Herider Farms, Inc.

National Labor Relations Board - Board Decisions

May 7, 1982

261 N.L.R.B. 762 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Herider Farms, Inc. and United Food and Commeri-
cal Workers, AFL-CIO, Local 540. Cases 16-
CA-8856, 16-CA-9142, and 16-RC-8118
May 7, 1982
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 20, 1981, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief. The Charging
Party filed cross-exceptions and a supporting brief.
In addition, the Charging Party filed a responding
brief to Respondent's exceptions; and Respondent
filed responding briefs to the Charging Party's
cross-exceptions and the Charging Party's respond-
ing brief. The General Counsel filed a brief in sup-
port of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions' and
briefs and has decided to affirm the rulings,2 find-
ings, 3 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Herider Farms,
Inc., Nacogdoches, Texas, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the said recommended Order.
IT IS FURTHER ORDERED that the election in
Case 16-RC-8118 held on May 7, 1980, be, and it
hereby is, set aside, and that case is hereby remand-
ed to the Regional Director for Region 16 for the
t In the absence of exceptions we adopt, pro forma, the Administrative
Law Judge's recommendation to overrule the Union's Objections 3, 7, 8,
9, 10, 12, and 14, to conduct affecting the May 7, 1980, election.
2 Respondent and the Charging Party have excepted to certain credi-
bility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an administrative law judge's resolu-
tions with respect to credibility unless the clear preponderance of all of
the relevant evidence convinces us that the resolutions are incorrect.
Standard Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing his findings.
s In the absence of exceptions, we affirm the Administrative Law
Judge's finding that Respondent did not violate Sec. 8(aXI) of the Act
when it made "Vote No" stickers available at the employees' check-in
table.
purpose of scheduling and conducting a second
election at such time as he deems that circum-
stances permit a free choice on the issue of repre-
sentation.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
matter was heard in Nacogdoches, Texas, during July
and August 1980, based on a consolidated complaint al-
leging that Herider Farms, Inc., herein called Respond-
ent, violated Section 8(a)(1) and (3) of the National
Labor Relations Act, herein called the Act, by discrimin-
atorily discharging Regina Blackshire and Mack Tutt be-
cause of their activities on behalf of United Food and
Commercial Workers, AFL-CIO, Local 540, herein
called the Union, and/or because they engaged in con-
certed activities with other employees for the purpose of
collective bargaining and other mutual aid and protec-
tion, and by also engaging in various acts over a period
spanning December 11, 1979, to May 7, 1980, that inter-
fered with, restrained, and coerced employees in the ex-
ercise of the rights guaranteed them by Section 7 of the
Act; and based further on the Regional Director's
Report on Objections concluding that 23 timely filed and
remaining objections to conduct affecting the results of
an election conducted on May 7, 1980, raised substantial
and material factual issues, many of which were coexten-
sive with the allegations of the consolidated complaint,
and which were therefore best resolved through a hear-
ing.
Upon the entire record,' my observation of the wit-
nesses, and consideration of the post-hearing briefs,2 I
make the following:
FINDINGS OF FACT AND RESULTANT CONCLUSIONS
OF LAW
Respondent operates poultry processing facilities at
Nacogdoches and nearby Lufkin, Texas, where at times
past the Union represented hourly employees.3 Such rep-
resentational standing ended in 1978 upon decertification
elections at the separate locations.4 In mid-1979, investi-
gatory campaigning was commenced at both plants by
Bunn Butler, an International representative of the
Union. The Lufkin operation was thereafter closed in
Certain errors in the transcript are hereby noted and corrected.
2 The Charging Party enlarged on its brief by letter dated October 20,
1980, to which there was a countering reply from Respondent dated No-
vember 25, 1980.
3 In the course and conduct of its described business Respondent annu-
ally purchases and receives goods valued in excess of $50,000 directly
from points outside Texas, while selling and delivering goods and prod-
ucts valued in excess of $50,000 directly to points outside Texas. On these
admitted facts, I find it to be an employer engaged in commerce within
the meaning of Sec. 2(6) and (7) of the Act, and otherwise that the Union
is a labor organization within the meaning of Sec. 2(5).
4 The Union as presently constituted is a merged labor organization
having previously been Local 540, Amalgamated Meatcutters and Butch-
er Workmen of North America, AFL-CIO.
261 NLRB No. 113
762
HERIDER FARMS, INC.
November 1979, and numerous employees transferred to
a newly established second shift function in Nacog-
doches.5 Butler converted his campaign to an active or-
ganizational basis on December 3, 1979, focusing it on
the Nacogdoches plant where he had already established
employee contacts. Ultimately, a petition was filed on
March 10, 1980, and, pursuant to a later Decision and
Direction of Election, a vote by secret ballot was con-
ducted on May 7, 1980, in a unit of regular production
and maintenance employees. "Inside and outside plant
cleanup" and "lead persons" were among the several
particular occupations included within the voting unit,
while customary exclusions obtained. A majority of the
valid votes and challenged ballots counted after the elec-
tion were not cast for the Union, and thereafter a group
of objections were timely filed. Of the original number
there are now 21 still pressed for resolution. The Region-
al Director found that Objections 3-5, 10, 14, and 15-20
were coextensive with allegations in the complaint as
violative of Section 8(a)(l).6 It is implicit that Objection
I relating to the termination of Mack Tutt is also coex-
tensive with an allegation that Section 8(a)(3) was violat-
ed in regard to him, while the Charging Party has taken
the position that Objections 11 and 23 are coextensive
with paragraph 7(b) of the complaint, listing certain con-
duct as assertedly violative of Section 8(a)(l). The re-
maining unwithdrawn objections are set forth verbatim
as:
3. During election Guard followed discharged
employee, Mack Tutt, into voting area intimidating
employees waiting to vote.
7. During the election, supervisor, Johnny
Garcia, told a group of employees wearing "vote
no" stickers, "You all go on and vote."
8. During the election company observer was
hugging employees as she released them to go vote
and placed her hand affectionately on their shoul-
ders.
9. During the election the company observer was
walking around polling area observing line of voters
and opening [the] door for them.
10. During the election supervisor, Buddy King,
was asked by the company observer, "Where are
the maintenance employees?" He said, "Scattered
all over the plant." She said, "Go tell them to go
and vote." He left and soon the maintenance em-
ployees showed up to vote.
12. Union, company and NLRB had agreed on
three (3) observers each. The company insisted on
5 This closing was characterized to be of indefinite duration at the time
it occurred; however, operations did in fact resume there in late May
1980, and numerous employees from Nacogdoches, presumably including
many who had previously worked at Lufkin, were methodically trans-
ferred back.
6 Objections 3 and 10 were inadvertently included in this group, but in
fact are unrelated to any part of the complaint. Conversely, Objections 6
and 22 are coextensive with pars. 7(g) and (n), respectively.
four (4) at the pre-election conference and the
Union objected. Board agent allowed it anyway.
14. Shortly before the polls were re-opened for
second round of voting, employee, Ascencion
Aguirre, was refused entrance to the plant. The
guard said he had orders to keep him out until the
Union Representative came with him. The Company
Observers were allowed to enter by themselves and
unescorred.
24. The company transferred an employee to a
less desirable job because of his union activity.
The period of December 1979 to May 7, 1980, is a
general time frame for most salient facts of this case.7
Within it Regina Blackshire was discharged on Decem-
ber 11, after about 4 weeks of probationary employment
as a deboner, and following a hiatus in significant hap-
penings Ascencion (Shaun) Aguirre was hired on Febru-
ary 6. Aguirre had in fact been asked by Butler to seek
employment with Respondent and simultaneously func-
tion as a compensated part-time agent of the Union to
aid its organizing effort. 8 As would befit such a person,
Aguirre testified extensively to remarks and happenings
over the entire preelection period, particularly as relating
to a supervisory status issue concerning Craig Lawson,
an individual performing lead person duties in the plant
services department during the early months of 1980.
A separate phase of the evidence involves Respond-
ent's director of industrial relations, who held two series
of group meetings with employees at which he election-
eered. Each series comprised about 6-7 meetings per day
for 4 consecutive days, and at each meeting from 10-30
employees were in attendance. The first series com-
menced in early April, and the second series commenced
late that month with the final day of meetings being not
later than May 1. Other spirited campaigning had been
undertaken by both parties, and on April 28 Aguirre
handbilled at the plant gate with a sheet picturing him-
self bilingually urging a yes vote in the imminent elec-
tion. Another bilingual handbill was passed out on May
i, again containing Aguirre's visage but this time with
employees Mack Tutt and Billie Joe Pleasant also pic-
tured. Among the words graphically attributed to Tutt
was that he supported Aguirre in "OUR Fight for the
Union" and that he emphatically urged a yes vote.
Tutt had initially worked at Respondent's plant for
about 6 weeks starting in July. Following a period of
layoff he returned to work about January 10 to the posi-
tion of laborer in a packing department with continuous
employment through May 2. Tutt was discharged on
7 All dates and named months falling in July-December are in 1979,
while all dates and named months falling in January-June are in 1980,
unless in either case expressly indicated otherwise.
a The United States Supreme Court has recognized this phenomenon
in summarizing certain facts of a case as involving an "undercover agent"
of a contending labor organization being "infiltrated into" a company's
employ. Central Hardware Co. v. N.LR.B., 407 U.S. 539 (1972).
763
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 5, and next returned to the plant during the after-
noon of May 7 to vote. By this time Plant Manager
Leland Boyd had instructed Cleo Page, a
guard/weighmaster ordinarily stationed at the plant gate,
that as a discharged employee Tutt was to be escorted
into and back out of the voting area should he appear.
The election had been arranged in rather typical fash-
ion culminating in a preelection conference on May 6.
By this time the employee breakroom had been deter-
mined as a voting place, and each party was to have
three observers for the split voting periods of 6-8:30 a.m.
and 2:30-4:30 p.m. The breakroom was essentially square
shaped and two doors were located along its west wall.
Furniture and table groupings were positioned to pro-
vide seating for observers along the easterly side of the
room and to guide the flow of voting employees in and
out of the room. The actual voting booths were set up at
the north end. A lunchroom extension area was under
construction behind the east wall, and along this a third
door existed which led to the outside after one had tra-
versed a final building width where the construction was
under way. The plant timeclock was situated in the
southeasterly corner of the room.
In course of the preelection conference Respondent's
counsel stated that it would augment its observer group
by assigning personnel clerk Carol Clayton to release
voters based on her extensive familiarity with the plant
and its various operations. Both Butler and Union Busi-
ness Representative Allen Lewis objected to this on
grounds that an extra observer would give Respondent
undue advantage, and that the Union had relied on a pre-
vious understanding that each side would equally have
but three designated observers. When Respondent's
counsel was adamant that Clayton was needed to avoid
production disruptions and better coordinate the releas-
ing process, Butler and Lewis vigorously protested the
matter. The assigned Board agent noted this disagree-
ment but advised that the fourth company observer
would be permitted insofar as official workings of the
election were concerned.
A second major controversy as to election mechanics
stemmed from the timeclock placement. Butler and
Lewis each testified that, in face of the Board agent's
point that something needed to be done to insulate the
voting area from timecard usage, Respondent's officials
offered to mount a partition that would segregate the
room's southeasterly corner. Palmer denied such an un-
dertaking, testifying instead that the Board agent had re-
quested complete removal of timecards from the room
that was to be used. On this basis Respondent established
tables for manual clocking in and out of employees on
May 7, and positioned them in the general path of em-
ployee movement into and out of the plant. Personnel
Supervisor Billie Wells was designated to work the
tables, assisted for the morning session by clerical em-
ployee Denna Harvell and for the afternoon session by
Harvell plus Office Manager Darva Rollins. A 2,000
piece roll of "Vote No" stickers was available at the
table.
This is the setting to which evidence pertains. The Na-
cogdoches plant employed over 700 persons working
two shifts in highly structured operations whereby proc-
essed poultry and inedible byproducts were an end
result. Organizational hierarchy below Boyd at times
here material included John Kimmey as day-shift man-
ager, Steve Wales as night-shift manager, John Griffin as
supervisor of deboning, John Garcia as second process-
ing superintendent with Christopher Seerey immediately
under him as packing area supervisor, Weldon Moore as
night-shift packing supervisor, and Betty Jordan as su-
pervisor of the cut-up department adjoining the deboning
tables. Kimmey's capacity included direct supervision of
the plant services department in which at all material
times Craig Lawson was employed as a lead person. The
mission of plant services was quite varied, extending to
outside janitorial work, unloading, trash hauling, and
picking up or storaging of equipment at a remote area
called farm 14 or simply the farm. Lawson resigned as its
lead person during early April in lieu of demotion and
was promptly replaced by newly hired Cliff Love,
whose admitted supervisory jurisdiction as quality con-
trol manager included that of plant services. The lead
persons other than Lawson involved at material times in
the case were Bertha Gardner in deboning, Mina Johns
in the boxmaking room, and B. J. Calhoun in IQF (indi-
vidually quick frozen).
The deboning operation produces boneless chicken
meat which employees accumulate in tubs. When full,
these are taken to a scale for weighing and employee
poundage credit, then deposited in 30- or 70-pound boxes
for bagging and shipping. Pending fullness of either size
box such a container might serve as an extra box to pro-
vide meat for others nearly full. An incentive plan pro-
vided that each week the deboner with most total weight
would be permitted a day off with pay. Blackshire was
working the third of three deboning tables, to which the
least experienced persons were assigned.
She testified that upon arriving for work at or about
3:45 p.m. on December 11 she went outside the plant
lunchroom and was there soliciting signatures to union
authorization cards from certain other employees. At this
point Wales appeared to ask what she was doing, and
when told he angrily said that she should put the cards
away. Upon his leaving she then went inside the lunch-
room and talked to more employees before her own
starting time. Blackshire testified that at the first break
that evening she was soliciting employee signatures to
union authorization cards in the lunchroom and Gardner
approached saying that to start up a union could cause
people to lose their jobs and cause a strike. Blackshire re-
called that while this break was still in progress Griffin
also approached her asking why she felt a union was
needed, and stating that management wanted the plant to
continue operating the way it was. On her second break
of that evening Blackshire was in the shipping depart-
ment to solicit an employee there, and was approached
by whom she later identified as Moore. She testified that
he told the employee she was facing that he should not
sign up for the same union as before because it would
just cause a bunch of confusion. This caused Blackshire
to put the card away. As to these episodes, Wales fully
denied Blackshire's testimony, while Gardner denied
making any untoward remarks when once seeing Black-
764
HERIDER FARMS, INC.
shire with authorization cards while on a break. Moore
testified that on several occasions in early December he
saw Blackshire talking in his department while both she
and his own employees were on working time. He
denied hearing the subject of such conversations or
seeing authorization cards in her possession. Moore as-
serted that he only contacted her to ask that she return
to her assigned place. Griffin left Respondent's employ
in mid-December, was thought to be residing out of
State, and was not called as a witness.
As her shift of December 11 neared an end, Blackshire
removed a piece of chicken meat from the extra box and
put it in her own container. This was seen by Gardner,
who asked Blackshire to return it to the scale. Shortly
afterward Gardner took Blackshire to Wales' office
where Griffin was present and Gardner later soon re-
turned. Wales wrote out a termination slip for the "steal-
ing" of chicken, and when Blackshire protested this ter-
minology the word was rerecorded as "taking."
Regarding this termination, Wales testified that on De-
cember 10 he had written a "blue slip" (notice of disci-
plinary action) on Blackshire in which "loud talking,
cursing, threatening remarks to fellow employees" were
there listed as a combined first offense. He added as re-
marks that Blackshire must correct these traits or face
more stringent discipline. Blackshire signed the docu-
ment upon Wales' presenting it to her with a verbal
warning that immediate correction of the problem was
expected. Wales continued his testimony by recalling
that, on December 11, Griffin reported to him about
Blackshire having been seen taking already weighed
chicken meat. Scale employee Martha Phillips and lead
person trainee Betty Henderson were each called in by
Wales and they countersigned a blue slip indicating each
had seen Blackshire in such an act. Of the two persons
only Phillips testified and she recalled seeing Blackshire
take chicken on two occasions the night of December 11.
Phillips told this to Henderson, who seemingly passed
the word to Gardner and in turn Griffin was informed.
Respondent produced evidence that over the short
course of her employment Blackshire had intermittently
screamed loudly at her work station causing acute mo-
mentary distraction among employees, had talked abu-
sively and profanely to other employees, had regularly
overstayed her breaks, had sexually teased and ridden
the back of a retarded employee, had sought to debauch
a Mexican-American employee, had vulgarly danced on
lunchroom tables, had poked a second Mexican-Ameri-
can employee, had menaced custodial employee Terry
Randall with a knife, and had threatened to "whip"
Jordan for not transferring Blackshire's brother to more
appealing work.
With respect to the issue of Blackshire's discharge and
related 8(aXl) allegations, I credit her testimony in par-
ticular over that of Wales, Gardner, and Phillips. As to
each such witness for Respondent, an unconvincing de-
meanor was projected. This does not apply to Moore as
to whom I believe the more accurate reconstruction of
Blackshire's forays into the shipping department may be
found. Such an exception does not diminish Blackshire's
credibility in regard to her concerted activity on Decem-
ber 11 and her denials or explanation of other conduct
which Respondent has here raised in justification of why
she was terminated.
Blackshire credibly testified that Gardner would assign
her tasks and on occasion grant time off without visible
clearance through any higher authority. Gardner once
cautioned Blackshire and others against excessive talk,
adding the threat of a blue slip should they not obey.
Given Gardner's several years of experience with Re-
spondent, that she was previously a designated trainer of
other employees, and that she admittedly was converted
to supervisory status on December 17, a scant week after
Blackshire's discharge, I conclude that her functioning
within the deboning operation was so infused with the
exercise of judgment and discretion as to the best utiliza-
tion and deployment of personnel that it constituted her
a supervisor as defined in the Act.9
On this basis I find adequate proof of the allegations
contained in paragraph 7(a) of the complaint, portions of
paragraph 7(b), paragraph 7(c), and the portion of para-
graph 7(1) relating to Gardner, and I find that Black-
shire's discharge was discriminatory as further alleged in
paragraph 8. In this latter regard I am impressed that the
litany of complaints now made against Blackshire is ut-
terly unconvincing as forming a true basis for separation
from employment, particularly the periodic screaming
which was recalled by Calhoun as occurring several
times a night. Had there been any bona fide concern
with the phenomenon or with Blackshire's other lapses
into peculiarity such a probationary employee would
have been terminated long before her fourth week. The
timing of Blackshire's discharge is also a factor since it
occurred on the very day she commenced the type of ac-
tivity that Palmer characterized as within his responsibil-
ity to combat, and in the context of only a single blue
slip warning on a first offense (three are contemplated by
the form itself) issuing the very day before. The sup-
posed precipitating cause, whether unwarranted and ag-
gravating in the scheme of deboning operations, was
hardly a serious offense and Respondent's attempt to
magnify it as "stealing" drains credence from its case.
The most telling fact of all is found in a "smoking gun"
whereby Wales and Phillips are totally at odds with re-
spect to what person may have entered the lower left-
hand corner printing on Blackshire's termination notice.
On this point I credit Phillips, finding this to be the final
indication of Wales' devious overall testimony. Respond-
ent advances Delchamps, Inc v. N.LR.B., 585 F.2d 91
(5th Cir. 1978), on this issue, but it is unavailing because
here Wales himself was cloaked with prior knowledge of
Blackshire's protected activity.
Aguirre testified that he was hired by Lawson, who
appeared as an employment application was being filled
out and commenced an interview. Lawson described the
work to be done and the crew size Aguirre would be ex-
pected to join. Lawson solicited and arranged Aguirre's
start of work that day. Several days after this Lawson
voiced that he had just hired Juan Meza. Lawson's
* I reject the testimony of the seemingly confused and impresionable
Cornalia Dolphus and Lulu Hunt. whose descriptions of events are un-
persuasive because they appeared to be saying only what others have
claimed as occurring.
765
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
power to hire was also established in the testimony of
Willie Ray Scott, who described that his cousin, Danny
Deckard, was so employed after perfunctory contact
with Lawson. l ° Plant service employee Archie Thomp-
kins credibly testified that Lawson issued blue slips to
employees, while Scott recalled how Lawson allowed
him to leave work early on occasion. Given this proba-
tive and uncontradicted testimony and Lawson's relative-
ly autonomous identification with the plant services de-
partment, having only Kimmey as his own superior, it is
apparent that he possessed and exercised several of the
powers establishing one as a supervisor within the mean-
ing of the Act.
In regard to the unfair labor practice conduct of
which Lawson is accused, Aguirre testified that Lawson
seemingly detected his union leanings and on an occasion
in February remarked that Aguirre should be secretive
about it or face being fired. Aguirre also recalled that
later in February Lawson had solicited his interest in a
higher paying leadman position, conditioning the possi-
bility on disassociation from the Union. On March 6 this
general pattern was repeated when Lawson drew
Aguirre aside to advise him of a night cleaning foreman
opening which Lawson used as a basis to implore
Aguirre away from the Union. Thompkins and Scott
each credibly testified that, on different occasions in
March and April, Lawson had said that their interest in
the Union had "messed up" their minds, making them
less willing workers, and that the situation had tempted
him to transfer them to more rigorous inside or packing
work. On the basis of this uncontradicted testimony, I
find adequate proof of the allegation contained in a fur-
ther portion of paragraph 7(b) of the complaint, that re-
maining portion of paragraph 7(1) relating to Lawson,
and paragraphs 7(m) and (n).
In further respect to paragraph 7(b) of the complaint,
Aguirre testified that, on April 23, Kimmey took an oc-
casion in his office to ask what departments had such
problems as might cause the employees to want represen-
tation. When Aguirre said that problems were rampant,
Kimmey stated that a union was not wanted. Thompkins'
testimony was that around mid-March Kimmey spoke to
him privately asking whether Aguirre had been talking
about the Union. Scott corroborated that, also testifying
that in March Kimmey had asked how he planned to
vote. I credit these witnesses of the General Counsel on
the point and reject Kimmey's denials of having made
the described utterances, thus finding further adequate
proof in support of paragraph 7(b). A final aspect of
paragraph 7(b) is that Tutt credibly testified to being
questioned by Garcia about why he favored the Union
and why Seerey, also present, could not persuade him
10 This is corroborated in more detail by Deckard himself, who re-
called that Lawson talked about the job with him, referred his applica-
tion to personnel, demonstrated certain job duties, and confirnned when
Deckard should commence work. I credit this narrow aspect of Deck-
ard's memory and his further recollection of Lawson's instrumental role
in his discharge about a month later, finding other aspects of his fanciful
testimony unworthy of belief. Additionally, I note that Wells testified
how she alone was instrumental in the hire of Deckard, a version that I
discredit both because it is intrinsically implausible and because Wells
herself admitted the rather telling fact that Lawson had evaluated Deck-
ard as "fine" for the job opening.
away from it. Garcia could do no more than fail to recall
this episode and I therefore find support for the remain-
der of this allegation. " I
As to preelection speeches to assembled employees,
Tutt testified that Palmer said the company-sponsored
vanpool service from Lufkin would be discontinued if
the Union won the election, but if it lost Respondent
would consider dropping the charge for any day on
which the employee rider did not show up. Tutt added
hearing Palmer say that people would not be able to
transfer back to Lufkin if the Union won the election,
but if it lost a return transfer would be allowed carrying
full seniority and only a small drop in pay. Tutt's further
recollection from the meeting he attended was that
Palmer had said all wages would start from zero and all
benefits would be dropped should the Union win. Inez
Matthews, a recently retransferred Luflin employee, tes-
tified that in her meeting of early May Palmer said the
employees would take a chance on losing benefits and
obtaining a transfer back to Lufkin if the Union won. He
contrasted this with the Union's losing by saying that in
such an event the employees so desiring would transfer
back to Lufkin with raises and benefits.
Palmer's version is that in regard to the vanpool pro-
gram and propagandizing against the Union with charts
he completely avoided any impermissible remarks.
Palmer had openly included within his responsibilities
the conduct of "antiunion campaigns." In this context
Palmer testified that the subject of van usage arose with
employee questions and he said only that the program
did not depend on whether the Union was chosen.
Palmer denied that he conditionally offered to drop the
charge for unused days, testifying instead that he reiter-
ated how riders were considered to have "reserved" a
seat for a week of transportation, and that the cost
stemmed from this fact regardless of whether some ab-
sence arose from personal reasons. Palmer testified that
he contrasted the situation to a contemporaneous prob-
lem of sand infiltrating the plant's water supply causing
an interruption of production with attendant showup pay
granted to employees. On these occasions, as he ex-
plained it, employees were not charged that week for
such a special reason. Palmer testified on the subject of
Lufkin transferring by saying that this too commonly
arose from employee questions, and that his response was
to assure them that the original commitment to the
Lufkin employees was that should their plant reopen
they would have first choice about a transfer back.
Palmer added that he said he did not know what would
happen about such transfers should the Union win the
election because it would be a subject of negotiations. He
added that he explained to employees that when the
plants were both unionized transfers were not allowed
I" Thompkins testified that in April, while working in the box room,
Johns had remarked that she was commissioned to find out how employ-
ees would vote. Johns credibly explained that her remark was only made
as a joke after persistent needling by Thompkins and others, but more
importantly that her role as a lead person was confined to overseeing two
other employees regularly in the box room in a manner devoid of super-
visory authority. For these reasons I find Johns not to be an agent of
Respondent, and that her otherwise innocuous remarks are not attributa-
ble to it.
766
HERIDER FARMS, INC.
between the two locations. 1 2 In completing his talks,
Palmer used a series of 2- by 2-1/2-foot-wide charts
prominently lettered with benefits then in effect for em-
ployees. He routinely capped this display with a blank
poster of the same size terming it a reflection of what the
Union had obtained for employees to date.
In regard to these speeches and the discussion they
may have generated, the portion of the case involving
complaint paragraphs 7(h) through (k) and Objections 15
through 19 are involved. As to verbalisms in dispute I
discredit Tutt, and, although Matthews had a favorable
demeanor and sincerely appeared to be searching her
memory, I believe that she is not the better source of the
truth. It must be noted here that she and Tutt were in
conflict over whether or not Palmer had footnoted his
remarks about a transfer to Lufkin with the thought that
a pay reduction would or would not accompany it. On
this point I credit Palmer in particular regard to the van-
pool program and find that he did not threaten an actual
loss of benefits or futility in voting for the Union. On the
matter of Lufkin transfers I similarly reject the testimony
of the General Counsel's witnesses and am left with the
more intriguing admission that Palmer said it might
depend on future negotiations. While a more noble reas-
surance might have been in order the situation was ad-
versary in nature, and on balance I cannot conclude that
Palmer's statement was either an unfair labor practice or
conduct improperly affecting an election. It would be
completely normal for any negotiations to resolve terms
of employment dealing with transfers between two proxi-
mate facilities of the same company, particularly where a
bargaining history was not too remote in point of time.
This subject evolves to a factual issue, and on that plane
I do not find any actionable conduct.
Before turning to matters that are to be resolved ex-
clusively on the basis of the Union's objections I first
treat the matter of Tutt's discharge. Respondent's de-
fense on this issue keys to the testimony of employee
Betty Rhoudes coupled with certain background evi-
dence. Rhoudes has worked in Respondent's packing de-
partment since June 1979 with duties in IQF (individual-
ly quick frozen) that commonly brought her in contact
with Tutt. At quitting time on May 2 Rhoudes, who is
white, was washing up preparatory to leaving work. She
testified that Tutt, who is black, approached her saying,
"I sure am tired," and that then, after walking away mo-
mentarily, he returned to say, "That white stuff sure
does look good, I sure would like to have some of that.
That big black thing sure would feel good inside you,"
to which Rhoudes "kind of pushed him away." She then
started out but was caught up with by Sandra Wells, an-
other packing department employee, who had seen the
incident and, while not being able to hear what was said,
observed, that it left Rhoudes very upset. Wells asked
what had happened, was told, and immediately prevailed
on Rhoudes to report the matter to Palmer. This was
done and on the following workday, Monday, May 5,
Rhoudes was called into the office of Boyd with
Kimmey and Wells also present and asked to repeat the
12 This testimony is expressly denied by Lewis, who characterized any
earlier collective-bargaining agreement as "silent" on the subject. No
party offered prior agreements into evidence.
remark, thereafter writing it out with the assistance of
plant nurse Colleen Upchurch.'S
Wells also testified for Respondent that at the noon-
time lunch break on May 2 she had seen Tutt sitting in a
parked car drinking what appeared to be beer and smok-
ing familiar smelling marijuana. To add still more dimen-
sion to Respondent's action at the time, Wells testified
that within the previous 60 days Tutt would sometimes
decline his duty of lifting boxes and instead asked that
she slow down the pace of her work. Wells had reported
this to Seerey. Patricia Tindall is another white female
employee in the packing department. She testified that
around April Tutt had once spoken to her in the lunch-
room saying she had a nice body which would look
good naked, and it left him wanting to get in her pants.
Tindall answered that she did not go with black men and
when Tutt walked off reminding her she could change
her mind Tindall gestured with her fist to end the inci-
dent. She added that on two or three later occasions
Tutt said "little things" of similar import.
Seerey testified that he was Tutt's immediate supervi-
sor, and that Tutt's expected duties were to be in the
IQF room as an aide, lifting boxes on and off conveyer
belts, working the scales, and occasionally moving pal-
lets. Calhoun was Tutt's lead person and she testified
that upon once asking Tutt to move boxes he called her
a "motherfucker," while another time Tutt had reckless-
ly barged through a swinging plant door with his pallet
jack and almost knocked over another employee. Cal-
houn added that Tutt was frequently late returning from
his lunch break and that she periodically reported this to
Seerey. Respondent produced written warnings against
Tutt over the signatures of Seerey and Boyd dated April
8 and May 1, which respectively recorded the name call-
ing and hazardous "cutting up." On the former occasion
Tutt had defied Seerey but did agree to speak with
Garcia, which was done although the reprimand stood.
Garcia's own testimony picked up with May 2, a day on
which he called Tutt in for a discussion of his behavior
and specifically whether he had been drinking or smok-
ing marijuana that day. This agitated Tutt to the point
that Garcia brought in Tutt's mother-in-law, another lead
person at the plant, and after more discussion Tutt was
calmed down.
The handling of Tutt's discharge was described most
fully by Palmer. He acted on Rhoudes' report by speak-
ing with Boyd and asking that this official satisfy himself
of the facts by speaking with "the two ladies in ques-
tion." When Palmer himself arrived at work around 9
a.m. on May 5, Boyd handed him a copy of Tutt's termi-
nation notice. Boyd did not testify, while Tutt recalled
that a search for his missing timecard led him to Garcia,
Clayton, and then Boyd's office. He waited there for
about an hour, including a time when Kimmey came by
affirming that Boyd wanted to talk with him. Wells and
Rhoudes were with Boyd and ultimately Garcia joined
"1 In regard to Aguirre's testimony that Upchurch had once made in-
quisitive remarks respecting union activity among employees, I attach no
significance to this because it is grounded on nothing more meaningful
than that she had temporarily exercised hiring responsibilities during No-
vember.
767
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them, soon coming out to advise Tutt that he was termi-
nated. Tutt expressly denied ever being spoken to by
Boyd about the incident, one in which he termed
Rhoudes as "lying" because at quitting time on May 2 he
had only asked about a supposed argument she had just
finished having and whether her anger with "one black
dude" meant she had to take it out on all blacks. Tutt
did add that she pushed around him saying she wanted
to be left alone and to get home. Other than this the only
personal comment Tutt recalled ever making to Rhoudes
was in early April when he asked her out. As to other
accusations, Tutt explained that the pallet jack incident
was practically unavoidable because the door in question
had obscured visibility through the dingy plastic win-
dows and was at the crest of an inclined aisle. Tutt did
admit to "cussing" once and that Seerey spoke to him,
leading to a further meeting with Garcia. He denied
drinking or smoking marijuana at the time described by
Wells. He did not, however, deny Tindall's testimony,
nor was it even alluded to when Tutt was called on re-
buttal.
After Tutt was discharged, Palmer answered a union
handbill on the subject by posting a memo to all employ-
ees dated May 6, explaining that the termination had
been because of intolerably "abusive behavior" to other
employees. In its statement of position and brief, Re-
spondent argues that Tutt's action contravened the
EEOC's Interim Guidelines on Sexual Harassment as
promulgated on March 11 in 29 CFR § 1604.11(a).14
Palmer had these drawn to his attention when a client
newsletter dated April 17 from the Fulbright & Jaworski
law firm alluded to the guidelines and excerpted signifi-
cant passages. He testified to reading them when re-
ceived and utilizing such information in the course of
performing his duties.
I credit the central testimony of Rhoudes, believing
that by demeanor and inherent likelihood standards she
has clearly remembered and accurately reported what
was said to her by Tutt on the afternoon of May 2. As to
this portion of his testimony, I discredit Tutt because of
a persuasion that he was first of all not totally possessed
of clear faculties at the time, and secondly to this extent
has shown no inclination to divulge the full reach of his
mood or remarks. It may thus be said that Tutt had liter-
ally breached the letter and spirit of the interim guide-
lines. However, I nonetheless find that the General
Counsel has made out a prima facie case on this issue. As
with Blackshire many months earlier, Respondent
showed a remarkable tolerance for obstreperous or mar-
ginally insubordinate behavior until such a point as the
individual in question became a known uqion activist.
14 In the guideliness, harassment on the basis of sex is proposed to be
defined as "unwelcome sexual advances, requests for sexual favors, and
other verbal or physical conduct of a sexual nature" which might, among
other characteristics, have the "purpose or effect of substantially interfer-
ing with an individual's work performance or creating an intimidating,
hostile, or offensive working environment." The guidelines proposed to
apply Title VII principles whereby an employer might be responsible for
acts of sexual harassment in the workplace by persons other than agents
or supervisory employees where it "knows or should have known of the
conduct." An exculpatory provision upon which Respondent here relies
is that an employer might rebut apparent liability for such latter acts
upon "showing that it took immediate and appropriate corrective action."
Here, as intended, Tutt became a known figure in the
Union's soon-to-culminate organizing drive when the
handbill was released on April 28, and the timing of any
near immediate discharge in such circumstances dictates
close scrutiny of surrounding facts. It has been estab-
lished through Wells that on another occasion a female
employee has had to shove "an old boy away," even
beyond what Tindall testified about. More significantly,
Palmer did not testify that he mentioned the factor of
guidelines and an employer's exposure to strict liability
thereunder, nor was the actual conduct hinted at in his
memo to all employees the following day. The most
critical indicator is that Boyd did not even confront Tutt
with the accusation, a peculiar lapse given that Tutt was
a rehired person of further service with Respondent and
that Garcia had been patronizingly tolerant of his job at-
titude. On a contested evidentiary point Respondent has
listed 10 discharges for cause shown from its records in
the period February 1-June 17, covering as to reasons
intoxication, abusive language, destruction of property,
drinking or being under the influence of alcohol, insubor-
dination, and cursing. I give little weight to such for Re-
spondent has shown itself in the Blackshire case capable
of unlawfully discharging an employee for reasons pro-
tected under the Act and I infer from the varied viola-
tions of Section 8(aX1) committed by Respondent's
agents and the timing of Tutt's discharge that it did so
again. The guidelines theory presents itself as a pretex-
tual afterthought, and, while the utterance that Rhoudes
dismayingly experienced is not to be condoned, I must
look beyond that to the wrongful motive believed truly
to be present. Cf. Limestone Apparel Corp., 255 NLRB
722 (1981).
This resolution, ipso facto, warrants setting the election
aside on the basis that Objection 1 is sustained as an evi-
dent instance of conduct direly affecting an election of
that very week in which the unfair labor practice was
committed and extensively publicized as each side sought
partisan advantage from the matter. I will, however,
fully treat such remaining objections as are not subsumed
by allegations of the complaint or in the case of para-
graphs 7(f) and (g) have yet to be set forth factually and
analyzed. The first of these concerns Tutt being escorted
into the voting area by the husky, 6foot 3-inch tall, shirt
and slack uniformed Page. Upon Page's stepping inside,
the Board agent promptly directed Page out and he com-
plied by returning through the construction area where
he remained until Tutt had voted and emerged, at which
point they casually walked together back to the gate.
Page had entered the voting room by no more than two
steps and was only momentarily inside. Aguirre, present
there as a union observer, testified that Page first parried
the Board agent's challenge by saying he had orders to
"stay with" Tutt, and this caused the Board agent to
raise his voice in repeating the directive and to turn red
faced. This version of the facts most favorable to the
Union falls short of establishing that any voter present
would reasonably absorb concern over the exchange or
that the election process was otherwise tainted by the
fleeting presence of this familiar nonsupervisory figure.
768
HERIDER FARMS, INC.
For this reason, I recommend that Objection 3 be over-
ruled.
The check-in table of election day with its supply of
"Vote No" stickers engendered considerable testimony.
Aguirre was the lead witness asserting that at the after-
noon session he watched Billie Wells (not known to him
by name at the time) place stickers on the clothes of
three Spanish-speaking employees after Aguirre had fur-
nished them each a "Vote Yes" sticker when they were
passing toward the plant's premises. On the basis of But-
ler's testimony the Union presented photographs of the
scene as evidence allowing a better understanding of
how the check-in tables were first and later positioned.
Butler himself observed both men and women function-
aries of Respondent placing "Vote No" stickers on em-
ployees as they came through the gate. He recalled hear-
ing Wells tell one employee to wear the sticker and also
to be sure to actually cast a "No" vote. In the course of
this entire day Butler neither heard any employee ask for
a sticker nor protest its placement, but in the afternoon
he was close enough on one occasion to watch Palmer
place a sticker on Angel Acevedo and three other identi-
fied employees to whom Palmer directly said the sticker
should be worn.
Wells testified to happenings at the table saying it was
intended as a checkpoint where in-and-out working time
could be recorded since the timeclock was not available.
She recalled placing only one "Vote No" sticker on a
person who had asked that it be done because his arms
were full. She had not seen Palmer at the intermittent
times he was present place such a sticker on anyone, nor
had she seen any "Vote No" placed over a "Vote Yes."
She knew the three employees covered by Aguirre's tes-
timony, Espinoza, Rodriguez, and Duarte, and denied
seeing anyone place a sticker on them or doing it herself.
Rollins, who worked the afternoon session only, testified
that Aguirre or at least Lewis was handing out "Vote
Yes" stickers to approaching employees and that she her-
self only placed stickers on one occasion, this being on a
woman who wanted one both front and back. Rollins
denied that any person was offered a sticker without first
asking for it. Palmer thought it likely he had distributed
stickers but only to persons asking for them. His total
presence immediately at the table on election day was es-
timated at no more than 30 minutes and he was other-
wise some distance away for only an additional 35-
minute period. He expressly denied overlapping any
"Vote Yes" sticker or that he forced one on any object-
ing employee.
This activity is traceable to Respondent's unilateral
action in creating the check-in configuration after its
counsel had agreed to an alternative step the prior day.
The Union has not, however, pointed to any controlling
authority that would render this action abstractly objec-
tionable, nor does Aguirre or Butler persuade me that
employees were somehow being dismayed by the overall
procedure. Not a single witness was advanced from
among the hundreds passing that day to describe more
intimately how the roll of stickers might have been ex-
ploited to Respondent's advantage. Objections 4 and 5
therefore lack factual support and I recommend that
they be overruled, proposing too that paragraph 7(f) of
the complaint be dismissed.
Aguirre testified in support of Objection 6 that in early
May he was handbilling at shift change time by the plant
gate after his own work hours. Aguirre found it conven-
ient to station himself quite close to the gate so as to
better meet dispersing employees. While Aguirre was
doing this, Kimmey drove out in an automobile and
paused to say that handbills should not be passed out in
that fashion right at the gate. Aguirre answered that he
was on his own time and Kimmey drove off saying he
should not go beyond (inside) the gate. Kimmey's testi-
mony is that he had observed Aguirre walking in and
out of the entranceway and that he remonstrated Aguirre
about going back inside because of company policy
under which they "prefer" that a clocked-out employee
not remain on the premises. Kimmey recalled that at the
time other persons were passing union handbills at the
edge of the street and he said nothing to them.
Tri-County Medical Center, Inc., 222 NLRB 1089
(1976), is applicable here. The Board narrowly construes
rules which interfere with union activity under colorable
justification of regulating off-duty employees' presence.
The validity of any rule denying off-duty employees
entry to outside nonworking areas such as gates is lost
where business reasons for the rule do not exist or it is
disparately applied. Respondent has not set forth any jus-
tification, while Kimmey admitted that off-duty employ-
ees pass in and out daily notwithstanding that a guard
"try[s]" to prevent it. This shows a lack of resolve tanta-
mount to nonenforcement, and Kimmey singling out
Aguirre under the circumstances constitutes the sort of
vitiating disparity that a narrow construction does not
permit. Further, there is no evidence that the rule was
ever generally communicated to employees and the
entire situation readily permits a conclusion that it was
unlawfully applied. I therefore recommend that Objec-
tion 6 be sustained, and find factual support for para-
graph 7(g) of the complaint.
Objections 7 through 10 deal with the release proce-
dure for voting. Designated union observers were
Aguirre, Bobbie Sanders, and Ethelene Forney, while
Respondent used Betty Hargraves, Ramona Sandoval,
Linda Keggler, and, under the circumstances previously
described, Carol Clayton. In the course of each voting
period Clayton, Aguirre, and Sandoval would constitute
themselves a team to range throughout the plant and
maintain a flow of voters by approved announcement of
voting entitlement. Aguirre testified that, when reaching
a component of Garcia's department, this supervisor de-
liberately usurped Clayton and, directing his voice to
persons wearing "Vote No" insignia, told them it was
time to go and vote. Neither Clayton nor Garcia agreed
with this characterization, and, referring to the incident
as one involving "nibble" department employees, they
described it as being nothing more than Garcia's voice
reading out the instructions rather than that of Clayton,
and without conscious or successful direction of the
advice to any particular affinity group. In other depart-
ments Aguirre observed that Clayton hugged employees.
She denied this saying only that she sometimes had to
769
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
touch employees in transcending noise levels and that
she did greet her son-in-law when meeting him in the
rounds. When reaching Maintenance Supervisor Buddy
King, Clayton told him to go to his scattered employees
and tell them to vote. Aguirre and Clayton conflict in
their further testimony as he denied releasing any mainte-
nance employees while she recalled doing so personally
with a substantial number of those officially in the de-
partment but found throughout the plant as might be ex-
pected of their function. I credit Clayton as to these
points of fact, and conclude that nothing about the re-
lease procedure went beyond ordinary human frailties
given the excitement of the moment, nor did the matter
in any way undermine the validity of the secret-ballot
process. Accordingly, I recommend that Objections 7
through 10 be overruled.
Respecting Objection 12 the Union principally relies
on Summa Corporation d/b/a Frontier Hotel v. N.L.R.B.,
625 F.2d 293 (9th Cir. 1980), as authority for holding
that an election should be set aside where there is insis-
tence on an imbalance in observers. As Respondent has
pointed out, Summa is distinguishable because a direct
breach of stipulated election details had occurred there.
Respondent's tactics in suddenly advancing Clayton as a
useful intermediary to employees are not worthy; how-
ever, the circumstances do not show it to have interfered
with the election process. Cf. National Medical Hospital
of Compton, d/b/a Dominguez Valley Hospital, 251 NLRB
842 (1980). I therefore recommend the overruling of this
objection.
Aguirre testified in support of Objection 14 by recall-
ing that as he arrived for the second voting session Page
told him apologetically that he had orders to keep him
out until voting time and that he should stay with other
union representatives. When the time neared 2 p.m.,
Aguirre did go in, finding other union observers at the
polling place as well as all company observers. He had
seen the people go in earlier without any challenge or
accompaniment by the guard. Page testified that he was
instructed to let both groups of observers back into the
plant for the afternoon session as separate groups. It was
because of this that he stopped Aguirre, Page adding
that he did not knowingly permit an observer of either
party to pass inside. He recalled particularly holding one
female company observer back whom he recognized
upon her arrival, and that she remained in place until
Palmer came up and remarked that the observers could
enter. At this point Page "hollered" at Aguirre and he
recalled that Aguirre thereupon went through in the
company of Butler and Lewis. This objection appears as
nothing more than an innocuous breakdown in communi-
cation, and with the Union pointing to no compelling au-
thority on the point I recommend that it be overruled.15
Aguirre is also the person involved in the Union's final
objection, one that contends he was transferred to a "less
desirable" job because of his union activities. Aguirre
testified that on the probable date of April 29 he was in-
formed by Love of a transfer to the farm where his re-
's Its strongest argument in briefing the matter is that the circum-
stances were "designed to intimidate the employees." There was no evi-
dence of such a design, nor that the configuration of movements was par-
ticularly noteworthy among employees, let alone being intimidating.
quired tasks were to sort and move scrap metal pieces.
Aguirre described it as hot outside work without drink-
ing water or toilet facilities. He remained working there
until May 8 when he went back to past regular work as
a trash truck driver. After finishing the week in routine
plant service duties he took a short leave of absence and
then resigned.' 6 Although Aguirre had once volunteered
to work a day at the farm to earn overtime pay, he cre-
dibly testified that no one else had ever been sent there
to work for more than what would be involved with a
truckload of scrap material. Love did not testify as to
why Aguirre may have been so specially needed at the
farm during this period and Palmer, while alluding to the
area as one to which plant service employees might be
sent, also advanced no reason. It was established from
Aguirre that he translated job instructions to certain
Spanish-speaking employees for at least a part of the time
he was so assigned, yet the total subject is amorphous as
to its facts except that Aguirre was abruptly sent to that
remote place immediately after exposing himself as a key
union adherent. On balance, the action must be inferred
to be retaliatory and Aguirre's prominence would have
made it likely that this view would permeate the work
force. I thus add Objection 24 to those recommended to
be sustained.
My conclusions of law are that Respondent, by dis-
charging Regina Blackshire and Mack Tutt, by interro-
gating employees about their union activities and the
union activities of other employees, by threatening its
employees with adversity if union activities were pur-
sued, by seeking to prevent discussion of the Union on
breaktime and warning that organizing attempts would
be futile, by threatening that the advent of the Union or
pursuit of union activities would only result in a strike or
loss of employment, by prohibiting access to outside non-
working areas of the plant's premises by off-duty em-
ployees engaged in the distribution of union literature, by
promising employees a wage increase if they would for-
sake the Union, and by threatening to transfer employees
to less desirable jobs because of their apparent involve-
ment in the Union's organizing campaign, has by such
conduct engaged in unfair labor practices within the
meaning of Section 8(aXl) and (3) of the Act; but that it
has not violated the Act in any respect other than as spe-
cifically found. 17
The Union has separately prevailed on Objection 24
and in conjunction with the General Counsel's evidence
1' I have considered Respondent's success in eliciting from Aguirre
that in an investigatory affidavit given May 20 he mistakenly or ambigu-
ously referred to May 19 as the date on which he returned to a regular
job. Recognizing the oddity of such an error, I nevertheless am satisfied
that demeanor and the probabilities of the situation are such that Aguirre
should be credited in most salient regards as I do.
' I decline to add an independent violation of Sec. 8(aXI) in regard to
Aguirre's temporary transfer to the farm, this being the subject of Objec-
tion 24, on the basis that the interrelationship of advocacy roles as be-
tween the General Counsel and the Charging Party was assiduously es-
tablished during the course of the hearing and, while the General Coun-
sel took various opportunities to successfully amend the complaint, he
made no attempt to do so in this regard. I do not therefore consider it a
fully litigated matter for purposes of the consolidated unfair labor prac-
tice cases, and otherwise believe such a finding would be awkwardly cu-
mulative to the case as a whole.
770
HERIDER FARMS, INC.
has shown merit to Objections 1, 6, 20, 22, and 23. All
such happenings were within the critical period which
commenced March 10 and amply impacted on the elec-
tion process as to entitle the Union to substantive relief.
Settled doctrine provides, "Conduct violative of Section
8(a)(1) is, a fortiori, conduct which interferes with the ex-
ercise of a free and untrammeled choice in an election."
(Tutt's discharge is itself derivatively violative of Sec.
8(aX)(1)). Dal-Tex Optical Company, Inc., 137 NLRB 1782
(1962). Accordingly, I recommend that the election of
May 7 be set aside and that a second election be direct-
ed. Cf. Concord Furniture Industries Inc., d/b/a Bradford
Furniture Company, 241 NLRB 643 (1979). The Union
has consistently sought to have its relief embody the or-
dering of an off-premises election. Such an undertaking is
irregular and expensive and involves an extraordinary
commitment of agency resources and personnel. Funda-
mentally, the basis of setting aside this election is not
particularly different from many others routinely done
where warranted by the facts. The novelty of an off-
premises election would be a departure of such magni-
tude that I would adopt the request only on a most com-
pelling basis. Obviously my opinion is that Respondent
has wrongfully exploited the election process as under-
taken on its own premises in the customary manner of
several decades' experience under the Act. I do not,
however, believe that I am best equipped to make the
final assessment of the request. Rather, it is the province
of the Regional Director to monitor all matters that im-
pinge, or are seeming to do so, on the imminency of such
second election as shall be scheduled and to determine at
the outset, or as the passage of time might reveal, wheth-
er any dynamics are at work as would make an off-prem-
ises election the more appropriate course. I do, however,
recommend extension of the notice posting to the Lufkin
plant because many of the employees affected by Re-
spondent's unfair labor practices are now located there.
Disposition
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER' 8
The Respondent, Herider Farms, Inc., Nacogdoches,
Texas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or in any other manner discriminating
against employees because of their activities on behalf of
United Food and Commercial Workers, AFL-CIO,
Local 540.
(b) Interrogating employees about their union activities
and the union activities of other employees.
(c) Threatening its employees with adversity if union
activities were pursued.
1' In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(d) Seeking to prevent discussion of the Union on
breaktime and warning that organizing efforts would be
futile.
(e) Threatening that the advent of the Union or the
pursuit of union activities would only result in a strike or
loss of employment.
(f) Prohibiting access to outside nonworking areas of
the plant's premises by off-duty employees engaged in
the distribution of union literature.
(g) Promising employees a wage increase if they
would forsake the Union.
(h) Threatening to transfer employees to less desirable
jobs because of their apparent involvement in the
Union's organizing campaign.
(i) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Regina Blackshire and Mack Tutt immediate
and full reinstatement to their former positions of em-
ployment or, if those jobs no longer exists, to substantial-
ly equivalent positions, without prejudice to seniority or
other rights and privileges previously enjoyed, and make
them whole for any loss of earnings they may have suf-
fered due to the discrimination against them by paying
them what they would have earned, less net interim
earnings, plus interest, in the manner provided in F W.
Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977).1 9
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Nacogdoches and Lufkin, Texas, plants
copies of the attached notice marked "Appendix." 20
Copies of said notice, on forms provided by the Regional
Director for Region 16, after being duly signed by Re-
spondent or an authorized representative, shall be posted
by Respondent 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 Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps Respondent to taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dis-
missed in all other respects.
IT IS FURTHER ORDERED that the election of May 7,
1980, be set aside and that a second secret-ballot election
"9 See, generally, Isis Plumbing d Heating Ca, 138 NLRB 716 (1962).
io In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
771
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be held on a basis to be determined by the Regional Di-
rector.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or in other manner dis-
criminate against employees because of their activi-
ties on behalf of United Food and Commercial
Workers, AFL-CIO, Local 540, or any other labor
organization.
WE WILL NOT interrogate employees about their
union activities and the union activities of other em-
ployees.
WE WILL NOT theaten employees with adversity
if union activities are pursued.
WE WILL NOT seek to prevent discussion of the
Union on breaktime or warn that union attempts
will be futile.
WE WILL NOT threaten that the advent of the
Union or the pursuit of union activities will only
result in a strike or loss of employment.
WE WILL NOT prohibit access to outside non-
working areas of the plant premises by off-duty em-
ployees engaged in the distribution of union litera-
ture.
WE WILL NOT promise employees a wage in-
crease if they forsake the Union.
WE WILL NOT threaten to transfer employees to
less desirable jobs because they are apparently in-
volved in an organizing campaign of United Food
and Commercial Workers, AFL-CIO, Local 540, or
any labor organization.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their rights protected by the Nation-
al Labor Relations Act.
WE WILL offer Regina Blackshire and Mack Tutt
immediate and full reinstatement to their former po-
sitions of employment, without prejudice to their se-
niority or other rights and privileges, and make
them whole for losses in pay resulting from their
having been discharged, with interest.
HERIDER FARMS, INC.
772