Mccarty Processors, Inc And Mccarty Farms, Inc

National Labor Relations Board - Board Decisions

Jan 17, 1989

292 N.L.R.B. 359 (N.L.R.B. 1989)

MCCARTY PROCESSORS
McCarty Processors , Inc and McCarty Farms, Inc
and United Food and Commercial Workers
International Union, AFL-CIO-CLC and its
Agent, Local Union No 1529 Case 15-CA-
10481 and 15-RD-607
January 17, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, CRACRAFT, AND
HIGGINS
On June 30, 1988, Administrative Law Judge
Hutton S Brandon issued the attached decision
The Respondent filed exceptions and a supporting
brief, and the General Counsel and the Union filed
reply briefs
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adopt the recommended Order
as modified
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, McCarty Processors, Inc and McCarty
i The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
The judge made the following inadvertent errors in his decision he
interchanged Objection 6 for Objection 14 in the first paragraph of sec
II B 5 a and Objection 2 for Objection 4 in the first paragraph of sec
II B 6 a We also note that the judge failed to decide whether to the
extent Objection 13 is based on the alleged threats attributed to Assistant
Superintendent Martin the objection was established We find it unneces
sary to pass on this matter because we adopt the judge s findings that Ob
jection 13 was established on the basis of remarks made by other supervi
sors
The judge made the following errors in his Conclusions of Law he
included Objections 2 and 14 among the meritorious objections and he
omitted findings that the Respondent violated Sec 8 (a)(1) by threatening
plant closure and plant removal and by soliciting employees to campaign
against the Union Accordingly we have modified the judge s recom
mended Order to reflect these changes
To conform the judge s remedy to his findings and Order we adopt his
remedy except we shall not order that all the proceedings held in con
nection with the decertification petition should be vacated Instead we
shall order that only the results of the November 19 1987 election are to
be vacated
2 In the absence of exceptions we adopt the judge s recommended dis
missal of the allegation that Assistant Superintendent Billy Martin unlaw
fully interrogated Arcell Smith on November 17 1987
Member Cracraft does not rely on Sunnyvale Medical Clinic 277
NLRB 1217 ( 1985) in adopting the judges conclusion that the Respond
ent did not violate Sec 8(a)(1) in interrogating Smith on November 17
1987
359
Farms, Inc, Jackson, Mississippi, its officers,
agents , successors , and assigns , shall take the action
set forth in the Order as modified
1 Insert the following as paragraph 1(e) and re-
letter the subsequent paragraph
"(e) Threatening employees with plant closure
and plant removal because of their representation
by the Union "
2 Substitute the attached notice for that of the
administrative law judge
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representa
tives of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT promise or grant wage or other
benefit increases to employees to dissuade them
from supporting United Food and Commercial
Workers International Union, AFL-CIO-CLC and
its agent, Local Union No 1529, or any other labor
organization
WE WILL NOT threaten employees with the futili-
ty of representation by the above named or any
other labor organization
WE WILL NOT discourage support for the above
named Union or any other labor organization by
informing employees that wage increases were
withheld from them in the past because of their
union representation
WE WILL NOT threaten our employees with un
specified reprisals or permit abusive conduct
toward them by other employees because of their
union support
WE WILL NOT unilaterally grant increases in
wages and benefits to our bargaining unit employ-
ees without notice to or bargaining with the above
named Union
WE WILL NOT solicit employees to campaign
against the above named or any other labor organs
zation
292 NLRB No 50
360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL recognize and, on request, bargain
with United Food and Commercial Workers Inter-
national Union, AFL-CIO-CLC and its agent,
Local Union No 1529, as the duly designated rep
resentative of a majority of our employees in the
following unit appropriate for the purposes of col
lective bargaining
All production and maintenance employees, in-
cluding truck drivers, driver salesmen and the
shipping and receiving clerks employed at our
238 Wilmington Street, Jackson, Mississippi fa-
cility, excluding, all office clerical employees,
professional employees, salesmen, buyers,
watchmen and guards and supervisors as de
fined in the Act
WE WILL, on request, embody in a signed agree
ment any understanding reached with the Union
MCCARTY PROCESSORS , INC AND
MCCARTY FARMS, INC
Clement J Kennington Esq for the General Counsel
Andrew C Partee Jr Esq (Partee Waldrop Monte and
Evans) of New Orleans Louisiana for the Respond
ent
Roger K Doolittle Esq, of Jackson, Mississippi for the
Charging Party
DECISION
STATEMENT OF THE CASE
HUTTON S BRANDON, Administrative Law Judge
These cases were heard at Jackson Mississippi on 13
through 15 April 1988 The charge in Case 15-CA-
10481 was filed by United Food and Commercial Work
ers International Union AFL-CIO-CLC and its agent
Local Union No 1529 (the Unions) on 8 December
19871 and amended on 12 January 1988 The original
complaint issued on 15 January and was amended on 1
April 1988 and at the hearing here The primary issues
are whether McCarty Processors Inc and McCarty
Farms, Inc (Respondent McCarty and Respondent
McCarty Farms respectively and collectively called Re
spondent) (a) unlawfully interrogated and threatened em
ployees and promised them wages and benefits in viola
tion of Section 8(a)(1) of the National Labor Relations
Act (the Act) (b) unilaterally granted employees an in
crease in wages and benefits during a time when the re
suits of a decertification election and the Union s loss of
majority status was in issue thereby violating Section
8(a)(5) and (1) of the Act and (c) whether, if Respond
ent in fact committed the unfair labor practices alleged
they are sufficient to preclude the likelihood of a fair
rerun election and warrant the entry of a remedial bar
gaining order
The petition in Case 15-RD-607 was filed by Flossie
N Hawkins on 21 October 1986 An election was held
on 13 March with the Union receiving the numerical ma
jonty of the valid ballots cast Timely objections to the
election filed by Respondent were overruled in a report
on objections issued by the Regional Director for Region
15 on 23 April However, following the filing of excep
tions by Respondent, the National Labor Relations
Board (the Board), sustaining one of the Respondent s
objections having to do with a union dues waiver during
the Union campaign issued a Decision and Direction of
Second Election dated 13 October 2 Pursuant to the
Board s direction a second election was held on 19 No
vember This time the Union failed to receive a majority
of the ballots cast but filed timely objections to the elec
tion The Regional Director issued a second report on
objections and an order directing hearing on objections
dated 30 December specifying the existence of issues re
garding the Union s Objections 2, 4, 6, 13 14, 15, and 19
Noting that the cases involved the same parties and
issues the Regional Director on 15 January 1988 issued
an order consolidating Cases 15-RD-607 with 15-CA-
10481 for hearing
On the entire record including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel, Respondent, and the
Union I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent McCarty and Respondent McCarty Farms
are affiliated corporations with offices and a place of
business located at 238 Wilmington Street, Jackson Mis
sissippi where they are engaged in the business of proc
essing and selling poultry products From the Wilming
ton Street facility Respondent in the course of its bust
ness operations during the 12 month period preceding is
suance of the complaint sold and shipped products
valued in excess of $50 000 directly to customers located
outside the State of Mississippi During the same period
Respondent purchased and received in its Jackson facili
ty goods and materials valued in excess of $50 000 direct
ly from points located outside the State of Mississippi
The complaint alleges Respondent admits and I find
that Respondent is an employer within the meaning of
Section 2(2) of the Act engaged in commerce within the
meaning of Section 2(6) and (7) of the Act The com
plaint further alleges Respondent by its answer admits
and I also find that the Union is, and has been at all ma
terial times a labor organization within the meaning of
Section 2(5) of the Act
All dates are in 1987 unless otherwise stated 2 The Board s decision is reported at 286 NLRB 703
MCCARTY PROCESSORS 361
iI THE ALLEGED UNFAIR LABOR PRACTICES
A Background
The parties are in agreement that the Unions prede
cessor United Packing House Food and Outside Work
ers, AFL-CIO was certified as the collective bargaining
representative of employees in a unit of production and
maintenance employees3 of Respondents predecessor
State Poultry Company Inc in September 1968 There
after the Unions predecessor and Respondents prede
cessor negotiated successive collective bargaining agree
ments covering unit employees through 1975 although
both the Union and Respondents predecessor went
through name changes during the period The parties
further agreed that the Union has had successive collec
tive bargaining agreements with Respondent under Re
spondent s current name since 1975 with the most recent
agreement being effective from 1 January 1984 through
31 December 1986 The last wage increase for unit em
ployees provided under that agreement was given on 1
January 1986
Despite the filing of the petition in Case 15-RD-607 in
October 1986 the Union and Respondent began negotia
tions on a new bargaining agreement in December 1986
Two negotiating meetings were held in that month one
in January 1987, and the last on 12 February The nego
tiations were not successful Following the election on 13
March, and despite a vote of 338 to 195 in favor of rep
resentation by the Union in a unit of approximately 568
eligible voters Respondent refused to recognize the
Union4 and contested the election by filing objections
As already noted Respondents objection to the election
based on the contention that the Union s promise not to
collect membership dues during the election campaign
provided the employees with a substantial benefit inter
fering with the election was sustained by the Board The
rerun election held on 19 November resulted in a vote of
335 against and 251 for representation in a unit of ap
proximately 630 eligible voters As also previously noted
the Unions Objections 2 4 13 14 15 and 19 to the
rerun election are largely coextensive with the unfair
labor practices alleged in Case 15-CA-10481 and are the
subjects of this proceeding A remaining objection
number 6 presented issues of fact and was alsoconsoli
dated for hearing with the unfair labor practice case 5
3 The precise unit description alleged in the complaint and admitted by
Respondent to be an appropriate one for collective bargaining purposes
is
All production and maintenance employees including truck drivers
driver salesmen and shipping and receiving clerks employed by Re
spondent at its 238 Wilmington Street Jackson Mississippi facility
excluding all office clerical employees professional employees sales
men buyers watchmen and guards and supervisors as defined in the
Act
4 The Union through counsel by letter dated 29 April following the
Regional Directors Report on Respondents Objections to the Election
finding the objections to be without merit requested dates for negotia
tions from Respondents counsel The record does not indicate a re
sponse to the request but Respondent does not deny that it refused to
recognize the Union following the 13 March election
5 The Union withdrew its remaining objections specifically objections
1 3 5 7-12 and 16-18
Respondent admitted as the complaint alleged that on
the day following the rerun election it unilaterally grant
ed the unit employees a 20 cent per hour wage increase,
and that on 1 January 1988 it granted them an additional
20 cent per hour increase As the complaint further al
leged and Respondent also admitted on 3 January 1988
Respondent also unilaterally increased benefits of its unit
employees by providing them with attendance bonuses
employment anniversary bonuses additional life insur
ance and short term disability benefits
Despite the results of the 19 November election and
following the filing of its objections, the Union again
through letter of counsel dated 17 December to Re
spondent s counsel requested dates for the purposes of
negotiations, and further requested that the letter be
considered as a continuing request to meet and bargain
regarding the contract covering the unit employees Re
spondent does not contest its refusal to meet with the
Union and contends that the Union lacked majority
status as shown by the rerun election
Most of Respondents alleged unlawful conduct took
place within the 2 week period preceding the rerun elec
tion Evidence regarding Respondents conduct will be
described and analyzed below under the name of the in
dividual supervisor of Respondents to whom the unlaw
ful conduct was attributed
B Conduct and Statements Attributed to Supervisors
1 Ron Marble
a The allegations and the evidence
Ron Marble was at material times employed by Re
spondent as its plant manager at the Wilmington Street
facility, although he was not responsible for the debon
ing section of the plant which employs almost half the
unit employees Marble was active as a management rep
resentative in relations with the Union and estimated in
his testimony that he had assisted on behalf of Respond
ent in negotiating about four prior contacts with the
Union
The complaint as amended alleged that on or about
12 November Marble threatened an employee with plant
closure if the Union won the scheduled 19 November
election and on or about 19 November threatened an em
ployee that a strike would be inevitable if the Union won
the election The plant closure allegation is coextensive
with the Union s objection 15 The General Counsel
relied on the testimony of employee Pamela D Winston
to establish these allegations
Winston testified that on 18 November Billy Howing
ton prepack and packing supervisor had Winston re
lieved from her position on the production line and told
her that Marble wanted to talk to her Winston proceed
ed to an open spot in the plant a short distance away
where Marble awaited her There according to Win
ston s testimony Marble
6 Respondent admitted in its answer to the complaint and the com
plaint amendments that those individuals alleged as supervisors were at
material times supervisors within the meaning of Sec 2(11) of the Act
362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
told me that we didn't need a union . . . and he
told me that if I voted the Union back in there that
they was going, uh, close McCarty down . . . they
was going to put a padlock on it , and he told me
that I was going to be replaced by someone else
. . . that's if we gotten it back in there, by me being
a union member , you know, he said that my job
would be replaced by someone else.
On cross-examination Winston conceded that Marble's
reference to her replacement was in the context of the
occurrence of a strike and that if she did not want to
work somebody else would come in there and do the
job.
Marble conceded the fact of a conversation with Win-
ston as well as the general circumstances of the conver-
sation although he did not recall the date. Marble related
that he told Winston that the Company in negotiations
earlier in the year with the Union had offered a 10-cent-
per-hour wage increase whereas the Union was demand-
ing a $ 1.50-per-hour increase . He pointed out that the
Union 's demand was unreasonable , that Respondent
would not be able to meet that , that the Union had paint-
ed itself into a corner , that the ultimate weapon of the
Union would be a strike, and that if people honored the
strike Respondent had the lawful right to hire replace-
ments. Marble further related that he assured Winston
that the plant would run "chickens " and he would be
there, and he specifically denied stating that if the Union
was voted back in he would put a padlock on the door.
The complaint also alleges that Marble during Novem-
ber orally promised employees increases in wages if they
voted against the Union in the election and orally threat-
ened an employee by telling the employee that Respond-
ent was "not going to put up with another union in the
plant." These allegations are coextensive with the Union
Objections 4 and 19. In support of these allegations the
General Counsel produced the testimony of Jimmie Lee
Cleveland, an employee in the packing department.
Cleveland testified that on 18 November right after
lunch Marble got her off the line and talked to her tell-
ing her that the Union was talking about striking and
that he wanted her to know that if the Union struck and
she. went out with them she could easily be replaced but
that if she wanted to stay in and work her job would be
guaranteed to her . She further testified that he told her
to vote the Union out and said that "he was not going to
put up with nar another union in the plant because he
was tired of being pushed around by the Union." Cleve-
land repeated this testimony almost verbatim on cross-ex-
amination . Marble in his testimony did not address the
remarks specifically attributed to him by Cleveland and
did not deny having had any conversation with her.
b. Conclusion
Even if fully credited Winston's testimony fails to es-
tablish that Marble threatened that if the Union were
elected a strike would be inevitable . And while Marble
conceded that in remarks to Winston that he referred to
a strike and the probable replacement of employees,
these references failed to amount to a threat that a strike
was inevitable . His expression of a belief that the Union
may have "painted itself in a corner " on its demands for
a $1.50-per-hour increase, a demand widely publicized to
employees by the Union, and the ultimate consequence
of that demand amounted to no more than an expression
of an opinion protected under Section 8(c) of the Act.
Accordingly, I find the General Counsel has not proved
that Marble threatened the inevitability of a strike and
shall recommend that this allegation of the complaint be
dismissed.
Winston's testimony, on the other hand, if believed,
would establish Marble did threaten plant closure in the
event the Union won the election. Marble's denial of the
attribution requires a credibility determination between
the two. I was impressed by Winston's sincerity and be-
lieve she made an effort to tell the truth as she recalled
it. In contrast Marble must be rated as less sincere. His
coyness and evasiveness . in responding to the General
Counsel 's questions concerning Respondent 's campaign
in opposition to the Union served to undermine his ve-
racity. He refused to concede that Respondent engaged
in a "campaign" against the Union in the election when
the entire record and Marble 's admitted conduct demon-
strates that Respondent was anything but neutral in the
matter. Nevertheless , a threat of plant closure is incon-
sistent with Marble's reference to the strike and the re-
placement of strikers in the same conversation . Obvious-
ly, an independent determination to close the plant
simply as a result of the Union's election would eliminate
a strike or strike consequences as a concern to be dis-
cussed with employees. Further, although Marble dis-
cussed strike consequences with Cleveland as set forth
above, she attributed no threat of plant closure to him
and on the contrary, related he told her if she came to
work during the strike her job would be guaranteed. I,
therefore, find improbable, under all the circumstances, a
threat of plant closure by Marble and conclude that Win-
ston 's testimony on the point is inaccurate and unreliable
and do not credit her on this point. I, therefore, conclude
the General Counsel has failed to establish this allegation
of the complaint. Moreover, I find no support for Objec-
tion 15 flowing from the foregoing evidence.
Marble did not respond to the testimony of Cleveland
and left such testimony uncontradicted. Most of Cleve-
land's testimony regarding unlawful conduct or remarks
by other supervisors was likewise undenied. Cleveland
appeared to testify in an honest manner and in demeanor
provided no basis for doubting either the truthfulness of
her testimony or its accuracy. She did not, however, nor
did any other witness attribute to Marble any promise of
a wage increase if the Union were voted out. Although
Marble had admittedly instructed supervisors to tell em-
ployees that they would receive the benefits received by
employees of Respondent's other plants if they rejected
the Union, and although Marble conceded he talked to
over 200 employees on the union matter , there remains
no direct evidence that Marble himself told employees
they would get a wage increase if the Union was reject-
ed. Accordingly, this allegation of the complaint must be
dismissed, and, thus it provides no support for the
Union's Objection 19. However, it must be found, and I
so find, that Marble did threaten as the complaint alleges
MCCARTY PROCESSORS 363
that he said he was tired of being pushed around and
was not going to put up with nar another union in the
plant The clear implication of this remark was that Re
spondent would not tolerate reelection of the Union and
that the Union s election would be a useless act By Mar
ble s remark in this regard I find Respondent violated
Section 8(a)(1) of the Act as alleged Respondents con
duct in this regard substantiates the claim in the Union s
Objection 4 to the election that Respondent created the
impression of futility of selecting the Union Accordingly
merit is found to this objection which must be sustained
2 Billy Howington7
Prepack and Packing Supervisor Billy Howington was
the subject of a number of complaint allegations all relat
ed to either a promise to employees of a wage increase if
they rejected the Union or a threat that back dues to the
Union totaling $160 or more would be deducted from
employees pay if the Union was elected to represent
them The alleged promise of benefits is coextensive with
the Union s Objection 19
Five employee witnesses testified regarding these alle
gations without contradiction from Howington who
failed to testify Thus, Bobbie Claiborne, a packing de
partment employee who was a member of the Union and
who had previously served as a steward, testified that
during the week before the election Howington, her su
pervisor, called her a few feet aside from her work pose
tion and asked her if she wanted a 20 cent raise and
quickly explained that if she voted the Union out she
would get a 20 cent raise then and another 20 cent raise
in January Moreover he told her if she voted the Union
in she would have to pay back time' union dues which
would be $100 out of her check Claiborne made no re
sponse other then to ask Howington if the dues would be
taken out at one time, and after Howington s affirmative
answer she remarked that she did not want that Clai
borne testified she had never been informed that the
Union would require payment of back dues On the con
trary the record reflects the Union had distributed litera
ture to employees dated 13 November stating that no
members owed dues for the period of time following the
expiration of the old contract on 1 January The litera
ture further explained that the Union s policy was that
no members had an obligation to pay dues for any period
of time they were not covered by a contract
Winston previously identified above, testified regard
ing a similar conversation with Howington She related
that Howington talked to her on 16 November stating
that they didn t need a union, that if the Union were
voted out everybody would be treated the same, that
when the Union was voted out employees would get a
20 cent raise the first of December and another one on 1
January 1988 and that she would get a $15 bonus on her
birthday Howington added that if the Union got back in
employee members would have to pay back dues
amounting to $150, and Respondent would take it out of
paychecks the Friday following the election Finally he
told Winston to vote no and get the Union out of there
cause they didn t need it Winston reported that she
afterward observed Howington calling other employees
off the line and talking to them that same day
Howington also talked to packing department employ
ee Cleveland Cleveland testified that on 17 November
Howington talked to her on her production line and dis
played to her a memo dated 29 October from John R
McCarty, president of McCarty Farms, and directed to
employees of McCarty Foods, an organization affiliated
with Respondent The memo announced and listed an in
crease in employee benefits to be implemented on 3 Jan
uary 1988 Inserted at the bottom of the list was the
handprinted statement Remember You could have this
if you were a part of the McCarty Family The list rep
resented improvements in vacations attendance bonuses,
life insurance, and short term disability It is undisputed
that the improvements were applicable to McCarty
Foods employees employed at other plants and were not
then applicable to bargaining unit employees Cleveland
testified that Howington asked her if she thought the
Union could get her all those things She replied
equivocally saying she depended on the Lord rather
than the Union, and Howington left her without saying
more
On 19 November, according to the testimony of pack
ing department employee Sallie Blount Howington her
direct supervisor tapped her on the shoulder as she was
going to the voting area and told her to vote for her
raise She further testified that she overheard Howing
ton make the same remarks to two fellow employees,
Willie Etta Lee8 and Geraldine Palmer
The testimony of Clairborne, Winston, Lee Cleveland
and Blount was reasonable and mutually corroborative to
the extent of showing a pattern in the conduct and re
marks of Howington in efforts to dissuade employees
from union support I find such testimony credible par
ticularly in the absence of contradiction Further, the re
marks attributed to Howington are consistent with those
attributed to other supervisors relating to the promise of
raises as discussed infra Accordingly I find Howington
made the marks claimed by these witnesses
Howington s remarks to Claiborne and Winston ap
peared to be a clear unlawful promise of benefits to em
ployees if the Union were voted out The display of the
McCarty Foods announcement with the handprinted
portion at the bottom of the announcement likewise car
reed the clear implication of the promise of benefits as
does Howington's remark to Blount and Lee to vote for
The General Counsel moved in his brief to correct the spelling of
Howington s name wherein it now appears in the transcript as Hailing
ton Because the spelling sought by the Motion appears to be consistent
with that in documents and pleadings received in evidence the motion is
granted The General Counsels further motion to also correct the tran
script spelling of the names Maricell Sparks McLean Lovett and Burn
ham wherever they presently appear as Mancel Spark McClain Loveit
and Burnen is likewise granted
8 Lee in her testimony for the General Counsel confirmed that How
ington told her to vote for her 20-cent raise as she was going in to vote
However she said Howington had whispered this in her ear She also
confirmed that Howington had spoken in the same manner to Geraldine
Palmer Palmer did not testify Whether Blount is credited as having
overheard Howington s remark to Lee it is clear based on Lee s credible
and uncontradicted testimony that Howington did ask Lee to vote for
her raise It is also reasonable to infer in the absence of contradiction
and I so infer he made a similar remark to Palmer
364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
their raises. As related infra Howington was not the only
supervisor to make such statements to employees.
Indeed, Marble testified that he instructed all supervisors
to tell employees these benefits would be granted them if
the Union was voted out.
Respondent's defense regarding the promise of benefits
is based on its claim that Howington was only truthfully
advising employees that the benefits granted to McCarty
Foods employees who were unrepresented by a union
would be extended to the unit employees in the absence
of union representation. Respondent asserts that its cus-
tomary practice was to ensure that benefit changes were
uniformly extended to all of its employees. In support of
this proposition Respondent produced evidence to show
that twice during the time of the last bargaining agree-
ment with the Union the agreement was reopened for ne-
gotiations, and wages of unit employees were made con-
sistent with those granted to nonunit employees in Re-
spondent's other plants. Further, the wage rates at all
Respondent's plants have been the same since 1976, ac-
cording to the testimony of John Lott, Respondent's di-
rector of administrative services. Other benefits for em-
ployees were generally the same except that bargaining
unit employees had an additional holiday for a period of
time until the additional holiday was ultimately granted
to all unit employees. Finally, Lott testified that benefits
were determined by top management following recom-
mendations from Lott based on a study of industry sur-
veys.
Despite Respondent's prior practice it is clear from
Respondent's own evidence that Respondent granted the
nonunit employees a 20-cent-per-hour increase in early
January. That increase was not extended to unit employ-
ees who, at the time of the November election, had not
had a wage increase since January 1986. Moreover, there
was no evidence that Respondent had ever sought agree-
ment or acquiescence from the Union to extend the Janu-
ary 1987 nonunit increase to unit employees. Indeed, un-
contradicted record evidence reveals that in negotiations
with the Union on a unit employee wage increase prior
to the first election in March, Respondent had only of-
fered a 10-cent-per-hour increase.
Based on these facts it appears that the promise of an
immediate 20-cent-per-hour increase to unit employees,
followed by another one a month later and coupled with
other promised benefit improvements constituted a pow-
erful inducement to employees who had had no increases
for almost 2 years to reject the Union. It is well estab-
lished that an employer's promising of increased wages
or benefits in order to dissuade employees from support-
ing a union is violative of Section 8(a)(1) of the Act.
Churchill Supermarkets, 285 NLRB 138 (1987); United
Electrical, 279 NLRB 208 (1986); Angelica Corp., 276
NLRB 617 (1985); Management Training Corp., 261
NLRB 131 (1982); U.S. Industries, 247 NLRB 361 (1980).
On the other hand, as Respondent's brief points out,
quoting from Globe Shopping City, 203 NLRB 177, 181
(1973), "Section 8(c) grants to an employer the right in a
manner and setting free from coercion to compare bene-
fits presently in effect in his unorganized operation with
those enjoyed by employees in a similar operation which
has union representation."9 And an employer during a
union election campaign may point out those employee
benefits which it has by custom or practice uniformly ex-
tended to unrepresented employees or is otherwise natu-
rally or obviously available to them. See Noral Color
Corp., 276 NLRB 567, 570, 575 (1985). However, an em-
ployer exceeds the bounds of Section 8(c) when it goes
beyond a comparison of benefits between represented
and unrepresented employees and makes a specific prom-
ise of benefits, not warranted by a past practice or
custom, conditioned on rejection of union representation.
Here Respondent, I conclude, did just that through
Howington's promises and those like it by other supervi-
sors discussed infra.
Respondent's defense that Howington's promises were
justified by its prior practice of uniformly extending the
same benefits to employees in all its plants is not persua-
sive here. This is because Respondent, regardless of what
had transpired in earlier years, withheld from bargaining
unit employees those benefits it had extended to employ-
ees in its unrepresented plant in January 1987. Although
a withholding might be understandable and legitimate
during the period of negotiating with the Union it must
be recalled that there is absolutely no evidence that Re-
spondent at any time offered the Union those benefits in-
stituted for unrepresented employees. In this regard this
case is distinguishable from the situation in Noral Color
Corp., supra. There no violation was found in an employ-
er's pointing out to its employees that a stock option plan
which had been previously rejected by the Union was
available to employees outside the represented unit. Be-
cause the Union had rejected the stock option plan, the
employees would not likely perceive the employer's ob-
servations regarding the availability of the plan to non-
unit employees as a promise of a benefit which they
could not have received while represented by the Union.
A different situation prevails here. Respondent had in
effect withheld from the Union and the unit employees
those benefits long since granted to unrepresented em-
ployees while at the same time promising unit employees
that these benefits would be extended to them only if
they rejected representation. Respondent's failure to
offer the Union the nonunit benefits effectively destroys
its past practice defense. In sum , Respondent through
Howington clearly pointed out to unit employees that it
was willing to do more for them if they were unrepre-
sented. Angelica Corp., supra. See also Dow Chemical Co.,
250 NLRB 748, 754 (1980), enf. denied 660 F.2d 637 (5th
Cir. 1981). Accordingly, I conclude as the complaint al-
leges that Respondent through Howington in this in-
stance, violated Section 8(a)(1) of the Act by promising
benefits to employees to induce them to reject the Union.
Based on this evidence I also find and conclude the
Union's Objection 19 to the election has merit and must
be sustained.
Sec. 8(c) of the Act provides that:
The expressing of any views , arguments , or opinion , or the dis-
semination thereof, whether in written, printed , graphic, or visual
form, shall not constitute or be evidence of an unfair labor practice
under any of the provisions of this Act, if such expression contains
no threat of reprisal or force or promise of benefit.
MCCARTY PROCESSORS 365
With respect to the threat of cumulative back dues ob
ligations and deductions Respondent in its arguments
again relies on the truth Thus Respondent argues that
despite statements and leaflets distributed by the Union
to employees prior to the March and November election,
advising employees that there would be no back dues
during the time employees were without a contract, the
Union nevertheless continued throughout 1987 to send
monthly dues bills to Respondent listing the dues obliga
tions of each unit employee on checkoff authorization
Under these circumstances as well as the Board s deci
sion on the objections to the first election Respondent as
serts it was entitled to truthfully advise employees that
their back dues were continuing to accumulate and that
they would be deducted and forwarded to the Union if it
won the election Howington s remarks to the employees
regarding the back dues, according to Respondent was
therefore accurate, truthful and in keeping with Re
spondent s posting of copies of the dues deduction lists in
the employee lunchroom prior to the election That the
back dues were suspended only and not waived was
shown, Respondent argues by the Union s continued dis
patch of the monthly dues bills to Respondent
As already noted, the Board found merit to Respond
ent s objection to the first election on the basis that the
Union s waiver of back dues constituted an improper
grant of substantial benefits which interfered with the
election The Union s actions before the second election
regarding the waiver of back dues appears to be a con
tinuation of the same position advanced before the first
election However, this time the Union made clear to
employees in the leaflet dated 13 November if it had not
previously made it clear that the dues were being
waived rather than postponed and announced that it had
always been the Union s policy not to collect dues from
members for any period of time they are not covered
by a contract Moreover Elijah Lovett vice president
of the local union in testimony here reaffirmed that
policy and practice He further explained that the billings
on dues had continued to be forwarded to Respondent
on a monthly basis due to the Union s failure to commit
nicate with the clerical responsible for forwarding the
billings
It is clear that the Union in the 13 November leaflet
did not condition a waiver of dues on the outcome of the
election as was the case in Loubella Extendables 206
NLRB 183 (1973) where the waiver of dues was found
to be objectionable Nor was the waiver of dues in the
instant case dependent on the support of the Union
before the election the situation found objectionable in
Equitable Construction Co 266 NLRB 668 (1983)
Indeed, the waiver here was not even dependant upon an
individuals voting in the election However whether the
Union s waiver of accrued dues in this case constituted
improper conduct which impacted on the November
election the issue of the legality of Howington s
threats regarding dues arrearages must be considered
in the context of the Board s ruling on the Union s dues
waiver during the March election campaign The Board
found such waiver objectionable indicating the Union
could not thereafter waive accrued dues without again
engaging in objectionable conduct To be sure based on
Board Member Cracraft s concurring opinion the Board
in its decision did not have the evidence present here of
the Union s past practice or policy of routinely waiving
dues during periods when member employees were
working without a contract Whether this factor alone
would have made a difference in the result is problemati
cal because only Member Cracraft noted the factor The
fact remains that it was not unreasonable for Respondent
to view the Board decision on the objections as establish
ing the law on the dues waiver issue extant between the
parties, and that there was therefore a continuing liability
for back dues on the part of employee members Accord
ingly, and particularly in view of the Union s continued
submission of dues bills to Respondent Respondent was
entitled to advise employee members that dues were con
tinuing to accrue and would at the time of the election
approach the amount mentioned by Howington to the
employees 10
Under these circumstances I find that the Respondent
did not violate Section 8(a)(1) of the Act by warning em
ployees concerning the deduction of dues arrearages if
the Union were elected
3 John McLean
a The evidence
The complaint alleges that McLean a swing supervi
sor under Second Processing Superintendent Bill Martin,
was involved in four instances of unlawful promises of
increased wages and benefits if employees rejected the
Union two instances of threats to employees indicating
the futility of selecting the Union and one instance of an
unlawful threat of a lump sum deduction of accrued dues
if the Union was elected A total of seven employees tes
tified in support of the complaint allegations regarding
McLean
Charlie Mae Boone an 11 year employee of Respond
ent who worked under Supervisor Howington related
that she had a conversation with McLean around 2 p in
on 10 November McLean had sent a relief person to her
job and took Boone to a room near her work area which
she referred to as the electrical room There she and
McLean talked alone for about 15 minutes regarding the
Union According to Boone McLean told her McCarty
wanted the Union out of the plant and said it had al
ready cost the employees about $900 in backpay He
went on to state that if they got the Union out of the
plant Boone would be given a 20 cent raise as soon as
the Union was voted out and 20 cents at the first of the
new year He thereafter showed her a list of benefits the
food plants were receiving the list being those benefits
announced on 29 October applicable to Foods Wage
Employees McLean told Boone that she would be re
ceiving the same benefits by not having a union
Similarly Mary Ann Miller an employee in Respond
ent s cut up department and a union steward testified
10 Although it is unclear from the record whether dues accrued over a
period of time were deducted as a lump sum the evidence presented in
the prior objections case and noted by the Board revealed that employees
on leaves for illness or any other reason were charged in full for dues
arrearage when they returned to work
366 DECIS]ONS OF THE NATIONAL LABOR RELATIONS BOARD
that on 16 November she had a conversation with
McLean who took her to a small room near the ice-
house. McLean referred to the list of benefits enjoyed by
Respondent's nonunit employees and told Miller that she
would receive those benefits if the Union was voted out
and that she would get two 20-cent raises. Likewise,
Willie Etta Lee, also a union steward who worked in the
packing department, testified that on 16 November,
McLean took her a short distance from her work station
and talked to her alone. He said that they had to get the
Union out and explained that the Union had bribed the
employees when the Union won the last election. He
showed her a paper that contained a list of contract pro-
posals put out by the Union and setting forth Respond-
ent's "no" response to the proposals. According to Lee,
McLean said that the Respondent had said no to all the
proposals and they would continue to say no. He added
that Respondent would never say yes to anything on that
paper. He went on to advise Lee that if they voted the
Union out they would get a 20-cent raise then and a 20-
cent raise in January. Lee also testified that on 19 No-
vember just outside the polling area as she was going to
vote McLean told her vote against the Union if she
wanted a raise.
Arcell Smith, another union steward and long-time
employee of Respondent, related in her testimony that
she had a conversation with McLean and his superior,
Bill Martin, on 17 November in a small room near her
work area which she referred to as the control room.
After remarking that they did not need a union he stated
that if "ya'll vote the Union a lot of peoples going to
lose their job." When Smith inquired why McLean re-
plied that if the employees went out on strike they
would be replaced. Further in the conversation McLean
stated that if they got rid of the Union, Respondent
would give the employees a 20-cent raise then and 20-
cent per hour at the first of the year. He reminded Smith
regarding the importance of the right decision about get-
ting the Union out and said he guaranteed her that she
would get the rates mentioned bv_ him because McCarty
had written a letter about it.
Employee Cleveland attributed similar remarks to
McLean on 18 November. McLean took her off her line
and took her to a corner of the work area where he
showed her a paper with the Union's proposals on it.
This was the same list of proposals prepared by the
Union for bargaining and reflecting the Company's re-
sponse to each proposal as "no." According to Cleve-
land, McLean said that all that "stuff was just another
union lie ." He said the Company had said no and was
going to keep on saying no, and that they were not
going to give the Union anything. This remark provides
the basis for the complaint allegation that McLean
threatened employees that it would always reject the
union bargaining request, thereby indicating a futility of
employee selection of the Union. McLean in a second
conversation with Cleveland the same morning stated if
employees voted the Union out on 19 November, they
would get a 20-cent raise then and another one the first
of the year. McLean also asked Cleveland if she was
aware of all the names that were posted on the walls in
the breakroom. When she replied negatively McLean ex-
plained that those were the names of people who owed
"back union dues" and that each one of those names
owed at least $160 back dues all of which would be
taken out of their paychecks at one time. McLean said
the Union had sent the list of names to the Respondent
and added that Respondent had appealed the first elec-
tion in order to give employees a chance to vote the
Union out because the Union had been lying to the em-
ployees about the back dues.
Like Cleveland, Winston testified that McLean talked
to her on 17 November in what she called a supply room
where he had called her aside. In a discussion centered
on the fact that the employees did not need the Union,
McLean had stated, according to Winston, that Respond-
ent wanted the Union out of there and cautioned Win-
ston not to believe the papers that the Union had sent
the employees through the mail. He had also stated that
Respondent was always going to say "no" to the Union.
McLean did not testify and the employee testimony set
forth above remains uncontradicted. Although these em-
ployees had previously been union members and could
be expected to be partisan there is no reasonable basis for
rejecting any aspect of their testimony regarding
McLean. Such testimony was mutually corroborative.
Accordingly, I credit them and find that McLean made
the remarks attributed to him. On the reasoning set out
above I find Respondent through McLean unlawfully
promised increased wages and benefits to the employees
if they voted against the Union and blamed past with-
holding of wages on union representation. I further find
that he told employees to vote against the Union if they
wanted to obtain wage increases. I also find that
McLean, as alleged, indicated the futility of union repre-
sentation by stating that Respondent would continue to
say no to union bargaining requests. In these respects Re-
spondent violated Section 8(a)(1) of the Act through
McLean's remarks.
On the other hand, consistent with the conclusions
reached supra, I find McLean did not violate Section
8(a)(1) of the Act by advising employees of their contin-
ued dues obligation and an anticipated lump sum deduc-
tion of back dues. As earlier noted, the Board's decision
in the prior objections case lent itself to the clear inter-
pretation that the Union could not waive dues without
conferring on employees benefits which would interfere
with the election. And a lump sum deduction of dues
would appear to be in keeping with past practice of the
Union, charging employees in full for dues accrued
during leaves for illnesses and other reasons. According-
ly, I find no violation of Section 8(a)(1) in this regard.
In light of the findings regarding McLean I find merit
to the Union Objection 4 to the election to the effect
that the Respondent created the impression of futility of
selecting the Union. Similarly, the promise of increased
wages and benefits found to have been made above fur-
ther substantiate Objection 19 that Respondent promised
employees benefits if they voted against the Union. Ac-
cordingly, further merit is found to this objection.
MCCARTY PROCESSORS 367
4 Billy Martin
a The evidence
Billy Martin was employed by Respondent at material
times as the assistant superintendent, second processing,
who reported directly to Plant Manager Marble Ac
cording to the complaint allegations , Martin promised
employees wage increases if they voted against the
Union, threatened employees with the inevitability of
strikes and the loss of jobs if the Union continued as the
employee collective bargaining representative, interrogat
ed employees concerning their union desire, and solicited
employees to persuade other employees to vote against
the Union These allegations are coextensive with the
Union Objection 2 complaining of Respondent's interro
gation of employees concerning their union membership,
Objection 13 complaining of threats to employees be
cause of their membership in the Union, and Objection
19 involving improper promises of benefits
The General Counsel relied on two witnesses to estab
lish the allegations regarding Martin, employees Arcell
Smith and Vernell Jones Smith testified that Martin
called her to a place she called the control room on 17
November to talk to her about the Union He stated that
they had too many good people in the plant to keep the
Union and lose their jobs, because if employees voted
the Union in a lot of people gonna lose their jobs
When Smith inquired why, Martin explained that if the
employees struck and went out they couldn t come back
in you 11 be replaced or fired When Smith replied
that the Union had not said anything about a strike
Martin responded that that is the only weapon the Union
had to threaten the Company with and McCarty was
not going to give in to a strike He went on to state that
if the employees got rid of the Union they would get a
20 cent per hour increase and 20 cents at the first of the
year and he guaranteed it Martin noted that Smith was a
union steward and asked her if she was going to the
union meeting Smith, recalling that a flyer had been dis
tributed announcing the union meeting the night before
the election replied that she probably would attend He
told her to tell employees that they could guarantee that
they would get a 20 cent raise then and a 20 cent raise at
the first of the year Smith remarked that she could not
make up the people s mind for them, that they made up
their own mind to which Martin replied that stewards
nevertheless had a lot of influence over the people and
she could tell them
It appears that Martin followed a similar course with
Vernell Jones another union steward who testified that
in the afternoon of 17 November Martin talked to her in
what she described as the electrical room about 50 feet
away from her work station He asked her to vote the
Union out and to tell the people to vote the Union out
He asked her if she had seen the letter being circulated
that reported benefits that employees would get if they
voted the Union out He said employees would not get
one penny if the Union was voted in and told her that
employees would get 20 cents the next day after they
voted the Union out and 20 cents the first of the year
He referred to a list of proposals the Union had made in
negotiations and stated that the Union was not going to
get all of that, but that employees would get the other
benefits announced by Respondent if they voted the
Union out He repeatedly asked Jones as a steward to
talk to employees to ask them to vote the Union out be
cause people would listen to her Jones declined saying
she was not going to tell them which way to vote
According to Jones Martin again called for her on 18
November and talked to her in the same place This time
he displayed to her a list of benefits that he had referred
to in their meeting the day before He said he wanted
her to make sure that she understood that if they voted
the Union out that they would get the benefits at that
time He again asked her to vote no and tell the people
to vote no, because if they voted the Union out they
would get all those benefits but if the Union stayed in
they would not
b Conclusion
Martin did not testify and therefore the testimony of
Smith and Jones is not contradicted Both testified in a
straightforward and credible manner I find their testimo
ny reliable and credit it Based upon their testimony I
find that Martin did promise wage increases if employees
voted against the Union as alleged in the complaint
Consistent with my earlier findings regarding such a
promise I find the promise violated Section 8(a)(1) of the
Act The Board has long held that a solicitation by an
employer of an employee to campaign against a union
violates Section 8(a)(1) of the Act See General Motors
Corp, 234 NLRB 995 996 (1978) I find Martin s solicita
tion here of Jones and Smith violative as alleged
On the other hand I do not find that Martin unlawful
ly interrogated Smith by asking if she was going to a
publicly announced union meeting Coerciveness of inter
rogation must be determined in the light of all the cir
cumstances consistent with the Board s policy announced
in Rossmore House 269 NLRB 1176 (1984) affd 760
F 2d 1006 (9th cir 1985) Smith was a union steward
well known to management And Smith had previously
participated in negotiations on the Union s behalf with
Respondents counsel in prior years Under these circum
stances and despite the fact that other violative remarks
occurred within the same conversation I find it unlikely
that Martin s question would have tended to coerce or
restrain Smith See Sunnyvale Medical Clinic 277 NLRB
1217 (1985)
Based on the foregoing I find to the extent the
Union s Objection 2 is based on the alleged interrogation
attributed to Martin such objection has not been estab
lished The unlawful promise of benefit found further
supports the meritoriousness of the Union Objection 19,
however and warrants sustaining the objection
5 Randy Burnham
a The evidence
Three employees Williams Miller and Nola Bell testi
feed in support of complaint allegations that Randy Burn
ham promised employees increased wages and benefits
for union rejection, threatened employees that it would
be futile to have continued representation by the Union
368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
threatened an employee with a deduction of a year s
dues if the Union won the election and told an employee
outside the polling area to vote against the Union to
obtain a 40 cent wage increase These complaint allega
tions are coextensive with the Union s Objections 4, 6,
and 19
According to Williams, Burnham a cut up supervisor
under the ultimate supervision of Martin, came to her at
her work position during the week prior to the election
and in talking to her about the election, told her that if
the employees voted the Union out they would get a 20
cent raise the following Monday after the election and
another one after the new year Moreover, he told her
that if they voted the Union out they would not have to
work 5 years anymore to get 2 weeks vacation, and that
they could earn that amount of vacation after 3 years
He also referred to a birthday bonus which had been an
nounced in a letter which he stated he would show Wil
hams but never did
The following week the week of the election, Wil
Hams had another conversation with Burnham at her
work area On this occasion he discussed with her a
union leaflet in which the Union had announced to em
ployees that they would owe no back dues during the
period when employees were working without a con
tract In large handwritten print across the face of the
leaflet was written Another Union lie' and Wait until
Monday Burnham told Williams that the union state
ment was a lie and that the Union had already sent a
letter to the Respondent from its Memphis office seeking
to collect back dues
On 16 November according to employee Miller s tests
mony Burnham approached her at her work position in
the cutup department and showed her the 29 October
memo of McCarty to the nonunit employees listing in
creases in employee benefits In discussion with Miller
regarding this memo Burnham pointed out that the unit
employees would get these benefits if the Union was
voted out He also stated that the employees would get a
20 cent raise now and a 20 cent raise after the first of the
year
Nola Bell a 12 year employee of Respondent related
that Burnham, her supervisor, had a conversation with
her on 17 November She testified that she approached
Burnham to ask him a question about her job when he
brought up the subject of the Union He then took her to
the back dock area where he talked to her about the 29
October McCarty memo He had her read it and they
talked He told Bell that the employees would get a 20
cent raise immediately and another one at the first of
January if the Union was voted out Bell further testified
that she saw Burnham take about 50 people out to talk to
them that day
Regarding the allegation about Burnham s remarks in
the polling area Williams testified that as she and other
employees were going to the voting area Burnham was
standing about 25 feet from the entrance to the polling
area and told her and other employees as they walked by
to go vote for that 40 cent raise
b Conclusion
The testimony of Williams Miller, and Bell in the
foregoing respects was not contradicted by Burnham
who did not testify Accordingly, the testimony of Bell,
Miller and Williams is credited Based on that testimony
I find that Respondent through Burnham did make
promises of increased wages and benefits if the Union
was rejected by the employees Consistent with the con
clusions reached above regarding similar promises I find
these promises were unlawful and violative of Section
8(a)(1) as alleged This conclusion requires a similar con
clusion that the Union Objection 19 must be sustained
On the other hand I find no support in the testimony of
these three employees to establish the further complaint
allegations that Burnham stated it would be futile for em
ployees to vote for continued representation by the
Union Similarly and based on reasoning already stated
above I find Burnham s remarks regarding dues deduc
tions were not unlawful Therefore I find no violation of
Section 8(a)(1) based on these allegations Moreover, I
find the evidence insufficient on these allegations to lend
any further validity to the Union s Objections 4 or 14
6 Billy Cook
a The evidence
The complaint sets forth one allegation regarding Billy
Cook a shipping department supervisor on 17 Novem
ber Thus the complaint alleges that Cook promised an
employee increased wages and benefits if the Union was
not selected by the employees and threatened that it
would be futile for employees to seek continued union
representation One employee Miller testified in support
of this allegation which is coextensive with the Union s
Objections 2 and 19 Miller testified that on 17 Novem
ber she had a conversation with Cook one of her former
supervisors on a dock near the deboning department
According to Miller Cook told her the same things that
Burnham and McLean had previously said to her and
also told her that President John McCarty was a very
rich man and that as long as they had a union he was not
going to give them anything Although Miller s testimo
ny was not contradicted by Cook I find it insufficient to
establish a specific promise of benefit Her testimony that
Cook went over with her the same things that Burnham
and McLean had earlier told her and in which unlawful
promises were found above to have been made is too
vague to substantiate a specific promise of benefit on
Cook s part Accordingly, I find no violation of Section
8(a)(1) based on any unlawful promise of Cook and to
this extent I find no support for Objection 19 On the
other hand Millers testimony that Cook said that as
long as the employees had a union McCarty was not
going to give them anything clearly establishes the threat
that it would be futile for employees to seek continued
union representation Accordingly, I find Respondent
violated Section 8(a)(1) in this regard as alleged in the
complaint In addition this conclusion substantiates the
further merit of the Union s Objection 4 that Respondent
created the impression of futility of selecting the Union
MCCARTY PROCESSORS 369
7 Gerald Smith
a The evidence
Gerald Smith at all material times was a supervisor in
the deboning section of the plant and worked under
Barry Sparks deboning superintendent and Duncan
Mancell , deboning manager The complaint , as amended,
alleged that on 12 November , Smith interrogated an em
ployee about how the employee was going to vote and
promised an employee increased wages and benefits if
the Union was rejected by the employee It further al
leged similar activity on the part of Smith on 17 Novem
ber, and also alleged that on 18 November , Sparks per
mitted an employee to harass and curse another employ
ee because of that employee 's union support One em
ployee Bulah Thompson , testified regarding all of these
allegations
Thompson began working for Respondent in Septem
ber 1985 and in November 1987 was working in the de
boning section of the plant under Smith She testified
that on 12 November , Smith took her off her job and
took her to a rear dock at the plant where he talked to
her about the election She testified that he asked her
had she made up her mind which way she was going to
vote She replied that she had not and Smith stated that
the best thing was to vote the Union out, because
McCarty did not want the Union in the plant Further,
Smith related that employees were going to get a 20 cent
raise in December and in January they were going to
get another 20 cent raise , but that if they did not vote
the Union out they were not going to get any raise The
conversation lasted about 5 minutes before Thompson re
turned to work According to Thompson Smith again
took her off her line on 17 November and took her back
to the same area where the previous conversation took
place There he again told her that employees should
vote the Union out because it was not doing them any
good and that McCarty did not want a union in the
plant He repeated his statement regarding the December
and January raises if the Union were voted out In re
sponse to a leading question Thompson related that in
both conversations with Smith he asked her how she was
going to vote and she responded in a noncommital way
Regarding the Respondents permitting an employee to
harass and curse another one because of the second em
ployees union support , Thompson testified that on 18
November she was placed to work on the deboning line
between Shawn Stranton and another employee known
only to her as Robert Both Robert and Stranton talked
to her in an effort to dissuade her from union support in
the election She rejected their overtures and Robert
thereafter left her alone However Stranton continued to
nag Thompson saying that he needed his 20 cents and
that she ought to vote the Union out because the Union
was not doing them any good Thompson tried to move
up the line from Stranton but he moved with her and
`cursed" her calling her everything according to
Thompson but a child of God Supervisor Smith was
two steps away from Thompson and Stranton at the time
and Thompson turned to Smith asking him if he heard
Stranton cursing her out Smith told Thompson he didn t
hear anything and he did nothing
Smith testified for Respondent and denied that he had
taken Thompson off the line to discuss the union issue or
wage increases He related he knew she was a union sup
porter and talking to her would be useless Further he
denied overhearing an exchange between Stranton and
Thompson other than to hear her yelling something to
Stranton about getting out of her face He told Thomp
son to calm down and they would work the matter out
According to Smith , he reported the matter to his supen
or, Barry Sparks , and Stranton and Thompson were sub
sequently pulled off the line by Sparks who talked to
them
Further evidence was offered by Respondent concern
ing the confrontation between Stranton and Thompson
not all of it in keeping with Smith s testimony Sparks
contrary to Smith testified that he learned of the con
frontation from Mancell who reported that a threatening
remark had been made to Thompson by Stranton Sparks
thereafter removed Stranton from the production line
and talked to him Stranton had conceded that he had
made a threatening remark with racial overtones to
Thompson and Sparks cautioned him not to do it again
saying that he would not stand for it Sparks further re
lated that he talked to Thompson also about the matter
and told her not to antagonize fellow employees because
they worked with knives and if there was a fight there
could be serious problems
Mancell s version was that he learned from an employ
ee that Stranton had issued a threat to Thompson and he
thereafter directed Sparks to investigate telling him that
they were not going to tolerate that type of behavior in
the plant Mancell added that Sparks subsequently re
ported to him that he had talked to Thompson and
Stranton
b Conclusion
Thompson s testimony regarding the discussion she
had with Smith was generally clear and in my opinion
honestly delivered I do not believe that her testimony
regarding the discussions with Smith were either a prod
uct of her imagination or an intent to fabricate The re
marks she had attributed to him in the discussions were
totally in keeping with those attributed to other supervi
sors here and never contradicted The conduct attributed
to Smith is also consistent with a pattern of supervisors
taking employees aside to discuss the union issue with
them Accordingly I credit Thompson s testimony that
she did have the discussions with Smith and that he gen
erally made the remarks she attributed to him However
Thompson exhibited some confusion in her testimony re
garding whether Sparks on both occasions that he talked
to her had asked her whether she had made up her mind
about how she was going to vote or how she intended to
vote finally testifying that he had asked her both ques
tions on both occasions I find the question of whether
she had made up her mind how she was going to vote
would not without more, be coercive because a response
would not necessarily reveal union inclinations or sup
port Because Thompson 's answer was noncommital on
that question it is unlikely that Smith would have asked
her further how she was going to vote Under these cir
370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cumstances , I do not credit Thompson's testimony that
Smith asked her how she was going to vote and shall
recommend that this allegation of the complaint be dis-
missed. To the extent that the interrogation allegation
goes to substantiate the Union's Objection 2 regarding in-
terrogation I find no support for the objection based on
Smiths remarks. Having found, however, on Thompson's
accredited testimony that Smith did promise higher
wages and benefits if the Union was rejected by the em-
ployees, I find Respondent violated Section 8(a)(1) of the
Act as alleged in the complaint based on Sparks' con-
duct. This finding provides further substantiation of the
Union's Objection 19.
Regarding the allegation that Respondent permitted an
employee to harass and curse out another employee be-
cause of the employees' union support I again credit
Thompson's testimony over that of Smith. Smith's claim
that he reported the matter to his supervisor, Sparks, was
not corroborated by Sparks. Moreover, it is clear that
despite the fact that the incident occurred in front of
him, Sparks made no effort to ascertain the cause of the
problem or the legitimacy of Thompson's complaint.
Indeed, Respondent's failure to discipline Stranton who
admitted to Respondent that he had issued the threat to
Thompson coupled with Respondent's treatment of
Thompson as an antagonizer, reflects a disregard for the
facts and, in light of Respondent's knowledge that the
underlying dispute involved the union issue, Respond-
ent's disposition to disparately treat union supporters. I
find Respondent's action in this regard was coercive and
violated Section 8(a)(1) of the Act as alleged in the com-
plaint.
8. Barry Sparks
a. The evidence
The complaint , as amended , attributes to Sparks an in-
cident of threatening an employee with plant closure and
other unspecified reprisals for union support , and also al-
leges he requested an employee to persuade other em-
ployees to vote against the Union . The allegation is coex-
tensive with the Union ' s Objections 13 and 15. Two wit-
nesses, Thompson and employee Princess Brown , testi-
fied in support of these allegations . Brown , a member of
the Union , testified that on 18 November , Sparks took
her from her position on the line to his office where he
told her he wanted to talk to her about the Union. In the
conversation , which Brown said lasted about an hour
Sparks asked her what good it was doing to have a
union when the Union was not doing anything for em-
ployees, because employees were getting the same bene-
fits as the nonunion plants. Sparks also allegedly stated
that if the Union was reelected then McCarty would
close the plant down and everyone in the plant would
lose their job and the plant would be moved to Forest,
Mississippi , or McGee, Mississippi . Sparks even pointed
out that Respondent had considered the purchase of
some land in Hazelhurst , Mississippi. Sparks asked
Brown to go out and ask other employees to vote against
the Union.
Sparks conceded that he had discussed the Union with
Brown before the election . However, he testified the dis-
cussion took place on the line rather than in an office,
explaining that he did not have an office at the time. He
denied making the remarks attributed to him by Brown
saying that the subject of plant closure never carne up,
and no reference was made to moving the plant to
McGee or Forest or Respondent's attempt to buy land in
Hazelhurst. Sparks specifically denied he asked Brown to
influence other employees against the Union.
Sparks' testimony that he did not have an office at the
time of the Union election was corroborated by Mancell
who testified that construction was not started on
Sparks' office until December. Mancell pointed out that
before that time there was a small general office that su-
pervisors used in the rear of the deboning section which
was not private and an hour-long conversation could not
take place there without constant interruption by a flow
of employees going through that office.
In addition to Brown's testimony regarding Sparks,
Bulah Thompson testified that on 18 November she also
had a conversation with Sparks about 50 or 60 feet away
from her work station on the production line. In that
conversation Sparks told her that he knew she and her
sister , Baby Ruth Brent , also an employee of Respond-
ent, were "up in the Union," and if they voted the Union
back in, Thompson was going to need somebody on each
side of her everyday, all day, because he was going to
stay on her back. This event occurred after the episode
with Stranton referred to above.
Although Sparks conceded in his testimony that he
had talked to Thompson as already related above, he
denied discussing with her the Union being voted back
in and generally denied making the other remarks she at-
tributed to him. He did admit he mentioned to her the
intensity of feelings among employees at the time be-
cause of the union situation.
b. Conclusion
The fact that Sparks did not have a personal office at
the time of the discussion claimed by Brown is insuffi-
cient to negate Brown's testimony that the discussion
took place in an office. Brown testified that the office
was about 5 minutes walking distance from her work sta-
tion thus suggesting that it was totally outside of the de-
partment and within another area of the plant. Brown's
testimony struck me as credible and reliable. Weighed
against Sparks blunt denials unaccompanied by any de-
tailed explanation of his version of the discussions with
Brown regarding the Union, a discussion the contents of
which Sparks testified he could not recall. I find Brown's
testimony more convincing. Accordingly, I credit Brown
over Sparks and conclude that Respondent through
Sparks violated Section 8(a)(1) of the Act as alleged by
threatening plant closure and plant removal and by
asking Brown to persuade other employees against the
Union. Based on these conclusions I also find merit to
the Union's Objection 15 contending that Respondent
threatened plant closure if the Union won the election.
I previously found Thompson's testimony credible
above, and I find it no less credible when balanced
against Sparks' testimony regarding the comments she
testified he made. Moreover, a close examination of the
MCCARTY PROCESSORS
record fails to reveal that Sparks specifically denied that
he told Thompson that he would make things hard on
her Crediting Thompson I find that Respondent unlaw
fully threatened reprisals in violation of Section 8(a)(1)
of the Act as alleged in the complaint 11 Further to the
extent that this violation is coextensive with the Union s
Objection 13 complaining of threats and coercion of em
ployees because of their membership in and activities on
behalf of the Union, I find merit to Objection 13
9 Duncan Mancell
a The evidence
The complaint as amended , alleges that Mancell on 9
and 16 November threatened employees with unspecified
reprisals if they voted for the Union The complaint was
amended at the hearing based on Mancell s own testimo
ny and over Respondents objection to allege that begin
ning 9 and 16 November, Mancell systematically and in
dividually orally promised benefits to 80 percent of the
deboning department employees in order to get them to
vote against the Union These allegations are coextensive
with the Union s Objections 13 and 19 Evidence regard
mg the initial allegation was supplied by one employee
Shirley Williams Williams testified that during the week
before the election Mancell had approached her in the
breakroom before the beginning of work and asked her if
he could talk to her She declined saying that she was
eating her breakfast He left After she completed her
breakfast she reported to work and found Mancell wait
mg for her According to Williams Mancell told her he
knew she was for the Union and that if the Union was
voted in the plant he would make sure she would catch
hell as long as she was in the plant Williams, a union
member,testified that she attempted to reply to Mancell
but he turned and walked off
Mancell admitted in his testimony that he had attempt
ed to talk to Williams in the breakroom one morning
before work but she had declined to talk to him He
could not recall any follow up attempt to talk to her
Asked if he recalled any conversation with Williams in
which there was any mention of what would happen
when the Union was voted in Mancell answered nega
tively Further asked if he recalled any conversation in
which there was any reference to her catching hell
Mancell again responded negatively However he specif
ically denied that he told her at any time that if the
Union was voted in she would catch hell as long as she
was in the plant
On cross examination Mancell conceded that he had
talked to approximately 80 percent of the 300 employees
under his jurisdiction concerning the Union during the
11 In his brief the General Counsel moved to amend the complaint to
allege additional threats violative of Sec 8(a)(1) based on admissions of
Sparks on cross examination that he told over 100 employees before the
election that they would receive the benefits granted the employees in
Respondent s other plants if they rejected the Union I find it unnecessary
to consider or grant the motion because as granting it would add nothing
to the remedy provided for violations of the same nature already found
here to have been committed by Respondent Sparks admission however
has been considered as reflecting the extensiveness of Respondents dis
semmation of its message regarding the grant of benefits to employees if
they rejected the Union in the election
371
week or 10 day period prior to the election Although he
could not recall the individual conversations with em
ployees he stated that he expressed to them Respondent s
view that the Union was not needed at Respondent s
plant because the nonunion facilities had similar benefits
and that employees could get the benefits that the other
plants had without the Union
b Conclusion
Mancell never explained in his testimony what he had
wanted to talk to Williams about on the morning when
he interrupted her breakfast in the breakroom It would
appear reasonable that if Mancell had wanted to talk to
her he would have followed up on the matter as Wil
liams claimed he did when she reported for work in her
department It is not unreasonable to believe that Man
cell was piqued by Williams refusal to talk to him earli
er Under these circumstances, and because Williams tes
timony impressed me as reasonable, positive, and con
vincing and because her recall appeared to be clear, I
credit Williams over Mancell I find that he did issue the
threat she attributed to him which I find violative of
Section 8(a)(1) of the Act as alleged Based on this con
elusion I find further merit to Objection 13 and conclude
it must be sustained
Mancell s admission that he talked to 80 percent of the
deboning department employees advising them that they
would get the same benefit as nonunion plants constitutes
a promise of benefit because as the record evidence es
tablishes that Respondent was making every effort to
communicate to employees that the nonunion plants en
joyed a 20 cent per hour higher wage rate and additional
benefits Accordingly, on Mancell s own testimony I
must conclude and for the reasons already related above,
that his remarks constituted an unlawful promise of bene
fits in violation of Section 8(a)(1) of the Act To this
extent further merit is found to the Union s Objection 19
which must be sustained
C Other Evidence Regarding the Objections
Objection 6 to the election complained that Respond
ent prevented employees orderly and free flow to and
from the voting areas and solicited company support im
mediately in and about the area adjacent to the voting
areas during times when the polls were open for voting
The testimony of Lee Claiborne and Blount regarding
remarks made by Howington to them or others in their
presence as they went to vote in the election has already
been related It appears that Howington s remarks took
place at the entrance to a hallway approximately 20 feet
in length 12 leading to the breakroom in which the poll
ing was taking place Moreover Lee testified that How
ington had stopped her group for a few minutes requir
ing them to wait in the entrance to the hallway Only a
few voters come out before Howington allowed the de
layed group to proceed in It was during the delay that
Howington made his comments to the employees going
to vote as already related Respondent through cross ex
12 This approximation is based on a scale diagram of Respondents fa
cility which was received in evidence
372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
amination of the General Counsel's witnesses attempted
to establish that Howington's action in delaying the em-
ployees was justified by the crowding of the hallway by
employees leaving the polling area after voting. In my
opinion, this attempt was unsuccessful, and in the ab-
sence of testimony from Howington, I cannot conclude
that the delay of employees going into vote was warrant-
ed, particularly because Howington used the delay to un-
lawfully ask employees to vote for their "raise" in oppo-
sition to the Union. Accordingly, and in light of the un-
lawful requests made to the employees to vote for the
wage increases as already found above, I conclude that
Objection 6 has merit and must be sustained.
D. The Alleged Violations of Section 8(a)(5) and (1)
of the Act in the Unilateral Grant of Increased Wages
and Benefits
1. The material facts
True to the promises of its supervisors made before to
the election, Respondent on the day following the elec-
tion in identical memos from Marble and Mancell to "All
Employees" announced a pay increase of 20 cents per
hour to employees with more than 1 year of employment
with Respondent. The memos also announced another
20-cent-per-hour increase for employees in the same cate-
gory would be effective 3 January 1988. Increases were
also provided to employees with less than 1 year of serv-
ice. According to these memos the increases put the
Jackson plant on the same pay level as the other
McCarty plants.
A third memo addressed to all Jackson processing em-
ployees signed by H. F. McCarty Jr. dated 20 Novem-
ber and listing "Election Results" as the subject, con-
gratulated the employees on the election results and spe-
cifically tied such results to the grant of the wage in-
crease. Thus the memo stated:
I have given instructions that the Jackson plant im-
mediately receive the same pay and benefits as the
other McCarty plants. I will be in the Jackson plant
in the near future to thank you personally for the
vote of confidence in McCarty. We will continue
working to keep that confidence.
2. Arguments and conclusions
The General Counsel and the Union contend, as the
complaint alleges, that the grant of the wage and benefit
increases while the objection period was pending and
while the results of the objection were not final consti-
tuted a violation of Section 8(a)(5) and (1) of the Act.
Respondent conversely argues that it did nothing more
than provide equal treatment to unit employees by giving
them what benefits its nonunion employees enjoyed.
It is clear that the Union thoughout the events in-
volved in this case occupied the status of an incumbent
collective-bargaining representative. It was entitled to
the rebuttable presumption of continued majority status.
Aside from the election of 19 November there was no
showing by affirmative evidence that the Union had lost
its majority status. In light of the merit found to the
Union's objections to the November election the results
of that election, like the results of the first election, es-
tablishes nothing to rebut the presumption of the Union's
continuing majority status. The mere existence of the
pending decertification petition does not license an em-
ployer's withdrawal from recognition or bargaining with
an incumbent union. Dresser Industries, 264 NLRB 1088
(1982). Accordingly, where the Board has not yet issued
a certification of results of election in a decertification
election, an employer acts at its peril when it unilaterally
modifies the terms and conditions of employment of unit
employees. See Angelica Corp., supra; Dow Chemical Co.,
supra; Presbyterian Hospital, 241 NLRB 996, 998 (1979).
Therefore, Respondent here was not free to unilaterally
grant the wage benefit increases which were granted on
20 November. It follows, and because I have found merit
to the Union's objections to the election, I conclude that
Respondent's unilateral action in granting the wage and
benefit increases violated Section 8(a)(5) and (1) of the
Act as alleged in the complaint.13 Angelica Corp., supra.
E. The Appropriateness of a Gissel Bargaining Order
The General Counsel and the Union argue that under
all the circumstances of this case, including the gravity
and extent of Respondent's unlawful conduct, a fair
rerun election has been rendered improbable so that a
bargaining order under the principles enunciated in
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), must be
entered in this case. In Gissel the Supreme Court estab-
lished the standards for determining whether bargaining
orders may be utilized to remedy an employer's unfair
labor practices. Thus, the Court held a bargaining order
may be granted where an employer's unfair labor prac-
tice is "outrageous" and "pervasive." A bargaining order
may also be granted in a second category of cases of a
less extraordinary nature marked by less pervasive unfair
labor practices which nonetheless have a tendency to un-
dermine majority strength. However, a bargaining order
is not appropriate, the Court said, in a third category of
cases involving minor or less extensive unfair labor prac-
tices "which, because of their minimal impact on the
election machinery, will not sustain a bargaining order."
The General Counsel and the Union assert the instant
call case falls under the first category above while Re-
spondent argues that Respondent's conduct if at all un-
lawful falls into the third category precluding the entry
of the bargaining order here.
The Respondent's unlawful conduct found here was
varied and extensive. It consisted of unlawfully promis-
ing and granting wage and benefit increases to dissuade
employees from union support, solicitation of employees
to dissuade other employees from union support, threat-
ening employees with the futility of election of the
Union, allowing an employee to curse or harass another
employee in an attempt to discourage the second em-
ployee's union support, threatening an employee because
of an employee's union support, and threatening in one
13 An order requiring Respondent not to engage in unilateral actions
will be recommended here. This order, however, should not be construed
as requiring that the wage and benefit increases be rescinded. Dow Chem-
ical Corp., supra.
MCCARTY PROCESSORS
instance plant closure if the employees selected the
Union to continue to represent them Respondents con
duct in the promise of wage and benefit increases was
the most pervasive of all its unlawful conduct The
promise was frequently repeated to a large number of
employees Indeed Mancell conceded that he had dis
cussed these promises of increases with approximately 80
percent of his employees And based on uncontradicted
testimony in the record other supervisors talked to a
large number of employees making the same promises
Further, Marble admitted that all supervisors were in
structed to carry the same unlawful message to all unit
employees The actual grant of the increases touched all
unit employees The Board has indicated in some cases
that such conduct cannot easily be erased for the benefits
granted remain in effect and serve as a constant reminder
to employees of Respondents use of economic weapons
to defeat the Union See, e g Dow Chemical Co supra
J J Newberry Co 249 NLRB 991 (1980), enf denied in
pertinent part 645 F 2d 148 (2d Cir 1981), Apple Tree
Chevrolet 251 NLRB 666 (1980), enf denied in pert part
671 F 2d 838 (4th Cir 1982), Honolulu Sporting Goods
Co 239 NLRB 1277 (1977), Westminster Community
Hospital, 221 NLRB 185 (1975) Skaggs Drug Centers 197
NLRB 1240 (1972) enfd 84 LRRM 2384 (9th Cir 1973)
Tower Records 182 NLRB 382 (1970) enfd 79 LRRM
2736 (9th Cir 1972) C & G Electric 180 NLRB 427
(1969) See also Royal Aluminum Foundry, 208 NLRB
102 (1974) Soil Mechanics Corp, 200 NLRB 544 (1972)
In other more recent cases the Board has taken a more
conservative approach holding the preelection promise
of benefits and post election grant of such benefits are in
sufficient to warrant the issuance of a Gissel bargaining
order as opposed to the use of more traditional remedies
See e g Angelica Corp, supra, Wm T Burnett & Co
273 NLRB 1084 (1984) See also Walgreen Co 221
NLRB 1096 (1975) In the Angelica case the Board ex
plained its apparent departure from prior precedent by
observing that such prior precedent did not represent ap
plication of a per se remedial rule and observed that
under Gissel the Board was required to assess the ques
tion of an appropriate remedy on a case by case basis
In my opinion the instant case is distinguishable from
the facts in Angelica Burnett and Walgreen and dictate a
contrary result Respondents conduct here was both
more flagrant and pervasive Here Respondent unlike in
the cited cases specifically tied the promise and grant of
the wage and benefit increases to the rejection of the
Union Moreover, the wage increases promised and
granted totaled 40 cents per hour for most employees
and represented an increase of about 8 percent for each
employee Such increases must be regarded as substan
tial The impact on employees was even greater because
they had not had an increase for almost 2 years prior to
the time the increases were granted Respondents ex
pressed concern in bringing unit employees up to the
scale of nonrepresented employees at its other plants is
belied by Respondents failure to offer the Union in ne
gotiations the same wages and benefits accorded the non
union employees One can only conclude Respondent
simply stated bought the election results achieved in No
vember by promising and granting employees wages and
373
benefits not previously offered to and rejected by their
collective bargaining representative
Under these circumstances, and considering the other
unlawful conduct of Respondent including remarks mdi
cating the futility of union organization there is little
likelihood that traditional remedies will relieve employ
ees of the lasting impression left by the promise and
grant of wage and benefit increases that Respondent is
the sole source of the benefits not only received but
likely to be available in the future and that union repre
sentation provides no hope for improvement See NLRB
v Exchange Parts Co 375 U S 405 (1964) Rather be
cause Respondent made it clear in its preelection prom
ises and postelection announcements that the benefits
were granted largely as a reward for rejecting the
Union, and keeping in mind that the wage and benefit in
creases will not be rescinded by the order recommended
here employees may reasonably expect a similar reward
if they reject the Union in any rerun election making the
fairness of such rerun highly unlikely Accordingly the
facts of this case, I conclude, put it more in line with
those considered by the Board in Cam vac International
288 NLRB 816 (1988), in which a bargaining order was
found warranted based in large part on the employer s
announcement and grant of wage and benefit increases
the lasting effects of which would be difficult to remedy
by traditional means
Considering the foregoing I conclude Respondent s
conduct falls within the second, if not the first category
of conduct warranting the entry of a Gissel bargaining
order Accordingly and having concluded that the 19
November election was a nullity I shall recommend the
entry of such a bargaining order
CONCLUSIONS OF LAW
1 Respondent is an employer within the meaning of
Section 2(2) of the Act engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the mean
mg of Section 2(5) of the Act
3 By systematically promising and subsequently grant
ing increases in wages and other benefits to employees to
dissuade them from voting for the Union in a decertifica
tion election Respondent has engaged in and is engag
mg in unfair labor practices in violation of Section
8(a)(1) of the Act
4 By threatening employees with the futility of their
election of the Union to represent them in collective bar
gaining, Respondent has engaged in and is engaging in
unfair labor practices in violation of Section 8(a)(1) of
the Act
5 By discouraging employee support of the Union by
informing employees that wage increases had been with
held from them in the past because of their union repre
sentation , Respondent has engaged in and is engaging in
unfair labor practices in violation of Section 8(a)(1) of
the Act
6 By threatening employees with unspecified reprisals
and allowing abusive conduct toward them by other em
ployees because of their union support, Respondent has
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
engaged in and is engaging in, unfair labor practices in
violation of Section 8(a)(1) of the Act
7 All production and maintenance employees, includ
ing truckdrivers driver salesman and shipping and re
ceiving clerks employed by Respondent at its 238 Wil
mington Street, Jackson, Mississippi facility, excluding all
office clerical employees, professional employees sales
men, buyers, watchmen and guards 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
8 At all times material the Union has been, and now
is the exclusive representative of the employees in the
unit listed in paragraph 7 above for the purposes of col
lective bargaining within the meaning of Section 9(a) of
the Act
9 By unilaterally changing the wages and other bene
fits of unit employees without notice to or negotiating
with the Union, prior to final resolution of the question
concerning the continued representative status of the
Union raised in Case 15-RD-607, Respondent has en
gaged in, and is engaging in, unfair labor practices in
violation of Section 8(a)(5) and (1) of the Act
10 A preponderance of the credible evidence does not
establish that Respondent has violated the Act in any
other manner alleged in the complaint
11 The Unions Objections 2, 4, 6, 13, 14, 15, and 19
to the election conducted in Case 15-RD-607 are merito
rious and must be sustained and the election conducted
on 19 November 1987 in Case 15-RD-607 must be set
aside
12 By engaging in the unfair labor practices set forth
in paragraphs 3 4 5 6, and 9 above Respondent has at
tempted to undermine the Union s majority status and
has precluded the holding of a fair rerun election thereby
making a bargaining order an appropriate remedy for
Respondents unfair labor practices
13 The unfair labor practices found in paragraphs 3 4
5 6 and 9 above constitute unfair labor practices affect
mg commence within the meaning of Section 2(6) and
(7) of the Act
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I recommend that it cease and
desist therefrom and that it take certain affirmative
action which I find necessary to remedy and remove the
effects of the unfair labor practices found and to effectu
ate the policies of the Act
Having found that Respondent by its unlawful conduct
including the promising and granting of a general wage
increase to its employees interfered with the election
held on 19 November 1987 thus substantiating the
Union s objections to the election I recommend that the
election held in Case 15-RD-607 be set aside The rec
ommended order in this regard is not to be construed as
requiring rescission of the wages and benefits granted to
unit employees subsequent to the election Having fur
ther found that Respondent by its unlawful conduct has
precluded the holding of a fair rerun election under the
circumstances of this case, I further recommend that the
petition in Case 15-RD-607 be dismissed that all pro
ceedings held in connection therewith be vacated and set
aside and that a bargaining order issue requiring Re
spondent to recognize and bargain with the Union
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed 14
ORDER
Respondent, McCarty Processors, Inc and McCarty
Farms Inc Jackson, Mississippi its officers agents, suc
cessors and assigns, shall
1 Cease and desist from systematically promising and
granting wage increases and other benefits to its employ
ees represented by the United Food and Commercial
Workers International Union AFL-CIO-CLC, and its
agent, Local Union No 1529 to dissuade them from
voting for the Union
(a) Threatening employees with the futility of their
election of the Union to represent them
(b) Discouraging support for the Union by informing
employees that wages have been withheld in the past be
cause of their representation by the Union
(c) Threatening employees with unspecified reprisals
and permitting abusive conduct toward them by other
employees because of their support for the Union
(d) Unilaterally granting increases in unit employees
wages and benefits without notification to and bargain
mg with the Union
(e) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) On request recognize and bargain collectively with
the Union as exclusive representative of the employees in
the appropriate unit described in paragraph 7 in the
above conclusions of law and on request embody in a
signed agreement any understanding reached
(b) Post at its Jackson Mississippi place of business
copies of the attached notice marked Appendix 15
Copies of the notice on forms provided by the Regional
Director for Region 15 after being signed by the Re
spondent s authorized representative shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond
ent to ensure that the notices are not altered defaced, or
covered by any other material
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
14 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
15 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
MCCARTY PROCESSORS 375
IT IS FURTHER ORDERED that the allegations of the election in Case 15-RD-607 be set aside and the petition
complaint notspecifically found herein be dismissed dismissed
IT IS FURTHER ORDERED that the Union s Objections 2
4, 6, 13, 14 , 15, and 19 be sustained the results of the