Bush Hog, Inc.

National Labor Relations Board - Board Decisions

Dec 7, 1966

161 N.L.R.B. 1575 (N.L.R.B. 1966)

BUSH HOG, INC. 1575
If employees have any question concerning this notice or compliance with its
provisions , they may communicate • directly with the Board 's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis , Tennessee 38103,
Telephone 534-3161.
Bush Hog, Inc. and Teamsters Local Union 612, affiliated with
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, Ind.
Bush Hog, Inc. and Chelcia Averette . Cases 15-CA-2670,15-RC-
3093, and 15-CA-27?0-3. December 7, 1966
DECISION AND ORDER
On July 1, 1966, Trial Examiner Josephine H. Klein issued her
Decision in the above-entitled proceedings, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. The Trial Examiner further found merit in the
objections by the Union to the election conducted on June 25, 1965,
and recommended that Case 16-RC-3093 be severed and remanded to
the Regional Director for Region 15 for appropriate action. There-
after, the Respondent filed exceptions to the Trial Examiner's Deci-
sion and a supporting brief, and the General Counsel filed an answer-
ing brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions and brief, and the
entire record in these cases, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner, except as modi-
fied herein.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the,National Labor Relations Board hereby orders that the
Respondent, Bush Hog, Inc., Selma, Alabama, its officers, agents,
successors , and assigns shall:
1. Cease and desist from unlawfully questioning employees, threat-
ening them with reprisals, promising or granting them benefits, advis-
161 NLRB No. 136.
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing them that employment policies with respect to race depend on
whether or not they designate the Union, or in any other manner
interfering with, restraining, or coercing them in the exercise of the
right to self-organization, to form labor organizations, to join or
assist Teamsters Local Union 612, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers
of America, Ind., or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, as guaranteed in Section
7 of the Act, 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 :
(a) Post at its Selma, Alabama, plant, copies of the attached notice
marked "Appendix." 1 Copies of said notice, to be furnished by the
Regional Director for Region 15, after being duly signed by the Com-
pany, shall be posted by the Company immediately 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 the Com-
pany to insure that the posted copies are not altered, defaced, or cov-
ered by any other material.
(b) Within 1 week after receipt from the Regional Director of the
notice referred to in the preceding paragraph, hold a meeting or
meetings of all the employees and read to them in its entirety the
notice attached hereto.
(c) Within 1 week after receipt from the Regional Director of the
Notice of Second Election, hold a meeting or meetings of all the
employees and read to them the attached notice marked "Appen-
dix A."
(d) Notify the Regional Director, in writing, within 10 days from
the date of this Order, what steps have been taken to comply here-
with.
IT IS FURTHER ORDERED that the complaints, insofar as they allege
unfair labor practices not found herein, be, and they hereby are, dis-
missed.
IT IS FURTHER ORDERED that the election held on June 25, 1965, be,
and it hereby is, set aside; that Case 15-RC-3093 be severed and
remanded to the Regional Director for further appropriate action;
and that "Appendix A" shall be included in the Notice of Second
Election to be issued by the Regional Director.
In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "a Decision and Order" the words "a Decree of the
United States Court of Appeals Enforcing an Order."
BUSH HOG, INC. 1577
APPENDIX A
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 you that:
WE WILL NOT question our employees about their own union
activities or opinions or the union activities of their fellow
employees.
WE WILL NOT threaten to fire or lay off any of our employees,
or stop or reduce any present employee benefits or privileges, or
change any of their existing working conditions because they
have engaged in or are engaging in union activities or have sup-
ported or are supporting a union.
WE WILL NOT give or promise any of our employees wage
increases, promotions, or any other benefits to induce them to
join or assist unions or to reward them for not joining or assist-
ing a union.
WE WILL NOT threaten to curtail our business or move any part
of our operations if our employees choose a union to represent
them.
WE WILL NOT threaten our employees by saying or indicating
that strikes and violence will happen if the employees choose a
union to represent them.
WE WILL NOT threaten to use force in any form to prevent or
end any legal strike or peaceful picketing.
WE WILL NOT make our employment policies with respect to
race depend on whether or not our employees designate a union
as their collective-bargaining representative.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or assist a labor organization, to bar-
gain collectively through a bargaining agent chosen by them-
selves, 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.
All our employees have the right to join or assist, or not to join or
assist, Teamsters Local Union 612, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Ind., or any other union.
Busx HOG, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
If employees have any question concerning this notice or com-
pliance with its provisions, they may communicate directly with the
Board's Regional Office, T6024 Federal Building (Loyola), 701 Loy-
ola Avenue, New Orleans, Louisiana 70113, Telephone 527-6391.
APPENDIX B
NOTICE TO ALL VOTERS
The election conducted on June 25, 1965, was set aside because the
National Labor Relations Board found that certain conduct of the
Employer' interfered with the employees' exercise of a free and rea-
soned choice. Therefore, a new election will be held in accordance
with the terms of this notice of election.
All eligible voters should understand that the National Labor Rela-
tions Act, as amended, gives them the right to cast ballots as they
see fit, and protects them in the exercise of this right, free from inter-
ference by any of the parties.
The Employer will not make its employment policies with respect
to race depend on whether or not the employees designate a union as
their collective-bargaining representative.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
On June 25 , 1965,1 after Teamsters Local Union 612, affiliated with Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, Ind. (Union ), has petitioned for certification , a consent election was held
among the production and maintenance employees of Bush Hog, Inc. (Respondent).
Of the 177 ballots cast, the Union challenged 35, a sufficient number to affect the
result of the election . On June 30 , the Union also filed objections to conduct allegedly
affecting the election . After investigation , the Regional Director recommended that
25 of the challenges be sustained and that "in the event that a majority of the valid
votes counted is not cast for the [Union ], a hearing be held to resolve the issues
raised by the [Union's] objections Nos. 1 through 17." In the absence of any excep-
tions, the Regional Director 's report was adopted by the Board . Since the revised tally
showed a defeat for the Union, the Board referred the Union 's objections to the
Trial Examiner for hearing and a report resolving credibility issues, finding facts,
and recommending disposition.
On June 30, the same date that the objections to the election were filed, the
Union filed a charge alleging violations by^Respondent of Section 8(a)(1) of the
National Labor-Management Relations Act (the Act ) in the course of the election
campaign . On November 24, after the charge had been-amended , a complaint was
issued and consolidated with the representation proceeding for hearing . Respondent
denied the commission of any unfair labor practices and affirmatively contended
that misconduct by the Union in the course of the campaign required dismissal of
the complaint . A prehearing motion by the General Counsel to strike Respondent's
affirmative defenses has been referred to the Trial Examiner and will be disposed
of in the .present decision.
On January 6, 1966, a complaint was issued against Respondent on a charge
filed by Chelcia Averette, an individual , alleging discriminatory action on Octo-
Unless otherwise stated , all dates referred to in this decision are in 1965.
BUSH HOG, INC. 1579
`her 7, 1965, in violation of Section 8(a)(3) and (1 )of the Act. This complaint
was thereafter consolidated with the two other proceedings.
The three proceedings, consolidated, were heard by Trial Examiner Josephine
H. Klein in Selma, Alabama, on March 8 through 11, 1966. All parties were pres-
ent and participated in the hearing, the Union, Respondent, and the General Coun-
sel being represented by counsel. All parties waived oral argument. Briefs have
been filed by Respondent and the General Counsel.
Upon the entire record, observation of the demeanor of the witnesses, and con-
sideration of the briefs, I make the following: -
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent, an Alabama corporation, with its principal office and plant in
'Selma, Alabama, is engaged in the manufacture, sale, and distribution of rotary
cutters and related equipment. During the past year a representative period,
Respondent, in the course of its operations, purchased goods and materials valued
in excess of $50,000 which were shipped to it in Alabama from points outside
Alabama and it sold and shipped products valued in excess of $50, 000 from its
.Selma, Alabama, plant directly to purchasers outside Alabama. Respondent admits,
and I find, that Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At the hearing, after initial denial by Respondent, the parties stipulated, and I
find, that the Union is a labor organization within the meaning of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES AND
MISCONDUCT AFFECTING THE ELECTION
Although the Union's objections to the election in Case 15-RC-3093 and the
General Counsel' s complaint in Case 16-CA-2670 are not identical , in large part
,they raise the same issues . They were heard, in effect, as one case , with the
Union presenting no independent direct evidence. Accordingly, except as specifi-
cally stated, the two cases will be discussed together herein.
Case 15-CA-2720-3, involving Chelcia Averette, however, is essentially unre-
lated to the other two and therefore will be discussed separately.
A. Cases 15-CA-2670 and 15-RC-3093
1. Background and general considerations
The complaint alleged some 52 specific instances of interference, restraint, and
coercion, in violation of Section 8(a)(1) of the Act, by 10 agents of Respondent
during the 5- to 6-week period between the Union's representation petition and
the consent election? In support of the complaint, the General Counsel presented
over 30 witnesses who testified to repeated and virtually continuous misconduct by
Respondent's agents. While many of the incidents described were either borderline
or relatively minor, if viewed in isolation, cumulatively they composed a picture
of overall coercion through threats, promises, and interrogation.
Respondent denied most of the allegations and the testimony of the General
Counsel's witnesses in support thereof. Respondent pursued two general approaches
in its denials. First, it attempted to impeach some of the General Counsel's wit-
nesses. Second, its witnesses provided somewhat different versions of statements
attributed to them. On this basis, Repondent now contends that many of the
General Counsel's witnesses "misinterpreted" or "misconstrued" statements made
by Respondent's agents. As is common in cases like this, the Respondent contends
that the actions and statements of its agents fell within the realm of opinion and
fact, protected by the free-speech provision of Section 8(c). The General Counsel,
on the other hand, maintains that the incidents alleged, as supported by the evi-
dence of employees, were individually and collectively coercive in violation of
2 The complaint also alleged that, apparently after the election, Respondent granted an
individual wage increase as an inducement to an employee to refrain from union activity.
This allegation was not supported by evidence and Is not urged by the General Counsel in
his brief Accordingly I recommend that it be dismissed.
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(1). See Bauer Welding & Metal Fabricators, Inc., 154 NLRB 954,
962, and cases cited, enfd. as modified 358 F.2d 766 (C.A. 8). In objecting
to the results of the election, the Union lays stress on Respondent's alleged
improper appeal to race prejudice, which, it is contended, rendered a fair election
impossible , particularly against the background of the community sentiment engen-
dered by the recent Freedom March from Selma to Montgomery, Alabama. Addi-
tionally, the Union contends that the election was tainted by the fact that Respond-
ent's foremen stood in the election line and voted on the instructions or with the
permission of Respondent's management.
In addition to denying most of the allegations against it , Respondent disclaims
responsibility for the acts of its department heads on the grounds that any mis-
conduct on their part was in direct contravention of instructions they had received
from management and that they were speaking on their own behalf as close associ-
ates and friends of the rank -and-file employees , with whom they worked closely.3
While the complaint alleges numerous specific violations of Section 8(a) (1), the
ultimate question, as developed in the hearing, is whether Respondent's antiunion
preelection campaign as a whole was such as to interfere with the employees'
rights under Section 7 and a free choice in the election. Because it is the overall
picture which will be determinative as to the allegations of the complaint and the
validity of the defenses, I believe it will be helpful at the outset to set forth the
general approach which has been taken in deciding this case and then to proceed
to a discussion of specific allegations.
In resolving specific credibility issues and in appraising Respondent's disclaimer
of responsibility for the conduct of its foremen, I have considered, inter alia: (a)
the demeanor of the witnesses; (b) the nature and extent of any impeachment;
and (c) the surrounding circumstances.
(a) The General Counsel 's witnesses appeared honest and forthright in testi-
fying. Their demeanor throughout was that of people trying to recall events
accurately and to answer questions truthfully . Most of them were still employed
by Respondent and therefore, as has been noted in prior cases, their testifying in
these proceedings involved a certain degree of risk , which weighed in favor of
their credibility. Federal Envelope Co., 147 NLRB 1030, 1036, citing Georgia Rug
Mill, 131 NLRB 1304, 1305, footnote 2, modified on other grounds 308.F.2d 89
(C.A. 5).
Several of Respondent 's witnesses , on the other hand , appeared studied and
something less than completely frank and spontaneous. This picture emerged most
clearly at times when the witnesses attempted to explain away testimony against
them by drawing fine verbal distinctions. Some specific instances are recited below.
(b) Respondent sought to impeach General Counsel's witnesses by noting dif-
ferences between their testimony and sworn statements they had previously given
to a Board field examiner. However , cross-examination of the witnesses did not
elicit any substantial discrepancies between their affidavits to the Board and their
testimony at the hearing . To be sure , in some instances witnesses testified to
specific events or statements by supervisors which were not mentioned in their
affidavits to the Board field examiner. But in none of these instances did the testi-
mony appear to the Examiner to be a subsequent fabrication . Since , as will appear,
Respondent, through 10 officers or supervisors, conducted a virtually continuous
antiunion campaign , it is not surprising that some of the employees did not recall
every relevant incident or statement when they made statements to the field
investigators .4
(c) The background of its vigorous and undisguised antiunion campaign dic-
tates the resolution of specific doubtful issues against Respondent. Respondent
"made no bones about its opposition to the Union." Hendrix Mfg. Co. v. N.L.R.B.,
321 F.2d 100 (C.A. 5). In several instances, discussed below, Respondent claims
to have walked a verbal tightrope apparently geared to past Board decisions
(although its brief contains little citation of Board authority ). While Respondent
certainly was free to exercise to the fullest extent its right of free speech assured
by Section 8(c), it ran the constant risk of overstepping the narrow and not as
' Its additional affirmative defense is discussed and disposed of below, page 1594
"For example, employee Louis McDonald testified that Richey, night superintendent,
"said so much until-he talked so much, he was on me all the time about this Union."
Richey, who the complaint alleged was the perpetrator of 19 specific violations, was an
evasive and inconsistent witness. Because of his demeanor, together with other considera-
tions discussed below , I discredit his denials of the allegations made against him.
BUSH HOG, INC. 1581
yet fully defined line between the permissible and the impermissible. Paraphrasing
the Court of Appeals for the Eighth Circuit in a tax evasion case, one might well
say that where, as here, an employer has played the dangerous game of "brink-
manship," "the [Board] should examine the forms used by him for the accom-
plishment of his purpose with particular care; and, if his ingenuity fails at any
point, the [Board] should not lend him its aid by resolving doubts in his favor."
Morsman v. C.I.R., 90 F.2d 18, 22, cert. denied 302 U.S. 701.
In undertaking to campaign against the Union, Respondent not only had to
exercise great care concerning the conduct of top management representatives, but
also assumed the risk that "out of zeal, ignorance, or otherwise, foreman, super-
visors, and similar representatives in championing the antiunion cause will over-
step the mark." Hendrix Mfg. Co. v. N.L.R.B., supra. Thus, in deciding whether
Respondent did, as it claims, confine its antiunion campaign within legal limits,
it is necessary to scrutinize the conduct of top management officials not only with
respect to their own campaign activities but also as to the precautions they may
have taken to avoid missteps by lower echelon supervisors. The latter consider-
ation is relevant from several points of view. First, it bears on the contention
made in Respondent's brief that "The Company should not be held responsible for
any improper conduct of the foremen [because] if any foremen engaged in
improper conduct in the course of the discussions which preceded the election,
they were doing so in direct contravention of the Company's instructions." Second,
it is important in appraising the nature of top management's conduct " in relation-
ship to the total situation of which it formed a part" (Federal Envelope Co.,
supra, 147 NLRB at 1040) and as "background," even when such conduct, con-
sidered by itself, might not be violative of the Act. Cf. Hendrix Mfg. Co. v.
N.L.R.B., supra. Third, the guidance given to lower echelon supervisors is of tre-
mendous significance in resolving conflicts between the testimony of employees
and that of supervisors. The probability that the foremen stayed within the law
may be said roughly to vary directly with the care exercised by their superiors to
assure comprehension and observance of the rules.
Respondent introduced into evidence a three-page typewritten document entitled,
"Instructions to Foremen." This document, which had been prepared by counsel,
purported to set out the "do's and don't's" governing the Company's conduct dur-
ing the campaign. W. Russell Buster, Jr., plant superintendent, testified that he
read these instructions to the assembled foremen shortly after the Union's certifi-
cation petition was filed. He did not, however, provide copies to the foremen and
the instructions apparently were read just that one time. Since the foremen were
neither well versed in the law nor-very experienced in labor matters,5 it would
be unrealistic to expect them in one oral presentation to comprehend the some-
what subtle distinctions between permissible and impermissible conduct.
That Respondent appreciated the complexity of the matter is -shown by the fol-
lowing statement in the typewritten instructions:
... Here are the rules so please study them, know them and follow them.
But no opportunity was given for the "study" demanded . No study, however, was
necessary to get the message that management did not want a union victory. Of
this the "instructions" left no doubt. In the first paragraph, they stated that man-
agement "cannot conceive of anywhere near a majority wanting to bring the
Teamsters Union into this Company and into Selma." And they ended on the
following note:
In conclusion , we ask and expect that each of you-within the limits of the
rules of the game-give us and to yourselves your best efforts during the
next few weeks before the election.
In their testimony several of the foremen disclosed that they had, at best, a
vague understanding of the instructions. For example, although the "instructions"
list nine classes of permissible statements , foreman Maroney testified that Buster
"didn't say that we could say anything. He just said what we couldn't say." Richey
testified that before the election was scheduled he expressed his opinion to sev-
eral employees, but "I never asked them to vote for the company or not to vote
for the company. I think that-I don't know whether it is legal to ask a fellow
employed at Bush Hog in here. I don't know whether it would be legal to ask
5 There had been a union campaign and election in the plant the previous year. Super-
visor Maroney testified that the foremen had been given no instructions at that time.
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him or not. Would it be?" But in answer to the next question by union counsel he-
said that Buster "told us not to persuade the men to vote either way, for the com-
pany, or against the company."
Respondent's sincerity in instructing its foremen is rendered questionable by
the inconsistency and vacillation in its position concerning their statutory status.
The offending company agents named in the complaint were: W. Leon Jones,
president; Earl Goodwin, vice president and sales manager; W. Russell Buster, Jr.,
plant superintendent; Arthur C. Smith, assistant plant superintendent; Earl D.
Carswell, production manager, assembly department; J. C. Richey, night super-
visor; Gilbert H. Maroney, supervisor of fabricating department; Jim H. Thread-
gill, supervisor of drilling and machine department; Edward Cothran, night welding
foreman; and Francis Middleton, project engineer. In its answer to the complaint,
Respondent admitted that Jones, Goodwin, Buster, Richey, and Smith 6 were
supervisors within the meaning of the Act but denied the supervisory status
of the five remaining persons named in the complaint .7 This latter class of per-
sons had voted in a Board election held at the plant in the previous year and
they voted in the present election on the express instructions or advice of man-
agement. Donald Jones, a supervisor who testified under subpena on behalf of
the General Counsel, said that after the campaign started, the company's designa-
tion of the department heads was changed from "supervisors" to "leaders." It i&
unlikely that the company officials would or did go to any great pains to restrict
the campaign conduct of persons whom it was obviously trying to qualify as
nonsupervisory. I cannot escape the conclusion that the "instructions" were pre-
pared and read by Buster more for the purpose of "making a record" in the event
of unfair labor charges than for that of preventing supervisors' interference with
Respondent's employees' exercise of their rights under Section 7 of the Act.
I further note inaccuracy in the instructions in advising the supervisors that "it
is legal and you may if you wish make statements about the Union situation of
the following kind":
8. Point out that President Johnson has asked Congress to repeal the Sec-
tion of the Federal Labor Law that permits States-like Alabama-to have the
Right to Work Law which keeps the Union from forcing an employee to be
a member of the Union to get and keep his job. This means that all the em-
ployees-regardless of how they voted in the election-would be forced to
become members of the Teamsters and pay dues to the Teamsters or else they
won't be able to work if the Union gets in this plant.
Mere repeal or invalidation of the State "right-to-work" law would not, as these
instructions say, require all of Respondent's employees to be members of the
Union if the Union won. Union membership could be required only if Respond-
ent and, the Union agreed on a permissible union-security clause. If Respondent
is going to undertake to give legal opinions as part of an -antiunion campaign, it
manifestly should be held to a standard of reasonable accuracy.
I thus conclude that the "instructions" it issued to its foremen were in effect
to insulate Respondent from responsibility for the conduct of its foremen. Aladdin
Industries, Inc., 147 NLRB 1392,'• 1398. On the other hand Respondent' s giving
the instructions to these men "as supervisors -and foremen" in itself establishes
Respondent's recognition of the fact that it was responsible for their conduct. As
such,. it clearly 'negatives Respondent's, present contention that it was not respon-
sible because the foremen were simply talking as "friends" to employees with
whom, they work closely.$ The cases cited by Respondent are inappropriate. In
Mississippi Valley."Structural Steel Co., 64 NLRB 78, the Board held that minor
supervisors who were undisputedly members of the bargaining unit were entitled
to the same freedom and protection as other employees and' therefore their anti-
union activities could not be attributed to the employer unless he had encouraged,
authorized, or ratified them or otherwise acted so as to lead the employees to
believe the supervisors were acting for the employer rather than exercising their
6 The answer was silent as to Smith's supervisory, status but counsel stipulated to it at
the outset of the hearing.
7 At the hearing it withdrew its denials and stipulated to the supervisory status of the
five people in question.
8 Middleton testified that he sought and secured Respondent's permission to talk to the.
employees "as a friend."
BUSH HOG, INC. 1583
own individual rights under Section 7. In Quaker State Oil & Refining Corp v.
N.L.R.B., 119 F.2d 631 (C.A. 3), and N.L.R.B. v. Mallory Plastics Co., 355 F.2d
509 (C.A. 7), the courts held that the supervisors' offenses were isolated, casual,
and noncoercive.9 In the present case, the offenses charged were far from
isolated and the offending supervisors were not members of the unit.
2. The specific violations alleged
a. Threats
(1) Loss of benefits
Employee Virgil Porter testified that in a preelection speech either Buster or
Goodwin "said if the Union come in it might kill . . . the trust [pension] fund."
Employee Young testified that in speeches delivered on June 4 and 11 Jones "said
if the Union comes in you stand to lose everything you now have. That would
include the trust fund, paid vacations, and all of that." Employee Doyle Jones
similarly testified that in a speech to the punch press department President Leon
Jones "said that if Union came in that they could do away-bust up the trust
fund, that's the way he put it. He said they could -bust up the trust fund and
paid holidays and the Union could start off at lower wages." Wayne McNeal, an
employee, testified that Threadgill "said that if the Union come in we would
lose a lot of our benefits, namely, the trust fund."
Respondent argues that such testimony is probably a misconstruction of the
Company's advising the employees that, in the phraseology of a prepared speech
by Goodwin, "everything goes out on the table when the Union comes in to nego-
tiate." The speech referred to was one given by Goodwin (though apparently orio
inally intended for delivery by Jones) the day before the election. As to the possible
loss of benefits, Goodwin there said:
Now I'm not saying that if the Teamsters got in here you might end up
by losing some of the things you have now before the election. I, for one,
would be very sorry to see that happen because we have tried hard to make
this a good place to work.
But you men are certainly entitled to know the facts-the facts that the
Teamsters organizers won't tell you about-and that is that everything goes
out on the table when the Union comes into negotiate. _
This language, like the rest of Goodwin's prepared speech, appears calculated
to fall neatly within the defined scope of "free speech." But it nonetheless leaves
no doubt that a Union victory would entail the risk of loss of existing benefits.
It may be that this speech by itself would fall on the "free speech"- side of the
line. But, as in case of the "Instructions to Foremen" (supra, pp. 1581-82), I believe
that the Goodwin text was designed primarily for "making a record." This speech
is the only prepared text of a speech in the record. Goodwin testified that he had
read this speech from a prepared text because. "the only way I know to make
a correct statement and know that it is right is to write it down." Yet he admitted
that in other speeches during the campaign he had not used prepared texts. Jones
said that he had used, notes in his first speech and had prepared texts for the next
two. He conceded, however, that he had not read them' verbatim' but, rather,
merely used them as the basis for his remarks . He was unable to produce copies,
saying "we usually just throw that stuff away. I had no idea it would get' to this."
Several employees testified that he had not spoken from a prepared text in'any of
his three speeches.
The "Instructions to Foremen" contained no mention, of this subject. Yet super
visor Threadgill testified to a subtle , if confused , understanding . On direct examina-
tion he said:
I did tell Mr. McNeal that when a Union came in that all the benefits-well,
everything costs more-would be negotiated. They could start completely from
scratch and negotiate everything.
9I, of course, am bound by the Board decisions ( 27 NLRB 1321 , 1327 ; 149 NLRB
1649, 1652-53) which were reversed by the court decisions upon which Respondent relies.
Iowa Beef Packers, Inc., 144 NLRB 615, 616; Insurance Agents' International Union, 119
NLRB 768, 773.
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On cross-examination the following colloquy took place:
A. I didn't say the company would knock out any benefits.
Q. What did you say?
A. I said that everything that the company was giving would be negotiable.
I said that everything would be negotiated that was capable of being negotiated.
Q. Well, now, you said here that you said everything would start from
scratch?
A. That's right. What's the difference in that and what I just said?
Q. Well, did you tell him that everything would start from scratch?
A. I didn't say that everything would start from scratch. I said everything
that could be started from scratch and be negotiated. I didn't say everything
would start from scratch. [Emphasis supplied.]
In the absence of any "tangible evidence" 10 other than the text of one speech by
Goodwin, I discredit the testimony of Respondent's witnesses that they merely stated
the legal view that "everything was negotiable" in collective bargaining, and credit
the employees' testimony, summarized above, that Respondent's representatives
threatened the loss of existing benefits, principally the Company's pension plan, in
the event of a union victory. See Surprenant Mfg. Co. v. N.L.R.B., 341 F.2d 756,
761 (C.A. 6).
(2) Layoffs and removal of operations
Employees Louis McDonald, Johnson, Walter Goodman, Howard Smith, Young,
and Young's wife credibly testified that during the campaign Richey said that
if the Union won there would be many layoffs at the plant. Typical of this testimony
was McDonald's statement that Richey said "he would guarantee me within 30 days
that there wouldn't be ten men working there if the Union came in." Howard Smith
testified that Richey told him that "if the Union come in . they would lay all
the youngest men off other than the ten oldest men and keep them."
Employee Morgan testified that Richey said that "if the Union did come in .
they would probably lay the night shift off and just the older men would be there."
Employee McNeal quoted Threadgill as having said "that if the Union did come at
Bush Hog, just when we have a slack season around this time of year, well, they
lay off the night shift and put most of them on the day shift, and if the Union were
to come in, that I would lose my job, because I didn't have seniority." In its brief,
Respondent contends that Threadgill's statements were permissible because he was
"talking . . . about the personal experience he had with a Union." But no such
explanation is available for Richey's statements. Further, as Goodwin's prepared
speech boasts, Respondent had not been in the habit of laying people off during the
annual slack season. Thus Threadgill's experience of having been laid off for lack
of seniority at another company had no real relevancy to McNeal's situation with
Respondent.
Employee Ingall testified that he and employee Doyle Jones, an outspoken union
proponent, had had words, in "raised voices," when Ingall said he was not going to
sign a union card. A. C. Smith, assistant plant manager, having seen the episode,
told Ingall that "he was going to fire that boy [Doyle Jones] yet about this Union."
Employee Bobby Joe Smith credibly testified that Carswell said "he would love for
[Smith] to be somebody to stick with him, and the way it was, he wouldn't be able
to use nobody that was for the Union."
Employee James Jones quoted Richey as having said, a day or two before the
election, "that the plant would probably close down if the Union came in."
Employees Dennis, Roy Alan Smith, Pugh, Young, and Mrs. Young, testified
that Richey said that if the Union won, part of the Company's operations would be
10 As said in Aero Corp., 149 NLRB 1283, TXD at 1306:
.. . although the Respondent avoided making any supporting threats or promises
in these tangible, producible, and therefore undeniable expressions of its hostility, it
appears to me that the overwhelming detail of the employees' testimony reveals a
persistent, supplementary pattern of oral interrogation, threats, and promises'which,
with the greater freedom encouraged by an anticipated difficulty of proof, were built
upon , and deliberately extended and implemented, the Respondent's more guarded
printed or written expressions.. . .
BUSH HOG, INC 1585
moved to Kansas For example , Dennis testified that, on the night before the elec-
tion, Richey
come back these two or three different times over about a two-hour period
and told me that if the Union came in that there was going to be a lot of
people walking the railroad tracks And that if the Union did come in they were
going to send all the Southern Supply stuff over to Kansas and that would
reduce the workload to 15 or 20 men
Pugh quoted Richey as having said "that he seen it all down in black and white if
the Union came in they were going to pack up their Van-tiller Department (u ]
and move it to Kansas " Similarly, Wayne McNeal testified that Threadgill said
"they were planning on moving the Van-tiller Department and there would be a lot
of men out of work " According to James Jones, Foreman Cothran told him "that
the parts department would probably move to Indiana if the Union came in "
Company representatives testified that for some time, off and on, there had been
discussions of the economic advisability of transferring full production of one of the
Company's products to its plant in Kansas This plan, however, had long since been
definitely rejected I find that the foremen referred to the possibility of such a move
in connection with the election in such a manner as to constitute a threat in viola-
tion of Section 8 (a) (1), even though prior consideration of such a move had been
economically motivated
In its brief, Respondent says
The allegation of the complaint that foreman Gilbert Maroney told an
employee that they would be `laid off' in the event of a machinery breakdown
if the Union came in emerged at the hearing as nothing more than the agreed
fact that Maroney had, based upon what he had observed while working at a
Union plant, said that the employee would be assigned to a machine and would
be "sent home" in the event of a machinery breakdown under Union
contract
Precisely this threat of a reduction in flexibility of assignment has been held viola-
tive of the Act See Bauer Welding and Metal Fabricators, Inc v N L R B , 358
F 2d 766 (C A 8), enfg as modified 154 NLRB 954 In summarizing the employ-
er's conduct there held to be violative of the Act, Chief Judge Vogel said
He referred to petitioner's policy whereunder employees were trans-
ferred to other available work when their own particular work ran out and
advised that if the Union came in the work would be "stratified" so that
employees would be laid off instead of reassigned to other work
See also Graber Mfg Co, 158 NLRB 244, Federal Envelope Co, supra, 147 NLRB
at 1035
I find that Respondent threatened loss of employment as outlined above and thus
violated Section 8(a)(1) See Ambrose Distributing Co, 150 NLRB 1642, 1646,
enfd 358 F 2d 319 (C A 9)
Employee Wayne McNeal testified that Foreman Threadgill warned McNeal that
if he were to leave Respondent and seek work in another nonunion plant, "they
would call Bush Hog and ask them if I was for the Union and if they found out I
was for the Union they wouldn't hire me " Employee Louis McDonald quoted
Richey as having given a similar warning This testimony, which I credit,ii establishes
violations of the Act General Steel Pioducts, Inc, 157 NLRB 636
(3) Strikes and violence
The General Counsel maintains that Respondent's agents made several threats,
express and implied , of violence in the event of a union victory For example, he
refers to the testimony of employee Roy Chance that President Jones "said this
Union endorses-believes in violence If the Union came in we would strike and
we would have violence such as tire cutting, beating, cock-throwing and possibly
shooting " Employee Morgan testified that in his final speech to the night shift,
Jones "said there had been enough violence in Selma without bunging in a U uon "
11 The vari tiller, produced by Respondent, is a combined cultivator and planter
13 There was undisputed testimony that Selma is generally known as a staunchly non
union city
264-188-67-vol 161-101
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Virgil Jones said that in a speech about 2 weeks before the election, Pres-
ident Jones said that "if the Union comes in he would have to have men riding shot-
guns on the trucks" and that "there would be a mob out of Birmingham a-running
Bush Hog " Employee Jimmy Goodman quoted A C Smith as having said that the
Teamsters "believed in violence and we would be going to work worried about our
families " And employee Doyle Jones quoted Smith as having referred to the
Teamsters as "nothing but nigger-loving gangsters "
Respondent's officials generally denied making the statements attributed to them,
contending that the testimony was the employees' embellishments on President Jones'
and Goodwin's admitted references to a Teamsters strike which had occurred some
time before at the Bowman Company's plant near Selma A trucker had been killed
in the course of that strike Respondent's position is that its officials did nothing
more than inform or remind the employees of relevant "facts " For example, Good-
win testified as follows
Q Did you at any time make the statement that the Teamsters Union was
a Union of violence, in those words?
A No, I did not use those words I did say it was common knowledge dur-
ing the Bowman strike that they had some trouble and a man had been
shot
Neither Jones nor Goodwin, however, seems to have had any very precise knowledge
as to the "facts" of the Bowman situation Neither one knew just when the episode
occurred and Goodwin specifically testified that he did not know who had done the
shooting
As previously observed, only one of the speeches given by management was read
from a prepared next Employee Roy Chance testified that in his first speech, given
on June 4, without a prepared text, Goodwin "spoke of the Bowman Truck Drivers
strike and the shooting of the drivers, [ 13 ] and he said we don't want our truck
drivers shot " The "embellishments" on the Bowman strike, therefore, appear to
have been Respondent's rather than the employees'
I find, as maintained by the General Counsel, that Respondent's agents repeatedly
characterized the Teamsters as a union of violence and warned of probable violence
in the event of a strike at the plant However, standing alone, such statements, pur-
portedly honest opinions based on facts, might well be considered merely "partisan
electioneering," which the employees were able to evaluate as such Cf Coors Por-
celain Co, 158 NLRB 1108 But here the accusations against the Union were part
and parcel of an overall campaign which led the employees reasonably to believe
that bargaining would be futile and strikes inevitable if the Union won
Employee Walter Goodman testified that Richey "said if the Union came in the
onliest way we would get anything out of them would be would have to have to
strike " Employee Dennis testified that Richey had told him that "Mr Jones had
already said that he would not sign a contract " Louis McDonald, corroborated by
Morgan, testified that Richey had informed him that "Mr Jones would not sign a
contract unless everything was like it was now, no raises or anything like that " 14
This testimony, which I credit, establishes violations Moore Drop Forging Co, 144
NLRB 165, 168
Employees Young and Morgan testified that Richey had said that Respondent
had a stockpile of products across the river and was selling its trucks and leasing
them back so that it could continue operating in the event of strike Both Young
and Walter Goodman testified that Richey advised them that the Company could
permanently replace strikers after 3 days While such statements, in isolation,
would not constitute unlawful threats or coercion, I find that the "legal advice"
was given as part and parcel of conversations indicating that a strike was
inevitable
Employee Young also described a cartoon posted in the plant which conveyed
the same message 15 In his words, it
was a picture of Bush Hog on strike with a picture of Bush Hogs in the back-
ground The caption was a sign of a factory in the background , Bush Hog
18 So far as this record shows, only one driver was shot in the Bowman affair
111 do not credit Richey's testimony that he said only that Jones could not be required
by law to sign a contract on terms other than those then prevailing
16 A company official admitted responsibility for material posted in the plant during the
campaign See snfre, pages 1592-93
BUSH I-IOG, INC. 1587
Manufacturing ... men walking around with picket signs and then in the
foreground women and children shivering and cold and all that ... .
By indicating that strikes were virtually inevitable if the Union won, but impos-
sible without a union , Respondent clearly violated the Act. Peachtree City Ware-
house, Inc., 158 NLRB 1031, 1041; Bernardin, Inc., 153 NLRB 939; Brownwood
Mfg. Co., 149 NLRB 921, 924; Gal Tex Hotel Corp., d/b/a Admiral Semmes Hotel
and Motor Hotel, 154 NLRB 338; Heiman Wilson Lumber Co., 149 NLRB 673,
enforcement denied 355 F.2d 426. Cf. Daniel Construction Co. Inc. v. N.L.R.B.,
341 F.2d 805, 811 (C.A. 4), cert. denied 382 U.S. 831; Marshfield Steel Co. v.
N.L.R.B., 324 F.2d 333, 336 (C.A. 8).
In my opinion, the effect of this conduct was not counterbalanced by the state-
ments in Goodwin's prepared speech that "having the Teamsters in here would not
mean necessarily that there would be a strike here." 16 Assuming that Goodwin's
speech was confined within the scope of legally protected "free speech," it was
certainly close to the dividing line. I again find it most significant that this was the
only speech by Respondent's officials which was read verbatim from a prepared
text. There is substantial credited evidence that other statements by company agents
were not so carefully and guardedly worded. See Lyn-Flex Industries, Inc., 157
NLRB 598.
When Respondent created the impression that a strike was inevitable , its pre-
dictions of concomitant violence also became unlawful threats . Although, as pre-
viously stated, Respondent might be within its legally protected right of free
speech in expressing its opinion that the Teamsters had a proclivity to violence,
it overstepped the mark when it tied that opinion to the inevitability of strikes.
See General Industries Electronics Co., 146 NLRB 1139 . The net effect was to
instill in the employees a fear for their safety if the Union were elected.
In addition , Richey actually threatened violence by or on behalf . of Respondent
in the event of a strike . Employee John Young and his wife both testified that
Richey told them the sheriff's posse was "on standby" to break up a strike if
there should be one at Respondent 's plant . Young testified that Richey "said that
the sheriffs posse, of which he was a member at that time , was on standby to
come out and take off the strikers in case there was a strike." Counsel for Respond-
ent now argues, as he sought to establish on cross-examination of Young at the
hearing, that Richey said nothing more than that, in the event of a strike, the
sheriff's posse would be used, if necessary, to enable persons desiring to do so to
work.
ie The total context of those statements in the speech is:
Now, let's look again at what else it could mean to us all if the Teamsters should
get into this plant and into this community.
As I've said before, having the Teamsters in here does not mean that you would be
called out on strike. There are unionized employees who go for years and never have
to walk the picket line.
But all you have to do is to read the newspapers, listen to the radio, and watch
your television to know that strikes do happen-can happen-and have happened-
at plants where there are Unions.
You men have seen the pictures and read the reports about the Teamsters Union
strike in our neighbor state of Tennessee a few weeks ago where the employees who
wanted to come into their jobs were stopped and threatened by the Teamsters pickets.
You also have seen the pictures and read the reports-and probably remember your-
selves-about the men who tried to keep working and making a living during the Team-
sters Union strike against Bowman Transportation here in Alabama and were shot and
run off the road. I wonder who paid the hospital and doctors bills for those men-and
who supported and fed their families while they were recovering from the injuries done
to them for doing nothing more than trying to make a living during a strike'
The truth of the matter is that while having the Teamsters in here would not mean
necessarily that there would be a strike here, no one can predict the future and no
one can guarantee you that you wouldn't leave your job for the picket line if the
Teamsters should get in here.
But you can guarantee yourself that you won't ever be pulled out on a Union
strike, that you won't lose your paycheck and not even have unemployment com-
pensation to buy the bare necessities and that you will never have to risk losing your
job permanently to someone else in an economic strike. That you can guarantee your-
self and your families by voting NO.
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In a conversation with several employees at the plant Richey apparently did
say primarily that the sheriff 's posse would be used "to protect the workers that
wanted to work." But he did not stop there. Employee Morgap,testified as follows:
[Richey] also brought up about the sheriff 's posse. He said if the Union
came in to strike they would have a sheriff 's posse down there to protect the
workers that wanted to work. And at that point I asked him , I said "J. C., do
you mean to tell me that the sheriff's posse, the men on the sheriff's posse-"
he is from Selma and he is a member of the sheriffs posse. I said, "Do you
believe they would come down and hold back the strikers and wouldn't let
them strike the plant? He said he believed they would.
It is undisputed that Richey spoke in terms of a posse of some 300 men, a
rather large number in view of the fact that there were less than 200 employees
involved17 In its brief, specifically directed to a conversation which employee
Young and his wife testified they had had with Richey in a restaurant the Saturday
before the election , Respondent says "that the affidavit given [previously to a
Board field examiner ] by [Young] reflects the accurate version of Richey having
said that the posse would be used 'to allow the men that want to come in to cross
the picket line and work.' . .." But, with its brief, Respondent also filed a
motion to correct the transcript.18 In support of that motion, Respondent itself
observes that "Richey had previously testified that there was only one occasion
that had he talked about the posse in connection with the Union and this was in
the plant." I find it difficult to accept Respondent's presently claimed "accurate
version" of statements Young attributed to Richey when Richey denied having
made the statements at all.
Similarly, Respondent argues in its brief:
When this same witness [Young] testified to Richey having said that "a
lot of my friends and his friends would be hurt," he accurately related
the fact that he and Richey were personal friends and that Richey had said
that the Teamsters Union could result in friends being hurt, the intended refer-
ence being to the effect of the division over the Union on friendships.
But here again Respondent is trying to interpret ' statements allegedly made in a
conversation which Richey denied ever took place.19
17 The revised tally in the election shows approximately 190 eligible voters, with 152
valid ballots and 25 challenges sustained
iF The pertinent part of that motion concerns the following portion of Richey's direct
examination:
Q. Did you at any time make the statement to Janet Young or' John Young that
the Sheriff's Posse was on standby to break up the union if it came in'
A. Yes, sir.
Over the opposition of the General Counsel, I hereby grant Respondent's motion to correct
the transcript by changing the answer "Yes, sir" to "No, sir"
In addition, the motions of both the General Counsel and Respondent to correct the
transciipt are granted, with the following exceptions Despite the General Counsel's con-
currence, Item (5) of Respondent's motion is denied because my recollection is veiy clear
that the witness testified as shown in the transcript (although it is equally clear that he
inadvertently misspoke himself) , Item (9) of Respondent's motion is granted only to the
extent of the General Counsel's concurrence
19 Mr and Mrs Young were testifying to a conversation with Richey 'in the Coffee Pot
Restaurant on the Saturday before the election Their version was that when Mrs
Young entered the restaurant, Richey, who was sitting alone at a table, invited her
to join him ; she accepted his invitation and the two of them talked for some time until
Mr Young entered and joined them, after which the three of them talked for a considerable
period of time Richey denied that he had ever sat at a table in the Coffee Pot with Mrs
Young alone or with just Mr and Mis. Young He further denied having sat at a table with
them, even with, other people present, on the Saturday before the election. Respondent
thereafter produced as a sutness the manager of the Coffee Pot at the time in question
Her testimony, however, was vague and inconclusive In iebuttal, the General Counsel
recalled employees Roy Chance and Walter Goodman, who provided substantial corrobora-
tion for the Youngs' testimony concerning the Coffee Pot meeting of Richey with the Youngs.
The Youngs also testified to a postelection meeting they had had with Richey at the
Business Men's Club. In rebuttal, after Richey denied this event, the General Counsel pro-
duced a witness who corroborated the Youngs' version.
Based on all the evidence, including the demeanor of the witnesses and the inconsistencies
and evasiveness in much of Richey's testimony, I resolve the credibility issues in faior of
the Youngs' testimony.
BUSH HOG, INC. 1589
The Youngs testified that Richey had said that "a lot of your friends are going
to be hurt." The attempt of Respondent's counsel to establish on cross-examination
of Mr. Young that Richey was referring to "hurt feelings" rather than to a threat
of physical violence resulted in the following colloquy:
Q. Mr. Young, is it correct to say that what you are now trying to tell us
is that Richey was telling you that a lot of people were going to be hurt
physically by the sheriff's posse?
A. That's the way I interpreted it.
Q. All right. And did you interpret that because he said in so many words:
"A lot of your friends and my friends are going to be hurt because the posse
is coming in and take off the strikers"?
A. That is the only way I could figure he could hurt me was to beat me
with a club or shoot me with a gun or something of that nature.
Thomas A. Chappelle, an employee called as a witness by the General Counsel,
testified that he, like Richey, was a member of the sheriff's posse and was paid by
Respondent for the time spent serving with the posse.20 He stated that the duties
of the posse were "to aid the destruction after tornadoes or flood victims, and in
the event there was some company going on strike and there was some pickets at
the plant, and there was some trouble, that we would be called out to aid in this
and stop this conflict, to stop this trouble, to break this trouble." The methods of
the Selma sheriff's posse were well known and fresh in the minds of the populace
because of the recency of the freedom march.
I accordingly find that Richey made statements which the employees reasonably
construed as threats that a union victory in the election would result in the use
of force and violence on behalf of Respondent.21
Even if I were to accept Respondent's view, in accordance with Richey's testi-
mony, that he was referring to "hurt feelings" among friends and less harmonious
relationships within the plant, such statements, as a part of the total picture, would
themselves contribute to a finding of improper conduct. Graber Mfg. Co., 158
NLRB 244, 249: "A careful reading of Graber's speech compels agreement
with the General Counsel's contention that the speech contains `veiled threats that
if the employees selected the Union as their bargaining representative, the harmony
between Respondent and employees antedating the advent of the Union would no
longer exist and the employees would take sides with the Union against the
Employer in a never-ceasing conflict resulting in adverse economic consequences
to the employees' ... See also Shell Oil Co., 95 NLRB 102, 108-109.
One employee testified that a day or two before the election A. C. Smith "said
I hope you know what you are doing; would be just like enemies, one biting at
the other all the time." In its brief, Respondent calls this testimony "the more
accurate guide to the actual facts." Thus, on its own view of the evidence, Respond-
ent is guilty of unfair labor practices under Graber and Shell.
b. Promises of benefits
Four employees-Wilson, Langston, James Chance, Bobby Joe Smith-testified
that Carswell promised them raises if they voted against the Union. Although Cars-
well denied these allegations, he did testify that he had a mental list of employees
in his department whom he was going to recommend for raises and that he men-
tioned this "list" to some of the witnesses but told them that he could not do any-
thing at the time because his "hands were tied." Although he denied having told
the employees that it was the Union that had his "hands tied," he stated that he
thought one of the employees, at least, understood that that was the situation. He
readily testified that, within a week to a month before the election, he talked "with
not only [James Chance] but every man at one time or another":
I told him that I was counting on him standing with me the way I felt and
the way I was concerned and what my knowledge was about the Union and
what it had done.
20 Richey testified that he also received compensation from the sheriff's office.
y' The General Counsel contends that threats of violence made to Mrs. Young of her
home shortly before the election constituted violation by Respondent. Although Mrs.
Young believed that Richey was responsible, the caller was anonymous and I find that it
was not satisfactorily shown that Respondent was responsible. Accordingly, this episode is
not found to be a violation by Respondent.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He made unequivocally clear his extreme dislike and disapproval of the Union, to
not just one but several in groups." 22
After carefully weighing the testimony and appraising the demeanor of the wit-
nesses, I conclude that Carswell's statements and conduct were such to cause
the employees reasonably to believe that their individual chances for securing raises
would be improved by their voting against the Union and that raises for the em-
ployees generally were dependent upon defeat of the Union.
Similarly, I credit the testimony of the General Counsel's witnesses that Richey
had promised employees Louis McDonald and Dennis 10-cent-per-hour raises if
they voted against the Union; that Threadgill had assured employee Wayne McNeal
that he would get a raise and that his department would be the "highest paid" in
the plant if the Union were defeated; and that President Jones told Howard Smith
that he would be made a salesman if he stopped "dealing" in union cards.
I thus find that Respondent violated Section 8(a)(1) by promising benefits to
discourage votes for the Union. Pearson Corp., 138 NLRB 910, 912.
c. Interrogation
Five employee-witnesses testified that before the election Richey had asked them
how they felt about the Union or how they intended to vote. Five employees testi-
fied that they had been questioned by Carswell as to their union sympathies. One
employee testified that Middleton had asked him how he felt about the Union.
I credit this testimony and discredit the denials of the supervisors in question.
This resolution of the credibility issue is based on the demeanor of the witnesses
as well as on inferences from undisputed facts and testimony of the supervisors.
Undisputed testimony, provided by the supervisors themselves, establishes that
management regularly asked each department head for a report on how he believed
his department would vote. For example, Richey testified as follows:
Q. . at these meetings of supervisors that were called in there from
time to time, did Mr. Buster ask each of the supervisors to give him a report
on how his particular department stood insofar as the Union was concerned?
A. Yes, sir, he asked how we were standing.
A. He said "what percentage do you think your department is standing
right now?" And I would tell him.
Q. What did you tell him? Or did you make these reports from time to
time?
A. Yes, sir.
Q. How frequently did you make them during the campaign?
A. About once a month, maybe every two weeks or something. It wasn't
every week.
It is difficult for me to believe that the foremen, anticipating requests for reports
on the percentage standing of the employees in their departments, would scrupu-
lously refrain from inquiries of the employees. My skepticism is intensified by the
testimony of Supervisor Donald L. Jones (who testified under subpena on behalf
of the General Counsel) that,he was instructed by Leon Jones, Respondent's presi-
dent, to "talk to the men ... that was on the fence, that was apt to go either
way.,,
Interrogation clearly appears to have been very frequent. For example, employee
Lipham testified that Carswell "was always asking me how I was going to vote. He
said he needed my vote." Lipham mentioned two specific instances, one of them
in the voting line. Employee Louis McDonald testified that Richey spoke to him
about the Union "several times" and "asked me how I felt about the Union, if I
was for it or not." On cross-examination, he stated that Richey "was on me all
the time about this Union."
Maroney, head of Respondent's fabricating department, admitted having asked
Don Pierce, an employee, to tell him which of the employees were prounion.
Respondent contends that this event should be ignored as an "isolated incident"
occurring before "the foremen were instructed by the Company not to engage in
=Compare the testimony of Foremen Richey and Maroney to the effect that they were in-
structed not to say anything "against" the Union. Respondent's brief concedes that "Cars-
well told some of the employees that he needed their vote and that he was counting on
their vote"
BUSH HOG, INC. 1591
such conduct." However, as already seen , this episode was not "isolated" but
rather was part of a general pattern of interrogation by supervisors 23 In addition,
as previously found, the "instructions" to foremen were ineffective, and there is
no evidence that Maroney's conduct was ever repudiated by management. Thus
Maroney's admitted interrogation cannot be disregarded. Time-O-Matic, Inc. v.
N.L.R.B., 264 F.2d 96, 99-100 (C.A. 7).
Having denied all allegations of interrogation (except that by Maroney),
Respondent did not attempt to supply any legitimate reason for questioning the
employees (Johnnie's Poultry Co., 146 NLRB 770, 775); nor did it assert that any
interrogation had been accompanied by assurance against reprisals. Thus, even
when not immediately accompanied by direct threat of reprisal for union member-
ship or activities, the interrogation found to have occurred against the background
of union animus constituted violations of Section 8(a)(1). Koch Engineering Co.,
Inc., 155 NLRB 1272; Orkin Exterminating Co. of South Florida, 136 NLRB 399.
Cf. Martin Sprocket & Gear Co. v. N.L.R.B., 329 F.2d 417 (C.A. 5).
I thus find that Respondent violated Section 8(a)(1) by unlawfully interrogat-
ing employees as to their union sympathies and membership.
d. Surveillance
The complaint alleges two instances in which company representatives had
"created the impression of surveillance of union activities." I find that these allega-
tions were not supported. In this connection, the General Counsel's evidence
showed at most that some of the company representatives indicated that they
knew a union organizing campaign was under way and knew the union sympathies
of Roy Chance, who was outspokenly and zealously supporting the Union and
soliciting memberships.
As an example of the alleged surveillance, the General Counsel refers to an
employee's testimony that at a company party President Jones said: "I hear there
has been some Union cards floating around in the plant." It would be strange
indeed if Jones did not know that, since the statement was allegedly made around
the same time that the Union claimed it had cards signed by a majority of the
employees in the unit.
Employee Roy Chance testified that in a speech on June 18 Jones "said he
received a list of fellows who signed Union cards." The fact is that under date of
June 16 the Union had sent Jones a list of employees who the Union claimed had
signed cards . Jones' reference to that fact can hardly be said to "create the impres-
sion of surveillance." 24
Accordingly, I recommend- dismissal of the portions of the complaint alleging
improper surveillance of-union activities.
e. The racial issue
The complaint contains allegations that Jones and Goodwin told employees that
if the Union was elected bargaining representative, some of the Company's employ-
ees would be laid off and replaced by Negroes 25 In objecting to the election, the
Union alleges that Respondent injected the racial issue into the campaign , "which
prevented employees from exercising a true choice in the selection of a bargaining
22 Employee Jimmy Goodman testified that Buster and A. C. Smith had each questioned
him once. These incidents by management , however , appear to have been clearly non-
coercive and "isolated"-not within the general pattern of interrogation , which was ef-
fectuated through lower echelon supervisors.
21 Jones claimed that , on advice of counsel , he had not looked at the list. Such self-
restraint seems extraordinary, particularly when the evidence was undisputed that man-
agement was so desirous of learning how it stood that it requested regular reports from
its department heads. However , it is immaterial to any issue in the case whether Jones
read the list or not. In the absence of contradiction , I credit Jones' testimony that he
did not look at the list . However, I discredit Jones' denial that he told the assembled em-
ployees that he had received such a list.
28 The complaint further alleges that Buster and Smith solicited employees to sign
untruthful statements that they had been threatened with loss of their jobs to Negroes
if they did not sign union cards. In support of this allegation , the General Counsel's brief
refers to certain testimony by employee Williams. In my opinion, the testimony referred
to is too confused and inconclusive to warrant a finding. Accordingly, it is recommended
that this portion of the complaint be dismissed.
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative." Respondent, on the other hand, maintains that the Union injected
the racial issue into the campaign and "the Company's references to this subject
were in answer to the Union's misrepresentations."
The record leaves no doubt that management, foremen, and employees were
virtually unanimous in their anti-Negro sentiments and in their opposition to any
form of integration.26 Company witnesses freely admitted that, although it was
unnecessary to do so, they frequently reminded the employees that the Teamsters
Union (or Jimmy Hoffa) had contributed $25,000 to Martin Luther King at the
time of the freedom march from Selma to Montgomery.27
The prepared speech read by Goodwin contains the following passage:
Now, the Teamsters are still trying to tell you men that if you don't vote
for them, you will lose your job and seniority to colored folks because of the
Civil Rights Act.
All I can say is that if that's not proof that they think they're dealing. with
a bunch of children, I don't know what is. In fact, I wouldn't even bother to
mention it again except that it is such an insult both to us and to you to
expect you men to believe that the Teamsters Union should be called in here
to protect you against integration. Because you men know that this Teamsters
Union-with a President who will contribute money to an integration leader-
is just not very likely to be turning right around and fighting integration.
Jones, Respondent's president, had been chairman of the White Citizens' Council
of Selma in 1964. Although Respondent's witnesses denied that Jones had referred
to that fact in his speeches to the employees, they readily acknowledged that it
was a matter of general knowledge to the employees. Several of the Company's
witnesses (as well as Roy Chance, a leading union supporter) testified to member-
ship in that organization. One of Respondent's witnesses, after testifying that the
organization believed in white "integrity," admitted that actually the organization
favored white "supremacy." All agreed that the Council strongly favored segregation.
There was considerable credited evidence of specific threats by company repre-
sentatives that a union victory would mean the end of segregation. Two employees
testified that Richey had said that if the Union came in, Negroes would be hired
at the plant. Employee Doyle Jones quoted A. C. Smith as having referred to the
Union as "nothing but nigger-loving gangsters" and employee Louis McDonald
testified that President Jones and Goodwin "said that if the Union went in and all
that, that we would have to work with Negroes" but that if the Union were not
elected the Company "would keep them out." Paul Young testified that, in his last
speech before the election, President Jones, after referring to the Teamsters' dona-
tion of $25,000 to Martin Luther King, "went on to'say that we are not going to
hire any Negroes. He said if the Union comes in you will be working beside
Negroes."
The evidence showed that, among several posters in the plant during the cam-
paign, a large one prominently displayed above the timeclock showed a "fat"
Negro smoking a cigar and, saying something to the effect that "Us and that Union
are going to change things around here." Robert Ouellette, in charge of production
and inventory control for Respondent, testified as follows:
Q. (By Mr. Newson) [counsel for the Union]. Mr. Ouellette, were you the
man who is in charge of getting up the posters that were used in connection
with the pre-election campaign?
A. Yes.
20 As Respondent states in its brief: "It is certainly true enough that the emotions of
the populous of the Selma area were charged last year with the atmosphere of the Negro
revolution for equality and the march from Selma to Montgonmery."
1',' This "factual " statement a ppears to fall within the scope of permissible "free speech"
under prior Board decisions and I accordingly do not find that such statements in them-
selves "constituted Violations of the Act . 'I do suggest , however, that, as truth is not
necessarily a defense to a charge of slander , so "factual statements" might under some
circumstances be coercive and not protected by Section 8(c). In the atmosphere prevailing
in Selma at the time of the election in this case , admittedly unnecessary reminders of
the Teamsters '- contribution to Reverend King could not have been other than inflam-
matory. And, as the Board said 4 years ago in Sewell Mfg. Co., 133 NLRB 00, 70: "Stand-
ards, particularly those of permissive propaganda are not fixed and immutable . They have
been changed and refined, generally in the direction of higher standards."
BUSH HOG, INC. 1593
Q. And as part of that did you get made up a poster that had a Negro man on
it with a cigar and his foot on a box and some lettering to the effect generally:
"Us and that Union are going to change things around here?"
A. I do remember one of those posters. Believe me, I didn't get it made up. It
was volunteered to me by one of the men in the shop . . . . It was sort of
obvious anyway, this one here, I remembered there was some darky, I don't
remember what he was saying-I don't believe he had a cigar-that is immate-
rial, of course. I don't know what he was saying. He was saying me and the
Union are going to-I don't know what he was saying, but I do remember it
was kind of cute.
He then testified that the day before the election Joe Langston, an employee (who
testified on behalf of the General Counsel), had asked Ouellette to take down a
poster. In this connection, Ouellette said that Langston "is always in the way of
everybody, that boy. Everything, he is always doing that." Apparently Ouellette, a
company representative, considered anyone a "crank" who objected to a "cute"
appeal to race prejudice.
I reject Respondent's argument that it merely answered the Union's "misrepre-
sentations" on the race issue. In support of this contention, Respondent refers to
testimony by Foremen Cothran and Richey, respectively, that employees Roy
Chance and Young had said that the Union was necessary to protect the present
-employees' seniority over Negroes. Assuming that these employees made such
statements, I find nothing in the record which would warrant their being
attributed to the Union. Indeed, Respondent itself labored •hard to place the "pro-
Negro" or integrationist "stigma" on the Union. See Goodwin's prepared speech,
quoted above. An authorized agent of the Union was present throughout the hearing
and testified twice. Respondent made no attempt to question him on the racial issue
or the Union's position during the election campaign here involved.
In any event, it is clear that Respondent did not restrict its discussion of the
race issue to that necessary to combat alleged misrepresentations by the Union.
The obvious way to circulate truth, had that been Respondent's desire, would
have been to inform the employees that, under the law of the land,28 neither the
Union nor Respondent could lawfully take measures to maintain racial discrim-
ination in hiring and employment at Respondent's plant. Instead of this, Respond-
ent merely impressed the employees with the fact that the Teamsters Union was
"integrationist" and thus "is just not very likely to be turning right around and
fighting integration." The obvious message was that, without the Union, Respond-
ent would resist the "change" which the cartoon poster said the Union wanted to
bring about. Respondent thus was, at least impliedly, promising to violate the
law if the Union lost the election.
The evidence is overwhelming the Respondent threatened that a union victory
would mean an "undesirable" change in working conditions by enforced employ-
ment of Negroes. On the evidence, Respondent's reliance on Allen-Morrison Sign
Co., 138 NLRB 73, is misplaced. More closely in point on the facts of the pres-
ent case is Atkins Saw Div., Borg-Warner Corp., 148 NLRB 949, 954-955. See
also General Steel Products, Inc., 157 NLRB 636. I find that Respondent's appeals
to race prejudice were violations of Section 8(a)(1) under Atkins Saw, and call
for setting aside the election under Sewell Mfg. Co., 138 NLRB 66.
f. Voting by foremen
The Union objects to the election on the ground, inter alia, that Respondent
permitted its department heads, "supervisors" under the Act, to vote in the elec-
tion. Although the complaint does not allege this fact as a violation of Section
8(a)(1), in his brief the General Counsel supports the Union's position.
As stated above, there is substantial undisputed evidence that the department
heads voted on the express instructions of management-in one instance by Bus-
ter directly, in the rest by A. C. Smith, who was transmitting instructions from
his superiors.
In its brief, Respondent argues that "it was open to question whether [the fore-
men] were in fact supervisors within the statutory definition" and they "were ac-
cordingly allowed to vote subject to challenge so that their status could be deter-
-'s E.g., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mined by the Regional Director in accordance with the customary procedure." 29
The evidence, however, does not support this contention. While Buster testified that
"this factor of eligibility was somewhat of a point for discussion," he conceded that
the "instructions for Foremen" prepared by counsel were intended for these men
and that Buster thought they were applicable to them 30 There was not the slightest
suggestion that management had communicated to the employees that the super-
visors were voting at that time to "test" their status.
Richey's situation is particularly revealing. As found by the Regional Director, he
was the highest ranking employee on the night shift. A month or more before the
election, he was advised by management that he would not be eligible to vote. How-
ever, on the day of the election Smith told Richey to vote since everybody "on the
clock" was to vote. At the hearing, Richey himself testified that " regardless of
whether I am on the clock or whether I am not, [Smith] knows I am a supervisor,
and he knew I punched the clock." In its answer to the complaint , Respondent
admitted Richey's supervisory status.
None of the other supervisory personnel (with the possible exception of Middle-
ton, a project engineer) testified to having ever had any doubt as to their super-
visory status. Indeed, they generally affirmatively testified to such status.
In view of the facts, and considering the demeanor of the witnesses , I conclude
that Respondent did not entertain any good-faith or reasonable doubt as to the
ineligibility of its foremen when it instructed them to vote in the Board election.
Such action could have been taken for no purpose other than to affect the result of
the election improperly.
This case does not fall within the scope of Brown-Dunkin Co., 118 NLRB 1603;
Dixie Broadcasting Co., 120 NLRB 869; and M & T Co., 122 NLRB 883, upon
which Respondent relies. All those cases involved employers' objections to voting
by persons who the employers contended were ineligible as supervisors , an entirely
different situation from that here presented, where the complaint charges that the
employer interfered with rights conferred on employees by Section 7 of the Act.
In the present case, management agents, whose antiunion views were well known,
stood in the election line for extended periods of time right along with the employ-
ees who worked under them. Indeed, according to testimony which I credit, at least
Foreman Carswell actively campaigned while standing in line waiting his turn to
vote.
On all the evidence, I recommend that the election be set aside for Respondent's
misconduct in "causing its supervisors . to intermingle at the polls with eligible
voters, and thereby interfering with the fair and proper conduct of this election."
Crown Aluminum Industries Corp., 150 NLRB 58, 60, affd. 352 F.2d 84 (C.A. 3).
g. Respondent's defenses
(1) Affirmative defenses to the complaint
In its answer Respondent contended that the complaint should be dismissed
because the Union, the Charging Party, had been guilty of misconduct violative of
Section 8(b)(1) of the Act. The alleged misconduct was (1) "[s]tating to one or
more employees . . . that `they had better sign cards for the Teamsters Union or
some of the boys would work them over,' or words to that effect"; (2) stating that
employees who did not sign union cards would lose their jobs; and (3) stating, in
various forms, that without the Union white employees would lose their jobs to
Negroes. Respondent contended that, on an adaptation of the equitable doctrine of
"clean hands," this alleged misconduct "of or attributable to the Union" requires
dismissal of the complaint based on the Union's charges. The General Counsel
moved to strike Respondent's affirmative defenses and that prehearing motion was
referred to me for ruling.
In its brief Respondent states that it recognizes that Board decisions, which are
binding on me, are adverse to its position and therefore "we do not argue the affirm-
x'In its answer to the complaint, Respondent contended that the Regional Director's
determination that three of the foremen were supervisors "should not be determinative or
binding in the present unfair labor practice case."
30 There might have been some question as to .Middleton, since he testified that he did not
regularly attend supervisors' meetings. However, he was out of town at the time of the
election and thus did not vote. It also appears that Foreman Cothran did not vote, since
there is no record of any challenge as to him.
BUSH HOG, INC 1595
ative defenses in this brief " Respondent's failure to argue the question cannot
relieve me of the obligation to rule on the General Counsel's motion to strike the
defenses
The Board has clearly held that improper conduct by a charging union does not
lessen the necessity of effectuating the purposes of the Act to protect employees
Laura Modes Co, 144 NLRB 1592, 1595-96, Local 1150 United Electrical, Radio
and Machine Workeis, 84 NLRB 972, 979 31
Accordingly, the General Counsel's motion to strike the affirmative defenses is
granted
(2) Opposition to direction of a new election
In its brief Respondent argues that because it "has already been practically a year
since the holding of the election no useful purpose will be served in making
findings with respect to the Petitioner's objection' and that the objections should
accordingly be dismissed "
In my opinion a very useful purpose will be served by direction of a new elec-
tion with a requirement that the employees be informed that the first election was
set aside because of Respondent's misconduct The Lufkin Rule Co, 147 NLRB
341 It is a fair, if not indeed a necessary, inference that Respondent's widespread
misconduct has undermined the strength of the Union in the plant Unless the
employees are specifically and unequivocally informed of their rights by Respond-
ent's management and assured that in a new election there will be no repetition of
the misconduct here found, it is possible that the Union will not feel itself in a
position to file another petition for certification at the end of the year or immedi-
ately upon conclusion of the present proceedings Accordingly, I recommend that
the representation proceeding be severed and remanded to the Regional Director
(Western Reserve Telephone Co, 138 NLRB 755, footnote 3) with the recommen-
dation that he direct another election when he "is satisfied that the effects of
[Respondent's unfair labor practices] have been dissipated and determines that a
free and untrammeled election can be held " Reliance Steel Products Co, 135
NLRB 730, 731 A suggested statement for inclusion in the notice of election is
attached as Appendix A [omitted from publication] It is recommended that the
notice be given to the employees both in writing and oi ally
Conclusory Discussion
In line with the Board 's decision in Winn-Dixie Stores, Inc and Winn-Dixie
Greenville , Inc, 128 NLRB 574, I have attempted to discuss all of the numerous
alleged violations of Section 8(a)(1) However, the profusion of allegations, with
some falling into several categories , precludes fruitful item-by-item discussion Most
important is the fact that, while some of the specific events alleged as violative of
the Act were individually either borderline or not very substantial , Respondent's
conduct as a whole presented an overall pattern of coercive misconduct Federal
Envelope Co, supra, 147 NLRB at 1040 Further detailed discussion would simply
be cumulative and could not affect the scope of the remedial order to be issued
Guy's Fords, Inc, 158 NLRB 936, footnote 1 "A reading of the record compels the
conclusion that the Company violated Section 8(a) (1) of the Act by threatening,
inducing and interrogating employees in regard to union activities " N L R B v
Big Three Welding Equip Co, 359 F 2d 77 (C A 5)
81 In my opinion, National Packing Co v N L R B , 352 F 2d 482 (C A 10), and
N L R B v Bin Dicator Co , 356 F 2d 210 (C A 6), do not support Respondent' s position
Both of those cases were concerned with reinstatement of discharged employees To hold,
as did the Tenth Circuit in National Packing, that "A grant of reinstatement with pay to
employees who have violated the Act does not effectuate the policies of the Act" ( p 485)
is not authority for holding that misconduct of a union would serve to exonerate an em
plover of unlawfully interfering with the statutory rights of employees who were not
shown to have themselves been guilty of any misconduct And in Bin Dicator the court held
that an employer should not be required to resume an employment relationship with an
employee who, after his discharge , had made "ugly promises and threats of inflicting
crippling mayhem upon two members of respondent's supervisors and that one day he
would 'get them ''I Having seen and heard the witnesses, I there concluded that the em
ployee was "likely to fulfill" his threats, and the court held that the Board's reversal
of that actual determination was unwarranted Both factually and legally these two cases
are entirely different from the present one
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Similarly, item-by-item consideration of the Union's 17 separately numbered
objections to the election 32 would serve no useful purpose , since the misconduct
previously found would a fortiori require a finding that Respondent interfered with
its employees ' exercise of a free and untrammeled choice in the election Playskool
Mfg Co, 140 NLRB 1417, 1419 , Dal-Tex Optical Co, 137 NLRB 1782, 1786-87,
Ideal Baking Co of Tennessee, 143 NLRB 546, 552-553
B Case 15-CA-2720-3
In August 1965 Chelcia Averette was transferred from the job he was then doing
to another job On or about October 6, he was called into the office of Mr Buster,
plant superintendent , and told , in effect , that if his work did not improve he would
be suspended for 3 days At that point he said he was quitting , giving 1 week's
notice The next day , however , he told A C Smith , assistant plant superintendent,
that he had changed his mind and did not want to quit He was told, however, that
his resignation was being taken as final and could not be withdrawn
The General Counsel alleges that Averette was discriminatorily "discharged
and/or constructively discharged " Respondent contends , on the other hand, that
Averette "voluntarily resigned while asking that he be discharged for the pur-
pose and the reason that he might be able to collect unemployment compensation
benefits "
There was a great deal of conflicting evidence concerning the quality of Averette's
work , the circumstances of the termination of his employment , and other matters
However , I find it unnecessary to resolve any of these conflicts , since I find that
the General Counsel has totally failed to establish that union sympathies or activi-
ties were in any manner involved in the discharge
In his brief, the General Counsel says
It is submitted that while the union activities of this discrimmatee were slight,
such as they were, they were known to the Respondent
In my opinion , it is an overstatement on this record to refer to even "slight" union
activities by Averette
In support of his contention that those slight activities were known to Respondent,
the General Counsel says only
Ever since June 19, 1965, the Respondent knew that Chelcia Averette was a
union adherent because on that date the Respondent received a list of all those
who signed union cards and Averette 's name was on it
Although entertaining a bit of skepticism, I have heretofore found (supra, page 1591,
footnote 24) that Respondent's management did not examine the list of names which
the Union sent to the Company However, even if Respondent had read that list and
observed Averette's name on it, I would hold that the General Counsel had not
made any prima facie showing of a violation of Section 8(a)(3) The list referred
to contained the names and addresses of 97 employees I certainly could not find
that Averette was the victim of discriminatory treatment under Section 8(a)(3)
simply because Respondent may have known that he was one of 97 employees who
the Union claimed had signed union cards
Apart from this list, the General Counsel does not point to one shred or scintilla
of evidence tending to indicate that Respondent knew that Averette was a union
supporter or adherent In the General Counsel's direct examination of Averette
there was no reference to the Union , it was not mentioned until redirect examina-
tion The extent of Averette's pertinent testimony at that time was
Q When you came back to work after your back was hurt at one time did
any supervisor ever talk to you about the Union?
A Yes, sir, two of them did
Q Who were those
A Smitty and Francis Middleton
32 Most of the objections were stated in general terms The Union produced no witnesses
of its own Thus, several of its objections which alleged facts not alleged by the General
Counsel were not supported by evidence The Union's failure to support all of its objec
tionc, however, does not alter my recommendation that the election be set aside
BUSH HOG, INC 1597
A [Smitty] come over there and asked what was the matter with all us boys
over there in that department, and I asked him why And he said they are fixing
to organize a Union over here
Q And what did you say to him?
A I told him I hadn't heard anything about it
* e * x x
A Francis come over there and he was fixing to go out somewhere, I don't
know whereabouts It was just before election He talked to me for a good while
about the Union He wanted me to change my mind and vote for the company
On further cross-examination, Averette testified as follows
Q (By Mr Gardner) Mr Averette, at the time you told Smitty that you hadn't
heard nothing about any Union, did Smitty then turn around and walk away9
A Yes, sir
I do not find this to be even "slight" evidence of union activity on Averette's
part On the other hand, there was credible testimony that, to the extent Averette
expressed any views, he gave the impression that he was opposed to the Union
Accordingly, I recommend that the complaint in Case 15-CA-2720-3 be dis-
missed in its entirety 33
IV THE REMEDIES
In view of the scope of Respondent's unfair labor practices, I recommend a
broad cease and desist order, restraining Respondent from infringing on any of the
rights guaranteed to employees by Section 7 of the Act Bernardin, Inc, supra, 153
NLRB 939, 953-954, Peachtree City Warehouse, Inc, supra, 158 NLRB 1031, 1042
I further recommend that the result of the election of June 25, 1965, be set aside
and a new election be ordered by the Regional Director as soon as he deems
circumstances to permit the free choice of a bargaining representative, or upon
written request of the Union in the event that Respondent fails or refuses to com-
ply with the order in the complaint case It is further recommended that the notice
of election specifically state that the prior election was set aside because of mis-
conduct by Respondent
Additionally, because the record discloses that a substantial number of Respond-
ent's employees are unable to read, I recommend that the notice to be posted in
connection with the complaint proceeding and the notice of a new election be
read to the employees at a meeting or meetings called by Respondent for that
purpose
CONCLUSIONS OF LAW
1 Respondent, Bush Hog, Inc, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 The Union, Teamsters Local Union No 612, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
Ind, is a labor organization within the meaning of Section 2(5) of the Act
3 Respondent interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act, and thereby committed
unfair labor practices affecting commerce within the meaning of Section 8(a)(1)
of the Act by interrogating employees concerning their union sympathies and
activities, threatening economic reprisals, layoffs, removal of part of the Company's
operations, violence, and other detriment if the Union were elected bargaining
agent, by promising benefits to some employees for voting against the Union and
to the employees generally if the Union lost the election
4 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act
5 Chelcia Averette was not discriminated against for union membership or
activities within the prohibition of Section 8(a)(3) of the Act
[The Recommended Order omitted from publication ]
' On this conclusion, Respondent's affirmative defense, based on its allegation that
Averette wanted to be fired so that he could collect unemployment compensation becomes
moot I therefore refrain from passing on the General Counsel's motion to strike the
affirmative defense