Seneca Foods Corp.

National Labor Relations Board - Board Decisions

Aug 23, 1979

244 N.L.R.B. 558 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seneca Foods Corporation and International Union of
Operating Engineers, Local Union No. 280, AFL-
CIO and Jack Lee McMurrin. Cases 19--CA
10404, 19 RC-8821, and 19 CA- 10605
August 23, 1979
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS JENKINS, MURPHY, AND TRUESDAI.E
On March 5. 1979, Administrative Law Judge Ber-
nard J. Seff issued the attached Decision in this pro-
ceeding. On March 22, 1979, he issued an errata.
Thereafter, Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a brief in
support of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of' the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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 briefs
and has decided to affirm the rulings, findings.2 and
conclusions3 of the Administrative Law Judge, as
modified herein.
'The Administrative Law Judge inadvertently substituted the name
"Mount." for the name "Zyph." in the first sentence of the last par. in sec. F
of his Decision.
2 We find no merit in Respondent's allegations of bias on the part of the
Administrative Law Judge. There is no basis for finding that bias or partial-
ity existed merely because the Administrative l.aw Judge resolved important
factual conflicts in favor of the General Counsel's witnesses or cited portions
of the General Counsel's brief to the Administrative Law Judge. As the
Supreme Court has stated, "[tIotal rejection of an opposed view cannot of
itself impugn the integrity or competence of a trier of fact." N.L.R.B. v.
Pittsburgh Steamship Company, 337 U.S. 656, 659 (1949). Moreover, it is the
Board's established policy not to overrule an administrative law judge's reso-
lutions with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Standard
Dry Wall Products. Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for reversing
his findings.
3 Respondent argues that the election at issue herein should not be set
aside. We do not agree. The Union filed one objection to the election which
the Regional Director recommended overruling in his Report on Objections.
However, the Regional Director stated that during the investigation of the
charge filed against Respondent by the Union I day after the Union filed its
objection certain conduct was discovered that affected the outcome of the
election. He determined that the issues raised by the discovered conduct
could best be resolved by a hearing and recommended that the representa-
tion case be consolidated with the complaint case. No exceptions were taken
to the Regional Director's report. Nevertheless. Respondent contends in its
exceptions to the Administrative Law Judge's Decision that the election
should be set aside because the Union's objection was overruled. We find no
merit in this contention. A regional director is permitted to set aside an
eleetion on the basis of conduct discovered during an investigation even
though that particular conduct was not the subject of a specific objection.
Dayton Tire and Rubber Co., 234 NLRB 504 (1978), and American Safety
Equipment Corporation, 234 NLRB 501 (1978). The same is true here, where
the Regional Director discovered conduct affecting the outcome of the elec-
tion during the investigation of a charge filed I day after the filing of objec-
tions to the election. Accordingly, we affirm the Administrative Law Judge's
conclusion that the election should be set aside and a second election di-
rected.
The Administrative Law Judge found that Respon-
dent did not violate Section 8(a)(3) and (I) of the Act
by issuing two warning letters to employee Jack Lee
MucMurrin and by suspending him for 3 days. No
exception was taken to this finding. However, the Ad-
ministrative Law Judge made the additional finding
that the first warning letter and the suspension were
issued in violation of Section 8(a)(4) and (1) of the
Act. We disagree with the Administrative aw
Judge's finding that Respondent violated Section
8(a)(4) of the Act for reasons set forth below.
The first warning letter, dated July 13, 1978, 4 states
that on April 14 McMurrin was verbally warned
about harassment of other employees on company
time, and that on July 12 several employees reported
to Supervisor Gary Mount that McMurrin had re-
sumed harassing employees. The letter further in-
formed McMurrin that he was suspended for 3 days
effective July 14 through 18.5 The Administrative
Law Judge concluded that the issuance of this letter
and the suspension were caused by McMurrin's ha-
rassment of employees. In reaching this conclusion he
relied on the credited testimony of employee Hudson
that shortly after Hudson circulated an antiunion pe-
tition McMurrin repeatedly called out to Hudson
while Hudson was working that Hudson was a
"brown noser" an a "son of a bitch," that his car tires
would be slashed and his windshield broken if he
crossed any picket line established by the Union, and
that he would have to go to court because of the anti-
union petition. The Administrative Law Judge fur-
ther relied on the credited testimony of leadman
Ouderkirk that Hudson had complained to him about
McMurrin's conduct several times, that Ouderkirk
had observed McMurrin engaging in the conduct de-
scribed by Hudson, that McMurrin had often told
Ouderkirk that he would have to go to court because
of the unfair labor practice complaint against Re-
spondent, and that Ouderkirk complained to Supervi-
sor Mount about McMurrin's behavior toward Hud-
son and him. Additional reliance was placed on the
credited testimony of Plant Manager Madden to the
effect that Respondent was concerned about McMur-
rin's statements to Hudson because they were dis-
tracting Hudson from his work and creating a poten-
' All dates are in 1978 unless otherwise indicated.
I The second letter, dated August 16. stated that McMurrin had been told
several times by Supervisor Mount on August 15 and by McMurrin's lead-
man on August 15 and 16 to clean his press area, that he had not done so,
and that his performance did not meet with required standards of sanitary
operation.
The General Counsel alleges that the August 16 letter, as well as the July
13 letter and suspension, were issued to McMurrin in violation of Sec. 8(aX3)
and (4) of the Act. The Administrative Law Judge dismissed without discus-
sion the allegation with respect to the August 16 letter. The General Counsel
does not except to this ruling.
244 NLRB No. 80
558
SENLCA FOODS CORPORATION
tially dangerous situation in that Hudson operated a
concentrator machine containing a steam valve which
could cause an explosion if not carefully adjusted. Fi-
nally the Administrative Law Judge drew support
from the credited testimony of Supervisor Mount that
when he gave the warning letter to McMurrin Mc-
Murrin told Mount that if he would not give him the
letter and suspension McMurrin would stop bother-
ing people.
Thus, the Administrative Law Judge found that
McMurrin harassed Hudson and Ouderkirk on the
job, that Respondent was particularly concerned with
the effect of the harassment on Hudson's ability to
operate the concentrator machine safely, and that
McMurrin conceded to Mount that he had been
bothering employees. He concluded. therefore, that
this harassment led to Respondent's July 13 discipline
of McMurrin, and that such discipline did not violate
Section 8(a)(3) and (1) of the Act. In light of these
findings the Administrative Law Judge's conclusion
that the very same July 13 discipline constituted a
violation of Section 8(a)(4) of the Act cannot be sus-
tained.
Although the Administrative Law Judge found
that Respondent issued the July 13 warning letter and
suspension to McMurrin because he provided a
sworn affidavit to the Board on June 14, the sole
ground for this finding is that Respondent knew Mc-
Murrin had given an affidavit to the Board and disci-
plined him within a relatively short time, about 4
weeks, thereafter. In other circumstances the timing
of McMurrin's discipline might raise some suspicions
as to Respondent's motivation. Here, however, the
Administrative Law Judge's prior conclusion based
on the credited testimony of Hudson, Ouderkirk.
Mount, and Madden that McMurrin was disciplined
for harassing employees on company time negates
any inference that Respondent's discipline of Mc-
Murrin was caused by McMurrin's providing an affi-
davit to the Board. Accordingly, we conclude that
Respondent did not violate Section 8(a)(4) and (I) of
the Act by issuing the July 13 and August 16 warning
letters to McMurrin and by suspending him for 3
days.6
CONCI.USIONS OF LAW
1. Seneca Foods Corporation is an employer en-
gaged in commerce within the meaning of Section
2(2) of the Act and is engaged in commerce and in
I In view o this conclusion we find it unnecessary to pass upon Respon-
dent's contention that the Administrative Law Judge did not have the au-
thority to issue an errata making a substantive change by providing a rem-
edy for the violation of Sec. 8(aX4) which was not contained n his original
Decision.
operations affecting commerce within the meanin of
Section 2(6) and (7) of the Act.
2. International Union of Operating Engineers.
Local Union No. 280. AFL CIO. is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By interrogating employees concerning their
union activities, by encouraging and/or participating
in the circulation of antiunion petitions. by engaging
in surveillance of the union activities of employees, b
threatening employees with retaliation tfr their union
activities, by threatening employees with plant clo-
sure in the event that they selected the Union as their
collective-bargaining representative. by threatening
to withhold wage increases because of union organi-
zational activities, by threatening to terminate em-
ployees who were union adherents. and by threaten-
ing employees with worse conditions of work it they
selected the Union Respondent has engaged in unfalir
labor practices affecting commerce within the mean-
ing of Section 8a)( ) of the Act.
4. The aforesaid unfair labor practices affect coIm-
merce within the meaning of Section 2(6) and (7) of(
the Act.
5. Respondent has not violated the Act in an\
other manner.
ORDIER
Pursuant to Section 10(c) of the National I.ahor
Relations Act, as amended, the National l.ahor Rela-
tions Board hereby orders that the Respondent. Sen-
eca Foods Corporation. Prosser, Washington its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
their union activities.
(b) Encouraging and/or participating in the circu-
lation of antiunion petitions.
(c) Engaging in surveillance of the union activities
of employees.
(d) Threatening employees with retaliation for
their union activities.
(e) Threatening employees with plant closure in
the event that they select the Union as their collec-
tive-bargaining representative.
(f) Threatening to withhold wage increases be-
cause of union organizational activities.
(g) Threatening to terminate employees who were
union adherents.
(h) Threatening employees with worse conditions
of work if they selected the Union.
(i) In any like or related manner interfering with.
restraining, or coercing employees in the exercise of
their rights guaranteed to them b Section 7 of the
Act.
559
[)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which will
eflectuate the policies of the Act:
(a) Post at its Prosser, Washington, facility copies
of the attached notice marked "Appendix." 7 Copies
of said notice, on forms provided by the Regional
Director for Region 19. after being duly signed by an
authorized representative of Respondent. shall be
posted by Respondent immediately upon receipt
thereofi and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
I1T IS I RTIIER ORI)I REI) that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
violations of the Act not found herein.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
' In the event that this Order is enforced bh' a Judgment of a United Stales
Court of Appeals. the words in the notice reading "Posted by Order Iof the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enfl;rcing an Order of the National
Labor Relations Board "
APPENDIX
NoniCE To EMI.IOYEES
POSTED BY ORDER Of THE
NATIONAI, ABOR RI.ArIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportu-
nity to present their evidence, the National Labor Re-
lations Board has found that we violated the law and
has ordered us to post this notice. We intend to abide
by the following:
Section 7 of the Act gives all employees these
rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining or
other mutual aid or protection
To bargain collectively through representa-
tives of their own choosing
To refuse to do any or all of these things.
WE Wl.L. NOT coercively interrogate employ-
ees concerning their union activities.
WE WI.L NOT encourage or participate in the
circulation of antiunion petitions.
WE Wil. NOT engage in surveillance of the
union activities of employees.
WE Wilt. NOI threaten employees with retali-
ation for their union activities.
WE WILL, NOT threaten employees with plant
closure in the event they select a union as their
collective-bargaining representative.
WE WIHII NOI threaten to withhold wage in-
creases because of union organizational activi-
ties.
WE WIIl.. NO() threaten to terminate employees
who are union adherents.
WE Wil. NOI threaten employees with worse
conditions of work should they select a union as
their collective-bargaining representative.
WE WILl. NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
SENEC(A Foo())S CRP()RAI()N
DECISION
SIA IMIN I O I11 (CASI
BERNARI J. Si:i. Administrative Law Judge: This case
was heard before me in Richland. Washington. on Decem-
her 14 and 15. 1978. It is based on a complaint issued bh
the Regional Director for Region 19 on November 30.
1978.1 The complaint alleges that Seneca Foods Corpora-
tion, hereinafter known as Respondent. engaged in various
acts of interrogation, threats that the plant would be closed
down if the Union gained representation circulation of a
petition requesting the Union to withdraw from seeking
representation among Respondent's employees, and an alle-
gation that McMurrin testified to certain conduct engaged
in by Respondent in the form of an affidavit submitted to
an agent of the Board. All of these alleged instances are
described as being violative of Section 8(a)(1). (3). and (4)
of the Act.
After the close of the hearing, the General Counsel and
Respondent submitted briefs which have been duly consid-
ered.
Upon the entire record in this proceeding, including my
observation of the demeanor of' the witnesses as they testi-
fied and with due consideration of the briefs. I hereby make
the following:
FINI)IN(GS F01 FA I AND) C)NtII St)NS ()I L.A'
I. 1111i BUSINISS () RLSI()NI)i.N I
Respondent is a New York corporation with an office
and place of business located in Prosser. Washington,
where it is engaged in the business of' food processing.
During the past 12 months Respondent had gross sales of
goods and services valued in excess of $500,000.
I All dates in this decision refer to 1978 unless othlersise staled
560
SENECA FOODS (OR'PORATION
During the past 12 months in the course and conduct of
its business operations Respondent sold and shipped goods
or provided services from its facilities within the State of
W'ashington to customers outside the said State or sold and
shipped goods or provided services to customers within said
State. which customers engaged in interstate commerce b
other than indirect means of a total value in excess of
$50,000.
Respondent is and has at all times material herein been
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
It. tilt I ABOR OR(;ANIZAIION INVOI.\II)
The Union is and has been at all times material herein a
labor organization within the meaning of Section 2(5) of the
Act.
111. ItE Al.l.lF(t ) UtNIAIR I.ABOR PRA('TI(tS
On March 22 the Union filed a petition for election in the
unit of production and maintenance employees who were
employed at Respondent's facility in Prosser. Washington.
Respondent and the Union entered into a Stipulation for
Certification Upon Consent Election, and the election was
held on May 12. Thirty-four votes were cast for the Union
and 69 were cast against it. The Union filed timely obJec-
tions to the conduct of the election. Thereafter the Union
filed a charge against Respondent in Case 19 CA-10404.
The National Labor Relations Board investigated the
charge and the objections, and in the course of this investi-
gation McMurrin gave a sworn statement to the National
Labor Relations Board's field examiner. The General
Counsel claims that on the basis of this statement and other
evidence obtained during the investigation the Regional Di-
rector issued a complaint against Respondent on July 7.
Thereafter Respondent. through its Plant Manager Jerry
Madden, held a series of employee meetings on July 10 to
announce the results of the National Labor Relations
Board's investigation and to declare that Respondent would
"fight" the false charges filed by the Union. Three days
later, on July 13, Respondent gave McMurrin a warning
letter and suspended him for 3 days without pay. allegedly
for harassing other employees on company time. On Au-
gust 16 Respondent gave McMurrin a second warning let-
ter for failing to maintain the apple press area in a sanitary
condition.
The basic issues concerned a series of alleged interroga-
tions of employees, including the creation of the impression
of surveillance based on Respondent's statement that it
knew who was for and who was against the Union: threat-
ening employees with plant closure and other retaliation if
the Union was elected: told employees that there would be
no more pay raises until the Union went away: and threat-
ening employees that the union instigators would eventu-
ally be fired. It also allegedly threatened an employee with
nonadvancement in the Company and recommended that
he quit because of his union activities which fiostered and
encouraged the circulation of an antiunion petition among
employees. The General Counsel also takes the position
that when Respondent interrogated its emploces as to their-
activities in ftivor of the Union and when it issued tu o spa-
rate warning letters to McMurrin during summer 1978 it
violated Section 8(a)(3) and (4) of the Act.
A. The ( oliv' r.tlioI [et'i.('cIl n l ,ee .'iMr,,, S o ] /zth anIl
F'mplovee Dt)oi'' ill
Dill testified that he had approximatelN four to siX coit-
versations about the Union vwith Supervisor Zph during
the relevant preelection time period. Ihese conselsllllns
took place when the two men were together and no (mie else
was present. On or about March 20 I)ill ,was cllcd into
Zyph's office: Zph started the discussion ith a familiar
disclaimer that both of them would den\ A hait Ais ahbou to
be said. According to [)ill. Zph said that if the Ilnionll as
voted in "it would have a hard time getting a contract with
the Company ," and that the emploees erN likel s .ould
have fewer benefits and smaller wages than the, currentlN
had. In addition, during the course of this conversation
Zyph named five employees, one of whom was \McMlurrin.
whom he considered to be organizing and pushing ftr the
Union. He further stated that employee Dick Hancock Nas
the brains of the union organization. Zyph allegedlN then
said that the employees who were behind the union effort
"would probably be down the road at some time or other."
in other words. that the> would be fired. lie interrogated
Dill as to whether he was for or against the [lnion. how he
would vote. and how everyone else in the plant fell about
the Union.
Dill went on to testify that in a second meeting he had
with Z)ph. which took place approximately I week before
the election and occurred in ZNph's office. ZNph asked Dill
how various individuals who worked in the maintenance
department. including Dill. were going to vote. He named
certain employees he "knew" would certainl' vote for the
Union. cited with approval those who were against the
Union. and asked I)ill about the Union preferences otf other
employees whose sympathies he had not et ascertained.
Zyph expressed a lack of comprehension as to why an,
employee would want to vote for the Union and suggested
that all employees simply follow the example of depart-
mental leadman Henry Plumlee in joining forces with the
Company and voting against the Union. He again named
those people. including McMurrin. who eventuallI would
be fired bfor organizing the Union at the plant.
In evaluating the credibility of [)ill I felt that he was
candid and direct in his comments. His memor was good
about the events that he was describing. and this was deter-
mined without the assistance of leading questions. On the
other hand. Zyph's testimony with regard to these discus
sions covered less than one page of the transcript and con-
sisted soleli of one-word denials in response to his attor-
ney's leading questions. The General Counsel points out
that Zyph did not deny interrogating Dill about the union
preferences of himself and other employees. nor did he
deny describing to Dill what would happen if the Union
was voted in. It is further urged b,, General Counsel that
Dill's undisputed testimonsi in these areas should be cred-
ited. In fact. as an overall impression. )ill's testimony,
should be credited over Zy:ph's one-vorld denials. I credit
56 1
DI):C(ISIONS OF NATIONAL LABOR RELATIONS BOARD
[)ill's testimony and do not credit the version of the conver-
sations testified to by Zyph.
Respondent attempted to prove that whatever conversa-
tions Dill testitied to took place in an atmosphere of per-
sonal friendship and that therefore they did not represent
violations of the Act. Hlowever. the General Counsel points
out that the existence of a personal friendship between the
employer-supervisor and the employee being interrogated
or threatened does not legalize conduct which is otherwise
unlawful. In support of' this contention the General Counsel
cites the case of Majfiell's Daio' Farms, Inc., 225 NLRB
1017 (1976): and (rest Door Conpanv, 219 NLRB 648
(1975).
Respondent's argument with respect to resolving credibil-
ity issues attempts to show that what happens in a usual
Board investigation is that the Board's field examiner asks
questions and then writes the answers in the Board agent's
own words. It further states that rarely does an employee
take time to proofread the statement in detail or to insist
that language be added or changed. Therefore, Respon-
dent's position with respect to credibility is that the Board
agent's statement represents his statement and not that of
the employee. Thereafter rumors were spread around the
plant by individuals like Jack McMurrin to the effect that
anyone would be thrown in jail if he did not tell the truth.
Respondent then concluded his two brief paragraphs on
the subject of credibility by stating that the witness' testi-
mony becomes frozen to what has been taken as the said
witness' testimony. In some cases the testimony of a witness
for the General Counsel would constitute a violation under
Board decisions, but a supervisor testified slightly differ-
ently concerning the same conversation so that if credited
the statement is permissible. The supervisors were carefully
instructed early in the organizing campaign on what they
could and could not say. Respondent then concluded his
brief by stating that Respondent's witnesses should be cred-
ited in any case where there is a conflict in the testimony.
Respondent takes the position that the allegations found
in paragraph 5(d, e, f, g, h, i, n, j) concern events which
allegedly took place prior to May 30. There were three
amended charges and complaints issued in the instant case.
The Company argues that any conduct which occurred
prior to May 30. 1978. is not properly before the Board
because it was not clearly covered by the Union's May 19
charge or by McMurrin's August 15 amended charge. The
Company therefore argues that the material covered in the
paragraphs mentioned supra, are not properly before the
Administrative Law Judge because none of the acts or con-
ducts were named in a charge that was filed within 6
months prior to the issuance of the complaints.
In answer to this contention of Respondent the General
Counsel states. "it is well settled. however, the General
Counsel is permitted to amend its complaint and to add
charges after the 6-month limitation is expired, so long as
the original charge was filed within 6 months of the alleged
unfair labor practices and the additions are closely related
to the conduct alleged in the charge and constitute the same
class of violations as those set forth in the charge."
N. L. R. B. v. Jack LaLanne Management Corp., 539 F.2d 292
(2d Cir. 1976): N.L.R.B. v. Fant Milling Company. 360 U.S.
301, 301 308 (1959). In the case at bar the original charge
was filed on May 19. 1978, which was within 2 months of
the beginning of Respondent's unlawful conduct. The
charge alleges, inter alia, coercion and "harassment" of em-
ployees, including threatening remarks by supervisors, "to
discourage them from voting for the Union." All the con-
duct alleged in paragraph 5 of the second amended com-
plaint concerns the same class of violations and is closely
related to the conduct alleged to the charge. Thus, the Gen-
eral Counsel concludes that the 6-month limitation is inap-
plicable to the class of amendments offered by General
Counsel 14 days beflre the hearing and again on the first
day of the hearing. I agree with the General Counsel's argu-
ments which negate the imposition of the 6-month statute
of limitation covered in Section 10(b) of the Act.
C. Additionial Instances of Zyph 's Illegal Activities
Employee Riggs testified that Zyph told him on a num-
ber of occasions before the election that "after this union
thing was over there was going to be a big turnover of
employment." and that the "union instigators" would be
"sent down the road." On one occasion employee Walker
said that Zyph told him that the Company knew which
employees were the "union instigators." The General Coun-
sel points out in his brief that Zyph denied making such a
statement to Riggs, but he was never asked about making
the statement that Walker attributed to him.
In another instance maintenance employee Dick Han-
cock testified that sometime during the last week of March
Zyph came up to him while he was working in the compres-
sor room. Zyph allegedly began questioning him as to why
he wanted to bring in the Union. He said that it was none
of Hancock's business to discuss why the employees
thought they needed a contract, and he then asked for Han-
cock's gripes. In his testimony Zyph admitted asking Dick
Hancock about his personal gripes and said that Hancock
gave him some specific reason for bringing in the Union. He
did not deny asking Hancock why he wanted the Union or
a union contract. Once again, in evaluating the credibility
of the testimony mentioned above. I find that Hancock told
a straightforward story with conviction, and that Zyph's
statements were evasive and constituted unlawful interroga-
tion and the solicitation of grievances. I so find.
Further, another maintenance employee named Marvin
Brown testified to a discussion he had with Zyph sometime
during April in the shop area. In this conversation Zyph
first confirmed that Brown was prounion; Zyph then asked
him if he had "heard anything" about which other employ-
ees wanted the Union. Brown professed that he did not
know. Afterwards Zyph stated that if the Company went
union, "things would probably change" and "possibly some
of the employees may not be here or stay with us." This too
has been described by the General Counsel as an unlawful
threat of retaliation. Although Zyph denied having made
such a statement, he did not deny asking Brown if he had
heard of how other employees felt about the Union. This
too is listed by the General Counsel as a further instance of
unlawful interrogation and a threat of retaliation. I agree.
Respondent made a point of attempting to show from the
testimony that the employees did not feel or act scared or
intimidated by the comments directed to them. However,
562
SENECA FOODS CORPORAlION
the test is whether the employer's conduct may reasonably
he said to have the tendency to interfere with the free exer-
cise of employee rights. See El Rancho Malrket. 235 NLRB
468 (1978).
D. Supervisor Ganry M4ount Also Engaged In Illeh'gal
Interrogationt
Jaime Luna described an incident that took place ap-
proximately I month before the election. Mount asked him
what he thought about the Union. and the bulk of the rest
of their conversation concerned itself with medical benefits.
Employee Mike Ouderkirk testified that on an occasion
when he asked Mount about the union situation Mount
asked him what his position was regarding the Union.
Ouderkirk replied that he wanted to stay neutral. Employee
Mike Walker recalled the instance which took place a num-
ber of weeks before the election when Mount first asked
Walker how he thought the vote was going to go in mainte-
nance. Mount then said, "Scott (Zyph) thinks it's going to
be fifty-fifty, but I think it's going to be worse."
While Mount denied that he made these comments, he
did admit that during the union campaign he tried to speak
to each of the 25 to 30 employees under his supervision on
at least two occasions. In the course of these discussions he
"tried to get some idea what the problems were and what
they felt." However, Mount testified that he did not ask his
employees how they felt about the Union, but he did ask
them what their feelings were. The General Counsel, in his
brief. calls attention to the fact that the fine distinction con-
cerning the testimony of Luna and Ouderkirk was not com-
municated to the employees.
It may be said that these casual, isolated conversations
might not, in another context, be regarded as serious viola-
tions of the Act. However, this type of statement made to
three employees although "relatively inconsequential" if
viewed standing alone may be construed as coercive in view
of an employer's other interrogations during a union's or-
ganizational drive. New Alaska Development Corporation v.
N.L.R.B., 441 F.2d 491 (7th Cir. 1971). It is contended by
the General Counsel that Mount's inquiries have the ten-
dency to interfere with the free exercise of employee rights
and were therefore unlawful.
E. Threats of Plant Closure
Employee Henry Plumlee recalled a conversation which
he had with Mike Juarez, supervisor of the canning depart-
ment, during the preelection period. Juarez told him that it
was the intention of Art Wolcott, corporation president. to
fight the Union as long as he could, and if the)y could not
get rid of the Union after 4 or 5 years they would close
down the plant. Upon being interrogated with respect to
the above situation Juarez denied that he ever had such a
conversation with any employee. He said that at one time
he discussed with Plumlee the possibility that the Company
might work three shifts to stock up on supplies, but he was
evasive and vague; therefore, it is not possible to under-
stand exactly what was meant by these comments. Further-
more. Plumlee's testimony was given in a straightforward
and credible manner, and I credit his testimony.
Mike Walker testified to a similar conversation that he
had with his boss sometime during April. Scott Zyph told
him that Jerry Madden "was not going to let in the union
that easy." and that it would be harder for the Union to get
into the plant than most people thought. Zyph said that if it
came right down to it the Company could close its doors
and shut the plant down.
Once again Zyph denied that he ever made the statement
attributed to him. It can be stated that Respondent.
through Zyph and Juarez. unlawfully threatened employees
with plant closure if the Union was voted in. The fact that
employees immediately expressed their doubts that the
plant would be closed down does not take awa the inher-
ent coerciveness of these statements.
F. Respondent'.s Encouragemclent or thec (irculation o/ an
Antiunion Petition
The General Counsel's brief sets forth the facts and cir-
cumstances concerning the circulation of an antiunion peti-
tion as fbllows:
Hudson and Madden both testified that Hudson went
up to see Madden in order to find out if there was any
truth to the rumor that those that were involved in the
union movement would be fired, and that Madden said
this would not happen. Hudson also testified, however.
that Madden asked him what he would do if he were
"in the company's shoes." and told him that the Com-
pany did not want any more union movements at the
plant. Madden. despite being given every opportunity
to do so, did not deny making these latter statements.
Hudson then assured Madden that he was now against
the Union and said that he would like to do something
to "get the Union to pull out." Madden responding
that he had heard of instances "where groups of em-
ployees had circulated petitions and presented them to
the union." which would then pull out. Thus, Respon-
dent by its own admission, suggested the circulation of
an antiunion petition.
Hudson agreed to pass around such a petition. Mad-
den testified that he then told Hudson that he could
not get involved in that kind of activity. Hudson re-
called Madden saying he "didn't want to know about
it." Hudson also remembered telling Madden that he
did not know what to write on the petition to which
Madden suggested that he "rephrase" the language
used on the union card he signed. Again, Madden did
not deny making this suggestion. He did admit recom-
mending to Hudson that he get together with employ-
ees who felt the same way he did. Hudson recalled.
more specifically.', that Madden referred him to an em-
ployee named J.C. Colstadt, who had circulated such a
petition in the past.
On the following day Hudson met with Coltstadt. who
supplied him with copies of the antiunion petition for circu-
lation throughout the plant. Thereafter. Hudson collected
signatures for this petition from employees at the plant dur-
ing working hours. There is no doubt that Respondent had
knowledge of the activity with respect to the petition. Fur-
thermore. Mike Walker testified that he was advised by
563
I)FL('ISIONS OF NATIONAL LABOR RELAIIONS BOARD
Zyph. shortly after Hudson had approached him about
signing the petition, that "it wouldn't he a bad idea" to sign
the list and thereby stop the Union. It should be noted that
Walker's testimony with respect to the above information is
undisputed.
It is therefore clear that Respondent. through Madden
and Mount. virgorously interefered with its employees' free
exercise of protected rights by initiating and encouraging
the circulation of a petition against the Union among its
employees in the course of the sensitive preelection cam-
paign period. This type of activity which was directed
against the Union is a clear violation of Section 8(a)( 1), and
I so find. The General Counsel cites its support of the viola-
tive nature connected with the circulation of a petition in
Hy-Gain Electronics, 232 NLRB 85 (1977).
G. McMurrin's Two Warnirg l.etters and .- D~av
Suspen vion
The record shows that employee Dave Hudson was em-
ployed to work on the concentrator which functions with a
combination of steam and vacuum. Hudson testified that
McMurrin harassed and bothered Ouderkirk and Hudson
because they seemed to be opposed to the Union. whose
cause McMurrin was espousing. Respondent was particu-
larly concerned with the harassment directed against Hud-
son because he operated a concentrator, and unless the
combination of steam and vacuum were properly taken
care of there was a danger that it would explode and some-
one would get hurt. The General Counsel points out that
the first warning letter was given to McMurrin on the after-
noon of July 13, the date on which Respondent received the
complaint in the instant case. Respondent's brief points out
that at first McMurrin denied that he was harassing any-
one. When Mount stated that he had received two reports
of the annoyance caused to employees by McMurrin's nee-
dling, McMurrin "told me that if I wouldn't give him the
letter and the 3 days off he would stop bothering people."
H. Threat to Close the Plant
Zyph, on a number of occasions, told employees that ift'
the Union came in Respondent would close the plant. I
credit the fact that he made this threat and find that such
statements constitute an additional violation of Section
8(a)( I ).
I credit the testimonies of Ouderkirk and Hudson to the
effect that McMurrin was harassing Hudson. The harass-
ment took the form of threats being made by McMurrin
that Hudson would have to go to court and that he ought to
see the union's business representative. Even though Mc-
Murrin denies having made these statements to Hudson. I
credit Hudson. Hudson testified that McMurrin threatened
to slash his tires, throw firecrackers at him at his workplace,
squirt water at him, and throw wet paper towels at him.
Respondent was particularly concerned about the harass-
ment directed against Hudson because his job consisted of
operating a concentrator. Unless this concentrator valve is
handled properly steam pressure will build up in the con-
centrator, and there is a possibility that an explosion might
take place. causing serious injury to employees who are
working in the vicinity of the concentrator. There is testi-
mony in the record to the effect that McMurrin acted as
though he felt that he could not be disciplined by Respon-
dent because he was being protected by the Board. In any
event, it is clear that McMurrin's behavior did not consti-
tute a form of protected activity. It is elementary that no
employee is clothed with immunity from normal plant dis-
cipline. In view of my finding that McMurrin did harass
Ouderkirk and Hudson, I recommend that the allegation in
the complaint which characterizes this activity as being pro-
tected concerted activity should be dismissed. The fact that
McMurrin was engaged in harassing activity would appear
to be borne out because of Mount's testimony, which I
credit, that McMurrin "told me that if I wouldn't give him
the letter and the 3 days off he would stop bothering peo-
ple." Hudson was the fbcus of much of McMurrin's harass-
ment, probably because he had circulated a petition to try
to stop the union election, and this aroused the ire of cer-
tain prounion employees.
I. The Alleged Threat to Withhold alge Increases During
the Time of the Union Campaign
Employee Riggs credibly testified that the subject of
raises came up in meetings conducted by Madden among
certain employees prior to the election. According to Riggs,
Madden said that, "raises wouldn't be given out until the
Union thing was over, and if the Union did come in the
Company would never come to terms with them." It is well
settled that if the Company had a practice of granting wage
increases at certain specified times, the withholding of in-
creases because of union organizational efforts in the plant
is illegal and constitutes a further violation of Section
8(a)(l} of the Act.
J. Discussion
The General Counsel calls attention to the fact that Mc-
Murrin received his first warning letter on July 7. He pro-
vided a sworn affidavit to the Board on June 14. It would
appear that there is a casual relationship between the fact
that McMurrin gave an affidavit to the Board and the sub-
sequent penalty of his suspension without pay fr 3 days, all
within a relatively brief timespan and during the height of
the Union's organizational efforts. There is no doubt that
Respondent was aware of the conspicuous role McMurrin
played in engaging in organizational activity. The Com-
pany had full knowledge of McMurrin's support for the
Union. This is so because McMurrin told Mount that he
was in favor of the Union. From this congeries of facts the
Board served Respondent with an amended complaint
which alleges, inter alia, that Respondent violated Section
8(a)(4) and (I). I so find.
Concluding Findings and Analysis
The record supports the fact that Zyph and Mount en-
gaged in numerous acts of interrogation which have been
detailed supra. There is evidence in support of the com-
564
SENECA FOODS CORPORATION
plaint allegation that the Company also engaged in surveil-
lance. Such activity constitutes a further violation of Sec-
tion 8(a)(I). I so find.
With respect to credibility I am not persuaded that
McMurrin's testimony should be credited: he did not im-
press me by his demeanor that he told a consistentls truth-
ful story. On the other hand, I ind that Hudson, who testi-
fied in a direct and forthright manner, was a credible
witness.
The evidence in support of Respondent's failure to grant
wage increases but for the appearance of the Union on the
scene is convincing. The threat to close the plant if the
Union was voted in is supported by the credible evidence.
Respondent's reliance on Section 10(b) seems to be mis-
placed. Since I have found that McMurrin's behavior in the
form of harassing actions was proven I will not recommend
that the two warning letters he received on Jul 13 and
August 16 be held in violation of the Act, and the General
Counsel's request that he be granted backpay for the 3 days
when he was suspended in July is rejected. However. the
rather extensive violation of Section 8(a)(1) in the form of
interrogation and threats to close the plant provide a suffi-
cient basis for ordering that the results of the May 12 elec-
tion be declared null and void and that a second election be
ordered to take place at a time deemed appropriate b the
Regional Director.
C(ON(CI SIONS ()- L,v
1. Seneca Foods Corporation is an employer engaged in
commerce within the meaning of the Act, as set forth
above.
2. Respondent is a labor organization within the mean-
ing of the Act.
3. Because of the numerous incidents of interrogation
engaged in by Zph and Mount I find that Respondent
engaged in unfair labor practices within the meaning of
Section 8 a )( ).
4. The facts surrounding the issuance of an amended
complaint alleging that Respondent violated Section 8a)(4)
is found by me to be an additional violation of the Act.
5. I have also found that Respondent engaged in illegal
surveillance and threatened to close the plant if the Union
got in.
6. The aforementioned unfair labor practices affect com-
merce within the meaning of the Act.
-i ii Rsiui
Ilaving found that Respondent engaged in certain unfair
labor practices. I shall recommend that it be ordered to
cease and desist therefrom and take such affirmative action
including the posting of customary notices, as will serve the
purposes of the Act.
[Recommended Order omitted from publication.I
565