Sunnyland Packing Co.

National Labor Relations Board - Board Decisions

Dec 23, 1976

227 N.L.R.B. 590 (N.L.R.B. 1976)

590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sunnyland Packing Company aldAmalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO. Cases 10-CA-11248 and 10-RC-
10311
December-23, 1976
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On May 18, 1976, Administrative- Law Judge
William F. Jacobs issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions-of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light-of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Sunnyland Packing Company, Thomasville,
Georgia, its officers, agents, successors, and assigns,
shall take the action set forth in the Administrative
Law Judge's recommended Order, as modified be-
low:
Add the following as the final paragraph of the
recommended Order:
"IT IS FURTHER ORDERED that the election conduct-
ed in Case 10-RC-10311 on May 29,1975, be, and it
hereby is, set aside."
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board's established policy not to
overrule an Adnunistrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
In the absence of exceptions thereto, we adopt ,pro forma, the Administra-
tive Law Judge's dismissal of the complaint related to the postpetition
incidents set forth in sec. G of his Decision.
Finally, Members Fanning and Jenkins disavow the Administrative Law
Judge's remarks that Respondent's no-solicitation rule is lawful on its face,
but in the absence of exceptions they make no finding on this issue.
2 The Adnumstrative Law Judge recommended that the election conduct-
ed in Case 10-RC-10311 be set aside We agree. Hence we shall amend the
Order to set aside the election conducted on May 29, 1975, and direct a
second election.
227 NLRB No. 91
DECISION
STATEMENT OF THE CASE
Wu..u us F. JACOBS, Administrative Law Judge: A
hearing was held in this consolidated proceeding at
Thomasville, Georgia, on October 30-31 and December 3-
4,1975.
On April 14, 1975, the Charging Party-Petitioner ( herein
referred to as the Union) filed a petition in Case 10-RC-
10311 and on May 29, 1975, an election was conducted by
the National Labor Relations Board in a stipulated
appropriate unit of production and maintenance employees
at the Thomasville, Georgia, plant of the Respondent
Employer (herein referred to as Respondent, Employer, or
Company). The Union lost the election, having received
244 votes in its favor while 287 votes were cast against
representation. There were 5 void ballots cast and the 12
challenged ballots cast were insufficient in number to affect
the results of the election. On June 5, 1975, the Union filed
timely objections to the election.
Meanwhile, on May 12, 1975, the Union filed the charge 1
in Case 10-CA-11248 alleging as- violations of Section
8(a)(3) and (1) of the Act the discriminatory termination of
two employees. On July 8, 1975, the Union filed an
amended charge adding to the'existirig 8(a)(3) allegations
further allegations of independent 8(a)(1) violations.-Com-
plaint issued on July 18, 1975, covering both the 8(a)(3)
allegations contained in the original charge and the
independent 8(a)(l) allegations added in the amended
charge. The latter concerned allegations of unlawful
interrogation, promulgation of an unlawful no-solicitation
rule, creation of the impression of surveillance of its
employees' union activity, solicitation of its employees to
persuade their fellow employees to oppose the Union, and
promises of economic benefits in return for its employees
rejecting the Union as their exclusive collective-bargaining
representative.
On August 6, 1675, the Regional Director of Region 10
issued a report on objections recommending that three of
the four objections filed on June 5, 1975, be overruled but
recommending further that the issues raised by Objection 4
be resolved by record testimony at a hearing. Inasmuch as
the subject matter of Objection 4 was substantially the same
as the independent 8(a)(1) allegations contained in para-
graphs 7, 8, 9, 10, 11 , and 12 of the amended complaint
which issued July 18, 1975, the report further recommended
that Cases 10-RC-10311 and 10-CA-11248 be consolidat-
ed for the purpose of hearing, ruling, and decision by an
1 At the time the Union filed the charge it was also required to file a
request to proceed . Respondent argues in its brief that by filing the request to
proceed, the Union has waived any right to rely on any incidents occurring
prior to the filing of the charge as the basis for setting aside the election. But
the record contains no evidence that such a waiver was intended and the law
is clear that a union can properly object to an employer's preelection
interference with employees ' rights occurring between the time of the filing of
the petition and the holding of the election and such objections are valid even
though they are the subject of a subseuqnet charge and even though the
union had knowledge of the incidents at the time it chose to proceed to the
election. Erie Technological Products, Inc., 218 NLRB 878 (1975); LloydA.
Fry Roofing Co Inc., 142 NLRB 673 (1963).
SUNNYLAND PACKING COMPANY 591
Administrative Law Judge. The 8(a)(3) allegations are
based-on prepetition incidents and not subject to objec-
tions.2
On October 17, 1975, the Board issued its Decision and
Order adopting the Regional Director's findings, conclu-
sions, and recommendations and ordering that a hearing be
held to resolve the issues raised by Objection 4. The
Decision and Order further authorized the Regional Direc-
tor to issue a notice of hearing and an order consolidating
Case 10-RC-10311 with Case 10-CA-1 1248. On October
22, 1975, in accordance -with the Board's Decision and
Order; the appropriate order consolidating cases and notice
of hearing issued.
The issues are whether or not Respondent violated
Section 8(a)(1) and (3) of the National Labor Relations Act,
as amended by committing the alleged violations described
above and whether those incidents alleged as independent
8(a)(1) violations and as objectionable conduct were of
such a nature as to require that the election be set aside and
a second election be conducted. Respondent, . in its answer
generally denies the commission of any unfair labor
practices. Representatives of all parties were present and
participated in the hearing. Briefs were timely filed by
Respondent and by General Counsel.
Based on the entire record, including my observation of
the witnesses, and after giving due consideration to the
briefs, I make the following: _
FINDINGS OF FACT
1. JURISDICTION
purpose of distributing union cards. Among those partici-
pating in this activity were Patricia Ann Scott and David
Wilson, the alleged discriminatees herein.
B The Termination of Scott
1. Scotts's union activity
Patricia Ann Scott was employed by Respondent since
October 1973, most recently as weigher in the sliced bacon
department. Early in April Scott was advised by a fellow
employee that the Union was organizing the plant. Inas-
much as she had previously been employed at unionized
plants, she manifested some interest in participating in the
campaign. Thereafter she attended a union organizational
meeting at the home of another employee where she signed
a union card herself and inquired of one of the business
agents in attendance as to how she could contribute to the
campaign. She was advised as to the organizational
procedure and educated as to her rights. She was given
from 25 to 30 union cards to distribute and cautioned not to
distribute them on company property during working time
but rather to solicit during breaks or lunch hour. She took
the cards and hid them under her car seat. Whenever she
met fellow employees, in the parking lot, at their homes, or
while shopping, she would talk with them about the benefits
of unionization, offer them a card and, after obtaining their
signature, secrete the cards back underneath the seat. In
this fashion she obtained the signatures of a number of
employees on union authorization cards which she returned
to the business agents from whom she had received them.
Respondent is, and has been at all times material herein,
a Georgia corporation with an office and place of business
located at Thomasville, Georgia, where it is engaged in the
processing and sale of meat. Respondent admits that during
the .past calendar year immediately preceding issuance of
complaint, a representative period, it sold and shipped
finished products valued in excess of $50,000 directly to
customers located outside the State of Georgia. I find that
Respondent is an employer within the meaning of Section
2(2) of the Act, engaged in commerce and in.,operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
II: THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Amalgamated Meat
Cutters and Butcher Workmen of North America, Local
Umon-' 522 AFL-CIO, herein the Union , is a labor
organization- within the meaning of Section 2(5) of the Act.
IIL THE UNFAIR LABOR- PRACTICES
A. Background
In early 1975 the Union undertook an organizing
campaign at Respondent's plant which eventually culmi-
nated in the election, of May 29, 1975,3 which, as noted
above, the Union lost. During the campaign it enlisted the
services of several of Respondent's employees for the
2 Goodyear Tire and Rubber Company, 138 NLRB 453 (1962); The Ideal
Electric andManufacturtng Company, 134 NLRB 1275 (1961).
2. The Scott-Welch solicitation
One of the employees with whom Scott worked in the
sliced bacon department was Mildred Welch who operated
the tuck machine which boxes the bacon. According to
Welch, on April 4, while Welch was working on the line,
Scott talked to her about signing a union card. Scott was
standing right beside Welch weighing bacon when the
conversation took place. As Welch remembers it, Scott first
asked her how she felt about the Union and Welch replied
that she did not knowmuch about the Union and therefore
really did not know how she felt about it. Scott then asked
Welch if she would consider signing a union card and
Welch again replied noncommittally that she did not know,
that she would need time to think about it. Scott then
volunteered that she knew a man that had some union
cards and she could perhaps get one for her. Welch replied,
"Well give me time to think about it" and Scott agreed. This
ended the conversation to which only Scott and Welch were
witnesses. Neither employee paused in her work nor
interrupted production during this conversation which
ended as Welch relieved Scott in order to permit the latter
to go to the restroom. According to Scott, this conversation
never took place. She denied talking to Welch- or anyone
else about the Union while on company property, much less
while actually working on the line.
Prior to the discussion immediately described above, and
beginning about the first of the year, Welch became aware
3 Hereafter, all dates refer to 1975 unless otherwise noted.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Scott's prounion sympathies when on several occasions
Scott in a offhanded manner would make remarks such as
"what this place needs is a union." This type of remark
made both while working on the line and while away from
her work station did not appear to be directed toward
anyone in particular but was mostly rhetorical, intended to
elicit a reply from no one. On other occasions Scott
remarked that she had never worked anywhere before
where the employees were not represented by a union. This
remark, too, appears to have been of a causal nature, not to
be construed as an attempt at solicitation for membership
in the Union. These occasional remarks were uttered as
much as a month before Scott' s termination and weeks
before she actually attempted to solicit Welch's support.
Inasmuch as these impromptu remarks were removed both
in time and character from her later attempt to seriously
solicit Welch's support for the Union, I do not consider
them to be of a nature susceptible to proscription by
Respondent's no-solicitation rule, particularly in light of
the working habits of other employees which habits were
considered acceptable to the employer. These matters will
be discussed at length, infra. -
Accordmg,'to Welch's testimony, on the day that Scott
inquired of Welch as to her willingness to sign a card,
Welch advised her supervisor, Curtis Eason, of the incident
after checking out for the day. She told him, that she
thought that the employees had been told that they were
not supposed to solicit or talk union while working, to
which Eason replied that she was correct, adding that it
wouldn't matter if it occurred in the cafeteria or away from
the job. He then asked her why she had brought up the
subject. Welch then divulged the fact that she had been
"approached about the union" and requested to sign a card
whereupon Eason asked her who it was who had discussed
the Union with her and where it had' happened. After she
told him that it had been Scott, and described the
circumstances of the solicitation, he said that she should
leave the matter to him and he would tend to it. He did not
describe to her what action he intended to take nor ask her
any additional questions such as how often Scott had
solicited for the Union before or whether there had been
any disruption of work while the solicitation was in
progress. She did, however, advise Eason that Scott had
mentioned the Union on two or three previous occasions
prior to her asking Welch to, sign the card.
Eason's description of Welch's report of the solicitation
differs from hers mostly as to emphasis. Thus, he testified
that he was advised by-Welch fthat somebody was "bother-
ing her" or was after her to "sign a union card" and "trying
to talk to" her in favor of being for the union." He further
testified that she complained that the person would talk to
her about„the union every time she went by and "would not
take `no' for an answer." Eason then asked Welch who it
was that she was talking about and Welch named Scott.
According to Eason, Welch asked him to put a stop to it,
since she could not get her work done because of Scott
bothering her. Eason promised to look into the matter.
Eason's testimony concerning Welch's report about the
solicitation reflected a lack of certainty as to precisely what
Welch had told him. At one point during cross-examination
he could not recall whether Welch told him that Scott was
trying to get her to sign a card or was trying to get her to
work for the Union. Eason could not recall either whether
Welch had complained about being pestered by Scott or
had merely been solicited to sign the card. All in all,
Eason's description of his conversation with Welch seemed
disjointed, unreliable because of memory lapses as well as
suspect because of a clear lack of candor in answering
questions on cross-examination . For these reasons, as well
as the favorable impression I received from Welch's
forthright manner in offering her testimony, I credit
Welch's description of her report to Eason and find that it
occurred as she described in her testimony as outlined
above.
After Eason received Welch's report, he informed Per-
sonnel Manager Coffin as to what Welch had told him and
asked him what could be done. Coffin mentioned the no-
solicitation rule which was contained in the employee
handbook and stated that it looked as though they would
have to terminate Scott. It was decided, however, that
before anything was done about Scott's solicitation of
Welch, Respondent should first seek legal advice because of
the fear that an unfair labor practice might be filed based
on the discharge of Scott. Coffin also suggested that an
affidavit be obtained from Welch encompassing the facts of
the solicitation.
The following day Eason asked Welch if she would mind
signing a statement describing her solicitation by Scott. She
agreed to do so and was thereupon taken to Coffin's office
where she once again described the solicitation, this time to
Coffin. Coffin did not inquire whether the solicitation
incident had caused any interruption in production. He did,
however, prepare a statement for her signature and advised
her that she might later be required to testify in court. The
statement which Welch signed and which was counter-
signed by Coffin reads as follows:
4-4-75
On 4-3-75 PATRICIA SCOTT solicited my support for an
organization while in established work areas during
work time.
Mildred Welch -
Del Coffin
Eason was present in Coffin's office when Welch de-
scribed to Coffin the solicitation incident and signed the
above statement. He testified that the statement which
Welch signed said the same thing that Welch had earlier
told Eason about the solicitation, although the wording was
not exactly the same. Inasmuch as the signed statement,
brief as it is, is closer in content to Welch's description of
her original oral report to Eason than it is to Eason's
description of the same oral report, it affords a further basis
for crediting Welch over Eason with regard to the content
of the oral report.
I
3. The Scott-Crosby solicitation
On June 6, 1975, Scott returned the signed authorization
cards to the union officials and at that time was asked if she
had attempted to obtain the signature of a particular fellow
employee named Benjamin Crosby who had signed a union
card during a previous campaign. She replied that she had
SUNNYLAND PACKING COMPANY
not discussed the union with Crosby because she was afraid
to trust him, that he would likely report her to management.
She was then advised that Crosby was a good prospect and
told to solicit his signature , but was again cautioned not to
do so on company property.
According to Scott , she accepted the business agents'
suggestion and the following day approached Crosby as
they were both walking toward the plant to report for work
on the night shift . As they entered the gate before punching
in, she asked him if he was for the Union and he replied in
the affirmative . She then asked him if he wanted to sign a
card, to which he replied negatively, explaining that he had
signed a card prior to the current campaign and did not
wish to sign another . This ended the conversation and Scott
went in to work . Scott testified that this was _ the only
conversation which she had with Crosby concerning union
matters . Later that evening Scott overheard her supervisor,
Curtis Eason, say to Crosby, "We will get rid of her." Scott
did not, however, hear what had prompted the remark. The
circumstances surrounding Scott 's solicitation of Crosby, in
the absence of any testimony to the contrary, is fully
credited. Crosby was not called as a witness by any of the
parties.
Eason, however, testified that it was about the same time
that Welch reported Scott that Crosby called Eason over to
his work station and, after requesting that Eason not get
him involved, advised him that Pat Scott was always talking
to him and trying to persuade him to sign a union card.
According to Eason , Crosby said, "Everytime she's around
me, that's all she talks about." Crosby complained that she
was bothering him while he was working and that he really
did not want any part of the Union. He requested that
Eason put a stop to it and Eason replied that Crosby should
not worry about it, Eason would take care of it in due time.
Again, Eason did not ask if the solicitation had caused any
interruption in production nor inquire as to any other
particulars . Although as noted above , Crosby allegedly
requested that his identity be kept secret, he nevertheless
purportedly submitted a statement as had Welch . Crosby's
statement was not offered into evidence and Crosby was
not called to testify . Moreover, on cross-examination Eason
testified that when Scott asked Crosby to sign a card, he
was not at all certain where it was , whether it was in the
plant or elsewhere. In light of the failure to call Crosby to
substantiate Eason 's testimony and the obvious contradic-
tions in Eason's testmony, I am rejecting as incredible
Eason's entire description of Crosby's report and find that
the only attempt on the part of Scott to solicit Crosby's
support for the Union was on the one occasion outside the
plant as described in Scott's own testimony.
4. Scott's termination interview
The decision to terminate Scott was made jointly by
Eason and Coffm . Coffin had contacted Respondent's
attorney and had obtained clearance from him to terminate
Scott. He advised Eason ofhe clearance on the morning of
April 8 about 10 or 11 a.m. at which time it was decided
that Eason would conduct the exit interview . Eason waited
until 1 p .m., when the shift was over, before he talked with
Scott, hoping to avoid some embarrassment . At that time,
as Scott was leaving the plant in order to go to lunch before
593
returning to work the second shift as she had agreed to do,
she met Eason who stopped her and asked to speak with
her. Eason, who had a copy of the employee handbook in
his hand at the time asked Scott if she had ever received a
copy of the handbook when she was hired, and if she had
ever read it. She replied that she had . Eason then opened
the handbook and pointed to the section entitled , "Intolera-
ble Rule Infractions." He asked her if she had ever read
that section and if she realized that soliciting on company
time in established working areas was against company
policy. Scott replied that she was aware , of the rule. Eason
then stated that she would have to be terminated for
breaking this rule . Scott replied that she had never solicited
on company time or property, to which he rejoined that he
was in possession of an affidavit which contained evidence
that she had broken the rule and that based on this evidence
she would have to be terminated . Scott again denied
breaking the no-solicitation rule and inquired as to the
particulars of the alleged solicitation. Eason refused to
answer her questions but simply stated that he had no
alternative but to dismiss her. She then left.
Although there is some small bit of testimony concerning
Scott's working habits which were not totally without fault,
she was considered a pretty good worker and her termina-
tion according to Respondent was based solely on her
breach of the no -solicitation rule.
C. The Termination of Wilson
1. Wilson's union activity
David Wilson, prior to his discharge, had been employed
at Respondent 's plant for approximately 1-1/2 years, most
recently in the wrapping department . He was not deeply
involved in the union campaign but one Sunday after
church there "happened to be" a gathering of Sunnyland
employees at Wilson's home and he was asked to sign a
union card at the time . This occurred - between 1 and 2
weeks before his discharge . He subsequently signed the
union card at a friend 's home. Thereafter, he talked to
several employees of Sunnyland about the Union and they
asked him whether he had any union cards. After he told
them that he did not have any cards , they requested that he
get some, which he did that evening. The following day, at
lunchbreak, he distributed them. Wilson and certain other
employees were outside of the plant at this time . He gave six
or seven cards to an employee sitting next to him named
Joey who kept one card and passed the others down to the
other employees who were all sitting in a row.
2. The Wilson-Slaughter Solicitation
According to Wilson 's testimony , that same afternoon, at
the 2:15 p .m. break, he received back from Joey all of the
cards which he had previously passed out except for one
which had been given to an employee named Buddy
Slaughter , a weigher who sometimes filled in as supervisor.
When Joey explained to Wilson that Slaughter had not yet
returned his card, Wilson later approached Slaughter at the
latter's work station and asked him for the card back.
Slaughter, however, told Wilson that he'did not yet have
time to sign it. Wilson did not press the situation but the
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
following day again asked Slaughter for the card. For the
second time Slaughter explained that he still had not signed
the card. After the dinnerbreak Wilson again asked
Slaughter for the card and upon being told that it had not
yet been signed, demanded'the card back unsigned so that
he could give it to someone else to sign. This last
conversation took from-1 to 2 minutes.-Wilson testified that
when he received the card back from Slaughter, Slaughter
was at his work station where he weighs meat but was not
busy at the time because he did not have any meat to weigh
at the moment and wasjust walking back and forth.
Slaughter, called as witness for the Respondent, struck
me as a reluctant and evasive witness. Where his testimony
is at odds with that ofWilson, I credit the latter. Thus,
Slaughter testified that-Wilson approached him for the first
time while he was weighing meat at his work station and
asked him if he would sign a union card. Thereupon,
Slaughter asked Wilson if he had one. Wilson replied that
he did and Slaughter asked to see it. Wilson gave him a card
and Slaughter put it in his pocket. After Wilson gave
Slaughter the union card, Wilson returned to his work
station located about 15 feet away. Slaughter further
testified that when Wilson first approached him he stopped
weighing meat for a minute or two but was not very busy at
the time anyway. The following day Wilson came by on his
way to the restroom and asked Slaughter where the union
card was . Slaughter replied that he had it in his pocket and
was not going to sign it . Wilson stated that if Slaughter did
not intend to sign the card, he should give it back,
whereupon Slaughter returned the card to Wilson without
comment . The request for and return of the card, according
to Slaughter, likewise took a minute or two. To reiterate, I
reject Slaughter's description of the solicitation in favor of
Wilson's.
3. Wilson's termination interview
According to Wilson, the day after he received the union
card back from Slaughter, he was walking to the restroom
when he was stopped by Slaughter who said, "I have
something to say to you." He then showed Wilson a copy of
the employee handbook. Slaughter opened the book and
continued, "you see where it says no-solicitation?" Wilson
denied any knowledge of the rule, whereupon Slaughter
explained the rule to him. Nothing more was said during
this conversation but later that day, April 8, Slaughter
stopped Supervisor Ramsey Clark as he was passing
through the department and advised him that Wilson had
asked him to sign a card. Clark asked Slaughter where the
solicitation took place and it it had taken place during
worktime. Slaughter replied that it had occurred at his work
station on company time. Clark then asked Slaughter if he
would be willing to sign a statement to that effect and
Slaughter agreed to do so. Clark then contacted Coffin and
Slaughter subsequently furnished an affidavit which Coffin
drew up for his signature.
After Slaughter provided the sworn statement to manage-
ment, Clark called Wilson to his office. When Wilson
arrived, Clark told him that since Wilson had been
soliciting on company time during working hours by
passing out union cards, he was going to have to terminate
him since solicitation on company property during working
hours was against company rules as contained in the
employee handbook. Clark added that he had a written
statement from an employee to substantiate his charge that
Wilson had been soliciting . Although Wilson denied that he
had been soliciting, Clark refused to believe him and
Wilson was discharged.
. Wilson testified that during the exit interview Clark made
the statement that he definitely did not want a union in the
plant and that he was going to let Wilson go. Clark denied
making this statement . Although I have credited Wilson in
all other respects, I cannot believe that Clark made this
remark. The decision to terminate Wilson was made while
Respondent's management was in close contact with its
attorney, and the means and methods of terminating both
Scott and Wilson were so carefully orchestrated in accor-
dance with the no-solicitation rule that the prudence and
caution otherwise exercised by management during the
campaign would tend to preclude the likely utterance of so
bold a declaration of union animus. I do not, therefore, rely
on this alleged statement ascribed to Clark by Wilson in
reaching my conclusion.
Respondent's position with regard to the termination of
Wilson, like Scott, is that it was lawful in that it was based
solely on his breach of the no-solicitation rule.
D. The No-Solicitation Rule
The no-solicitation rule proper which appears in the back
of the employee handbook reads as follows:
B. No-Solicitation Rule
Employees are not permitted to solicit funds or support
for any individual, institution or organization while in
established work areas during work time . Any such
activity will be considered an intolerable violation of
rules.
There has been no question raised that this provision on
its face is lawful, for the Act does not proscribe the right of
an employer to forbid, by rule or regulation, solicitation on
its property and to discharge an employee for violation
thereof, provided that the rule or regulation is promulgated
in good faith and bears some reasonable relation to efficient
operation of the plant, and is not merely a device to
obstruct or impede self-organization . Republic Aviation
Corporation v. N.LKB. 324 U.S. 793 (1945); The May
Department Stores Company, d/b/a Famous-Barr Company,
174 NLRB 770 (1969).
On page 2 of the employee handbook, however, is the
following passage:
It is important to point out that we do not have a labor
union at Sunnyland. The wages and benefits we enjoy
have always been made through the cooperation of
management and our employees. We feel, and hope you
feel, that outsiders are not necessary to tell employees
how to work. No Sunnylander will ever be required to
join a labor union to keep his job. If you should be
caused any trouble, or be put under any pressure to
support a union, you should report the matter to your
supervisor.
SUNNYLAND PACKING COMPANY 595
It is General Counsel 's contention that the inclusion of
this paragraph came to the attention of Welch, Crosby, and
Slaughter and caused them to come to the conclusion that it
required them to advise Respondent if anyone requested
them to sign a union card or participate in union activities.
General Counsel points out that any employee reading the
no-solicitation rule in conjunction with the entry quoted
immediately above would conclude that union solicitation
on company time and " property would require different
treatment than solicitation for other purposes . Be that as it
may, the record of the case does not reveal that either
Scott's or Wilson 's union solicitation was brought to the
attention of management by Welch , Crosby, or Slaughter
because they relied on the paragraph - cited. Rather the
testimony reflects that these employees were unaware of the
existence of this particular paragraph in the employee
handbook . Moreover, General Counsel and Respondent
stipulated at the hearing that the entry described in
paragraph 8 of the complaint no longer appears in the new
employee handbook , although the date when the entry was
removed is not on record.
On the other hand, language similar to that discussed
herein was the subject of the complaint in Bank of St. Louis,
191 NLRB 669 (1971 ), affd. 456 F .2d 1234. In that case the
Administrative Law Judge found the language to be in
violation of Section 8(a)(1) in that it was a "not-too-subtle
attempt by Respondent to have its employees inform
management as to the identity of the Union proponents and
tended to restrain and coerce employees in their right to
engage in protected activities ." The decision of the Admin-
istrative Law Judge in Bank of St. Louis, at 673 , adopted by
the. Board, noted that "the request that employees report on
such union activities was not limited to reports on matters
which could properly be within Respondent's legitimate
concern, such as a possible disruption of work . The request
was broad enough to cover mere attempts by union
proponents to persuade employees to sign cards at the bank
during the employees' nonworking time and even off bank
premises ." Similarly, in the instant case the language
appears to be an unlawfully broad no-solicitation rule and
here , as in Bank of St. Louis, its promulgation is clearly
violative of Section 8(a)(1) regardless of whether or not its
precept was followed by employees of Respondent . Though
I have found that the no -solicitation rule proper which
appears in the back of the handbook is presumptively
lawful in that it refers to activity taking place in established
work areas during worktime, there is no guarantee that an
employee reading the handbook would himself assume that
the passage appearing on page 2 inviting him to report
union activity is similarly limited to reports of solicitation
occurring on worktime-in working areas . There is nothing
in the handbook which advises the employee reading it that
the two rules should be read in conjunction , one with the
other. Moreover, the fact that newly distributed handbooks
do not contain the offending passage does not cure the
problem inasmuch as the record does not indicate that the
old handbooks containing the passage in question have
been recalled or that disclaimer of the passage 's content has
issued. The inclusion of the offending passage in the
employee handbook and the distribution of said handbook
is in violation of Section 8(a)(1) of the Act.
E. Solicitation in Practice at the Plant
Testimony at the hearing was taken from a large number
of employees of Respondent concerning solicitation at the
plant for various causes . Numerous and frequent collec-
tions among employees were the, rule rather than the
exception and sales of goods by employees to each other
were habitual. Thus, in excess of a dozen witnesses were
called by General Counsel and Respondent to testify
concerning the practice of collecting money among em-
ployees for the purpose of purchasing flowers for the
relatives of employees who had died or were hospitalized.
Employee Scott credibly testified that another employee
collected for the flower fund on a regular basis and kept
records of which- employees contributed. Her collections,
according to Scott, were frequently made during working
time in the working area in the presence of management
personnel who did nothing to prevent these collections and
in effect gave tacit approval to the solicitation by engaging
the soliciting employee in conversation as she went about
making her collections. Scott's testimony was supported by
other employees who testified that while working in various
departments they were solicited to contribute for flowers by
a number of other employees including a foreman who,
after purchasing flowers with the money collected, would
place the sales receipts on the bulletin board as proof of
purchase. The incidence of solicitation for flowers was
neither isolated nor infrequent but recurrent and regular.
The testimony of certain witnesses that collections were
only taken up at the refreshment area during breaktime
does not negate the credible testimony of others who
witnessed the solicitation for the flower fund taking place
during working hours in work areas. Moreover, in many
cases where the actual exchange of money took place
during breaks, the requests for money were made earlier by
employees soliciting from fellow employees while-both were
working side by side during production.
There was also testimony that several employees sold
Avon products. Although most of the Avon transactions
took place away from working areas, sometimes the
transactions took place, at least in part, in production areas,
especially on the kill floor where catalogues and merchan-
dise were sometimes distributed, orders taken, and collec-
tions made. On one isolated occasion an employee found
reading one of the Avon catalogues by a member of
management while in a work area was referred to the rule in
the employee handbook and told that if she intended to sell
anything or even look through the catalogue she would
have to do it in the ladies' room. This employee was not
disciplined. According to the testimony of several witness-
es, there is almost always at least one supervisor present on
the kill floor so that it would appear highly unlikely that
these transactions could have completely escaped notice of
management.
In addition to Avon products, various employees have
peddled candy in order to raise money for their churches.
At times the candy was openly pruchased and received on
the line while employees were working. Peanuts and pies
were also I sold for the same purpose and solicitation for
churches was an almost daily occurrence, frequently while
employees were at their work station on company time.
Supervisors were also requested to make donations. In the
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
face of the testimony of so many witnesses that they were
aware of these frequent and often times open transactions, I
cannot credit those of Respondent's witnesses who claimed
complete ignorance of these matters. Moreover, there was
testimony that one of the supervisors approached an
employee while she was working and asked her if she would
care to purchase some cleaning fluid. She agreed to do so.
There was -additional testimony concerning employees
talking about the sale of clothes and jewelry in work areas
during working time, and it is patently clear that employees
freely discussed all of the above matters, the solicitation for
the flower fund, the sale of Avon products, clothes, shoes,
candies, pies, lottery tickets, and anything else without fear
of reprimand or discipline in connection therewith. Em-
ployees were free to talk as long as there was no serious
interruption of production. Brief chats among employees
which might result in a brief interruption of work of no
more than a minute or two were permitted and not
infrequently according to the testimony of several witness-
es. Employees on their way to or from the restroom or
walking through another department would stop to talk for
a brief period without fear of supervision reprimanding
them for it. Supervisors themselves upon occasion would
engage employees in conversation.
To summarize, the plant appears to be run in a rather
easy going manner with employees being free to talk about
anything they wish including the sale of merchandise and
collection of moneys for various funds or charities, all with
the tacit consent of management. Moreover, as more fully
discussed below, during the period immediately preceding
the election, management met with 40 to 50 of the most
influential employees and specifically encouraged them to
make their feeling known concerning their .preferences in
the forthcoming election. Nothing was said to them as to
where or when these employees were to discuss their
preferences, because, as Vice President Howard testified,
"we don't run that tight a ship." Clearly, they were being
encouraged to campaign on company time and property as
well as elsewhere but only if they were not soliciting for
union representation . The two individuals, Welch and
Slaughter, who reported dischargees Scott and Wilson to
management had frequently engaged in small talk them-
selves, had witnessed other employees so engaged, and had
never reported anyone before for soliciting or talking at
length. They testified that the only reason they reported the
conversations of Scott and Wilson was because they
concerned the Union.
F. Conclusions Concerning the No-Solicitation Rule
and Discharges
From the above facts it appears patently clear that
Respondent's attitude toward solicitation on company time
and property was permissive and even benign no matter
what charity, cause, or subject matter was involved, except
if the solicitation happened to involve union representation.
Thus employees were generally free without fear of repri-
mand or discipline to discuss the sale of Avon products,
candies, pies, shoes, clothing, lottery tickets,, or anything
else while working and were permitted to take up collec-
tions for churches or flowers on company time and
property. They were even permitted to pause in their work
to chat with fellow employees so long as the discussion was
no more than a minute or two and caused no serious
interruption in production. On the other hand when it came
to the aftention of management,that Scott and Wilson had
requested employees to sign union cards, they were both
terminated for breaking the no-solicitation rule which was
otherwise ignored in the face of daily solicitations by other
employees for other purposes. When management was
advised that Scott and Wilson had solicited on behalf of the
Union, no question was raised as to whether the solicitation
resulted in any loss of production or whether there was any
other adverse effect from the brief conversations which
Scott and Wilson had with fellow employees. Clearly
Respondent chose to treat differently Scott's and Wilson's
solicitation for the Union as compared with the solicitation
of many other employees for other purposes solely because
of the fact that Scott and Wilson were engaged in union
activity. Where employees, with the knowledge and even
participation of supervisory personnel , are permitted by an
employer to solicit during worktime for various charities,
functions, or causes, to collect money for churches and
fellow employees, and to sell numerous items for personal
gain while at the same time the employer enforces a no-
solicitation rule against employees soliciting on behalf of a
union, such disparate enforcement of the no-solicitation
rule is both unfair and violative of Section 8(a)(1) of the
Act. The Wm. H. Block Company, 150 NLRB 341 (1964);
C & E Stores, Inc., C & E Supervalue Division 221 NLRB 1321
(1976). Further, the termination of Scott and Wilson in
pursuance of the unlawful enforcement of the no-solicita-
tion rule is in violation of Section 8(a)(3) and (1) of the Act.
Gooch Packing Company 162 NLRB 1 (1966). I therefore
fmd that Respondent is in violation of the Act as to both
the 8(a)(1) and (3) violations concerning the unlawful
enforcement of the no-solicitation rule and the discharges
of Scott and Wilson.
G. Postpetition Incidents
General Counsel alleges various postpetition incidents as
both violative of Section 8(a)(1) and as objectionable
conduct of sufficient seriousness to require setting aside the
election . Respondent denies these allegation in toto.
1. Interrogation by William Phinazee on May 14
and Eugene Rogers on May 26
The record contains no evidence to support the allega-
tions that Killing Floor Department Supervisor William
Phinazee and Beef Department Foreman Eugene Rogers
interrogated employees of Respondent. Neither General
Counsel nor Respondent discussed these allegations in their
briefs. I therefore fmd that Respondent did not violate the
Act with respect to the violations alleged.
2. The alleged 8(a)(1) violations by Bryant
Harvard
Following the filing of the original petition on April 14,
Respondent undertook a campaign in connection with the
forthcoming representation election to educate its employ-
ees as to Respondent's position vis-a-vis union representa-
tion. This campaign took the form of contacting certain
SUNNYLAND PACKING COMPANY 597
employees whom management considered the most influ-
ential 'among their fellow employees and meeting with them
on an individual basis for the purpose of explaining
Respondent's views with the hope that these employees
would spread Respondents views among the rest of the
employees. To this end certain members of management,
including Vice President Harvard, met singly with these
influential employees in a conference room adjacent to the
cafeteria and spent between 15 minutes to an hour with
them in an attempt to make certain, as Harvard testified,
that they understood both sides of the question. Harvard on
two occassions-also met with groups of employees. During
the individual meetings Harvard asked the employees
general questions, e.g., how things were going, if they had
any complaints, and how their families were. He pointed
out the various benefits which the employees then enjoyed,
and then told these employees that they should go out
among the rest of the employees and made their feelings,
including Respondent's views, known.
The nature of Respondent's, campaign appears to be
basically noncoercive. There appears no evidence to
support the theory that meetings held with employees in the
relatively neutral area adjacent to the cafeteria were
calculated to in any way intimidate the employees called
there for discussion. The campaign as a whole cannot
therefore be said to be in violation of Section 8(a)(1) nor
grounds for setting aside the election The NVF Company,
Hartwell Division, 210 NLRB 663 (1974); Flint Provision Co.
219 NLRB 523 (1975); nor do I fmd Respondent's attempts
at proselytizing by seeking to have employees obtain
further support from fellow employees for its position
objectionable or violative of the Act, in the absence of a
showing that such attempts were accompanied by threats or
coercion. Crowley, Milner and Company 216 NLRB 443
(1975). General Counsel, however , alleges further that in
certain instances Respondent, through its various manage-
ment representatives did more than simply present its case
to employees while conducting these interviews. Specifical-
ly it alleges that Vice President Harvard on May 15
interrogated one employee. In substantiation of this allega-
tion employee Leroy Nash credibly testified that during his
conversation with Harvard, which took about-45 minutes
spread over a 3-hour period, all on company time, Harvard
asked him if he knew what the Union was, what it was
doing for the employees, and what it could or could not do
for Nash and other employees. Harvard also asked Nash
what he thought about the Union. In conjunction with
these questions Harvard explained to Nash Respondent's
position with regard to union representation. From the total
context of the conversation it would appear that the
questions posed were rhetorical in nature, prefatory'to the
explication that followed, and not inherently intimidating. I
find therefore that these questions were not supportive of
the allegation of violative interrogation. After this initial
contact with Nash, Harvard would occasionally ask Nash if
he had talked to the other employees and, if so, whether
they as a whole were for or against the Union. To these
questions Nash would reply noncommittally that "every-
thing was o.k.," although in fact, Nash never had bothered
to talk to anyone as Harvard had requested. Once again, I
find that the questions posed -by Harvard were simply an
attempt on his part to fmd out if Nash felt that he was
successfully getting Respondent's message across to other
employees. These questions were again general and not
specific. There was no demand for concrete information
about particular employees or their union activities. In the
context of the discussion, I fmd the questions not violative
of the Act nor objectionable inasmuch as they were not
accompanied by threat, coercion, or promise of benefit;
Flint Provision Co., supra.
In addition to the allegation that Harvard interrogated
Nash, the complaint alleges that he also created the
impression of surveillance during one of these conversa-
tions by saying that he had been informed by Nash's former
employer, currently employed as a foreman for Respon-
dent, that Nash was in favor of the Union. It is unclear
from the record whether the former employer/current
supervisor purportedly knew of Nash's union sympathies
from his previous employment or from his current employ-
ment. Harvard denies ever having made any reference to
Nash's union sympathies when talking to Nash and
testified only that he told Nash that he had been advised
that Nash was a good man to talk to. I credit Harvard with
respect to the impression-of-surveillance issue not only
because Nash's testimony seemed confused but because I
fmd it inherently incredible that Harvard would first advise
Nash that he was aware that Nash was in favor of the
Union, then solicit his support to proselytize on behalf of
the Employer. I fmd that General Counsel has failed to
carry the burden of providing the allegation.
The complaint further alleges that on or about May 29
Harvard promised Respondent's employees greater eco-
nomic benefits if the Union were rejected as the exclusive
collective-bargaining representative of its employees. Once
again to support the allegation, General Counsel called
Leroy Nash to testify. Nash testified that on the day before
the election Harvard told him that he knew that the
Company's insurance plan was not up to par but, as soon as
the election was over, he would see to it that the insurance
was improved. Nash testified to having several conversa-
tions with Harvard about insurance during the critical
period immediately preceding the election. Nash also
testified that on another occasion Harvard told him that he
knew a lot of things weren't being done right and that he
would make some changes "afterwards," meaning after the
election. Harvard on the other hand, testified that he had
spoken to 45 or 50 employees during the critical period and
that the subject of insurance .came up in just about every,
conversation. He credibly testified that usually the employ-
ees brought up the subject and that he tried to stay away
from it because the insurance program was, in fact, "a little
under par." Harvard denied making any promises to
anyone concerning insurance and testified that when
questioned about it, he merely stated that the insurance
program was under review.
It is clear from the testimony of both Nash and Harvard
that Nash had previously had problems obtaining insur-
ance payments when needed and had been disappointed
with the program. It is equally clear that during the several
conversations between Nash and Harvard, the subject of
insurance was discussed on the basis of Nash's personal
experience rather than on the basis of the insurance
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
program as a whole. Thus, it would appear, as Harvard
testified, that when Nash complained of the inadequacies of
the program, _ Harvard told him in the future to bring any
problems he might have to the attention of the Company,
and they would be taken care of. He further told Nash to
tell other employees the same thing. It would appear then
that rather than promising additional-insurance benefits to
its employees in return for rejecting the Union, Harvard
was simply telling Nash that the insurance benefits were
available, and if there was dissatisfaction among employees
in the future as there had been in the past in Nash's case,
these problems could only be ironed out if brought to 'the
attention of management. I credit Harvard with regard to
the conversations between Nash and himself concerning
insurance, not only because his testimony, in light of Nash's
past personal experience with insurance, rings true but
because I cannot conceive of any reasonable basis for
believing that in an election involving almost 600 employ-
ees the vice president should choose 45 to 50 employees to
interview concerning the forthcoming election , and single
out just one individual for the purpose of promising
improved benefits. I believe that Nash simply misconstrued
what Harvard was saying in their conversation concerning
insurance, that Harvard's explanation is the more credible
one, and that no promise of benefit was made.
3. The alleged interrogation by Foreman Joseph
Miller
General Counsel alleges that Night Shipping Forman
Joseph Miller was observed distributing "Vote No" stickers
by employee Harold Skeen and that Miller asked Skeen
where his "Vote No" sticker was. When Skeen stated that
he did not have a sticker, Miller purportedly asked him if he
wouldn't be uncomfortable when he attended a meeting
scheduled for that evening where the president of the
Company was speaking. Later that evening Miller again
asked Skeen where his "Vote No" sticker was. The
complaint alleges these incidents as interrogation violative
of Section 8(a)(1) of the Act. In support of the allegation
employee Skeen testified generally to the above. He also
testified, however, that the statements initially attributed to
Miller were made by an employee named Jackson. Miller
denied that he had distributed the "Vote No" stickers and
also testified that he had not questioned Skeen about his
not wearing one. On the basis of Skeen's apparent confu-
sion with regard to these matters and the evident inconsis-
tencies contained elsewhere in his testimony, as well as his
tendency to answer questions in a careless, off-hand
manner, I discredit Skeen, credit Miller, and find that the
allegation of interrogation attributed to Miller is without
foundation. Moreover, in the context of the circumstances
herein described, the casual and isolated nature of these
conversations, I do not believe these incidents of sufficient
seriousness to warrant a finding of objectionable conduct
or a violation of the Act. Crowley, Milner, and Company,
supra. Clearly, their unpact on the election which involved a
unit of close to 600 employees was de minimis.
IV. CONCLUSIONS
I have found that Respondent has violated Section
8(axl) of the Act by discriminatorily enforcing its other-
wise valid no-solicitation rule and Section 8(a)(1) and (3) by
terminating employees Scott and Wilson in pursuance
thereof. These incidents occurred prior to the filing of the
petition in Case 10-RC-10311. I have also found that
Respondent has violated Section 8(a)(1) of the Act by
maintaining in its employee handbook a passage providing
that employees should report solicitations for union mem-
bership to their supervisors. On the other hand, I have
found that General Counsel has failed to prove violations
of the Act with respect to the allegations contained in the
complaint which deal with unlawful interrogation, the
creation of the impression of surveillance of union activity,
the solicitation of employees to pursuade fellow employees
to oppose the Union, and unlawful promises of benefit in
return for employees' rejecting the Union as their exclusive
bargaining representative. I therefore recommend that
these allegations be dismissed.
V. THE OBJECTIONS
The Union's objections to the election raised issues
identical with those contained in paragraph 7, 8, 9, 10, 11,
and 12 of the complaint. Inasmuch as I have found that the
allegations contained in paragraphs 7,' 10, 11, and 12 are
without merit, I would likewise recommend dismissal of the
objections based thereon. The objections based upon
paragraphs 8 and 9 dealing with distribution of the
handbook containing the objectionable material which I
have found to be violative of Section 8(a)(1) of the Act
stands on a different ground and must be considered in
light of the surrounding circumstances. Thus, at the time
that the union campaign, was initiated there was in
circulation the employee handbook which contained both
the no-solicitation rule found to be presumptively valid as
well as the paragraph providing that employees should
report solicitations for union membership to their supervi-
sors, found herein to be violative. During all times material
herein the handbook was in circulation according to the
admission in Respondent's answer. Similarly during the
entire period, the- facts of the case reveal that widespread
solicitation for various causes occurred throughout the
plant and Respondent took no action to prohibit this
solicitation until it terminated Scott and Wilson for union
solicitation. This disparate treatment of union solicitation
while permitting other solicitation in the absence of, any
showing that production suffered or that discipline was
adversely affected clearly rebuts the presumption of validi-
ty of the no-solicitation rule and invalidates the rule. The
same disparate treatment-of the union advocates under
these circumstances supports the finding that Scott and
Wilson were terminated by Respondent through its dis-
criminatory implementation of the no-solicitation rule for
motivations clearly violative of the Act. Although the
termination of Scott and Wilson was prepetition and
cannot under Goodyear Tire and Rubber Company and Ideal
Electric Company be utilized as the basis for fording the
terminations objectionable, the continued distribution and
circulation of the employee rule, book containing the
-SUNNYLAND PACKING COMPANY
tainted rule and the invitation to report union solicitations
following the filing of the petition requires the setting aside
of the election and the conducting of a new election. The
record is replete with the testimony of numerous witnesses
that they were aware that solicitation for the Union was
against company rules and the fact that no further
terminations occurred during the critical period is a tribute
to the effectiveness of Respondent's circulation-and dis-
criminatory implementation of the invalidated rule and
invitation to report union solicitations. Thus, during the
critical period between the filing of the petition and the
election, the circulation of Respondent's written exhorta-
tion to report union solicitors to supervisors when consid-
ered in the context of the continued existence of the
invalidated no-solicitation rule,. and the recent history of
discriminatory terminations , in my opinion, _so undermined
the Union's campaign and interfered with the rights of
employees to engage in protected activities during this
critical period as to require the setting aside of the election.
I so recommend.
VI. THE EFFECT OF .THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with their operations
described in section I, above, have a close, intimate, and
substantial relationship to trade , traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
VII. THE REMEDY
Having -found that Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
As 1. have found that Respondent, on or about April 8,
1975, terminated Patricia Ann Scott and David Wilson, and
thereafter failed and refused to reinstate them, in order to
discourage membership in and activities on behalf of the
Union, in violation of Section 8(a)(3) and (1) of the Act, I
shall recommend that Respondent be ordered to offer these
employees reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay
suffered as a result of the discrimination against them with
backpay computed on a quarterly basis, plus interest at 6
percent per annum, as prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
As I have found that Respondent has engaged in conduct
which interfered with the election conducted in Case 10-
RC-1031 1, I shall recommend that the election be set aside.
4 Although this violation was not specifically alleged in the complaint, the
no-solicitation rule, its implementation, and its enforcement were fully
litigated by the parties at the hearing and therefore may properly be found.
McGraw Edison Company v. N.L.RB, 416 F.2d 67 (C.A. 8, 1969).
5 In the event no exceptions are filed as provided by Sec. 102.48 of the
CONCLUSIONS OF LAW
599
1. Respondent Sunnyland Packing Company is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Amalgamated Meat Cutters and Butcher Workmen
of North America, Local Union 522, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By discharging Patricia Ann Scott and David Wilson
and thereafter failing and refusing to reinstate them
because of their activities on behalf of the Union, Respon-
dent has engaged in unfair labor practices - within the
meaning'of Section 8(a)(3) and (1) of the Act.
4. By directing its employees to inform management
about their fellow employees who solicit them to support
union organizational activities, Respondent has interfered
with, restrained, and coerced its employees in the exercise
of their rights guaranteed under Section 7 of the Act in
violation of Section 8(a)(1) of the Act.
5. By disparately enforcing its no-solicitation rule in
respect to solicitation or advocacy- on behalf of the Union
while permitting like activity with respect to all; other
subjects or projects, Respondent interfered with, restrained,
and coerced employees in the exercise of their guaranteed
rights in violation of Section 7 of the Act .4
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
7. Respondent has not violated Section 8(a)(1) of the
Act by the conduct alleged. in paragraphs 7, 10, 11, and 12
of the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
The Respondent Sunnyland Packing Company, Thom-
asville, Georgia, its - officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employees because of their activities on behalf of Amalga-
mated Meat Cutters and Butcher Workmen of North
America, Local 522, AFL-CIO, or any other labor organi-
zation.
(b) Directing its employees to inform management about
their fellow employees who solicit them to support union
organizational activities, provided, however, that Respon-
dent shall not be precluded by this Order from promulgat-
ing and enforcing rules which by their terms are reasonably
designed to prevent an interruption in the flow of work.
(c) Disparately enforcing its no-solicitation rule with
respect to solicitation or advocacy on behalf of Amalga-
mated Meat Cutters and Butcher Workmen of North
America, Local Union 522, AFL-CIO, or any other labor
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization while permitting like activity with respect to
other subjects or projects.
(d) In any other manner interfering with, restraining, or
cocercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Patricia Ann Scott and David Wilson immedi-
ate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without -prejudice to their seniority or other rights and
privileges, and make them whole for any loss of earnings in
the manner set forth in the section of this Decision entitled
"I'he Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payments records, time-
cards, personnel records and reports, and all other records
necessary to analyze the amounts of backpay due under the
terms of this recommended Order.
(c) Post at its plant at Thomasville, Georgia, copies of the
attached notice marked "Appendix.' 16 Copies of said
notices on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof and maintained by it for 60 consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 10, in
writing, within 201 days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act and has ordered us to post this notice, and we intend to
carry out the Order of the Board.
WE WILL NOT under pretext of enforcing a rule
regarding solicitation or any other pretext, discourage
membership in or activity on behalf of Amalgamated
Meat Cutters and Butcher Workmen of North America,
Local Union 522, AFL-CIO, by discharging or other-
wise discriminating against any employee for legiti-
6 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
mately engaging in such activity.
WE WILL NOT direct our employees to inform
management about their fellow employees who solicit
them to support union organizational activities.
WE WILL NOT disparately enforce our no-solicitation
rule with respect to solicitation or advocacy on behalf of
Amalgamated Meat-Cutters and Butcher Workmen of
North America, Local Union 522, AFL-CIO, or any
other labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights under Section 7 of the Act.
WE w ILL offer Patricia Ann Scott and David Wilson
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or other rights and privileges, and WE WILL make them
whole for any loss of earnings they may have suffered as
a result of the discrimination against them.
SUNNYLAND PACKING
COMPANY