Jonnnie's Poultry Co.

National Labor Relations Board - Board Decisions

Apr 13, 1964

146 N.L.R.B. 770 (N.L.R.B. 1964)

770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon request , bargain collectively with the above-named labor
organization in regard to wages, hours , and other terms and conditions of em-
ployment in the unit composed of:
All combination control-announcers and engineers employed by Re-
spondent at its KFSA radio station in Fort Smith , Arkansas, excluding all
other employees such as office clericals, professionals , guards and watch-
men, and supervisors as defined in the Act
and will reduce to writing and sign any agreement reached as a result of such
bargaining
All our employees are free to become or remain members of International Brother-
hood of Electrical Workers, AFL-CIO, Local Union 1304 , or any other labor organi-
zation , or to refrain from such membership.
FORT SMITH BROADCASTING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee , Telephone No.
534-3161 , if they have any questions concerning this notice or compliance with its
provisions.
Johnnie's Poultry Co . and John Bishop Poultry Co., Successor
and District Union 99, Amalgamated Meat Cutters & Butcher
Workmen of North America, AFL-CIO . Case No. 14-CA-2950.
April 13, 1964
DECISION AND ORDER
On May 21,1963, Trial Examiner Reeves R. Hilton issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had not engaged in and was not engaging in the unfair labor
practices alleged in the complaint, and recommending that the com-
plaint be dismissed in its entirety, as set forth in the attached Inter-
mediate Report. Thereafter, the General Cgunsel filed exceptions to
the Intermediate Report and a supporting brief and the Respondent
filed a brief I in support of the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and finds merit in the exceptions as set forth below. Ac-
cordingly, the Board adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent they are con-
sistent herewith.
1. Contrary to the Trial Examiner, we find that Respondent violated
Section 8(a) (1) of the ket when, in the latter part of August 1962,
John Bishop told employee Robert W. Haynes that the Union would
1 Respondent's request for oral argument Is hereby denied as the record , the exceptions,
and brief adequately present the Issues and positions of the parties.
146 NLRB No. 98.
JOHNNIE'S POULTRY CO. 771,
try to organize the employees but that he (Bishop) could not afford
to pay union wages and would shut down rather than have the Union
in the plant, reminding Haynes that he had helped Haynes and his wife
by giving them jobs and lending them money and if the Union tried
to get in the plant, "you know how to vote."
We reject the Trial Examiner's reasoning that because Bishop's
threat to close the plant was predicated upon his inability to meet
union wage scales , an assertion not supported by record evidence,
the statement was not coercive. We also disagree with his conclu-
sion that the entire conversation was irrelevant in considering Re-
spondent's refusal to bargain merely because it occurred some 3 weeks
before the organizational drive was renewed. The lack of concurrent
union activity does not avoid the coercive effect of Respondent's
threat of plant closing and promise of benefit for voting against the
Union clearly made in anticipation of such activity, nor does it in any
way detract from demonstrating Respondent's union animus.'
2. Organizational activity was renewed on September 20, 1962.
By letter dated December 6, 1962, the Union, having obtained
authorization cards from a substantial majority of the employ-
ees 3 in the appropriate unit,4 demanded recognition and bargain-
2 The Trial Examiner's holding that the Respondent did not violate Section 8(a)(1) in
the Bowers and Cook incidents is based substantially upon his resolutions of credibility.
It is well-settled Board practice not to overturn such credibility resolutions unless a clear
preponderance of all the relevant evidence convinces us that the Trial Examiner was in-
-correct. Accordingly, we adopt the recommended dismissal of the allegations of the
complaint based on those incidents.
s The payroll submitted by Respondent listing 98 employees included 5 college students
who were casual rather than regular part -time employees and, as such, were not part of
the unit. See George Groh and Sons, 141 NLRB 931, p. 939. Moreover, although most of
the college students worked during the preceding summer vacation period and during the
subsequent Christmas holidays , all had returned to school and were not employed at the
time of the Union's demand and Respondent 's rejection thereof. Respondent therefore
had a maximum of 93 employees . At the time of its demand the Union, having obtained
authorization cards executed by 55 employees , was the majority representative and, hav-
Ing submitted photostats of 49 such cards , had demonstrated to the Respondent its clear
majority . Accordingly, we do not adopt the Trial Examiner 's conclusion that the Union's
majority representative status was questionable.
* The complaint alleges, Respondent 's answer admits , and we find, that the following
,unit is appropriate:
All production and maintenance employees , employed at the Perryville plant, ex-
clusive of office clerical employees , guards, professional employees , and supervisors as
defined in the Act.
This is the same as the unit described in Respondent 's representation petition filed Decem-
ber 10 , 1962, and also was the one in which a consent election involving this Union was
conducted in 1961.
The General Counsel urges the exclusion of six truck-drivers, The record evidence shows
that, in addition to their driving duties , the truckdrivers work in the plant packing de-
partment between 10 and 50 hours a month for which they are paid on an hourly basis
as are production workers, whereas while performing their regular driving duties they are
paid on a trip basis . Four of the present six drivers were originally plant employees,
and in the past truckdrivers have been transferred to plant work. As truckdrivers actually
work at times as plant employees and have the same supervision as all other employees,
they have a substantial community of interest with production and maintenance em-
ployees warranting their inclusion . See Tops Chemical Company, 137 NLRB 736. Accord-
Ingly , we reject the General Counsel 's contention that truckdrivers are not part of the
appropriate unit.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing,5 and it enclosed photostatic copies of the signed authorization
cards demonstrating that majority status. By letter dated Decem-
ber 10, 1962, Respondent declined to recognize the Union, stating that
it did not regard the photostats "as reliable indication of the present
desires of our employees,'' and on the same day filed a representation
petition with the Board.
On December 6, 1962, the Union filed charges alleging violations
of Section 8(a) (3) and on December 12, 1962, the Union amended its
charges by adding allegations of Section 8 (a) (1) and (5) violations.
On December 27, 1962, Respondent's attorneys went to the plant and
interviewed each of the approximately 40 employees present who had
signed an authorization card submitted to the Respondent by the
Union. At the outset of each interview the attorney explained his
position and purpose-that of investigating a charge which the Union
had filed against the Company-and assured the employee that the
law protected the employee's rights and that those rights would be
respected. Each employee was then asked to identify his signature
on the photostat of his union authorization card and to describe the
circumstances under which he signed the card, including where, for
whom, and whether the amount of initiation fees and dues was dis-
cussed and if he understood that they were waived. Some were also
asked whether they understood the meaning of the, cards.
During the interviews the attorneys learned that employees had
signed an additional document for the Union, one specifically au-
thorizing the Union to use the cards to gain recognition. Thereafter,
both attorneys also asked if the employee had signed another paper
for the Union, whether it was signed at a union meeting, and who
was present when it was signed. In this connection Mary Shrum
was asked where union meetings were held.
As indicated by the foregoing, when the Union submitted a demand
for recognition along with photostats of authorization cards signed
by a majority of the employees, Respondent did not question the
numerical majority, nor did it raise any questions relating to the
unit involved, but rather rejected the recognition claim and demanded
a Board election assertedly because it did not regard the authorization
cards as a dependable reflection of the employees' desires. Respond-
ent claims that this doubt was based upon the fact that although a
5 The Trial Examiner found that the Union 's request for recognition as representative
of "your employees" was not a reasonably accurate description of the appropriate unit,
and therefore did not sufficiently identify the employees for whom recognition was
claimed. The record discloses that the previous election had been held among Respond-
ent's production and maintenance employees , as indicated above, and that Respondent did
not question which employees the Union had reference to and , in fact, filed a petition
covering that same basic unit. In these circumstances , we find that the Union's demand
was sufficiently specific for establishing communication of a claim of representation and
demand for recognition in the appropriate unit of these employees . See Arts & Crafts
Distributors, Inc., 132 NLRB 166.
JOHNNIE'S POULTRY CO. 773
majority of its employees had also signed similar cards the previous
year, the Union subsequently lost an election in 1961. Then, when
the Union filed charges in December 1962 alleging an unlawful refusal
to bargain and it appeared to Respondent that a complaint' might
issue , Respondent conducted the employee interviews assertedly with
the twofold purpose (1) of determining whether the Union was in
fact the majority representative warranting settlement of the charges
by extending recognition and (2) in the event no settlement was
reached, of ascertaining facts for the preparation of a defense to,a
complaint should one issue.
In these interviews Respondent obtained no information which
could bring into question the authenticity of the cards or which might
indicate that they were obtained by misrepresentation or coercion.
Indeed, not only was the validity of the cards established but the
Respondent learned that its employees had further affirmed the intent
of the cards as designating the Union as the bargaining representa-
tive by signing a separate petition specifically authorizing the Union
to seek recognition on the submission of those cards as proof of its
majority status. Despite this added proof of employee intent, thereby
clearly establishing beyond any possible doubt the Respondent' s legal
obligation to extend the recognition requested, Respondent neverthe-
less withheld recognition and has continued to contest the Union's
representative status in this refusal-to-bargain proceeding.
It is well settled that an employer has a legal duty to recognize
and bargain with the representative of a majority of its employees
upon receipt of a request therefor unless it entertains a good-faith
doubt concerning the union's representative status a When faced with
a claim of majority status, an employer with a good-faith doubt as
to the existence of a valid basis for such claim has been permitted
to interview the employees for the purpose of resolving that doubt
in order to determine whether recognition should be extended? How-
ever, the existence of good faith in withholding recognition is not
established merely by an employer's affirmative assertion thereof;
rather it is determined by the entire factual context in which the
claim is made and refused.'
eFred Snow, Harold Snow and Torn Snow d/b/a Snow t Sons, 134 NLRB 709, 710,
enfd. 308 F. 2d 687 ( C.A. 9) wherein the employer 's refusal to accept the results of a card-
check and insistence upon a Board election because it believed employees might change
their minds was found to constitute evidence of the lack of a good-faith doubt of the
union 's majority status.
r Blue Flash Express , Inc., 109 NLRB 591.
8 Joy Silk Mills,'Inc., 55 NLRB 1263, enfd. 185 F . 2d 732 (C.A.D C.), cert. denied
841 U.S. 914. As direct evidence of a purpose to violate the statute is rarely obtainable,
it is well settled by a long line of court decisions that the Board may properly consider
circumstantial evidence and draw inferences therefrom to establish the violation. See
F. W. Woolworth Co. v. N .L.R.B, 121 F. 2d 658, 660 (C.A. 2).
774 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
Respondent's conduct here clearly establishes the absence of a good-
faith doubt of the Union's majority status or of the employees' wishes.
Unlike the Trial Examiner, we do not find that Respondent's prompt
action in filing the representation petition necessarily demonstrated a
good-faith doubt-it could as well have been to gain time in.which to
dissuade employees from the choice they had made, The absence
of good faith on the -part of Respondent becomes conclusively ap-
parent when, having completed its interrogation and gained there-
from clear reaffirmation of the Union's uncoerced majority, it failed
and continued its refusal to recognize and bargain with the representa-
tive even though it purportedly had undertaken the interrogation to
determine the Union's representative status and then to satisfy its
statutory obligation should such status be established. This failure
to extend recognition in the face of confirmed knowledge of the Union's
majority status is inconsistent with its previous claim of a good-faith
doubt. The conclusions is inescapable, and we find, that the foregoing
evidence establishes an absence of good faith and an unlawful refusal
-to bargain in violation of Section 8(a) (5) of the Act.
3. As indicated above, one of Respondent's asserted reasons for con-
ducting the employee interviews was to ascertain facts for the prepara-
tion of its defense in the event a complaint issued on the charges which
the Board was then investigating. In this connection employees inter-
viewed were also asked by the attorneys if any Company supervisory
personnel had discussed the Union with them. In answering this
question, Duvall told of Superintendent Cathy's questions and com-
ments with respect to the wearing of union campaign buttons, a mat-
ter related to the Cook incident referred to above. Duvall was then
asked whether he had given the Board agent a statement along these
lines and he replied that he had, whereupon he was requested to re-
peat his statement. Duvall refused. In response to the same ques-
tion concerning the supervisors' activities, Cook related his conversa-
tion with Schnurbusch on the wearing of union buttons. He was then
asked if he had given a statement to the Board and if he would also
give Respondent a statement. Cook complied. At this time Cook
had given the Board agent an oral statement but had not yet executed
a pretrial affidavit. Haynes also related the circumstances under which
he received the loan from Bishop. When asked whether he had spoken
to anyone from the Board with respect thereto he replied that he had
not, although he had. Respondent's attorneys admitted that they
may have asked the same questions of other employees whom they
interviewed.
Despite the inherent danger of coercion therein, the Board and
courts have held that where an employer has a legitimate cause to in-
quire, he may exercise the privilege of interrogating employees on
JOHNNIE'S POULTRY CO. 775
matters involving their Section 7 rights without incurring Section
8 (a) (1) liability. The purposes which the Board and courts have held
legitimate are of two types: the verification of a union's claimed ma-
jority status to determine whether recognition should be extended,
involved in the preceding discussion, and the investigation of facts
concerning issues raised in a complaint where such interrogation is
necessary in preparing the employer's defense for trial of the case .9
In allowing an employer the privilege of ascertaining the necessary
facts from employees in these given circumstances, the Board and
courts have established specific safeguards designed to minimize the
coercive impact of such employer interrogation. Thus, the employer
must communicate to the employee the purpose of the questioning,
assure him that no reprisal will take place, and obtain his participa-
tion on a voluntary basis; the questioning must occur in a context free
from employer hostility to union organization and must not be itself
coercive in nature; and the questions must not exceed the necessities of
the legitimate purpose by prying into other union matters, eliciting in-
formation concerning an employee's subjective state of mind, or other-
wise interfering with the statutory rights of employees.10 When an
employer transgresses the boundaries of these safeguards, he loses the
benefits of the privilege:11
In defining the area of permissible inquiry, the Board has generally
found coercive, and outside the ambit of privilege, interrogation con-
cerning statements or affidavits given to a Board agent.12 For such
questions have a pronounced inhibitory effect upon the exercise by
employees of their Section 7 rights, which includes protection in seek-
ing vindication of those rights free from interference, restraint, and
coercion by their employer. Moreover, interrogation concerning em-
ployee activities directed toward enforcement of Section 7 rights also
interferes with the Board's processes in carrying out the statutory
mandate to protect such rights. We note, in this connection, that
under the safeguards attending a hearing on unfair labor practices,
9 See Joy Silk Mills , Inc. v. N.L.R.B ., 185 F. 2d 732 (C.A.D .C.), cert, denied 341 U.S.
914; N & W Overall Company, Inc ., 51 NLRB 1016 , 1021; Joy Silk Mills, Inc., footnote 8,
supra, at 1290-1291 ; May Department Stores Company, a Corporation, d/b/a Famous-
Barr Company, 70 NLRB 94, 95-96; The Babcock and Wilcox Company, 114 NLRB 1465,
1474-1475 . Also see N.L.R.B. v. Katz Drug Co., 207 F. 2d 168 (C.A. 8).
10 Id. Also see Graber Manufacturing Company, Inc ., etc., 111 NLRB 167; Lindsay
Newspapers, Inc., 130 NLRB 680, enfd. as mod., 315 F. 2d 709 (C.A. 5) ; Frank Sullivan
and Company, 133 NLRB 726; Guild Industries Manufacturing Corp., at at., 133 NLRB
1719, enfd . 321 F. 2d 108 (C.A. 5).
n In addition to the cases cited above , see N .L.R.B. v. Norman H. Stone, at al., 125 F. 2d
752 (C.A. 7).
12 See Better Monkey Grip Company, 115 NLRB 1170 , enfd. 243 F . 2d 836 (C.A. 5), cert.
denied 353 U.S. 864; Jackson Tile Manufacturing Company, 122 NLRB 764, 788; Lloyd
A. Fry Roo fing Company, 123 NLRB 647; Cadre Indwtries Corporation , 124 NLRB 278 ;
Corpus Christi Grain Exchange , Inc., 132 NLRB 145, 160 , 165. Also see Texas Industries,
Inc., et al ., 139 NLRB 365; Hilton Credit Corporation, 137 NLRB 56 , 64; Winn-Dixie
Stores, Inc., etc., 143 NLRB 848; Henry I. Siegel Co., Inc., 143 NLRB 386, affd. 328 F. 2d
25 (C.A. 2) ; Surprenant Mfg. Go., 144 NLRB 507.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counsel for Respondent parties are entitled to the availability, upon
request, of the affidavits of, General Counsel witnesses for use in cross-
examining those witnesses.
It is evident from the foregoing that by its inquiries relating to
statements given the Board agent, the Respondent interfered with
the statutory rights of its employees in violation of Section 8(a) (1)
of the Act. Moreover, as appears from the facts set forth in the
preceding section, many of the questions asked by the Respondent,
such as where union meetings were held and who was present, also
went beyond any privilege which arguably might have been available
here." However, we need not pass upon whether the situation-
occurring as it did while the Board was still investigating charges
and before any complaint issued-would ordinarily Warrant extension
of the privilege, for preparation of a defense, nor need we identify
each question which • exceeded that privilege and indicate wherein it
was unlawful. Viewing Respondent's conduct in connection with
its aforementioned refusal to bargain, we find that Respondent's in-
terrogations were but part and parcel of its efforts to avoid recog-
nizing and bargaining with a statutory representative.14 In circum-
stances such as these we do not believe that Respondent may rely
upon privilege to justify an unwarranted intrusion into the protected
activity of employees.15 Accordingly, we find that by interrogating
employees concerning their union adherence and activities Respond-
ent engaged in interference, restraint, and coercion in violation of
Section 8(a) (1) of the Act.
The Effects of the Unfair Labor Practices Upon Commerce
The activities of the Respondent set forth above, occurring in con-
nection with the operations of the Respondent described in the Inter-
mediate Report, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing commerce and the
free flow thereof.
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order that it cease and desist therefrom and
13 See cases cited in footnotes 9 and 10, supra.
14 See Lindsay Newspapers , Inc, supra, wherein the Board found it unnecessary to decide
the extent and nature of any privilege present because respondent 's proven unlawful pur-
pose in conducting the inquiry precluded the effective assertion of a claim of privilege.
Also see N.L.R B. v. Stone, supra, where, without regard to the effect of the separate
events, the court regarded the chronological order more than merely coincidental and
found the attorney's interviews of employees a part of a plan to interfere with employees'
Section 7 rights
'5 As noted by the court in N L.R.B. v. Guild Industries Manufacturing Corp., et al.,
821 F. 2d 108 (C.A. 5), "... It is a matter of drawing a balance between the separable
rights of the employer and the employees , delicate in all events, and one that requires the
utmost in care and good faith on the part of the company counsel . . . .
JOHNNIE'S POULTRY CO. 777
take certain affirmative action which we find necessary to effectuate
the policies of the Act. Having found that Respondent has engaged
in interference, restraint, and coercion in violation of Section 8 (a) (1)
of the Act, we shall order that Respondent cease and desist therefrom.
We have also found that Respondent has unlawfully refused to
recognize and bargain collectively with the Union as the representa-
tive of a majority of its employees in an appropriate unit. Accord-
ingly, we shall order that Respondent, upon request, accord such
recognition and bargain collectively with the Union as the exclusive
representative of all employees in the appropriate unit and, if an
understanding is reached, embody such understanding in a signed
agreement.
Upon the basis of the foregoing and upon the entire record in the
case, the Board makes the following :
Conclusions of Law
1. Johnnie's Poultry Co. and John Bishop Poultry Co., Successor,
is an employer within the meaning of Section 2(2) of the Act, and is
engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. District Union 99, Amalgamated Meat Cutters & Butcher Work-
men of North America, AFL-CIO, is _a labor organization within
the meaning of Section 2(5) of the Act.
3. All production and maintenance employees employed at the
Perryville plant, exclusive of office clerical employes, guards, pro-
fessional employees, and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9(b) of the Act.
4. The aforesaid labor organization is, and at all times material
herein has been, the exclusive representative of the employees in the
above appropriate unit for purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
5. By failing and refusing to recognize and bargain collectively
with the aforesaid labor organization as the exclusive representative
of the employees in the foregoing appropriate unit, the Respondent
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) and (1) of the Act.
6. By coercively interrogating its employees concerning their union
activities, by threatening plant closing if a bargaining representative
is chosen by employees, and by promising benefits for voting against a
union, the Respondent has violated Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of the
Act.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Johnnie's Poultry
Co. and John Bishop Poultry Co., Successor, its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to recognize and bargain collectively with District
Union 99, Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, as the exclusive representative of all of its em-
ployees in the aforesaid appropriate unit with respect to rates of pay,
wages, hours of employment, and other terms and conditions of
employment.
(b) Coercively interrogating its employees concerning their union
adherence and activities, promising benefits for voting against union
representaton, and threatening plant closing if employees choose union
representation.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist District Union 99,
Amalgamated Meat Cutters & Butcher Workmen of North America,
AFL-CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from engaging in such activi-
ties, except to the extent that such right may be affected by an agree-,
ment requiring membership in a labor organization as authorized in
Section 8 (a) (3) of the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with District Union 99,
Amaglamated Meat Cutters & Butcher Workmen of North America,
AFL-CIO, as the exclusive representative of employees at Respond-
ent's plant in Perryville, Missouri, in the unit found appropriate
above, and embody any understanding reached in a signed contract.
(b) Post at its plant at Perryville, Missouri, copies of the attached
notice marked "Appendix." 11 Copies of said notice, to be furnished
by the Regional Director for the Fourteenth Region, shall, after being
duly signed by an authorized representative of the Respondent, be
posted by the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its employees are custom-
39 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order " the words "A
Decree of the United States Court of Appeals, Enforcing an Order."
JOHNNIE'S POULTRY CO. 779
arily posted. Reasonable steps shall be taken by the Respondent to in-
sure that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for the Fourteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
MEMBER LEEDOM concurring in part and dissenting in part :
I agree with the majority except for its conclusion that the Re-
spondent violated Section 8(a) (5) of the Act. On the basis of•a card
showing, the Union demanded recognition on December 6, 1962. Four
days later the Respondent refused to grant recognition on the ground
that it did not recognize the cards as a reliable indication of the em-
ployees' present desires. At the same time it filed an RM petition,
which was not processed because the Union filed charges. Some 2
weeks later the Respondent's attorneys interrogated-unlawfully as
we find-some 40 of the employees and in the course of this inter-
rogation learned that the cards signed by the employees were valid.
Nevertheless, the Respondent still failed to recognize the Union. From
all this, the majority concluded that the Respondent was not acting in
good faith when it refused to recognize the Union in early Decem-
ber. I cannot agree.
In the first place, I am unable to find that the Respondent refused
recognition in order to gain time to undermine the Union. The 'Re-
spondent engaged in no unlawful conduct until some 2 weeks after its
refusal, and such conduct, although interfering unlawfully with the
employees' rights, involved no denigration of the Union or union-
ization in general nor any threats or promises associated with union
activity by employees. Secondly, the majority's position, however
rationalized, involves imputing to the Respondent as of December 10
its attorneys' knowledge concerning validity of the cards gained around
December 27, after the 8 (a) (5) charge herein had been filed. Thirdly,
the Respondent, in rejecting the cards as an adequate basis for recogni-
tion, did not question the validity or authenticity of the cards, but
rather based its position on the fact that the previous year the Union
had lost a Board-conducted election despite having obtained cards
from a large majority of the employees. It is, therefore, apparent
that the determination by the attorneys that the cards were valid was
irrelevant with respect 'to the reason for Respondent's withholding
-recognition, and that reason was, I believe, sufficient to support a
good-faith doubt. Consequently, I would not find in these circum-
stances a violation of Section 8 (a) (5).
CHAIRMAN MCCULLOCH took no part in the consideration of the
-above Decision and.Order. _ _ _ _ - - . . _ - - _ _ - . ,
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify our employees
that :
WE WILL recognize and bargain collectively upon request with
District Union 99, Amalgamated Meat Cutters & Butcher Work-
men of North America, AFL-CIO, as the exclusive bargaining
representative of all our employees in the appropriate unit de-
scribed below with respect to wages, hours of employment, and
other terms and conditions of employment, and if an agreement is
reached, embody such understanding in a signed contract. The
appropriate unit is:
All production and maintenance employees, employed at
the Perryville plant, exclusive of office clerical employees,
guards, professional employees, and supervisors as defined in
the Act.
WE WILL NOT interfere with, restrain, or coerce our employees
in the exercise of their rights to engage in or to refrain from
engaging in union activities by coercively interrogating them
concerning their union activities, promising benefits if they vote
against the union, threatening plant closing if they vote for union
representation, or in any-like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights to
self-organization, to form labor organizations, to join or assist
the above-named or any other labor organization, to bargain col-
lectively through representatives- of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or mutual aid or protection, or to refrain from en-
gaging in any or all such activities, except to the extent that such.
rights may be affected by an agreement requiring membership
in a labor organization as a condition of employment in conform-
ity with Section 8 (a) (3) of the Act, as amended.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of any labor organization except to
the extent stated above.
JOHNNIE'S POULTRY CO. AND JOHN BISHOP
POULTRY CO., SUCCESSOR,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
JOHNNIE'S POULTRY CO. 781
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.
Employees may communicate directly with the Board's Regional
Office, 4459 Federal Building, 1520 Market Street, St. Louis, Missouri,
Telephone No. Main 1-8100, Extension 2142, if they have any ques-
tions concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges , as amended , duly filed by District Union 99, Amalgamated Meat
Cutters & Butcher Workmen of North America, AFL-CIO, herein called the Union,
the General Counsel of the National Labor Relations Board, through the Regional
Director for the Fourteenth Region , issued a complaint dated February 8, 1963,
against Johnnie's Poultry Co . and John Bishop Poultry Co., Successor , herein called
the Respondent or the Company , alleging violations of Section 8(a)(1) and (5)
of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151 et seq.)
herein called the Act. The answer of the Respondent admits certain allegations of
the complaint but denies the commission of any unfair labor practices.
Pursuant to notice a hearing was held before Trial Examiner Reeves R. Hilton
at Perryville, Missouri , on March 26 and 27, 1963 . All parties were present and
represented at the hearing and were afforded full opportunity to be heard, to
introduce relevant evidence , to present oral argument , and to file briefs. About
April 29, 1 received briefs from counsel for the General Counsel and the Respondent
which I have fully considered.
Upon consideration of the entire record and upon my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE COMPANY'S BUSINESS
The pleadings establish that prior to January ' 1, 1963, John Bishop was engaged
in business under the trade name and style of Johnnie 's Poultry Co. Around January
1, 1963, this company was incorporated under the laws of the State of Missouri as
John Bishop Poultry Co. On and after that date the corporation acquired title
to the physical assets, goodwill, accounts receivable, and all other assets of Johnnie's
Poultry Co. and has continued to maintain substantially the same business operations
formerly performed by Johnnie 's Poultry Co., with substantially the same employees
and supervisors.
At all times material herein , the Respondent has maintained its principal office
and place of business in Perryville, Missouri , where it is engaged in the business of
processing and nonretail selling of poultry and related products. In the course of
its business the Respondent annually ships products valued in excess of $50,000 from
its plant to customers in States other than the State of Missouri.
I find the Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
If. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization as defined in Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The issues presented are: (1 ) whether the Company in the period from about
August to December 1962, interrogated , threatened , and coerced its employees by
certain acts on the part of its officials and supervisors and by interviews conducted
by its attorneys in violation of Section 8(a)(1) of the Act, and ( 2) whether the
Company refused to bargain collectively with the Union on and after December 7,
1962, in violation of Section 8(a)(5) of the Act.
B. Organizational efforts and the election in 1961
Billy F. Edwards , vice president of the Union , testified he conducted a campaign
among the employees in the fall of 1961 , and succeeded in obtaining about 55 signed
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorization cards out of a "possible" 68 employees who were working at that
time. Thereafter, on October 27, the Board conducted an election among the pro-
duction and maintenance employees and of the 68 valid ballots counted , 41 were
cast against the Union and 27 in favor of the Union.
C. Summary of events in 1962
Edwards renewed his organizational activities on September 20, at which time
he solicited employees to sign authorization cards and held meetings on November
19 and 29, and December 13.
On December 6, the Union sent a letter to the Company stating it represented a
majority of its employees , as evidenced by approximately 50 enclosed photostats of
signed authorization cards, and requested recognition as the bargaining representative
for the Company's employees .' The letter concluded with a request that a negotiat-
ing meeting be held sometime between December 10 and 14. The Company concedes
it received the letter and enclosures on December 7.
On December 6, the Union also filed the original charge in this case, alleging the
discharge of one employee in violation of Section 8(a)(3) and (1) of the Act.
On December 10, the Company wrote the Union that it did not regard the photo-
stats "as a reliable indication of the present desires of our employees," so the Company
was filing a petition for an election with the Board 's Regional Office.
The parties stipulated the Company filed a petition on December 10, Case No. 14-
RM-245, wherein it was alleged that the Union was claiming recognition as the rep-
resentative of 96 employees in a unit described as: All production and maintenance
employees , excluding office clerical employees , guards, professional employees, and
supervisors as defined in the Act.
On December 12, the Union filed an amended charge alleging Section 8 (a)(1),
( 3), and ( 5) violations.
On January 24, 1963, the Regional Director dismissed the Company's petition be-
cause of the pending unfair labor practice charges.
On February 1, 1963, the Union filed a second amended charge eliminating the
alleged violation of Section 8 (a) (3).
As stated above, the complaint issued on February 8, 1963.
D. Alleged acts of interference , restraint, and coercion
Robert W. Haynes was employed by the Company from about January 15, 1962,
to March 22 , 1963 , when he voluntarily quit his employment . He signed a union
authorization card, apparently about October 10. Haynes , whose wife also worked
for the Company, stated that in the last week of August, he asked John Bishop
for a loan of $50 and Bishop told him to come to the office the next day, Saturday,
which he did. Bishop , after making the loan , said the Union would try to organize
the plant but he could not afford to pay union wages and would shut down rather
than have the Union in the plant . Bishop remarked he had helped Haynes and his
wife by giving them jobs and lending them money and, if the Union tried to get in
the plant , "you know how to vote ." Haynes said, "we'd see," and , apparently, that
ended the conversation . Admittedly, there were no organizational activities at the
plant at that time.
Bishop recalled the occasion he loaned Haynes $50 , but his recollection was hazy
as to their conversation concerning the Union, except that he denied that he told
Haynes the plant would close down if the Union organized the employees. Bishop
said he may have had a friendly talk with Haynes along the line that he had been
good to Haynes and Haynes would know how to vote in the event the Union tried
to organize the plant.
Grover Bowers was employed by the Company for about 4 years and signed a
union card which is dated September 24. Sometime after the November 19 meeting,
Mrs. Bishop called Bowers to the office to inquire if his mother still wanted 'a job at
the plant and he told her no, that his mother was working elsewhere. Mrs. Bishop
then asked if he was "one of our No. 1 men" and when Bowers inquired what she
meant, Mrs. Bishop replied "on the union part." Bowers said he was in favor of the
Union, and when asked the reason , he answered , because he did not like the way things
were being run, that he and another employee were doing all the work. ( Bowers
was hanging chickens.) Mrs. Bishop then stated they could not afford the Union and
1 Prior to December 6, Edwards secured written permission from the employees to use
their authorization cards in connection with the Union 's demand for recognition . ( General
Counsel's Exhibits Nos. 3-A and 3-B.)
JOHNNIE'S POULTRY CO. 783
if the Union came in they would have to close down the plant, it would run them out
of business. As Bowers recalled, John Bishop, Doyle Cathy, and Leo Bishop were
present during the conversation.
Mrs. Bishop, who was employed as a secretary, stated she had known Bowers for
3 or 4 years and in the latter part of November she called Bowers to the office for
the purpose of discussing the employment of his mother. When Bowers arrived
at the office he stood in the doorway and Mrs. Bishop remarked she had called him
in to give a "bawling out." Apparently, this remark caused Bowers to look "funny,"
so Mrs. Bishop said she was "just kidding," and told Bowers to sit down, which he did.
Mrs. Bishop then queried if he was "still my buddy" and Bowers answered, that if she
was referring to the Union, he had voted against the Union in the election of 1961.
However, he added, he had signed a union card in 1962, but had not yet decided
how he was going to vote. Mrs. Bishop said that was his privilege and further
inquired why he was so unhappy. Bowers complained that he and another em-
ployee were doing all the work on his particular operation. After some discussion
on that point, Mrs. Bishop stated she called in Bowers to talk about employing his
mother, in line with his request for her employment. Bowers said his mother was
not interested in a job since she was presently employed . Mrs. Bishop denied that
she told Bowers that the plant would close down if the Union came in, or that
the Union would force the Company to go out of business, or that she asked the
reason for his signing a union card.
John Bishop, Doyle Cathy, plant superintendent, and Betty Cathy, secretary, stated
they were present in the office throughout the foregoing conversation and testified
substantially the same as Mrs. Bishop.
Billy Cook was first employed September 6, 1962, worked under Foreman Earl
Schnurbusch, and signed a union card about October 29. Cook testified that on the
morning of December 19, Schnurbusch came to his work station and Cook, who was
wearing a union button, asked if they were going to work the next day, which was
Saturday. Schnurbusch said he could not talk to the "union people" and told Cook
if he did not take off his union button "You are liable to lose your job." Cook asked
Schnurbusch if he "was going to fire me," and he answered, "No, not necessarily,"
adding the Company could not afford to have the Union in the plant.
Schnurbusch denied having any such conversation with Cook. Schnurbusch
admitted he saw some of the employees wearing union buttons, but he had no clear
recollection whether Cook did, or did not, wear such a button.
The Interviews of Employees
In substance the complaint alleges that about December 27, Attorneys Kuelthau
and Moller interviewed some 40 employees at the plant, each of whom had signed
authorization cards, and in the course thereof inquired as to the circumstances under
which the card was signed, whether the employee understood the meaning of the card
and whether the Union had disclosed the amount of dues and initiation fees Fur-
ther, the employees were questioned concerning the circumstances under which they
signed the Union's petition authorizing the Union to use their authorization cards
(General Counsel's Exhibits Nos. 3-A and B ), as well as the nature of the document,
and interrogated employees as to what they might have told agents of the Board.
The answer denies the foregoing allegations and affirmatively asserts the inter-
views were conducted in connection with the Union's demand for recognition on the
basis of authorization cards and for the purpose of investigating pending charges
of unfair labor practices against the Company.
Cook stated that on December 27 he was sent to a small office where he was
interviewed by Moller. Cook related Moller introduced himself as attorney for the
Company and that he was not there to take away any of Cook's rights. Moller then
showed him a photostat of his authorization card and Cook admitted he had signed
the card. In answer to Moller's questions, Cook said he signed the card for Edwards
outside the plant and Edwards did nothing to make him sign the card. Moller fur-
ther inquired if the Bishops or any foreman had ever said anything to him regard-
ing the Union and he related the above-mentioned conversation he had had with
Schnurbusch. Obviously, Moller asked if Cook had given a statement to a Board
agent, for Cook testified Moller asked if he would also give him a statement, and he
signed a statement prepared by Moller. Admittedly, Moller did not request a copy
of Cook's statement given to the Board agent nor did he ask Cook to obtain a copy
of the statement for him.
Richard Duvall was interviewed by Moller and the interview opened in the same
manner described by Cook, except that Moller stated he had the right to vote for or
744-6 70-65-v of 146-51
784 DUCISIONS OF NATIONAL LABOR RELATIONS BOARD
against the Union . Duvall identified his signature on an authorization card, which
he said he signed for Edwards at the home of his father -in-law. Moller also asked
if he knew the amount of initiation fees and dues and he replied in the affirmative.
Again , when asked if he believed his signing the card indicated he was voting for
the Union , Duvall replied it was his understanding the Union had to have a certain
percentage of signed cards in order to obtain an election.
When Moller asked if any supervisor had spoken to him about the Union , Duvall
related the following incident . On December 19, after working hours, two women
became involved in an argument and a fight which, seemingly , started inside the
plant and wound up outside the plant where Doyle Cathy and Schnurbusch broke
up the affair . Immediately after the fight, Cathy and Schnurbusch asked Duvall
what caused the affair and he explained that Mabel Davenport had been calling
everyone who wore a union button a "s .o.b." and Lula Statler who was wearing a
button "wouldn 't take it." Cathy thereupon inquired who gave them permission to
wear the buttons and Duvall said Edwards . Cathy said it was all right to wear
them and thereafter Duvall and other employees wore the buttons . Moller asked
Duvall if he had given a statement of this incident to a representative of the Board
and he replied that he had done so . Moller then requested Duvall to repeat his
statement , but he refused to do so and Moller made no further mention of the-matter.
Mary D. Shrum was interviewed by Kuelthau in the course of which she told him
she had voluntarily signed an authorization card and the document permitting the
Union to use her card , that dues and initiation fees had not been explained to her
and when Edwards signed her up he stated the card was for the purpose of obtaining
an election or whatever was necessary to get the Union into the plant. Shrum, after
refreshing her memory from a statement she had given to the Board, said Kuelthau
asked where union meetings were held and she told him different places. On cross-
examination , she stated this matter arose in connection with the place where she
signed the document permitting the use of her authorization card.
Haynes was interviewed by Kuelthau who first inquired if any foreman had
spoken to him about the Union and he answered no. However , Haynes explained
the circumstances under which he received the $50 loan from Bishop . In response
to questions , Haynes said he told Kuelthau he had signed an authorization card,
the circumstances under which he had signed , and that he understood the meaning
of the card . Kuelthau also asked if he had talked to anyone from the Board and he
said no. While Haynes had spoken to a Board agent about a week earlier, he
apparently overlooked the matter as he was in a hurry to get back to work.
Kuelthau testified that shortly before Christmas 1962 , he had a conversation with
James R. King, field examiner assigned to investigate the charges filed herein, who
indicated there was merit to the Section 8(a)(1) and ( 5) allegations and the matter
might be resolved by posting a notice and agreeing to bargain with the Union.
Kuelthau said he would consider the matter , but wanted to conduct a further
investigation and they would discuss the subject when King returned after the
Christmas holiday.
On December 27, Kuelthau and Moller went to the plant for the purpose of inter-
viewing all the employees who had signed authorization cards, some 50 in number,
as claimed by the Union in its letter of December 6 to the Comany, and accompany-
ing photostatic copies of the cards . Kuelthau and Moller each interviewed 20 em-
ployees, all that were available that day, and the interviews were conducted in
small, separate rooms which were normally used by inspectors.
In substance , the interviews were conducted as follows: Kuelthau and Moller
informed each employee that he was an attorney representing the Company and
that - he was investigating a charge which the Union had filed against the Company;
he was not attempting to interfere with the employee 's rights; and the law protected
his right to join or not to join the Union and the Company intended to respect that
right. The employee was then asked to identify his signature on the photostat card,
to describe the circumstances under which he signed the same, and whether there
was any discussion concerning initiation fees and dues or if he understood the Union
had waived payment of these items. Moller said he asked the employee if he
understood the meaning of his card . Kuelthau stated he may have made similar
inquiry of some employees but he was not interested in the employee 's understanding
of his card.
Kuelthau and Moller had heard the employees had signed some kind of a petition
or paper for the Union , but they did not see any such document until the opening day
of the hearing when it was offered and received in evidence . (General Counsel's
Exhibits Nos. 3-A and B .) Both Kuelthau and Moller inquired of the employees
if they had signed such a paper and the circumstances under which they had signed.
Kuelthau stated the employees gave varying descriptions of the document, some
saying that they just signed a blank piece of paper.
JOHNNIE'S POULTRY CO. 785
Both Kuelthau and Moller asked the employees if the Bishops or any supervisors
had discussed the Union with them. In answer to this question, Duvall told Moller
of the fight between the two women and Cook related his conversation with Schnur-
busch regarding his wearing a union button. After relating these incidents, Moller
asked Duvall and Cook if they had given a statement along this line to a Board agent
and each stated that he had. Kuelthau said that after Haynes informed him of the
$50 loan from Bishop, he inquired if Haynes had reported this incident to a Board
agent and he answered no. Kuelthau stated the same situation may have occurred
in respect to another employee who mentioned some talk with a supervisor about
the Union. Other than these instances, Kuelthau and Moller did not question any
employees as to whether they may have given statements to a representative of the
Board.
E. The refusal to bargain
In the course of the union campaign, running from about September 20 to De-
cember 6, Edwards solicited many of the employees to sign up for the Union, which
waived the payment of initiation fees for those who did so during the drive, and
by the latter date Edwards had obtained signed authorization cards from 55
employees. The parties stipulated that on December 6, the Union sent a letter to
the Company requesting recognition for "your employees," and submitted photo-
stats of 49 signed authorization cards. Edwards testified the Union had six additional
cards which it did not submit to the Company because these employees had refused
to grant permission to use their cards for this purpose.
The complaint alleges as an appropriate unit: All production and maintenance
employees employed at the Perryville plant , exclusive of office clerical emloyees,
guards, professional employees , and supervisors as defined in the Act.
The answer admits the appropriateness of the unit. The unit is the same unit
described in the RM petition and, apparently, the parties agreed upon the same unit
in the consent election held on October 27, 1961.
The parties stipulated that as of December 7, the Company had 98 employees in
the unit, as evidenced by the Company's payroll list as of that date. The Company
claims that all of the employees on the list, except one alleged supervisor , should be
included in the unit? On the other hand , the General Counsel contends that a group
of five full-time college students and six over-the-road drivers should be excluded
from the unit.
Bishop received the Union's request for recognition and the accompanying photo-
stats of authorization cards on December 7 and , after conferring with his attorneys,
decided that the Company should file a petition for an election for the reasons that
(1) while the Union had signed up a majority of the employees in the fall of 1961,
it lost the consent election by a large margin , and (2 ) a few of the employees had
indicated to Bishop that when they signed union cards in 1962 , they believed the
purpose thereof was to obtain an election . As stated above , the Company's RM
petition was filed on December 10, and dismissed on January 24, 1963.
Concluding Findings
As to Acts of Interference , Restraint , and Coercion
In an attempt to prove union animus, the General Counsel relies upon three sep-
arate and unrelated incidents of alleged threats and interrogation, one of which
occurred long before the Union renewed its organizational efforts, the second one dur-
ing the course of the organization drive, and the third one subsequent to the Union's
request for representation. I fail to see how these acts, granting they occurred in
the manner described by the General Counsel's witnesses, prove the Company was
hostile to the Union or that it engaged in any campaign designed to prevent or thwart
the organization of its employees . It strikes me that if the Company had engaged
2 John Bishop stated that LeRoy Kiefer , the alleged supervisor , was employed as "a
lead man" In the receiving area along with eight other employees . Apparently Kiefer's
principal job was to weigh condemned or dead chickens brought to the plant and to keep
records of the weights . For this job he is paid 10 cents an hour more than the production
employees . Bishop claimed Kiefer could recommend an employee for discharge and related
one instance when he spoke to Kiefer about discharging a man but the decision to fire
him was made by Bishop and the foreman. While Bishop said Kiefer directed the work of
other employees he did not mention in what manner or under what circumstances he
directed their work. Kiefer signed a union authorization card. I find the evidence in-
adequate to support a finding that he was employed as a supervisor as defined in the Act.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOAEJ)
in any serious campaign against the organization of some 98 employees the General
Counsel , who exhibited much diligence in handling this matter , would have come
up with evidence of ^a far more substantial nature than that adduced at the bearing.
Considering the testimony on this phase of the case, I find as follows.
In the latter part of August , Bishop , after lending Haynes $50 , stated he could not
afford to pay union wages and if the Union came into the plant he would have to shut
down . Bishop also reminded Haynes that he had been good to him and Haynes
would know how to vote in any election . I question whether Bishop's statement to
shut down the plant was coercive since it was predicated upon his inability to meet
the union wage scale. In any event , the Union was not engaging in organizational
activities at that time , so I cannot see how this conversation has any evidentiary
value in determining the Company 's position toward organization when it com-
menced a month or so later.
The next incident did not take place until the latter part of November, when
Bowers had a conversation with Mrs. Bishop in the Company 's office. It is un-
disputed Mrs. Bishop called Bowers to the office for the purpose of offering employ-
ment to his mother , that the subject was discussed , and Bowers informed Mrs.
Bishop his mother was not interested in a job at that time . I -am also convinced
Bowers was in a bad mood when he entered the office because he expressed dis-
satisfaction with the manner in which his department was being run since he and
another employee were doing all the work, while other employees were apparently
loafing. According to Bowers , Mrs. Bishop inquired if he was the Company's leading
man "on the union part ," and when he said he favored the Union , Mr's. Bishop re-
marked they could not afford the Union , that they would have to close down if it
came in . Mrs. Bishop 's account of the affair was that she asked Bowers if he
was still her "buddy" and he replied if she was referring to the Union, he voted
against it in 1961 , and that he had recently signed a union card but was undecided
how he would vote in the election this time. Mrs. Bishop said that was his privilege
and the subject was dropped . Mrs. Bishop 's testimony was corroborated by
three other witnesses . Bowers did not favorably impress me while testifying, so
I credit the testimony of Mrs. Bishop and find she did not make the statement
attributable to her.
The last incident occurred on December 19, when Cook claimed Schnurbusch
told him if he did not remove his union button he was liable to be fired. When
Cook inquired if Schnurbusch was going to fire him Schnurbusch replied, "No,
not necessarily," and added the Company could not afford to have the Union in the
plant. Schnurbusch denied having any such conversation with Cook. Of all the
employees at the plant , and the Union had 49 signed up prior to December 19, Cook
was the only one who was supposedly threatened for wearing a union button.
Indeed, Duvall , a witness for the General Counsel , and Cook's brother-in-law,
testified that on the same date Cathy said it was all right to wear union buttons
and he and other employees did wear them at the plant . Duvall's testimony com-
pletely negates the idea the Company was opposed to employees wearing buttons or
that it had any rule or practice prohibiting the wearing thereof. I have no difficulty
in finding Schnurbusch did not threaten Cook in the manner asserted by Cook.
In view of the paucity of testimony indicating any unlawful conduct of the Com-
pany, either before or after the Union 's demand for recognition , the General Counsel
relies primarily upon the interviews conducted by company attorneys to support
his contention that the Company filed its petition in order to gain time within which
to undermine the majority status of the Union . The General Counsel devotes much
time to this point in his brief, but I am not persuaded by his arguments for the
reason that the evidence does not support his position . The General Counsel
concedes Kuelthau and Moller did not threaten or intimidate the employees during
the interviews . However, he argues that the manner in which the interviews were
conducted indicated Kuelthau and Moller were not merely investigating the pending
charge but were seeking to coerce the employees in the exercise of their rights
guaranteed under the Act.
The Board has long recognized that an employer, or his attorney , is privileged
to interview employees for the purpose of discovering facts within the limits of the
issues raised by the complaint for the purpose of preparing his case for trial,
provided the interview does not extend beyond the necessities of such preparation
and pry into matters of union membership and activity.3
3 May Department Stores Company, a Corporation, d/b/a Famous-Barr Company, 70
NLRB 94, 95, The Babcock and Wilcom Company, 114 NLRB 1465, 1475-1476.
JOHNNIE'S POULTRY CO. 787
Here, Kuelthau, as a result of his conversation with Field Examiner King, had
reason to believe that the General Counsel would issue a complaint unless 1the
Company agreed to post a notice and to bargain collectively with the Union, which
plainly presupposed recognition of the Union as the exclusive representative of the
Company's employees. Kuelthau and Moller then decided to interview the em-
ployees, which was certainly proper, and they did so on December 27. There is no
serious conflict in the testimony concerning the manner in which the interviews
were conducted, except Kuelthau and Moller testified in greater detail, and I accept
their accounts of the interviews as more accurate than the versions presented by
the four witnesses called by the General Counsel. At the outset of their interviews
Kuelthau and Moller informed the employees of their right under the law to join
or not to join the Union.
Unquestionably, Kuelthau and Moller asked the employees to identify their
signatures on the authorization cards, the circumstances under which they had signed,
and if they had ever signed a petition or a paper of some kind for the Union. As
the Union was seeking recognition as the exclusive representative of the employees
it was, of course, under an obligation to establish that "it had been designated by
an uncoerced majority of the employees." 4 Since the Union elected to prove its
uncoerced majority status through authorization cards furnished the Company it
cannot now complain that the Company, through its attorneys, engaged in unlawful
conduct by merely questioning the employees with the object of determining the
authenticity of their signatures and if they had signed the cards freely, without any
threats or coercion. In view of the questions of representation involved, I fail to
see how the interviews can be considered improper.
The General Counsel contends that by asking the employees "whether they had
given certain evidence to agents" of the Board, the attorneys violated Section 8(a) (1)
of the Act, citing Texas Industries, Inc., et al., 139 NLRB 365, and Hilton Credit
Corporation, 137 NLRB 56. In those cases the Board held that an employer's
demand for copies of a statement given to a Board agent by an employee, or inter-
rogating him about the contents of such statement, constituted an interference with
the employee's rights under Section 7, in violation of Section 8(a)(1). The facts
in those cases were far stronger and more compelling than the facts in this case.
Here, there is no evidence Kuelthau or Moller ever made any such demands upon
any of the employees. Thus, Duvall, when asked by Moller if he would repeat his
statement given to a representative, absolutely refused to do so, and the matter was
immediately dropped.
On all the evidence I find the interviews were confined to matters well within the
scope of the amended charge and the complaint and were neither illegal nor coercive.
As to the Refusal To Bargain Collectively
It is well settled that to substantiate a violation of Section 8(a)(5) of the Act the
General Counsel has the statutory burden of proving that the employer has refused
to bargain in good faith with the representative selected by a majority of his em-
ployees in an appropriate unit, and that there has been both a demand and a refusal
to bargain.5 If there is a failure of proof in any one of these conditions no violation
has been proven.6
Here the refusal to bargain is bottomed on the Company's action of December 7,
in refusing to grant the Union's request for recognition as the representative of
"your employees" on the basis of 49 photostatic copies of authorization cards signed
by its employees. By thus resorting to the unusual procedure of voluntarily revealing
the names of employees who signed cards (with their written permission), it is
obvious the Union was attempting to secure recognition without the formality of
an election. Undoubtedly, this technique was prompted by the fact that the Union
had lost the consent election held on October 27, 1961, by a substantial vote, although
it had obtained signed authorization cards from a vast majority of the employees.
But, apart from these considerations, the Act requires an employer to bargain only
concerning employees in an appropriate unit.? In its letter of December 6, the
Union, whether by design or oversight, merely requested recognition by the Company
as the representative of "your employees." While the letter may have been sufficient
4 Charles F. Reichert and Charles F. Reichert , 3rd, Co -partners d/b/a Charles F.
Reichert, 124 NLRB 28, 29.
Barney's Supercenter, Inc, 128 NLRB 1325, 1342-1343, enfd. 296 F. 2d 91 (C.A 3).
e Charles F. Reichert, etc., supra.
7 Twenty-sixth Annual Report of the National Labor Relations Board, p. 108.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to indicate the Union's desire to bargain, it cannot be said that the Union furnished
the Company with a reasonably accurate description of the appropriate unit for
which it was claiming recognition . Certainly , a unit of "your employees" would
not justify the finding and conclusion that the Company, as of December 7, unlaw-
fully refused to bargain with the Union in a unit appropriate for the purpose of
collective bargaining . Of course , the General Counsel attempted to correct this
defect by alleging the usual production and maintenance unit in the complaint issued
on February 8. However , he was still not satisfied with the unit for at the hearing
he contended , for the first time, that five college students and six over-the-road
truckdrivers, none of whom had signed union cards, should be excluded from the
unit. Thus, despite the uncertainty exhibited by the Union and the General Counsel
regarding the appropriate unit, the General Counsel contends that the Company, on
and after December 7, refused to bargain with the Union in an appropriate unit.
In my opinion the evidence does not warrant any such finding.
But assuming the Union 's original unit description of all employees was adequate,
still the General Counsel failed to prove a refusal to bargain on December 7, for
the record evidence shows that on that date the Company had 98 employees and
the Union had 49 signed authorization cards, therefore the Union did not establish
its majority status at that time. The General Counsel seeks to overcome the Union's
lack of majority by arguing that it had six additional cards which should be included,
even though these cards were not submitted to the Company. In the circumstances
herein, I find no merit in this argument.
In essence , the General Counsel argues that the Company 's attorneys should have
known that college students and over-the-road truckdrivers, in line with Board
decisions , should be excluded from the unit . This argument ignores the fact that
the Union gave no indication they should be excluded therefrom. Obviously, this
is a convenient method to place the responsibility of resolving a unit problem upon
the Company, and to establish a card majority for the Union. I reject the idea that
an employer must bear such responsibility and that he acts at his peril if he does
not happen to come up with the same unit determination as the General Counsel.
Considering the unit question as of now, rather than December 7, I agree that
college students who work only during summer vacation or intermittently during
the school term, as distinguished from students employed as regular part-time
employees , will ordinarily be excluded from a bargaining unit if either the employer
or the union objects to their inclusion in the unit .8 The record shows that all the
students , except James Kiefer, worked during the summer of 1962. Subsequent to this
period, the record discloses: Terry Carron worked about 3 hours on December 20;
James Kiefer did not work from April 20 until December 28, when he worked
through January 4, 1963, for a total of some 47 hours; Larry Brown worked from
December 26 to January 4, for a total of 55 hours; Van Vance worked 5 days in
November putting in 23 hours, and from December 26 to January 4, for a total of
50 hours; and James Vance worked 3 days in November putting in 12 hours, and
from December 26 to January 4, for a total of 62 hours. It is clear the students
were employed as casuals rather than regular part-time employees so, upon request
of the Union, they should be excluded from any unit.9
The six truckdrivers work under Cathy, plant superintendent, and haul the Com-
pany's products to customers in various cities including Detroit , Chicago, and
Kansas City . The drivers are paid on a trip basis. In addition to their driving duties,
these men work in the packing department as hourly paid employees , two of them
performing this type of work up to 50 hours a month and the remaining four up to
10 hours per month . Four of the drivers formerly worked in the plant and were
transferred to driving jobs. In the past the Company has also transferred drivers
to the plant when it needed additional help. The drivers were eligible to vote, and
did vote, in the election of October 27, 1961.
The General Counsel would exclude the truckdrivers for reasons stated in the
Koester case.'i In that case the union sought a unit consisting of production , sanita-
tion, and inside maintenance employees at the employer 's Baltimore bakery, excluding
truckdrivers and other groups, which the employer would include. The employer
had three truckdrivers who transported its products from the plant to distribution
centers and spent most of their time away from the plant. The Board found the
interests of truckdrivers were dissimilar to those of the production and maintenance
employees and excluded them from the unit for the following reasons: (1) the
absence of any bargaining history; (2) the drivers were functionally engaged in
s G. C. Murphy Company, 128 NLRB 908.
e Scoa, Inc, 140 NLRB 1379.
10 E. H Koester Bakery Co , Inc., 136 NLRB 1006.
JOHNNIE'S POULTRY CO. 789
transportation rather than production; (3) their hours and working conditions were
different from those of plant employees; (4) they had little if any contact with the
bakery employees; and (5) there was no interchange between plant employees and
truckdrivers.
Applying the foregoing criteria to the present facts, the truckdrivers may be
properly included in the unit. While there is no history of collective bargaining
in this case, the truckdrivers were eligible to vote in the election and there is no
evidence indicating any change in their work duties since that date. Further, the
truckdrivers at times actually work as plant employees so they have a community
of interest with the production workers insofar as hours, wages, and working condi-
tions are concerned, and there is some interchange between plant employees and
truckdrivers. Under the circumstances, I find the truckdrivers should be included
in the unit.
As a consequence of the foregoing discussion and findings, the best that can be said
of the General Counsel's proposed unit is that the five college students should be
excluded therefrom. This leaves 93 employees in the unit and since the Union had
49 authorization cards it comes out with a paper majority of 2 cards.
However, I do not see how the Company's RM petition can be deemed as curing
or remedying the unit questions in this case, which is, seemingly, the position of the
General Counsel. First, there is no evidence the Union accepted the unit set forth in
the RM petition, or that it made any demand for bargaining regarding this unit
subsequent to the filing of the petition. Indeed, there were no meetings or communi-
cations whatever between the parties, other than the Union's letter of December 6
and the Company's response of December 10. Secondly, the record plainly demon-
strates that the General Counsel has not proceeded on the theory that the unit alleged
in the Company's petition was appropriate for the purpose of collective bargaining.
Since the General Counsel failed to establish an appropriate unit in connection
with the request to bargain, I find the Company did not refuse to bargain with the
Union in violation of Section 8(a) (5) of the Act.
But, assuming the Union's request for recognition described an appropriate unit,
the result would be the same for the Company was under no obligation to accept the
authorization cards as conclusive proof of the Union's majority status. It is now well
settled that an employer may refuse to rely upon evidence of the union's representa-
tion and insist that the union establish its majority status by means of a Board-
conducted election." However, this rule does not apply where the employer's in-
sistence is motivated, not by a good-faith doubt as to the union's majority status, "but
rather by a rejection of the collective-bargaining principle, or to gain time within
which to undermine the union." 12 The question of whether an employer is acting
in good or bad faith at the time of the refusal to bargain is one which must be deter-
mined in the light of all relevant facts in the case, including unlawful conduct of the
employer, the sequence of events, and the time lapse between the refusal and the un-
lawful conduct.13 The Board has also recognized there is no rule which will obviate
the necessity of "a discriminating analysis and appraisal of all the relevant evidence
before making a good- or bad-faith determination." 14
Here the Company promptly acknowledged the Union's request for recognition and
filed a timely petition in order to resolve the question of representation. This action,
in my opinion, demonstrates the Company entertained a good-faith doubt regarding
the Union's majority status and that it desired to settle the question by means of a
Board-conducted election. Again, the fact that the Union had failed to establish
its earlier claim to representation, by losing an election a little more than a year
before, strengthens the Company's position that it was acting in good faith in seeking
to have the second claim of majority representation resolved through election pro-
cedures rather than by a display of authorization cards. Moreover, the Board has
held that an employer's questioning of a union's majority status was not in good faith
when the employer, despite the alleged doubt, failed to file its own petition for a
Board election, although fully aware of the availability of such procedure.15 Nor
is there any evidence remotely suggesting that the Company's request for an election
was prompted by hostility to unionization of its employees, or opposition to bargain-
11 Glenn Koennecke d/b/a Sunset Lumber Products , 113 NLRB 1172; KTRH Broadcast-
ing Company, 113 NLRB 125
12 Joy Silk sIls, Inc, 85 NLRB 1263, enfd 185 F. 2d 732 (CA.D.C.), cert. denied 341
U S. 914; Arts & Crafts Distributors, Inc., 132 NLRB 166, 169.
13 Joy Silk Hills, supra, 185 F. 2d 732, 742.
14 Emma Gilbert et al, d/b/a A. L Gilbert Company, 110 NLRB 2067, 2069-2070.
15 Shelly & Anderson Furniture Mfg. Co., Inc, 130 NLRB 744, 746 ; Southwest ern Whole-
sale Grocery Company, 92 NLRB 1485 , 1498; Tooleraft Corporation, 92 NLRB 655, 656.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing with the Union, or to gain time within which to dissipate the Union 's majority
status. Of course , the absence of contemporaneous unfair labor practices on the
part of an employer, as in this case, while an important factor in determining motiva-
tion, does not necessarily establish the employer 's good faith in questioning the union's
majority status. Thus , in the Groh case, the Board held that the absence of unfair
labor practices did not preclude a finding of bad faith where the employer's decision
to question the union 's majority was not timely and there was evidence that he
rejected the collective-bargaining principle . 16 It is equally clear that bad faith may be
not imputed to an employer on the ground that he has committed an unfair labor
practice , and nothing more.17 Considering the course of action followed by the
Company, plus the absence of any evidence indicating unlawful conduct on the part
of the Company , or its rejection of the collective -bargaining principle , I am con-
vinced the Company's refusal to bargain with the Union was motivated by its good-
faith doubt concerning its majority status.
I therefore find the Company did not refuse to bargain with the Union on and after
December 7, 1962, in violation of Section 8(a) (5) of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record, I make
the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent occur in commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent has not engaged in unfair labor :practices as alleged in the com-
plaint within the meaning of Section 8(a) (5) and (1) of the Act.
RECOMMENDATION
Upon the basis of the foregoing findings of fact and conclusions of law, I recom-
mend that the complaint be dismissed.
16 George Groh and Sons , 141 NLRB 931.
17 Sunset Lumber and KTRH cases , supra.
Southeastern Regional ILGWU Health and Welfare Fund and
Clarice P. Day
International Ladies' Garment Workers' Union and Clarice P.
Day. Cases Nos. 10-CA-5354 and 10-CB-1410. April 13,196!1,
DECISION AND ORDER
On January 10, 1964, Trial Examiner Ivar H. Peterson issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had not engaged in any unfair labor practices as alleged in the
complaint and recommending that the complaint be dismissed in its
entirety. Thereafter, General Counsel filed exceptions to the Decision
and supporting briefs and Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
146 NLRB No. 97.