Tyson Foods

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 552 (N.L.R.B. 1993)

552
311 NLRB No. 60
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We note that in sec. III,B,2,a, par. 2 of his decision, the judge at-
tributed certain testimony to former employee Ronnie Garner, when,
in fact, the testimony was that of former employee Greg Jones. We
correct this inadvertent error.
2 We agree with the judge that there are two independent grounds
for finding Jean Andrews to be an agent of the Respondent, neither
of which requires a finding that she is a supervisor within the mean-
ing of Sec. 2(11) of the Act. We agree, for reasons stated by the
judge, that she had both actual and apparent authority from manage-
ment to solicit employee signatures on the decertification petition
and oppose the Union’s effort to retain its support. We rely on the
totality of the evidence and do not suggest that any employee who
merely distributes personnel forms is thereby rendered a manage-
ment spokesperson.
3 In his recommended Order, the judge apparently inadvertently or-
dered the Respondent to rescind changes unilaterally implemented
‘‘on or before’’ the date it unlawfully withdrew recognition, rather
than ‘‘on or after’’ that date. We correct the judge’s error.
Tyson Foods, Inc. and United Food and Commer-
cial Workers, Local 425, AFL–CIO. Cases 26–
CA–14731 and 26–CA–14821
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On July 24, 1992, Administrative Law Judge Wal-
lace H. Nations issued the attached decision. The Re-
spondent and the General Counsel filed exceptions and
supporting briefs, and the General Counsel filed an an-
swering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified and to adopt the recommended
Order as modified.
The General Counsel has excepted to the judge’s
failure to find that the Respondent violated Section
8(a)(1) of the Act when its agent, Jean Andrews,2
interfered with an employee who was attempting to
discuss union business with a shop steward. For the
reasons set forth below, we find merit in the General
Counsel’s exception.
As found by the judge, employee Melissa Smith
asked employee Hilda Cunningham in the breakroom
to tell her about the Union. Cunningham suggested that
Smith speak to Union Steward John Foster, who was
nearby. The two employees joined Foster and were
discussing the Union when Andrews approached them
and sat down near Cunningham. Cupping her hand,
Andrews whispered to Cunningham, ‘‘I have to sit
down to keep John [Foster] from talking to her.’’ Fos-
ter and Smith then stopped talking and left the area.
The judge found that Andrews’ conduct would con-
stitute a violation of the Act if it were ‘‘a constant or
even frequent practice.’’ However, the judge concluded
that no violation had occurred because the conduct was
‘‘an isolated instance’’ and because ‘‘one of [the] per-
sons involved was a long time Union steward who
should not have been intimidated by Andrews.’’ We
disagree.
First, with respect to the ‘‘isolated’’ finding, we
note that the judge found that earlier in the year Cor-
porate Personnel Manager Tim McCoy and Regional
Personnel Manager Chuck Yarbrough told a meeting
of supervisors that one way to assist in the decertifica-
tion of the Union was to isolate union supporters from
other employees and to ‘‘scare off’’ union stewards.
Viewed in this context, the Andrews incident was not
an isolated occurrence, but rather was consistent with
the Respondent’s unlawful plan to oust the Union.
Second, the issue is not whether Foster should or
should not have been intimidated by Andrews. ‘‘The
test is whether Respondent has engaged in conduct
which reasonably tends to interfere with the free exer-
cise of employee rights under the Act.’’ Hanes Ho-
siery, 219 NLRB 338 (1975). Such a tendency is clear-
ly present here because Andrews’ conduct constituted
an obvious and, indeed, admitted attempt to restrict
employee Smith from receiving information about the
Union. Therefore, we find that Andrews’ conduct vio-
lated Section 8(a)(1) of the Act.
ORDER3
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Tyson
Foods, Inc., Dardanelle, Arkansas, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Insert the following as new paragraph 1(j), and
renumber the present paragraph 1(j) as 1(k).
‘‘(j) Interfering with employees discussing union
business on nonwork time in nonwork areas.’’
2. Substitute the following for paragraph 2(b)
‘‘(b) On request of the Union, rescind any or all of
the changes it has unilaterally implemented on or after
the date it unlawfully withdrew recognition from the
Union, including, but not limited to, a performance
bonus of between 2 and 3-1/2 percent, a wage in-
crease, an increased shift premium, a new attendance
policy, and a new service award and attendance award
program.’’
553TYSON FOODS
1 All dates are in 1991 unless otherwise noted.
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT direct, control, circulate, or assist in
the circulation of a petition to decertify United Food
and Commercial Workers, Local 425, AFL–CIO.
WE WILL NOT promise our employees wage in-
creases, bonuses, and other benefits if they decertify
the Union, and alternatively, WE WILL NOT threaten our
employees with the loss of wage increases, bonuses,
and other benefits if they do not decertify the Union.
WE WILL NOT tell our employees that the Union can
do no more for them than Tyson Foods, Inc., and thus
discourage support for the Union and encourage by-
passing the Union and dealing directly with Tyson
Foods, Inc.
WE WILL NOT surveil and interrogate our employees
concerning their union sympathies and preference by
observing them as they are solicited for their signatures
on a decertification petition.
WE WILL NOT fail or refuse to bargain with the
United Food and Commercial Workers, Local 425,
AFL–CIO as the exclusive collective-bargaining rep-
resentative of our employees in the following appro-
priate unit:
All production employees at the Tyson Food
Poultry processing plant located at Dardanelle,
Arkansas, excluding all maintenance employees,
office clerical employees, professional employees,
technical employees, guards, and supervisors as
defined in the Act.
WE WILL NOT withdraw recognition of the Union as
the exclusive collective-bargaining representative of
our employees in the above-described unit.
WE WILL NOT unilaterally implement changes in
wages and working conditions without first giving the
Union an opportunity to bargain.
WE WILL NOT refuse to furnish the Union with in-
formation which it requested and which is necessary
and relevant to its role as exclusive collective-bargain-
ing representative of our employees in the above unit.
WE WILL NOT interfere with employees discussing
union business on nonwork time in nonwork areas.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain with the
Union as the exclusive representative of our employees
in the above unit concerning terms and conditions of
employment and, if an understanding is reached, em-
body the understanding in a signed agreement.
WE WILL, on request of the Union, rescind any or
all of the changes we unilaterally implemented on or
after the date we unlawfully withdrew recognition
from the Union, including, but not limited to, a per-
formance bonus of between 2 and 3-1/2 percent, a
wage increase, an increased shift premium, a new at-
tendance policy, and a new service award and attend-
ance award program.
WE WILL furnish the Union information it requested
in its letter of July 9, 1991, and on request, furnish the
Union any other necessary and relevant information
which it may request in furtherance of its role as bar-
gaining representative or our employees in the above
unit.
TYSON FOODS, INC.
Bruce E. Buchanan and Susan B. Greenberg, Esqs., for the
General Counsel.
Michael R. Jones and Joseph F. Gilker, Esqs., of
Mountainburg, Arkansas, for the Respondent.
Carol Clifford, Esq., of Washington, D.C., for the Charging
Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. On
October 2, 1991,1 United Food and Commercial Workers,
Local 425, AFL–CIO (the Union or Charging Party) filed an
unfair labor practice charge against Tyson Foods, Inc. (Tyson
or Respondent) in Case 26–CA–14731. The Union filed an
amended charge in this case on November 7. It filed a
charge in Case 26–CA–14821 on December 4. Based upon
these charges, the Acting Regional Director for Region 26
issued an order consolidating cases, consolidated complaint
and notice of hearing (the complaint) on January 7, 1992.
The complaint alleges that Respondent has engaged in con-
duct which violates Section 8(a)(1) and (5) of the National
Labor Relations Act (the Act). Respondent filed a timely an-
554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Union achieved recognition at the Dardanelle facility while
it was owned by another company. Several years prior to the events
in question, Respondent purchased the facility and continued rec-
ognition of the Union for its employees in the following appropriate
unit:
All production employees at the Tyson Food poultry processing
plant located at Dardanelle, Arkansas, excluding all maintenance
employees, office clerical employees, professional employees,
technical employees, guards and supervisors as defined in the
Act.
The most recent collective-bargaining agreement between the parties
was effective by its terms from October 2, 1990, to November 3,
1991.
3 There is no allegation that Andrews was a statutory supervisor.
4 I use the word unofficially because no record of Andrews’ pro-
motion appears in her personnel file. As far as company records are
concerned, she is still a custodian. Additionally, because there is no
paperwork connected with Andrews’ promotion to trainer, there is no
certain date in this record as to when this event occurred.
5 The complaint includes an allegation that Respondent violated
the Act additionally by threatening an employee because she filed
an unfair labor practice charge. This matter will be ruled upon, but
is not related to the primary issues involved as it has nothing to do
with the decertification campaign.
swer to the complaint wherein it denies that it committed any
unfair labor practices.
Hearing was held in these matters in Russellville, Arkan-
sas, on January 9–12 and April 13–15, 1992. At the hearing,
the General Counsel moved to amend the complaint based
upon an amended charge filed by the Union on January 31,
1992. The amendment sought to add the names of a number
of supervisors to those already listed in paragraph 11 of the
complaint. With the exception of Supervisor Brad LeMaster,
whose name was made known to Respondent prior to hear-
ing, I denied the amendment as it came without proper notice
to Respondent and in fact, adds virtually nothing to the case
as a number of supervisors are already alleged to have en-
gaged in unlawful activity.
Briefs were received from the parties on or about June 2,
1992. Based upon the entire record, including my observa-
tion of the demeanor of the witnesses, and after consideration
of the briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent admits and I find that it is a corporation with,
inter alia, an office and place of business in Dardanelle, Ar-
kansas, where it engages in the processing of poultry prod-
ucts. It is now and has been at all times material an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE INVOLVED LABOR ORGANIZATION
It is admitted and I find that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview of the Dispute and the Matters in Issue
The Respondent operates a large poultry processing plant
in Dardanelle, Arkansas, where the majority of its hourly em-
ployees have been represented by the Union since about the
1960s.2 At the Dardanelle complex, in addition to the poultry
plant, Tyson has breeder and broiler departments, hatcheries,
a feed mill, transportation facilities and a gas company. The
complex employs about 1500 people, of which about 1100
are employed in the plant. The manager of the complex is
Kenton Keith, the plant manager is David Massey, and at all
times material, the complex personnel manager was Ken
Sanders. The plant operates on three shifts, with the first and
second shifts also having personnel managers, who were
Gene Eggman and Arlene Brown respectively. There are two
shift managers, Mike Casto and Billy McNeil, and four shift
superintendents, Robert Whitten, Brenda Thompson, John
Mulligan, and Lucille Caraway.
Following the signing of the most recent collective-bar-
gaining agreement between the Union and Respondent, there
was evidently some discontent among the represented em-
ployees because of the manner in which a negotiated wage
increase was put into effect. Respondent contends that this
discontent fostered a decertification movement among its em-
ployees which resulted in the filing of a decertification peti-
tion in August. The decertification effort was started by em-
ployee Jean Andrews, who the General Counsel asserts was
acting as an agent for Respondent in initiating and seeking
support for the decertification petition.3 Until about April
1990, Andrews had been a unit employee and a union stew-
ard. Because of an injury to her hand, she chose to cease her
work in the unit and was given a nonunit job as a custodian
which required cleaning the facility’s breakroom and execu-
tive offices. In about January 1991, she was unofficially,
temporarily promoted to the position of trainer for the second
shift, in which position she is responsible for giving new em-
ployees indoctrination with respect to Respondent’s work
rules, policies, and benefits.4 She also gives initial training
to these employees in their actual job assignments. The train-
ing program, which was designed to improve Respondent’s
retention of employees and cut down on the substantial em-
ployee turnover it experiences, lasted initially about 3 weeks.
It was subsequently cut to a 2-week program, then to a 1-
week program, and in some instances when employees were
urgently needed in production, to a 1-day program.
In the spring of 1991, Andrews sought information about
starting a decertification effort at the facility from the Na-
tional Labor Relations Board. She, together with two unit
employees, then set about collecting signatures on a decerti-
fication petition. There is uncontroverted evidence that she
made and distributed a number of handbills urging employ-
ees to decertify the Union. There is much controverted evi-
dence that she actively pursued the collection of signatures
on her petition on company time with the support of manage-
ment. During the decertification campaign, which in its most
active part ran from mid-May to mid-August, the Union
began handbilling in opposition to the decertification effort.
Shortly after the Union entered the campaign, Respondent
began handbilling in support of the effort. During the cam-
paign, Andrews is alleged to have committed a number of
unfair labor practices and Respondent’s supervisors are al-
leged to have engaged in unlawful and coercive surveillance
of employees as they were solicited to sign the decertifica-
tion petition by Andrews.5
Following the filing of the decertification petition, Re-
spondent withdrew recognition from the Union and imple-
555TYSON FOODS
6 As of August 13, the date of filing, the petition had valid signa-
tures from 646 unit employees out of a total of 1081 such employ-
ees. On brief, the Respondent notes that more signatures were ob-
tained after the initial filing and that ultimately, well over 900 signa-
tures were obtained. In this regard I would note that considering Re-
spondent’s strong stance against the Union and its support of the de-
certification effort, any unit employee who did not sign up for decer-
tification after the initial filing was a very ardent union supporter.
Respondent was provided with the names of the signers by Andrews
so it was aware of where each employee stood on the issue.
mented a wage increase and a number of new working con-
ditions without notice to the Union and without bargaining.
Additionally, because of its withdrawal of recognition, it re-
fuses to supply certain information which was requested by
the Union.
It is alleged that Andrews is an agent of the Respondent
within the meaning of Section 2(13) of the Act and thus Re-
spondent is alleged to have given unlawful assistance to and
controlled the decertification petition drive. Respondent de-
nies that Andrews is a statutory agent and that it had any-
thing to do with her efforts. Within this broad context, the
complaint raises the following specific issues:
1. Is Jean Andrews an agent of Respondent within the
meaning of Section 2(13) of the Act, and did Respondent,
acting through Andrews, give unlawful assistance to and con-
trol the decertification petition drive at its Dardanelle facility
from on or about April 2, 1991, to date?
2. Did Respondent, acting through Jean Andrews, at Re-
spondent’s facility:
a. On or about the following dates, threaten employees
with the loss of wage increases and bonuses if the Union
continued to represent employees:
i. between June and August 1991
ii. late June or July 1991
iii. late August 1991
b. On or about the following dates, threaten employees
with the loss of bonuses if the Union continued to represent
employees:
i. May 20, 1991
ii. late June 1991
c. On or about the following dates, promise its employees
wage increases and bonuses if they decertified the Union:
i. between June and August 1991
ii. late June or July 1991
d. On or about the following dates, promise its employees
bonuses if they decertified the Union:
i. late June 1991
ii. September 6, 1991
e. On or about the following dates, promise its employees
a raise if they decertified the Union:
i. May 1991
ii. between June and August 1991
iii. July or August 1991
f. On or about early July 1991, interfere with an employee
who was attempting to discuss union business with a shop
steward.
g. In late June 1991, solicit employees to bypass the Union
and bring their problems directly to company officials.
3. Did Respondent, since or about September 9, and con-
tinuing to date, unlawfully fail and refuse to bargain with the
Union as the exclusive representative of the unit?
4. Did Respondent, on or about November 5, 1991, unlaw-
fully withdraw recognition of the Union as the exclusive col-
lective-bargaining representative of the unit?
5. Did Respondent, on or about November 4, unlawfully
make the following changes in wages or working conditions:
a. Institute a performance bonus of between 2 and 3-
1/2%.
b. Implement a wage increase.
c. Increase shift premiums.
6. Did Respondent, on or about January 1, 1992, unlaw-
fully implement a new attendance policy and new service
award and attendance award program.
7. Did Respondent, acting through David Massey, Ken
Sanders, Arlene Brown, Gene Eggman, Billy McNeil, Mike
Casto, Carlene Oliver, Flo Sherman, Steve Snyder, Virginia
Caraway, Edward George Williams, Lisa Carter, Freda
Mashburn, and Brad LeMaster, all admitted statutory super-
visors, near Gate B of Respondent’s facility, surveil and in-
terrogate employees concerning their union activities on var-
ious dates between mid-July and September 1991, by observ-
ing them as they were solicited to sign a petition to decertify
the Union and/or were handbilled?
8. Has Respondent unlawfully refused to supply the Union
information which it requested in letters dated July 9, Octo-
ber 17, and October 22?
9. Did Respondent, acting through Night-Shift Personnel
Manager Arlene Brown, an admitted statutory supervisor, on
or about September 17, 1991, threaten an employee with loss
of insurance claims assistance because the employee’s insur-
ance claim was the subject of a charge pending before the
National Labor Relations Board?
B. Did the Respondent Unlawfully Withdraw
Recognition from the Union Based on the
Decertification Petition?
The crux of this case is whether the Respondent could
lawfully withdraw recognition from the Union. If so, then its
refusal to thereafter bargain with the Union or provide the
Union with requested information is lawful. If not, then Re-
spondent has violated the Act in these regards. Respondent
withdrew recognition based upon the fact that the decertifica-
tion petition filed with the Board in mid-August contained
the names of a majority of the employees in the bargaining
unit.6 An employer, before it may lawfully withdraw rec-
ognition from an incumbent union, must have actual proof
that the union in fact no longer enjoys majority support, or
it must possess a good-faith doubt, founded on a sufficient
objective basis, as to the union’s continuing majority status.
Process Supply, 300 NLRB 756 (1990), and cases therein
cited; and Cypress Lawn Cemetery Assn., 300 NLRB 609
556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(1990), and cases therein cited. As the decertification petition
constitutes the actual proof of lack of majority status, or the
basis for Respondent’s good-faith doubt of that status, its va-
lidity for this purpose is clearly brought into issue.
Where an employer aids or supports employees in with-
drawing from a union or otherwise manifesting their disaffec-
tion with an incumbent representative, the Board has held
that the evidence of withdrawal or disaffection thus procured
by the employer cannot serve as the requisite objective basis
upon which a lawful withdrawal of recognition must be
predicated. Texaco, Inc., 264 NLRB 1132 (1982). American
Linen Supply Co., 297 NLRB 137 (1989); Walker Mfg. Co.,
288 NLRB 888 (1988). The Act requires that an employer
not give assistance to or control a decertification drive or risk
tainting the resulting decertification petition. Process Supply
Inc., supra. An employer may not lawfuly withdraw recogni-
tion in the context of its own unfair labor practices, espe-
cially if the withdrawal is based on a decertification petition
which it circulated or was responsible for circulating. Mar-
riott In-Flite Services, 258 NLRB 755 (1981), and cases
therein cited.
As noted above, in this case, the Respondent is alleged to
have unlawfully assisted and controlled the decertification ef-
fort primarily through the use of a statutory agent, Jean An-
drews. Upon careful consideration, I believe the credible
facts establish that Andrews was an actual agent of Respond-
ent with respect to decertification movement, and in addition,
further find that she was an apparent agent whose actions are
attributable to Respondent. Credibility determinations are
crucial in making these findings and I have carefully consid-
ered the arguments advanced by the parties in making such
determinations. As will be discussed in more detail below, I
have considered the demeanor of the witnesses, their prob-
able motivations, conflicts within the testimony of individual
witnesses as well as a number of other factors in deciding
who was telling the truth.
1. Was Andrews an actual agent of Respondent in
regard to leading the decertification campaign?
With regard to the matter of whether Andrews was an ac-
tual agent of Respondent, there are two so-called ‘‘smoking
guns’’ in this record. The first is an alleged admission by a
high ranking official with Respondent to Union President
Benny Dollar that the Company intended to decertify the
Dardanelle plant. The other is found in the testimony of Re-
spondent’s former supervisor, John Grinder, wherein he al-
leges that Respondent admitted that it was directing the de-
certification movement and had a person to front for it.
Though a great effort was made by Respondent to discredit
the testimony of Dollar and Grinder, a chain of
uncontroverted events and actions of Respondent surrounding
the decertification movement strongly supports their testi-
mony.
Benny Dollar testified that the Union has represented em-
ployees at the Dardanelle facility for about 30 years. The
Union has also represented employees at a Tyson Pine Bluff,
Arkansas facility since 1968. In 1991, Tyson opened another
facility at Pine Bluff which is nonunion. The Union has
talked with its employees about organizing.
Negotiations for a new contract at Dardanelle began in or
about August 1990. For the first time in the parties’ bar-
gaining history, Respondent proposed a 1-year contract. The
Union proposed a 3-year contract as had been the practice
at Dardanelle. Respondent contends that its proposal was to
get Dardanelle ‘‘off the cycle’’ with its organized Pine Bluff
plant, which had a contract expiring just after the one at
Dardanelle. However, a conversation between Dollar and
William Jaycox, Respondent’s group vice president of human
resources, offers another explanation.
The two met, with Union Business Agent Willis Bartlette
also present, for lunch in Fort Smith, Arkansas, on Novem-
ber 20, 1990. At this time, negotiations had been completed
and the parties had reached agreement on a new contract.
The Respondent had prevailed in these negotiations and the
Union had agreed to a 13-month contract. With respect to
wages, the Union had also agreed to take whatever Tyson of-
fered to its nonunion plants following an annual October
wage review which Tyson conducts. As a result of the 1990
wage review, Tyson gave its nonunion plant employees with
a year or more of seniority a 20-cent-an-hour pay increase.
Employees with less seniority received no wage increase. At
its union plants, Tyson gave the involved unions the choice
of following its lead on the 20-cent-an-hour increase for
more senior employees, or giving a 15-cent-an-hour across-
the-board increase to all employees. Dollar had selected the
15-cent across-the-board option and it had been implemented
by Tyson at Dardanelle.
Dollar’s choice had quickly proven to be unpopular, so
one purpose of the Fort Smith meeting with Jaycox was to
see if something could be done about the situation. Jaycox
also wanted the meeting to secure some further under-
standing about the Union’s use of handbills which angered
Jaycox. During negotiations, the Union had issued a handbill
which set out the company proposals in a manner Jaycox la-
beled ‘‘rockthrowing.’’ He believed that he and Dollar had
subsequently agreed that further action of this type would not
occur without having a mutual discussion about the problem
giving rise to a proposed handbill. However, the Union had
issued another handbill without advance notice to Jaycox,
which further angered him.
Thus, at the Fort Smith meeting, Jaycox was upset because
the Union had issued another handbill about the wage matter
which Jaycox felt was unfair. He said Dollar was upset be-
cause he did not believe the Company explained the wage
options to him properly, causing Dollar to select the wrong
option.
According to Dollar, the conversation went thusly:
We discussed the one-year agreement and Jaycox
said, ‘‘You know the reason we wanted a one-year
agreement is that we’re going to decertify the union at
the end of that one year.’’ We talked about better com-
munications. Jaycox told us, ‘‘If we’re going to decert
you, we’re going to tell you. If we’re not going to, if
we’re going to work with you, we should tell you
that.’’ We went into the deal about the one-year agree-
ment and he said—‘‘That’s the reason we wanted that
one year.’’ Then he went on into talking about the Pine
Bluff plant. He said, ‘‘you know we’re building this—
got the Pine Bluff plant and if you let us get our feet
on the ground, we might not decertify the union in
Dardanelle.’’ I told him, ‘‘Look, I’ve been offered deals
before,’’ and I wasn’t interested in his deals. ‘‘If the
employees in Pine Bluff want to organize, we’ll be
557TYSON FOODS
7 On brief, Respondent correctly points out that Willis Bartlette
was not called to corroborate Dollar’s version of the conversation
though Bartlette was in attendance throughout the hearing. For this
reason, I reluctantly accept Jaycox’s denial that he offered not to de-
certify the Dardanelle plant in exchange for Dollar’s assurance he
would not attempt to organize the new Pine Bluff plant. I say reluc-
tantly because other factors strongly support Dollar. There had been
an unsuccessful decertification effort at Dardanelle in 1987 con-
ducted in conjunction with a similar, successful decertification cam-
paign at Tyson’s Waldron, Arkansas plant. The manager of the
Waldron plant, David Massey, was promoted to the plant manager
position at Dardanelle in January 1990. The Respondent, through
Ken Sanders, began keeping close tabs on the Union’s membership
at Dardanelle by a reviewing dues-checkoff numbers on a regular
basis. Based on this review, Respondent felt support for the Union
was declining. Thus, Dollar’s fear that the 1-year contract term pro-
posed by Respondent was a prelude to a decertification effort ap-
pears well founded, and his description of Tyson’s attitude toward
the Union was shown to be accurate. Jaycox also testified that as
a result of the involved conversation, he agreed to look into how
much trouble would be involved in reversing the Union’s wage deci-
sion. Yet, there is no evidence that any such effort was made, and
the decertification effort began within 2 months of this meeting.
Therefore, even accepting Jaycox’ version of the conversation, the
clear inference to be drawn from Jaycox’s failure or refusal to deny
Dollar’s accusation that Tyson intended to decertify the Dardanelle
plant is that it did intend to pursue this course of action. I draw this
inference. I note that Jaycox was the Tyson headquarter’s official
who was in charge of the Company’s actions during the decertifica-
tion campaign. He lead a series of meetings at Dardanelle where su-
pervisors were advised about what to do in such a campaign.
8 Grinder also testified that he attended another such meeting about
6 weeks later. He testified that this meeting was chaired by Massey,
and that he came in at the end of the meeting.
there to organize it. If the people in Dardanelle want
to decertify, that’s up to them.’’ When we were talking
about decertifying, he told me that they didn’t feel like
they needed a union in their plants, that they would do
what’s right for the employees, and I made the state-
ment to him, ‘‘Yeah, you’ll do what you think is right
for the employees, not necessarily what they think is
right.’’
Jaycox denied any suggestion that he offered not to decer-
tify the Dardanelle plant if Dollar would not organize the
new Pine Bluff plant. On the other hand, he testified that
Dollar had commented that he knew Tyson was going to try
and decertify the Dardanelle plant because the Company had
only proposed a 1-year contract. Jaycox testified that he re-
plied, ‘‘Look Benny, if you were that worried about a decert,
why did you counter with a 13 month contract?’’ Whether
Jaycox actually offered not to decertify the Dardanelle facil-
ity in return for the Union’s not attempting to organize the
new Pine Bluff plant, or which man brought the subject of
decertification up first, Jaycox’s testimony makes it clear that
he did not deny the accusation leveled at him about Tyson’s
intent to decertify the Dardanelle facility.7
John Grinder was employed at the Dardanelle facility from
1978 until he resigned his employment in September 1991.
Until shortly before his resignation, he had been employed
as third shift supervisor in maintenance. At the time of his
resignation, he was employed as an hourly electrician, having
returned to the hourly position as a matter of his own choice.
He testified about two management meetings he attended in
1991. The first was around February 1991 and was held at
Tyson’s large training center located in Russellville, Arkan-
sas. According to Grinder, this was a quarterly supervisors’
meeting attended by all Dardanelle supervisors, Plant Man-
ager David Massey and Complex Personnel Manager Ken
Sanders, and was held pursuant to a written memo. He testi-
fied that at this meeting, David Massey spoke, as did Vickie
Hilliard, a former union business agent employed by Tyson.
A topic discussed was union decertification. Massey told the
supervisors that he would like to see the facility decertified
and told them what they could and could not do. Massey
mentioned he had been involved in a successful decertifica-
tion at Tyson’s Waldron, Arkansas plant. Massey jokingly
described himself as the ‘‘union buster.’’ Hilliard advised the
supervisors not to approach the employees on the decertifica-
tion issue, but to answer any questions put to them by em-
ployees. He also testified, after being shown an affidavit he
gave to the Union, that Jean Andrews was at this meeting
passing out I.D. badges.
He attended another meeting which was held at the plant
at Dardanelle. This meeting was led by Massey, Corporate
Personnel Manager Tim McCoy, and Regional Personnel
Manager Chuck Yarbrough. He placed the date of this meet-
ing in March. The topic of this meeting was also decertifica-
tion. Yarbrough told the attendees that as far as they were
concerned the meeting never occurred. At the meeting, what
had happened at Waldron was discussed. The supervisors
were told that they could not approach people, but that the
Company would have somebody to get names on the peti-
tion. They were told that if they found out anything about
a strong union supporter to report it to Massey. They were
supposed to isolate such supporters from other employees
and to scare off union stewards.8
Respondent put forth the testimony of a number of super-
visors to establish two points with respect to these meetings.
First, it contended that the Company did not have a quarterly
supervisors’ meeting at the Russellville Training Center in
February 1991, and that the last such quarterly meeting held
there took place in August 1990. The witnessess for Re-
spondent uniformly denied that at the quarterly meeting held
in August or the second meeting described by Grinder that
anyone called Massey a ‘‘union buster,’’ that anyone said the
Company had someone to get signatures, that union sup-
porters and stewards were to be isolated or run off, that the
meeting was not supposed to have happened, and that An-
drews was present at either meeting.
To decide who is telling the truth about these meetings,
I have looked at a number of factors, obviously including the
demeanor of the witnesses. On the matter of demeanor and
the somewhat related matter of motivation for giving testi-
mony, I would note that Grinder wins hands down. He was
a reluctant witness appearing pursuant to a subpoena, and did
not want ‘‘to stir up trouble.’’ That is understandable as his
wife is presently employed at the Dardanelle facility in a
very good job and his brother is also employed there. Grind-
er testified credibly that this fact was pointed out to him by
Ken Sanders in a phone conversation after his resignation, in
which he told Sanders that the Union wanted to talk with
him. He was not terminated by Tyson and left of his own
accord, and was employed elsewhere at the time of hearing.
Grinder’s wife was given a promotion shortly after the Sand-
558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 There are conflicts in the testimony of Brown, Sanders, and An-
drews with respect to affidavits given to the Board, and with each
others’ testimony, and with the testimony of other witnesses, both
those presented by the General Counsel as well as Respondent. At
points in this decision, I note some of these conflicts. Sanders, for
example, testified during the first week of the hearing that he was
the complex personnel manager, and again at the outset of his sec-
ond appearance on the stand made the same claim. Toward the end
of the case he testified that in fact he had been promoted or trans-
ferred out of this position in January 1992, prior to the hearing. Why
Sanders would want to hide the fact of his promotion is of course
speculative, but it is typical of the lack of candor exhibited by Re-
spondent’s primary witnesses in this case. Other testimony by these
three that is lacking in candor and/or is in conflict will be pointed
out, but there are too many examples to discuss them all. Based on
my finding that Sanders, Andrews, and Brown are not credible, I
specifically do not credit their denials of anything that another wit-
ness alleged them to have said or done, unless I specifically and af-
firmatively do so. Andrews was evasive in answering the questions
of the General Counsel with respect to the decertification campaign
and her role in it. He often had to refer her to affidavits given to
the Board during the investigation of this case to get a straight an-
swer. On several occasions her answer to a question would indicate
a lesser involvement in the campaign than her affidavits showed. Her
general denial of the numerous actions she is alleged in the com-
plaint to have taken did not have the ring of truth to them. More-
over, there is absolutely no indication that the many employee wit-
nesses who gave relatively detailed accounts of various statements
she made and actions she took were telling anything but the the
whole truth. Andrews did not retake the stand after these witnesses
testified and deny or explain their testimony. In my opinion, this
failure, as well her demeanor when testifying, indicates that she was
not telling the truth in her testimony. If Andrews was not acting as
an agent for Respondent in the decertification campaign, she should
have been willing to freely acknowledge her role in the campaign,
including statements she made to employees she solicited for signa-
tures on the petition. Her lack of candor is all the more suspect
when one realizes that this lady almost singlehandedly pushed
through a decertification petition with a zeal that is truly remarkable
for one with nothing to gain by the effort. During the course of the
campaign, she used all of her vacation and what passes for personal
days at Tyson to further the decertification cause. She was at the
plant engaged in decertification efforts for many hours beyond those
she was required to be there to work. One would expect someone
with this much commitment to be forthright about her activity, yet
she was anything but forthright, failing even to offer any motivation
for her activity in her testimony. She appeared to me to be someone
with something to hide, and the only thing she would have any rea-
son to hide is her agency status with Respondent.
10 No one had the exact date of this meeting, which Tyson wit-
nesses stated was the first of two such meetings, the second of
which took place in August, after Grinder had ceased being a super-
visor. Respondent argues that Grinder could not have attended an-
other such meeting for this reason. On the other hand, Massey held
several meetings with supervisors between these two meetings to up-
date them on the decertification effort. As Grinder testified that he
came in at the end of third meeting, and did not offer any details
about it, this third meeting he attended in part may well have been
one of the Massey update meetings.
ers’ call. Respondent’s witnesses testified that the promotion
occurred earlier, but the Company’s personnel records indi-
cate otherwise. Grinder quit in September and placed Sanders
phone call at about a month later. Grinder’s wife was pro-
moted on October 28.
Grinder appeared credible when he gave his testimony. On
the other hand, many of the supervisors that Respondent
brought to the hearing to refute Grinder’s testimony appeared
to me to be very apprehensive and concerned about giving
the wrong answer to questions. In addition, I also found the
testimony of key witnesses Andrews, Sanders, and Second
Shift Personnel Manager Arlene Brown, in particular, to be
far less than candid.9
On less subjective grounds, I also find the testimony of
Grinder supported by other factors. Grinder testified that the
quarterly meeting he attended was set by a written memo-
randum. No one denied this, and Respondent did not produce
any memorandum to demonstrate that a quarterly meeting
was not held in February. Massey had been promoted to the
position of plant manager at Dardanelle in January 1990,
from a similar position at Tyson’s Waldron, Arkansas plant,
which had decertified the Union while Massey was its plant
manager. The matter of the Waldron decertification was
common knowledge throughout the Company and, given
Tyson’s antiunion posture, it is very believable that he would
be referred to as the ‘‘union buster.’’ The position of Tyson
vis-a-vis a need for the Union as described by Grinder was
affirmed by company officials in their testimony. Even Re-
spondent’s witnesses put Vicki Hilliard at the August meet-
ing. She was hired by Tyson from her position as business
agent for the Dardanelle plant and was evidently let go after
the decertification petition was filed. Whether Jean Andrews
was at this meeting is not so clear. At the hearing, Grinder
had no present recollection of seeing her there. On the other
hand, one of her acknowledged duties is the preparation of
I.D. badges, the function he stated in his affidavit that she
was performing.
With respect to the second meeting described by Grinder,
Tyson officials agree that it took place, but date its occur-
rence in June rather than in March. I accept the June date.10
Respondent’s witnesses uniformly remember Bill Jaycox
speaking at this meeting about the mechanics and legalities
of the decertification process. They remember Tim McCoy
speaking about ‘‘TIPS,’’ an acronym for what supervisors
should not do, i.e., threaten, interrogate, promise, or survey
employees during the decertification campaign. It was also
admitted that Massey often closed supervisory meetings by
telling employees that the matters discussed therein were
confidential and should not be discussed with others. Thus,
at least some of the alleged statements Grinder described can
be confirmed or inferred from the testimony of the company
witnesses.
On the matter of whether the supervisors were told to iso-
late strong union supporters and report such supporters to
higher management, at least some of the subsequent actions
of Respondent also support Grinder’s description. Andrews
was credibly accused of breaking up a conversation between
a new employee and a union steward to keep the steward
from persuading the employee to withdraw her name from
the decertification petition. Employee Josiephine Nichols in-
terrupted Andrews soliciting signatures for the decertification
petition in the breakroom and engaged in an unsuccessful ar-
gument with Andrews to dissuade the employees from sign-
ing the petition. Shortly thereafter, she was called by her su-
pervisor who said that Plant Manager David Massey had
seen her and had expressed his concern. On the matter of
identifying union supporters, Respondent’s management, in-
cluding Massey, Brown, Sanders, and a host of lesser super-
visors, handbilled employees with antiunion messages, and
559TYSON FOODS
11 Tyson’s Dardanelle facility, as do many other poultry processing
plants, experiences a very large turnover in employees. According to
one company witness, this can be as much as 100 percent within a
year. The majority of new hires are hired on the second shift, with
first-shift vacancies being filled on a normal basis by seniority.
12 Sanders was in charge of directing the Company’s part of the
decertification effort at the Dardanelle facility. He participated in the
drafting of handbills and scheduled supervisors to distribute them.
The decertification petition was brought to him by Andrews before
it was filed, and thereafter additional signatures to the petition were
first given to him before filing with the Board. He coordinated the
meetings with Tyson’s Springdale, Arkansas headquarters officials
and the Dardanelle supervisors and first reported the success of the
petition drive to Springdale. I believe that his position with respect
to the decertification effort adds significance to the dinner with An-
drews, as does the fact that she brought the completed petition to
him first before filing it with the Board.
13 Respondent suggests that Payton and Brock were major partici-
pants in the decertification effort. This does not appear to be so
based on the evidence of record. Andrews was shown by the evi-
dence to be the driving force behind the effort and the other two
employees appear only to be in supporting roles. Morever, neither
Payton nor Brock testified in this proceeding to corroborate An-
drew’s testimony about the circumstances surrounding the initiation
of the decertification campaign or to describe their roles in the ef-
fort.
14 The promotion from custodian to trainer, in addition to being a
more pleasant job, carried with it an approximate 20-cent-an-hour
pay increase. Andrews’ affidavits given to the Board acknowledge
that the reasons she believes the unit employees would want to de-
certify do not apply to her. She wrote in the affidavit, however, that
she was upset about the Union removing two former business agents
from the plant, Lloyd Ringold and Vickie Hilliard, and that played
a role in her decision to want to decertify the Union. However, in
her testimony at the hearing, she denied that Vickie Hilliard was one
of the reasons she wanted to be involved in the effort. Similarly,
none of the numerous handbills that she prepared in the campaign
even mentions the removal of these business agents as a reason em-
ployees should support the decertification effort. At one point in her
testimony she offered that she became dissatisfied with the Union
after the 1990 negotiations which ended in October or November of
that year, and as a result quit the Union. However, she later admitted
that, in fact, she quit the Union when she took the nonunit custodial
job some months before negotiations began. She also testified that
at one point in the decertification campaign, she helped a union
steward pass out union handbills, certainly a strange move for some-
one who has a genuine personal reason for wanting the Union decer-
Continued
put themselves on at least two, perhaps more, occasions in
a position to observe and overhear the success of Andrews’
solicitation of employees for their signatures on the decerti-
fication petition.
With respect to Grinder’s allegation that management said
that it had someone to get signatures for it, the objective
facts are even more in Grinder’s favor. As noted in the over-
view portion of this decision, Andrews was promoted from
a custodial position to the trainer position on the second shift
in early 1991.11 She was selected for this position by Sand-
ers on the recommendation of Brown. Brown testified that
she recommended Andrews because she was ‘‘good with
people.’’ It was also Brown who informed Sanders on an un-
specified date in the same timeframe that Andrews wanted
to decertify the Union. It was in this same timeframe that
Sanders took Andrews to dinner at the Tyson Training Cen-
ter in the company of his spouse and her boyfriend. These
dinners at the training center are evidently significant events
and are by invitation only. One of Tyson’s top officials testi-
fied that hourly employees are not invited to attend such din-
ners. According to Sanders, he wanted to get better ac-
quainted with Andrews. On the other hand, he also testified
that he knew Andrews from his dealings with her when she
was a union steward, and there is also no showing why he
could not get to know her better in the plant, rather than
treating her to what appears to be an extraordinary treat.12
I obviously find the timing of Andrews’ statement of desire
to decertify the Union, her promotion from a custodial posi-
tion to one of trainer, and her being taken to dinner at the
training center to be suspicious. This is certainly not lessened
by the fact that Andrews’ personnel file does not reflect the
appointment to the trainer position, though it reflects her pre-
vious bargaining unit position and her hiring in the custodial
position. Sanders said that this was because the position was
temporary. However, he also testified that it had at some
point become permanent, yet no notation of the promotion is
to be found and the personnel file still shows Andrews in a
custodial position.
Andrews, in her direct testimony could not remember
when she became a trainer, until I suggested that it might
have been January 1991. Unlike her custodial position, which
she testified that she applied for after an opening was posted
in the plant, Andrews evidently did not apply for the trainer
position. She was selected for this job by Brown. Given the
vagueness of the testimony about why and when Andrews
became a trainer and the curious state of her personnel file,
I believe that she either became a trainer at Sanders’ or
Browns’ suggestion that she could have the position if she
led a decertification effort or alternatively, was given the po-
sition after she mentioned the employees’ desire to decertify
the Union in order to put her in a more effective position
to lead the effort. With respect to the matter of whether she
actually expressed to Brown a desire to decertify the Union
and the timing of this statement in relation to her promotion,
one must consider the timing of the events that ostensibly
gave impetus to the movement. These occurred in November
1990. Andrews testified that Ruth Payton, at the time chief
steward on Day-Shift, discussed her dissatisfaction with the
contract the Union had signed, as did unit employee Eva
Brock.13 She testified that the union stewards were not happy
with the contract and refused to sign it. Having heard the
discontent about the contract, she talked with some of the
employees to see if they wanted to decertify the Union and
having found that they did, she testified that she went to see
Brown in February 1991 and said that the employees wanted
to decertify the Union. There was no reason given for the de-
cision to attempt to decertify the Union taking some 3
months to crystalize when the disatisfaction with the wage
increase was immediate.
Moreover, Andrews herself did not give a reason for want-
ing to decertify the Union. She was not in the bargaining
unit and all of her working conditions were established by
Tyson without relationship to any bargaining relationship it
had with the Union. Her salary and benefits were in no way
tied to the union contract. Thus, she had no obvious benefit
to gain from the decertification process, unless one considers
her promotion to the trainer position to be quid pro quo for
her efforts on behalf of the decertification movement.14 Be-
560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tified, but understandable if her motivation was provided by Sanders
or others in Tyson’s management.
15 Respondent argues that if Respondent was controlling the decer-
tification effort, Andrews would not have made this abortive attempt
at filing and would have had a better understanding of the law in-
volved. Although this argument has some surface appeal, it is not
persuasive. Respondent directed Andrews to the Board and could
have presumed she would be given information about decertification
and have understood it. Even if one believes, as I do, that Respond-
ent put Andrews up to leading the decertification effort, there is ob-
viously a limit to how closely it could be involved with the petition
itself without risking discovery. Moreover, somewhere and somehow
along the way Andrews did become fairly expert on the law in-
volved as indicated by her answers to questions put to her by Re-
spondent’s counsel.
16 Respondent argues on brief that the fact that no supervisor is
alleged to have violated the Act during the campaign, except for the
group surveillance allegations, suggests that it was not controlling
the campaign. Given Andrews’ success at obtaining signatures, evi-
dently reported to Massey or Sanders, there was no reason for super-
visors to get involved in the campaign and a hands-off approach was
the safest approach.
cause she personally had nothing to gain from the decerti-
fication of the Union, and based on the credited testimony
of Dollar and Grinder, as well as all of the unusual sup-
porting facts set out above, I find that Andrews was put in
the trainer position to lead the decertification effort.
*ERR14*Andrews moved right ahead with the decertifica-
tion petition, attempting to file it in May, only to be told by
the Board that it was premature.15 Dollar testified that he had
a conversation at about this time with Jaycox. Dollar had
been told by a Dardanelle employee that Andrews was pass-
ing a decertification petition. Dollar called Jaycox and told
him that a company person was passing the petition. Jaycox
said it was his understanding that no supervisory person was
involved. Dollar reiterated his view that Andrews was a com-
pany person. Jaycox said he would look into the matter.
Later, Dollar received a call from Jaycox or someone who
worked for him saying that no supervisor was involved in the
decertification campaign. These conversations were not de-
nied by Jaycox.
Brown and Sanders both testified that after her initial
statement of desire to decertify the Union in early 1991, An-
drews never again discussed the decertification matter with
them until she brought in a completed petition in August.
Yet, Massey in one or more meetings with supervisors dur-
ing the summer of 1991 was able to give the supervisors an
‘‘update’’ and report that the gathering of signatures on the
petition was moving along toward an election. There is no
explanation given in the record as to how he would come by
this information, which was accurate. That is, other than the
obvious inference that Andrews was reporting her progress to
management. I draw that inference.16
Andrews was also shifted from the second shift to the
first-shift in late July for about 3 weeks. This was an unusual
move because new hires are normally hired for the second
shift and the first-shift vacancies are filled by seniority. The
Company’s stated reason for the move was that there was an
unusual demand for new employees on the first-shift. How-
ever, while on first-shift, Andrews only trained about 20 to
30 employees in the 3-week period. This seems far less than
she normally trained on second shift and, if one believes Ar-
lene Brown, these employees all were given just a 1-day
training program. Thus, she trained only about two employ-
ees a day. Of course, while on first-shift, she was able to and
did solicit signatures for her petition from day-shift employ-
ees in the breakroom on their breaks, thus vastly increasing
her potential for success in obtaining sufficient signatures.
On August 9, Andrews believed the petition had the signa-
tures of a majority of the unit employees and brought the pe-
tition to Sanders before filing it with the Board. Sanders
asked if he could make copies and did so. There is no reason
given why she brought the petition to management prior to
filing it. On August 13, Andrews went to the Regional Office
of the Board in the company of two other women and filed
the petition. The petition was signed by unit employee Eva
Brock. Andrews testified that she did not sign the petition
herself because of numerous adverse comments she was re-
ceiving because of her ‘‘company’’ position with Tyson. She
did not want to cause any problems.
As noted earlier, the petition contained 646 signatures out
of unit composed of 1081 employees. Of those employees
who signed the petition, 288, or 32 percent, were new hires
still within their 60-day probationary period. Sixty-one em-
ployees, or 7 percent, signed on their first day of employ-
ment and 139, or 16 percent, signed within their first week.
These figures suggest to me just how effective Andrews was
at soliciting signatures from her trainees. One would think
that the new hires would be the least interested in the alleged
cause of the decertification petition, that is, the decision by
the Union to take an across-the-board wage increase rather
than giving no raise to new hires and an additional nickel to
the more senior employees. The new hires actually benefited
by the Union’s choice. However, as will be shown later, An-
drews had an effective message for the new hires. She first
told them that they had no need for the Union in her orienta-
tion, and then, on the same day or very shortly thereafter,
told them that future raises and bonuses hinged on the decer-
tification of the Union. I have no doubt that they believed
her, as she was the company person who explained all the
company policies to the trainees.
Jaycox inadvertently testified that subsequent to the filing
of the decertification petition, he met Andrews in the com-
pany of some 10 other people (unknown to him) touring
Tyson’s corporate headquarters in Springdale. He did not
know why she was there, but tried to explain that Tyson em-
ployees in its ‘‘Quality Review, or Quality Circle’’ program
are regularly sent by the Company to tour the company head-
quarters. The Dardanelle plant did not have a quality review
program in place, and in any event, Andrews was not part
of any such program. Again, no one, including Andrews,
gave a reason for this special treatment, and the only obvious
inference to be drawn is that she was being rewarded for a
job well done in the decertification drive.
Similarly, there appear to be other rewards resulting from
the decertification effort. In January 1992, Sanders, Brown,
and another personnel manager at Dardanelle, Gene Eggman,
were promoted to higher positions.
For the reasons set forth above, I find that Andrews was
an actual agent of Respondent in the decertification effort,
having been put up to the effort and placed in a position to
be effective in the effort by Respondent and as will be dis-
cussed below, given every opportunity to successfully cir-
culate the decertification petition. Having done so, Respond-
ent is responsible for her actions, including the circulation of
561TYSON FOODS
17 long-time unit employee Peggy Garrison testified that she be-
lieved that Andrews was a representative of management because of
her trainer position, a job that had been performed by a supervisor
when Garrison was trained.
the petition, and the numerous unfair labor practices she
committed while going about her decertification activities.
Cypress Lawn Cemetery Assn., supra.
2. Was Andrews clothed with apparent authority to act
as Respondent’s agent with regard to the
decertification campaign?
Also, as I wrote at the outset of this discussion, I would
find that Respondent clothed Andrews with apparent author-
ity to act in its behalf and thus is equally responsible for her
actions even if it did not put her up to them. In Technodent
Corp., 294 NLRB 924 (1989), a case in which a rank-and-
file employee named Hamilton mounted a movement to oust
an incumbent union, the Board, reversing a contrary finding
by an administrative law judge, found he possessed agency
status within the meaning of the Act. Speaking to the consid-
erations which gave rise to that finding, the Board stated:
The judge, in deciding the issue of Hamilton’s agen-
cy, examined whether, under all the circumstances, the
employees would reasonably believe that Hamilton
spoke for and acted on behalf of company management.
See, e.g., as cited by the judge, Futuramik Industries,
279 NLRB 185 (1986); Community Cash Stores, 238
NLRB 265 (1978). Essentially, this test is one of deter-
mining whether the employee had apparent authority to
act for the employer in the matters in question. Thus,
the judge also cited Corrugated Partitions West, 275
NLRB 894, 900 (1985), in which the Board adopted a
judge’s holding that:
[T]he Board has long held that where an employer
places a rank-and-file employee in a position where
employees could reasonably believe that the em-
ployee spoke on behalf of management, the employer
has vested the employee with apparent authority to
act as the employer’s agent, and the employee’s ac-
tions are attributable to the employer. [Citations
omitted.]
See also Sherwood Diversified Services, 288 NLRB 341
(1988). Contrary to the judge, we find, for reasons set
forth below, that Hamilton had apparent authority to act
on behalf of management, with respect to the union
campaign. Additionally, we find, applying the doctrine
of ratification, that Hamilton acted as the Respondent’s
agent. See generally Service Employees Local 87 (West
Bay), 291 NLRB 82, 83 (1988), in which the Board
noted:
Section 2(13) of the Act provides that:
In determining whether any person is acting as an
‘‘agent’’ of another person so as to make such other
person responsible for his acts, the question of
whether the specific acts performed were actually au-
thorized or subsequently ratified shall not be control-
ling.
. . . .
Apparent authority is created through a manifesta-
tion by the principal to a third party that supplies a
reasonable basis for the latter to believe that the prin-
cipal has authorized the alleged agent to do the acts
in question. NLRB v. Donkin’s Inn, 532 F.2d 138,
141 (9th Cir. 1976); Alliance Rubber Co., 286 NLRB
645, 696 fn. 4 (1987). Thus, either the principal must
intend to cause the third person to believe that the
agent is authorized to act for him, or the principal
should realize that this conduct is likely to create
such belief. Restatement 2d, Agency Sec. 27 (1958,
Comment). Two conditions, therefore, must be satis-
fied before apparent authority is deemed created: (1)
there must be some manifestation by the principal to
a third party, and (2) the third party must believe
that the extent of the authority granted to the agent
encompasses the contemplated action. Id. at Sect 8.
On the other hand, ratification is defined as ‘‘the
affirmance by a person of a prior act that did not
bind him which was done or professedly done on his
account, whereby the act, as to some or all persons,
is given effect as if originally authorized by him.’’
Id. at Sec. 82. Section 83 defines ‘‘affirmance’’ as
either (a) a manifestation of an election by one on
whose account an unauthorized act has been done to
treat the act as authorized, or (b) conduct by him jus-
tifiable only if there were such an election. Finally,
Section 94 states that ‘‘[a]n affirmance of an unau-
thorized transaction can be inferred from a failure to
repudiate it.’’
Following its recitation of the test it used to determine the
question of agency status of Hamilton, the Board looked at
a variety of Hamilton’s actions and those of management to
determine that Hamilton was indeed an agent. Carefully
looking at the credible evidence surrounding Andrews’ ac-
tions and related actions of management leads to a similar
conclusion.
The trainer position is fairly new at Dardanelle, having
been created after the arrival of Sanders about 3 years prior
to the hearing. Prior to the creation of this position, training
was accomplished by line supervisors. In the sanitation de-
partment, training is still accomplished by the supervisor,
using a modified version of the program that Andrews
uses.17 Andrews received no training herself before assuming
the trainer position from her prior custodial position.
As a trainer, she enjoys all of the benefits accorded super-
visors, except profit sharing and some life insurance benefits.
She, unlike bargaining unit employees, can take vacation 1
day at a time rather than a week at a time. She enjoys sub-
stantially higher pay than most unit employees and a higher
shift differential. Andrews enters the plant by an entrance
used by management and other nonunit employees and parks
in a lot used by these employees.
All employees at Tyson plants wear uniforms or smocks
which indicate the employee’s position by color. All levels
of supervision wear khaki uniforms, for example. Andrews’
smock is dark blue, the same color as those given trainees,
whom she calls ‘‘smurfs.’’ She is called ‘‘Mama Smurf.’’ No
one other than trainers and trainees wear this color. The ma-
562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 Former employee Ronnie Garner believed that Andrews was
some kind of supervisor because she wore a different color smock,
among other reasons.
19 Andrews testified that in the summer of 1991, she conducted a
2-week program normally, with some periods of 1-day sessions
caused by unusual demand for employees. Sanders testified that the
program was in the process of being cut from a 2-week to a 2-week
program during this period. Brown testified that during this summer,
only the 1-day training session was held, even though her affidavit
given to the Board mentions only the 2-week program and does not
even note the existence of a 1-day program.
20 See Propellex Corp., 254 NLRB 839 (1981); Technodent Corp.,
supra; Benjamin Coal Co., 294 NLRB 572 (1989); Corrugated Par-
titions West, 275 NLRB 894 (1985).
21 Andrews was evidently rarely without her clipboard, on which
she carried various forms for employees to sign. She also carried her
decertification petition on this clipboard, and there is credible evi-
dence to the effect she would have employees sign work forms on
the clipboard, then solicit their signatures on the petition, which was
placed under the forms.
jority of employees who are involved in production wear
light blue smocks.18
Most new employees are placed on the second shift, with
about 8 to 22 employees being hired each week. In the pe-
riod from May to August 1991, when the decertification
drive was most active, Andrews was transferred for an ap-
proximate 3-week period in late July and early August to
first-shift. For the summer months of 1991, there is a conflict
in the testimony with regard to the length of the training pro-
gram she conducted. The training program was designed in
an attempt to retain new employees and cut down on the em-
ployee turnover that plagues the plant. It was originally given
in a 3-week format, which was cut to 2 weeks, and then to
1 week. At times when demand for new employees is exces-
sive, the program is accomplished in 1 day.19 I believe the
most credible evidence suggests that the program was being
conducted with a 2-week duration during the summer, with
some periods of 1-day orientation taking place.
a. Andrews’ duties as trainer
When new employees are hired, they first go to personnel
and then report to Andrews in the training room, located in
the personnel section of the office. Andrews is introduced to
the new hires as their trainer by Arlene Brown, who then
usually leaves and Andrews begins the program. In the full
program, training time was split between classroom time and
on-the-job training on the production line. In the classroom
portion of the training, some top plant officials would partici-
pate in putting on portions of the program. These included
Sanders and the plant’s safety manager. Andrews’ duties, as
stipulated, included working with trainees on the line, show-
ing them how to make cuts and perform other aspects of
their job; instructing employees on job-related exercises; giv-
ing trainees tours of the plant, including management offices,
production areas, breakrooms, locker room, restrooms and
exits; showing employees how to use the timeclock and their
location; setting up and operating a VCR to show videos on
company information in the areas of safety, hazards, commu-
nications, and policies and procedures; making I.D. badges
for new hires, and replacement badges lost by older employ-
ees; instructing employees on how to obtain supplies, and
demonstrating how to wear equipment, gloves, sleeves; and,
reading a 36-page orientation outline to the trainees.
This outline contains, inter alia, the Company’s work
rules, employment policies, wages, benefits, and other terms
and conditions of employment, including grounds for dis-
cipline or discharge, and letters to new hires signed by Com-
pany President Don Tyson and Plant Manager David Massey.
The trainees had to sign forms indicating they had received
training from Andrews in various areas such as safety, com-
pany policy, the lockout policy, hearing protection and haz-
ard communication. After the trainees have signed such
forms, Andrews gives them to a clerk in personnel. Andrews
testified that she occasionally goes out on the line to get a
trainee to sign forms they did not sign in the training class.
Employee Hilda Cunningham believes that Andrews speaks
for management because she gave Cunningham her orienta-
tion, telling new hires to ‘‘read this,’’ now ‘‘sign it’’ and
‘‘let us know you understand it,’’ and ‘‘give it back to Me.’’
She believed Andrews was giving orders. Employee James
Poole views Andrews as speaking for management because
of her position as a trainer. Former employee Ronnie Garner
believed that Andrews was some kind of supervisor because
she never worked on the production line, took him to his job
on his first day of employment, and talked with Brown in
the personnel office.
After a trainee goes on the production line, she checks
with them and their supervisor about their job performance.
She testified, however, that she cannot do anything as a re-
sult of these checks except give advice to the trainee on how
to perform the involved job. The limitations on her authority
are not apparent to the trainees, however. Former employee
Ronnie Garner, who was trained by Andrews, considered her
part of management because she would come on the produc-
tion line and give orders to trainees. Andrews herself admit-
ted that employees ask her to help them transfer from one
job to another, apparently in the belief that she can accom-
plish the transfer.20
Andrews also advises trainees that there is a union in the
plant, and it is the employees’ prerogative whether they want
to join or not. Employee Melissa Smith credibly testified that
during her orientation, Andrews told her that there was a
union at the plant, that she could join it or not at her choice,
but that the Union did not do anything for the employees and
the Company could do for the employees what the Union
could. Another unit employee, James Poole, credibly testified
that for personal reasons he went to personnel to see how to
resign from the Union. Arlene Brown started to answer him,
but Andrews stepped in and told him what he had to do.
For a period of time, she took company insurance forms
around to employees on the production line and in the
breakroom to see if they wanted the insurance. She testified
that she got into trouble with Arlene Brown for doing this.
Supposedly this was the function of another employee.
Strangely, Andrews did this for some considerable period of
time in the summer of 1991 before she got ‘‘chewed out’’
for it. There is no notice of the chewing out in her personnel
file. These insurance forms were carried by her on her clip-
board.21 Brown testified that she had Andrews help in insur-
ance putting names and social security numbers on insurance
cards to be passed out in the plant. Because of an insurance
change in April 1991, the entire plant had to be resigned for
insurance. Brown testified that Andrews had no interaction
with employees with respect to insurance. Upon my asking
563TYSON FOODS
22 See Benjamin Coal Co., supra; Enterprise Aggregates Corp.,
271 NLRB 978 (1984).
23 The company breakroom is a large room capable of seating
about 300 people. It is equipped with multiple television sets and hot
and cold food service. It is used by all employees, supervisors, and
management for breaks.
24 See Technodent, supra; Propellex, supra.
25 See Technodent, supra.
why a number of witnesses had testified that she carried in-
surance forms around on her clipboard, Brown reluctantly
admitted that the Company’s insurance counselor had asked
Andrews to get beneficiaries names from the employees on
second shift. Brown testified that she told Andrews to stop
after she learned that she was getting this information. On
the third shift, the superintendent was getting this informa-
tion from employees working on that shift.22
With respect to timecards, she regularly pulls trainees
timecards to see that they are using them correctly. If she
finds a mistake on one of their timecards, she corrects it her-
self. A supervisor must initial this correction. She simply
turns the card in a fashion that will catch the attention of the
supervisor, who approves her correction when the card is no-
ticed. Rank-and-file employees are not allowed to handle
anyone else’s timecard in any manner. To do so is a dis-
chargeable offense. Employee James Poole believed Andrews
was a supervisor, inter alia, because she signs employee
timecards and has instructed new hires that they could go
home.
Union Steward Merle Pipes testified that Andrews has
used a company computer to give him an ‘‘occurrence,’’ a
term utilized for recording incidences of employee absences
or tardiness. Andrews denied that she has ever given occur-
rences to employees and denies any knowledge of how to
use the computer on which such occurrences are given. I be-
lieve that this job is not one assigned to her as the Company
has a clerk for this purpose. Andrews however was assigned
to do many things which are not really within the job of a
trainer, and the use of the computer to give occurrences
seemed to me to be extremely easy. On this minor point, I
am not sure who is right, though based on an overall credi-
bility evaluation, I would believe Pipes over Andrews with
respect to almost anything. Pipes did correctly testify that he
had observed Andrews sorting payroll checks and pulling
employee timecards from the timecard rack, both things that
Andrews admits having done. In any event, I do not believe
whether Andrews did nor did not give an isolated occurrence
bears significantly on the question of her agency status.
Andrews testified that for the first 2 weeks she was a
trainer, she passed out employee paychecks, but was subse-
quently told not to do this. Brown denied any knowledge of
this activity though it obviously happened and happened at
a time when one would expect Brown, Andrews’ supervisor,
to be closely monitering her activities.
b. Andrews’ solicitation of signatures and handbilling
In the latter part of May 1991, Andrews began to circulate
her decertification petition with one of the primary areas for
circulation being the breakroom.23 She carried the petition on
her clipboard, on which she also carried forms and other
items related to work. She testified that she circulated the pe-
tition during breaks and before and after work, but denied
doing so on worktime. She admitted that she used the
breakroom to do some of the paperwork her job required,
and went there at other times on worktime, while her training
class was being addressed by another company representative
on a subject such as quality control. She also used the
breakroom to get insurance forms signed when she was per-
forming that task. She also gave talks to the trainees in the
breakroom and tried to take breaks with trainees. Thus, she
could be in the breakroom at almost anytime, either on break
or performing paperwork, or soliciting signatures on com-
pany forms, so no one could never really tell whether she
was on breaktime or worktime unless they asked.
A number of witnesses testified that they were solicited for
their signatures on the decertification petition at various
times in the breakroom. According to the credible testimony,
during the summer of 1991, Andrews on one occasion or an-
other solicited signatures in the breakroom at almost any
hour of the day or night. Employee Melissa Smith believed
that Andrews had management’s approval to solicit signa-
tures because she could be in the breakroom at any time and
had access to the plant as well. Employee Nora Duvall was
solicited for her signature in her work area just prior to be-
ginning work. Andrews also brought antiunion handbills into
the breakroom and put them on the tables. Employee Hilda
Cunningham observed Andrews, in July, coming to the
breakroom with Brown. Andrews was carrying an armful of
handbills which Andrews placed on the break tables. Brown
denies this, yet her counterpart on the first-shift, Plant Per-
sonnel Manager Gene Eggman admits seeing Andrews in the
hall leading to the breakroom with an armload of handbills.24
According to Union Steward Mearl Pipes, he saw Andrews
soliciting signatures for her decertification petition in the
breakroom during the summer of 1991. On these occasions,
there were company supervisors in the breakroom, including
Arlene Brown. He complained about this activity to Brown
who told him that Andrews was a bargaining unit employee
assigned to production line 30. Pipes asked why a production
employee was in the breakroom talking to people and Brown
said it was in connection with Andrews’ training duties.
Pipes replied that Andrews could not be both an hourly em-
ployee and a trainer at the same time, and Brown said she
did not want to continue the conversation. Brown denied this
conversation, a denial which I do not credit. Brown also tes-
tified that Andrews did work on the line when not training.
I find that she is incorrect in this belief as Andrews testified
that she had done no line work since she became a trainer,
apart from showing new hires how to do their work. Brown
also testified that supervisors never work on the line, but at
least one supervisor testified that he worked on the line
whenever an employee scheduled to work was not present
because of illness or other reason. Either Brown was not giv-
ing truthful testimony or she is not in command of the facts.
In any event, I credit Pipes testimony that he complained to
Brown about Andrews’ solicitation efforts. His complaint is
consistent with the one voiced by Dollar to Jaycox at about
the same time, and is consistent with Andrews’ admission
that she received adverse comments from employees about
her decertification efforts because she was a ‘‘company’’
person.25
In or about May, Pipes saw Andrews distributing an
antiunion handbill in the breakroom and pointed this out to
564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Second-Shift Superintendent Mike Casto who was also in the
breakroom. Pipes asked Casto if Andrews’ activities were il-
legal as she was part of management. Casto said they were
not supposed to do anything like that and would check on
it. Casto approached Andrews and they went together to the
personnel office. Shortly thereafter, Andrews returned to the
breakroom and began picking up the handbills. However,
Pipes thereafter observed her passing out handbills in the
breakroom on several occasions. Casto essentially confirmed
this testimony.
In addition to Andrews’ solicitation and handbilling in the
breakroom, she also performed these functions at Plant Gate
B. Gate B is adjacent to the unit employees’ parking lot and
is used by them to enter and leave the plant. Andrews testi-
fied that she solicited signatures and handbilled at Gate B on
several occasions in June, July, and August 1991. An affi-
davit given to the Board in August 1991 indicates she did
this two to three times a week. At the hearing, consistent
with her reluctance to admit anything that might be the
slightest bit harmful, she changed this to indicate that she so-
licited at Gate B only three to five times during the entire
summer. Upon being confronted with her affidavit, as well
as other evidence indicating a greater frequency, she agreed
with the frequency of two to three times a week.
On at least two occasions when she was soliciting signa-
tures, there were supervisors present, including her imme-
diate supervisor, Arlene Brown, standing nearby, about 10 to
12 feet away. Brown and other supervisors were distributing
antiunion handbills. She could see the supervisors from
where she was standing. She testified that she approached
Brown on one occasion, but was rebuffed, with Brown tell-
ing her, ‘‘Get away from me.’’ After first denying this,
Brown later admitted this meeting. As will be discussed in
more detail later, I find that the supervisory personnel were
close enough to Andrews to both see who Andrews solicited
and overhear conversations between Andrews and other em-
ployees.
During the summer of 1991, she used her vacation 1 day
at a time to solicit signatures for the petition, and addition-
ally, used several occurrence days for the same purpose,
coming close to ‘‘occurencing out.’’ At five occurrences, an
employee gets a suspension and is terminated for six occur-
rences. She first testified that occurrences were like personal
days and could be used for any reason. However upon being
shown the company handbook, she agreed that occurrences
were to cover illness, and she then testified that she told
management she was sick on the days she took occurrences.
Of course, on those days she was at the plant, obviously not
sick, soliciting signatures. Occurrences are reviewed by Ar-
lene Brown and she did not question Andrews use of occur-
rences for the purpose of soliciting signatures. Brown contra-
dicted Andrews and testified that occurrences need not be
taken just for medical reasons. If Andrews is telling the truth
when she says she reported illness as the reason for her oc-
currences, then management knew she was lying as they ob-
served her handbilling and soliciting signatures on at least
some of these occasions. Logically, she should have been
disciplined for lying. For that matter, if Respondent did not
condone and endorse her decertification efforts, it should
have at least said something about the use of occurrences to
participate in decertification efforts as she was not doing
what she presumably was being paid to do, train employees,
while she was taking an occurrence.
Twelve handbills passed out at the plant were identified as
ones prepared by and passed out by Andrews. These were
passed out on 10 or 11 separate occasions. Andrews is also
accused of passing out handbills prepared by Respondent. I
do not believe that the evidence adduced confirms this. On
the other hand, the message contained in some of the com-
pany-prepared handbills parallels that contained in handbills
prepared by Andrews. As the message is the same on both,
it would make little practical difference which she passed
out. The Company’s so-called ‘‘Wooden Nickel’’ handbill
reads, in part:
The Union handbills go something like this:
(1) ‘‘The Company is trying to get out of good faith
negotiations.’’
The question is, ‘‘do you have any faith in the group
who decided to give you a wooden nickel last year in-
stead of the real nickel the company wanted to give
you?’’
(2) The Union says it will demand that Tyson work-
ers at the Dardanelle plant receive the same bonus that
is paid to all other Tyson workers. Maybe this is the
most important statement of them all. Isn’t it nice that
the union is going to demand what 95% of Tyson Team
members have received over the years without union
harassment or having $4.26 a week taken out of their
checks? Also, they don’t have to wait to see if the
Union can turn their ‘‘demands’’ into more than hot air.
(3) The Union said that there is no provision in the
contract for a wage increase and bonus. This is true and
as long as the Union represents you, we will have to
negotiate with them. The question is, ‘‘do you want
Benny Dollar to negotiate for you, or stick with the
other 95% of Tyson Foods?’’
(4) A nickel is a nickel. Tyson wanted to give it to
the people with more seniority. Do they really care
about you or just your money?
An Andrews’ handbill of the same vintage states:
In reference to the last handbill passed out by the
Union, this only proves the point that the Union is only
good at stirring up trouble and name-calling.
The people at the Dardanelle plant who are uniting
together as a group to decertify the Union are interested
in only one thing ‘‘Facts.’’ We have not nor do we in-
tend to stoop to the low point of name-calling or de-
grading any union steward or union representative by
name. They have the right to their opinions and we
have the right to ours.
The people here at Dardanelle have the sole right to
either keep this Union or decertify them. This does not
give the union the right to degrade any of us interested
in the option of decertification.
Again, we are asking your full support in our efforts
by signing the petition.
In no way do we have anything against Unions, but
we do have a problem with the Local 425 who has
failed to represent all of us in our best interest. They
have failed to negotiate a bonus, and this plant received
a lesser pay raise than other Tyson Plants.
565TYSON FOODS
26 See Technodent, supra.
27 In a following section of this decision, I find that she often in-
duced employees to sign the petition with promises that by doing so
they would receive wage increases and bonuses, or alternatively,
threatened them that if they did not decertify the Union, there would
be no wage increases or bonuses. It appears that Andrews knew
what she was talking about. Concurrently with Respondent’s with-
drawal of recognition of the Union based on the decertification peti-
tion, it gave wage increases and increased shift differentials to the
Dardanelle unit employees, and implemented a performance bonus.
Though ratification is not necessary to a finding of agency status,
it appears to me that Respondent did, in fact, ratify Andrew’s unlaw-
ful promises made to prospective signers of the decertification peti-
tion.
28 I believe that Andrews was in fact a conduit for management
with respect to the trainees, and far more than a mere ‘‘translater’’
as suggested by Respondent. Most of her training was done without
the presence of any other management official and therefore what
she told the trainees would have at least the appearance of some
management authority. In this regard, she appears to me to be more
like a leadperson, especially when she followed her classroom train-
ing with her ‘‘hands on’’ training on the production line.
This may not seem important to a lot of you, but
multiply five cents per hour over the next several years
of your employment and look at the amount of money
you lost. As for a bonus, most of us live from week
to week trying to pay our bills. During the thanksgiving
and Christmas holidays an extra pay check comes in
handy in the way of a bonus.
One other thing—the two wooden head puppets
mentioned in the Union handbill used to be puppets for
the union whose only interest was membership and
$4.26 per week to make sure their pockets were full.
They certainly showed last year that they were not in-
terested in our pockets by turning down an extra nickel
raise. They could have at least tried to give us a wood-
en nickel!
The Company, by circulating handbills containing the
same message as those circulated by Andrews, would in my
opinion certainly reinforce a view that Andrews was speak-
ing for the Company.26
Before she submitted her decertification petition, she took
it to Ken Sanders who made copies of it.
c. Conclusions with respect to the agency status
of Andrews
Respondent put Andrews in a position where she was the
first person to speak for management to new hires. Inter alia,
she conveyed to them the Company’s policies, philosophy
and procedures, including the disciplinary scheme. She per-
formed these duties in concert with persons obviously in top
management at the plant, Arlene Brown and Ken Sanders.
She was the first person to show the trainees how to perform
their jobs, a function that then shifted directly to a super-
visor. More senior employees realized that her job had pre-
viously been performed by supervisors and could easily draw
the assumption that her position was supervisory in nature.
Beginning in orientation, the new hires were told there was
a union that they could join or not, but that the Union could
do nothing more for them than could the Company. She fol-
lowed this up almost immediately with a pitch to sign her
decertification petition, stressing that future wage increases
and bonuses were tied to getting rid of the Union.27 Again,
if the new employees believed, as they were supposed to,
that Andrews was accurately relating company policy in the
training sessions, why would they not logically believe that
she was not accurately relating company policy when she
made her promises and threats in her solicitation efforts.28
Clearly management expected the new hires to listen to
and heed what Andrews told them in the orientation. Indeed,
they were required to sign forms indicating that they had lis-
tened to and understood what she told them about company
policy and procedures. I find it difficult to understand how
these same employees are to know that when Andrews urges
them to sign a petition to decertify the Union, she is no
longer speaking for management. As can be seen from the
facts set forth above, many employees did, in fact, believe
she spoke for management. This belief had to be reinforced
by Andrews’ seeming ability to solicit signatures at almost
any time and any place in the plant. As Andrews herself ad-
mitted, her breaks could be at almost anytime, and thus,
other employees with more rigid break schedules would con-
clude that she was soliciting on her worktime when they
were solicited or observed her soliciting at different times of
the day or night. She also had employees sign her petition
on her clipboard, where she kept and had employees sign
work-related forms, further reinforcing a belief that she was
soliciting signatures for the petition as part of her work du-
ties.
One should remember that Andrews did not sign her de-
certification petition because she did not want to cause prob-
lems, problems raised by the fact that she had been accused
of being ‘‘company’’ by unit employees since the beginning
of the decertification campaign. Her tireless efforts on behalf
of the decertification effort could not have been comprehen-
sible to unit employees, whether new hires or senior employ-
ees, unless they believed that she was speaking for the Com-
pany. She had nothing personally to gain from the effort. She
was not in the unit, made more money than unit employees,
had benefits closer to those of management than the unit em-
ployees, and was not in any way affected by the collective-
bargaining agreement. Any benefit from the decertification
effort would only inure to Respondent, not Andrews.
Management did nothing to dispel the notion that Andrews
was speaking for it. Although Dollar and Pipes both com-
plained to Tyson management about Andrews’ involvement
in the campaign, she was never stopped. Her solicitation ef-
forts in the plant, and especially the breakroom, were evi-
dently obvious and could be observed by management, in-
cluding Brown, who regularly used the breakroom. More-
over, on several occasions, management handbilled in close
proximity to Andrews while she handbilled and solicited sig-
natures at company Gate B. As noted above, the message
conveyed by Andrews’ handbills and those of the Company
were essentially the same. Though Andrews and the com-
pany personnel may have been separated by several feet on
these occasions, the fact that she was regularly seen in the
company of her boss, Arlene Brown, during working hours
would seem to me to convey the message that they were
working in tandem on the decertification petition just as they
did in the training program. Brown was present on many of
the occasions that management handbilled at the company
gates. Company handbills and Andrews’ handbills were also
placed in the breakroom. The testimony of several witnesses
566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
indicates that the employees believed that Andrews was dis-
tributing both. Though this belief may not have been accu-
rate, it is certainly easy to understand how they would have
this belief. Andrews did enter the breakroom with handbills
from a hallway that led to, among other places, the personnel
office.
I find that even if Respondent were not found to have de-
liberately induced and controlled Andrews’ decertification
activities, which I believe it did, Respondent gave Andrews
apparent authority to convey its messages and policies to em-
ployees. When that message became ‘‘decertify the Union,’’
it did nothing to dispel the clear implication that this was a
management message. Accordingly, I find that it is respon-
sible for her decertification activities, including the unfair
labor practices she committed, and thus the decertification
petition is tainted and may not be relied upon by Respondent
to prove loss of majority status by the Union. Sears Roebuck
de Puerto Rico, Inc., 284 NLRB 258 (1987); Community
Cash Stores, 238 NLRB 265 (1978); Charles G. Watts, Inc.,
300 NLRB 914 (1990); Hohn Industries, 283 NLRB 71
(1987); Propellex, supra; Technodent, supra.
C. Did Respondent, through Andrews, violate Section
8(a)(1) of the Act, as alleged in the complaint?
1. Did Respondent, acting through Jean Andrews,
threaten employees with the loss of wage increases and
bonuses if the Union continued to represent employees,
and alternatively, promise wage increases and bonuses
if the Union were decertified?
Former employee Greg Jones, who was trained by An-
drews, testified that Andrews solicited his signature on four
or five occasions, the first of which was about a week after
he started work. In her solicitation, she asked that he sign
the petition so he could get raises and bonuses. She indicated
that if the Union was not decertified, there would be no
raises or bonuses.
Employee Melissa Smith testified that about a week after
starting work, Andrews asked her to sign the petition, ex-
plaining that in the past year, while the other Tyson plants
got raises and and bonuses, the Dardanelle plant did not be-
cause of the union contract. Smith signed the petition to get
such raises and bonuses.
Employee Nora Duvall was solicited in late June or early
July by Andrews. She is a weigher and was solicited in her
work area before beginning work. Andrews said the employ-
ees would not get a bonus unless the Union went out. Duvall
did not sign.
Third shift employee Kathryn Ann Coats had a conversa-
tion with Andrews in the breakroom in June, wherein An-
drews asked her to sign the decertification petition. Coats
asked why she should sign and Andrews said she needed
enough signatures to get rid of the Union. Andrews added
that if she was unsuccessful, the employees would not get
their bonuses. Andrews said, ‘‘if we did not get rid of the
Union, that we would not get our bonuses.’’ She then asked
Coats, ‘‘Don’t you want to get your bonus.’’ Coats testified
that she did receive a bonus in the fall of 1991, after the de-
certification petition was filed.
Employee Thomas Martin was solicited by Andrews in
late May, and she told him that employees in Tyson’s Rus-
sellville plant make 5 cents an hour more than employees at
Dardanelle and they have a company picnic where
Dardanelle employees do not.
Former employee Ronnie Garner testified that Andrews
trained him. About 3 days after he started work, Andrews ap-
proached him in the breakroom before his shift and asked
him to sign the decertification petition. She told him that if
he did, he would get bonuses and raises. On one occasion
Andrews chided him for making a paper airplane out of a
company handbill, telling him he was wasting company
money.
Hilda Cunningham was employed at the Tyson Dardanelle
plant from March 11 until December 1991, when she quit for
personal reasons. Cunningham was solicited by Andrews to
sign the decertification petition in the breakroom in May
1991. She was sitting with fellow employee Mike Hastings.
Andrews told them that if they signed the petition, they
would get a 15 to 25-percent raise, noting that all the plants
that had decertified had gotten such a raise. Cunningham
signed the petition which was on Andrews clipboard, under-
neath some other papers.
Sanitation department employee Rodney Ballain testified
that Andrews approached him in the breakroom after the end
of his shift, and asked him to sign the petition. He also ob-
served her soliciting signatures from new hires, telling them
they would get raises if the Union was decertified.
Employee Kathy Holt was solicited by Andrews in the
breakroom in August prior to beginning her shift. In response
to Holt’s question as to what she would get out of it, An-
drews replied, raises and a bigger bonus.
Larry Ford is a production worker at Dardanelle and works
on the second shift. He had been employed there about 16
months at the time of the hearing. Ford’s wife was employed
by Tyson, but lost her job there in June 1991. In September,
Andrews spoke to him near the nurses station and asked him
when his wife was coming back to work. He said they were
working on it and thought it would be soon. The next day
he again spoke with Andrews, who said, ‘‘If you will see
about getting out of the Union, I’ll see about getting Laurie
(his wife) back on, we’ll see about getting Laurie back on.’’
During the summer of 1991, Ford spoke with Andrews in
the breakroom about three or four times while he was on
break. On these occasions, Andrews was trying to induce
him to sign a decertification petition and said he would get
a 25-cent pay increase if the Union went out.
In the summer, long-time unit employee Josiephine Nich-
ols heard Andrews ask a group of employees in the
breakroom to sign the decertification petition so they could
get a raise and bonus. Nichols interceded and told the em-
ployees they would be signing their lives away. However,
Andrews convinced the employees and the employees signed
the petition, saying they needed the money.
I credit the testimony of these employees and former em-
ployees over the general denial of Andrews. Not only did I
not find Andrews credible, the message that future wage in-
creases and bonuses would result from decertification was
clearly conveyed in almost all of the handbills she prepared.
Although the complaint treats the Andrews’ threats of no in-
creases if the Union is not decertified and promises of in-
creases if it is decertified as separate violations, I view them
as but opposite sides of the same coin. Her message, and as
an agent of Respondent, Respondent’s message is clear, fu-
ture wage increases and bonuses are tied to the decertifica-
567TYSON FOODS
29 The testimony of a number of witnesses would suggest that
there were more than two occasions when Andrews was soliciting
signatures or handbilling when supervisors were present. It is admit-
ted that it occurred on at least two occasions. There is no way to
be absolutely certain how many times this situation existed. How-
ever, even if there were only two such occurrences, I believe that
would have been sufficient to have support a finding of an unfair
labor practice having been committed. The time at which the joint
handbilling efforts took place was when the bulk of the unit employ-
ees entered or left the plant, and was at the location they used for
this purpose.
30 On the matter of whether Andrew’s handbilling was coordinated
with that of management, or vice versa, there is no way of knowing
one way or the other. Sanders coordinated the management
handbilling and Andrews ostensibly coordinated her own. She was
in contact with Sanders on a daily basis as part of her job and what
he told her would be known only to them.
31 As might be expected, Respondent’s witnesses were reluctant to
admit that they saw or paid any attention to Andrews. They pro-
fessed difficulty in hearing conversations between Andrews and
Continued
tion effort. Andrews’, and thus Respondent’s, actions in this
regard would clearly tend to coerce, restrain, and interfere
with an employee’s choice of whether he or she wants rep-
resentation or not. Accordingly, such action violates Section
8(a)(1). NLRB v. Exchange Parts Co., 375 U.S. 405 (1964);
Process Supply Inc., supra.
2. Did Respondent, through Andrews, unlawfully
interfere with an employee who was attempting to
discuss union business with a shop steward?
Employee Melissa Smith had a conversation with Hilda
Cunningham, a fellow employee, in the breakroom. Smith
asked Cunningham to tell her about the Union because she
was interested in learning more about it. Cunningham sug-
gested she speak to John Foster, a union steward, who was
nearby. She and Cunningham went to where he was sitting
and began talking. Foster began speaking to her about the
Union in an attempt to persuade her to withdraw her name
from the decertification petition. Andrews approached the
three employees and sat down near Cunningham.
Cunningham testified that Andrews cupped her hand and
whispered to Cunningham that ‘‘I have to sit down to keep
John from talking to her.’’ The tactic worked as Foster and
Smith ceased talking and left.
If this activity by Andrews was shown to be a constant or
even frequent practice, I would find it violated the Act. See
Hawthorne Co., 166 NLRB 251 (1967). However, this was
the only instance of this type recorded in this proceeding.
Not only was it an isolated instance, one of persons involved
was a long-time union steward who should not have been in-
timidated by Andrews. Under the circumstances, I do not
find that Respondent violated the Act by this conduct of An-
drews.
3. Did Respondent, through Andrews, solicit employees
to bypass the Union and bring their problems directly
to company officials?
The General Counsel relies on two factual elements to
support this complaint allegation. First is two lines in the
Employer’s Pledge contained in the outline which Andrews
reads to trainees. These lines read: ‘‘With Friendliness, we
will meet with any Tyson person to discuss any problems in
conditions, hours, policies, or practices.’’ The next two lines
read: ‘‘Any grievance will be fairly and promptly settled by
means of our grievance procedure.’’
The second factual element is found in the testimony of
employee Melissa Smith. As noted earlier, she testified that
during her orientation, Andrews told her group of trainees
that there was a Union at the plant, that she could join it or
not at her choice, but that the Union did not do anything for
the employees and the Company could do for the employees
what the Union can.
I feel certain that the language of the Employer’s pledge
is the same at all Tyson facilities, union or nonunion. By
itself, I do not believe that it is an open invitation to bypass
the Union and bring grievances to management directly. The
next sentence in a sense refutes the first as it references the
grievance procedure which involves the Union. However, the
statement made to the group of new employees by Andrews
is a clear attempt by her, and as its agent, by Respondent,
to discourage membership in the Union. Given as it was in
the official orientation of the new employees, it clearly can-
not be said to be just an offhand opinion of a nonmanage-
ment employee. Thus I do find that the statement is violative
of the Act as it tends to discourage support for the Union,
suggests that the role of the Union is futile, and invites direct
dealing with Respondent.
4. Did Respondent, acting through David Massey, Ken
Sanders, Arlene Brown, Gene Eggman, Billy McNeil,
Mike Casto, Carlene Oliver, Flo Sherman, Steve
Snyder, Virginia Caraway, Edward George Williams,
Lisa Carter, Freda Mashburn, and Brad LeMaster, all
admitted statutory supervisors, near Gate B of
Respondent’s facility, unlawfully surveil and interrogate
employees concerning their union activities on various
dates between mid-July and September 1991, by
observing them as they were solicited to sign a petition
to decertify the Union and/or were handbilled?
The credible evidence establishes that on a number of oc-
casions in the summer of 1991, Andrews alone, and in the
Company of one or more other persons, handbilled and solic-
ited signatures for the decertification petition at Gate B of
the Dardanelle plant. As noted this is the gate used by the
unit employees to enter and leave the plant. On at least two
and in all probability, several more instances, supervisors and
other management persons were stationed about 10 to 20 feet
away, either handbilling employees themselves or observ-
ing.29 All of the supervisory personnel named in the com-
plaint with the possible exception of Virginia Caraway en-
gaged in this activity.
The Respondent takes the position that it began
handbilling in response to the Union’s handbilling, that it did
not coordinate its handbilling with the handbilling and solici-
tation of Andrews at Gate B, and that its surveillance and
interrogation was the mere observation of an open public ac-
tivity. While I agree that Respondent’s handbilling followed
the Union’s, it went beyond simply responding to union
handbilling.30 On the occasions when Andrews was soliciting
signatures and handbilling at Gate B and management offi-
cials were nearby, the management officials could see and
hear what transpired between Andrews and the employees
she solicited.31
568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other employees, either because of distance between themselves and
Andrews, or because of some construction which was underway
nearby. Several of the employee witnesses testified that management
could clearly see and hear Andrews’ solicitations. Supervisor Lisa
Carter testified that she distributed antiunion handbills near Gate B.
Present with her were Personnel Managers Eggman and Brown and
Superintendent Billy McNeil. About 20 feet away was Andrews. In
the investigation of this matter, Carter gave an affidavit to the Board
in which she swore that she could hear Andrews asking employees
to sign the petition. At the hearing she attempted to modify this ad-
mission somewhat, but I do not credit the modification. I find, based
on evidence submitted through Carter and the employee witnesses,
that management could see and hear what Andrews was doing when
both were present at Gate B.
32 There is no record of a written grievance actually being filed,
though one of the information requests which the Respondent refuses
to comply with deals with the subject of pregnancy benefits.
33 This charge alleges:
Since on or about August 16, 1991, by its officers, agents, and
representatives, has refused to bargain with UFCW, Local 425,
by refusing to provide information concerning the disposition of
an insurance claim by employee Katherine Coats and by dealing
directly with employee Katherine Coats thereby circumventing
the collective bargaining representative.
Not only do I believe that engaging in such decertification
efforts in tandem could reasonably lead employees to believe
that Andrews and management were acting in concert, I be-
lieve it is also highly coercive. Although there had been a
decertification effort at the plant some years before, this was
the first time in the history of the plant under Tyson manage-
ment that management had engaged in handbilling. That fact
alone would get the employees’ attention. Moreover, all of
the plant’s management wear khaki uniforms which are eas-
ily recognizable. Generally about four members of manage-
ment handbilled at the gate at the same time. Thus, employ-
ees approaching the gate to go to work were faced with An-
drews, whom they could reasonably believe was working for
management in the petition drive, asking them to sign the pe-
tition, with full knowledge that only 10 or 20 feet away were
supervisors and top Tyson plant officials watching to see
what they did.
They did not have to guess what management wanted
them to do. Management’s handbills clearly spelled out man-
agement’s desire that they decertify the Union, and as noted
earlier, said much the same thing as did Andrews’ handbills.
The employees approached by Andrews under these cir-
cumstances had to make an observable choice to support the
Union or the Company and the coercion inherent in this situ-
ation is obvious. For that reason, I find that Respondent’s
handbilling and observing employees solicited by Andrews
was violative of Section 8(a)(1) of the Act, and in and of
itself tainted the decertification petition. See Pillowtex Corp.,
237 NLRB 746 (1978); Tappan Co., 254 NLRB 656 (1981);
Schwartz Mfg. Co., 289 NLRB 874 (1988). In this regard, I
do not find Respondent’s handbilling in and of itself unlaw-
ful. It is only in the manner it did so on the occasions when
Andrews was soliciting signatures at the same location that
is objectionable. Had Respondent wanted to remove the coer-
cive nature of its activity, it could have postponed its
handbilling activity until Andrews left, or moved to a place
not in close proximity to Andrews.
5. Did Respondent, acting through Night-Shift
Personnel Manager Arlene Brown, an admitted statutory
supervisor, on or about September 17, 1991, threaten an
employee with loss of insurance claims assistance
because the employee’s insurance claim was the subject
of a charge pending before the National Labor
Relations Board?
Employee Kathryn Coats is the employee involved in this
complaint allegation. Around March 1, 1991, she was preg-
nant and had some medical services performed which she be-
lieved were covered by her company health insurance. She
encountered a problem with her company medical insurance,
caused in part because the insurance company would not pay
for one claim and in part because the Dardanelle plant insur-
ance clerk did not turn in another claim. Though Coats urged
the clerk to submit the claim, she would not do it even
though Arlene Brown had told Coats to tell the clerk to do
so.
Because of the difficulties she was encountering with this
claim, she filed a grievance with the Union about it.32 Noth-
ing happened, so she filed a charge with the Board at the
urging of the Union.33 About a week later, she had another
conversation with Brown. According to Coats, Brown called
her into the office and said, ‘‘Kathryn, I understand that you
filed a charge with the Labor Board about this insurance
problem.’’ Coats replied that she had. Brown said, ‘‘Well,
why did you do that?’’ Coats said, ‘‘Because I couldn’t rec-
tify the problem before.’’ Brown said, ‘‘Well, I was trying
to work it out. Well, I don’t know how much I can help you
with this now that you’ve filed this charge with the Labor
Board. I just have all this paperwork.’’ Coats then threatened
to go the State Attorney General, and Brown indicated that
she would work the problem out. She interpreted Brown’s
comment to mean that since she filed the charge, Brown had
a lot of extra work to do.
With respect to the Coats situation, Brown testified that in
the second conversation with Coats, the benefits had already
been paid, and she simply told Coats that since a charge had
been filed based on the fact that she had dealt directly with
Coats without the presence of a union official, she was not
sure she could deal with her further. She denies being mad
at Coats or expressing anger in her meeting with Coats. She
testified that Coats said she had filed a grievance, but she
never saw any grievance over the situation.
Because of the way the charge is worded, I do not believe
that Brown violated the Act. The Union did object to her
dealing with Coats directly, and for her to thereafter refuse
to do so or express doubts about doing so is understandable.
The charge was filed by the Union and it is likely that Coats
did not know specifically what it alleged. Thus she may well
have been unaware that direct dealing was involved. I would
dismiss this complaint allegation.
6. Did Respondent violate Section 8(a)(1) and (5) of
the Act by:
a. Since or about September 9, and continuing to date, un-
lawfully failing and refusing to bargain with the Union as the
exclusive representative of the unit?
b. On or about November 5, 1991, unlawfully withdrawing
recognition of the Union as the exclusive collective-bar-
gaining representative of the unit?
569TYSON FOODS
c. On or about November 4 unlawfully making the fol-
lowing changes in wages or working conditions:
i. Instituting a performance bonus of between 2 and 3-1/2
percent
ii. Implementing a wage increase
iii. Increasing shift premiums
d. On or about January 1, 1992, unlawfully implementing
a new attendance policy and new service award and attend-
ance award program
e. Unlawfully refusing to supply the Union information
which it requested in letters dated July 9, October 17, and
October 22?
Respondent admits that it withdrew recognition from the
Union, refused to bargain with the Union, and implemented
the changes in wages and working conditions alleged in the
complaint. It did these things based on its doubt of the
Union’s continuing majority status. This doubt was based
upon the decertification petition, which as of August 13 had
the signatures of a majority of the unit employees. However,
as I have found that Respondent, through its agent, Andrews,
directed, controlled, and otherwise unlawfully influenced the
decertification campaign, I find that the decertification peti-
tion is tainted and cannot be relied upon to demonstrate loss
of majority status. Moreover, as I have found that Respond-
ent, through Andrews, and through the unlawful surveillance
and interrogations of its supervisors and management has
committed a number of unfair labor practices which would
have a direct bearing on the decertification effort, I cannot
find that Respondent’s good-faith doubt of majority status
arose in a climate free of unfair labor practices. Therefore,
I find that Respondent could not lawfully claim a good-faith
doubt of the Union’s majority status and thus, its subsequent
withdrawal of recognition, refusal to bargain, unilateral im-
plementation of changes in wages and working conditions,
and refusal to supply information based upon a lack of a bar-
gaining relationship to be in violation of Section 8(a)(1) and
(5) of the Act. Process Supply, supra; Marriott In-Flite Serv-
ices, supra.
In addition to refusing to supply information requested by
the Union based upon a lack of a bargaining relationship, the
Respondent contends, with some justification, that without
further elaboration of need, it has no obligation to supply the
information requested in paragraphs 23 and 24 of the com-
plaint. It admits that it refused to supply the information
noted in paragraph 22 of the complaint as the Union indi-
cated that the information was necessary for negotiations for
a new contract. As it took the position that it did not have
to bargain with the Union, it refused to supply this informa-
tion. As I have found that it did and does have an obligation
to bargain with the Union, Respondent will be ordered to
supply this information. There is some evidence that pro-
viding the information in the exact format sought by the
Union would be extremely costly and burdensome. However,
before the request was flatly refused, the Union indicated in
correspondence that it was willing to explore alternate ways
of getting the information needed. Thus, at this stage, I will
assume the parties can find a way to work this problem out
to their mutual satisfaction.
With respect to the information sought in paragraphs 23
and 24 of the complaint, the Union sought this information
stating only that it is needed ‘‘in order . . . to fulfill its re-
sponsibilities as collective bargaining representative.’’ The
Respondent introduced evidence which indicates providing
this information is not only burdensome, but that there are
no pending grievances or contractual disputes to which the
information sought could be related. The Union offered no
evidence beyond the requests themselves concerning why the
information was relevant and necessary. Although I have
found that the Company has a continuing bargaining relation-
ship with the Union, and must supply information to the
Union which is relevant and necessary to its role as the rep-
resentative of the unit employees, I do not find that the
Union can simply rely on the presumption of relevance of
the information sought in the face of the evidence offered by
Respondent. Therefore, at this stage of the proceeding, I will
not order Respondent to provide this information. The Union
is obviously free to again request the information and dem-
onstrate some need for it, and if Respondent does not supply
it, file a new charge with the Board.
CONCLUSIONS OF LAW
1. Respondent Tyson Foods, Inc. is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, United Food and Commercial Workers
Union, Local 425, AFL–CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Union is, and was at all times material to this pro-
ceeding, the exclusive bargaining representative of Respond-
ent’s employees in the following appropriate unit:
All production employees at the Tyson Food Poultry
processing plant located at Dardanelle, Arkansas, ex-
cluding all maintenance employees, office clerical em-
ployees, professional employees, technical employees,
guards and supervisors as defined in the Act.
4. Respondent’s employee, Jean Andrews, was at all times
material to this proceeding, an agent of Respondent within
the meaning of Section 2(13) of the Act.
5. Respondent, through its agent, Jean Andrews, directed,
controlled, circulated, and assisted in the circulation of a de-
certification petition filed with the Board on August 13,
1991, in violation of Section 8(a)(1) of the Act.
6. Respondent, acting through its agent, Jean Andrews,
violated Section 8(a)(1) of the Act during the course of the
decertification drive at its Dardanelle facility in the summer
of 1991 by:
a. Promising employees wage increases, bonuses, and
other benefits if the employees would decertify the Union,
and by alternatively threatening employees with the loss of
wage increases, bonuses, and other benefits if the employees
did not decertify the Union.
b. While engaged in the training of new employees, telling
these employees that the Union could do no more for them
than the Respondent and thus discouraging support for the
Union and encouraging bypassing the Union and dealing di-
rectly with the Company.
7. Respondent, acting through a number of its supervisors,
at its Dardanelle Plant Gate B, on a number of occasions in
the summer of 1991, surveying, and interrogating employees
concerning their union sympathies and preference by observ-
ing them as they were solicited by Respondent’s agent, Jean
Andrews, for their signatures on a decertification petition
violated Section 8(a)(1) of the Act.
570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided by Sec. 102.48 of the Rules, by
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
35 If this 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.’’
8. Respondent has engaged in unfair labor practices in vio-
lation of Section 8(a)(1) and (5) of the Act by:
a. Since on or about September 9, 1991, and continuing
to date, failing and refusing to bargain with the Union as the
exclusive collective-bargaining representative of its employ-
ees in the above-noted unit.
b. Since on or about November 5, 1991, and continuing
to date, withdrawing recognition of the Union as the exclu-
sive collective-bargaining representative of its employees in
the above-noted unit.
c. Since on or about November 4, 1991, unilaterally imple-
menting the following changes in wages and working condi-
tions:
i. Instituting a performance bonus of between 2 and 3-1/2
percent.
ii. Implementing a wage increase.
iii. Increasing shift premiums.
d. Since on or about January 1, 1992, unilaterally imple-
menting a new attendance policy and a new service award
and attendance award program.
e. Since on or about July 9, 1991, refusing to furnish the
Union with information which it requested and which is nec-
essary and relevant to its role as exclusive collective-bar-
gaining representative of the Respondent’s employees in the
above-noted unit.
9. The violations of the Act set out above are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
10. The Respondent did not otherwise violate the Act as
alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in and is en-
gaging in unfair labor practices in violation of Section
8(a)(1) and (5) of the Act, I recommended that it be ordered
to cease and desist therefrom and take certain affirmative ac-
tion necessary to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended34
ORDER
The Respondent, Tyson Foods, Inc., Dardanelle, Arkansas,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Directing, controlling, circulating, and assisting in the
circulation of a decertification petition.
(b) Promising employees wage increases, bonuses and
other benefits if the employees would decertify the Union,
and by alternatively threatening employees with the loss of
wage increases, bonuses, and other benefits if the employees
did not decertify the Union.
(c) Telling its employees that the Union could do no more
for them than the Respondent and thus discouraging support
for the Union and encouraging bypassing the Union and
dealing directly with the Company.
(d) Surveying and interrogating employees concerning
their union sympathies and preference by observing them as
they are solicited for their signatures on a decertification pe-
tition.
(e) Failing and refusing to bargain with the United Food
and Commercial Workers Union, Local 425, AFL–CIO, as
the exclusive collective-bargaining representative of its em-
ployees in the following appropriate unit:
All production employees at the Tyson Food Poultry
processing plant located at Dardanelle, Arkansas, ex-
cluding all maintenance employees, office clerical em-
ployees, professional employees, technical employees,
guards and supervisors as defined in the Act.
(f) Withdrawing recognition of the Union as the exclusive
collective-bargaining representative of its employees in the
above-noted unit.
(g) Unilaterally implementing the following changes in
wages and working conditions:
i. Instituting a performance bonus of between 2 and 3-1/2
percent.
ii. Implementing a wage increase.
iii. Increasing shift premiums.
(h) Unilaterally implementing a new attendance policy and
a new service award and attendance award program.
(i) Refusing to furnish the Union with information which
it requested and which is necessary and relevant to its role
as exclusive collective-bargaining representative of the Re-
spondent’s employees in the above-noted unit.
(j) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain with the Union as
the exclusive representative of the employees in the above
unit concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed agreement.
(b) On request of the Union, rescind any or all of the
changes it has unilaterally implemented on or before the date
it unlawfully withdrew recognition from the Union, includ-
ing, but not limited to, a performance bonus of between 2
and 3-1/2 percent, a wage increase, an increased shift pre-
mium, a new attendance policy, and a new service award and
attendance award program.
(c) Furnish the Union information it requested in its letter
of July 9, 1991, and, on request, furnish the Union any other
necessary and relevant information which it may request in
furtherance of its role as bargaining representative of the em-
ployees in the above unit.
(d) Post at its facility in Dardanelle, Arkansas, copies of
the attached notice marked ‘‘Appendix.’’35 Copies of the no-
tice, on forms provided by the Regional Director for Region
26, after being signed by the Respondent’s authorized rep-
571TYSON FOODS
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.