Motz Poultry Co.

National Labor Relations Board - Board Decisions

Aug 23, 1979

244 N.L.R.B. 573 (N.L.R.B. 1979)

MO()1 POL IR ('O()MI'ANY
NMolz Poultry ('omnpanv and Amalgamated Allied In-
dustrial Processing. Local =7, affiliated with
[United Food and Commnerical Workers Interna-
tional Union, AFL,-CIOt . Cases 9 CA 12884 and
9R(' 12545
August 23. 1979
IDECISION AND ORDER
By (IIAIRMAN FANNIN(; ANI) MEMI RS JENKINS
ANt) PNI 11(.O
On April 16, 1979. Administrative Law Judge Stan-
ley N. Ohlbaum issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended. the Na-
tional Labor Board has delegated its authority in this
proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brieft
and has decided to affirm the rulings, findings.2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Motz Poultry Company,
Batavia, Ohio, its officers, agents, successors, and as-
signs, shall take the action set fbrth in the said recom-
mended Order, except that the attached notice is sub-
stituted for that of the Administrative Law Judge.
' The name of' the Petitioner. formerl) Amalgamated Allied Industrial
Processing. Local 7. affiliated with Amalgamated Meat ('utters and
Butcher Workmen of North America. AFL CIO. is amended to reflect the
change resulting from the merger of Retail Clerks International Union with
Amalgamated Meatcutters and Butcher Workmen of North America on
June 7. 1979.
2 The Administrative Law Judge cited the testimony of Jo Ann Blanton to
further support his finding that Respondent repeated its threat of plant clo-
sure at the August 14 meeting. The record shows, however. that Blanton was
referring to the June 30 meeting. We hereby correct this inadvertenc.
The Administrative Law Judge found that a bargaining order moots the
objections to the election and renders their resolution unneccessar. but nes-
ertheless he did resolve them. In view thereof we find it unnecessarN to pass
upon his mootness finding.
Respondent has excepted to certain credihility findings made b the Ad-
ministrative L.aw Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all the relevant evidence convinces us that the
resolutions are incorrect. Sandard LDr) Wall Products. Int. 91 NLRB 544
(1950), enfd 188 .2d 362 (3d (Cir. 1951). We have carel'ull1 examined the
record and find no basis for reversing his findings.
I We have modified the Administrative L.a Judge's notice to conform
with his recommended Order
A 1PPEN I1)1 X
Noii( I EP\ll OYl sIIS
P()OS, It) Y ORI)R ()1 II
NAII()NAI. LABOR RLI.AII)NS B)ARI)
An Agency of the United States Gioernnment
W- W1.l. N)I question ou, in xviol;tion of the
Act. concerning your membership. affiliation.
sympathies, desires, activities. or other rights or
actions guaranteed to you under the National
Labor Relations Act.
W\! \\'IL. N()O coerce any emplotee to cxectite
a statement that he did not know what he awas
doing when he signed a unioin authorization
card.
WlE WIil.L NOI threaten that we sill shut dov, n
or go out of business, or that you will suffer an!
other job or economic reprisal. in case of union-
ization, or in case you vote a union in, or in case
you attempt to bargain collectivel\ with us
through a union.
Wli V.11. NO1 fail or refuse to bargain collec-
tively in good faith with Arnalgamated Allied In-
dustrial Processing. Local =7. atffiliated with
United Food and Commercial Workers Interna-
tional Union. AFL-CIO. as the exclusive collec-
tive-bargaining representative of our emnploees
in the following appropriate unit:
All full-time and regular part-time production
and maintenance employees and truck drivers
employed at our Batavia. Ohio. facilit\. but
excluding all summer student emplo\ees. o-
fice clerical emplosees. protessional employ-
ees. guards and supervisors as defined in the
Act.
Wl. xuIl.L NOl- in any other manner interfere
with, restrain, or coerce you in the exercise of
your right to self-organization; to torm, join, or
assist any labor organization: to bargain collec-
tively through representatives of your own
choosing: to engage in concerted activities for
the purpose of collective bargaining or other mu-
tual aid or protection: or to refrain from an or
all such activities.
Wlt Vn11.., upon request, recognize and bargain
collectively in good faith with Amalgamated Al-
lied Industrial Processing. Local 7. affiliated
with United Food and Commercial Workers In-
ternational Union, AFL CIO. as the exclusive
bargaining representative of our employees in
the above-described appropriate collective-bar-
gaining unit, and v vn wIt. embody in a signed
agreement anv understanding reached.
Molz Potl.i RY COMPANY
244 NLRB No. 87
I).:('ISI()NS (): NATI()NAL I.ABOR REI.ATIONS BOARI)
I)l('ISI()N II. A.I.I(itE) tNI NAI lABOR PRA( 11( IS
I'reliinary Statement: Issues
Sl AI1 I t N. ()OI n.si Mi. Administrative I.a Judge: 'Ihis
consolidated proceeding' under the National Labor Rela-
tions Act, as amended, 29 I S.('. § 151, ci( w(.. was heard
before me in ('incinnati, Ohio. on February 22. 1979, with
all parties participating throughout by counsel or other rep-
resentative and given full opportunity to present evidence.
arguments, proposed indiings and conclusions, and briefs.
G;eneral Counsel's post-trial brief was received on March 22
and Respondent's on April 5 1979. The record and briet's
have been carefully considered.
The principal issues presented in the unfair labor prac-
tices case (Case 9 ('A 12884) are whether, in violation of
Section 8(a)( l) and (5) of the Act Respondent engaged in
interrogation concerning employees' protected union activi-
ties, coerced an employee into executing a written state-
ment that he did not know what he was doing when he
signed a union bargaining authorization card, threatened to
close dow n its business in the event of employees' selection
of' the UInion as their bargaining representative, failed and
refused to bargain collectively with its employees' duly des-
ignated bargaining representative, and docked an employee
for I day's pay because she had been subpenaed to testif in
the instant proceeding. Also here by consolidation are is-
sues as to voting eligibility and alleged employer conduct in
a statutory representation election among Respondent's
employees, held under Board auspices on August 15. 1978
(Case 9 R 12545).
Upon the entire record and my observation of the testi-
monial demeanor of the witnesses, I make the lbllowing:
FINIIN(iS ANI) CON('I.tSIONS
1. JRISI)I('IION
At all material times Respondent has been and is an Ohio
corporation engaged in the slaughter and distribution of
poultry products at and from its facility in Batavia, Ohio.
During the 12-month period immediately antedating issu-
ance of the complaint, a representative period, Respondent
purchased and received at its Batavia facility, directly in
interstate commerce from places outside Ohio, goods and
materials valued at over $50,000.
I find that at all material times Respondent has been and
is an employer engaged in commerce and in operations af-
fecting commerce within the meaning of Section 2(2), (6).
and (7) of the Act: and that at all of those times Charging
Party-Petitioner Union has been and is a labor organization
as defined in Section 2(5) of the Act.
i Case 9 CA 12884: A complaint issued on September 7 1978. growing
out of charge filed on August 22. 1978. by the Charging Party Union. Case
9 RC 12545: Issues arising out of ballots challenged by both parties. suffi-
cient to affect election results, and timely objections by Petitioner Union to
employer preelection conduct allegedly affecting election results, consoli-
dated with (ases C.4 12884 by the Regional Director on September 8.
1978. iStatutory election was held on August t5 pursuant to the parties'
stipulation for certification upon consent election approved by the Regional
Direclor on Jul) 25, 1978.) Unless otherwise specified all dates are in 1978.
Respondent slaughters. dresses, and sells chickens. It
slaughters and dresses for sale perhaps 20,00() chickens per
week, consltituting the principal segment of its business (ap-
proxima tely 60 percent), although it also dresses aid mar-
kets refrigerated dead chickens slaughtered elsewhere (ap-
proximately 4() percent of' its business, according to its
principal and sole owner Matthew Mot: (herein called
Motz).
Upon invitation of Respondent's employees the ('hbarging
Party-Petitioner Union met with them and launched an or-
ganizing drive on June 21. By June 27 nine bargaining unit'
employees had signed cards (G.(. E'h. 2 A-'h appointing
and authorizing the Union to bargain collectively with Re-
spondent on their behalf including explicit authorization to
bargain fr a union shop under the Acl. On the basis of
these cards the lnion by letter and personal visit of its
representatives on June 30. requested recognition and bar-
gaining from Respondent's principal Motz, who ordered
them out. On the same day. June 30. Motz wrote a long-
hand letter to the Union. refusing to recognize it without an
election and adding that its "boost silj of protecting the
employees under this [National Labor Relations] act is not
necessary" and that "All representatives of Amalgamated
Meal Cutter Union will be forcefully and firmly removed
from the premises of Motz Poultry Co. until such time as
they are recognized as the bargaining agent for the employ-
ees of Motz Poultry ('o" ((i.'. Exh. 4).
On July 3 the union petitioned the Board for certification
upon the basis of a representation election under the Act.
As already mentioned, that election took place on August
15. It is Respondent's actions which allegedly occurred in
the interval between the Union's recognitional/bargaining
request on June 30. and that election, August 15, which
form the basis for the complaint and election objections
here, which we shall now, address.
On June 30. after the described visit of the union officials
to Motz, the latter assembled his employees and, according
to his own testimony here (as well as his answer. par. 5aJ).
told them in all seriousness that. "I wasn't going to work
with the union and that I would quit if the union was forced
in on me . . . (within) twenty four hours."' And, according
to Motz' secretary-bookkeeper and line "general poultry
processor" Joan Menkhaus, testifying as Respondent's wit-
ness, Motz also told his assembled employees that he
"couldn't operate with a union in there because II am] al-
ready giving [you] as much as [1] could afford" and that "[I]
would close in twenty-four hours .... [1] would have to ....
[I] couldn't operate with one."
On or about July 5-on the heels of the Union's July 3
filing of its petition with the Board for certification upon
the basis of' a statutory election--Motz, according to his
TI he admittedly appropriate bargaining unit is: All full-time and regular
part-time production and maintenance employees and truckdrivers em-
ployed at Respondent's Batavia, Ohio. facility but excluding all simmer
student employees, office clerical employees, professional employees. guards
and supervisors as defined in the Act.
I At least unit employee Lydia Collins, who had signed a union card,
reacted to this by not voting at the ensuing election because -according to
her testimony "I didn't want nobody o be against me."
5 ,74
M1()1 P() IIRY ('(OM 'ANY
o, lslilollnr , Il[IOptICed ti Unit e'niployee Rob .leste (t
trLuckdrlier). and stalted to him that "F:igginis. anotiler
truckdriver nllit member who. unlike Jessee,. had not signed
a I niln card salid4 ou were tricked into siLning a card"
given to him hb unit member .hJonn Blanton. ater that
day Moti asked lessee to give him a t ritten statement to
that effect. which lessee did in the presence of Moti and
Motz' secretary and which Mot7 transmitted to the
Board's Regional ()llice with a cover letter. \ccording to
lessee. testifying as Respondent's witness. Motz also asked
him "who got ou to sign the card?" Motz letter (C.('. Exh.
5). asserts that Jessee was "typical" of "many" of his em-
ployees who had been "tricked into signing or did not un-
derstand what the, were signing" or now "regret" it, adding
that after having "talked to my people I do not believe that
the union has a ligitimat [sic 3(Y0 interested in a union."
Jessee's annexed statement, sworn to July 15 before Motz'
secretary Menkhaus. reads: "I previously signed a card
without being explained to what it was for or about. I hlad
just assumed it was something that I was supposed to sign
being I had just recently started working here. ater finding
out it was to organize a union." As explicated in greater
detail below, fn. 16. upon the basis of Jessee's own contra-
dictory testimony at this hearing, as well as my observa-
tions of demeanor while he was on the witness stand, I do
not credit Jessee's statements in the above affidavit supplied
by him to Motz that Jessee was not told and did not under-
stand what the union card he signed was for. This episode is
mentioned at this point only in relation to tile complaint
allegation concerning employee interrogation by Motz,
which it clearly was, and I so find. I further find that, as
alleged in the complaint. Motz' solicitation of the indicated
written statement from Jessee was restraintful and coercive
of exercise by employees of their Section 7 rights under the
Act, there being no credibly established basis for believing
that Jessee would have taken any such action on his own
initiative unless so induced by Motz. Cf.: Iring A. Rothkin
d/b/a Irr's Market, 179 NLRB 832 (1969)., enf. 434 F.2d
1051 (6th Cir. 1970).
There is absolutely no basis in the record to support
Motz' statement in his letter to the Board that "many" em-
ployees were "tricked into signing" their cards or (except
possibly Jessee, whom I do not credit), failed to understand,
disclaimed, or "regretited]" having done so. To the con-
trary, credited testimony of employee witnesses Blanton,
Valentine, Harper, and Collins establish that the represen-
tational purpose of the cards was explained and understood
in accordance with their clear terms.
In the mid-afternoon of August 14, the day before the
statutory representation election--still according to Motz'
own testimony he again assembled and addressed the em-
ployees. This time he informed them that their efforts to
unionize and bargain collectively would be "futile" and
would "not doling] them any good" since he was unable to
give them more: he said "You people are hiring someone to
bargain with me." but that the Union would "divide us"
and. "I would prefer to negotiate with you myself." that he
' Motz testified that his employee Stockton (Respondent's observer at the
representation election). was "vehementlyl antiunion" and reported to him
who was at union meetings and what occurred there
was willing to negotiate or deal with any elplosee "present
. .at this mleeting,"'' that the5 should just come to ilme and
I would deal with them": and that "''a union strike would be
an unlltir strangle hold on us . . . believe Mr. Sullivan,
Respondent's supplier of live chickens] vwould not ctntillnue
to supply us with chickens if work stoppages wvere threat-
ened"' since Sullivan had told him that he "absolutely
could not work himself under a union . . . no v av."' On
cross-exaillationll however. Motz testified that he told his
employees that Sullivan "p'rohabli would ery seriously con-
sidler not setting any more chicks if you went union" (em-
phasis supplied). Credited testimony of Respondent's em-
ployee JoAnn Blanton, who is still in its employ and is a
witness of impressive demeanor, establishes that on this oc-
casion Motz also told the employees, "Somie of Jyou hascl
been misled about the union.... I refused to work under
union . . . if the union isl voted in 11 will[ close within
twenty-tIour hours and that [is ourl final wsarning and
some of you [will] be without a job and that's the wa it
[will] be."
UIpon the basis of' Motz's owin test lmons. s ,,ell ias Re-
spondent's own answer (par. 5[a[), I find the complaint alle-
gations par. 5lal and [d]) concerning threats of plant clo-
sure in the event of selection bh the employees of the Union
as their bargaining representative sustained.
The statutory representation election which occurred un-
der Board auspices the next day, August 15. resulted in a
vote of 5 for and 6 against representation by the iUnion out
of 16 valid votes cast: 5 ballots, sutficienlt to affect the elec-
tion outcome, were challenged. The challenged ballots. as
well as the lJnion's objections o employer conduct affect-
ing the results of the election, will be considered infia. "''I
Renlt(A. "
During the hearing this case the complaint was amended
to allege (new par. 6, succeeding paragraphs renumbered
accordingly), that on February 20 2 days before the hear-
ing-- Respondent would not permit its employee and lead-
ing union advocate JoAnn Blanton to work and, in viola-
tion of Section 8(a)(3). (4). and (I) of the Act, docked her
for that day's pay because she had been subpenaed to at-
tend this hearing that da)y. The circumstances were as fol-
lows. Blanton had been subpenaed for this hearing in the
expectation that it would take place on February 20. and
she so informed Motz late in the afternoon of February 19.
' Molz conceded that there had been no indication of a work stoppage by
the Union in the event of unionization.
6 Motz characterized Sullivan as "vehemently antiunion." According to
Motz. he has been obtaining 90 percent of his live chickens from Sullivan.
and he Motz) claims that if this source of supply ceased he ould have to
buy already slaughtered chickens elsewhere. M,tz testified. hoever. that for
the past 6 months about 40 percent of Respondent's business has consisted of
selling previously dressed (i.e.. already slaughtered elsewhere) chickens.
which Respondent cuts up into parts and repackages. and the remaining 60
percent of selling the chickens which Respondent itself has slaughtered.
Moltz also conceded on cross-examination that Sullivan had indicated that in
the event of unionization he (Sullivan) would "probably have to quit setting
chickens" on 10 weeks advance notice (emphasis is supplied).
I We have been instructed that a currently employed employee who testi-
fies adversely to her or his employer's interest maN. by reason of that fact.
merit added credence because c the possible hazard tojob involved in such
a course. Georgia Rug Mill, 131 N.RB 1304. 1305. fn. 2 1961. enfd. as
modified. 308 F2d 89 5th Cir. 1962):. 4irr: B.4.(' Steel Products. Inc.,
312 F 2d 14. 16 (4th (ir 1962)
575
I)t('ISIONS )F NAI IO()NAI. I.ABOR REI.Al'IONS BOARDI
Mol/. ho had himself been uhpcnaicd. arranged for sub-
stittules' for 1Blanton and other subpenaed eployees. h'lat
everlinlg (l:ebruary 20). between II p.m. and midnight.
Mot/ learned that because ot a heavN snowstorm the hear-
ing could not take place on February' 20 as scheduled but
had been postponed to I ebruary 22. When the substitute
employees (i.e.. substituting for the subpenaed employees).
as well as the regular work crew (including Blanton).
showed up or work the next morning (February 21). Motz
found himself with an excess number of employees.? Ac-
cordingly at around 7:45 a.m. (about 15 minutes alter start-
ing time). Motz sent Blanton home for the day. When Blan-
ton protested that her substitute. Dunlop (who normally
did not work on Tuesday). should he excused, Motz did not
agree. since he had specifically arranged the day before for
Dunlop to come in and allegedly could not reach Dunlop
after he heard about the case postponement shortly before
midnight. Blanton was the only employee released by Motz
of the four extia employees on hand on Tuesday morning.
Blanton's substitute. Dunlop, also left voluntarily at around
10 a.m.
Concerning this incident, while Motz may have exercised
poor judgment in Blanton's opinion in excusing her rather
than anyone else, under all of the circumstances I do not
believe that there is sufficient basis, without impermissible
assumption and guesswork. fobr finding and concluding that
Motz' action was linked to Blanton's union activities or her
having been subpenaed, as alleged. Other employees, also
involved in union activities and likewise subpenaed. were
not sent home by Motz who, faced with four unneeded
employees only because he had made arrangements for sub-
stitutes to work in place of subpenaed employees (whom he
had apparently excused without question), exercised judg-
ment to cut his losses by sending one of them home. While
his limitation of his choice to Blanton may be viewed with
suspicion by Blanton. there is in my opinion insufficient
basis for inferring that it was for a reason violative of the
Act. Accordingly, I find this allegation of the complaint. as
amended, not sustained.
The other allegations of the complaint, however, have
been established, including, by Respondent's own testi-
mony and answer, the serious violation of flouting congres-
sionally declared national labor policy by threatening to
close its business down out suite in the event that its em-
ployees continued to attempt to bargain with it collectively
through a union a fundamental right guaranteed to them
by the Act.
Respondent insists that neither it nor its supplier Sulli-
van ' ° can operate "under" a union because of the possibility
of a strike or "work interruption."" While Respondent con-
i I.e.. employees who normally did not work on the day in question, Feb-
ruary 20, a Tuesday.
9 According to Motz. perhaps 14 instead of the usual 10 on Tuesday. and
nonslaughter day (as distinguished from 16 on Monday. Wednesday. and
Friday. slaughter days).
'0 Without explanation. Sullivan was not produced to testily.
i1 Work interruptions or strikes may. of course. occur even in the absence
of a union. Conversely, they need not occur under a union. There is abso-
lutely no indication. as Motz conceded at the hearing, that a strike was
threatened or mentioned here or that it would have occurred or was neces-
sarily linked to the employees' exercise of their right to bargain collectively
through a union.
Jures up the appalling spectre of thousands of chickens run-
ning around its premises with nobody on hand to slaughter
them chickens running around wit/hour their heads
chopped off, so to speak --and laments what it regards as
the socially undesirable or economically unacceptable ap-
plicability of the Act to chickens and other perishables.
such arguments should be addressed to Congress which did
not see fit to provide such an exemption from the Act's
coverage.
As has been emphasized repeatedly, employer threats to
employees to go out of business in the event that they oin a
union and seek to bargain collectively are particularly nox-
ious and pernicious. See. e.g., N...R.B. v. isvcl Pc-Anlg
Co.. Inc., 395 U.S. 575, 611, footnote 31 (1969). I.nking
such threats of business discontinuance to supposed busi-
ness connections is nonetheless pernicious. Thus, the Board
held Section 8(a)( I) violated by an employer who informed
an employee that whether the employer would obtain an-
other contract would depend upon whether the union came
into the plant. See Aero Corporation, 149 NLRB 1283. 1284
(1964). enfd. 363 F.2d 702 (D.C. Cir. 1966): see also Re/-
('hem Comnpan,y. 153 NLRB 488. 491 (1965). The Act was
likewise violated where an employer indicated to employees
that although he could not say "whether the plant would
move or not.... he would say two of our biggest customers
. wouldn't do business with a union company because of
the fear of shortage of products due to strike." See Interna-
tinal Union of Electrical, Radio and Mac/hine WorAcr.
A FL CIO (NECO Electric Products. Corp.) v. N. L. R. B., 289
F.2d 757, 762 (D.C. Cir. 1960). Here. according to Motz,
live chickens comprised only a 60 percent component of his
business, and it has not been credibly established that there
were no alternative sources of supply other than Sullivan.
even in the improbable evernt-also not credibly estab-
lished-that Sullivan would absolutely refuse to deal with a
"unionized" customer. Nor is it established that Respon-
dent could not, in case of a necessity which is sheerly specu-
lative. expand the frozen-chicken component or dead-
chicken component of his operations and trade and, al-
though the phantom possibility of a strike is raised, that too
is sheer speculation and is not a justification for refusing to
obey the Act. Respondent's statement to his employees that
collective bargaining would be "futile"--his own expres-
sion. as testified by him-is further indication of Respon-
dent's basic opposition to the Act's requirement since his
employees have the right and he the obligation to do so
without advance obdurate posturing that it would be fruit-
less. Cf. Red Barns System, Ic., 224 NLRB 1586, 1587
(1976), enfd. 574 F.2d 315 (6th Cir. 1976).
Upon the foregoing findings and the entire record I state
the following:
CONCI.L'SIONS OF LAW
I. Jurisdiction is properly asserted in this proceeding.
2. By engaging in the following acts, under the circum-
stances described and fbund in "I1." supra, Respondent has
interfered with, restrained, and coerced its employees in the
exercise of their rights under Section 7 and has thereby
violated Section 8(a)(1) of the Act by:
(a) Interrogation of employees.
576
MOTZ POULTRY COMPANY
(b) Procuring an employee to sign a statement, contrary
to fact, that he did not know what he was doing when he
executed a union authorization card.
(c) Threatening employees with plant shutdown and
going out of business in the event of unionization and at-
tempts by employees to bargain collectively through a
union.
3. By falling and refusing to recognize and bargain col-
lectively with the Charging Party Union herein as the duly
authorized bargaining representative of its employees in the
appropriate bargaining unit, at all times on and since June
30, 1978, under the circumstances described supra. Respon-
dent has violated and continues to violate Section 8(a)(5)
and ( ) of the Act.
The appropriate collective-bargaining unit is:
All full-time and regular part-time production and
maintenance employees and truck drivers employed at
Respondent's Batavia. Ohio, facility, but excluding all
summer student employees, office clerical employees.
professional employees, guards and supervisors as de-
fined in the Act.
4. The aforesaid unfair labor practices have affected, af-
fect, and unless permanently restrained and enjoined will
continue to affect commerce within the meaning of Section
2(6) and (7) of the Act.
5. It has not been established by substantial credible evi-
dence that, as alleged in paragraph 6 of the complaint as
amended and renumbered. Respondent violated Section
8(a)(1), (3), or (4) of the Act by excusing employee JoAnn
Blanton from work without pay on February 20, 1979. un-
der the circumstances described supra.
TilF RMID)Y
We now come to the matter of remedying Respondent's
unfair labor practices.
With regard to the unfair labor practices consisting of the
violations of Section 8(a)(1) which have been found, the
usual cease-and-desist provisions in such circumstances
should be required.
There remains the question of whether, under the cir-
cumstances shown, a bargaining requirement should be im-
posed, as sought in the complaint and urged by General
Counsel, under the authority of N . R.B. v. Gissel Packing
Co., Inc., 395 U.S. 575 (1969).
In Gissel the Supreme Court unanimously instructed us
that a bargaining order without an election is called for
when an employer who has refused to recognize a union
holding majority bargaining authorizational credentials
has, during the interval awaiting the statutory election, en-
gaged in "practices which ... have the tendency to under-
mine [union] majority strength and impede the election pro-
cesses" (id. at 614). with the prospect of erasure of the
effects of such actions and insurance of a fair election slight.
so that "employee sentiment once expressed through cards
would, on balance, be better protected by a bargaining or-
der" (id at 614-615).
As pointed out by the Court in Gissel. supra, 395 U.S. at
619 620, "[T]he Board has often found that employees.
who are particularly sensitive to rumors of plant closings.
take such hints as coercive threats rather than honest fore-
casts." Such threats are expressly excepted from the "free
speech" proviso of Section 8(c) of the Act. Cf. L. R.B. v.
l'irginia Electric & Power Company. 314 U.S. 469. 477. 478
(1941).
"The Board and the courts have long recognized that
threats to close down a facility because of union activity are
among the most serious and flagrant frms of interference
with the free exercise of employee rights." Philadelphia 4m-
bulancc Service. Inc.. 238 NLRB 1070 (1978). "Moreover, as
the Supreme Court has indicated, threats to close an em-
ployer's operations are among the most effective unfair la-
bor practices' to destroy election conditions for a longer
period of time than others.' Gissel Packing Co.. vitpra. 392
U.S. at 611. fn. 31." Id. Here. as in Philadelphia Alihth/lace.
"Respondent Employer's unfair labor practices have unde-
niably dissipated the Union's prior showing of majority
support and will continue to dampen the enthusiam for
union activity" in view of the small size of the unit and one-
man business and the fact that two employees' withdrew
their support following the employer's threat of plant clo-
sure (id. at 5 6.
Under these circumstances a Gissel bargaining order is
called for here if the Union held a valid "card" majorit in
the bargaining unit when on June 30. 1978. it requested and
Respondent refused recognition and collective bargaining.
It is therefore necessary to address the question of the
Union's "card" strength at that time in terms of the arith-
metic of the composition of the concededly appropriate col-
lective-bargaining unit. The answer to the question turns
upon whether five employees were members of the bargain-
ing unit-issues also presented by challenges to their five
ballots in the representation case ("VI," inf/ra). The five per-
sons in question will therefore now be considered.
JoAnn liaas
General Counsel contends. as does the Charging Part-
Petitioner Union. that JoAnn Hass is not properly to he
considered a member of the bargaining unit because of her
supervisory status and because she is the sister of Respon-
dent's principal and sole owner Motz.
While Motz attempts to downgrade his sister's level of
authority, he himself testified that she "screens" emplov-
ment applicants, eliminating those she regards as unsuitable
and effectively recommending others to Motz for proba-
tionary hire. She and John Motz, Motz' brother. each re-
ceive $5.50 per hour: the next highest paid employees re-
ceive $4 per hour. Without explanation. JoAnn Haas was
not called to testify.
Credited testimony of employees Blanton and Harper es-
tablish that they were interviewed. hired. and instructed to
report to work by JoAnn Haas. who also fixed their wage
rates and issued them work clothes: that Haas assigns em-
ployees to jobs and work (as does Motz): that Haas checks
on and corrects employees' timecards: that Haas is notified
u As here, Jessee (supra) and Collins the latter even refraining from vot-
ing in the election since. as she expressed it at the hearing. "I didn't want
nobody to be against me " I do not agree with Respondent's counsel'. char-
acterization of this as having "ound God."
577
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
by employees in case of employees lateness, absence. or
early departure: and that Haas instructs employees when
not to come in.
Although Haas also works "on the line" as does
Motz-this is not inconsistent with the possession of that
supervisory status, which she undoubtedly has under the
Act's definition, since she exercises power over other em-
ployees not only in Motz' absence but also while he is pre-
sent. Since, without explanation, she did not testify in any
way to controvert the testimonies of Blanton and Harper, it
cannot be assumed that had she testified her testimony
would have contradicted those of employees or otherwise
would have supported her alleged unit membership status.
Both by reason of her supervisory status within the Act's
definition and because of close consanguinity with Respon-
dent's principal and sole owner JoAnn Haas may not prop-
erly be regarded as having a community of interest with
Respondent's rank-and-file employees, and therefore she
should not be included in the bargaining unit.
Peter and Luke Haas
Peter and Luke Haas are high-school boys, the sons of
JoAnn Haas and the nephews of Respondent's principal
and sole owner Motz. Although the bargaining unit in-
cludes "regular part-time" employees, it specifically ex-
cludes "all summer student employees." Without explana-
tion, neither Peter nor Luke Haas was called to testif, the
only testimony concerning them was given by Motz him-
self. According to Motz, prior to May 1978 Peter and
Luke-both then not yet 16-stopped working for Respon-
dent when it was fined for employing persons under 16.
Luke turned 16 around May 1977. and Peter became 16 in
May 1978. They returned to school in September 1978 and
thereafter were unneeded and did not work until about [)e-
cember 10, 1978; since then they have worked 3 days a
week (Monday. Wednesday, and Friday, i.e.. slaughtering
days), after school unless there are no chickens to slaughter.
They do not participate in Respondent's insurance pro-
grams as do the other employees. They are paid $3 per
hour, $1 less than the next lowest paid employees.
Inclusion or exclusion of the two Haas boys must he de-
termined as of June 30, 1978, the date of the Union's de-
mand for recognition. Upon the facts presented it would
seem that at that time (as well as on August 15, 1978. when
the ballots they attempted to cast in the election were chal-
lenged), they came within the unit definition's exclusion of
"summer student employees." since they returned to school
at the end of the summer. Whether their status subse-
quently changed in December 1978 is not here relevant and
need not be determined since that date is not controlling.
Upon the facts presented it is found that Peter and Luke
Haas were not members of the bargaining unit on June 30.
1978 (nor on August 15, 1978).
Harold Hall
General Counsel and the Charging Party contend that
Harold Hall should not be considered as a unit employee
because he was retired at the time material herein.
Hall entered Respondent's employ in 1957; he became a
social security annuitant in 1973 and 1974. thereafter work-
ing 2 or 3 days a week only up to the point where no social
security benefit forfeiture wats incurred. In June 1977 Hall
sustained serious head and other injuries in an automobile
accident. Since then he has worked a total of only 3 1/2
days. the last time in early July 1978. when he was unable
to remain at work because of head pain and dizziness and
notified Respondent that although he could be called in
case of "emergency" he would prefer not to until his head
"straightened out." Motz concedes that he would not call
lall back except "for short help" only in case of a "very
serious emergency" if no other help was available. Hall and
his wife are on the medicare plan. and Respondent contin-
ues to carry them on a reduced hospitalization premium
($13 instead of around $100 per month). Hlall has been
medically advised not to work or drive unless he wants to
"try." Hall stated to union representative Freeman, who
visited him at his home when he saw all's name included
on the Employer's proposed Excelsior voting eligibility list.
that since his automobile accident he had "fainting spells
and blacked out" and was "retired and ... would never go
back to work." The testimony of Freeman was not contra-
dicted by Hall.
Upon the facts presented it appears conjectural whether
Hall will, in the foreseeable future, be able to return to his
former work status which was not "'Tull-time" nor even
arguably "regular part-time."'' but at best that of' a social
security annuitant working only part of the year. Motz him-
self testified that he would not call on him to work except
"for short help" in a "very serious emergency." Under the
circumstances it would seem that as a retired or semi-re-
tired former employee whose possible recall "for short
help" only in a "very serious emergency" is itself conjec-
tural at best, he has become hardly even an occasional or
casual employee. and that he no longer possesses sufficient
community of interest with the other employees to he clas-
sified as a "full-time [or] regular part-time" employee
within the unit's definition so as to warrant his inclusion as
a member of the bargaining unit at the time here material,
and accordingly it is so fbund.''
1' (C. Scientiic Pe ( ontllrol (;rploralioln. 224 N LRB 1651. 1657 ( 1976):
Baudo: (Carts Shou Printing Co., Inc, 219 NL.RB 739. 754 755 (1975): Noga:
Sewell Pla.ics. Inc'. 212 NL.RB 839. 848 (1974) Dodson: enfd. 526 F.2d 589,
(4th Cir. 1975); HolitlO,a Inns o Am erica. Insc d/hb/a Holida Inn of Okridge,
Tenne.ssee, Emplover. 176 NLRB 939. 940 (1969) Eatherly: enid. 440 F1.2d
994 (6th C(ir. 1971); Davis Transporr, Inc.. 169 NLRB 557. 562 (1968). enfd
433 F.2d 363 (6th Cir. 1970): Sullivan Surphs Sales Inc, 152 NLRB 132,
155 156 (1965). I do not regard the fact that Respondent continues to lund
small hospitalization contributions to supplement medicare as establishing
that Hall is still in Respondent's employ. Even aside irom consideratiols of
friendship. compassion, or charity which might impel such pay meals, m;all
in amount as the) are. it is not unusual for an emploser to continue to carry
a retired employee, particularly one who was worked for him as long as Hall
did here (since 1957 over 20 years). on such coverage in order Io save such
an old and taithlul employee from being dropped from his "group" and thus
losing the coverage he presumably needs more than ever after retirement or
in order iti bolster morale among his employees by giving them those assur-
ances as an employment benefit or as an earned reward for long and faithful
service The Federal Government. (lr example. des this Continuation o(
such benefits by an employer simply does not establish that a person is still
an active. as distinguished from an inactive or even retired. employee. Intru-
sion of retired employees into bargaining units of actively eployed employed ly-
ees would dislocate the statutor3 representation (and balloting) process ensl-
sioned by the Act. (T A//ied C(heni- & AlIIah 14ls (,rA td 4iera,( .lo, I
Unison V,. I Workers' v. Pilsurgh Plate Ghil (Co . hnimal Diisin. i1 a11.
404 U.S. 157 (1971).
578
MOTZ POULTRY COMPANY
Joyce Harper
The fifth and final employee to he considered is Joyce
Harper, whom Respondent Employer would exclude from
the bargaining unit.
Joyce Harper entered Respondent's employ in August
1977. Around June 10, 1978, she notified JoAnn Haas that
she would be starting to work in a nursing home on July 4.
and asked if she could thereafter continue working for Re-
spondent on Wednesdays only (her day off in the nursing
home job). Motz approved this, and starting July 4 Harper
commenced working at the nursing home and worked for
Respondent on every Wednesday only. oward the end of
July Harper lost her job at the nursing home and resumed
her previous work schedule-Mondays, Wednesdays, and
Fridays'4-with Respondent.
I find that since, at the times here material. Joyce Harper
was at least a "regular part-time" employee, she should
properly be included in the bargaining unit.
Applying these findings to the stipulated gross list of 18
unit employees including those sought by either side to he
excluded (Joint Exh. I), results in a net total of 14 unit
employees.'" Of these 14 employees. 9 executed valid union
representation authorizational cards'", or 64 percent.
14There may have been a brief interval until August during which, at
Respondent's request. Harper worked regularly only on Mondays and
Wednesdays.
1 I.e., the 18 employees listed on J. Exh. I less JoAnn Haas. Peter Haas,
Luke Haas. and Harold Hall.
16 Although Respondent contests the cards of Jessee and Collins, I find
both of those cards valid and effective as of the dates of their execution and
union recognitional demand (June 30). With regard to Jessee. it is observed
that his employer-induced affidavit concerning his card is dated July 15 2
weeks after the Union's recognitional request and Respondent's prompt
threat thereafter to its employees that it would close its plant within 24 hours
if a union came in. The fact that Jessee may have changed his mind there-
after does not diminish the validity of his card on June 30. when the Union
made its demand. See Gissel, supra, 395 U.S. at 611, fn. 31. and b19 620;
Philadelphia Ambulance Service. Inc., supra, 238 NLRB 1070 (1978). More-
over, based upon close testimonial demeanor observations I do not credit
Jessee's testimony that he did not read or "understand" (he added the work
"completely" on cross examination), the card. which he never attempted to
retneve or cancel. Jessee's testimony at the hearing is also inconsistent with
the affidavit (G.C. Exh. 5, which his Employer solicited on July 15. In that
employer-induced affidavit Jessee swore that he "signed a card without being
explained to what it was for or about. I had just assumed it was something
that I was supposed to sign being I had just recently started working here.
Later finding out it was to organize a union." At the hearing. however. Jessee
testified that after looking at the card presented to him he asked "what
exactly is it about" and was told "It's about a union ... ages and something
like that." [Emphasis supplied.) Furthermore. the United States Supreme
Court has instructed us to beware of employees' ruminations. second
thoughts. and attempted evasive explanations concerning such authoriza-
tions, particularly following coercive practices by employers intent on pre-
venting employees from exercising rights to bargain collectively under the
Act. such as-like here-by threatening to go out of business if the employ-
ees pursue that course. See Gissel. supra; Texaco. Inc., v. N .. R B. 436 F.2d
520, 524 (7th Cir. 1971); N.LR.B v. American Art Indusries. Inc. 415 F.2d
1223. 1228-29 (5th Cir. 1969), cert. denied 397 U.S. 990 (1970): Inernatrional
Union. UA W v. N. LR.B. (Preston Products Co.. Inc). 392 F.2d 801. 807-8
(D.C Cir. 1967), cert. denied 382 U.S. 906 (1968); IUE v. .V I R B (S N.(C
Manufacturing Company, Inc.). concurring opinion of Burger. J.. 352 F.2d
361 at 363 64 (D.C., 1965). cert. denied 382 U.S. 902 (1965): N.L.R.B. v.
Cumberland Shoe Corporation. 351 F.2d 917 (6th Cir. 1965): N L.R.B. v.
Mid-West Towel and Linen Service. Inc.. 339 F.2d 958. 963 (7th Cir. 1964).
After carefully observing and listening to Jessee testify. I am persuaded that
he was aware of what he was signing and what the card was for, and I credit
the testimony of JoAnn Blanton, who solicited Jessee to sign that card, that
The Union's majority bargaining authorization status in
the unit thus being established as a predicate for a Gise/
bargaining order, that remedy will be recommended here in
view of Respondent's reiterated threats to close down its
operations within 24 hours in the event its employees per-
sisted in attempting to bargaining collectively in exercise of
their ederal> guaranteed right.
Ttil REPRESEN A ION CASE
As has been indicated, Case 9 RC 12545 involving four
union objections to employer conduct affecting the results
of the statutory election of August 15. 1978. as well four
union challenges (JoAnn Haas. Peter Haas. L.uke laas, and
Harold Hall), and one employer challenge (Joyce Harper)
to ballots, are also here by consolidation. T'he above resolu-
tion of' the remediation aspect of the foregoing unfair labor
practice case, in connection with determination of' the com-
position of the bargaining unit at the time of the Union's
recognitional/bargaining demand, has also resolved the is-
sues presented by these challenged ballots in the representa-
tion case, and it is unnecessary to reiterate them here. Ac-
cordingly. the Petitioner-Union's challenges to the ballots
of JoAnn Haas. Peter Haas. Luke Haas. and Harold Hall
should be sustained, and the Employer's challenge to the
ballot of Joyce Harper should be overruled.
Insoflhr as the Petitioner-Union's Objections to employer
conduct affecting the results of the election are concerned.
in view of the recommended bargaining order without an-
other election. those objections have become mooted. and it
is not now necessary to resolve them.''
she "told him we was trying to get a union in to help us in wages and
working conditions." and that after she told him to read it he indicated that
he had.
Insofar as the card of Lydia Collins is concerned, she concededl 5 attended
a union organizing meeting and signed the card. There is asolutely no
indication or reason to believe it was in any way misrepresented to her, that
she was coerced into signing it. or that she did not clearls understand what it
was for. The mere fact that she did not vote at the subsequent election
because. as she testified. "I didn't want nobody to he against me." is no basis
for invalidating her card.
' Were the issues not moo)ted I would recommend as llows concerning
those four objeclions. Objection I and 2 allege that Respondent's principal,
Motz. ordered Petitioner-Union's officials as well as the Board agent off the
Employer's premises and also struck a Board agent with the Employer's
Excelsior voting eligibility list at the preelection conference. Union business
representative and organizer Ralph Freeman testified credibly that when he
entered Respondent's premises with Board Agent Deborah Grayson and
union observer JoAnn Blanton at about 4:15 p.m. on August 15 (election
day), for the scheduled 4:30 preelection conference. Motz approached them
with, "Who the hell are all these people in here." and after Grayson ex-
plained Motz exclaimed. "I don't want any election here Get out of here." at
the same time "slamlmingl . into" (direct examination). or "acrossed"
(cross-examination). Grayson's "midsection" the Excelsior list which Gras-
son had handed to Motz. Blanton corroborates Freeman's testimony con-
cerning the episode involving the Ecelsior list and adds that Board Agent
Grayson. who is slight (under 5 feet). in contrast to Motz (6 eet 3 inches and
at least 230 pounds). remarked to Motz that it was "uncalled for to carrs
on like that." Without explanation. Board Agent Grayson was not called o
testify. nor was company election objserver Stockton (who was also presentl.
called to testify. nor did Motz testify on this subject. In view ofi Motz' ailure
to dispute the foregoing testimony or to present any countervailing proof. I
credit Freeman's testimony concerning Motz' ordering Petitioner as well a:
Board Agent Grayson off the Employer's premises at the preelection conler-
ence and find Objection I susta;iled. As to Objection 2. however, alleging
that Board Agent Grayson was "struck" by Motl with the Eicsi,r list, I
hesitate to find so potentially serious a charge involving a possible battery
(C oninuedi
579
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of act, conclu-
sions of law, and the entire record in this consolidated pro-
ceeding. and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER'S
It is hereby ordered that the Respondent, Motz Poultry
Company. Batavia. Ohio, its officers, agents, successors.
and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their or other
employees' union membership, affiliation, sympathies, de-
sires, activities, or other protected concerted activities so as
to interfere with, restrain, or coerce employees in the exer-
cise of any right set forth in Section 7 of the National Labor
Relations Act. as amended.
(b) Coercing any employee into executing a statement
that he did not know what he was doing when he executed
a union authorization card.
(c) Threatening employees with closure, shutdown, or re-
moval of its plant or business or loss of employees' jobs or
benefits or other job or economic reprisals in the event its
employees effect or maintain union affiliation or adherence
or in the event of unionization or employees' persistence in
attempting to exercise their right under the Act to bargain
collectively with Respondent.
(d) Failing or refusing to bargain collectively in good
faith with Amalgamated Allied Industrial Processing. Local
#7. affiliated with Amalgamated Meat Cutters and
Butcher Workmen of North America, AFI. -CIO. as the
against a Federal official in the performance olduty established, particularly
in view of the failure of' Board Agent Grayson to testify. It noted that union
representative Freeman varied his direct testimony that the list was
"slammed into" Grayson to "acrossed" her. on cross-examination. A gesture
of the described variety, particularly if brusquely executed, is readily subject
to misinterpretation. Motz is extremely large, with a truly imposing phy-
sique, in comparison to Board Agent Grayson, who is at the other end of the
physique spectrum, and no reason is apparent why Motz would attempt to
harm her. Under all of the circumstances, giving Motz the benefit of the
doubt, I find that the incident, cast as alleged in Objection 2, is not persua-
sively established.
Insofar as Objections 3 and 4 are concerned, they have already been dealt
with in the underlying unfair labor practices case. supra. Objection 3: Motz
threat to employees on June 30 that he would shut down within 24 hours of
unionization Objection 4: Involved coercing an employee into supplying
written statement that he did not know what he was doing when he executed
his union authorization card. Inasmuch as the quantum of proof to establish
these allegations is less in a representation case than in an unfair labor
practices case (Super Thrit Markets. Inc., T7A Enola Super Thrift, 233
NLRB 409 (1977): Dal-Tex Optical Company Inc., 137 NLRB 1782, 1786 87
(19621), they may be regarded as established for purposes of the representa-
tion case in view of their establishment in the unfair labor practices case
supra. Although Objection 3 refers to Motz' shutdown threat of June 30, and
for purposes of election objections the critical material period is between the
July 3 filing of the election petition and the August 15 election date (Good-
year Tire and Rubber Company, 138 NLRB 453 (1962); The Ideal Electric ieand
Manufacturing Company, 134 NLRB 1275, 1278 (1961)), it is to be noted
that, as found, supra, Motz' shutdown threat was reiterated on August 14. 1
day before the election-ample cause to justify setting the election aside,
even if not explicitly identified by date in objections. Cf. American Safety
Equipment Corporation, 234 NLRB 501 (1978).
is In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order which follows herein shall, as pro-
vided in Sec. 102.48 of those Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and Order, and all objections
thereto shall be deemed waived for all purposes.
exclusive collective-bargaining representative of its employ-
ees in an appropriate unit consisting of all of its full-time
and regular part-time production and maintenance employ-
ees and truckdrivers employed at its Batavia, Ohio, facility,
but excluding all summer student employees, office clerical
employees, professional employees, guards, and supervisors
as defined in the National Labor Relations Act.
(el In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization: to form, join, or assist any labor organization:
to bargain collectively through representatives of their own
choosing: to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection:
or to refrain from any and all such activities. except to the
extent that such right may be affected by an agreement
lawfully requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a)(3)
of the Act. as modified by the Labor-Management Report-
ing and Disclosure Act of 1959.
2. Take the following affirmative actions which are nec-
essary to effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively in
good faith with Amalgamated Allied Industrial Processing.
Local 7, affiliated with Amalgamated Meat Cutters and
Butcher Workmen of North America. AFL ('10, as of'
June 30, 1978. as the exclusive bargaining representative
of Respondent's employees in the aforesaid appropriate col-
lective bargaining unit with respect to rates of pay. wages,
hours of employment, and other terms and conditions of
employment and embody in a signed contract any under-
standing reached.
(b) Post at its premises in Batavia. Ohio. copies of the
notice attached hereto marked "Appendix."'T Copies of said
notice, on forms provided by the Regional Director for Re-
gion 9 shall, after being signed by Respondent's authorized
representative, be posted in said premises by Respondent,
immediately upon receipt thereof. and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced. or covered by any
other material.
(c) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply therewith.
I1' Is FURIHER RDEREI) that paragraph 6 of the com-
plaint, as amended and renumbered, be, and it hereby is.
dismissed.
And it is hereby recommended that the Board issue an
order dismissing Case 9-RC-12545 and vacating all pro-
ceedings had therein including the election held on August
15, 1978.
'1('T. Trading Por, Inc.. 219 NLRB 298. 300 301 (1975); NI..RB. v.
Eagle Material Handling. Inc., 558 F.2d 160, 168 3d Cir 1977); Ann Lee
Sportswear. Inc. . N.L.R.B.. 543 F.2d 739, 744 (10th Cir. 1976). The bar-
gaining request and refusal, as well as the inception of the unfair labor
practices here, were on June 30, 1978.
"2 In the event that this Order is enforced b a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
580