White Oak Acres, Inc.

National Labor Relations Board - Board Decisions

Dec 11, 1961

134 N.L.R.B. 1145 (N.L.R.B. 1961)

WHITE OAK ACRES, INC. 1145
1. Cease and desist from picketing or causing to be picketed or threatening to
picket or causing to be picketed Best Markets, Inc., and Food Fair Stores, Inc.,
except under conditions permitted by Section 8(b)(7) of the Act, where an object
thereof is forcing or requiring such employer to recognize or bargain with it
as the representative of their employees, or forcing or requiring the employees of
such employer to accept or select it as their collective-bargaining representative.
2. Take the following affirmative action:
(a) Post at its offices, copies of the notice attached hereto marked "Appendix."
Copies of said notice, to be furnished by the Regional Director for the Fourth
Region, shall, after being duly signed by representatives of the Respondent, be
posted by the Respondent immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter, in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or covered, by
any other material.
(b) Sign as aforesaid and mail sufficient copies of said notice to the Regional
Director for the Fourth Region for posting at all former Best Markets stores under
the control of Food Fair Stores, Inc., at places where notices to employees are
customarily posted.
(c) Notify the Regional Director for the Fourth Region, in writing, within 20
days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps have been taken in compliance therewith.
It is further recommended that unless on or before 20 days from the date of the
receipt of this report the Respondent notifies the Regional Director for the Fourth
Region that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the Respondent to take the action
aforesaid.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 1357, RETAIL CLERKS INTERNATIONAL ASSO-
CIATION, AFL-CIO, AND OF AMALGAMATED FOOD EMPLOYEES UNION LOCAL 196
OF THE JOINT COUNCIL OF PHILADELPHIA AND VICINITY AND THE AMALGAMATED
MEAT CUTTERS AND BUTCHER WORKERS OF NORTH AMERICA, AFL-CIO AND TO
ALL EMPLOYEES OF FORMER BEST MARKETS, INC., STORES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT picket or cause to be picketed or threaten to picket or cause
to be picketed Best Markets, Inc., and Food Fair Stores, Inc., except under
conditions permitted by Section 8(b)(7) of the Act, where an object thereof
is forcing or requiring such employer to recognize or bargain with us, or either
of us, as the representative of its employees or forcing or requiring the employees
of such employer to accept or select us, or either of us, as their collective-
bargaining representative.
LOCAL 1357 , RETAIL CLERKS INTERNATIONAL
ASSOCIATION , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced, or covered by any other material.
White Oak Acres, Inc. and ' Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO. Case No.
11-CA-1773. December 11, 1961
DECISION AND ORDER
On September 26, 1961, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
134 NLRB No. 118.
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent had engaged in and is engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate Re-
port attached hereto. Thereafter, the Respondent filed exceptions to
the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings,2 conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, White Oak Acres,
Inc., Monroe, North Carolina, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Interrogating employees concerning their membership in or
activities on behalf of Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, or any other labor organization,
in a manner constituting interference, restraint, or coercion within
the meaning of Section 8 (a) (1) of the Act.
(b) Threatening employees with discharge, withdrawal of benefits,
closing of the plant, or other like measures because of their union
activities.
(c) In any other like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their right to self-
organization, to join or assist the above-named or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
1 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Members Rodgers, Fanning,
and Brown].
, We find no merit in the Respondent 's contention that the Trial Examiner's credibility
rulings are erroneous and should be overruled . As the clear preponderance of all the
relevant evidence does not demonstrate that the credibility findings are incorrect, we
hereby adopt them. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d
362 (C.A. 3).
WHITE OAK ACRES, INC.. 1147
(a) Post at its plant at Monroe , North Carolina , copies of the
notice attached hereto marked "Appendix ." 3 Copies of said notice,
to be furnished by the Regional Director for the Eleventh Region,
shall, after being duly signed by the Respondent , be posted immedi-
ately upon receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted . Reasonable steps shall
be taken by Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director for the Eleventh Region , in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order"
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their mem-
bership in or activities on behalf of Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO, or any
other labor organization, in a manner constituting interference,
restraint, or coercion within the meaning of Section 8 (a) (1) of
the Act.
WE WILL NOT threaten our employees with discharge, with-
drawal of benefits, closing the plant, or other like measures be-
cause of their union activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the right to
self-organization, to join or assist the above-named or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities.
If you have personal knowledge that any official, supervisor, or other
agent of this Company has done any of those things described above
as unfair labor practices, or has engaged in other unfair labor prac-
tices, you should notify the Regional Director, National Labor Rela-
tions Board, Eleventh Region, 1831 Nissen Building, 310 West Fourth
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
r
Street, Winston - Salem, North Carolina . Telephone number Park
4-8356.
WHITE OAK ACRES, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges in the above -entitled case having been filed and served ; a complaint and
notice of hearing thereon having been issued sand served by the General Counsel of
the National Labor Relations Board; and an answer having been filed by the above-
named Respondent , a hearing involving allegations of unfair labor practices in
violation of Section 8(a)(1) of the National Labor Relations Act, as amended, was
held in Charlotte, North Carolina, on August 22, 1961, before the duly designated
Trial Examiner.
At the hearing General Counsel and the Respondent were represented by counsel
and were afforded full opportunity to present evidence pertinent to the issues, to
argue orally , and to file briefs. A brief has been received from General Counsel.
Disposition of the Respondent 's motion to dismiss the complaint , upon which
ruling was reserved during the hearing , is made by the following findings, con-
clusions, and recommendations.
Upon the record thus made , and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
White Oak Acres, Inc., is a North Carolina corporation with office and place
of business in Monroe , North Carolina , where it is engaged in the business of
processing and distributing poultry.
During the year preceding issuance of the complaint the Respondent shipped from
this plant products valued at more than $50,000 to points outside the State of North
Carolina.
The Respondent is engaged in commerce within the meaning of the Act
II. THE CHARGING UNION
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO,
is a labor organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The only issues raised here are whether or not management representatives un-
lawfully coerced employees at a time when union organization was taking place by:
(1) Posting a notice of "company policy" threatening "harm."
(2) In a speech to all employees and to employees individually threatening
to withdraw privileges and to close the plant rather than deal with the Union.
(3) Threatening employees with discharge if they engaged in activities on
behalf of the Union.
(4) Interrogating employees concerning union activities.
B. The facts
At the hearing the parties stipulated and it is found that on November 4 and 9,
1960, the Charging Union submitted written requests to the Respondent for recog-
WHITE OAK ACRES, INC. 1149
nition as the majority bargaining representative of its employees, and that the
Respondent replied to neither request. The Union then filed, on November 22, a
petition for certification by the Board , and a representation hearing was held on
December 14.
There is no dispute that a few days after receiving the Union's requests E. P.
Funderburk, secretary-treasurer and general manager, assembled the plant em-
ployees, said that "somebody around the plant" had been carrying on union activities,
and declared: "I want to say this with all the fervor of my soul: we are positively
against union organization." i
Credible testimony of employees establishes, and it is found, that during his
speech the manager also said:
(1) "From the time you come to work to the time you leave here, that is
our time, we are paying for it," and if he found that anybody "during" that
time talked about the Union he would see to it that they "left" at once.
(2) That he would not operate the plant "under" a union.
(3) That previously extended privileges, including borrowing money from
management, obtaining their pay checks in advance, and company-maintenance
of insurance coverage while employees were out on maternity leave, would be
withdrawn.
(4) That a statement of company policy would soon be posted in the plant.2
Shortly thereafter management posted a printed notice "To All Employees," the
first three paragraphs of which read:
Since the Union is putting -on a campaign to get in here, a good many questions
have arisen with regard to the following matters. We have decided to state
the Company's position on these subjects as clearly as we can for everybody
alike:-
(1) This matter is, of course, one of concern to the Company. It is
also, however, a matter of serious concern to you and our sincere belief
is that if this Union were to get into this operation, it would not work to
your benefit but to your serious harm.
(2) It is our positive intention to oppose this Union and by every proper
means to prevent it from coming here.
Funderburk admitted, and it is found, that about November 10, after the receipt
of the Union's demand for recognition, he asked employee Long "how many of
the employees . signed up for the union, signed a card for the union to represent
them." Long credibly testified, and it is found, that after she told him she believed
a majority had signed, he told her that the employees "couldn't have a union there,
that he would shut the plant down." 3
A few days after Christmas 1960, Agnes Helms, head of the Respondent Com-
pany, told employee Trull that "before I have a union I am going to lock the door." 4
Early in January, at the time of laying off employee Lackey, Helms repeatedly
insisted that the employee reveal who had "started the Union" in the plant .5
i That the manager made the latter-quoted remark was established by counsel for the
Respondent.
2 Funderburk, who said he did not read from a prepared document but spoke "off the
cuff," admitted that he cited a number of benefits he had been giving the employees, but
denied threatening to alter them He admitted that he told them "that from the time
they went to work until the time that they quit" was company time, and qualified this
by adding "or the time that we pay for" He did not deny stating that he would not
operate the plant under a union.
3 The manager did not specifically deny making the threat attributed to him by Long,
but claimed he said that "if the union gets in, and gets what they claim they are going
to get, there isn't but one thing that we can do ; that is, we will have to close the plant."
In view of the lack of his denial that he made a similar threat a few days later to all
employees, the Trial Examiner does not credit his version of this remark to Long
4 The quotation is from the employee's credible testimony. Helms denied making the
threat, but did not deny talking with Trull about the Union, and further said, "I don't
remember an exact statement with her." The denial is not credited
5 As a witness, Helms not only did not deny thus interrogating Lackey, but candidly
admitted that she told the employee that "I would prefer to close the plant rather than
to work with (the Union)."
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Conclusions
The Trial Examiner concludes and finds that the Respondent has interfered with,
restrained, and coerced employees in the exercise of self-organizational rights guar-
anteed by Section 7 of the Act, by:
(1) Funderburk's speech to all employees in which he threatened:
a. to discipline or discharge employees who engaged in union activities
during the period from their coming to the plant until their leaving; 6
b. to withdraw benefits and privileges until then granted: 7 and
c. not to operate the plant if the Union came in.
(2) Funderburk's interrogation of Long, his declaration that employees could
not have a union, and his threat to close the plant.
(3) Helms' threat to "close the door" before she would deal with a union.
(4) Helms' repeated insistence that employee Lackey reveal the union
leaders.
(5) The clearly implied threat in the posted notice that if the Union came
in "serious harm" would be suffered by employees as a matter of "company
policy." 8
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of the Act.
2. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
O It is undisputed that a good part of the time employees, while required to remain at
the plant, are not working and are not paid, such as breaks and lunches Moreover,
employees are required to stand by at the premises, without being paid, when the "line"
of processing is not in operation.
7 That there Is no evidence that privileges actually were withdrawn does not diminish
the probable effectiveness-and obvious intent-of the threat itself.
8In his brief General Counsel also urges that the following paragraph of the same
notice be found as violative of the Act:
(6) No person will be allowed to carry on Union organizing activities on the job
Anybody who does so and who thereby neglects his own work or interferes with the
work of others will be subject to discharge
The Trial Examiner is of the opinion that the prohibition here expressed is not unlaw-
fully broad. In contradistinction to Funderburk's oral and unqualified prohibition of such
activities from the time of arriving to leaving the plant, it is made clear in this paragraph
that penalty will follow neglect of work or interference with the work of others-a not
unreasonable rule.