weight to William
Edward Allen's assertion that Bakke had stated that Murry Junior had
been let go because he was unable to work nights and weekends I credit
Murry Junior's testimony that he had explained his custody arrangement
at the outset of his employment and Bakke was agreeable to Murry
Junior working only on weekdays I give no weight to Byrd's claim that
he thought Copher had been dismissed for being absent from work on the
weekend of June 11 and 12
Copher 's testimony as to whether he worked on Friday, June 10, is
contradictory, but such fact does not negate the persuasive evidence that
he was terminated for union activity
Continued
INDUSTRIAL AGRICO PROCESSING
I reject Respondent's contention (citing Wright Line,
251 NLRB 1083 (1980), modified 662 F.2d 899 (1st Cir.
1981); NLRB v Transportation Management Corp., 462
U.S. 393 (1983)) that "the employer had shown that Mr.
Jim LeBeau, Mr. Murry Jr and Mr. Copher would have
been terminated anyway regardless of any union activity
in which they may have been involved." In support of
such argument Respondent relies on the testimony of Re-
spondent's president and owner, Jaoudi, and the sup-
posed` feelings and observations of Agrico's absent super-
visor, Jerry Bakke. Such evidence was unconvincing.49
The Alleged Duty of Agrico to Bargain
The parties stipulated at the hearing that on June 6,
the date on which the Union requested recognition, the
appropriate unit consisted of 20 employees The General
Counsel presented 12 authorization cards (see G.C Exhs
4(a)-(f), 7(a)(e), and 9). If 2 or more of the 12 were in-
valid, there was no duty on the part of Respondent to
recognize and bargain with the Union. Gourmet Foods,
270 NLRB 578 (1984)
The record does not establish that the Union obtained
valid cards from a majority of Agrico employees. Gilbert
Grieve, the Union's business representative, was asked on
cross-examination whether he had explained at the May
31 union meeting to the six employees who signed cards
while there-Chester Copher, Charles LeBeau, Daniel
DellaMaggiore, Ray Mains, Ernest Martinez, and James
LeBeau-that "the sole purpose for the card was for the
union to seek" an NLRB election. Grieve answered the
question affirmatively Said Grieve-
That's what I pointed out to the people, that there
was no other-no other obligation on their part at
that point; that was just strictly for the NLRB or
the employer to recognize the union as bargaining
agent.
Quoting further from Grieve's cross-examination-
Q. Okay. So did they understand, though, that-
that there would either be an election conducted by
the National Labor Relations Board or by the Cali-
fornia State Conciliation Service, at some time in
the future?
A. They understood that.
Q. And that's what the card was-was to be used
for?
A. Yes, sir.
The General Counsel's evidence as to the amount of material available
for processing and the amount of milling product produced during the
weekend of June I I and 12 was not particularly persuasive, but such fact
in no way contradicts the evidence that Copher and Murry Junior were
terminated for union activity
49 Jaoudi did not impress me as being knowledgeable of the day-to-day
operations at Agrico or credible on contradicted points Respondent indi-
cates that it was unable to present relevant evidence because of the ab-
sence of its former supervisor, but such fact can hardly operate to bolster
Respondent 's position or prejudice the General Counsel's and the Charg-
ing Party's
I believe, and find, that the reasons Respondent cites for the discharge
of all three employees , if not pretextual , were certainly not shown to
weigh "more heavily" than their union activity in the determination to
discharge them See Roure Bertrand Dupont, Inc, 271 NLRB 443 (1984)
725
The attorneys for the General Counsel and the Union
sought to rehabilitate the witness on redirect through the
use of leading questions, suggesting that there might be
additional purposes of the card I remain convinced,
however, from careful examination of the record that
Grieve's explanation operated to cancel out the language
used on the authorization cards.50 See NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969);51 also Sambo's Restau-
rant, 269 NLRB 1187 (1984). Some of the words Grieve
used on redirect tended to confirm the idea that the
Union's authorization cards were to be used only for the
purpose of holding an election. Quoting from a portion
of Grieve's direct testimony
That there was no obligation on their part for
money, there was no promises being made other
than upon presentation of these cards to the Nation-
al Labor Relations Board, when the employer fur-
nished his list, the NLRB checked the list, they
would then, if these cards were proper, they would
then hold an election at some point in time.
I believe, and find, that Grieve, a credible witness,
thought it sufficient for the Union's purpose to obtain
signatures on enough cards (30 percent) to petition the
NLRB for an election and thus used words which, in
effect, directed prospective card signers to ignore the
printed words appearing above the signature line.52
While it was not shown that Respondent was under a
duty to recognize and bargain with the Union, Respond-
ent's unlawful conduct does require the holding of a new
election-at a time and place to be determined by the
Regional Director.
The Objections and Challenges
Certain of the objections filed in Case 32-RC-1835 are
based on the same conduct challenged in the complaint
50 The cards distributed by Grieve called for the signer to "authorize
Local 431 affiliated with the International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America to represent me in
negotiations for better wages, hours and working conditions "
51 The Supreme Court stated in Gissel that
In resolving the conflict among the circuits in favor of approving
the Board's Cumberland rule, we think it sufficient to point out that
employees should be bound by the clear language of what they sign
unless that language is deliberately and clearly canceled by a union
adherent with words calculated to direct the signer to disregard and
forget the language above his signature There is nothing inconsistent
in handing an employee a card that says the signer authorizes the
union to represent him and then telling him that the card will prob-
ably be used first to get an election
52 Charles LeBeau testified that "Gil [Grieve] told us that if we would
sign the cards, that he would represent us with the company, be our rep-
resentative, and that we would have an election " Such testimony,
coming as it did after he had discussed the difference between the use of
an authorization card to obtain an election as against its use for represen-
tation purposes during a recess and after he heard other testimony on the
subject , I do not regard to be probative, and I will disregard it
James LeBeau identified five additional cards that he had solicited, but
it is not necessary to pass on their validity The explanation he made to
Agrico employees who signed such cards is not at all clear, although his
understanding as to the use of the cards was undoubtedly based on what
Grieve had stated at the May 31 meeting Lloyd Murry Jr identified his
signed authorization card which he obtained from James LeBeau LeBeau
indicated , according to Murry, that the purpose of the card was to "get a
union going "
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Case 32-CA-5626 and found sustained herein Ac-
cordingly, I find Objections 1, 2, and 3 sustained as fol-
lows.
I Agrico did, through Jerry Bakke, prior to the
election, threaten employees with discharge if they
supported the Union.
2. Agrico did, through Jerry Bakke, prior to the
election discriminatorily discharge three employees,
James A. LeBeau, Chester Copher, and Lloyd E.
Murry Jr, because of their support of the Union.ss
3. Agrico did, through Jerry Bakke, prior to July
29, 1983, threaten employees with plant closure and
other reprisals should the Union win representation
of Agrico employees
Objection 4 is repetitive and will be dismissed as being
cumulative.54
Objections 5 and 6 were not sustained and will be dis-
missed. There is no evidence that Jerry Bakke attempted
to prevent anyone from voting. Neither is there evidence
that Ray Mains acted as an observer while acting as a
supervisor.
The Union's challenges to Shawn Bakke, Deanna
Bakke, and Daniel Arms were sustained as the record in-
dicates that they were related to Jerry Bakke, Respond-
ent's general manager, during the relevant period. There
is no evidence, one way or the other, whether the names
of James LeBeau and Donald Weeks were on the Excel-
sior list, so the challenges as to them will be dismissed.
The challenge to Patricia Rojas was sustained , but the
challenge to Ray Mains is dismissed There is evidence
that Rojas left Respondent's employment on July 18, 11
days before the election. It was not established that
Mains was a supervisor at the time of the election.55
On the foregoing findings of fact, and on the entire
record in the proceeding, I enter the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by:
a. Informing employees that it would issue a booklet
that would prohibit union activities.
b. Informing employees that they could support the
Company against the Union or terminate their employ-
ment relation.
13 Charles LeBeau and Daniel DellaMaggiore left Respondent's em-
ployment, but the record does not establish that either of them or any
other employee was constructively discharged
54 Citing Midland National Life Insurance Co, 263 NLRB 127 (1982),
Respondent points out that the Board is no longer concerned with mis-
representation of the type alleged in Objection 4.
55 Edward Duval testified that Mains, who worked as an electrician
for Respondent , was made a temporary supervisor of the mill crew "for a
while" Duval said he never saw Mains give orders to others but was
once told by Mains to do some restocking Duval said Mains continued
to work "mostly " as an electrician and was not in charge of a crew when
Duval left Respondent 's employment 3 days prior to the election
c Interrogating employees concerning employees'
membership and/or activities on behalf of the Union.
d. Threatening employees with termination if they sup-
ported the Union
e. Interrogating an employee as to whether his absence
was due to his attendance at a union meeting
f. Informing an employee that Respondent would
impose more onerous working conditions on employees
who supported the Union, causing them to quit.
g. Informing an employee that Respondent Would
refuse to negotiate and bargain with the Union even if
the employees should select the union as their exclusive
collective-bargaining representative.
h Threatening to close down its San Joaquin, Califor-
nia facility if the employees should select the union as
their exclusive collective-bargaining representative.
i Informing an employee that Respondent would
reduce wages of certain employees should the employees
select the Union as their exclusive collective-bargaining
representative.
j. Inquiring as to whether an employee would vote for
the Union.
k. Stating that Respondent could ascertain how Agrico
employees would vote in an upcoming NLRB election.
1. Stating an employee could lose his rent free home if
he voted for the Union.
in. Informing employees that no union activity would
be allowed at Agrico.
n. Informing an employee that another employee had
been terminated for stirring up union activity.
o. Informing employees that employees who had
worked for another unionized company should never
have been employed by Respondent.
p. Informing employees that Respondent did not
intend to have employees who were represented by the
Union.
4. Respondent violated Section 8(a)(1) and (3) by dis-
charging James A. LeBeau, Chester Copher, and Lloyd
E Murry Jr. for engaging in union activities.
5 It was not established that Respondent violated Sec-
tion 8(a)(1) and (5) by failing to recognize and bargain
with the Union, or that Respondent violated the Act in
any other manner as alleged.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices in violation of Section 8(a)(1) of
the Act, I find that it is necessary that Respondent be or-
dered to cease and desist from the unfair labor practices
found and from any like or related acts which infringe
upon employees' Section 7 rights, and to take certain af-
firmative action designed to effectuate the policies of the
Act. In view of the fact that Respondent unlawfully ter-
minated James A. LeBeau, Chester Copher, and Lloyd
E. Murry Jr., I shall recommend that Respondent be or-
dered to offer each of them immediate and full reinstate-
ment to their former positions, or, if such are not avail-
able, ones which are substantially equivalent thereto,
without prejudice to their seniority and other rights and
privileges. They are to be made whole for any loss of
earnings suffered by reason of the discrimination All
INDUSTRIAL AGRICO PROCESSING 727
backpay is to be computed in the manner set forth in F.
W. Woolworth Co., 90 NLRB 289 (1950), Isis Plumbing
Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231
NLRB 651 (1977).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Industrial Agrico Processing, Inc.,
San Joaquin, California, its officers, agents, sucessors,
and assigns, shall
1. Cease and desist from
(a) Informing employees that it will issue a booklet
that prohibits union activities
(b) Informing employees that they can either support
the Company against the Union or terminate their em-
ployment relation.
(c) Interrogating employees concerning employees'
membership and/or activities on behalf of the Union
(d) Threatening employees with termination if they
support the Union.
(e) Interrogating an employee as to whether his ab-
sence was due to his attendance at a union meeting
(f) Informing an employee that Respondent will
impose more onerous working conditions on employees
who support the Union.
(g) Informing an employee that Respondent will refuse
to negotiate and bargain with the Union.
(h) Threatening to close down its facility if the em-
ployees select the Union as their exclusive collective-bar-
gaining representative.
(i) Informing an employee that Respondent will reduce
wages of employees if they select the Union as their ex-
clusive collective-bargaining representative.
(1) Inquiring as to whether employees will vote for the
Union
(k) Stating that it can ascertain how employees will
vote in an NLRB election.
(1) Stating that an employee may lose his home if he
votes for the Union
(m) Informing employees that no union activity will be
allowed.
(n) Informing an employee that another employee was
terminated for union activity.
(o) Informing employees that employees who had
worked for another, unionized company should never
have been employed by Respondent.
(p) Informing employees that Respondent does not
intend to have employees who are represented by the
Union.
(q) Discouraging membership in, or support of a
union, by discharging employees or by otherwise dis-
criminating in any manner in respect to their tenure of
employment or any term or condition of employment.
(r) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act
2. Take the following affirmative action designed to ef-
fectuate the purpose and policies of the Act
(a) Offer James A. LeBeau, Chester Copher, and
Lloyd E Murry Jr immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed, and make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy sec-
tion of the decision.
(b) Remove from its files any reference to the unlawful
discharges of James A. LeBeau, Chester Copher, and
Lloyd E. Murry Jr. in writing that this has been done
and that the discharges will not be used against them in
any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its place of business at its San Joaquin, Cali-
fornia facility copies of the attached notice marked "Ap-
pendix."57 Copies of the notice, on forms provided by
the Regional Director for Region 32, after being signed
by the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed with respect to all allegations of violations not
specifically found herein. Finally, it is further ordered
that Case 32-RC-1835 be severed from Case 32-CA-
5626 and returned to the Regional Director for Region
32 for the purpose of holding a new election as soon as
feasible, under the supervision of the Regional Director
for Region 32, and at such time and place as the Region-
al Director deems circumstances afford free choice of a
bargaining representative.
56 If no exceptions are filed as provided by Sec 102 46 of the Board's 54 If this Order is enforced by a Judgment of a United States Court of
Rules and Regulations, the findings, conclusions, and recommended Appeals, the words in the notice reading "Posted by Order of the Na-
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
Board and all objections to them shall be deemed waived for all pur- of the United States Court of Appeals Enforcing an Order of the Nation-
poses al Labor Relations Board "