T & T Packing Co.

National Labor Relations Board - Board Decisions

Mar 28, 1966

157 N.L.R.B. 1158 (N.L.R.B. 1966)

1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board's Regional Office, Room
2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No.
381-2200.
T & T Packing Company and International Union of District 50,
United Mine Workers of America. Cases Nos. 10-CA-6054 and
10-RC-6209. March 28,1966
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On December 7, 1965, Trial Examiner Eugene E. Dixon issued his
Decision in the above-entitled proceedings, finding that the Respond-
ent had engaged in certain unfair labor practices alleged in the com-
plaint and recommending that it cease and desist therefrom and take
certain affirmative action. In addition, the Trial Examiner found
that the Respondent had engaged in objectionable conduct prior to
the election held in Case No. 10-RC-6209, and recommended that the
said election be set aside, all as set forth in the attached Trial Exam-
iner's Decision. The Respondent filed exceptions to the Trial Exam-
iner's Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in these cases, and hereby adopts the findings, conclusions , and recom-
mendations of the Trial Examiner.'
[The Board adopted the Trial Examiner's Recommended Order,
with the following modifications :
[1. Add the following as paragraph 2(b), the present paragraph
2 (b) and those subsequent thereto being consecutively relettered :
[" (b) Notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service Act and the
1 These findings and conclusions are largely based upon credibility determinations of the
Trial Examiner , to which the Respondent has excepted , alleging that the Trial Examiner
was biased and prejudiced . We find this contention without merit . Our review of the
record in these cases leads us to the conclusion that the Trial Examiner 's credibility find-
ings are not contrary to the clear preponderance of all the relevant evidence . Accord-
ingly, we find no basis for disturbing the Trial Examiner 's credibility findings in these
cases Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F. 2d 362 (CA. 3).
Member Zagoria would rely solely on objection 2 in setting aside the election
157 NLRB No. 100.
T & T PACKING COMPANY 1159
Universal Military Training and Service Act, as amended, after dis-
charge from the Armed Forces."
[2. Add the following immediately below the signature line at the
bottom of the Appendix attached to the Trial Examiner's Decision :
[NOTE.-We will notify the above-named employee if presently
serving in the Armed Forces of the United States of his right to
full reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
[The Board set aside the election conducted on March 5, 1965, in
Case No. 10-RC-6209.]
[Text of Direction of Second Election omitted from publication.?
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136), herein called the Act, was heard before Trial Exam-
iner Eugene E. Dixon at Macon, Georgia, on June 22, 1965, pursuant to due notice.
The complaint as amended at the hearing was issued on May 6, 1965, by the General
Counsel of the National Labor Relations Board.' Based on charges filed March 29
and April 26, 1965, and duly served, the complaint alleged in substance that Respond-
ent had engaged in unfair labor practices proscribed by Section 8(a)(1) and (3) of
the Act by the discharge of Willie Dave Davis because of his union activities and
by various other specified acts of interference, restraint, and coercion against the
employees in connection with rights guaranteed them in the Act.
In its duly filed answer, Respondent denied any violation of the Act.
In addition to the unfair labor practice matter, the complaint herein was con-
solidated with a hearing on the matter of whether or not the employees had been
afforded a fair and free choice in a representation election which had been conducted
by the Board on March 5, 1965, and which the Union lost by a close margin.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
At all times material herein Respondent has been a Georgia corporation with its
principal office and place of business at Macon, Georgia, where it is engaged in the
processing and sale of meats and meat products. During the calendar year 1964
which is a representative period, Respondent purchased and received products valued
in excess of $50,000 directly from suppliers located outside the State of Georgia.
Respondent has been at all times material herein engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
International Union of District 50. United Mine Workers of America, at all times
material herein has been a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
Introduction
In late 1964 or early 1965 the Union began an organizing campaign at Respond-
ent's plant. Willie Dave Davis, an employee of 5 years' tenure, promptly joined the
'The General Counsel and his representatives at the hearing are referred to herein as
the General Counsel and the National Labor Relations Board as the Board T & T Pack-
ing Company is referred to as the Respondent and sometimes as the Company ; Interna-
tional Union of District 50, United Mine Workers of America is referred to as the Union.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and became active in the organizing campaign. By the time of a Board-
conducted election on March 5, 1965, he had secured about 35 membership applica-
tions from his fellow employees. He also acted as the Union's observer at the elec-
tion. About 2 weeks after the election (which the Union lost by a close margin)
Davis was discharged according to Respondent for having failed to notify Respondent
regarding an absence from work.
A. Discrimination
Davis had eight children at the time of the hearing, the oldest being 11. In the
middle of March 1965, his wife was due to give birth to another child. On the 16th
or 17th of that month he had been at work 2 or 3 hours when his son came to the
plant and informed him that his wife was ready to go to the hospital. He told one
of his supervisors, Felton Mullis, that he had to leave to take his wife to the hospital
and was given permission to do so. This was on a Tuesday or Wednesday. Not
having anyone to take care of the children, Davis had to remain home until his
wife was able to take over. Thus he was absent from work for about a week. On
his return, according to his further testimony, he was sent to General Manager E. L.
Newton who asked him why he had not been working. Davis explained why he
had been absent and asked Newton if the foreman had not so informed him. Newton
replied that "they hadn't told him anything" and that he had thought Davis "had
quit." Davis said he could not see why Newton felt that way. He explained that
he had complied with the rule that "all employees was suppose to tell the Company
they was going to be out and to call in or send word...." He further explained
that on another occasion he had been 'off sick longer than on this one and had come
back to work without any questions being raised about his absence .2 Newton said
that "he couldn't go along with that story ...." According to Davis' further testi-
mony, Newton at this time also said something to the effect that "a lot of employees
fooled ... went against him ... fooled him" but did not explain his comment.
According to Davis' further testimony, he had sent word that he would have to
be out not only through his sister, who also was an employee of Respondent, but
through two or three other employees, one of whom was a cousin. Davis' testimony
in this connection was not particularly convincing. Both on cross-examination and
on redirect examination when asked whether he had told those he had named to
carry his message to Respondent he hedged with such answers as "I believe so";
"Well, I could have." Also when asked if lie had told them whom to convey his
message to at the plant he answered, "I could have, yes; probably did. I don't know,
but if I told them, I'm sure I told them who to tell."
Except for his sister, none of those Davis claimed he asked to inform the Company
of the necessity for his continued absence bore him out in their testimony. Neverthe-
less, they all testified that they did in fact apprise Respondent of the reason for
Davis' absence. Thus Johnnie L: Dunn testified that he "mentioned" to Supervisor
Mullis on the day after Davis took off about Davis "being absent with his wife and
children." This came up by reason of the large number of hogs they had to kill on
this particular day and their need for Davis' help .3 Corene Dennis, Davis' sister,
also testified that on March 23 Mullis had asked her if Davis had quit .4 She assured
Mullis that Davis had not quit, that he had to stay home to take care of his children.
And in the same vein Nonza Jackson, Davis' cousin, testified that he visited Davis
during his absence and had asked Davis how his wife was doing. The following
morning at the plant his foreman, Eugene H. Bivens, asked him "where's Willie?"
He replied that Davis had "to stay home with his children 'til his wife get out of the
5hospital for having the baby."
The evidence further shows that Davis did not have a telephone in his home and
although he lived only a half block from the plant, he testified in effect that he had
2 The previous year Davis had been hospitalized and had been absent from work 2 or 3
months. He had notified the Company before going into the hospital and during his
recovery he had gone to the plant two or three times to let them know about his progress.
8 Davis worked on the kill floor
I In her affidavit she had stated that she did not know whether it was on the day after
Davis had left or not that this conversation with Mullis had taken place. As will appear
from Mullis' testimony, this conversation took place on the day after Davis took off from
work.
e This was denied by Bivens in his testimony. Resolution of this conflict is unnecessary
in view of Mullis' testimony as will be seen.
T & T PACKING COMPANY 1161
not personally gone to the plant in connection with his absence because his youngest
was "sickly" and he did not want to leave the child alone. Nevertheless, he further
testified that on the Friday after his wife had been confined he had gone to the plant
to pick up his check.
Respondent's General Manager Newton testified on direct examination that he
dropped Davis "on Tuesday morning when (he) still hadn't heard anything from
him other than the fact that he had gotten off ... late Wednesday afternoon, to take
his wife to the hospital." According to Newton it was 'a standing policy of the
Company to "be notified by the employees . . if they don't have a valid reason for
being away." He testified, however, that "if they have a valid reason, why, we
don't require that, but if we know the reason, we don't require it." From Newton's
further testimony, it appears that Respondent holds regular daily meetings of its
supervisory personnel in which the day's production is planned and in which various
other matters pertaining to the operation of the plant, including personnel, are
explored and noted.
In support of Newton's testimony that Respondent had received no word about
Davis' absence other than that which he had given his foreman at the time he took
his wife to the hospital and to show that Davis' absence was discussed in the produc-
tion meetings, Respondent introduced in evidence written reports of these daily
meetings. These reports and their dates showed the following comments regarding
Davis' absence:
March 18, 1965: "Willie Davis-said wife sick-have to take to hosp.
Wednesday 3/17/65."
March 19, 1965: "Willie Davis out says wife sick, when he left Wed. Mar 17."
March 22, 1965: "Willie Davis-no reason."
March 23, 1965: "Willie Davis-still out-have not heard from him."
Newton testified further:
Well, at approximately 4:00 or 4:30 that afternoon-that was Tuesday after-
noon (March 23) after I told him (a Mr. Thomas) to drop him (Davis) on
Monday, Mr. Tucker, Mr. Mullis and I started down to the cafe-we were
going to get a cup of coffee. Willie was walking right in front of the plant
as we walked out to get in our car. We were right even with him, he saw us-
he looked at us, rather. He headed in that direction. We saw him.
Our policy with those people is that if they don't show up, they know its the
rule that they should report in ... the men are to be sent to me so that I can
talk to them and if necessary reprimand, if you call it so, find out why he was
out, if he had a valid reason, I'd excuse it and settle it. If he had no reason,
if it's over a period of time, I have to maintain a force in the plant, I have to
plan my work every morning to do that, when a man doesn't show up for work
there is a vacancy because if his job wasn't important I wouldn't have him
there to start with.
Newton further testified that he had reason to believe that Davis had quit because
of the fact that after he had "told Mr. Thomas to drop him, he made no effort to
explain-his absence or anything; he made no effort at all to contact" the Company.
In addition to this Newton had heard in the meantime through Mullis that Davis had
told Mullis that Respondent "should hire Henry Brown back," a former employee,
because Davis had said he had "to go." According to Newton,,Mullis had told him
this on Monday, March 22.6 On Wednesday, when Davis learned from Newton of
his discharge, Newton had mentioned this alleged comment by Davis to Mullis as a
reason for Newton's conclusion that Davis had quit. Davis, according to Newton,
did not deny making the statement in question. Newton also denied that Davis had
said anything to him about having sent word regarding his continued absence.
6 Newton did not at this time testify as to when Davis was supposed to have said this
to Mullis. Later in his testimony Newton could not recall if Mullis had said how long
prior to March 17 Davis' remark was supposed to have been made and he further testified
that Mullis "wasn't specific" about it. Nowhere in Mullis' testimony is there any allusion
to this matter. In the circumstances I find that if Davis had made the remark attributed
to him by Mullis it was at a time so far removed from the circumstances here as to have
no relevancy regarding the matter at issue.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About his discharge interview with Davis, Newton testified as follows with par-
ticular reference to Davis' remark about having "to go":
I told him that I had very good reason to believe that he had no further inter-
est in working for T & T Packing Company because he had made this state-
ment, and I figured he had quit.
He mentioned the fact that he had had to stay off with his children, and I
told him that he possibly should have gotten somebody to take care of his
children, that the excuse of personal sickness or some dire circumstances would
be all right, but as far as taking care of the children, I thought that there ought
to be some way that he could work without having to stay and take care of
his children.
* * * * * * *
The conversation ended by me explaining about the fact that he should have
let me know something. I continued on the conversation with Willie that he
should have let me know why he hadn't reported or shown some reason why
he was off this period of time, and I also brought up the fact that I further
considered that he quit because the evening before that he had walked by the
plant and seen us and had made no effort to talk to us about it, and as far as
I remember then, that about terminated the conversation.
On direct examination Newton denied that Davis' union activities had anything
to do with his discharge. When asked if he was "mad at Willie because he was the
Union observer at the election" he answered,
No; I had no reason to be mad with Willie. I had been told that-I'm 65 years
old, and I have never been directly connected with the Union or how their
activities are handled, and I was told that we would have an observer on both
sides, and I had no idea who would be the observer. If anything, possibly, I was
surprised that Willie was an observer.
When asked on direct examination if he had said anything to Davis about being
"fooled" by the employees he answered, "I don't recall anything further than I
stated during the conversation." He was then asked, "Well, did you say that to
Willie?" And he replied, "No, certainly, I didn't." He was then asked if he had
ever said "a lot of employees fooled you, anything of that sort?", and he replied,
"I don't know of that conversation." He was then asked if he had said anything
"about a lot of employees have( ing) gone against" him and he replied, "I don't
recall any such remark. I would have no reason to-." When the question was
repeated to him he again answered, "I recall no such part of the conversation." 7
On cross-examination Newton testified that the normal rule was that when an
absent employee returned to work they were sent by the foreman to Newton where
the employees "explain ... why they were away." At this point Newton determines
the employee's "circumstances, any trouble he has had or if he is sick, or what's
going on" and has "to make a decision of whether it is an infraction of the Company
rule and . . . to make a decision whether he has a sickness or something that has
made it necessary that he be away...." In short he gets "an explanation from
them." Newton further testified that any absence due to a wife's labor or childbirth
would be considered a "valid reason" for an absence and that if a man sent word
that he was taking off to care for his children because his wife was in the hospital
having a baby that would be "a valid excuse to be off." But Newton also inspired
that the employee would have to send "a valid report" and that Respondent "couldn't
take the word of just an employee, just some casual remark." He further testified
that he was aware that Davis was married and had several children and that his
wife was in the hospital for a pregnancy.
About the matter of Davis' absence, Foreman Felton Mullis testified that on the
day after Davis took off from work he asked Davis' sister where Davis was. She
replied that Davis was "home taking care of the children." According to Mullis he
never passed this information on to anyone in the Company and in the morning
meetings when Davis' absence would come up he would always say simply- that
"Willie is out." This he did'because he "figured he'd be in the next day." When
asked why he did not disclose the reason for Davis' absence in the following day's
meeting he answered, "I didn't know if he was there that day or not; nobody didn't
tell me."
7 Newton's refusal after repeated opportunities to deny having commented to Davis in
the discharge interview something about employees having gone against him convinces me
that Davis' testimony in this respect is credible and I so find
T & T PACKING COMPANY 1163
B. Conclusions as to Davis' discharge
The foregoing evidence alone, without being augmented by other acts of Respond-
ent showing antiunion motivation as will appear, is in itself sufficient to convince me
that the discharge of Davis was not for the reason stated by Respondent but was in
fact because of Davis' union activity and I so find.
In the first place Davis' discharge must be considered in the light of the close
election which has. been held shortly before and Newton's remark to Davis about
employees having fooled him and gone against him. That Davis must have been
in this category would appear from Newton's further testimony about being surprised
that Davis was the Union's observer at the election.
Respondent's claim that it believed that Davis had quit or intended to quit his
job in my opinion is clearly phony, .to use a euphemism. Being unable to credit
Mullis' testimony that he did not disclose to Respondent at any time the information
he had obtained from Davis' sister about Davis' absence,8 I find that Respondent
was fully and adequately apprised of the reason for Davis'. absence. By Newton's
own testimony such a reason would in his opinion be an adequate excuse for an
absence provided Respondent got word of it. Newton's qualification that such word
could not be the casual comment of a fellow employee does not apply here since it
is obvious that the information Respondent is chargeable with here was not obtained
by a "casual" comment but by a specific inquiry and was obtained not from an unin-
formed fellow employee possibly bent on currying favor with his supervisor, but
from the sister of the subject employee who could be presumed to have the latest
and most accurate information on the matter.
Moreover, notwithstanding the evidence of other discharges made by Respondent
for failure to report an absence (none of which are particularly in point with the
one at issue, incidentally) it would appear from Newton's testimony that an unre-
ported absence would be excused by him if the absentee had a valid reason for the
absence.° And in this connection Newton testified that staying home to care for
one's children in a childbirth situation was valid and excusable.
I want to comment on the question of Davis' failure (as I have found) actually
and in so many words to send word specifically about his continued absence. That
Respondent might rely on this as a technical approach I believe deserves no consid-
eration under any circumstances in the light of the entire record. In any event
considering the tenor of Newton's testimony it is my impression that Newton would
eschew such a technical approach.i° As for an evaluation of Davis' attitude in this
connection there is this much to be said: With his kinfolk also employed by
Respondent he was entitled to and undoubtedly did assume that they would fully
inform Respondent of the exigencies of his situation.
For these reasons plus a general feeling of skepticism I felt about the evidence
Respondent offered on this matter and the manner in which it was offered, I reject
Respondent's defense herein and find that Davis was discharged because of his
union activity and not for the reason Respondent contends.
C. Interference, restraint, and coercion
Mattie Mae Faulk, an employee of 8 years' tenure, testified that on the day of the
election she was cleaning the spiceroom in the plant which was one of her regular
duties. Her foreman, Homer King, was in the room at the ,time together with one
of, Respondent's salesmen whom she referred to, as J. P. According to Faulk, J. P.
asked King if the employees would- have to drop their hospitalization insurance if
,the Union came in. King answered that they would. J. P. said nothing more and
walked out of the room. King thereupon asked Faulk if she carried the company
9 Even if in fact Mullis had not so reported I would still find as I do since it was Mullis'
duty to so report; and any failure in this respect on his part should result in a penalty
to Mullis and not to Davis and certainly would not relieve Respondent of its liability
here.
Q As will be recalled Newton testified on direct examination that an absentee is sent to
him so that he can "find out achy he was out" and excuse him if the absentee had "a valid
reason." [Emphasis supplied.]
10 As will be recalled Newton testified that it was a standing policy that the Company
had to be notified by the employees "if they don't.have a valid reason for being away "
However, he further testified in substance that if the employee had a valid reason and
the Company knew the reason no notice was required
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insurance. Faulk replied that she did. King then told Faulk that if she had the
insurance he hoped the employees "would vote the Union out." Faulk told no one
about this incident before the election.
Faulk also testified that about a week before the election King had asked her if
she knew anything about the Union. When she replied that she did not, King told
her ". . . don't give me that" and added that he knew the employees had signed
cards-that somebody had told them that they had signed cards.
In his direct testimony King denied having a conversation with Faulk on election
day and denied asking her the week before the election if she had signed the union
card. He further testified that Respondent had no salesmen whose initials were
J. B. or J. P. or P. J.11 On cross-examination King admitted having spoken to
Faulk in the spiceroom on election day but added that he did not speak to her about
the Union. His testimony was that he had told her what to do. These instructions
amounted to his telling her "to be sure not to lose" the papers on his desk. When
he was asked if he had talked to Faulk approximately a week before the election
downstairs in the plant, his reply was that he did not remember. He then denied
having any conversation with her at that time. Respondent offered the following
excerpt from Faulk's affidavit as being inconsistent with her testimony on the stand:
On the day of the election, Foreman King approached me in the spiceroom
at about 3:15 p.m. as I was cleaning the area. He asked me if I belonged to
the Company's insurance plan, and I answered that I did. I had just overheard
King and P. J. (last name unknown), a company salesman in the shipping depart-
ment, as they talked about 5 feet away from me at King's desk in the spiceroom.
P. J. asked King if King had company hospitalization insurance, and King said
he did. P. J. said he did too. P. J. asked King whether they would lose that
insurance if the Union got in, and King said yes. P. J. then said he hoped the
Union did not get in, and King agreed. It was immediately thereafter that King
approached me with the aforementioned question. After I said that I had
company hospitalization insurance, King said that we (apparently meaning the
employees) had better know what we were doing when we went out there to
vote that day, and he hoped we would vote the Union out. No other foreman
or supervisor spoke to me about the Union on the date of the election. King
had said basically the same thing about the Union to me about 1 week before
the election (3-5-65) in the cooler downstairs in the plant. ,
I see nothing of -sufficient significance in Faulk 's affidavit as compared to her
testimony to warrant discrediting her. On the contrary I find enough inconsistency
and enough implausibility in King's testimony to warrant accepting Faulk's version
over his which I hereby do. Thus King testified on direct examination that he did
not talk to Faulk on election day; on cross-examination he testified to the contrary.
His explanation of the conversation does not impress me. By his own admission
Faulk had been performing this cleaning duty for "quite a while" yet he found it
necessary to give her instructions thereon. And the instruction he claims to have
given her seems gratuitous to say the least. His testimony about there being no
salesman with the initials J.B., J.P ., or P.J ., moreover, with its implication that
Respondent had no salesman who was known and addressed in the manner described
by Faulk was effectively contradicted by the testimony of Felton Mullis.
Davis testified about two conversations he had with Felton Mullis regarding the
Union. The first occurred 5 or 6 days before the election in the little office on the
kill floor. Davis went there to warm his hands. Mullis came in and asked Davis
what he thought about the Union. Davis told Mullis that he had signed a union
card but that he did not know much about the Union. Mullis asked him how he
was going to vote and Davis replied that he did not know. Mullis said that he did
not know much about a union but had heard that it would "do nothing but get your
money, take your money." Davis replied that they had been told that the dues would
not be much-around $2 or $3 a month.
The second conversation occurred on or about election day in the same place.
Mullis again asked Davis what he thought about the Union. Davis replied that he
did not know but that he wanted more money. Mullis replied that he "didn't know
what he could do about it" and added that "the Company was a little bit angry about
the Union." He added that "the company lawyer had told them not to give anybody
"Foreman Mullis testified, however, that Respondent had a salesman by the name of
P. W. Johnson who was called "P.W." and who was the only one of Respondent 's sales-
men who was called by his initials.
T & T PACKING COMPANY 1165
else no more money...." Davis replied that "union or no union " his family still had
to eat . Mullis replied that the Union was no good for the employees and that
"if they get it in there , a lot of employees will probably be out of work, a lot of
employees in the streets." 12
In his direct testimony Mullis denied asking Davis about the Union or about sign-
ing the union card . He further denied making any threats to Davis or any other
employees regarding the Union . He was then asked if he recalled any conversation
where he had asked any employees if they had signed union cards or what they
thought about the Union and his answer was "I didn 't know they had a card."
On cross-examination Mullis was asked if he had ever spoken to any of the
employees about the Union prior to the election . His reply was , "No. Some of
them talked to me." When asked what he would say on those occasions he replied
that he told them "I don't want no union. I never have had one." He admitted talk-
ing to Davis in the plant about the Union . He also admitted talking to Davis on an
occasion when Davis asked him if he could get Davis a raise. According to his
testimony he told Davis that he "didn't know about getting him no raise now" and
that the reason was because "business wasn 't good." He also testified that on the
day of the election he spoke to all of the employees as a group about the Union. In
his affidavit he stated that he spoke to his crew as it was leaving on the day of the
election, told them they could return to vote between 5 and 6 p.m., that he "hoped
they would vote for the Company," and that he said nothing else to them. Later
in his cross-examination he testified that instead of speaking to his crew as a group
he spoke to them one at a time He further admitted that he had spoken to Davis
on the day of the election and had told him that he did not want a union as far as
he was concerned.
In addition to my skepticism regarding the part Mullis claimed he played (or did
not play ) in connection with Davis' discharge , I feel that Mullis' testimony here is so
equivocal as to render it unreliable. Accordingly, I credit Davis here.
According to the testimony of Johnnie L. Dunn, sometime in February 1965, Mul-
lis had asked him what he thought about the Union . Dunn replied that he had no
thoughts about it. Mullis also asked on this occasion if he had signed a union card
and Dunn had replied , "No, sir." Mullis denied asking Dunn anything regarding the
Union and when he was asked by Respondent's counsel if he had asked Dunn if he
had signed a card . His answer was "I didn 't know he had a card ." I credit Dunn.
By the foregoing . evidence I find that Respondent interfered with , restrained, and
coerced its employees in the exercise of rights guaranteed them in the Act specifi-
cally as follows:
1. King's implied threat to Faulk of the loss of insurance coverage if the Union
won the election.
2. King's interrogation of Faulk regarding the Union.
3. Mullis' threat to Davis of the curtailment of employment if the Union won the
election.
4. Mullis' interrogation of both Davis and Dunn about the Union.
The Objections
On June 18, 1965, the complaint herein was consolidated with the representation
case and a hearing ordered on objections 1 and 2 raised by the Union.
Objection 1 states:
The Company on the day of the election , paid the employees , and in so doing,
furnish them two (2) envelopes , and in said envelopes , misrepresented the facts.
The Union did not have time to answer the Company's statement to the
employees.
Objection 2 states:
The Company, through its foreman , on the day of the election , promised
employees benefits to vote against the Union, and threatened their job security
if they voted for the Union.
"On cross -examination Davis testified about this conversation as follows: ". . . on
election day I went in there and asked him about some more money, in the little office
there , and he said that he didn ' t know, that he-you know , he talked to the people in
the office up there, I mean the company officials said the company lawyer told them not
to give any more money , to wait and see what was going to happen with the Union I
told him union or no union. I said my family still had to eat , and he said he didn ' t know.
He didn't promise me anything."
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to objection 1, the following stipulation was entered into at the hearing:
On the day of the election, a normal payday, the employer paid the employ-
ees by furnishing them with two pay envelopes, rather than the usual one enve-
lope. One of said envelopes contained $17.50 in cash and a slip of paper bear-
ing the following legend: "This is the amount of money you would have paid
to the Union in mitiation,fees and dues since the Union started to try to get you
to fall for its promise to get your money $17.50." The other envelope con-
tained the balance of the earnings and a pay voucher showing earnings and
deductions $17.50 was listed as "other deductions," that figure and the "balance"
figure having been written in red ink unlike the other markings thereon.
The undenied and credited evidence shows that during the organizing campaign
approximately three meetings were conducted by the Union with the employees of
Respondent and that at these meetings the policy of the Union regarding initiation fees
and dues during an organizing campaign were stated to the employees. These poli-
cies were that dues would be no less than $3.50 and no more than $5 per month and
that the employees would pay no initiation fees or dues until after a contract was
negotiated and a meeting held in which the employees could set their own rules.
Furthermore after a contract was signed there would be a 30-day period in which
employees would be entitled to join the Union without initiation fees. Thereafter
all newly hired people would be required to pay an initiation fee that "would pos-
sibly be $10.00."
Union Representative Hider was asked on cross-examination if it was not true
that the Union had "fully informed the employees just how much the dues would
be, just how much the initiation fee would be, if any" and whether or not "these peo-
ple were aware of the position of the Union" in this connection and he replied in
the affirmative.
On the basis of this record I would sustain both of the objections upon which I
was to pass and would set aside the election and recommend a new one. As for
objection 1, the Company apparently contends that the employees were fully apprised
by the Union as to its policies and therefore could not be misled by the Company's
last minute propaganda. But the evidence does not support this contention. While
the Union may have made clear its policies in all three of the meetings it conducted
during the campaign, there is no showing that all of the employees attended these
meetings . Absent clear proof that all of the employees were informed about the
matter, the Union's lack of opportunity to answer the Company in this respect can
of itself vitiate the election results In any event it is clear that on the basis of Mul-
lis' threat to Davis on election day that if the Union got in "a lot of employees will
probably be out of work, a lot of employees in the streets," objection 2 is valid and
would have the same effect. Accordingly, I shall recommend that the election herein
be set aside and a new election held at a propitious time.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, occurring in connection
with its operations described in section 1, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States, and constitute unfair
labor practices which tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in unfair labor prac-
tices as set forth above, I shall recommend that it cease and desist therefrom and
take certain affirmative action to effectuate the policies of the Act.
Having found that Respondent discriminated against Willie Dave Davis by dis-
charging him, Twill recommend that Respondent offer him immediate and full rein-
statement to his former or substantially equivalent position without prejudice to his
seniority or other rights and privileges and make him whole for any loss of earnings
he may have suffered because of the discrimination against him by payment to him
of a sum of money equal to the amount of wages he would have earned from the
date of the discrimination to the date of the offer of reinstatement, together with
interest thereon at the rate of 6 percent per annum, and that the loss of pay and inter-
est be computed in accordance with the formula and method prescribed by the Board
in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716, to which the parties hereto are expressly referred.
T & T PACKING COMPANY 1167
The unfair labor practices committed by Respondent here strike at the heart of the
rights guaranteed employees by Section 7 of the Act. 13 The inference is warranted
that Respondent maintains an attitude of opposition to the purpose of the Act with
respect to the protection of employee rights in general . It will , accordingly , be rec-
ommended that Respondent be ordered to cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act.14
Having found that Respondent committed various acts of interference , restraint,
and coercion which involved objections raised by the Union to the election which was
conducted on March 5 , 1965, prevented a free and fair choice in-that election by the
employees , I shall further recommend that the results of that election be set aside
and a new election ordered.
Upon the basis of the foregoing findings of fact and upon the entire record in this
proceeding , I make the following:
CONCLUSIONS OF LAW
1. T & T Packing Company at all times material herein has been an employer
within the meaning of Section 2(2) of the Act.
2. International Union of District 50, United Mine Workers of America, at all
times material herein has been a labor organization within the meanings of Section
2(5) of the Act.
3. By discriminating against its employees as found above, Respondent has engaged
in unfair labor practices within the meaning of Section 8(a) (3) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed them by Section 7 of the Act, as found above, Respondent has
engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, upon the
entire record in this proceeding, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I recommend that the Respondent, T & T Packing Com-
pany, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership of any of its employees in International Union of
District 50, United Mine Workers of America, or in any other labor organization
of its employees, by discharging or in any other manner discriminating against any
individual in regard to his hire, tenure of employment, or any term or condition of
employment.
(b) Threatening loss of employment or jobs or any other economic reprisals
because of their employees' union activities, membership, or sympathies.
(c) Interrogating its employees concerning their union membership, activities,
or sympathies, -in, a manner constituting interference, restraint, or coercion within
the meaning of Section 8(a)(1) of the Act.
(d) In any other mariner interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed to them in Section 7 of the Act.
2. Take the following 'affirmative action which I find will effectuate the policies of
the Act: 1, 1 1
(a) Offer to Willie Dave Davis immediate and full reinstatement to *his former
or substantially equivalent position without prejudice to his seniority or other rights
and privileges, and make him whole in the manner set forth in the section entitled
"The Remedy.
(b) Pie' erve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary or useful to
determine the amount of backpay due under the terms of this Recommended Order.
13 N L.R B. v. Entwistle Mfg. Co., 120 P. 2d 532 (C A. 4)
is May Department Stores d /b/a Famous-Barr Company v. N L.R.B., 326 U S 376,
Bethlehem Steel Company v. N.L.R.B , 120 P. 2d 641 (C A D.C ).
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its plant in Macon, Georgia, copies of the attached notice marked
"Appendix." 15 Copies of said notice, to be furnished by the Regional Director for
Region 10 shall, after being duly signed by Respondent's representative, be posted by
the Respondent immediately upon receipt thereof and maintaind by it for a period of
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 said Regional Director, in writing within 20 days from the receipt of
this Decision, what steps Respondent has taken to comply herewith.16
I also recommend that the results of the election herein be set aside and that a new
election be ordered.
"If this Recommended Order be adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. In the further event that the Board's Order be enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order "
16In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read* "Notify said Regional Director, In writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of Interna-
tional Union of District 50, United Mine Workers of America, or in any other
labor organization of our employees by discriminatorily discharging them or
in any other manner discriminating against any individual in regard to his hire
or tenure of employment or any term or condition of employment.
WE WILL NOT threaten loss of jobs, employment, economic benefits, or other
reprisals because of our employees' union activities, union membership, or
sympathies.
WE WILL NOT interrogate our employees concerning their union member-
ship, activities, or sympathies in a manner constituting interference, restraint,
or coercion within the meaning of Section 8(a)(1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form labor orga-
nizations, to join or assist the above-named or any other labor organization,
bargain collectively through representatives of their own choosing, or to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities.
WE WILL offer Willie Dave Davis immediate and full reinstatement to his
former or substantially similar position without prejudice to his seniority and
other rights and privileges and make him whole for any loss of pay suffered as
a result of our discrimination against him.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named or any other labor organization.
T & T PACKING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 528
Peachtree-Seventh Building, 50 Seventh Street, NE., Atlanta, Georgia, Telephone
No. 526-5741.