Jacobs Packing Co.

National Labor Relations Board - Board Decisions

Jan 19, 1971

187 N.L.R.B. 935 (N.L.R.B. 1971)

JACOBS PACKING CO. 935
Jacobs Packing Company and Amalgamated Meat
Cutters & Butcher Workmen of North America,
AFL-CIO, Local Union Number 405. Cases
26-CA-3616-3 and 26-RC-3691
January 19, 1971
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
by the Employer with the Regional Director tar Region 26 within 7 days
after the date of issuance of the Notice of Second Election by the Regional
Director The Regional Director shall make the list available to all parties
to the election No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed
TRIAL EXAMINER'S DECISION AND
REPORT ON OBJECTIONS TO ELECTION
BY MEMBERS FANNING, BROWN, AND JENKINS
On September 21, 1970, Trial Examiner George J.
Bott issued his Decision in the above-entitled pro-
ceeding, finding that Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, and also recommend-
ing that the representation election held on March 6,
1970, in Case 26-RC-3691, be set aside and a new
election held, all as more fully set forth in the attached
Trial Examiner's Decision. Thereafter, the Respon-
dent filed exceptions to the Trial Examiner's Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the he=.ring and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in these cases, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Jacobs Packing Company, Nash-
ville, Tennessee, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
IT IS FURTHER ORDERED that the election held on
March 6, 1970, be, and it hereby is, set aside.
[Direction of second election I omitted from
publication.]
i In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U S
759 Accordingly, it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters, must be filed
STATEMENT OF THE CASE
GEORGE J. BOTT, Trial Examiner: Case 26-CA-3616-3 is
before me pursuant to a charge and amended charge filed
on March 12 and April 14, 1970, by United Meat Cutters &
Butcher Workmen of North America, AFL-CIO, Local
Union Number 405, herein called Union or Petitioner, and
a complaint issued by the General Counsel of the Board on
April 23, 1970, alleging that Jacobs Packing Company,
herein called Respondent or Company, had violated
Section 8(a)(1) and (3) of the National Labor Relations Act,
herein called the Act. Case 26-RC-3691 began with a
petition for certification of representatives filed by the
Union on February 2, 1970, upon which an election among
the Company's employees was held on March 6 pursuant to
a stipulation for certification upon consent election. The
Union lost the election and, on March 12, 1970, filed
objection to conduct affecting its results. Subsequently, the
Board, on April 29, 1970, issued an order directing a
hearing on certain of the Union's objections and authoriz-
ing said hearing to be consolidated with the hearing to be
conducted in Case 26-CA-3616-3. On May 4, 1970, the
Regional Director issued an order consolidating the cases
and set them for hearing. A hearing was held before me in
Nashville, Tennessee, on June 17 and 18, 1970, at which all
parties were represented. Subsequent to the hearing,
General Counsel and Respondent filed briefs which have
been carefully considered.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is a corporation engaged in the processing
and wholesale distribution of meat at its Nashville,
Tennessee, plant. During the 12-month period preceding
the issuance of the complaint, Respondent purchased and
received at its Nashville plant, supplies and materials
valued in excess of $50,000, directly from points located
outside the State of Tennessee.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act
187 NLRB No. 133
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion In
Violation of Section 8(a)(1) of the Act
Spivey listed existing employee benefits, noting that
employees were paid in excess of the required minimum
wage and were also given paid holidays and vacations.
Spivey indicated that these benefits were the result of
voluntary action on the Company's part which were not
required by law and could be taken away at any time,
according to Cole.
Other employees' possible grievances were touched on in
the meeting. Spivey suggested that employees put their
grievances in writing, and Cole replied that he would "ask
them about it." Spivey wanted to know who "they" were,
and Cole evasively responded "a bunch of ladies." Spivey
continued to probe, but when Cole did not particularize,
Spivey said he knew who "they" were.
Except where specifically indicated, as for example,
where Cole recalled Spivey saying in his January 23 speech
that the Company "wouldn't sit down" with the Union, as
contrasted with employee Bess' recollection that Spivey
said the "law requires only bargaining," which is the more
likely version, I credit Cole as against Spivey based upon
my observation of them and the plausibility of their
accounts. In addition, Cole freely volunteered facts which
might weaken his own case of alleged discrimination, but
Spivey appeared to exaggerate in the Respondent's interest
where both Cole and Cantrell, another alleged discrimina-
tee, were involved, and also to generally play down the
directness and extent of his statements and actions against
the Union during his campaign to defeat it in the election.
On January 23, 1970, Spivey addressed the employees of
the Company in regard to the Union's organizing
campaign.
Cole testified that Spivey again talked about strike
violence and the recent Yablonski murder. He also referred
to a strike at a nearby plant where all employees had been
discharged during the strike and abandoned by the union
involved.
Cole said Spivey forecast what would happen if the
Union organized Respondent. Spivey told the group that if
the Union won "this was only the first step" because the
parties would have "to sit down and agree on stuff."
According to Cole, Spivey added that the "company
wouldn't sit down" with the Union, because it "was their
company and they didn't have to sit down and agree to
nothing."
During the January 23 meeting, Spivey again referred to
the Company's wage structure. He noted that the required
minimum wage was $1.60 per hour and that employees
were paid well above it, but, according to Cole, Spivey
added that Respondent, "if they wanted to they could take
away all over $1.60 and all of our vacations and holiday
pay....,,
Evelyn Bess, a former employee, attended the January 23
meeting. She credibly and without real contradiction
recalled Spivey describing NLRB election procedures and
then stating that "the law requires only bargaining" and
that a company is "not required to make any agreement."
She also said that Spivey stated that the Company was not
legally required to pay more than $1.60 an hour or to pay
holiday or vacation pay as was its practice. Strikes and
violence were commented on, as well as Yablonski's death.
Bess said that during his talk Spivey had some written notes
1. The evidence and some basic findings
The Union's effort to organize Respondent's approxi-
mately 100 production and maintenance employees began
in early January 1970 and ended with an election on March
6, 1970, which the Union lost After Respondent was
notified by the Union by a telegram dated January 17,
1970, that it represented certain of Respondent's employ-
ees, Respondent 's plant manager, Bobby Spivey, spoke
with employees individually and in groups about the
Union's campaign . The complaint alleges that during these
meetings Spivey made certain statements in violation of
Section 8(a)(1) of the Act.
Walter Cole was one of approximately a half dozen
employees who were active in trying to organize Respon-
dent . Cole testified that sometime during the last week in
January he overheard a conversation between Spivey and
employee Franklin in which Spivey questioned Franklin
about his absence from work on the previous day and
concluded the conversation by stating to Franklin, "By the
way, you are not going to vote for the Union, are you."
According to Cole, Franklin merely replied that he was not.
Franklin did not testify.
Around the same time Spivey spoke to Franklin about
the Union he also questioned Cole about the Union in his
office . Cole testified that Spivey came to his machine and
asked him to come to his office. On the way to Spivey's
office, Cole said that Spivey told him that he wanted him to
go home , but to return to work on the night shift. Cole
immediately replied that he could not work nights because
of illness in his family, and Spivey eventually dropped the
subject. Cole and Spivey continued to talk in Spivey's office
and the Union was discussed. Cole was wearing a union
button, and Spivey asked him what he expected to get out
of the Union. When Cole told Spivey that he was interested
in certain improvements, particularly a retirement plan,
Spivey replied that Respondent was studying a retirement
plan, but it would be premature to say anything about it at
that time.
During their conversation, Spivey asked Cole if he were
sure he was for the Union and not for the Company, and
Cole indicated that he was uncertain. In that context,
Spivey suggested that Cole remove the union button he was
wearing . Cole said he would consider this suggestion, but he
continued to wear the button.
Cole testified that Spivey talked about other aspects of
unionism and contended that strikes and loss of income
would result from the Company's inability to agree to union
demands. He argued that unions contribute nothing to
employee welfare and are led by "gangsters," and that
employees should be grateful to Respondent for supplying
them with jobs. Joseph Yablonski, candidate for office in
the United Mine Workers Union, had recently been shot to
death, and Spivey cited this as an example of how unions
perform. In this connection, Spivey stated that employees
would not be able to work during a strike even if they
wanted to, for, if they tried, they would "get hurt."
JACOBS PACKING CO. 937
in his possession, which he said that his lawyer had
prepared for him.
Cole testified that after Spivey's talk he and employee
Craven followed Spivey to his office where Spivey told
them that if the Union got in "the company could just close
down and just put everybody out of a job." This statement
is not found in Cravens' testimony, and Spivey denied it. I
find that it was not made in that form, but was honestly
understood as a possibility from Spivey's other remarks
about the effects on the Company of union demands,
bargaining, and strikes.
Joyce Rediker, no longer employed by Respondent, was
one of the first to join the Union and she wore a union
button On February 12, a supervisor sent her to Spivey's
office, where Spivey asked her what her "beefs" were and
what she was "complaining about." Rediker mentioned
wages and certain working conditions, but Spivey respond-
ed that the Company was in poor financial condition and
could not afford a wage increase.
During their talk Spivey asked Rediker if she thought she
could trust Union Officials Sloan and Thornton more than
persons she "already knew," and he also suggested that she
talk with certain employees who had been employed during
a strike in 1953 in which the union lost the plant. Spivey
commented that in that strike the Company had put men
armed with shotguns on its trucks; that the Company did
not want a union; that it could not afford one; that a union
would drive the Company out of business; and that he
wanted Rediker to work for the Company. He then asked
her if she would like to have someone "work against" her if
she were an employer, and she said she would not.
Faye Cantrell was also active in the Union with Rediker.
Rediker testified that during her meeting with Spivey he
asked her if Cantrell's views were like hers, and she told him
she did not know. Rediker's mother was also working on
the Union's behalf, and, during their talk, Spivey told
Rediker that he could not understand why her mother was
doing what she was.
Rediker said Spivey also told her that Respondent was
not required to pay more than $1.60 an hour by law, but
was paying more. He also asked her if she could make a
living running only one job which she would be required to
do under a union classification system. After urging
Rediker to think carefully about what they had discussed,
Spivey invited her to return and let him know how she felt. I
credit Rediker's account of her conversation with Spivey
which is basically uncontradicted, I also credit her
testimony about Spivey's references to Cantrell and to
Rediker's mother as against his uncertain denials.
On or about February 16, 1970, Spivey asked former
employee Jerry Cravens to come to his office after work.
When Cravens arrived in Spivey's office, Spivey asked him
what his problems were. Cravens complained about not
having enough assistance in his work, and Spivey explained
how difficult it was to recruit help. He also asked Cravens
how he thought the Union could help him, arguing that all
that the Union could do was to make promises to
employees. According to Cravens, Spivey also stated that if
Cravens stuck with Rediker and Cantrell he would get into
trouble. Cravens had been active with Cantrell and Rediker
in starting the union activity and he also wore a union
button. Spivey's version of how the interview happened is
somewhat different from Cravens, but the essence of the
conversation is uncontradicted. I credit Craven's account,
including Spivey's comment about "trouble."
Besides talking with employees privately on an individual
basis, Spivey also held group departmental meetings with
them on March 2 and 3. Rediker and Cantrell attended the
same meeting. Rediker recalled that Spivey told her group
that the Company "didn't have any place for a union" and
that it could not afford to "give any more than what he was
giving." The Company "would have to sit down and
negotiate" if the Union were successful, Spivey said, but it
"couldn't be forced to do anything that might drive his
company out of business." In these circumstances, the
Union would be forced to strike, said Spivey, and, in that
case, he asked them who would pay their grocery, light, and
car bills. Spivey also suggested that the employees set up a
grievance committee to settle problems with the Company.
Cantrell testified that during the group meeting Spivey
asked employees to voice their complaints. Union dues and
strikes were mentioned, with Spivey stressing that employ-
ees' debts would have to be paid even if they were on strike
or on a picket line against their will. Spivey stated that the
Union could not force the Company to agree to anything
that would put it out of business, and, according to
Cantrell, in this meeting, or in a speech a day later, Spivey
reminded employees that the legal minimum wage was
$1.60 an hour and the "law did not make them give" the
employees any more than the minimum wage or require the
payment of holiday or vacation pay.
Bess also attended one of the group meetings. According
to her testimony, Spivey mentioned lack of profits and said
that the only reason the owner was keeping the plant open
was in order to provide for the families of his son and
daughter. Spivey said that Respondent could not pay
employees "one penny more than they were paying" at the
time; that they would be required to bargain, but the law
did not require the Company to do anything that would
drive it out of business; and that they would close the plant
if necessary. Spivey referred to strikes, particularly to one at
a neighboring plant. He also said that employees would
have union dues deducted from their pay and that their
dues would be used to "pay for gangsterism and high union
official wages."
On March 4, 1970, Spivey delivered his final speech
before the election held on March 6. Spivey had a written
text for his speech which is in evidence , but General
Counsel's witnesses stated that he departed from the text to
make certain points. Bess said that Spivey described the
ballot in the coming election and other election procedures
and also mentioned union dues, a strike many years ago in
which employees lost their jobs, and the Yablonski murder.
Cantrell testified that Spivey in appealing for a vote against
the Union in the coming secret ballot, stated that
employees would be forced on strike against their will, and,
after mentioning Yablonski's death, referred to union
officials as hoodlums, gangsters, or mobsters. He said that
even if employees wanted to work during a strike they
would not want to risk a "busted head" by crossing a picket
line. Also, according to Cantrell, Spivey said that, if the
Union won the election, employees would lose their
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
identities and would no longer be able to talk with him or
Jacobs, because a union stewardess would take care of their
affairs for them.
Rediker testified that on March 4 Spivey said "about the
same" as he had in the earlier smaller meeting, noting that
unions caused violence and indicating that he understood
that a union was responsible for Yablonski's death. He
asked the employees if they wanted such a thing to happen
to their families and if they wished to lose their freedoms.
Union dues and assessments were also referred to with
Spivey indicating that such were the Union's main interest
in employees. Rediker said that as far as strikes were
concerned Spivey "said the same thing he did at the other"
meeting, that is, the Company could not afford to increase
costs, the parties would not agree, the Union would force a
strike, and the employees would suffer. The fact that the
Company was paying more than the minimum wage was
also mentioned by Spivey as well as paid holidays and
vacations. Spivey noted that the Company was losing
money, but nevertheless trying to keep "the plant open and
all the jobs available for all his people," and, although he
stated that when the Company began to make a profit the
employees would be paid more, he concluded that this
could not be done with a union.
Spivey admitted that he had a conversation with Cole
during the week of January 20, 1970, but he seemed to
suggest that it was a casual conversation which grew out of
earlier statements Cole had made to him both about unions
and his job. Spivey also stated that he and Cole talked "in
generalities" about the Union "quite freely," but he
emphasized that, since Cole seemed confused about what
would happen procedurally in the Union's campaign, he
answered his questions in that area to the best of his ability.
He conceded, however, that he did ask Cole "what would
be derived from a union," and made a reference to the
union button Cole was wearing at the time. This, he
explained, was only because Cole seemed undecided, and
so he suggested to him that if he were Cole "I'd remain
anonymous in my decision, in my efforts to organize this
campaign, until I was sure what I was going to do my self."
He denied that he asked Cole to remove the union button.
Spivey also agreed that a retirement plan was mentioned to
Cole because he understood from their conversation that
Cole was "interested in a labor organization for that
reason ." He said he told Cole that a "retirement program
was in process," but it was " still so immature that we could
not announce it." Although Spivey denied asking Cole who
the "leaders" were, he testified that he asked him what
employees were complaining about, and that Cole indicat-
ed that the grievances were mostly among the women
employees. He also stated that he asked Cole if he knew any
employees who had complaints to register with him, for his
"door was always open [to] try to solve them."
Cole had testified about overhearing Spivey ask employee
Franklin how he was going to vote. Spivey said he never
"outright" asked Franklin how he was going to vote, but
also stated that the Union was discussed with him. He
repeated that he did not "directly" ask Franklin about his
intentions , but he confirmed Cole's account of his
conversation with Franklin about being absent from work,
which was the occasion, according to Cole, for Spivey's
inquiry to Franklin about the Union.
Spivey admitted that he had a conversation with Rediker
on February 12, 1970, in which he was "making her familiar
with union activities as well as also presenting our
company's position" to her. Although Rediker was wearing
a union button, Spivey said she indicated that she had no
fixed opinion, but was confused. Spivey's version of his talk
with Rediker was in accord with her's in many respects, but
he denied that he indicated in any way that Respondent
would reduce wages if the Union were successful or that he
mentioned Rediker's mother's union activity.
Spivey also recalled talking with employee Cravens in his
office, but he said he did this because he had heard from
"other people" that Cravens was "still asking questions and
doubtful about what he was going to do "about the Union."
Since he wanted Cravens "to have all the information on
which to base an accurate decision," he asked him to stop in
after work. He agreed in part with Craven's account of their
meeting, but he denied that he asked him how he thought
the Union would help him or that he told him he would get
in trouble if he "stuck with" certain prounion employees.
In regard to his January 23 speech to all employees,
Spivey denied that he threatened in any way to reduce
employee wages or take away other benefits because of
union activity, but in other respects his version is not
greatly different from employee Bess' recollection of what
was said. Although he admitted that he told the employees
that the Company "did not have to agree to anything that
would economically affect the operation of our company,"
he also said, contrary to Cole's version, that the Company
would "as required by law, sit down at a bargaining table
and bargain in good faith." Spivey also denied that
following the January 23 speech he told Cole and Cravens
that Respondent would close the plant if it were organized.
Spivey testified that he read from three documents at the
group meetings on March 2 and 3, but he also stated that he
engaged in an informal discussion with employees after the
documents were read. Although he admitted touching on
certain subjects, such as strikes, union dues and assess-
ments, the Company' s financial position, and the selection
of a grievance committee, he denied that he told employees
that Respondent would close the plant if necessary or
referred to union officials as gangsters.
The text of the final speech which Spivey delivered to
employees on March 4 is in evidence. Spivey, corroborated
by James Andrews, an employee who testified that he
followed the text as Spivey read from it, testified that he
delivered the speech as written. I find that he did.
2. Analysis, additional findings , and conclusions
with respect to the alleged 8(a)(1) conduct
a. Interrogation
I reject any implication in Spivey's testimony that his
meetings with Cole, Cravens, Rediker, and his encounter
with Franklin were casual, purely informative, and solicited
by the employees involved. Spivey had asked many
employees to visit him in his office during the Union's
campaign, and I find that he requested Cole, Cravens, and
Rediker to see him there because he knew that they were
JACOBS PACKING CO.
union adherents. Cole, Cravens, and Redeker impressed me
as trying honestly to relate what had happened, but Spivey
appeared to be covering the occasion for and extent of his
talks with employees. It is evident from the record that
Respondent, by Spivey, engaged in a campaign to persuade
employees against the Union as soon as it learned of the
Union's efforts to organize, and it is equally clear that
Spivey's interviews were part of that campaign. During his
interviews, Spivey questioned Cole and Rediker about their
sentiments toward the Union and, while mere interrogation
in this area is not necessarily illegal if accompanied by
certain safeguards,' Spivey's interrogation was not so
accompanied and occurred in a context which was
otherwise coercive. Respondent had no legitimate reason to
question employees about the Union, for it does not suggest
that it was investigating a union's claim to majority status.
Moreover, the employees involved were not assured that
there would be no reprisals if they responded to the
questions. It also appears that during the interviews Spivey
voiced antiunion sentiments, in one case suggested that the
employee remove his union button, implied that a
retirement plan was in the offering to the same employee,
inquired not only about the particular employee's views but
also inquired in a disparaging way about the views of others
not present, and admittedly suggested the presentation of
individual grievances and later formation of a grievance
committee, all to the end of settling employee problems
without union intervention. In such a context and without
necessary safeguards, Respondent's interrogation of em-
ployees was clearly coercive.
With respect to interrogation, I credit the employees'
versions basically, and I find specifically that Respondent
coercively interrogated Cole by asking him what he
expected to get out of the Union and to reveal the names of
other dissatisfied employees; by asking Franklin how he
intended to vote in the coming election; by asking Rediker,
who wore a union button, what she was complaining about
and whether employee Cantrell shared her views about the
Union; and by asking Cravens how he thought the Union
could help him. By such conduct, Respondent violated
Section 8(a)(1) of the Act.2
b. Creating the impression of surveillance
When Spivey was attempting to find out from Cole
during their talk on January 20 who the other employees
were who had grievances and were interested in the Union,
Cole evaded Spivey's questions, and Spivey stated that he
knew who they were. I also find that Spivey told Cravens
when he talked with him on February 4 that he would get in
trouble if he continued to associate with union adherents
Cantrell and Redeker. I find that, by his statements to Cole
and Cravens, Spivey created the impression of surveillance
of employee union activities in violation of Section 8(a)(1)
of the Act, as alleged in the complaint.
i Blue Flash Express, Inc, 109 NLRB 591, see also Struksnes
Construction Co, Inc, 165 NLRB 1062
2 N L R B v Cameo, Inc, 340 F 2d 803 (C A 5), Bourne Co v
NLRB,332F2d47,48(CA 2)
939
c. Soliciting employee grievances
The complaint alleged that Respondent, by Spivey,
during January and February 1970, solicited employee
complaints about their working conditions in order to
undermine the Union's organizational efforts. I have found
that Spivey mentioned a possible company retirement plan
to Cole after he had asked him what he expected to get out
of the Union and Cole had indicated that a retirement plan
was one of his goals. Spivey also wanted Cole and other
persons who Cole indicated had grievances to write them
out for Respondent's consideration. Spivey also asked
Cravens and Redeker what their "beefs" were when he
interviewed them, and in his group meetings on March 2
and 3 he also solicited employee complaints. Admittedly,
during those meetings he suggested that an employee
grievance committee could be set up to resolve employee
problems. While the solicitation of employee grievances by
an employer is not illegal per se, such conduct, if
accompanied by an express or implied promise of benefits
intended to interfere with, restrain, and coerce employees in
their organizational efforts, would be improper. By
soliciting grievances and suggesting a grievance committee,
Respondent at least impliedly promised employees that
some effort would be made to adjust their grievances.3 This
was a promise of benefits, and by such conduct, therefore,
Respondent also violated Section 8(a)(1) of the Act.
d. Threats of reprisal
During the course of his campaign against the Union,
Spivey, in individual and group meetings and in his January
27 speech to all employees referred to the fact that the
Respondent was not required by law to pay employees
more than the minimum wage of $1.60 per hour. He also
noted that the Company voluntarily paid employees for
holidays and vacations. Cole, as set out earlier, testified that
Spivey indicated to him in their conversation about the
Union that Respondent could take these benefits away
from employees, and Bess testified that during his
discussion of the law's requirement that Respondent
bargain with the Union if it won the election, Spivey said
"that the law didn't require them to pay any more than
$1.60 an hour, no paid vacations or paid holidays, and he
said that if we voted for the Union, we would lose all
personal contact with management. ." Redeker said that
when Spivey talked with her he tc!J her that Respondent
was "only required to pay us $160 an hour " She did not
say that Spivey threatened to cut employee wages back to
this level, but Spivey's remark was followed by his
statement that Redeker would make less money if the
Union were successful because "with the Union the jobs
would be classified and you would do your job and that
would be all." Cantrell recalled that Spivey told the group
she was in that "the law required him to pay only $1.60,"
but she admitted that he did not say that employee wages
would be reduced and vacations and paid holidays
abolished, and she conceded that he also said that, "all the
3 Spivey advised Cole that, if anyone had complaints, Respondent's
doors were open and Respondent would do its best to resolve such
complaints
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefits and advantages that you have here you have
received without a union, no union obtained them for you,
it won 't require any union to keep them for you."
Spivey denied that he told any employee that Respondent
would cut their wages and abolish paid vacations and
holidays if the Union were successful , but he agreed that he
had mentioned the minimum wage law and noted that
Respondent was paying wages comparable with its
competitors . I find that , regardless of how precisely Spivey
phrased the idea, the thought he intended to convey and the
message the employees realistically got in the context was
that they ran a risk if they voted for the Union of having
their wages reduced or other benefits taken away in some
undefined way. Spivey 's remarks in this area , in the context
in which they were spoken , contained an implied threat of
reprisal, and, regardless of intent, his words must be judged
by their likely import to employees , for it is the tendency of
an employer 's conduct to interfere with employee rights,
rather than his motive , which is controlling, and, so judged,
the statements were coercive and a violation of Section
8(a)(I) of the Act , as the complaint alleged.4
e. Inevitability of strikes and violence
The complaint also alleges that Respondent violated
Section 8(a)(1) of the Act by asserting to employees "the
futility of selecting the Union as their collective bargaining
representative , and the inevitability of the strikes and
violence which would flow from the Employer's failure to
bargain with the Union in good faith ." General Counsel
contends that the evidence to support this allegation is
found in Spivey 's speeches to employees on January 27 and
March 4 , 1970, and to small groups of employees on March
2 and 3, 1970.
In National Food Stores, Inc., T/A Big Bear Super
Markets,5 the Board found that a letter to employees almost
identical with Spivey 's March 4 speech was not in itself
coercive and that none of the attending circumstances
"tended to impart a coercive overtone " to it . There, as in
this case , the Employer asked the employees whether a
union would "benefit or harm" them and then went on to
argue that it would not be in their best interest to vote for
the Union because unions bring only strikes and other
troubles, most of these caused by the Employer 's unwilling-
ness or inability to agree to union demands. The letter
stressed that employee benefits flow from economically
healthy employers , not from unions led by strangers
interested only in the moneys they might extract from
employees . Closed unionized plants were referred to, and it
was asserted that the unions did not protect the employees
who had worked under union contracts at those plants. It
was suggested that a brighter future for the employees
could not be reached with a union, but could only be
attained by "loyalty and cooperation ." Various other
arguments were made , implying at least that "steady
earnings and a good place to work ," which the employer
hoped to make "even better ," might be jeopardized if the
Union won. The exact phrase was that by their actions in
choosing the Union the employees would "run the risk of
tearing apart everything" that the Employer had given
them . The letter concluded with the underscored assertion,
disguised as the conclusion that all right thinking intelligent
persons would come to if they gave the matter serious
thought , that the employees stood to lose if the Union got in
and to gain by keeping it out.
In General Automation Manufacturing Incorporated, 6
relied on by General Counsel, the Board after setting out
certain excerpts in employer communications to employees
referring to strikes and other alleged union tactics in labor
disputes , not too unlike the statements Spivey made in his
March 4 and January 23 speeches , stated that it had
consistently held that "where an employer engaged in
conduct, as described in the above -quoted excerpts of
Respondent 's letters, which was not an attempt to influence
the employees by reason , but was an appeal to fear, such
conduct was intended to interfere with , restrain, and coerce
employees in the exercise of their rights guaranteed by
Section 7, and was, accordingly , violative of Section 8(a)(1)
of the Act." It appears, however , that the Board did not
decide the case on that basis only, but on the grounds that
"taken in their full context ," a context which included a
"campaign of harassment, vilification , and ridicule" of
employees in violation of the Act , as well as a threat of loss
of contract work and overtime because of union policy, the
letters violated Section 8(a)(I) of the Act.
Spivey's March 4 speech contains some ingredients that
do not appear in the letter the Board approved in National
Food Stores, Inc. First of all, the Yablonsk i tragedy was
used in an overreaching attempt to confuse the issues in the
coming election and frighten the voters by relating the
death of Yablonski and members of his family, as well as
"political manipulation , personal speculation , gangstensm,
and other activities" to the petitioner and its officers by the
device of following the horrible illustration with a warning
that "You should give careful thought to this sort of thing
before you decide to align yourself and give your money,
your name and your support to an organization led by men
who are strangers-and who will remain strangers to you."
In previous statements to employees Spivey had disparaged
the Union 's officials in a context which contained allusions
to Yablonski 's death , indicating that employees ran the risk
of having something like that happen to them or their
families. Second , the March 4 speech is somewhat more
deceptive than the letter in National Food Stores, Inc., in
regard to a union 's statutory rights and what it can do for
employees if it is their representative in stating that "If the
Union wins this election , all it wins is the right to sit down
at the table and talk with us." A union wins more than the
right to just "talk with" an employer . Third , the speech
contains a stronger promise of benefit than the letter in the
cited case where it tells employees that if they want
improvements in conditions they should call their problems
to the Company 's attention , because the Company knows
that all is not "perfect at Jacobs Packing Company." This
reference is like Spivey 's earlier suggestion in his small
meetings with employees that they form a grievance
committee to settle their difference with the Company
privately. This last point leads into a final one, which is that
4 Wausau Steel Corp v N L R B, 377 F 2d 369, 372 (C A 7) 6 167 NLRB 502, 504
5 169 NLRB No 12
JACOBS PACKING CO. 941
the March 4 speech cannot logically be separated from B. Alleged Violations of Section 8(a)(3) of the Act
Spivey's earlier statements to employees in determining its
full meaning and assessing its impact on employees. I Discharge of Walter Cole
I have found earlier that Respondent, by Spivey,
coercively interrogated a number of employees about their
and other employees' union views and activities, coupling
its interrogation with statements that it did not have to
agree to any union proposal and very likely would not do so
because of its economic condition, which would result in a
strike in which all employees would suffer. I have also
found that Respondent by its repeated references to the
facts that the employees' wages were in excess of the
minimum wage and their paid holidays and vacations were
not required by law, but had been unilaterally granted by
Respondent, clearly implied, in the context of the kind of
bargaining process Respondent envisaged if the Union
won, that bargaining would not only be futile, but that the
employees might lose their existing benefits Respondent
also told Rediker that a union victory would prevent her
from working outside her classification, thereby causing her
to lose wages. In other cases, Respondent promised to settle
employee grievances if there were no union, although at the
same time it argued that a union victory would mean that
employees could not deal directly with management, and,
in Cole's case, it held out the lure of a possible retirement
plan, although it contended all the while that Respondent
would not be able to afford to meet the Union's demands.
Respondent's statements to employees therefore, apart
from Spivey's March 4 speech, contained threats of reprisal
and promises of benefit conditioned on the existence or
nonexistence of a bargaining relationship, which clearly, it
seems to me, were designed, as part of Respondent's whole
campaign against the Union, as fully described herein, to
convince the employees of the futility of selecting the
Union and the inevitability of strikes and violence that
would flow from Respondent' s less than complete accept-
ance of the collective-bargaining principle. Since Spivey's
March 4 speech was part of a campaign package, the
employees could not be expected to make fine legalistic
distinctions between the way he phrased his arguments in
his formal written presentation and the way he talked with
employees privately or in small groups or in his talk before
the Union filed its petition. What Spivey said on March 4
was in the same vein as what he had been saying to
employees ever since he learned about the Union's
campaign, and I find that, as far as the employees were
concerned, it contained the same message as the rest of his
pronouncements. I conclude, therefore, that the "attending
circumstances" imparted a "coercive overtone" and a
"particular connotation" to the speech within the meaning
of the Board's decision in National Food Stores, Inc, supra,
even if the speech were otherwise permissible. Respondent,
therefore, violated Section 8(a)(1) of the Act by the
speeches of January 27 and March 4, and discussions with
small groups on March 2 and 3, as alleged in the complaint
in this regard.?
Cole was discharged on February 4, because he
repeatedly clocked out before changing from the coveralls
all employees wear at work to street clothes, after having
been warned about his conduct, according to the Respon-
dent, but actually because he was active in the Union,
according to General Counsel.
Cole is the employee who Spivey coercively interrogated
and asked to take off his union button approximately a
week before he discharged him. Cole continued to wear his
union button. I have previously credited Cole as against
Spivey in respect to the content and the reason for their
conversation about unions and union activity, and I also
credit Cole's version of the circumstances surrounding his
discharge.
A week before Cole was fired, Spivey took him from his
work station to the office and, on the way, told him that he
was being transferred to a night job, but Cole told Spivey
that he could not take the transfer because of illness at
home. Hearing this, Spivey dropped the subject and turned
the conversation to unions, as set out earlier . Cole had
asked Spivey earlier if there was a possibility of a transfer to
another job where he could make more money. The
complaint alleges that Respondent attempted to transfer
Cole to the night shift because of his union activity. The
evidence will not sustain this allegation , but I do find that
Cole's version of the facts surrounding the suggested
transfer was truthful, and I also find that Spivey used Cole's
interest in a more rewarding job as a convenient entry into
a conversation with him about work in which he could
attempt to dissuade him from the Union. As found earlier,
despite Spivey's arguments, Cole continued to wear his
union button.
Cole had never been warned or reprimanded for clocking
out after changing clothes until January 13, 1970, when
Spivey saw him do it and told him that if he did it again
"disciplinary action" would be taken against him. The
penalty if Cole did it again was not defined, and Cole stated
that he thought he lost 15 minutes' pay for the first offense.s
On February 4, Cole had car trouble on the way to work,
and when he reached the plant he asked his foreman if he
could leave early to get his car repaired so that he would
have transportation to work, but his request was denied. At
lunchtime, he asked again , and again was refused. Near the
end of the day, Cole had finished his regular work and was
assigned to making sausages . He asked his foreman if other
employees could assist him so that he could leave on time.
Foreman Ray refused this request, and Cole told him that
this would mean that he would have to work overtime. Ray
said it did not matter. Cole went to work on sausages, but
Ray returned, asked him if he still wanted to leave early,
and then dismissed him. Cole went upstairs to change his
clothes and then returned to the timeclock area where he
saw Spivey and Ray watching him. Nevertheless, he
continued toward the timeclock and punched out. As he
did, Spivey accosted him and commented that he had
7 NLRB v Gissel Packing Co, Inc, 395 U S 575, 618-619
A Cole credibly denied that Craighead spoke to him about this practice
in November 1969 but, even if it happened , Craighead made no record of
it
942 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD
caught him clocking out once before after changing to his
street clothes in violation of company rules.
Cole apologized and admitted that he was in the wrong.
He explained to Spivey, in Ray's presence, that he was in a
hurry to leave so that he could get his car repaired. Spivey
told Cole that he thought that Cole ought to be suspended
for 3 months for the offense , and Cole replied that he
"couldn't take no three months." I credit his testimony that
Spivey remained silent for a brief period and then told him
"Go cheat on another company," which all tacitly concede
was his termination . Cole came back for his check on
February 7, and at that time he signed a document
admitting the January 13 offense and Spivey's warning that
"proper action would be taken" if it happened again.
Cole testified credibly that he had observed other
employees changing clothes on company time and that he
had never heard of anyone being discharged for it. Other
employees credibly testified to the same effect. Taylor, still
employed by Respondent, and employed "on and off"
since 1945, said that the rule about changing clothes was
"unwritten," but that some employees violate it, and she
gave examples. She could not say that Foreman Craighead
observed the practice, although his office is near the
timeclock. Rediker said that employees were supposed to
change before clocking in and after clocking out, "but most
of the people didn't do that and I was one of them." She
added that this practice continued until the union activity
started , and "then they enforced the rule and fired Cole."
Rediker admitted that her supervisor informed her at one
time that she was not supposed to remove her coveralls
before clocking out, but she also said without contradiction
that she was not penalized or advised that any action would
be taken if she did it again . Cantrell, Bess, and Cravens also
testified to the same effect as Cole, Taylor, and Rediker.
There is no evidence that Respondent ever took any
disciplinary action against any employee or told any
employee that he or she would be discharged for violating
the rule. Moreover, Foreman Craighead did not know what
the penalty for violation of the rule was until after Cole was
fired. I find that there was a policy about clothes changing
which was frequently violated, and that management knew
it. I also find that Cole is the first employee to be discharged
or in any way disciplined for engaging in the type of
conduct that he engaged in in this regard.
Spivey's account of what happened on February 4 when
he and Supervisor Ray observed Cole clocking out fully
dressed for the street is very much like Cole's except that he
added certain details which, if believed, would make his
action seem less precipitate and severe than it would appear
from Cole's account. He said that during the incident he
wondered out loud what he could do with an employee who
was continually violating company rules and asked Cole
what he thought he ought to do. Cole did not appear to
have any ideas, and so Spivey told him that perhaps a 3-
month suspension would help him make up his mind to
cooperate. Cole replied that he could not be without
employment for 3 months, and Spivey then suggested a 3-
month layoff, to which Cole replied, according to Spivey,
"Well, frankly it don't make a damn to me." Spivey said he
hesitated, and in his "best management judgement, released
Cole from employment." Cole denied the "don't make a
damn to me" remark, and I credit him again. Supervisor
Ray was present at the time, and his account is not like
Spivey's. There is nothing in it about any insolence,
bravado, or a "don't make a damn" attitude on Cole's part,
and although he is the supervisor who knew about Cole's
problem with his car and his wish to leave work early, but
refused his requests, he did not mention these extenuating
circumstances in his testimony. In addition, he was clearly
nervous and embarrassed in testifying about Spivey's
encounter with Cole on February 4.
I find and conclude that Respondent discharged Cole
because he was a union activist and used his transgression
as an excuse to cover its real motive. Cole was fired after he
appeared to have successfully withstood Respondent's
efforts to proselyte him and 2 days after the Union showed
enough strength to file a petition for an election; and he
was fired for an offense that was common. Even if he had
done the same thing before and had been warned about it,
no warning of what the penalty for another violation would
be was issued, and the sanction imposed was not only
extreme but he was the only employee who ever was
penalized, let alone discharged, for such an offense.
Respondent was antiunion, and it continued its antiunion
propaganda up to election time in an effort to defeat the
Union, and, in my opinion, based upon these considera-
tions and on my evaluation of Spivey's and Ray's
credibility, Respondent's discharge of Cole was just
another part of its strategy to defeat the Union's efforts to
organize its employees. By its conduct in discharging Cole
for the reasons I have found, Respondent violated Section
8(a)(3) and (1) of the Act.
2. Transfer of Faye Cantrell
The complaint alleged that on or about February 16,
1970, until about March 13, 1970, Respondent discrimina-
torily transferred Cantrell to a job which imposed on her
harsher terms and conditions of employment.
Cantrell had been employed as a sausage packer since
May 1962, but on February 16 she was transferred to a job
in the ham wrapping room under the following circum-
stances: Although sausage wrapping was her regular job,
she, like other employees, helped out in other departments
or on other jobs when her regular work was finished, and
she had worked in the ham wrapping department in the
past for short periods during the day. She credibly testified
that Supervisor Craighead effected her transfer after she
began to wear a union button by simply notifying her
without explanation to go to the ham cooler and take the
job of Joyce Walker who would replace her on her work.
Although she asked Craighead why she was being
transferred, he merely stated that she should follow his
instructions because he told her to. Cantrell remained in the
ham wrapping room for about a month, but she was
transferred to the slicing room after the Board election.
According to Cantrell her new job required her to lift
heavier objects and was performed under less pleasant
conditions than her regularjobs. Where she used to lift one
pound of sausage at a time and insert it in a box, the hams
she was required to pack weighed from "10 to 30 pounds,"
which tired her considerably. She had to wear additional
clothes in the ham wrapping department, she said, for the
JACOBS PACKING CO.
room was "about 20 degrees" colder and also contained a
blower which directed cold air at her station. Cantrell also
stated without contradiction that she was also required to
remove smoked jowls from metal hooks preparatory to
packing them. This made it necessary for her to wear gloves
to protect her hands from cuts and consequent infection
from the hooks.
As previously found, Cantrell attended one of the group
meetings at which Spivey asked employees to voice their
grievances. Cantrell asked Spivey why she had been
transferred from her regular job to the cooler, and he told
her that all employees were being rotated in order to learn
how to do a variety of jobs. Cantrell testified that she
already knew how to perform all the jobs and that she was
the only employee moved from one job to another during
that period.
Cantrell admitted, however, that, during the group
meeting with Spivey, she stated that the "cooler isn't a bad
job," and "wasn't as bad as I thought it was." On the other
hand, she testified that she had frequently stated prior to
her transfer that the cooler job was "the only job that she
wouldn't take because of cold and lifting." She also testified
without contradiction that she accused both Craighead and
Ray, her supervisors, of transferring her to the cooler so
that she would quit her job, but she informed them that she
would not quit, "If it snowed up to my knees in there," until
after she "got the union in." Cantrell had worn a union pin
for about 2 weeks prior to her transfer, and she was one of
approximately seven employees, including Cole, Cravens,
and Rediker, who initiated the union campaign.
Supervisor Craighead testified that he assigned Cantrell
to ham wrapping in February 1970 because he wanted to
have employees who were experienced in many jobs so that
they could substitute for other employees during the
vacation period. Cantrell became angry when he advised
her of the move, he said, and accused him of discriminating
against her. He then explained to her that she was being
transferred so that she would be qualified to replace the
employee presently working in the ham wrapping depart-
ment when she took her vacation and also because she and
another employee in the sausage department "continuously
talked." Cantrell's talking interfered with her work, and he
had cautioned her about it in the past, he said.
Craighead disagreed with Cantrell's description of the
nature of the work and the conditions under which it is
done in the ham wrapping department. Hams never run to
30 pounds but the largest average 18 to 20 pounds. He also
said that the average temperature in the ham room is
warmer than in the sausage department, but he conceded
that there is a blower in the ham room that is sometimes
turned on during working hours. Craighead also said that
although Cantrell "raised a ruckus" when he first sent her
to the ham wrapping department, after some weeks she said
that the job was not as bad as she thought it would be and
actually "she rather like[d] it." She was also "satisfied" to
be transferred out of the ham wrapping department, he
said.
9 Hicks, the refrigeration man, testified basically like Matthews about
the temperature of the ham cooler and the running of the blower
io Employee Crawford and Supervisor Ray testified that they heard
Cantrell tell Spivey in a group meeting that she was "beginning to like" her
943
Plant Manager Spivey recalled Cantrell questioning him
about her transfer when he talked to employees in small
groups about the Union and their grievances, and he said
he explained to her about the vacation problem and the
need for trained employees to take the places of vacation-
ers. He said Cantrell indicated that she had not understood
this, and added that the job was not too bad after all. Spivey
knew that Cantrell had worked in ham wrapping previous-
ly, but he stated that since the job procedures had changed
and were "fairly new," it was necessary for Cantrell to
become familiar with these new techniques of wrapping
hams. He also pointed out that persons are frequently
moved from one job to another.
Hugh Matthews, who was Cantrell's immediate supervi-
sor when she worked in ham wrapping, testified that the
hams that Cantrell handled were not as large nor the
temperature of the room as cold as she said it was. He also
stated, however, that the blower, which Cantrell had
complained about in her testimony, was still going when
employees arrived for work at 7:00 a.m., but was cut off by
the person in charge of refrigeration sometime before 8:00
a.m., and remained off for the rest of the day.9 He also
remembered that although Cantrell did not like her new
assignment when she first got it, after a few weeks she
commented that she liked it better than she thought she
would. 10
Regardless of whether or not the job of wrapping hams to
which Cantrell was assigned was as bad as she thought it
was going to be or whether or not the conditions under
which she performed the work were as extreme as she
described them, I find that her new assignment was more
difficult and unpleasant than the one she had performed
regularly for a long period of time, and that Respondent
made the transfer because of Cantrell's known union
activity. Cantrell may have embellished certain portions of
her description of conditions in the ham cooler, but the
facts are that the hams were 15 or more pounds heavier
than the sausages she normally packed, that there is no
contradiction of her testimony about the unpleasantness
and risks in handling ham jowls, that the blower did remain
on for some time after work started and probably was
turned on occasionally during the day, that she thought the
job was the worst of all before she was assigned to it, and
had clearly voiced these sentiments in the plant and had
accused Craighead and Ray of trying to force her to quit
when Craighead suddenly moved her to the ham cooler
room. These facts and this expressed attitude, taken with
the credited testimony of employees Bess and Rediker to
the effect that the job to which Cantrell was assigned in the
cooler was more difficult, convince me that Cantrell's
version was basically honest, even if certain details were not
in accord with scientific fact.
On the other hand, however, Respondent's version of
why they transferred Cantrell does not match other facts in
the case, is somewhat illogical on its face and shifted during
the hearing. The core of Respondent's justification for
suddenly moving a senior employee to a more difficult job
new job after Spivey explained that her transfer was related to
Respondent's vacation problem Ray's version is like the one Cantrell
admitted to, but Crawford 's I thought was gilded
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which she vehemently disliked and installing the other
employee in her job was that it was part of a training
program which would make Respondent more flexible
during the vacation period. Forgetting that this was early
foresight, for vacations were months away, but the union
campaign was an everyday thing, Cantrell also credibly
testified, and there is no evidence of any weight to
contradict her, that she had done the ham room job before
and knew all its elements . Not only did she need no
training , but as far as this record shows, she was the only
employee Respondent utilized in its program of developing
multiple skills in order to be ready for vacation. In addition,
Cantrell was kept in the ham wrapping room for many
weeks until she was transferred out after the Board election,
but Supervisor Matthews testified that the employee who
was working in the ham wrapping job at the time of the
hearing had been trained in the job in 1 week. There is no
explanation why the experienced Cantrell needed so much
more time.
When Cantrell asked Spivey why she had been trans-
ferred, he told her it was part of a larger plan connected
with the vacation problem, and Spivey gave no other
explanation for the move when he testified in this case.
Supervisor Craighead, however, testified that he transferred
Cantrell for training purposes and also because she and
another employee talked continuously at theirjobs, thereby
interfering with work, and he said that he told her so when
he moved her. Here again Craighead's vacation reason is no
more credible than Spivey's, and the addition of conduct
with an unnamed employee which interfered with prod-
uction as a reason for choosing Cantrell as the first trainee
under the vacation program not only throws a shadow on
Spivey's explanation, but also dilutes the whole defense.
Moreover, Cantrell credibly denied that Craighead gave her
any reason for her transfer when he effected it, and she also
denied that she had ever been spoken to about talking at
work. Bess corroborated Cantrell. She said that all that
Craighead told Cantrell when she asked him why he was
putting her on Walker's job and moving Walker to her's
was that "that's what I'm going to do, the way it's going to
be done."
Cantrell was active in the Union and Respondent knew
it. When Spivey interrogated Rediker about her sentiments
in the union area, he asked her if Cantrell's views were the
same as hers, and he also told Cravens in the middle of
February that if he stuck with Rediker and Cantrell he
would get in trouble. Spivey engaged in a campaign against
the Union, and he was preoccupied with persons like
Cantrell, for they figured in his mind as the persons who
would become union leaders if the Union won. Cantrell was
suddenly transferred over her protest to a job she did not
like and which was more difficult and unpleasant at a time
and under circumstances that were more than suspicious. If
Respondent gave no explanation for its action, a conclusion
would be clearly warranted that Respondent was motivated
by discriminatory considerations in assigning Cantrell to a
different job. Respondent's explanation, for the reasons set
out above, is incredible, thereby not only not destroying
General Counsel's prima facie case but indicating that the
11 See N L R B v Melrose Processing Co, 351 F 2d 693, 698 (C A 8)
12 Goodyear Tire & Rubber Company, 138 NLRB 453
true reason for Respondent 's action would be found
elsewhere.li The only thing unusual Cantrell was doing in
February 1970 was openly supporting the Union. On this
basis, I find that Respondent discriminated against Cantrell
in violation of Section 8(a)(3) and (1) of the Act as alleged
in the complaint.
C Findings, Conclusions, and Recommendations
Regarding the Objections to the Election
The Board ordered a hearing on the Union's Objections
1, 5, 6, 7, 8, 9, 10, and 11.
I have found that Respondent discriminatorily dis-
charged Walter Cole on February 4, 1970, as alleged in
Objection 1, and that Respondent discriminatorily trans-
ferred Faye Cantrell on or about February 13, as alleged in
Objection 5.
Objection 7 relates to interrogation of employees, and it
has been found that Respondent coercively interrogated
Rediker on February 12 and Cravens on February 16, 1970,
which was after the petition for an election was filed. The
interrogation of Cole and Franklin occurred before the
petition was filed and may not be used as a basis for
objection to the election.12
It has been found Respondent by its repeated references
to the murder of Joseph Yablonski in its meetings with
small groups of employees and in its March 4 speech to
employees attempted to relate this vicious crime to unions
generally and to the petitioner in particular. This is the
heart of Objection 8, and I find that it has been sustained.
I have also found that Respondent in its meeting with
employees told them that bargaining would be an exercise
in futility, implied that Respondent would not bargain with
the Union in complete good faith, and implied that
employees might have their wages reduced if Respondent
were required to bargain with the Union. These findings are
in essence the basis for Objections 10 and 11 , and I find,
therefore, that they too have been sustained.
There is no evidence in the record to support Objections 6
and 9.
Having found that Respondent coercively interrogated
employees, discriminatorily discharged Cole and trans-
ferred Cantrell , and engaged in other acts of interference,
restraint , and coercion in violation of Section 8(a)(1) of the
Act after the petition was filed, I shall recommend that the
election be set aside on that basis alone , for such unfair
labor practices obviously interfere with a free and
untrammeled choice in election . 13 I also conclude that
Respondent's coercive interrogation of employees, the
statements it made in its group meetings and in its speech to
all employees, all as set out in detail above, created an
atmosphere incompatible with the exercise of a free choice
in the election, regardless of whether the statements made
in the campaign are protected under Section 8(c) of the
Act 14
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
It is found that the activities of the Respondent set forth
13 Dal-Tex Optical Company, Inc, 137 NLRB 1782.
14 Thomas Products Co, 167 NLRB 732
JACOBS PACKING CO.
above, in section III, occurring in connection with its
operations described in section I, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(3) and (1) of the Act, it
will be recommended that the Board issue the Recommend-
ed Order set forth below requiring Respondent to cease and
desist from said unfair labor practices and take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Respondent unlawfully discharged
Walter Cole, it shall be recommended that Respondent
reinstate him to his former job or, if that job does not exist,
to a substantially equivalent position of employment
without prejudice to seniority and other rights and
privileges and make him whole for any loss of pay he may
have suffered as a result of Respondent's unlawful conduct.
Backpay shall be computed in the manner set forth in F W
Woolworth Company, 90 NLRB 289, with interest added
thereto in the manner set forth in Isis Plumbing & Heating
Co., 138 NLRB 716.
Upon the foregoing findings of fact and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization as defined in
Section 2(5) of the Act.
3. By discharging Walter Cole and transferring Faye
Cantrell because they engaged in union and other
concerted activities, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
4 By engaging in the conduct found to be violations of
the Act set forth in section III, A, the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the entire record in the case, it
is recommended that Respondent, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from
(a) Coercively interrogating employees concerning their
15 In the event no exceptions are filed as provided by Section 10246 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order, herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
945
or other employees' preferences, activities, or desires in
regard to the Union or any other labor organization.
(b) Creating an impression of surveillance of union
activities of employees.
(c) Soliciting employee complaints with the implied
promise of benefit in an effort to undermine the Union's
organizational effort.
(d) Threatening employees with loss of pay or loss of
other benefits if they select the Union as their bargaining
representative.
(e) Asserting the futility of selecting the Union as
bargaining representative of the employees, and the
inevitability of the strikes and violence which would flow
from Respondent's failure to bargain with the Union in
good faith.
(f) Discharging, transferring, or otherwise discriminating
against employees because they engage in protected
activities.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Walter Cole full and immediate reinstatement
to his former job, or if that job is not available, to a
substantially equivalent position without prejudice to
seniority or other rights and privileges, and make him whole
for any loss of pay suffered by reason of his discharge by
payment to him of a sum of money equal to the amount he
would have earned as wages from the date of his discharge
to the date of his reinstatement in the manner set forth in
the section entitled "The Remedy."
(b) Notify the above-mentioned employee, if presently
serving in the Armed Forces of the United States, of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from
the Armed Forces.
(c) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
relevant and necessary to a determination of the amount of
backpay due under the terms of this Recommended Order.
(d) Post at its Nashville, Tennessee, place of business
copies of the attached notice marked "Appendix." 15 Copies
of said notice, on forms provided by the Regional Director
for Region 26, after being duly signed by the Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the said Regional Director, in writing, within
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals enforcing
an Order of the National Labor Relations Board "
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
20 days from the date of this Decision , what steps
Respondent has taken to comply herewith.16
IT IS FURTHER RECOMMENDED that the election held on
March 6 , 1970, in Case 26-RC-3691, be set aside , and that
said case be remanded to the Regional Director for Region
26 to conduct a new election at such time as he deems the
circumstances permit the free choice of a bargaining
representative.
16 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Amalga-
mated Meat Cutters and Butcher Workmen of America,
AFL-CIO, Local Union Number 405, or any other
labor organization, by discharging or refusing to
reinstate employees, or by transferring them, or in any
manner discriminating in regard to their hire or tenure
of employment, or any term or condition of employ-
ment.
WE WILL NOT interrogate employees concerning their
or other employees' activities, beliefs, or desires in
regard to said Union, or any other labor organization,
in a manner constituting interference, restraint, or
coercion violative of Section 8(a)(1) of the Act.
WE WILL NOT create the impression that we are
keeping your union activities under surveillance.
WE WILL NOT solicit grievances with an implied
promise of benefit to you in order to undermine the
Union's organizational efforts.
WE WILL NOT threaten you with loss of present wages
or other benefits if you select the Union as your
representative or vote for it in an election.
WE WILL NOT tell you that selecting a union is a
useless act, and advise you that strikes and violence will
inevitably flow from the kind of bargaining the
Company would conduct with the Union if it becomes
your representative.
WE WILL NOT in any other manner interfere with,
restrain or coerce you in the exercise of the rights
guaranteed by the National Labor Relations Act.
WE WILL offer Walter Cole immediate and full
reinstatement to his former job or a substantially
equivalent position without prejudice to his seniority
and other rights and privileges and make him whole for
any loss of pay suffered as a result of the discrimination
against him.
Dated By
JACOBS PACKING COMPANY
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 746
Federal Office Building, 167 North Main Street, Memphis,
Tennessee 38103, Telephone 901-534-3161.