Southern Pride Catfish

National Labor Relations Board - Board Decisions

Jun 30, 2000

331 N.L.R.B. 618 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 618
Southern Pride Catfish and United Food and Commer-
cial Workers Union, Local 1996. Case 10–CA–
28960
June 30, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE, AND MEMBERS
LIEBMAN AND BRAME
On March 10, 1997, Administrative Law Judge Howard
I. Grossman issued the attached decision.1 The Respondent
filed exceptions and a supporting brief, and the Charging
Party filed a brief in opposition to the exceptions.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings, and conclusions,2 and to adopt
the recommended Order as modified.
1. We agree with the judge that the Respondent created
the impression of surveillance of employees’ union activi-
ties and interrogated Pamela Witherspoon in violation of
Section 8(a)(1) of the Act. The relevant events occurred
during a period of a few weeks at the culmination of a rep-
resentation campaign at the Respondent’s fish processing
plant in 1995. On July 31, Freezer Supervisor Greg Craw-
ford met with Doria Lee, a stipulated supervisor in charge of
freezer line 2, and other supervisors. Crawford told the
supervisors to keep written lists of employees wearing union
T-shirts, and that such employees would be fired the Mon-
day following the election. Lee openly recorded the names
of about 14 employees. When two employees asked her
what she was doing, Lee replied that she was keeping the
list as Crawford had directed her. Lee also testified that
employees were discussing the list, and that she turned the
list over to Crawford.
Lee and Crawford also admitted asking employees how
they felt about the Union. On a single day, just before the
election, they each asked employee Pamela Witherspoon
why she wanted the Union in the plant. Lee told
Witherspoon that she was trying to ask everybody what he
or she wanted from the Union and wrote down
Witherspoon’s answer.
We find that telling employees that a list was being kept
of employees engaged in union activity, coupled with the
disclosure that its purpose was to single out employees for
discharge after the election, would reasonably tend to coerce
employees in their exercise of protected rights. We find
without merit the Respondent’s contention that the record
reflects a “perfectly legitimate” effort to keep track of the
Respondent’s standing with employees during the cam-
paign. Contrary to the Respondent, the conduct here is dis-
tinguishable from circumstances in which an employer law-
fully observes open union support.3 Here, the stated purpose
of recording which employees evinced union support was to
facilitate the severest form of retaliation after the election—
the swift discharge of union supporters.4

1 On November 25, 1998, the Board granted the Petitioner’s request
to sever Case 10–RC–14631 from the current proceedings.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
As noted above, we further agree with the judge’s conclu-
sion that the Respondent violated Section 8(a)(1) by interro-
gating employee Witherspoon.5 Supervisors Greg Craw-
ford and Doria Lee each separately asked Witherspoon why
she wanted the Union. Lee told Witherspoon that she was
trying to ask everybody what he or she wanted from the
Union, and she wrote down Witherspoon’s answer. In de-
termining whether an employer’s questions to an employee
about union support constitute coercive interrogation in
violation of Section 8(a)(1), the Board looks at “whether
under all the circumstances the interrogation reasonably
tends to interfere with rights guaranteed by the Act.”6 In
Bourne v. NLRB,7 the court held that an interrogation “not in
itself threatening” would be examined in light of the follow-
ing factors: the background of the interrogation, the nature
of the information sought, the questioner’s identity, the
place and method of the questioning, and the truthfulness of
the reply.8
Applying these factors, we find that the interrogation of
Witherspoon by Lee and by Crawford occurred against a
background of threats to discharge employees for union
support, as well as other serious threats, i.e., to move or
close the plant or to reduce wages if employees were to
choose the Union. These threats emanated from the highest
levels of plant authority, and created an atmosphere of inter-
ference and coercion. We find further that the nature of the
information sought from Witherspoon—why she wanted
the Union—was particularly coercive in this context. Given
that Lee made known, as found by the judge in section II, A
of his decision, that union supporters were going to be dis-
charged on the Monday following the election, and given
that Lee, at the behest of the Respondent, was writing down
the names of employees who wore union T-shirts, Lee’s
3 See, e.g., Roadway Package System, 302 NLRB 961 (1991) (a supervi-
sor’s open observation of employee handbilling at and near plant was not
unlawful).
4 See, e.g., Burlington Industries, 257 NLRB 712 (1981), modified on
other grounds 680 F.2d 974 (4th Cir. 1982) (employer informed employees
that it was maintaining a list of union supporters, with threat of discharge).
5 Although the complaint alleged that the Respondent “unlawfully inter-
rogated its employees” (emphasis added), and the judge repeated this formu-
lation in his decision, the judge dealt only with the questioning of
Witherspoon by Crawford and Lee.
6 Rossmore House, 269 NLRB 1176, 1177 (1984), affd. sub nom. Hotel
& Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
Member Brame would find that interrogating an employee is not per se
unlawful, and that “[t]o fall within the ambit of Section 8(a)(1) of the Act,
the words themselves or the context in which they are used must suggest an
element of coercion or interference” citing Midwest Stock Exchange v.
NLRB, 635 F.2d 1255 (7th Cir. 1980), quoted with approval in Rossmore
House, supra.
7 332 F.2d 47, 48 (2d Cir. 1964), cited on Rossmore House, supra.
8 Id. at 48.
331 NLRB No. 81
SOUTHERN PRIDE CATFISH 619
questioning of Witherspoon and recording of her replies
was clearly coercive. Crawford, a higher-level supervisor,
was the person directly responsible for Lee creating the list
of employees who wore union T-shirts. Under all the cir-
cumstances, then, we find, in agreement with the judge, that
the Respondent’s interrogations violated Section 8(a) (1) of
the Act.
2. We also agree with the judge that that Steven C.
Moore, the pastor of a local church, was acting as an agent
of the Respondent by meeting with employees, and that his
comments to employees respecting the outcome of the elec-
tion constituted threats of plant closure in violation of Sec-
tion 8(a)(1) of the Act. As the judge found, Moore became
interested in the campaign to organize the Respondent’s
facility because individuals who attended his church were
employed by the Respondent. Moore testified that he felt
that the community did not need a union, and he called the
Respondent’s Human Resources Director Mary Hand, ex-
pressed his opposition to union organization of the plant,
and asked to speak to employees. Hand agreed, and Moore
spoke to employees at the Respondent’s “Pride Center,” or
break area, on 10 occasions. On each occasion, about 30
employees attended, and Hand, or the Respondent’s owner,
Joe Glover, or its labor consultant, Joe Alecs, introduced
him. At these meetings, Hand and Alecs also addressed
employees, and Glover dropped in occasionally. With re-
spect to the content of Moore’s interchanges with employ-
ees, the judge found that Moore asked employees to give
Glover a chance, and told them that if the employees chose
the Union, Glover could relocate the plant. Moore testified
that he had discussed with employees the “possibility” that
the Respondent would close down if the employees chose
the Union. The judge found, and we agree, that Moore made
his statements about the closings of other facilities after
unionization in the context of coercive threats, and con-
veyed to employees the message that if they chose the Un-
ion they would lose their jobs.
With respect to Moore’s status as an agent of the Respon-
dent, we note that the Board has found individuals outside
an employer’s management or supervisory hierarchy to be
agents of the employer, even when the record lacks evi-
dence that the employer directly sought their involvement in
a union campaign. In Dean Industries,9 the Board found that
10 citizens of the community, in which the respondent oper-
ated a furniture factory, were acting as agents of the respon-
dent by holding meetings with employees in city hall, dur-
ing which they solicited employees to withdraw authoriza-
tion letters, and that the respondent had violated Section
8(a)(1) by threats of plant closure made in connection with
the solicitations. The Board found evidence of the existence
of a “cooperative effort”10 between management and the
townspeople to defeat the union. As the Board in Dean
stated:

9 162 NLRB 1078 (1967).
10 Id. at 1092.
While strict rules of agency are not required to be ap-
plied in determining an employer’s responsibility for
the conduct of others, nevertheless, before an employer
may be found to have engaged in unfair labor practices
by reason of activities on the part of persons not in its
employ or management and whom it did not clothe
with the apparent authority to act for it, at the mini-
mum, the employer must have acquired knowledge of
the activities for which it is sought to be charged and
the circumstances must be such as to place the em-
ployer under an obligation to disavow activities.11
Like the respondent in Dean, the Respondent not only
failed to disavow the comments, but also invited Moore
onto its premises numerous times, had members of its man-
agement hierarchy introduce him to employees, and Hand
or Glover, or its labor consultant Alecs, remained in the
Pride Center during his remarks. Further, the Respondent,
unlike the employer in Dean, made its own facilities avail-
able to Moore. Thus, it is evident that the Respondent, even
more than the employer in Dean, was engaged in a “coop-
erative effort” with Moore to oppose the union through
unlawful means.12
3. We also agree with the judge that the Respondent vio-
lated Section 8(a)(1) by discharging Supervisor Doria Lee
because her subordinates continued to wear union T-shirts
and because she was, in the Respondent’s view, ineffective
in persuading her subordinates to reject the Union and to
abandon the expression of their Section 7 rights. The Re-
spondent argues that, even assuming Lee was discharged for
the reasons stated above rather than because she lacked con-
trol over the employees she supervised and those employees
took excessive breaks, as the Respondent has asserted, the
discharge of a supervisor for failing to persuade employees
to reject a union is not an unfair labor practice. In support,
the Respondent relies on World Evangelism, 261 NLRB
609 (1982) (employer did not violate 8(a)(1) by discharging
supervisor; there was no evidence that it expected the su-
pervisor to employ unlawful means in union campaign). We
find World Evangelism distinguishable from the present
case.
In World Evangelism, the Board reversed the judge’s
finding that the respondent had violated Section 8(a)(1) by
discharging a supervisor for failing to dissuade employees
from supporting the union. The Board found that the evi-
dence was insufficient to warrant the judge’s conclusion that
the supervisor had been discharged for failing to engage in
unfair labor practices. In this case, by contrast, the Respon-
dent unlawfully instructed Lee and other supervisors, a few
days before the election, to compile lists of all employees
who wore union T-shirts and told the supervisors that all
11 Id. at 1093 (footnotes omitted).
12 Id. at 1092. See also Wallace International de Puerto Rico, Inc., 328
NLRB 29 fn. 2 (1999) (conduct of mayor of nearby community is attribut-
able to respondent, as mayor acted as its agent; respondent ratified mayor’s
threats of relocation by using them in video and clothed the mayor with the
apparent authority to speak for it).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 620
such employees would be discharged after the election. Lee
followed these instructions, openly writing down employ-
ees’ names and telling employees what she was doing and
that she was acting under the Respondent’s instructions.
Like the judge, we find that Talladega Cotton Fac-
tory, 106 NLRB 295 (1953), enfd. 213 F.2d 209 (5th
Cir. 1954), provides more persuasive precedent. In that
case, the Board found that the respondent violated Sec-
tion 8(a)(1) by discharging two supervisors for half-
hearted participation in unlawful union campaign. As
here, the Board held that the employees were aware that
a supervisor was engaging in antiunion unfair labor
practices at the behest of the employer. Moreover, the
supervisor’s discharge followed immediately upon the
heels of an election, as was the case here. Thus, in both
cases, “the discharge was ‘part of [the respondent’s]
plan to thwart [employees’] self-organizational activi-
ties.”’ We find, as did the Board in Talladega, that “the
net effect of this conduct was to cause non-supervisory
employees reasonably to fear that the Respondent would
take similar action against them if they continued to
support the Union,”13 and that the discharge of Lee vio-
lated Section 8(a)(1) of the Act.
4. We also agree with the judge that the employees’
walkout in protest of the discharge of Supervisor Doria Lee
constituted protected concerted activity, that the Respondent
discharged the employees, and that the discharges violated
Section 8(a)(1).14 In so finding, we note that even if the Re-
spondent had acted lawfully in discharging Lee, her subor-
dinates’ walkout would still constitute protected conduct
under the four-part test articulated in NLRB v. Oakes Ma-
chine Corp., 897 F.2d 84, 89 (2d Cir. 1990):
[C]oncerted activity to protest the discharge of a super-
visor . . . may be “protected,” provided the identity of
the supervisor is directly related to terms and condi-
tions of employment.
Whether employee activity aimed at replacing a
supervisor is directly related to terms and conditions
of employment is a factual inquiry, based on the to-
tality of the circumstances, including (1) whether the
protest originated with employees rather than other
supervisors; (2) whether the supervisor at issue dealt
directly with the employees; (3) whether the identity
of the supervisor is directly related to terms and
conditions of employment; and (4) the reasonable-
ness of the means of protest.
As the judge found, the employees left the production line
because, after Lee’s discharge, they heard through employee
Joe Jackson that Lee had been discharged because the em-

13 106 NLRB at 297.
14 NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962) (cited by the
judge) (walkout over workplace temperature was protected; involved were a
“small group of employees who were totally unorganized. They had no
bargaining representative and, in fact, no representative of any kind. . . .
Under these circumstances, they had to speak for themselves as best they
could”).
ployees she supervised were wearing union T-shirts. Thus,
the protest clearly originated with employees, and no other
supervisors were involved at all. Moreover, Doria Lee was a
first-line supervisor who dealt with the employees on her
production line every day. Whether Lee remained as the
employee’s supervisor was clearly related to the employees’
terms and conditions of employment, and even more impor-
tantly, to their Section 7 rights, because her discharge was
viewed, as the judge found, as an event that would affect all
of the involved employees. In this regard, in discussing
Lee’s discharge, the employees expressed, among other
things, the fear that they might be the next to be fired, and
that Lee’s discharge was the first of those that the Respon-
dent had predicted before the election. Finally, the employ-
ees’ protest was reasonable, as, according to credited testi-
mony, the production line was not operating when the em-
ployees walked off, so there would have been no disruption
of production. Thus, the employees were acting in protest of
employer conduct that clearly affected their own working
conditions, and their walkout is protected concerted activity
under the standards of Oakes Machine Corp.
5. We also agree with the judge that Pamela Wither-
spoon’s discharge violated Section 8(a)(3) and (1). We
agree that the judge correctly found that the General
Counsel established a prima facie case. Thus, the Re-
spondent had knowledge of Witherspoon’s union activi-
ties because she wore a union T-shirt while working, and
she was the target of unlawful interrogation by her su-
pervisors, Lee and Crawford. Further, Witherspoon was
discharged only a week after the Respondent’s declara-
tion that it was going to discharge all employees, like
Witherspoon, wore union T-shirts. Indeed, she was fired
immediately after returning to work from her 1-day ab-
sence on the day that all eight of her line 2 coworkers
were unlawfully discharged for protesting the Respon-
dent’s unlawful discharge of their supervisor, Doria Lee.
We further find that the Respondent has completely
failed its burden of establishing that it would have dis-
charged Witherspoon for legitimate reasons even in the
absence of her union activity. Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
As found by the judge, the Respondent’s witnesses con-
tradicted each other concerning the asserted reason for
Witherspoon’s discharge. The judge discredited the tes-
timony of Supervisor Crawford that he simply sent
Witherspoon home because she refused to work with her
coworkers, and instead credited Witherspoon’s testimony
that Plant Manager Bobby Collins discharged her assert-
edly because she refused to wear a white trash bag at
work instead of the customary blue apron, so that she
might be more visible in the Respondent’s sales video
being produced that day. Collins testified that the dis-
charge was based on Witherspoon’s failure to wear a
white trash bag, while Crawford denied that the refusal to
SOUTHERN PRIDE CATFISH 621
wear the bag had anything to do with the discharge. Par-
ticularly since the Respondent’s witnesses could not even
agree as to the alleged reasons for the discharge, it is
clear that those reasons were pretextual, and thus we
adopt the judge’s conclusion that the Respondent has not
met the burden of showing that Witherspoon would have
been discharged even in the absence of her protected
activity.
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge and orders
that the Respondent, Southern Pride Catfish, Greensboro,
Alabama, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified below.
1. Substitute the word “ORDER” for the judge’s recom-
mended heading.
2. Delete the paragraph beginning “IT IS FURTHER
ORDERED” following paragraph 2(f).
3. Substitute the attached notice for that of the administra-
tive law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid and protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT create the impression of surveillance of
our employees’ union activities by maintaining lists of un-
ion supporters and telling employees that it is being done at
management’s direction.
WE WILL NOT coercively interrogate our employees
concerning their union activities or sympathies.
WE WILL NOT threaten employees with reduction of
wages, loss of jobs, or plant closure if they vote for the Un-
ion.
WE WILL NOT discharge supervisors because of their
failure to suppress employees’ expressions of union support.
WE WILL NOT discharge or otherwise discriminate
against our employees because they engage in union or
other protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order,
offer Doria Lee, Barbara Lewis, Carrie Hamilton, Debbie
Lewis, Regina Lewis, Rosie Aaron, Shirley Aaron, Brenda
Scott, Bridgette Witherspoon, and Pamela Witherspoon full
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges previously
enjoyed.
WE WILL make Doria Lee, Barbara Lewis, Carrie Ham-
ilton, Debbie Lewis, Regina Lewis, Rosie Aaron, Shirley
Aaron, Brenda Scott, Bridgette Witherspoon, and Pamela
Witherspoon whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against them,
with interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charges, and within 3 days thereafter notify the employees
that this has been done and that the discharges will not be
used against them in any way.
WE WILL, within 14 days from the date of this Order,
rescind our rule restricting the bathroom breaks of our em-
ployees, and reinstate the policy in effect prior to the advent
of the union movement.
SOUTHERN PRIDE CATFISH
Edward A. Smith, Esq., for the General Counsel.
Scott McLaughlin, Esq. and Barry Frederick, Esq. (Johnson, Bar-
ton, Proctor & Powell), of Birmingham, Alabama, for the Re-
spondent.
James D. Fagan Jr., Esq. (Stanford, Fagan, & Giolito), of Atlanta,
Georgia, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
original charge was filed on December 13, 1995,1 by United Food
and Commercial Workers Union, Local 1996 (the Union or the
Petitioner) and an amended charge on March 14, 1996. Complaint
issued on March 22, 1996, and alleges that Southern Pride Catfish
(Respondent or the Employer) discriminatorily restricted the breaks
of employees suspected of being union supporters, unlawfully
interrogated employees regarding their union sentiments, gave its
employees the impression of surveillance of their union activities,
imposed an onerous rule for discharge upon an employee, threat-
ened its employees with loss of their jobs if they supported or voted
for the Union, threatened its employees with plant closure if they
voted for the Union, threatened its employees that they would “lose
everything” if they voted for the Union, threatened its employees
with loss of wages if they voted for the Union, and told them that
the owner wanted them terminated because they wore union T-
shirts.
The complaint also alleges that Respondent promised employees
more than the Union could give them to dissuade their support
from the Union, and solicited grievances to induce employees to
vote against the Union.
Finally, the complaint, as amended, asserts Respondent dis-
charged Supervisor Doria Lee because the employees under her
supervision supported the Union. The Respondent also discharged

1 All dates are in 1995 unless otherwise stated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 622
nine employees, the complaint alleges, because they supported the
Union and engaged in protected, concerted activity—Carrie Hamil-
ton, Debbie Lewis, Barbara Lewis, Regina Lewis, Rosie Aaron,
Shirley Aaron, Bridgette Witherspoon, Brenda Scott, and Pamela
Witherspoon.
In Case 10–RC–14631, the Board conducted an election among
employees in an appropriate unit on August 4, based on a petition
filed by the Petitioner on June 19. Among approximately 428
eligible votes, 123 cast valid votes for and 251 cast valid votes
against the Petitioner. Challenged and void ballots were insuffi-
cient in number to affect the results of the election. The Petitioner
filed timely objections to the election and, on April 5, the Acting
Regional Director consolidated the two cases for hearing.
I heard these cases in Tuscaloosa, Alabama, on May 28 and 29,
1996. Thereafter, the General Counsel, the Union, and the Re-
spondent filed briefs. On the basis of the entire record, including
my observation of the demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent is an Alabama corporation with an office and place
of business in Greensboro, Alabama, where it is engaged in the
business of processing fish. In the 12 months preceding issuance
of the complaint, Respondent purchased and received at its
Greensboro, Alabama facility goods valued in excess of $50,000
from points located outside the State of Alabama. Respondent is
an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED VIOLATIONS OF SECTION 8(a)(1)
A. The Alleged Impression of Surveillance
1. Summary of the evidence
The complaint alleges that Respondent gave its employees the
impression of surveillance of their union activities by openly main-
taining lists of union supporters and by telling its employees that
such lists were being maintained at the direction of upper manage-
ment. The parties stipulated that Doria Lee was a supervisor. She
supervised about 40 employees on a freezer line. Lee testified that
her own supervisor was Greg Crawford. She averred that, on July
31, a few days before the election, she attended a meeting with
Crawford and other supervisors. According to Lee, Crawford in-
structed the other supervisors to make written lists of all employees
who wore union T-shirts. He said that they would be fired on the
Monday following the election. Lee did as directed, and wrote
down the names of 14 employees who were wearing union T-
shirts.2 She did this openly, and two employees asked her why she
was doing it. Lee replied to one of them that she was doing as
directed by Supervisor Crawford and further affirmed that she
overheard employees discussing the list. Lee testified that she gave
the list to Crawford.
Greg Crawford denied that he ever told Doria Lee to make a list
of employees wearing union T-shirts, or that the employees on the
list would be fired after the election. However, he agreed that Lee
told him that she had written down the names of employees who

2 Lee could recall the names of Pamela Davis, Bridgette Witherspoon,
Carrier Hamilton, Rosie Aaron, Shirley Aaron, and Brenda Scott.
favored the Union. Lee did not tell him what she was going to do
with the list.3
2. Factual and legal conclusions
Doria Lee’s testimony that she openly wrote down the names of
employees wearing union T-shirts, discussed it with two of them,
and overheard employees discussing the matter is uncontradicted
and credited. This activity could only have created the impression
among employees that Respondent was recording their union ac-
tivities and sympathies, and was thus engaged in surveillance of
these activities and sympathies.
Since Doria Lee herself was a supervisor, her conduct is attrib-
utable to Respondent, and it is unnecessary to decide, for this rea-
son whether Greg Crawford instructed her do this. However, I
conclude that Crawford did so instruct her, and told her that the
listed employees would be discharged after the election. Lee was
more truthful in demeanor than Crawford, and the latter’s assertion
that Lee did not tell him what she was going to do with the list is
unrealistic. Why would Lee tell her own supervisor about such a
list without stating her purpose? In fact, Lee would have had no
reason to engage in such conduct without explicit instructions from
management. Finally, Lee’s conduct was consistent with Respon-
dent’s efforts to ascertain the union sympathies of its employees,
described hereinafter.
Respondent, by openly maintaining lists of union supporters and
informing them that this was being done at the direction of man-
agement, unlawfully created an impression of surveillance of its
employees’ union activities and sympathies, and violated Section
8(a)(1). Hicks Oil & Hicksgas, 293 NLRB 84, 96–97 (1989).
B. The Alleged Unlawful Interrogation
Supervisor Greg Crawford testified that he asked employees
about how they felt about the Union. Thus, he asked this question
of Pamela Witherspoon, and she replied that she wanted the Union
in order to get higher wages and improved working conditions.
Witherspoon corroborated Crawford’s testimony, and stated that
it took place before the election. She also testified without contra-
diction that Supervisor Doria Lee, on the same day as Crawford’s
interrogation, asked her why she wanted the Union. Witherspoon
answered Lee, and the latter wrote down the answer.
The supervisors advanced no reasons to the employees for the
questions, and Respondent had no legitimate reason for them.
They did not assure the employees that there would be no reprisals,
and, in fact, there were reprisals as described hereinafter. The in-
quiries took place shortly before a Board election while Respon-
dent was systematically attempting to ascertain its employees’
union sympathies and threatening them, as set forth hereinafter.
Accordingly, the interrogation tended to interfere with, restrain, or
coerce the employees in the exercise of their statutory rights, in
violation of Section 8(a)(1). Rossmore House, 269 NLRB 1176
(1984).4
3 The complaint alleges and the answer denies that Greg Crawford was a
supervisor. However, Doria Lee testified that, when she was hired, Plant
Manager Collins told her that Crawford was her supervisor. Crawford
instructed her on what to do and approved Lee’s disciplining of employees
and her granting of overtime. Crawford was also the supervisor of Carrie
Evans, who was in charge of another freezer line. Finally, Crawford himself
admitted that he was a supervisor at this time, and I so find.
4 Some of the factors noted in Bourne v. NLRB, 332 F.2d 47 (2d Cir.
1964), are present in this case.
SOUTHERN PRIDE CATFISH 623
C. The Alleged Threats of Plant Closure and Loss of Wages
1. Statements of Joe Glover
a. Summary of the evidence
Joe Glover was Respondent’s owner, and an admitted supervi-
sor. Former Supervisor Doria Lee testified that Respondent held
five or six meetings with employees in the 2-week period preced-
ing the election. Joe Glover spoke at three of these meetings. He
told employees that another company, Farm Fresh, had closed after
unionization. He also said he would reduce employee compensa-
tion to the minimum wage and close the plant down if the Union
came in. On cross-examination, Lee agreed that Glover said he
would have to bargain with the Union if it came into the plant, but
denied that he said anything about what would happen in bargain-
ing. She agreed that Glover said the Union could only get what he
agreed to, that you can negotiate both ways, that this meant the
employees might get less, and that the only thing he had to do by
Federal law was pay the minimum wage.
Barbara Lewis testified that she attended a meeting about a week
before the election, at which Glover said that he would close the
plant down before he would let the Union in, and that, if he did let
it in, he would take 25 cents away from employees wages and drop
wages to $4 an hour. Lewis testified on cross-examination that the
minimum wage was then $4.25 per hour, and that Glover’s state-
ment amounted to saying that he was going to pay employees at
below minimum wage if the Union came in. Lewis did not recall
Glover saying anything about bargaining or Farm Fresh Foods in
this speech, and denied that Supervisor Doria Lee was present.
Pamela Witherspoon testified that she was making $4.35 per
hour. She attended about five meetings, at two of which Glover
said that he would reduce everybody’s wages to $4 per hour if the
Union came in. He also said that the Union could not do anything
for the employees. Witherspoon agreed that Barbara Lewis, Re-
gina Lewis, and Debbie Lewis were present at some of the five
meetings, but denied that Barbara Lewis or Doria Lee was present
at the meetings which she attended when Glover was speaking. On
cross-examination, Witherspoon denied that Glover said anything
about bargaining, bargaining in good-faith, bargaining being a two-
way street, giving and taking in bargaining, or anything about Farm
Fresh Foods.
Regina Lewis testified that she attended meetings at which
Glover said that he could move the plant somewhere else if the
Union came in. Debbie Lewis testified that she attended several
meetings after the union campaign started and that Glover several
times said that if the Union came in he would close the plant down
and move somewhere else. Glover also said that the employees
would get nothing, because everything he had was in his wife’s
name.
Joe Glover testified that, after the union campaign began, Re-
spondent instituted a system for determining which employees
were union supporters, and who did not support the Union. Super-
visors reported daily on these matters to Jay Cole or Joe Alecs, who
were management consultants. Glover was asked whether he told
employees that the Company would close if the Union came in, or
that they would lose their jobs, or lose pay and benefits, or that
their pay would be reduced to $4 an hour, or that they would lose
25 cents per hour. Glover answered, “No” to each question. He
stated that he told employees that he would bargain in good faith
with the Union if it won the election, and that if employees lost
benefits it would be the result of the bargaining process. Glover
was corroborated by Plant Manager Bobby Collins and timekeeper,
Diane Watkins.
Sheila Hambright, a supervisor at the time of her testimony,
stated that employees were saying that Glover had said he was
going to close the plant. She attended a meeting where Glover was
supposedly trying to “clear that up.” What he did say was that all
he had to pay was minimum wage. Some employees were making
more than minimum wage. Glover also said that that the employ-
ees did not need a Union, according to Hambright.
b. Factual and legal conclusions
Respondent argues that the allegations against Glover are “il-
logical.” He hired two consultants (Jay Cole and Joe Alecs) to
teach him what he could and could not say, and it is “incredible that
he would ignore them and promptly and consistently make illegal
statements.”5 This argument begs the question by assuming that
Glover’s intent was to hire consultants to assure that he would
make only “legal” statements to employees. Although Glover
asserted that he hired consultants to tell supervisors what they
could and could not tell employees, he also testified that Alecs ran
a “consulting business to discourage unions,” and that he brought
Alecs into the plant to speak to Glover’s employees. One permis-
sible inference from this testimony is that Glover’s purposes was to
defeat the union movement.
Although Doria Lee gave testimony about statements by Glover
concerning bargaining, the other witnesses testified to the contrary,
and affirmed that Lee was not present at meetings when Glover
failed to make statements about bargaining. For this reason, I con-
clude that the General Counsel’s witnesses were not inconsistent.
Their demeanor was that of truthful witnesses.
Respondent’s witnesses, including Glover, were perfunctory in
their denials of the statements attributed to Glover. Their de-
meanor did not have the quality of verisimilitude found in the tes-
timony of the General Counsel’s witnesses. One of Respondent’s
witnesses, Sheila Hambright, corroborated the General Counsel’s
evidence that Glover said all he had to pay was minimum wage,
and that some employees made more than that. For these reasons, I
credit the statements attributed to Glover by the General Counsel’s
witnesses.
Respondent argues that Glover’s statements recited by Lee on
cross-examination were “legal.” This overlooks the absence of any
such statements in other meetings, as well as Glover’s unlawful
threats. Respondent cites various cases, including Shaw’s Super-
markets v. NLRB, 884 F.2d 34 (1st Cir. 1989), which, it asserts,
stands for the proposition that an employer’s statement that he
would start bargaining from minimum wage was legal. This is not
an accurate statement of the court’s holding. The court discussed
various Board cases, some holding that the employer’s statements
were lawful, and others where they were illegal. The court cited
Mississippi Chemical Corp., 280 NLRB 413, 417 (1986), where a
statement that the result of a union victory would be to “knock
down” all wages and “take away benefits” constituted an “express
threat” that bargaining would begin only after the employees’
wages had been reduced to minimum benefit and all their benefits
taken away (884 F.2d at 40).6 Glover made express threats that he
would reduce all employees’ compensation to the minimum wage
level if the Union came in. He also threatened to move the plant
elsewhere. These statements were unlawful under current Board
law, and I so find.

5 R. Br. 50.
6 Shaw’s Supermarkets is discussed in Fieldcrest Cannon, Inc., 318
NLRB 470, 509–510 (1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 624
2. Joe Alecs
a. Alecs’ status
As set forth above, Joe Alecs7 ran a “consulting business to dis-
courage unions,” in Company Owner Glover’s language. Respon-
dent’s owner brought him in to talk to the employees. Alecs testi-
fied that he spoke to employees about the “horrors” of unionism.
Plant Manager Bobby Collins testified that, “based on Alecs’ in-
structions, the supervisors gathered information on the union sym-
pathies of the employees.” I conclude that Respondent was re-
sponsible for Alecs’ conduct. Streamway Division of the Scott
Fetzer Co., 249 NLRB 396, 401 (1980).
b. Summary of the evidence
The complaint alleges that, about 2 weeks before the election,
Alecs threatened employees with loss of their jobs and plant clo-
sure if they voted for the Union, and told them that they would
“lose everything.” Several of the General Counsel’s witnesses
testified about a conversation with Alecs before the election. They
were seated on the steps of the Pride Center, a breakroom, and
Alecs was inside. All the employees were wearing union T-shirts.
Debbie Lewis testified that Alecs was inside the Pride Center look-
ing out and laughing at the employees. According to Lewis, Alecs
came out and told the employees that after Friday they were going
to have to find a place to work—“it won’t be here.”
Bridgette Witherspoon stated that Alecs and Glover were to-
gether, and were laughing at the employees. Alecs came out and
said that after election day the employees would have to work
somewhere. Witherspoon asked whether they would be fired, and
Alecs replied, “I’d rather not say.”
Pamela Witherspoon testified that Alecs said that “if the Union
came in the plant would close down, and the employees would
have to look for other jobs.” All of this testimony pertains to
statements from Alecs outside the Pride Center. Pamela
Witherspoon also testified that, in a speech inside the Pride Center,
Alecs said that the plant would close down if the Union came in,
and that the employees would not gain any benefits.
Alecs denied making the statements attributed to him by the
General Counsel’s witnesses. However, he agreed that the latter
sometimes sat on the steps of the Pride Center, and that he had to
walk “around” them or “through” them to get inside. He denied
that he had a conversation with them, but affirmed that he was
“subjected to some ridicule.” “I just went out there and made
comments like ‘What’s going to happen when we win the election,
and things like that.’”
c. Factual and legal analysis
There is some variation in the testimony from the General Coun-
sel’s witnesses, the principal one being whether Alecs specifically
or impliedly stated that the employees would have to find other
jobs if the Union came into the plant. However, the evidence is
substantially consistent that Alecs said the employees would have
to work elsewhere if the Union won. When asked whether the
employees would be fired if the Union won, he replied, “I’d rather
not say”—an answer which could reasonably have been construed
to mean that they would be fired.
Alecs acknowledged that the employees were sitting on the steps
to the Pride Center. After denying that he had a conversation with
them, Alecs admitted that he went “out” and asked what was going

7 Alecs’ last name was given as “Allen” in the complaint, but this was
corrected by amendment at the hearing.
to happen if the Company won the election, i.e., he discussed the
probable result of the election.
The General Counsel’s witnesses were truthful in demeanor, and
their testimony was substantially consistent. Alecs’ testimony
partially corroborated the General Counsel’s evidence. I find that
he told the employees that the plant would close down and that
they would have to look for other jobs if the Union won. Respon-
dent is responsible for Alecs’ statements, and violated Section
8(a)(1).
3. Steven C. Moore
a. Moore’s status and involvement in the campaign
Steven C. Moore testified that he was a pastor at a church in
Greensboro, Alabama. He had parishioners who worked at Re-
spondent’s plant, and heard that a union campaign had started
there. Reverend Moore testified that this concerned him, because
he felt the community did not need a union. He had worked in a
union shop, and unionization led to adverse circumstances.
Reverend Moore called Human Resource Director Mary Hand,
said that he was concerned about the matter, and asked for permis-
sion to speak to employees. Hand said that this would be accept-
able, and Reverend Moore thereafter spoke to employees in the
Pride Center on more than 10 occasions. There were about 30
employees present on each occasion. Moore was introduced to
employees by Human Resources Director Hand or Company
Owner Joe Glover. Hand also spoke to employees, as did Joe
Alecs. Company Owner Joe Glover came in occasionally, and
said, “Hi,” to employees.
Reverend Moore’s introduction to employees by the Company’s
human resources director or the owner, the utilization of the Com-
pany’s breakroom for the meetings, the speeches to employees by
Hand and Alecs and the occasional presence of Company Owner
Joe Glover put Reverend Moore in a position to be identified by
employees with management. Accordingly, I find, he was an agent
of Respondent. Montgomery Ward & Co., 228 NLRB 750 (1977).
b. The evidence as to Moore’s statements
The complaint alleges that Moore threatened employees with
plant closure if the Union won the election. Barbara Lewis testified
that she attended a meeting at which Moore spoke, about 2 weeks
before the election. He told the employees to give Glover a
chance. If the Union came in, he could move the plant elsewhere.
Pamela Witherspoon testified that she attended a meeting at which
Moore said that the employees would lose their jobs if the Union
came in, and that they could not go on welfare because “they” were
going to cut it out.
Moore testified that he tried to tell the employees that getting
into the Union was not good for them, and would have an adverse
impact on the community. The employees could be out on strike
which would affect their welfare, and slow downs occasioned by
union objections to work schedules. There were places closing
down around the country. Moore was asked on cross-examination
whether he ever told the employees that Respondent would close
down. He replied that it was a “possibility,” and agreed that he
discussed the subject with employees.
c. Factual and legal conclusions
Moore partially corroborated the General Counsel’s witnesses,
and I conclude that he did, as affirmed by the latter, tell the em-
ployees that Glover could move the plant elsewhere if the Union
came in, and that the employees would lose their jobs. Moore’s
statements about other plant closings were made in a context of
unlawful threats, and also conveyed to employees the message that
SOUTHERN PRIDE CATFISH 625
the Union’s success would result in the loss of their jobs. Mediplex
of Danbury, 314 NLRB 470 (1994). Accordingly, Respondent, by
Moore’s statements, violated Section 8(a)(1).
D. The Alleged Restriction of Breaks of Employees Believed to
be Union Supporters
1. Summary of the evidence
The complaint alleges that Respondent discriminatorily re-
stricted the breaks of employees believed to be union supporters.
The evidence pertains to the Company’s alleged restriction on the
frequency of employee visits to the bathroom.
Respondent’s witness Diane Watkins was the timekeeper, and
recorded the employees going to the bathroom. She testified that
“sometimes” there was too great a frequency of such visits, but that
there was no difference in the frequency before or after the union
campaign started. Supervisor Sheila Hambright testified on May
29, 1996, that there had been a problem of too many bathroom
breaks which had been going on for the prior 2 or 3 years, i.e., prior
to the filing of the petition on June 29, 1995. Hambright was one
of those who went to the bathroom too frequently, but never re-
ceived a warning and was promoted to supervisor. The General
Counsel’s witnesses testified that, prior to the advent of the union
campaign, there had been no criticism of the number of times em-
ployees went to the bathroom.8
Barbara Lewis was wearing a union T-shirt about a week before
the election, and was on her way to the bathroom, which was lo-
cated in the breakroom. Company Owner Glover told her to go
back to work, and she answered that she was on her way to the
bathroom. Glover responded that she did not have to use the bath-
room, because he had seen her going there that morning 15 to 17
times. Lewis told him to go back and check the list, because her
name was not on there 15 or 17 times. Glover finally let her go to
the bathroom, but followed her when she left the breakroom and
said, “You think this is a joke.” Glover tugged at his own shirt
when saying this, and Lewis interpreted his statement as a refer-
ence to her own union T-shirt. Lewis affirmed that she had never
been warned previously about trips to the bathroom.
Bridgette Witherspoon testified without contradiction that on the
Tuesday before the election Glover said that employees were tak-
ing excessive bathroom breaks—15 a day—that he was not going
to tolerate it, and that people who went back and forth to the bath-
room would be fired. “Hold on,” Glover said, “[O]ne of the main
ones is coming right now.” At that point Barbara Lewis entered
the meeting room wearing a union T-shirt.
2. Legal conclusions
Glover’s statement that employees taking too many bathroom
breaks would be fired amounted to the promulgation of a new rule
restricting such breaks. There had been no such restrictions before
the union campaign. This fact, coupled with Respondent’s unlaw-
ful threats and the timing of Glover’s statement, shortly before the
election, warrants an inference that the new rule was discriminatory
in nature, and was in retaliation against the employees union activi-
ties. I conclude that Respondent thereby violated Section 8(a)(3)
and (1). La Reina, Inc., 279 NLRB 791 (1986).
E. The Discharge of Doria Lee
Doria Lee began working for Respondent in February 1986, and
was discharged on August 7, 1995. Her supervisor for the last 9 or
10 months of her employment was Greg Crawford.

8 Testimony of Barbara Lewis, Pamela Witherspoon, Bridgette Wither-
spoon, and Debbie Lewis.
Respondent had two “freezer lines,” designated as line 1 and line
2. The latter was established in May 1995, and Lee was made
supervisor of the line, over approximately 40 employees. The
employees on line 2 were relatively new, while those on line 1
were more senior. Supervisor Crawford testified that he never
disciplined Lee during the time he supervised her. Although Plant
Manager Collins had spoken to her about production, this appar-
ently occurred a short time after Lee took over line 1, in May. By
August, according to Crawford, things were improving and “we
had come a long way.”
Doria Lee testified that she was called to the office on the morn-
ing of August 7, 3 days after the election. Plant Manager Collins
told her that she was fired because her employees were still wear-
ing union T-shirts and going to the bathroom. If Collins had his
way, he would not have fired her, but Joe Glover wanted her dis-
charged.
Collins testified that he spoke to Lee about low production on
her line approximately 5 or 6 weeks before the election. He did not
give her a written warning. She was a good employee before she
became a supervisor, and was good enough to be promoted to that
position. She was trying to do a good job as supervisor, but was
not capable. Her production was down, and she could not “handle”
her employees. Lee asked to be transferred back to a nonsupervi-
sory job, but Collins felt that she could not work alongside the
employees whom she had supervised on line 2. Collins agreed that
he could have transferred her to a nonsupervisory position on line
1. Collins did not consult Greg Crawford about the matter, because
the Company was unhappy with Crawford as a supervisor over the
freezer lines. Collins denied speaking to Lee about her employees’
wearing union T-shirts. He agreed that he had previously asked her
questions about the union sympathies of her employees. On cross-
examination, Collins agreed that the Company had production
records. (Respondent in fact produced 1 day’s record, for another
purpose.) He also knew that he would be called upon to give a
reason for Lee’s discharge, but did not think it “relevant” to bring
the production records. With respect to “excessive walking” on
line 1, Collins said that the Company did not maintain any records
of this.
Joe Glover testified that Lee was discharged because she could
not control her employees, and her production was not good.
Supervisor Greg Crawford stated that he was not informed prior
to Lee’s discharge. Plant Manager Collins later told him, but did
not give a reason.
Factual and Legal Conclusions
Respondent’s proffered reasons for the discharge of Doria Lee
are not supported by credible evidence. Although Respondent had
production records which could have been introduced to support its
“low production” reason for Lee’s discharge, it failed to produce
any such records. Under established Board practice, I make an
adverse inference from such failure and conclude that, if intro-
duced, the records would not have supported Respondent’s posi-
tion. I note Supervisor Crawford’s testimony, that, although Plant
Manager Collins had spoken to Lee about production, this occurred
soon after line 2 was established, and Lee was never warned. Fur-
ther, matters had “come a long way” by August, and Lee had im-
proved. Accordingly, I conclude that Respondent has not estab-
lished “low production” as a reason for discharging Lee.
The “walking around” reason is even vaguer. If Respondent
means that the “walking around” resulted in low production, this
reason has already been considered and rejected. If it means exces-
sive trips to the bathroom, the evidence considered above shows
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 626
that there was no more frequency of bathroom visits after the cam-
paign started than there was previously.
Although Collins denied telling Lee that the wearing of union T-
shirts by her employees was a reason, he admitted asking her about
the union sympathies of her employees. Lee was a more believable
witness than Collins, and I credit her testimony that the latter told
her that she was being discharged because her employees were
wearing union T-shirts and were going to the bathroom too fre-
quently (an unsupportable reason as I have found). Although the
evidence shows that other employees also wore union T-shirts, it
also shows that Lee’s employees did so with greater regularity.
Respondent’s hostility to the union movement is established by
the threats made by Glover, Alecs, and Moore. I conclude that
Respondent discharged Lee because she was not effective in get-
ting her employees to reject the Union. The facts in this case are
indistinguishable from those in Talladega Cotton Factory, 106
NLRB 295 (1953). There the Board concluded that the employer’s
discharges of supervisors because they failed to support effectively
the employer’s efforts to defeat the union demonstrated to employ-
ees that the same thing would happen to them if they continued to
support the union. Accordingly, the supervisory discharges vio-
lated Section 8(a)(1). Respondent’s unlawful motive herein is
buttressed by the harshness of its discipline of Lee. Instead of
transferring her to nonsupervisory work—which Collins admitted
could have been done, on line 1 if necessary—Respondent chose
the extreme penalty of discharge. I conclude that it thereby vio-
lated Section 8(a)(1) of the Act.9
F. The Discharges of Barbara Lewis, Carrie Hamilton, Debbie
Lewis, Regina Lewis, Rosie Aaron, Shirley Aaron, Brenda
Scott, and Bridgette Witherspoon.
1. The departure from line 2
a. Summary of the evidence
The complaint alleges that Respondent discharged the employ-
ees listed above on August 7, 1995, because of their union and
protected concerted activities. All of these employees had been
supervised by Doria Lee except Barbara Lewis, who was Lee’s
sister.
Bridgette Witherspoon testified that, on the morning of August
7, all of the employees on line 2 were wearing union T-shirts. An
employee named Joe Jackson told her that Doria Lee had been
discharged because her employees were wearing union T-shirts.
She and other employees discussed the matter, saying that there
was no need to fire Doria Lee because the employees were wearing
union T-shirts, and that they might be the next to be fired. The
employees decided to walk out and talk to Doria Lee. The line was
“down” at this time, according to Witherspoon, and there were no
fish. This had happened in the past, and, when it did, employees
were permitted to go to the breakroom or down the hill, until called
back to work. Witherspoon stated that she intended to return to
work as soon as somebody came and told them to return.
Regina Lewis testified that she and her fellow employees dis-
cussed Lee’s discharge and were upset about it. They decided to
“protest,” to leave the line, go “down the hill” to the parking lot and
talk to Doria Lee. Lewis testified that she did not tell anybody that
she was quitting. The line was “down” at the time, and Lewis
intended to return to work when somebody told them that the line
was again functioning.

9 See also Advertiser’s Mfg. Co., 280 NLRB 1185 (1986). The com-
plaint alleges that Doria Lee’s discharge violated Sec. 8(a)(3). I con-
clude that it violated Sec. 8(a)(1).
Debbie Lewis testified that she heard Doria Lee had been fired
because her employees were wearing union T-shirts. Lewis was
angry, and felt she was the next one to be fired. The other employ-
ees felt the same way, according to Lewis. They were concerned
that their next supervisor would be Line 1 Supervisor Carrie Evans,
who was “mean” and “evil.” The employees decided to go “down
the hill” and talk to Doria Lee. Debbie Lewis said that the line was
down and there were no fish to run. Customary practice in the past
had been to allow employees to leave the line with it was down,
and return when it was again functioning. Debbie Lewis testified
that she planned to return to work as soon as they were called back.
Julie Lee, a witness for Respondent, was also working on line 2
at this time. She testified that she heard employees saying that
Doria Lee had been fired and that they were going to see whether
this was true. They then left. Lee was asked whether the line was
running when the employees left. She replied: “To me it was still
running.” Asked whether anyone was laying fish, Lee replied that
no one was laying fish. She explained this testimony by saying that
two employees could not lay fish. Line 1 Supervisor Carrie Evans
had told her to shut the line down if no fish were being laid and
avoid a “gap in the middle.” Accordingly, Lee contended, she shut
the line down when the employees left. Julia Lee testified that Line
1 Supervisor Carrie Evans was not present, having gone to the
office. Randy Rhodes, a vice president of sales, entered as these
events were taking place, and asked Julia Lee what was happening.
He did not talk to any of the employees, according to Lee.
Timekeeper Diane Watkins testified that her place of work was
near the office. A group of employees—Bridgette Witherspoon,
Carrie Hamilton, Debbie Lewis, Regina Lewis, Rosie Aaron, and
Shirley Aaron—walked out. Watkins asked where they were go-
ing, and one of them replied, “Don’t worry about writing our
names down because we’re leaving and we won’t be back until
they hire Doria (Lee) back.” Watkins was uncertain as to who it
was that said this, but believed that it was Pamela Witherspoon. It
is undisputed that Pamela Witherspoon was not at work that day.
Carrie Hamilton testified that Diane Watkins was in her office
sharpening a pencil when the group passed her. Hamilton denied
that Watkins asked the group why they were leaving, and denied
that any of them spoke to her. Specifically, Hamilton denied that
anybody said to Watkins that they were leaving and would not be
back until Doria Lee was rehired.
Barbara Lewis, Doria Lee’s sister, worked on line 1. She testi-
fied that she heard her sister had been fired, and called Doria at
about 9:15 a.m. Doria told her that Collins had fired her because
her employees were wearing union T-shirts and were walking
around. Barbara Lewis affirmed that her morning break started at
10:30 a.m. and that a horn sounded this event. After the horn
sounded that morning, she went out of the plant and went down the
hill, where she joined the other employees in the parking lot. The
penalty for overstaying a break was a writeup.
Line 1 Supervisor Carrie Evans stated that her line was taking a
break, and that this started at 10 a.m. Although Evans contended
that both lines had breaks at the same time, this was changed so
that they were not simultaneous, and she was uncertain as to when
this took place. Sheila Hambright, a witness for Respondent, had
been a supervisor for 3 months at the time of her testimony. She
affirmed that on August 7, 1995, the breaktime on line 1 was 10:30
a.m. and it was at this time that Barbara Lewis went on break. The
break lasted for 15 minutes. After becoming a supervisor, Ham-
bright “fussed” at an employee who was 7 minutes late, but did
nothing more. Other evidence indicates that employees got write-
ups being late from breaks. Hambright also testified that Barbara
SOUTHERN PRIDE CATFISH 627
Lewis said that Doria Lee’s discharge wasn’t “right,” and that she,
Barbara, was quitting. Hambright replied that Barbara needed her
job, and that she should not quit. Lewis agreed and said that she
would not quit.
b. Factual conclusions
The line 2 employees left the line and went outside because they
heard that Supervisor Doria Lee had been discharged because her
employees were wearing union T-shirts. There was no supervisor
present at the time, since Doria Lee had been discharged, and Line
1 Supervisor Carrie Evans was in the office.
There is a conflict in the evidence as to whether line 2 was down
at the time. Bridgette Witherspoon, Regina Lewis, and Debbie
Lewis affirmed that it was down, while Julia Lee contended that it
was still running. A careful review of Julia Lee’s testimony, some
of which is recited above, shows that her meaning was uncertain at
times, and that she was less reliable than the three witnesses for the
General Counsel. They were truthful in demeanor. I credit their
consistent testimony, and find that the line was down when they
left.
There is a conflict in the testimony as to whether any member of
the group said anything to timekeeper Diane Watkins as they left
the plant. Watkins’ recall of these events was imperfect, since she
believed that it was Pamela Witherspoon who said this, although
Witherspoon was not present in the plant. Carrie Hamilton’s recall
was more accurate, and I credit her denial that anything was said
between Watkins and the departing group.
I also find that Barbara Lewis took her break at 10:30 a.m., and
that this was the established time for breaks on line 1. This was
corroborated by Sheila Hambright; Carrie Evans’ testimony is too
inconclusive to contradict this finding.
The testimony of the General Counsel’s witnesses and of Diane
Watkins establishes that Carrie Hamilton, Rosie Aaron, Shirley
Aaron, and Brenda Scott were in the group that walked out.
2. The events in the parking lot
a. Testimony of Robert Collins
Plant Manager Robert Collins testified that, at around 9 a.m., a
“sales person” told him that employees had walked off the job. He
and Company Owner Glover went to the freeze room and asked
employees what had happened. The answers were that the em-
ployees had “walked off” and that they were “quitting.” Collins
and Glover then got employees to fill the vacant locations.
b. Testimony of Joe Glover
Glover later stood on a hill near the plant and observed the em-
ployees below him in the parking lot. He testified that Sales Vice
President Randy Rhodes has told him that Rhodes was in the freeze
room and saw the employees leave and heard them say that they
quit. Glover agreed that he did not take any independent measures
to determine whether the employees had quit. He instructed some-
body to call the police, but could not recall who it was that he in-
structed to do so. He gave this instruction because he was told that
the employees would not leave the premises. The employees were
standing next to a security guard, but Glover did not speak with the
guard.
Glover was asked whether he gave the officer a list of names,
and replied that he did not think that he did. The company owner
was asked how the officer could be expected to know the people he
was supposed to escort off the premises. Glover replied that the
Company had an “in-and-out” clocking system, and that the po-
liceman would not have to know their names if he knew they
worked for the Company and were not at their jobs.
c. Testimony of Officer L. C. Hoggle
L. C. Hoggle, an officer with the Greensboro Police Department,
testified that he received a call at 10:45 a.m. to go to Respondent’s
plant and talk to Company Owner Glover. Hoggle arrived at 10:49
a.m., stopped at the security gate, and then drove up the hill where
Glover was standing next to the plant. Glover said that some peo-
ple had quit and walked off the job and would not leave the prem-
ises. Glover wanted the officer to remove them. Hoggle testified
that Glover gave him a piece of paper with names on it.
Hoggle then drove down the hill, approached the employees,
and asked whether they were the ones who had “quit.” Hoggle first
testified that they answered, “Yeah,” but on cross-examination
agreed that they replied that they were the ones who had “walked
off the job.” Hoggle then told them that they were on private prop-
erty, and instructed them to leave, which they did without incident.
Hoggle denied telling any employee that they were discharged.
d. Testimony of Barbara Lewis
Barbara Lewis testified that, as she left on her 10:30 a.m. break
to join the group in the parking lot, she saw a police car arriving.
The car drove up to where Glover was standing at the top of the
hill. After she joined the group, the police car came back down the
hill. An officer got out, holding a piece of paper which Glover had
given him. He read off the names of the individuals in the group,
including Lewis, and said that they were “terminated” and had to
leave the property.
e. Testimony of Bridgette Witherspoon
At one point, Bridgette Witherspoon testified that the officer
said they were terminated. Later, she corrected this and affirmed
that the policeman said that Glover wanted the employees off the
property, and that he, the officer, would show them the way.
Witherspoon asserted that an employee—she was not sure who it
was—asked the security guard to call Glover and asked permission
to speak to Glover. This took place before the officer came down
the hill.
On redirect examination by the General Counsel, Witherspoon
stated that the reason the security guard was approached was the
fact that the security guard “wouldn’t let us back up at the gate . . . .
We wanted to work because we needed our jobs.” Counsel for the
General Counsel then asked that the witness be excused from the
hearing room, and stated that the witness was “either greatly con-
fused or fabricating” about this testimony. Counsel for the Charg-
ing Party stated that the General Counsel’s statement was “highly
bizarre.”10 On redirect examination by the Charging Party, the
witness stated that she did not understand the question about going
to the guard shack, and denied that any of the employees did so.
Respondent argues that “this incident illustrates the fact that
CGC’s witnesses . . . have fabricated an entire case out of the fact
that they quit their jobs.”11
The totality of the evidence establishes that the employees did
not in fact quit their jobs, as shown hereinafter. Of the two alterna-
tive explanations for Bridgette Witherspoon’s testimony given by
the General Counsel, I accept the explanation that the witness was
confused rather than that she was fabricating. The General Coun-
sel’s case does not depend on Witherspoon’s testimony alone, and
there is no evidence to support Respondent’s argument that the
General Counsel’s witnesses in effect engaged in a conspiracy to
fabricate the entire case.

10 I correct the word “bazaar” on L. 7 of p. 221 to read “bizarre.”
11 R. Br. fn. 23, 39–40.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 628
f. Testimony of Regina Lewis
Regina Lewis testified that she saw Glover give the officer a
piece of paper. He came down the hill, called off the names, and
said that Glover had “terminated” them because they were trespass-
ing. They had to leave immediately.
g. Testimony of Debbie Lewis
Debbie Lewis testified substantially to the same effect as Bar-
bara Lewis and Regina Lewis.
3. Factual conclusions
Glover’s testimony discloses that he did not know the identities
of the employees in the parking lot, and made no effort to deter-
mine whether they quit. However, he has maintained that they did,
and it is probable that he said the same thing to Officer Hoggle, as
the two of them testified. It is therefore likely that Toggle repeated
this assertion to the employees, rather than telling them that they
were discharged. Nonetheless, the employees did not agree that
they had quit, but had merely walked off the job.
4. Factual summary
The credited evidence shows that the employees heard that their
supervisor (Doria Lee) had been discharged because they were
wearing union T-shirts. They felt that they would be the next to be
fired, and were also concerned that they might be supervised by a
new and undesirable supervisor.
The employees decided to “protest” and to go down a hill to the
parking lot and talk to Doria Lee. None of the employees told
anybody that they were quitting, except Barbara Lewis. She stated
this in a conversation with Sheila Hambright, and immediately
changed her mind upon advice from Hambright. Although Sales
Vice President Randy Rhodes came into the freeze room when
they were leaving, he did not talk to them (according to Respon-
dent’s witness Julia Lee). There was no other supervisor present.
Line 2, where the employees worked, was “down” at the time,
i.e., there were no fish to process. This had happened in the past,
and the practice had been to allow employees to go to the break-
room or down the hill until the line was again functioning. The
employees intended to return to work when they were informed
that the line was again functioning. With the exception of Barbara
Lewis, the employees left at about 9 a.m. or shortly thereafter and
went down the hill to the parking lot. Barbara Lewis, who worked
on line 1, called her sister Doria Lee, left at her breaktime of 10:30
a.m., and joined the group in the parking lot.
Company Owner Glover stood on a hill near the plant and ob-
served the employees standing in the parking lot. Sales Director
Randy Rhodes told Glover that the employees had quit. Glover did
not talk with the employees and made no independent investigation
of Rhodes’ statement. He caused somebody to call the police.
Although Glover contended that he did not know the identities of
the employees in the parking lot, he gave the officer who arrived a
list of their names. Glover told the officer that the employees had
quit.
The officer went down the hill to the employees. There is no
evidence that they were damaging property, causing a disturbance,
or interfering with traffic. The officer asked them if they were the
employees who had “quit.” They replied that they were the em-
ployees who had “walked off.” The officer then read their names
from the list, told them that they were on private property, and
instructed them to leave. They did so without incident.
5. Legal conclusions
It is settled law that employees have the right to engage in con-
certed activities, including the right to leave their work concertedly,
where such activities have a reasonable relationship to the employ-
ees’ interest in their working conditions. NLRB v. Washington
Aluminum Co., 370 U.S. 9 (1962); NLRB v. Guernsey-Muskingum
Electric Co-Op., 285 F.2d 8 (6th Cir. 1960); Blue Star Knitting,
Inc., 216 NLRB 312 (1975). “[T]he spontaneous banding together
of employees in the form of a work stoppage as a manifestation of
their disagreement with their employer’s conduct is clearly pro-
tected activity (authorities cited).” Vic Tanny International, 232
NLRB 353, 354 (1977).
Respondent argues that the employees were not engaged in pro-
tected activity, and cites Puerto Rico Food Products Corp. v.
NLRB, 619 F.2d 153 (1st Cir. 1980). The court stated two criteria
for determining whether employee action over supervisory staffing
will be protected. First, the employee protest must be a protest
over their actual conditions of employment. Second, the means of
protest must be reasonable. In Puerto Rico Food Products, accord-
ing to the court (disagreeing with the Board), the only evidence in
support of the first criterion was the fact that the supervisor be-
friended the employees and cautioned them about visible union
activity (619 F.2d at 156).
The court stated:

This evidence is, we think, irrelevant. The pertinent question
. . . is whether the employee protest over a change in supervi-
sory personnel is in fact a protest over the actual conditions of
their own employment.
In answering this question, the focus, at least prelimi-
nary, must be upon the employees’ subjective state of
mind. Thus, the possibility that (the supervisor) occasion-
ally cautioned the employees concerning their union activ-
ity is without force unless we first determine that the em-
ployees were protesting his discharge because, for exam-
ple, they feared that they had witnessed the opening salvo
in an attack upon their union activities. The mere fact that
(the supervisor) was a popular supervisor is not one of the
recognizable conditions of their employment (id.).

The facts in the case at bar show that the employees’ protest
over Doria Lee’s discharge was a protest over the conditions of
their own employment, and that that discharge was an “opening
salvo in an attack upon their union activities.” The employees
believed that their supervisor was discharged because they were
wearing union T-shirts—a protected activity. They also believed
that they would be the next to be fired—which in fact took place.
Their protest over Doria Lee’s discharge thus clearly concerned
their own working conditions.
Did the employees quit, as Respondent contends? There is
no credible evidence that any of them told management that
they quit. They testified that they intended to return to work
when line 2 was again functioning. Their action in remaining
in the parking lot rather than leaving the premises is consistent
with this testimony.
The Court of Appeals for the Tenth Circuit has stated:

The declarations and acts of the employees at the time of the
walkout . . . should be considered (authority cited). We con-
sider this to mean the words and acts immediately preceding
and simultaneously accompanying the walkout, including the
declarations made to the employer and the facts and circum-
stances that surrounded it. The record does not show that the
SOUTHERN PRIDE CATFISH 629
maids unequivocally announced to the employer that they
quit. It certainly does not disclose an intention or motivation
to do so. The workers had an inextricable interest in their su-
pervisor insofar as their work conditions were concerned.
When she was separated from them they reasonably felt they
had no other recourse but to walk off the job, as originally
planned, in protest over the work conditions . . . NLRB v.
Okla-Inn, 488 F.2d 498, 503 (1973).

The Court of Appeals for the Eighth Circuit has stated:

The employees activities . . . remained protected because they
waited peacefully on the petitioner’s premises to present their
complaints and because their conduct did not amount to a sig-
nificant occupation of the premises. To hold otherwise would
render the protection set forth in Section 7 of the Act mean-
ingless. [Roseville Dodge, Inc. v. NLRB, 882 F.2d 1355, 1359
(8th Cir. 1989).]

Respondent cites Can-Tex Industries v. NLRB, 683 F.2d 1183
(8th Cir. 1982), where the court disagreed with the Board’s finding
of an unlawful discharge. The court grounded its disagreement on
the fact that the employees turned off machines in order to halt
production. There is no such evidence in its case.
Respondent cites Waco, Inc., 273 NLRB 746 (1984). In that
case the employees gathered in the lunchroom and demanded that
the employer meet with them as a group. He said he would meet
with them individually, but refused to meet as a group. The em-
ployer informed them that they could either go back to work or
punch out and leave the premises. The employer discharged them
after about 2–1/2 hours of their presence in the lunchroom.
The Board concluded that this was a lawful discharge. The em-
ployees “had overstepped the boundary of a protected, spontaneous
work stoppage and were occupying the facility in a manner which
was unprotected . . . [T]he employees had ample time to consider
the Respondent’s demand that they choose between working and
carrying on their protest off the Respondent’s premises. The em-
ployees gave no indication that they intended to accept either alter-
native, and, in fact, the employees’ testimony indicates that they
had no plan to give up their occupation of the Respondent’s lunch-
room.” (Id. at 746–747.)
In the case at bar, the employees were not “occupying” the park-
ing lot—they were simply there by the guard shack and were not
interfering with anything. Company Owner Glover did not give
them a choice of going back to work or leaving the premises. He
did not even talk to them and caused the officer to order them to
leave the premises. The employees intended to return to work
when line 2 was again functioning, but were not given this oppor-
tunity. Accordingly, Waco is inapposite.
I conclude that the officer’s instruction to these employees to
leave the premises pursuant to Glover’s order constituted dis-
charges of the employees. NLRB v. Ridgway Trucking Co., 622
F.2d 1222 (5th Cir. 1980).
The complaint alleges that Respondent discriminatorily dis-
charged the employees listed above on August 7, 1995. In order to
establish a discriminatory discharge, the General Counsel must
make a prima facie case sufficient to support an inference that
protected conduct was a motivating factor in the employer’s deci-
sion to discipline an employee. Once this is established, the burden
shifts to the Respondent to demonstrate that the discipline would
have been administered even in the absence of the protected con-
duct. The General Counsel must supply persuasive evidence that
the employer acted because of antiunion animus.12
The General Counsel has presented a strong prima facie case to
support this inference, and Respondent has not rebutted it. Accord-
ingly, I find that Respondent, on August 7, 1995, discharged Carrie
Hamilton, Debbie Lewis, Barbara Lewis, Regina Lewis, Rosie
Aaron, Shirley Aaron, Bridgette Witherspoon, and Brenda Scott
because they supported the Union and engaged in protected activi-
ties. Respondent thereby violated Section 8(a)(3) and (1) of the
Act.
6. The discharge of Pamela Witherspoon
1. Summary of the evidence
The complaint as amended at the hearing alleges that Respon-
dent discharged Pamela Witherspoon on August 8, 1995, because
she supported the Union and engaged in other protected concerted
activities.
Pamela Witherspoon started working for Respondent in 1994.
When the union movement started, she attended union meetings
and wore a union T-shirt. Her supervisor, Doria Lee, asked her
why she wanted the Union in the plant. Witherspoon replied that
she wanted more money. Doria Lee then wrote Witherspoon’s
name on a piece of paper, together with her answer. Later the same
day, Supervisor Greg Crawford asked Witherspoon the same ques-
tion and received the same answer.
The Company provided two ways that employees could protect
their clothing when they worked. One method was a blue plastic
apron, and the other was a clear plastic bag in which the employees
cut holes. Witherspoon testified that she made the decision as to
which device to use, and chose the plastic apron. Prior to August 8,
1995, no supervisor had ever told her that she had to wear the plas-
tic bag.
Witherspoon was absent from work on April 7. She reported to
work on August 8 and asked for an apron. The employee who
handed them out said that she had to wear a plastic bag. According
to Witherspoon, she then went to Supervisor Greg Crawford and
asked for her blue apron so that she could go to work. Crawford
replied that if she did not put on the plastic bag, she was to give
him her “card and i.d.,” go to the breakroom and sit down.
Witherspoon did so. Plant Manager Collins came in and asked
why she was not wearing a white bag. He said that they had cam-
eras in the place that day, and that they could not see the black
people without the plastic bags. Collins did not tell Witherspoon
the reason for the cameras. He told Witherspoon that she did not
work there any more, and to go “down the hill.”
Greg Crawford testified that when Witherspoon came in, she
asked him whether she still had a job. (Witherspoon denied asking
this question.) Crawford then told her to get her gloves and knife
and go to work. (Witherspoon denied that Crawford said this.)
Witherspoon replied that she was not going to do so, Crawford
averred, because the employees on the belt did not know what they
were doing. Crawford replied that if she was not going to work,
she might as well go home. Witherspoon said nothing about wear-
ing an apron, according to Crawford.
Witherspoon denied that Crawford made any of the statements
asserted by Crawford, or that she made any of the responses attrib-
uted to her. She testified that she did not refuse to work, but merely
asked for her blue apron so that she could go to work.

12 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir.
1989), approved in NLRB v. Transportation Management Corp., 464 U.S.
393 (1983); Manno Electric, 321 NLRB 278 fn. 12 (1996).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 630
Plant Manager Collins testified that Sales Director Randy Rho-
des was making pictures for a sales video, and had a camera. They
wanted the employees to wear white bags so that they would look
clean. Supervisor Greg Crawford denied knowledge that any film
or brochures were being made that day. Witherspoon denied that
anybody said anything to her about the reason for the cameras, or
that videos were being made for brochures.
Plant Manager Collins denied talking to Pamela Witherspoon
about her discharge. He heard that some employee had been dis-
charged for refusing to wear a “white button,” but was not certain
that it was Pamela Witherspoon.
2. Factual and legal conclusions
Respondent’s rationale for the asserted “white bag” requirement
on August 8—filming for a sales video—was asserted by Plant
Manager Collins but denied by Supervisor Crawford (as well as by
Pamela Witherspoon). Randy Rhodes, supposedly supervising the
filming, did not testify. In light of these contradictions and omis-
sions, I do not credit Collins’ testimony about the filming. It fol-
lows that there was no business reason for refusing Pamela
Witherspoon’s request for an apron, as she had done in the past
without objection.
The issue between Crawford and Witherspoon was her request
for her customary apron. I credit Witherspoon’s denial that Craw-
ford told her to get gloves and knife and go to work, or that she
replied that she would not work with the employees because they
did not know what they were doing. Since her former colleagues
had been discharged the day before and presumably replaced,
Witherspoon would have had no way of knowing the new employ-
ees’ capabilities.
Crawford’s denial that Witherspoon said anything about wearing
an apron is not credible—Plant Manager Collins agreed that some-
body had been discharged for refusal to wear a “white button,” a
garbled description but sufficient corroboration of Witherspoon.
Who discharged Witherspoon? Crawford testified that he said
she might as well go home after refusing to work with employees
who did not know what they were doing. However, as indicated
Witherspoon never said this, and we are left with Witherspoon’s
testimony that Crawford told her to give him her card and i.d. and
go to the breakroom.
In light of the contradictory testimony of Respondent’s wit-
nesses, and because Pamela Witherspoon was a truthful witness, I
credit her testimony that Crawford told her to go to the breakroom,
and that Collins then told her that she did not work there any more.
I conclude that Collins thereby discharged Witherspoon on August
8, 1995.
Pamela Witherspoon was a union activist, and had been interro-
gated by two supervisors. Respondent’s animus is established by
the unlawful statements of the management representatives, and by
the unlawful discharges of eight employees the day before. Re-
spondent has not rebutted the General Counsel’s case under the
Wright Line.13
In accordance with my findings above, I make the following
CONCLUSIONS OF LAW
1. Southern Pride Catfish is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. United Food and Commercial Workers Local 1996 is a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by engaging in
the following conduct.

13 Supra, fn. 12.
(a) Creating an impression of surveillance of its employees’ un-
ion activities and sympathies by maintaining lists of union support-
ers and telling employees that it was at management’s direction.
(b) Coercively interrogating its employees concerning their un-
ion sympathies.
(c) Threatening its employees with reduction in wages, loss of
jobs, and plant closure if they voted for the Union.
(d) Discharging Supervisor Doria Lee on August 7, 1995, be-
cause she failed to support effectively Respondent’s efforts to de-
feat the union movement.
4. Respondent violated Section 8(a)(3) and (1) of the Act by en-
gaging in the following conduct:
(a) Discharging Barbara Lewis, Carrie Hamilton, Debbie Lewis,
Regina Lewis, Rosie Aaron, Shirley Aaron, Brenda Scott, and
Bridgette Witherspoon on August 7, 1995, because of their union
activities and sympathies.
(b) Discharging Pamela Witherspoon on August 8, 1995, be-
cause of her union activities and sympathies.
(c) Promulgating a rule restricting its employees’ bathroom
breaks because of their union activities and sympathies.
5. The foregoing unfair labor practices constitute unfair labor
practices affect commerce within the meaning of Section 2(6) and
(7) of the Act.
6. Respondent has not violated the Act except as found herein.
THE REMEDY
It having been found that Respondent has engaged in certain un-
fair labor practices, it is recommended that it be ordered to cease
and desist therefrom and take certain affirmative action designed to
effectuate the purposes of the Act.
I shall recommend that Respondent be ordered to offer Supervi-
sor Doria Lee, Barbara Lewis, Carrie Hamilton, Debbie Lewis,
Regina Lewis, Rosie Aaron, Shirley Aaron, Brenda Scott,
Bridgette Witherspoon, and Pamela Witherspoon immediate rein-
statement to their former positions, dismissing if necessary any
employee hired to fill the position, and to make them whole for any
loss of earnings she may have suffered by reason of Respondent’s
unlawful conduct, by paying her a sum of money equal to the
amount she would have earned from the date of her unlawful dis-
charge to the date of an offer of reinstatement, less net interim
earnings during such period, to be computed on a quarterly basis in
the manner established by the Board in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).14
I shall also recommend that Respondent remove from its records
all references to its unlawful discharges described above, and in-
form each employee in writing that this has been done, and that the
aforesaid actions will not be used as the basis of any future disci-
pline of them.
I shall further recommend that Respondent rescind its rule re-
stricting its employees’ bathroom breaks, and reinstate the practice
in effect prior to the advent of the union campaign.
I shall also recommend the posting of notices.
14 Under New Horizons, interest is computed at the “short-term Federal
rate” for the underpayment of taxes as set out in the 1986 amendment to 26
U.S.C. § 6621. Interest accrued before January 1, 1987 (the effective date of
the amendment), shall be computed as in Florida Steel Corp., 281 NLRB
651 (1977).
SOUTHERN PRIDE CATFISH 631
The Objections
Objection 1
This objection alleges that the Employer made threats of plant
closure in order to influence the outcome of the election. I have
already found that the Employer made such threats. Accordingly,
objection 1 is sustained.
Objection 2
The objection alleges that the Employer threatened to layoff cer-
tain of its employees in order to affect the results of the election. I
have that Respondent, by Joe Alecs, told employees that they
would have to look for other jobs if the Union won. Accordingly,
objection 2 is sustained.
Objections 3 and 4
These objections allege that the Employer openly kept records of
employees wearing Union T-shirts in order to intimidate them, and
engaged in surveillance of its employees’ union activities. I have
already found that the Employer engaged in this conduct. Accord-
ingly, these objections are sustained.
Objection 5
The objection alleges that the Employer threatened certain em-
ployees with job loss if the Union won the election. I have already
found that the Employer engaged in this conduct. Accordingly,
this objection is sustained.
Objections 6 through 10
These objections allege that the Employer provided a “loaded”
employee eligibility list (Objection 6), that it used supervisors as
election observers (Objection 7), that the Employer’s election ob-
servers maintained lists of voters (Objection 8), that the Employer
discharged Bobby Joe Connor due to his union activities and in
order to influence the outcome of the election (Objection 9), and
that the Employer gave or promised employees loans in order to
affect the result of the election (Objection 10).
The evidence is insufficient to support these objections. Accord-
ingly, they are dismissed.
The meritorious objections warrant setting the election aside and
directing a new election.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended15
ORDER AND DIRECTION OF SECOND ELECTION16

15 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended Order
shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and
all objections to them shall be deemed waived for all purposes.
16 Subsequent to the hearing, Respondent filed a motion to reopen the re-
cord so as to take the testimony of Board Agent Morris Newman. The
motion states that the General Counsel denied Respondent’s request at the
hearing to call Newman as a witness. Respondent’s asserted reason was that
Newman could contradict the testimonies of Bridgette Witherspoon and
Doria Lee.
The motion asserts that Witherspoon’s testimony sought to be contra-
dicted describes a list of voters wearing union T-shirts kept by the Com-
pany’s observer during the election. This would have been visible to Board
Agent Newman, the motion asserts.
The testimony from Doria Lee sought to be contradicted is her testimony
that she told Board Agent Newman during his investigation that she was
discharged because her employees wore union T-shirts, but that Newman
failed to record it in her affidavit.
The Respondent, Southern Pride Catfish, Greensboro, Alabama,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Creating an impression of surveillance of its employees’ un-
ion activities by maintaining lists of union supporters and telling
employees that it was at management’s direction.
(b) Coercively interrogating employees concerning their union
activities or sympathies.
(c) Threatening employees with reduction in wages, loss of jobs,
or plant closure if they vote for the Union.
(d) Discharging supervisors because of failure to support effec-
tively Respondent’s efforts to defeat the Union.
(e) Discouraging membership in United Food and Commercial
Workers Union, Local 1996, or any other labor organization, by
discharging or otherwise discriminating against employees because
of their activities on behalf of a labor organization or other con-
certed protected activities.
(f) In any other like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their Section 7 rights.
2. Take the following affirmative action necessary to effectuate
the policies of the Act.
(a) Within 14 days from the date of this Order, offer Doria Lee,
Barbara Lewis, Carrie Hamilton, Debbie Lewis, Regina Lewis,
Rosie Aaron, Shirley Aaron, Brenda Scott, Bridgette Witherspoon,
and Pamela Witherspoon, immediate and full reinstatement to their
former positions, or, if any such position no longer exists, to a sub-
stantially equivalent position, without prejudice to their seniority or
other rights and privileges, discharging if necessary any employee
hired to replace any of them, and make each of them whole for any
loss of earnings she may have suffered by reason of Respondent’s
unlawful discharge of her, in the manner described in the remedy
section of this decision.
(b) Within 14 days from the date of this Order, remove from its
records all references to its unlawful discharges of Doria Lee, Bar-
bara Lewis, Carrie Hamilton, Debbie Lewis, Regina Lewis, Rosie
Aaron, Shirley Aaron, Brenda Scott, Bridgette Witherspoon, and
Pamela Witherspoon, and inform each of them in writing that this
has been done, and that the aforesaid actions will not be used as the
basis of any future discipline of them.
(c) Within 14 days from the date of this Order, rescind its rule
restricting the bathroom breaks of its employees, and reinstate the
practice concerning bathroom breaks which was in effect prior to
the advent of the union movement.

Sec. 102.118 prohibits a Board employee subject to the jurisdiction of the
General Counsel from testifying in a proceeding of this nature without the
written consent of the General Counsel.
Counsel for the General Counsel filed an opposition to Respondent’s mo-
tion. He points out that the actions of Respondent’s election observer were
not the subject of an objection in Case 10–RC–14631 nor a complaint alle-
gation in Case 10–CA–28960. Counsel further argues that the contention
that Newman saw the observer is purely speculative. As I point out in my
decision, the General Counsel’s case does not depend upon the testimony of
Bridgette Witherspoon alone (p. 631).
With respect to the testimony of Doria Lee, Plant Manager Collins’ de-
nial that he spoke to Lee about her employees wearing union T-shirts is
noted in the decision, together with the other statements of Collins and Plant
Owner Glover. Lee was available for cross-examination, and Respondent
cross-examined her. The reasons for crediting Lee rather than Collins on
this issue are set forth on p. 633 of the decision.
I conclude that there are no compelling circumstances which would jus-
tify reopening the record to take the testimony of Board Agent Newman on
these matters. Sunol Valley Golf Co., 305 NLRB 493 (1991). Accordingly,
Respondent’s motion is denied.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 632
(d) Preserve and, within 14 days of a request, make available to
the Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post copies of the
attached notice marked “Appendix.”17 Copies of the notice, on
forms provided by the Regional Director for Region 10, after being
signed by the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time since
December 13, 1995.

17 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
(f) Within 21 days after service by the Region, file with the Re-
gional Director a sworn certification of a responsible official on a
form provided by the Region attesting to the steps that the Respon-
dent has taken to comply.
[Direction of Second Election omitted from publication.]