House of Raeford Farms

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 568 (N.L.R.B. 1992)

568
308 NLRB No. 83
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The complaint was amended at trial to include Case 11–CA–
13369–2.
2 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility reso-
lutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing the
findings. The General Counsel additionally contends in her excep-
tions that the judge was biased against the General Counsel’s posi-
tion and witnesses. We have carefully reviewed the record and find
no merit in the General Counsel’s allegation of bias.
In addition, the Respondent has filed a motion to strike portions
of the exceptions and supporting briefs filed by the General Counsel
and the Charging Party for failing to comply with the Board’s Rules
and Regulations, Sec. 102.46. We deny the motion to strike.
3 In dismissing the complaint allegations that the Respondent dis-
charged employees in violation of Sec. 8(a)(3) of the Act, the judge
concluded that the Respondent, as to each of the allegations, met its
burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). We note the
judge’s inadvertent failure to find preliminarily that the General
Counsel established a prima facie case with regard to those allega-
tions. Assuming that the General Counsel established a prima facie
case, we agree with the judge’s findings that in each instance the
Respondent established that even in the absence of the employees’
union activity it would have taken the same action.
In adopting the judge’s finding that the Respondent did not violate
the Act in discharging employees Michael Blackmon and Jessie Bat-
tle, we find it unnecessary to adopt his characterization of their in-
quiry into unemployment compensation as a ‘‘personal matter.’’ Nor
do we adopt the judge’s findings that employee Alfreda Hammond
is ‘‘inclined towards violence’’ and that Larry Jones was not consid-
ered to be an above average employee. We additionally note that the
judge inadvertently misspelled the name of counsel for the General
Counsel, Patricia L. Timmins.
4 All dates are in 1988, unless otherwise noted.
5 Wowra testified that he was dissatisfied with the handwritten
note, and after the July 19 meeting typed a form, submitted as R.
Exh. 32, which stated that ‘‘[t]he next employee meeting will be
held on Tuesday—July 26, 1988 . . . if you have not attended a pre-
vious meeting and wish to attend sign below.’’ The July 26 meeting
was never held.
The judge found that documentary evidence established that addi-
tional meetings were held in July other than on July 19. While addi-
tional meetings may have occurred, our review of the record indi-
cates that the only meeting documented in the record was that at-
tended by Wowra on July 19.
House of Raeford Farms, Inc. and United Food and
Commercial Workers Union, Local No. 204, af-
filiated with United Food and Commercial
Workers International Union, AFL–CIO, CLC.
Cases 11–CA–12943, 11–CA–12987, 11–CA–
13081, 11–CA–13121, 11–CA–13369–2,1 and 11–
RC–5522
August 31, 1992
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 12, 1991, Administrative Law Judge Bruce
C. Nasdor issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs. The Respondent filed a brief in an-
swer to the General Counsel’s and the Charging Par-
ty’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 only to the extent consistent with this Deci-
sion and Order.
1. The judge dismissed the complaint allegations
that the Respondent violated Section 8(a)(1) of the Act
by soliciting employee grievances and promising to re-
solve those grievances in order to discourage union ac-
tivity. The judge found that although the Respondent
conceded that it solicited grievances during the elec-
tion campaign, pledged to correct them, and in fact
made good on some of its pledges, the Respondent’s
conduct was nevertheless lawful because it had em-
barked on a program of analyzing and rectifying em-
ployee problems 2-1/2 months before the onset of
union organizing activity. We do not agree.
In the spring of 1988,4 the Respondent’s president,
Marvin Johnson, hired Eric Wowra as personnel direc-
tor of the Respondent, a turkey processing plant. John-
son related to Wowra his concerns regarding high rates
of turnover and absenteeism, plant safety, plant crew-
ing, and the large number of employees requesting to
borrow money. Johnson directed Wowra to bring any
suggestions he had to Johnson’s attention.
Thereafter, Wowra spent June and July walking the
plant floor and talking to employees, and met with a
consultant regarding a retirement plan for the Respond-
ent’s employees. In addition, on July 19 Wowra at-
tended a meeting of employees arranged by the Re-
spondent’s general manager, Lou Lucente. The purpose
of the meeting was to solicit employee grievances, and
many complaints were raised concerning, inter alia,
wages, vacations, Saturday work, holiday pay policies,
health excuse policy, and bathroom policy. Attendance
was not required at this meeting; a handwritten note
was posted stating ‘‘we want volunteers for the meet-
ing.’’5
On July 26, Wowra presented Johnson with a docu-
ment entitled ‘‘Challenge 1988–89.’’ Wowra testified
that he ‘‘put in this booklet what I perceived what we
needed to do as a management team to turn around our
problems.’’ On that date, Johnson and Wowra met and
discussed various aspects of the document. Johnson de-
scribed the meeting as ‘‘just brainstorming’’ regarding
the issues raised in the document. Wowra also told
Johnson that he was not sure about the value of the
569HOUSE OF RAEFORD FARMS
6 The election was conducted on October 7. The tally of ballots
showed 391 votes for the Union and 420 against, with 29 challenged
ballots.
7 Submitted as R. Exh. 45, Wowra’s notes establish that six meet-
ings were held on August 9, six on August 10, six on August 11,
three on August 15, three on August 16, six on August 18, one on
August 19, and two on August 22. Wowra indicated that the meet-
ings were intended to encompass the Respondent’s entire work force
of 1000 employees, and that there were approximately 50 meetings
in all.
8 For example, Wowra testified as follows regarding the Respond-
ent’s policy requiring a doctor’s note if an employee was out sick:
They just really didn’t like being required to bring in the doc-
tor’s excuses and in one of the meetings Marvin just said, we’re
going to do away with that. He just made a decision right in
the meeting.
employee meetings and would get back to Johnson on
that.
On July 28, four employees walked off their jobs
complaining that they were tired of working so hard
and could not take it any more. On August 1, a mass
walkout involving several hundred of the Respondent’s
approximately 1000 employees occurred. On that date,
Johnson addressed the crowd of employees who had
walked out. He told them that he was willing to listen
to their complaints, promised them a raise on Labor
Day, remarked that he would look into their com-
plaints regarding other benefits and Saturday work, and
urged the employees to go back to work. Wowra testi-
fied that he observed union authorization cards being
distributed in the crowd on that date.
The employees did not return to work after Johnson
spoke to them. The majority of employees did return
to work by August 4, however. On that date, Wowra
met with the Respondent’s managerial and supervisory
personnel to discuss the unionization campaign. The
Respondent returned to full production on August 8.
The Union filed a representation petition on August
15.6
Commencing on August 9, Johnson and Wowra con-
ducted a series of meetings with employees. Johnson
described the meetings in the following manner:
We started having meetings because somehow I
had to find out what the problem was. The
meeting[s] [were] strictly for what’s bothering
you, what can we do to make it better.
Wowra testified that he wanted the meetings small,
preferably 10 to 15 employees. Wowra’s notes of these
meetings establish that at least 33 meetings were held
over 8 working days.7 The Union was not discussed at
these meetings.
Wowra’s testimony establishes that Johnson specifi-
cally promised in the meetings to resolve employee
grievances raised in these meetings regarding the pol-
icy of requiring the submission of a doctor’s note
when an employee was out sick, changing incentive
pay from monthly to weekly, permitting the cafeteria
and supply group employees to participate in the in-
centive pay program, fixing up the bathrooms and
breakrooms, instituting training sessions for super-
visors, and fixing problems with timeclocks.8 Johnson
additionally explained to employees that ‘‘you tell me
how many Saturdays you want to run and we’ll see
what we can do.’’
The judge correctly observed that an employer who
has had a past practice and policy of soliciting em-
ployee grievances may continue to do so during an or-
ganizational campaign. See, e.g., Lasco Industries, 217
NLRB 527, 531 (1975). It is well established, how-
ever, that an employer cannot rely on past practice to
justify solicitation of employee grievances if the em-
ployer significantly alters its past manner and methods
of solicitation during the union campaign. Carbonneau
Industries, 228 NLRB 597, 598 (1977). We find that
the Respondent’s method of solicitation of grievances
following the onset of the union organizing campaign
clearly constitutes a significant alteration of its past
practice.
Prior to the organizing campaign, the Respondent
held one documented employee meeting—and possibly
several others at most—in which it solicited employee
grievances. Further, the Respondent merely sought em-
ployee volunteers to attend these meetings. Indeed,
Wowra remarked to Johnson several days before the
employee walkout that he was not sure about the value
of these meetings. Approximately 1 week after the
walkout and after the Respondent had observed em-
ployees signing union authorization cards, however,
the Respondent embarked on a series of systematic
meetings among groups of its employees in which it
solicited grievances. These meetings, of which at least
33 were documented and which were intended to en-
compass the Respondent’s entire work force of 1000
employees, stand in stark contrast to the Respondent’s
prior policy of requesting volunteers to attend meetings
that occurred, at best, infrequently. Accordingly, the
Respondent clearly initiated only after the onset of the
union organizing campaign a comprehensive, system-
atic policy of grievance solicitation far exceeding the
Respondent’s prior conduct in this area.
Further, the Respondent explicitly promised to rem-
edy numerous grievances in these meetings and, as the
judge found, the Respondent did in fact make good on
some of these promises. It is true, as the judge ob-
served, that the Board has found that an employer’s
granting of new wages and benefits during the pend-
ency of a representation election is lawful where such
action had been decided upon prior to the onset of
union activity. See, e.g., Nissan Research & Develop-
ment, 296 NLRB 598, 611 (1989). There is nothing in
570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Wowra’s testimony fully corroborates the judge’s finding that the
Respondent actually made good on some of its promises to remedy
the employees’ grievances. Regarding the employees’ request to
change the Respondent’s incentive pay program from monthly to
weekly, Wowra testified:
[I]t made a lot of sense to everybody, it made a lot of sense
to Marvin [Johnson] and he says, I’m changing it right now. It’s
now weekly. And he did change it to weekly, he said we’re
going to make it easier and the incentive pay is now weekly.
Wowra testified regarding the synchronization of timeclocks:
Time clocks were a problem. They mentioned the time clocks.
Employees said they were loosing [sic] their incentive pay be-
cause some of the time clocks weren’t synchronized. Well, he
[Respondent’s president Johnson] directed me and directed Ray
Hawkins at that time to make sure the time clocks were syn-
chronized, to get with maintenance. As a matter of fact, the
guards go around twice a day now and monitor the time clocks
to see if they’re properly in [sic] and that any time clock that’s
out of sync [sic] is immediately reported to the maintenance de-
partment and its [sic] repaired on the spot.
10 In finding this conduct to be objectionable, we note that many
of the Respondent’s grievance solicitation meetings took place after
the critical period began on August 15.
11 In light of these findings, we find it unnecessary to pass on
whether the Respondent’s grant of a 50-cent-across-the-board wage
increase on Labor Day was unlawful, because such a finding would
be cumulative.
We find, contrary to the judge, that Daniel Construction Co., 264
NLRB 569, 615–616 (1982), enfd. 731 F.2d 191 (4th Cir. 1984), is
inapposite to the instant situation. In that case, the employer specifi-
cally advised employees that ‘‘[w]e are here to listen to your griev-
ances but not to give you anything.’’ 264 NLRB at 616. We
addtionally find, contrary to the judge, that Clark Equipment Co.,
278 NLRB 498 (1986), is inapposite. In Clark, the Board found law-
ful the employer’s literature distributed to employees which dis-
cussed improvements that—unlike in this case—the employer had
actually begun prior to the union campaign. 278 NLRB at 500.
the record here which establishes that the Respondent
had decided, prior to the onset of union activity, to
change employee incentive pay from monthly to week-
ly, include cafeteria and supply group employees in the
incentive program, change its policy requiring doctor’s
notes, and synchronize the timeclocks—all items that
were specifically promised by the Respondent in its
August grievance solicitation meetings, and at least
some of which were thereafter implemented by the Re-
spondent.9 These items, for example, are not even
mentioned in the proposals submitted by Wowra to
Johnson on July 26.
The judge found the Respondent’s conduct to be
lawful because Wowra had been hired prior to the
onset of union activity for the purpose of analyzing
and adjusting employee problems. However, this was
a general goal of the Respondent, and Wowra’s pro-
posals of July 26 were not a fixed plan that the Re-
spondent had definitively decided to implement prior
to the onset of union activity. The grant of benefits
during a union campaign may be justified where they
were actually decided on prior to the onset of union
activity; such grants are not justified, as here, by prior
general policy goals of the employer, however laud-
able. Accordingly, we find that the Respondent’s solic-
itation of employee grievances, its promise to remedy
those grievances, and its actual grant of new benefits—
all during the organizational campaign—violate Sec-
tion 8(a)(1) of the Act, and constitute objectionable
conduct which interfered with the free choice of em-
ployees10 in the election.11
2. We further find, contrary to the judge, that the
Respondent’s method of distribution to employees of
‘‘vote no’’ T-shirts reasonably tended to interfere with
their free choice of a bargaining representative, and
violated Section 8(a)(1) of the Act. The Respondent
ordered approximately 1000 vote-no T-shirts and gave
them to the supply room clerk, Beatrice McCrae, to
distribute to employees. McCrae required employees
requesting T-shirts to sign a list, as she regularly does
when any supplies are distributed. In addition, McCrae
denied T-shirts to employees who were wearing
prounion apparel. Respondent Official Branch received
complaints regarding this practice from several em-
ployees, and informed Respondent President Johnson
of the situation. Johnson approved of the practice and,
as the judge found, ‘‘agreed with McCrae that the em-
ployees had to be one way or the other.’’ The judge
concluded that the Respondent’s distribution of T-
shirts was lawful, noting that the list of employee
names was kept for inventory rather than polling pur-
poses, and finding a lack of coercion of employees to
wear the vote-no T-shirts.
We find, however, that the Respondent’s practice of
recording the names of employees who accepted the
antiunion apparel reasonably tended to interfere with
employee free choice in the election. As noted, the Re-
spondent did not simply provide a supply of T-shirts
at a central location, unaccompanied by any coercive
conduct. Rather, while the availability of the T-shirts
purported to be on a voluntary basis, to receive the T-
shirts, employees were required to refrain from dis-
playing support for the Union and sign a list acknowl-
edging receipt of the T-shirt. Such employer record-
keeping of the employee’s antiunion sentiments en-
ables the Respondent to discern the leanings of em-
ployees, and to direct pressure at particular employees
in its campaign efforts. Cf. Houston Chronicle Pub-
lishing Co., 293 NLRB 332 (1989). Given the cir-
cumstances of this case, it would be reasonable for the
employees to conclude that the recording of employ-
ees’ names as they received the antiunion T-shirts was
done for purposes other than merely monitoring sup-
plies. We accordingly find that the Respondent’s re-
cording of names of those accepting the T-shirts rea-
sonably tended to interfere with the employees’ free
choice of a collective-bargaining representative, and
violated Section 8(a)(1) of the Act. Lott’s Electric Co.,
571HOUSE OF RAEFORD FARMS
12 The fact that the Respondent contends that it was unaware of
the list does not change the result. The test in determining whether
conduct is objectionable or violative of Sec. 8(a)(1) is an objective
one. Thus, given the circumstances under which the T-shirts were
distributed by the Respondent, it would have been reasonable for the
employees to believe that their positions regarding the Union were
being recorded for the Respondent’s use.
Member Oviatt notes that, in distributing the T-shirts to employees
and compiling the list of takers, supply room clerk McCrae was
cloaked in the apparent authority of the Respondent as its special
agent, much as employees who solicit authorization cards are
deemed special agents of the Union for the limited purpose of as-
sessing the coercive impact of statements they make while soliciting.
See Davlan Engineering, 283 NLRB 803 (1987).
13 Compare Standard Products Co., 281 NLRB 141, 151 (1986),
modified on other grounds 824 F.2d 291 (4th Cir. 1987), in which
similar statements made on a single occasion were held to be lawful
where the supervisor explicitly stated that she was expressing her
personal opinion and the conversation was initiated by the employ-
ees.
14 Nothing in this Decision and Order should be construed as di-
recting the Respondent to withdraw any benefits granted to employ-
ees.
293 NLRB 297, 303–304 (1989), enfd. mem. 891 F.2d
601 (3d Cir. 1989).12
3. We find, contrary to the judge, that the Respond-
ent violated Section 8(a)(1) of the Act, and interfered
with employee free choice in the election, by Super-
visor Annie Gilchrist’s implicit threats that the plant
would close if the employees selected the Union as
their bargaining representative. Gilchrist, a supervisor
in the Respondent’s cutup and packing department, tes-
tified that she had one-on-one conversations with 8 to
10 employees. In each conversation, she stated, ‘‘I’m
not asking you how you plan to vote,’’ but continued,
‘‘I need my job and if the Union come, we both might
be out of a job.’’ The judge found these comments to
be lawful because Gilchrist was expressing her per-
sonal opinion, did not represent that she was speaking
on behalf of the Respondent, there was no evidence
that the remarks were communicated to other employ-
ees, and the conversations occurred in the work area
rather than in an office. We disagree.
Gilchrist’s remarks clearly conveyed to employees
that they might be out of a job should the Union be
voted in. Gilchrist, who initiated the conversations, did
not even state that she was simply expressing her per-
sonal opinion. Accordingly, nothing occurred in these
conversations to indicate to employees that Gilchrist
was speaking in other than her capacity as a supervisor
for the Respondent, particularly since the conversations
occurred in work areas.13 Although a different infer-
ence might be drawn had Gilchrist’s remarks been
made in isolation, in the context of this heated
antiunion campaign in which the Respondent has en-
gaged in other unlawful and objectionable conduct any
ambiguity as to the remarks’ coercive implications
must be resolved against the perpetrator. Even if the
unlawful threats were not in fact communicated to ad-
ditional employees, we find that such conversations
with 8 to 10 employees cannot be dismissed as isolated
or de minimis. In addition, we note the closeness of
the election in this case. Accordingly, we conclude that
Gilchrist’s threats of plant closure, which occurred dur-
ing the critical period, were both unlawful and objec-
tionable.
Having found various incidents of objectionable
conduct, we shall set the election aside and direct a
second election.
4. In light of our findings that the Respondent has
engaged in the above-described objectionable conduct,
we find it unnecessary to pass on exceptions to the
judge’s overruling Objection 6 concerning the Re-
spondent’s distribution of a pamphlet entitled ‘‘Diary
of a Strike.’’
CONCLUSIONS OF LAW
1. The Respondent, House of Raeford Farms, Inc.,
is now and at all times material has been an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. United Food and Commercial Workers Union,
Local No. 204, affiliated with United Food and Com-
mercial Workers International Union, AFL–CIO, CLC
is a labor organization within the meaning of Section
2(5) of the Act.
3. By soliciting employee grievances, promising to
remedy those grievances, and granting new benefits
during the union organizational campaign in order to
discourage union activity, by recording the names of
employees accepting vote-no T-shirts and thereby pres-
suring employees to make an open acknowledgment
concerning their campaign position, and by threatening
employees with plant closure if the employees selected
the Union as their bargaining representative, the Re-
spondent has violated Section 8(a)(1) of the Act.
4. The conduct described above in paragraph 3 addi-
tionally constitutes objectionable conduct affecting the
result of the representation election which was con-
ducted on October 7, 1988.
5. By the conduct described above in paragraphs 3
and 4, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(1) of the Act, we shall order the Respondent
to cease and desist from engaging in such conduct and
to take certain affirmative action.14 Having further
found that the Respondent has engaged in objection-
able conduct affecting the outcome of the representa-
tion election held on October 7, we shall direct a sec-
ond election.
572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’ 1 All dates are 1988 unless otherwise indicated.
ORDER
The National Labor Relations Board orders that the
Respondent, House of Raeford Farms, Inc., Raeford,
North Carolina, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Soliciting employee grievances, promising to
remedy those grievances, and granting new benefits
during the Union’s organizational campaign in order to
discourage union activity.
(b) Recording the names of employees accepting
vote-no T-shirts and thereby pressuring employees to
make an open acknowledgment concerning their cam-
paign position.
(c) Threatening employees with plant closure if the
employees selected the Union as their bargaining rep-
resentative.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its facility in Raeford, North Carolina,
copies of the attached notice marked ‘‘Appendix.’’15
Copies of the notice, on forms provided by the Re-
gional Director for Region 11, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that Case 11–RC–5522 is
severed from Cases 11–CA–12943, 11–CA–12987, 11–
CA–13081, 11–CA–13121, and 11–CA–13369–2 and
that Objections 1, 21, 22, and 23 to the conduct of the
election filed in Case 11–RC–5522 are sustained and
the election is set aside; and that Case 11–RC–5522 is
remanded to the Regional Director for Region 11 for
the purpose of conducting another election at such time
as he deems the circumstances will permit the free
choice of a bargaining agent.
[Direction of Second Election omitted from publica-
tion.]
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT solicit employee grievances, promise
to remedy those grievances, and grant new benefits
during the Union’s organizational campaign in order to
discourage union activity.
WE WILL NOT record the names of employees ac-
cepting our distribution of vote-no T-shirts, thereby
pressuring employees to make an open acknowledg-
ment concerning their campaign position.
WE WILL NOT threaten employees with plant closure
if they select the Union as their exclusive bargaining
representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
HOUSE OF RAEFORD FARMS, INC.
Patricia Timmons, Esq., for the General Counsel.
Charles Roberts, Esq. and Rodolfo R. Agraz, Esq., for the
Respondent.
Carol L. Clifford, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR, Administrative Law Judge. These
cases were heard on certain dates beginning on June 20,
1989, and ending on February 14, 1990, in Raeford and Fay-
etteville, North Carolina. A complaint and notice of hearing
was issued in Case 11–CA–12943 on October 31, 1988,1 an
order consolidating cases, consolidated complaint and notice
of hearing issued in Cases 11–CA–12943 and 11–CA–12987
on November 28, 1988, and a second order consolidating
cases, consolidated complaint and notice of hearing issued in
Cases 11–CA–12943, 11–CA–12987, and 11–CA–13081 on
January 31, 1988. Thereafter, a report on objections, direc-
tion, and order consolidating cases issued in Cases 11–RC–
573HOUSE OF RAEFORD FARMS
2 The objections track the unfair labor practices with one excep-
tion.
3 Counsel for the General Counsel’s and the Charging Party’s
counsel’s motions to correct the transcript are granted.
5522, 11–CA–12943, 11–CA–12987, and 11–CA–13081 on
February 7, 1989. On February 28, 1989, a fourth order con-
solidating cases, and consolidated complaint and notice of
hearing issued.
Issues
1. Whether the Respondent engaged in certain independent
acts which were violative of Section 8(a)(1)?
2. Did Respondent violate Section 8(a)(1) by discharging
employees Michael Blackmon and Jessie Battle?
3. Whether Respondent violated Section 8(a)(1) and (3) by
discharging Michael Washington, Phillip Freeman, Heyward
Davis, Alfreda Hammond, Larry Jones, Mae Helen Daniel,
and Ernestine Bethea.
4. Did Respondent violate Section 8(a)(4) of the Act by
refusing to rehire Alfreda Hammond?
Are the objections2 sufficient in fact and in law to set
aside the election? At the conclusion of her case, counsel for
the General Counsel moved,3 and was allowed, to delete
from the pleadings the, 8(a)(3) allegations relating to Johnny
Hatcher and Theodore Mills.
Also deleted were several independent allegations within
the meaning of Section 8(a)(1) of the Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of the
briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is now, and has been at all times material, a
North Carolina corporation with a plant located at Raeford,
North Carolina, where it is engaged in the processing and
sale of turkey and chicken products. During the past 12
months, which period is representative of all times material,
Respondent received at its Raeford, North Carolina plant
goods and raw materials valued in excess of $50,000 directly
from points outside the State of North Carolina. During the
past 12 months, which period is representative of all times
material, Respondent shipped from its Raeford, North Caro-
lina plant products valued in excess of $50,000 directly to
points outside the State of North Carolina.
Respondent is now, and has been at all times material, an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
United Food and Commercial Workers Union, Local No.
204, affiliated with United Food and Commercial Workers
International Union, AFL–CIO, CLC (the Union) is a labor
organization within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR PRACTICES
Respondent operates a turkey processing plant in Raeford,
North Carolina. It is owned by E. Marvin Johnson, who has
acted as its president since 1962. The facility employs ap-
proximately 1000 employees. Prior to May 1988, Respondent
had no personnel director, but on approximately May 15,
Eric Wowra was hired as the personnel director.
Michael Blackmon, Jessie Battle, and the Walkouts
Battle did not testify at the hearing. He worked at the Re-
spondent’s plant on two separate occasions, the most recent
from June to August 12.
Michael Blackmon worked at the plant from June 1987,
until August 12, 1988. Both Blackmon and Battle worked in
the chilling department. Their supervisor was Athens Barnes,
also known as ‘‘Sarge.’’
On July 28, Blackmon, Battle, Chester Fields, and Phillip
Freeman walked off their jobs in the chilling department. As
they were leaving, Blackmon advised Assistant Supervisor
Don Leggett that they were leaving because they could not
take it anymore, and they were tired of working so hard. The
four employees then gathered in the employee parking lot.
Respondent concedes that Blackmon and Battle were, by
these acts, engaged in protected concerted activity.
Blackmon testified that shortly thereafter, Roscoe McCol-
lum, plant superintendent, Eric Wowra, personnel director,
and Sherwood Locklear, plant manager, went to the parking
lot and met with the four employees. The employees told
management that they were quitting because they did not
want to work that hard anymore, they wanted more money
and more employees, to help them out. Locklear took
Blackmon aside and told him that he would make him a bird
hanger if the employees went back to work. This change in
job classification would result in more money for Blackmon.
The employees were told that more help would be forthcom-
ing, but that Marvin Johnson, president of Respondent,
would have to determine the money issue.
During the conversation Blackmon stated that a rumor was
going around that Johnson had referred to the employees as
‘‘black slaves.’’ Wowra responded that this was not true and
the he would not work for Johnson if that were Johnson’s
sentiments. Wowra further stated that another member of
management had made the statement, but it was not Johnson.
Although Wowra did not divulge to the employees who in
fact made the statement, he testified that indeed the statement
had been made in his presence by General Manager Lou
LuSente (transcript spelling). LuSente has since been fired.
Wowra told the four employees to take the rest of the day
off and to come back the next morning.
That afternoon, between 2 and 2:30 p.m., Johnson called
a meeting in his conference room. It was attended by Wowra
and other management representatives. Wowra testified that
Johnson wanted to know what was going on with the em-
ployees in the parking lot. Wowra advised Johnson that they
were complaining about wages and hours and they just
walked out. Moreover, they were tired and they mentioned
the remark actually made by Lou LuSente, but attributed to
Johnson. Wowra told Johnson that he sent the employees
home and told them to come back tomorrow. Johnson asked
Wowra if he thought they should be fired. Thereafter a gen-
eral discussion ensued, wherein Wowra advised Johnson that
if one employee walks out they have considered that a quit
or a resignation and the employee was ‘‘written up’’ accord-
ingly. Furthermore, according to Wowra, he advised Johnson
that he did not believe these people could be legally termi-
nated because they had been engaging in protected activity.
574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 A representation election was conducted on October 7. The vote
was 391 for the Union and 420 against the Union with 29 chal-
lenged ballots. The Union filed timely objections to the election. 5 Including Blackmon and Battle.
Wowra further testified that he has managed plants, been
involved in walkouts, and he has addressed crowds of a 1000
who were threatening to walk out of a plant. Moreover, for
approximately 2 years, he experienced dealing with the Na-
tional Maritime Union and their representatives as well as the
meatcutters and their representatives so he, according to this
testimony, was familiar with what could and could not be
done, and what should and should not be done in a plant en-
vironment. Johnson thereafter made the decision not to fire
the individuals who walked out.
Freeman essentially corroborated Blackmon’s testimony.
He and the others returned to work the next day. Freeman
testified that on that weekend he and Fields went to Virginia.
When it came time for the return trip, Freeman could not
find Fields and returned alone. On Monday morning, August
1, Freeman told Barnes what had happened and asked per-
mission to leave to go back to Virginia to look for Fields.
According to Freeman, Barnes was worried about Fields and
told him to talk to McCollum. Freeman did this and was
granted permission to leave work so that he might find
Fields.
After the four employees who walked out returned to
work, they were approached by other employees and dis-
cussed a general strike. McCollum had also told Blackmon
that he had checked with Johnson, and Johnson refused to
give the employees a raise. Blackmon advised McCollum
that employees were discussing about going out on strike.
According to Blackmon, McCollum decided that that might
get Johnson’s attention.
On Monday, August 1, at approximately 10 a.m., a large
group of the employees began walking out of the plant.
Wowra observed this and called Johnson at his home. John-
son was not present so Wowra left a message. Johnson re-
sponded to Wowra’s message about a half hour later, and
told him to talk to the employees and find out what their
problems were.
Wowra went outside and talked to the employees. He
asked them what their problems were, and they responded
that they wanted Saturdays off, a pay raise, and better bene-
fits. Wowra advised them that Johnson would be there later
that morning and he would talk to them, he asked them to
go back to work but they refused his request.
Johnson, accompanied by Wowra, walked across the street
and stood on a trashcan to talk to the employees. They yelled
that they wanted more money, better benefits and Saturdays
off. Johnson told the employees they would get a raise on
Labor Day and that he would look into Saturdays and other
benefits. He asked the employees to return to work.
After the walkout on August 1, on that same day, Ernes-
tine Bethea commenced to hand out union authorization
cards for the National Maritime Union. Thereafter on Tues-
day, the Union, began an organizational campaign. Both
Unions filed representation petitions, however the National
Maritime Union subsequently withdrew its petition.4
After a meeting with the employees outside of the plant
on August 1, Johnson and Wowra decided to cut production
in half and to sell off the live turkeys to Carolina Turkeys
in Mount Olive, and Cutty Farms in Marshville, North Caro-
lina.
On the next morning, August 2, some employees returned
to work but the majority remained in the parking lot. Early
that morning, Locklear, McCollum, and Wowra went out and
tried to persuade the employees to return to work. McCollum
told them that they had not been fired and asked them to re-
turn. At the time a union representative was passing out au-
thorization cards among the employees. Wowra requested the
representative not pass the cards out on company property.
The next morning, August 3, approximately 100 to 150
employees returned to work. Wowra met with some of them
in small groups and gave them their timecards. He informed
them that they had not been fired, the only thing they had
lost is pay for time issued. Moreover, Wowra advised the
employees that the plant would not operate that Saturday,
and that Johnson would stand behind his promises. He also
advised the employees that it was Respondent’s intention to
put them back in their old jobs, but that some new employ-
ees had been hired and everyone would be placed by their
supervisors.
The majority of the employees returned to work on Thurs-
day morning, August 4. Wowra again told the employees
that which he had informed them of the previous day. As a
result of selling off half of the live turkeys, management de-
cided to wait until August 8 to return to full production.
Therefore some employees were not returned on Thursday,
but Wowra took their names and phone numbers and told
them that a decision would be made later in the week.
Wowra’s testimony and documentary evidence (Wowra’s
memorandum) reflect that he met with supervisors and man-
agers at 2:30 p.m. to discuss what should and should not be
done in regard to the union organizational campaign. He in-
formed the management of what Johnson had promised the
employees and what he, Wowra, had told the employees as
they returned to work. He instructed the managers to treat
the people with respect, avoid any discussion of the Union
(it is their business), and to try to put the employees back
in their former jobs. He also stated that plant rules would not
be changed.
On Friday August 5, employees were continuing to return
to work. Some additional employees5 were offered work but
they requested that they be allowed to wait until Monday.
Personnel Manager Molene Russell gave them permission to
stay out until Monday.
Blackmon and Respondent’s witnesses are factually in ac-
cord regarding the events leading up to and including the ter-
minations of Blackmon and Battle.
On Friday, August 12, Blackmon and Battle received their
paychecks for the previous week. They were disturbed that
they had not been paid for August 4 and 5, after they had
offered to return.
Blackmon and Battle asked Barnes if they could go to the
personnel office about this matter. Barnes allowed them to
leave. They proceeded to the personnel office and stated that
they wanted to go to unemployment to see about the 2 days
for which they were not paid. Russell told them they would
have to get permission from their supervisor.
At this point in time the employees breaktime had begun,
and Blackmon and Battle approached Barnes who was sitting
575HOUSE OF RAEFORD FARMS
in his vehicle, and asked if they could go to the unemploy-
ment office to inquire about getting paid for the 2 days.
Barnes gave them permission to leave. They drove to the
Hoke County Office which is 1 to 1-1/2 miles from the
plant. The employee at the unemployment office told them
he did not have the proper paperwork, and gave them some
telephone numbers so that they could make inquiry.
Blackmon and Battle returned to the plant at approxi-
mately at 10 a.m. Battle stayed in the car while Blackmon
went in and talked to Barnes. He told Barnes that he needed
to go to the Cumberland County Unemployment Office in
Fayetteville. Barnes told him that he did not have the author-
ity to let him go, and that he was working short handed be-
cause he had let some of the other employees leave and be
did not have enough employees. Therefore, he could not let
Blackmon and Battle leave. Blackmon responded that he, had
already gotten permission from Barnes and that he
Blackmon, was already clocked out.
In support of its contention that the chilling department
was working short handed, Respondent introduced the time-
cards of the 28 employees in that department. Two of the
employees had previously quit and did not work that week.
Another employee reported in on that Friday, but left at 8:52
a.m. and didn’t return until 12:57 p.m. Another employee did
not report to work until 9:18 a.m. One employee was absent
all day. One employee did not report to work until approxi-
mately 12:45 p.m. Freeman, although assigned to the chilling
department, was on light duty at that time because of a hand
injury.
More specifically, Blackmon told Barnes that he was al-
ready punched out and that he had only come back to let
them know where he was going. Barnes replied that he was
working short and that Blackmon should talk to either
McCollum or Supervisor Annie Gilchrist. Blackmon re-
sponded that Barnes had already given him permission and
that he was leaving and would return after he was finished.
At that point he walked out and left.
Blackmon admitted that he did not attempt to approach
McCollum or his assistant, Gilchrist, to get permission to
leave. Rather, he and Battle drove to the Cumberland County
Unemployment Office in Fayetteville. They were informed
there that this was a matter for Respondent, in view of the
fact that they still were employed by Respondent.
They returned to the plant arriving at 3:30 p.m. Blackmon
testified that he and Battle were ‘‘hot’’ about the matter and
spent 2 hours ‘‘cooling off.’’ When they arrived they discov-
ered that their timecards were not in the rack. They asked
Barnes about this he informed them that their timecards were
in the personnel office. They went to the personnel office
where they were told that their cards were in Plant Manager
Sherwood Locklear’s office. They proceeded to Locklear’s
office where he asked them if Barnes had given them per-
mission to leave. Blackmon responded that Barnes did not
say yes or no. Locklear told them that he needed to think
about the matter and they should get back to him the next
day.
The next day, they met with Locklear, McCollum, and
Barnes. McCollum asked Barnes if he had given them per-
mission to leave the plant. Barnes stated he had told them
they could not leave. Locklear stated that he was going to
rely on what Barnes said. McCollum then told Blackmon and
Battle that they were terminated.
Conclusion and Analysis
Counsel for the General Counsel contends that Blackmon
and Battle were terminated because of their walkout on July
28, which is protected, concerted activity. Respondent con-
ceded that they were engaged in such activity.
As an alternative theory counsel for the General Counsel
contends that they were terminated for going to the unem-
ployment office, another protected act of concerted activity.
There is no evidence that these employees were fired be-
cause of the walkout, the preponderance of the evidence
points the other way. Respondent attempted to understand the
problems and resolve the walkout.
Freeman and Blackmon both testified that no one from
management ever said anything to them about the walkout.
Counsel for the General Counsel failed to demonstrate any
evidence of animus on the part of Respondent, directed to
Blackmon or Battle.
In view of the fact that Respondent cut its production in
half, it became necessary for Respondent to gear up gradu-
ally by bringing employees back as needed. The processing
operations are interdependent. I do not infer that this was in-
vidious. It was simply a necessary decision made in the nor-
mal course of business.
I am convinced by the preponderance of the evidence, that
Respondent discharged Blackmon and Battle because they
left the plant after Barnes told them emphatically that he
needed them because he was working short handed. More-
over, Barnes told them that they would have to get permis-
sion from McCollum. They made no attempt to find either
McCollum or his assistant Gilchrist.
Furthermore, they left the plant the first time during a
break period. The second time they requested leave during
working time. Management has a basic right to maintain dis-
cipline and production. Respondent operates a line type of
processing business. It cannot be expected to allow people to
leave work when they feel like it, either on personal business
or otherwise. Blackmon and Battle were not faced with any
emergency. They left the plant without the required permis-
sion, on a strictly personal matter. There is no showing that
time was of the essence.
Blackmon admitted that Barnes told him he was short
handed, and the evidence bears out the fact that the depart-
ment was in fact understaffed. He also admits that Barnes
told them not to leave without permission from McCollum.
Blackmon paid no heed to get such permission, did not even
make the effort.
There is no evidence of discrimination or disparate treat-
ment. Moreover the plant rule states employees cannot leave
their work stations without permission. Here, in an act of in-
subordination, they disobeyed a reasonable direct order by a
supervisor.
Nor can I find any disparity in the treatment of Freeman
or Calvin Brown. I note that Freeman participated in the July
28 walkout, and Brown was also on the parking lot at that
time.
Freeman, who had a hand injury, and was on light duty,
was given permission to leave by Gilchrist. Freeman,
Brown’s brother, did not tell Brown that he could not leave
the plant. To the contrary, Brown testified that, ‘‘he [Free-
man] said let’s go I thought everything was squared away.’’
The matter was fully investigated by McCollum. He de-
cided that Freeman, who had permission, should be retained.
576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 251 NLRB 1083 (1980). 7 Including the names of Allen and Ferguson.
Furthermore Brown convinced McCollum that he mistakenly
believed he was also granted permission. McCollum per-
ceived the episode as a communication problem between the
two brothers, therefore termination was not warranted. Battle
did not testify, therefor his knowledge is unknown. Barnes
and McCollum impressed me as credible witnesses. They ap-
peared to be objective and explicit in their testimony. When
they did not know an answer to a question, they acknowl-
edged it.
I conclude that Respondent terminated Blackmon and Bat-
tle for the reasons it has advanced, and not for any protected
concerted activity. Respondent has satisfied its Wright Line6
burden and would have terminated Blackmon and Battle, not-
withstanding their concerted activity. Accordingly, I rec-
ommend that the 8(a)(1) allegations as to Blackmon and Bat-
tle be dismissed.
Michael Washington
Michael Washington worked for Respondent from January
1988, until he was terminated on August 25. During most of
his tenure he worked in the eviscerating department or hang-
ing live turkeys.
Washington participated in the August 1 walkout, return-
ing on August 4. During the walkout, Washington had a con-
versation about raises with Johnson while they were crossing
the street. A photograph of the two of them crossing the
street appeared in the local newspaper. Respondent was
aware that Washington loudly encouraged the employees
who appeared to be returning to work during the walkout. He
loudly told them they should not return to work, rather to
continue staying out so as to win their demands. Washington
was questioned on direct examination about his union activ-
ity, and in response he testified that he participated in the
walkout and had his photograph in the newspaper. Washing-
ton testified that he wore a union sunvisor until a week be-
fore he was terminated.
Carl Lindsey, who had worked for Respondent for a short
period, testified that Washington was one of 10 to 25 mem-
bers on the union committee. He also acknowledged that the
committee did not make itself known to management.
On August 25, the day of his discharge, Washington
worked hanging live turkeys. He finished for the day at
about 4:30 p.m. and proceeded to the bathroom to clean up.
On his way there, he saw employee Johnny Hatcher, who
had worked during the walkout, hanging the live birds.
Hatcher stopped Washington and asked him if he was still
hanging live birds. Washington answered affirmatively.
Hatcher then told him that he had found some gloves and a
smock, that the live bird hangers use as uniforms, and asked
Washington if he wanted them. Washington stated that he
did, and Hatcher gave him a blue paper bag containing
gloves and uniforms. Washington testified that he thought
they were hanging uniforms based on his conversation with
Hatcher. He put the bag that Hatcher gave him into his own
blue gym bag. Washington then left the plant, heading across
the street toward the employee’s parking lot. He saw his su-
pervisor, Marion Love, the supervisor of the hanging depart-
ment and the two began talking. Washington showed Love
the gloves and uniforms and told him that some guy from
the chilling department had given them to him. He did not
at that time identify the individual who gave him the items.
According to Washington, Love with a wave of his hand,
called over Kathleen Ferguson, an employee of 19 years, and
talked to her. Love then went back into his office. At that
point, Richard Ferguson, the husband of Kathleen Ferguson
and Ralph Allen, a supervisor, came out of the Scale House
and waved at Washington to go to the Scale House office
which he did. When he entered he was questioned by Dick
Locklear, a supervisor, in the presence of Allen and Fer-
guson. According to his testimony, Washington was asked by
all three supervisors what he had in the bag. He replied that
some guy had given him some uniforms and some gloves.
Locklear asked to see them, and Washington took the gloves
and uniforms out of the bag and they had various supervisors
names on them.7 Locklear told Washington to take Allen and
Ferguson into the plant to show them who gave him the
gloves and uniforms.
Washington, Allen, and Ferguson went into the chilling
department, but were unable to locate the employee who had
given Washington the items. According to Washington, Allen
told him not to worry about it, that they would come back
the next day and find the employee. The three of them then
returned to the Scale House. At that point in time, Locklear
asked Washington how many uniforms he had. Washington
replied that he had 10 hanging suits and 3 smocks. He was
asked by Locklear where he got so many uniforms. Washing-
ton responded that he had obtained the uniforms from var-
ious supervisors, including Sherwood Locklear and Alfred
McNeil, and that he had received the smocks when he first
began working in the eviscerating department. He stated fur-
thermore, that the uniforms he was originally given were size
34 and were too small. Later, Sherwood Locklear gave him
size 46 uniforms which fit perfectly. Dick Locklear told
Washington to bring in the other uniforms the next morning.
Washington testified that different types of smocks are
worn by employees and supervisors. Those worn by super-
visors button down the front and have the supervisors name
on them, while employee smocks are tied around the back
of the employee. The hanging suits are a jumpsuit that you
have to step into and zip up. Employees who hang live birds
also wear gloves. They are issued a new pair of gloves every
morning. According to Washington, if an employee looses a
glove during the day, Respondent issues the employee an-
other pair. The gloves are thrown away at the end of the day,
and the employee doesn’t have to sign for each new issue,
according to Washington’s testimony.
The next morning, Washington went back to the plant,
punched in, and began working. Shortly thereafter his super-
visor, Alfred McNeill, told Washington that Dick Locklear
wanted to see him in the Scale House. Washington reported
to Dick Locklear and Ralph Allen was also present. Locklear
commenced to question Washington as to why he had
punched in. Washington responded that he would not have
punched in if Locklear had told him not to. Washington testi-
fied that Locklear had his timecard on his desk at this time.
Locklear asked him if he had returned the uniforms that he
had at home, that were too small. Washington stated he had
returned them and they had been laundered. Locklear then
directed Washington to go to the personnel office at 8 a.m.
577HOUSE OF RAEFORD FARMS
Washington went to the personnel office and awaited the
arrival of Wowra. When Wowra arrived, Washington told
him about the circumstances of his having received the uni-
forms and gloves. According to Washington’s testimony,
Wowra told him he didn’t think there should be any problem
about the matter, and that he would call Locklear to find out
about it. At that time Washington identified the person who
gave him the gloves as the guy from the chilling department
he had been in a shouting match with the week before. On
cross-examination, Washington admitted that a week before
the events leading to his discharge, he and Johnny Hatcher
engaged in a confrontation, in which Hatcher supposedly al-
most ran over Washington and his wife with a jack. Wash-
ington was talked to by Dick Locklear, Roscoe McCollum,
and Sherwood Locklear. Wowra was aware of this incident.
According to Washington, after telling Wowra his version,
Wowra allegedly told him he didn’t think there should be
any problem about the matter, that he wanted to call
Locklear and find out about it. Wowra then called Locklear
over, and had Washington wait outside of the office. Shortly
thereafter Wowra called Washington back into the office and
told him that he, Wowra, had a meeting to attend, and he
couldn’t talk to Washington anymore at that time. Wowra
told Washington to come back in on Thursday morning.
The next morning, Washington went back to personnel and
met with Wowra and Dick Locklear. Wowra told Washing-
ton that he had talked with Hatcher, and their stories did not
harmonize. Wowra then advised Washington that he was
sorry but Respondent could no longer use him, because he
was in possession of smocks that did not belong to him.
Washington asked Wowra if he had talked with Barnes and
McCollum, because they had been right there when Hatcher
admitted giving him the gloves and uniform. Washington tes-
tified further that he asked Wowra if it made sense that he
would have gone outside and shown the gloves and uniforms
to a supervisor as he had in fact done, if he had stolen them.
Wowra allegedly told Washington he had nothing more to
say to him.
Kathleen Ferguson, an employee of 19 years’ duration,
testified that on August 23, she went to the supply room to
pick up supplies for the eviscerating department. According
to her testimony, she went in the afternoon, at about 2 p.m.
and picked up the supplies. It was Ferguson’s routine to go
down to supply, just before the end of the shift, and get the
coats for the supervisors and the gloves for the employees.
On that day, she was called out to grade turkeys, and left
the coats and gloves in the knife room. Ferguson testified
that she left the gloves inside a paper towel box inside the
knife room. When she returned to get the supplies after grad-
ing the turkeys, she discovered the gloves were gone. She
told Richard Ferguson, a supervisor and also her husband,
that the gloves were missing, and they told Dick Locklear,
the department manager of slaughter.
That afternoon, Marion Love, an employee of 26 years,
and the brother of Kathleen Ferguson (a supervisor in the
live hanging dock area), was crossing the street when he ob-
served Washington sitting next to the gate on the parking lot.
According to the testimony of Love (appearing in the record
as Johnny Marion Love), Washington was holding some
cloth gloves that were used to hang turkeys and some super-
visors’ white coats above a bag. Love overheard Washington
tell these employees that he did not have to worry about the
supplies because this was how he got his. Love then saw
Kathleen Ferguson who was coming across the street at the
same time. Love testified that he was aware that supplies had
been missing in the plant, and he told Ferguson that he
thought had found out where their supplies were getting
away to. Love told Ferguson what he had observed. Ferguson
went to the Scale House office and told Dick Locklear,
Ralph Allen, and Richard Ferguson that, according to Allen’s
testimony, Washington had the gloves and coats.
At Locklear’s request, Allen and Ferguson left the Scale
House office and called Washington from across the road.
On the way to the office Washington opened the bag he was
carrying and pulled out the gloves and the supervisor uni-
forms. According to the testimony of Allen, Washington told
him and Ferguson that he did not intend to take the supplies,
and that he was going to bring them back.
Ferguson and Allen proceeded to bring Washington back
into the office. Locklear asked Washington why he had taken
the equipment. Initially, according to the testimony of Allen
and Locklear, Washington stated that he found the gloves in
a tank. Then Washington said a short dark skinned guy in
the chilling department had given him the gloves, although
Washington did not identify the individual by name.
Locklear then told Allen and Ferguson to take Washington
to the chilling department to find the individual Washington
claimed had given him the gloves. The three of them went
to the chilling department but Washington was unable to
identify the employee.
Washington, Allen, and Ferguson then returned to the of-
fice. At that time, Washington said he had about a dozen pair
of coveralls at home. Locklear told Washington to bring the
coveralls to the office and report to him the next morning.
At approximately 7:30 a.m. the next morning, August 24,
Wowra testified that he was opening his office door when he
saw someone running towards him who turned out to be
Washington. Wowra testified that as he was opening the
door, Washington was saying ‘‘Eric don’t fire me! I didn’t
steal those gloves.’’ Wowra further testified that he asked
what was going on, because he was in the process of trying
to open up and start another day, and this individual comes
running across the parking lot, very distraught asking not to
be fired. Moreover, according to Wowra’s testimony, Wash-
ington stated that he bought the gloves, he didn’t steal them,
he didn’t do it. At that point in time, Wowra had no idea
what Washington was talking about. Wowra told Washington
to calm down, and while Washington talked, Wowra took
notes. Washington accused Dick Locklear of hassling him
and said that, ‘‘some dude in chilling’’ sold him the supplies.
Washington further stated that he had nine sets of smocks at
home and that people in the plant sold clothes all the time.
Wowra then called Locklear into the office with Washington.
At that point Washington changed his story and said that
some dude in chilling gave him the supplies. He denied
stealing it. Wowra advised Washington to leave the premises
so that he could investigate the situation, and for Washington
to return at 8 a.m. the next day.
At approximately 9 a.m., Wowra was leaving his office
when he was confronted by Washington in the parking lot.
He reminded Washington that he had instructed him to leave
company property. Washington kept reiterating, ‘‘don’t fire
me some guy gave me those gloves.’’ Wowra told Washing-
ton that without the guy’s name he didn’t have much to go
578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Independent allegations of Sec. 8(a)(1) of the Act will be dis-
cussed infra.
9 Hatcher’s case was withdrawn and he was not called as a wit-
ness.
on. At that point, Washington told Wowra that it was the guy
with whom he had gotten into an argument a week earlier.
Wowra was aware of the incident involving the employee
Johnny Hatcher. Wowra returned to personnel and started to
investigate Washington’s situation. He talked to Kathleen
Ferguson and Marion Love. His notes of those discussions
were received into evidence.
While Wowra was investigating, Dick Locklear called
him, and said he had heard Johnny Hatcher tell the plant
nurse that he had given Washington the gloves in the morn-
ing. Wowra did not believe this because the gloves were not
missing until 2:30 or later in the afternoon.
Wowra also took detailed notes of his conversations with
Locklear, Love, and Washington. They were also received
into evidence.
When Wowra’s investigation of the situation was com-
pleted, he concluded that Washington had been in unauthor-
ized possession of company property. Wowra and Locklear
discussed the situation and agreed to terminate Washington.
Washington was informed of the decision the next morning.
Conclusion and Analysis
Although Washington was demonstratively vocal in the
walkout, he was but one of hundreds of employees.
I find no evidence to support a finding of antiunion ani-
mus directed towards Washington. Washington testified that
Johnson told him there would be a raise on Labor Day. He
admitted specifically that Johnson did not bring up a union.
Nor was he threatened8 with reference to the walkout.
Washington acknowledged that when he returned to work
after the walkout, Dick Locklear and Wowra put him in jobs
in other areas to aid in his comfort, because he complained
that his hand was bothering him. He was moved to several
different jobs because certain jobs aggravated his hand. This
does not appear to me to be an employer who is harboring
revenge or seeking to take reprisals.
There is a dearth of evidence that Washington solicited so
much as one union authorization card.
Record evidence, by way of testimony and documentation,
demonstrates that Washington’s status was fully and com-
pletely investigated. Respondent then concluded that Wash-
ington was in unauthorized possession of company property
and that termination was warranted.
Respondent produced evidence of other employees who
were terminated for similar reasons. Bryant was terminated
for signing a false name to get $10 in food coupons.
McClaurin was discharged for giving false information re-
garding a paycheck. Parks was terminated for giving false in-
formation on her application. Pate was discharged for theft.
Franklin Smith was discharged for stealing two barbequed
chickens.
Hatcher, an alleged discriminatee,9 threatened Wowra that
if a problem he was having wasn’t resolved, he was going
to the Labor Board. In the face of this, Hatcher wasn’t termi-
nated, because Respondent simply did not believe that Hatch-
er had found the gloves or given them to Washington.
I was most unimpressed with Washington’s credibility. He
was evasive, indefinite, and I believe his story to be a con-
summate lie. That his testimony was concocted was obvious
to me.
By way of contrast, Respondent’s witnesses to the Wash-
ington episode were explicit, unambiguous, and appeared to
me as making an honest effort to be exacting in their testi-
mony, I fully credit those witnesses.
In February 1988, Washington was convicted of stealing
tapes from a Kroger store. He was sentenced to 1 year in the
North Carolina Department of Corrections. The sentence was
suspended on the condition that he pay a fine and stay off
the premises of the store for 1 year. Suffice it to say, Wash-
ington has had honesty problems in the past, although absent
the conviction, I discredit him based on his courtroom exhi-
bition.
When questioned as to whether he knew the ‘‘guy’s’’
name (Hatcher), he changed his answers some four times.
Washington’s answers to questions propounded by me and
counsel for Respondent where generally indefinite and amor-
phous.
His testimony that supervisors, including Wowra, made
statements to indicate that he had no problem, ‘‘don’t
worry—be happy,’’ was completely contrived in my opinion.
Respondent has more than adequately met its Wright Line
burden. Accordingly, I recommend that the 8(a)(3) allegation
as to Washington be dismissed.
Phillip Freeman
Freeman was employed by Respondent during two time
periods. He was first hired on December 11, 1987, and 8
days later walked out and quit. He was hired again on June
15, where he worked in the chilling department until August
31, the day of his discharge.
Freeman participated in the walkout on Tuesday and
Wednesday. He, and other employees, solicited signatures on
the parking lot and in the canteen, and signed union author-
ization cards and also attended union meetings. He testified
further that union representatives were giving out cards, and
a lot of employees were signing cards. There is no evidence
that management spoke to Freeman during his organizational
activity.
Freeman testified that on the day of the circumstances
leading to his discharge, August 30, he reported to work for
his normal shift at 7:25 a.m. He denied being intoxicated at
work on that day, but admitted he had a beer that morning
before he reported to work. He testified further that this was
not the only day he had a beer before reporting to the plant
for work.
When he reported in that day, according to Freeman, the
department was working short handed, and he asked Barnes,
the supervisor, for additional help. After the line started up,
he yelled at Barnes apparently trying to get more help. Free-
man testified that during the break period, sometime between
10 and 11 a.m., he went to the parking lot but did not drink
any alcohol. When the employees returned from their break,
two supervisors helped them on the processing line. After
about 45 minutes they left, and Barnes came to the line
where Freeman on several occasions told him that the em-
ployees needed more help. Freeman testified that he told
Barnes that if they did not get any help, they were going to
shut them down.
579HOUSE OF RAEFORD FARMS
Freeman further testified that Barnes got two more people
to help out, but the turkeys started overflowing and falling
on the floor. According to Freeman, it was a chaotic situa-
tion, with people running around and screaming. Freeman ac-
knowledged that he commenced to tell other employees what
to do, and Barnes came on the scene, looked around, and
told Freeman that he was hollering at his troops, and that he
would have to get off the line if he did not stop hollering
at the people. According to Freeman, Barnes told him that
if he did not stop hollering at the troops, he would be sent
to see McCollum. Freeman responded that he did not work
for McCollum, and Barnes then pulled him off the line. Free-
man allowed that he was upset and told Barnes that he had
been asking for help. He also admitted that he told Barnes
to get the hell off his back. Freeman’s brother, Calvin
Brown, came into the area, and Barnes let them walk to the
hallway, where Freeman acknowledged that Brown was try-
ing to calm him down.
Freeman testified further that Barnes came into the hall-
way with a quality control employee named Vic Brown, was
also in the hallway. Allegedly, Barnes told Freeman that Vic
said that he smelled alcohol on Freeman. Freeman responded
that he knew ‘‘damn well that there wasn’t anybody intoxi-
cated,’’ and ‘‘who in the hell’’ was Vic who said he smelled
alcohol? Freeman told Barnes at that point, that he had seen
Vic drinking on the parking lot and that he was helping them
get rid of Freeman because he was one of the last chilling
department employees that walked out on strike.
Freeman testified that he was engaged in a heated argu-
ment with Barnes, when Roscoe McCollum walked up and
told Freeman ‘‘to go ahead and get the hell out of the
plant.’’ Then, according to Freeman, a security guard came
and told Freeman to leave. As he was leaving, Freeman testi-
fied that he shook hands with Barnes and McCollum and
they said that everything was okay. Freeman conceded that
the guard could hear the discussion because he, Freeman,
was shouting, as was McCollum. Freeman testified that while
waiting for his brother across the street from the plant, he
approached Wowra who was walking from the plant to per-
sonnel. According to Freeman, he was 4 or 4-1/2 feet from
Wowra, and told him that he wanted to talk to him because
McCollum had fired him. Wowra told Freeman to see him
in the morning.
The next day, Freeman went to Barnes who allegedly told
him everything was okay, but that he needed to see McCol-
lum. According to Freeman, he talked to McCollum, telling
him that he could come back to work, but to see Wowra for
his timecard. Freeman met with Wowra, who he said that he
had statements and allegations of misbehavior, or misconduct
and belligerence or insubordination. Freeman testified that at
the bottom of Wowra’s list was possible intoxication. Wowra
told Freeman that he was terminated, and Freeman re-
sponded, the reason that Wowra was terminating him was
because he knew that Freeman was one of the four Wowra
had talked to in the parking lot.
Respondent presented several of the witnesses who had
testified with regard to the Washington discharge.
Barnes testified that after the second break, he heard loud
hollering that sounded like somebody was giving orders.
Barnes was in the holding area, near cutup, when he heard
the yelling.
According to Barnes, Freeman was acting very erratic and
was excessively loud. Barnes took Freeman to the side and
asked him what was wrong. Freeman responded that he was
attempting to get the people motivated, and Barnes told him
it was not his job to motivate the people, and his hollering
was making the people upset and tense. Barnes stated it was
his, Barnes, job to motivate the people.
Barnes testified further that he noticed that Freeman’s eyes
were red and watery, and he asked Freeman if he had been
drinking or smoking. He testified that he was not talking
about regular cigarettes he was referencing marijuana, or
whatever. Barnes told Freeman that it looked to him that
Freeman was under the influence of something, because his
behavior was not normal, and Barnes asked him to calm
down. According to Barnes, Freeman continued to curse, al-
though Barnes, because of the passage of time, did not re-
member the words used. Freeman asked him if he was accus-
ing him of being under the influence of something.
McCollum testified that he saw Freeman come in the hall-
way near the nurse’s office cursing. He approached Freeman
and asked him what the problem was. McCollum further tes-
tified that Freeman had a ‘‘real strong smell,’’ of alcohol on
his breath. Barnes entered the area, and McCollum asked
Freeman what he had been drinking. Freeman responded that
he was in with Barnes, and Freeman stated to them ‘‘you
mother fucker, you’re all together. I ain’t had anything but
one beer to drink.’’ Barnes testified that Freeman was raising
up his arms and making very emotional movements, and that
Brown was trying to hold him down.
Brown testified that he was attempting to restrain Free-
man, and that he came over to the area because he was told
by another employee that his brother was arguing in the hall-
way. Brown got between Freeman and McCollum, trying to
calm Freeman down and he, as testified, could also smell al-
cohol on Freeman’s breath. Victor Smith testified that Brown
was holding Freeman back. He also testified that Freeman
appeared to be under the influence and was acting differently
than he usually acted. He also stated he could smell alcohol
and testified that Freeman appeared to be under the influence
and was acting differently than he usually acted. He also
stated that he could smell alcohol and that Freeman’s teeth
were green. Smith and McCollum testified that McCollum
told Freeman he would have to leave the plant.
Wowra testified that about 2 to 2:30 p.m., Freeman ap-
proached him and got ‘‘in his face.’’ Freeman stated that he
had been fired, that he was only trying to raise the morale
of the employees, and should not have been fired. Wowra
testified that Freeman reeked of alcohol, his eyes were
bloodshot, his speech was slurred, and his gait was wobbly.
The next morning Wowra spoke to Barnes and McCollum,
about Freeman’s condition on the day prior. McCollum de-
nied telling Freeman that everything was okay, and he could
go back to work. When Freeman was called into Wowra’s
office, he was told by Wowra that McCollum fired him and
that he, Wowra, thought it was for cause. He gave as the rea-
sons for the termination, violating company rules concerning
intoxication, disorderly conduct in the plant, insubordination,
and leaving the work area.
Conclusion and Analysis
There is a paucity of evidence that Respondent’s discharge
of Freeman was in any way motivated by any antiunion ani-
580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The supervisory status is denied by Respondent.
mus. If anything, the evidence is quite to the contrary. By
his own admission, Wowra offered to return Freeman to
work on Friday, August 5, after the walkout. Freeman pre-
ferred to return instead, on Monday. That was fine with man-
agement. When he did return on Monday, he talked to at
least one supervisor, Gilchrist, who did not allude to his par-
ticipation in the walkout. Nor does this record divulge that
any other supervisor alluded to it. Moreover, on Monday,
August 1, prior to the en masse walkout, Freeman was al-
lowed by management to go to Virginia to look for another
employee, Fields, who had walked out on July 28, with Free-
man and the two others. Two weeks after the July 28 walk-
out, and during the first week Freeman returned to work after
the en masse walkout, Supervisor Gilchrist allowed Freeman
to leave work, purportedly to aid his brother in obtaining a
driver’s license.
As regards Respondent’s knowledge of Freeman’s union
activity, he testified that McCollum and Sherwood Locklear
were in the canteen when he engaged in handing out union
distributions. He specifically admitted that neither McCollum
nor Locklear spoke to him about the union activity. In my
opinion this is insufficient to prove knowledge. Assuming
arguendo it does, my decision would be the same, the dis-
charge was for good cause. Freeman’s testimony that he told
a supervisor, Leggett,10 that he gave a statement to ‘‘the man
from D.C.,’’ in my opinion was pure fabrication, and I dis-
credit him in this regard. His credibility in general is dis-
cussed infra.
Leggett, whom I credit, denied that Freeman told him this.
Leggett was a straightforward and unequivocal witness.
Leggett characterized himself as an assistant supervisor in
the chilling department. He testified he punches a timeclock
and that he can allow an employee leave to get a drink of
water or to go to the restroom. He testified furthermore, that
he does not write people up, and there is no evidence that
he can effectively recommend discipline. Moreover, Leggett
testified that if an employee for some reason, needs to go
home he cannot grant that authority. What he usually does
is get together with Barnes, to let Barnes know what the situ-
ation is. Barnes then makes that decision as to whether the
individual can leave or not. Leggett also participated in the
walkout. I therefor conclude that Leggett is not a supervisor
within the meaning of the Act.
It is apparent to me that Freeman falsely colored his testi-
mony in an effort to distort the truth in his favor. I discredit
him. It is clear from the record that he lied about aiding his
brother to obtain a driver’s license. He lied to Respondent
and he lied on the witness stand.
I resolve any conflicts in testimony between Freeman and
Respondent’s witnesses in favor of Respondent’s witnesses.
These witnesses have been discussed earlier. Throughout the
hearing, Wowra was an impressive witness, with a remark-
able memory, aided by copious notes made in the normal
course of business. Even more important, I am persuaded
that Wowra was an honest witness, who proffered precise
testimony.
The employee’s guidebook provided by Respondent states
that intoxication during working hours is an offense which
will result in immediate discharge. The handbook or guide-
lines, also states that disorderly conduct in the plant and in-
subordination are offenses which may result in discharge.
The magnitude of the evidence convinces me that Freeman
violated these rules. Moreover, his conduct was investigated
by Wowra who personally observed the intoxicated state
Freeman was in.
I conclude that Respondent has met its burden as set forth
in Wright Line, 251 NLRB 1083 (1980). Accordingly, I rec-
ommend dismissal of the 8(a)(3) allegation as it pertains to
Freeman.
Heyward Andrew Davis
Heyward Andrew Davis commenced to work at Respond-
ent’s plant on June 6. He was subsequently terminated on
September 6. He worked in the overwrap department, a part
of cutup, and reported to leadman Henry McPhaul.
Davis testified that he participated in the August 1 walkout
and that he and Leadman McPhaul encouraged other people
to leave the plant. After walking out, he signed a union au-
thorization card, talked to employees about the Union, and
engaged in handbilling at breaktimes. Davis also gave inter-
views to the media and was quoted in an article published
by the Fayetteville Observer. He was also interviewed on tel-
evision and discussed the Union’s organizational campaign,
wages, working conditions, and medical conditions. This
interview was shown on television in the local Fayetteville
area. He also wore a union T-shirt to work on two or three
occasions.
Evidence reflects a history of conflict between Davis and
an Oriental employee, Chong Atkins. Atkins’ perception was
that she was being harassed by Davis, and she complained
to management to this effect on several occasions.
McPhaul, the leadman, testified that on Saturday, Septem-
ber 3, Davis was assigned to sawing necks. While McPhaul
was talking to another employee he heard Atkins holler. He
asked Atkins, who was holding her hand what was wrong,
and she replied, ‘‘that white honky throwed a neck and it hit
me on the hand.’’ McPhaul then checked with three other
employees, Nunnery, McCray, and Monroe. These employees
confirmed that Davis had thrown a turkey neck.
McPhaul approached Davis who admitted throwing the
neck, but stated that he did not mean to hit Atkins. McPhaul
then took Davis and Atkins to McCollum’s office.
McCollum testified that Atkins was crying and that the
back of her hand was red and bruised. Davis complained to
McCollum that for 2 or 3 weeks Atkins had been cursing at
him and accused him of talking about her. Furthermore,
Davis told McCollum that he only gave the necks a ‘‘slide.’’
McCollum testified that he intended to suspend Davis for the
rest of the day, but that Davis was extremely upset and he
promised to work with Atkins and not cause anymore prob-
lems. McCollum therefore, decided to give Davis a warning
and send him back to work.
On Tuesday, September 6, Atkins went to see Brenda
Branch, an employee with 11 years’ service, who is Re-
spondent’s food service and deli manager. Atkins told
Branch that Davis was picking on her. She also related the
turkey neck throwing incident, and showed Branch the bruise
on the back of her hand. Branch testified that Atkins also
stated that her car had been painted on Saturday and that she
was sure Davis did it. Furthermore, according to Branch, At-
kins was upset and talking fast. Branch told Atkins to go
581HOUSE OF RAEFORD FARMS
11 Although the transcript reads ‘‘Jonathan,’’ I believe the witness
said ‘‘Chong’’ (Atkins).
back to work, and she then called Wowra to inform him
about the problem.
Wowra then met with Atkins, Davis, McPhaul, and
Branch. His notes reflect that on August 1, the day of the
walkout, Davis pushed Atkins to go outside to strike. Atkins
rushed back and told Davis to leave her alone. Davis accused
Atkins of selling company information to Johnson. This
statement regarding selling information to Johnson, appar-
ently occurred on August 3, when Davis called her a ‘‘chick-
en.’’ Atkins at the meeting, also stated that on September 2,
sometime in the morning, Davis laughed at her and stuck his
tongue out at her. She then related the neck throwing inci-
dent. Furthermore, according to Wowra’s notes, and testi-
mony, Atkins stated that 1 hour after McCollum sent them
back to work Davis told her, ‘‘I will fix you good.’’ At the
next break period, Atkins saw Davis walk by her car in the
parking lot. Later she noticed that her red car had been spray
painted white. She did not actually see Davis paint her car.
Both Davis and Atkins each accused the other of harassment
and cursing. Wowra then decided to speak to other employ-
ees who worked in the same area as Atkins and Davis. He
testified that after talking to the three other employees he
considered it a ‘‘draw’’ and decided to write both of them
up.
Later that day, according to the testimony of Wowra and
Johnson, the two of them were talking and Johnson asked
Wowra what he had done about the Atkins-Davis situation.
Wowra stated he had written them both up. Johnson re-
sponded that he had had enough of Davis and told Wowra
to fire him. Wowra had McCollum send Davis to his office
where Wowra informed him that he was being terminated.
Conclusion and Analysis
Although Davis was active for the Union, the law is clear
that this does not cloak him with invincibility.
The record manifestly demonstrates a pattern of harass-
ment directed by Davis toward Atkins. Whether Davis’ atti-
tude was because she was Oriental (Johnson thought so), or
because she was not supportive of the walkout, I’m not sure.
Perhaps it was a mixture of both.
On the first day of the walkout Davis tried to push Atkins
out of the plant. Then he accused her of selling information
to Johnson. McPhaul testified that Davis called her and ‘‘old
hag’’ and a ‘‘gook.’’ McPhaul also testified that on only one
occasion he heard Atkins refer to Davis as a ‘‘honky.’’
Although Davis denied throwing the turkey neck, the pre-
ponderance of evidence clearly reflects that he did. In his af-
fidavit, Davis admitted throwing the turkey neck. Witnesses,
some of whom were counsel for the General Counsel’s, testi-
fied that Davis threw the neck. Monroe, who stood near
Davis while working, testified that at the time of the incident
she heard Davis say, ‘‘I believe Ms. Lois [McCray] is asleep,
I’m going to wake her up.’’ Monroe responded that the em-
ployee was not sleeping, at which point Davis, ‘‘pitched a
neck down the line.’’ Monroe testified that she heard ‘‘Jona-
than’’11 cry out that it hit her. Nunnery, another General
Counsel witness, also testified that she saw Davis throw the
neck that hit Atkins on the hand. I discredit Davis and fully
credit Respondent’s witnesses, who testified in a very forth-
right manner.
Wowra and Branch investigated the turkey neck incident
and the other alleged acts of harassment. Observing Wowra
on the witness stand, it became obvious to me that he be-
came exasperated with both Davis and Atkins. He therefore
issued warnings to both of them.
It was later that day when Johnson learned of Wowra’s
measures. Johnson, who didn’t even know who Davis was,
other than by the complaints to him by Atkins, told Wowra
to fire Davis because of the trouble he was causing. Johnson
thought Davis was picking on Atkins because she is ‘‘Chi-
nese.’’ He testified, ‘‘you can’t have people throwing turkey
bones, a turkey neck can hurt you, and pushing stuff around,
pushing people around, and causing, just causing trouble.
You just can’t put up with that with as many folks as we
got there.’’
Although hearsay, Respondent introduced documents re-
flecting that other employees were fired for disorderly con-
duct and harassment.
I am convinced by a preponderance of the evidence that
Johnson terminated Davis because of his harassment of At-
kins and not for any of his union or concerted activities. Re-
spondent has met its Wright Line burden. I therefore rec-
ommend that the 8(a)(3) allegation relating to Davis be dis-
missed.
Alfreda Hammond
Counsel for the General Counsel contends that Hammond
was discharged because of her union activities in violation of
Section 8(a)(3) of the Act, and Respondent refused to rehire
her because she filed charges and gave testimony before the
Board in violation of Section 8(a)(4).
Hammond was initially hired in July 1987. She was dis-
charged on August 19, 1987, for excessive lateness and un-
excused absences. She was rehired in February 1988. On
April 21, Hammond was discharged for cursing a supervisor,
Eric McPhatter. McPhatter testified that when he directed
Hammond in her work, she kept telling him that ‘‘this moth-
er fucking shit ain’t right.’’ Furthermore when McPhatter
told her that they should go down stairs and talk about it she
continued to loudly call him ‘‘all kinds of mother fucker’’
and according to McPhatter, all the employees in the area
heard her. McPhatter took Hammond to McCollum and ter-
minated her. On her way out, Hammond told McPhatter, ‘‘if
its the last thing I do, I’ll get you.’’ Hammond admitted the
specifics of this incident, and on her termination notice it
states ‘‘do not rehire.’’
Her union activity consisted of passing out six union leaf-
lets to six employees. She testified she did this on two occa-
sions, lasting 3 to 4 minutes. There is no evidence that man-
agement observed this. Hammond also claimed that she wore
a union sunvisor although she does not mention this in her
affidavit which was given on October 18, 3 weeks after her
discharge.
In August, during the period of the walkout, Hammond ap-
proached Wowra and asked him if she could be rehired. She
acknowledged in her testimony that Wowra told her that her
file reflected that she should not be rehired. Furthermore,
Wowra told her that he was going to give her one last
chance, and that if she messed up this time, she would not
be rehired. Wowra testified he told her he was putting her
582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
back to work for the last time, and if she got involved in
anything, not to look to him to reinstate her. Moreover,
Wowra wrote a note, in evidence, in the presence of Ham-
mond stating just that. The note is dated August 4, and it re-
flects that Hammond had been terminated two other times
and that she was ‘‘approved for rehire last time.’’ Wowra
signed the note.
On September 26, Wowra conducted a meeting where film
strips were shown. At the conclusion, he invited questions
from the assembled employees. Hammond asked Wowra why
the line was moving so fast. She testified that a supervisor,
Alphonia (Tony) Ashford, replied that the line was not run-
ning too fast. Hammond testified that she told Ashford ‘‘that
someone was going to accidently pop a knife [into Ashford]
because she was so evil.’’
Wowra testified that Hammond told Ashford, ‘‘I’ll stick a
knife up your ass.’’ Ashford testified similarly but went on
to state that Hammond never used the word ‘‘accidently.’’
Bernita Heard, the second shift night secretary, testified thus-
ly, ‘‘Alfreda got angry with her and told her, she said, no-
body don’t like you. She said, that’s why nobody don’t like
you because you have a nasty attitude and she said one day
somebody’s going to stick a knife square up your ass.’’ Ac-
cording to her Hammond was not speaking in a normal tone
of voice, she was very angry. Theodocia Richardson, who
works the second shift at the first aid station, and was
present at the meeting, testified that Hammond was ‘‘getting
all out of hand,’’ and she heard Hammond say ‘‘something
about the lady getting a knife stuck in her ass.’’
Wowra stopped the meeting immediately and sent the em-
ployees out. Because it was late, he decided to wait until the
next morning to make a decision. He made the decision to
terminate Hammond the next morning, and the termination
notice, which he drafted, states that Hammond was being ter-
minated for disorderly conduct in violation of plant rule 9.
Hammond testified that on the Friday following her termi-
nation, September 30, she spoke to Wowra about the possi-
bility of being rehired. She had returned to the plant to return
her uniforms and ID. Hammond filed her charge with the
Board on October 4. According to her testimony, Wowra
stated that he would hire her back except that she had filed
charges with the Labor Board, and he had to wait until their
decision came the following Wednesday. She testified she
spoke to Wowra again on the day before the election, Octo-
ber 6, and he told her to wait until the following Wednesday.
Wowra testified that Hammond called him several times
and asked that she be returned to work. According to the tes-
timony of Wowra, when she called she told him that she
wanted to come back to work, and he responded that he
didn’t want to go through this again, he had put her back to
work for the last time. He made reference to the fact that he
had shown her the memo he had written down in front of
her, that she would not go back to work at the House of
Raeford. That was, according to Wowra, the first call. In her
second call she told Wowra again that she wanted to come
back to the plant. Furthermore, Wowra testified that Ham-
mond stated, ‘‘I brought a charge against you all and I want
to go back.’’ Wowra’s testimony, ‘‘I said Alfreda I don’t
care what you’ve done or what you’ve told anybody, I’m not
putting you back to work for the House of Raeford, period.’’
Wowra testified that he thought by that time she understood
what he was saying and simply hung up the phone, refusing
to take any other calls from Hammond. He specifically de-
nied telling her he would hire her back, but for the fact that
she filed charges with the Board, and he had to wait for its
decision.
Conclusion and Analysis
I vividly remember the temper of witness Alfreda Ham-
mond. Seldom have I seem a witness openly display such
hate, rancor, and hostility. It is clear to me that she is in-
clined towards violence, and I am convinced that she threat-
ened to stick a knife in the supervisor. I discredit her version
of what she told the supervisor, Ashford. Even leading ques-
tions could not rehabilitate Hammond.
By way of contrast, Respondent’s witnesses, including
Ashford, Wowra, Heard, and Richardson were confident, and
unerring. I credit them. Hammond was hired during the
walkout, so obviously she didn’t participate in it. Her union
activity was minimal. There is no evidence that management
had any knowledge of it.
In attempting to explain what she meant by the word ‘‘ac-
cidentally,’’ referencing the knife incident, she related two
other incidents. Both involved supervisors who were stabbed
by employees. Hammond testified that in one incident an
employee ‘‘accidently’’ stabbed his supervisor because the
employee lost his temper. She admitted that she was mad at
Ashford, and conceded that the accidental stabbings weren’t
‘‘accidents’’ at all.
She attempted to make light of her comment to Ashford
by testifying that Supervisor Wells laughed when she told
him what happened at the meeting. Wells denied that Ham-
mond ever discussed the meeting, or the incident with him,
and I credit his testimony. Respondent has more than ade-
quately established good cause for Hammond’s termination
and more than adequately met its Wright Line burden. I rec-
ommend that the 8(a)(3) allegation as it relates to Hammond
be dismissed.
With reference to the refusal-to-hire allegation, it is clear
that Wowra gave her the last and final chance when she was
rehired for the third time. Wowra, himself, was privy to her
dangerous threat.
Her testimony that Wowra told her he couldn’t rehire her
because she filed charges was made out of whole cloth—a
pure fabrication. She hadn’t even filed charges on the day
she testified that Wowra made this alleged comment.
Accordingly, I recommend that the 8(a)(4) allegation, as it
relates to Hammond be dismissed.
Larry Jones
Larry Jones testified that he worked for Respondent from
February 12, until his discharge on September 28, in the
eviscerating department, at the draw line position. His super-
visor was Ralph Allen.
Jones participated in the August walkout. After he returned
to work on August 4, Jones passed out union leaflets and
cards at the gate, once or twice a week, for about 4 or 5
weeks, according to his testimony. Jones testified that he was
seen passing out the union literature by Supervisors Ralph
Allen, Richard Ferguson, and Dick Locklear. Jones testified
that he spoke in favor of the Union at employee meetings.
At one meeting, which was conducted by Wowra, the em-
ployees were told that they did not need a union. According
to Jones, he responded that the employees did need a union
583HOUSE OF RAEFORD FARMS
12 Including lateness to the line.
because they had been having problems for the last 10 years,
and no one had given them anything, that they wanted some-
thing in writing.
On the morning of September 27, at approximately 7 a.m.,
Jones walked off his line position in order to plug in an elec-
tric fan. He testified that his coworkers were complaining
about the heat. Jones admitted in his testimony that he did
not have permission to leave the line, but avers that on sev-
eral occasions he was ignored when he asked Supervisor
Allen for permission.
Allen denies that he was ever asked for permission. An
employee, Brenda Johnson, a drawer who worked directly
across from Jones, also testified that Jones did not ask Allen
permission to plug in the fan. She also testified that it was
not hot that early in the morning. Allen also testified that a
fan would not be needed at that time of the morning, 7 a.m.
If Jones had been able to walk a straight line directly to
the fan it would have been approximately 15 feet away. Be-
cause of the line, Jones had to walk a distance of approxi-
mately 30 to 40 feet around the line in order to get to the
fan. He testified that the line did not stop as a result of his
absence from it. He is refuted by Allen, and employee Bren-
da Johnson. Johnson testified that when Jones left the line,
the inspectors for the U.S. Department of Agriculture
stopped the line because of undrawn turkeys. Allen testified
that he was sure the line stopped. He testified ‘‘I’m sure.
You’re going to pay attention. When the brother down the
line stops you’re going to see what’s wrong. With the evis-
cerating line we can’t afford to stop the line. That would
harm some people. Working that downtime is expensive.’’
When Jones returned to his station, he was confronted by
Allen, who asked him why he had left the line. Jones became
upset and started cursing Allen. Johnson testified that Jones
told Allen, ‘‘I’m a mother fucking man just like you is
. . . . [M]e and you get in our pants the same way and if
you come on the outside I’ll beat your ass.’’ Johnson testi-
fied further that Allen did not curse or raise his voice. The
outburst was in the presence of other employees.
Allen testified that he told a lead lady to put someone in
Jones’ place. He then told Jones to come with him to the
timeclock. According to Allen, Jones continued to curse him
stating ‘‘he was a mother fucking man.’’ Allen then took
Jones to see Dick Locklear where the situation was dis-
cussed, and according to Allen’s testimony, Locklear told
him that Jones was discharged. After this Jones went to see
Wowra. Wowra spoke to Allen and Jones and decided to
suspend Jones until the next morning so that he could inves-
tigate the circumstances. He subsequently talked to Allen
again and reviewed Jones’ personnel file. Jones had pre-
viously received warnings regarding his attendance on June
17, 20, and September 15. Wowra deduced that Jones was
the recipient of 65 attendance incidents during a period cov-
ering approximately 200 days. These incidents include both
unexcused absences and arriving last at the production line.
The next day, September 28, Wowra met with Jones and
told him of his poor attendance and that he was being fired
for cursing a supervisor and leaving the line. Jones re-
sponded that the cards lie and that he is being fired for
speaking up at the employee meetings. Wowra made notes
of his discussion which were received into evidence, and re-
flect among other things, the warnings Jones received regard-
ing his attendance. Wowra showed the cards to Jones who
at the conclusion of the discussion according to Wowra said
‘‘bye [sic], sucker,’’ and Jones left Wowra’s office.
The termination notice reflects that Jones was fired for
leaving the line without permission, using profanity toward
a supervisor, and engaging in disorderly conduct. The docu-
ment also reflects the words ‘‘tied to extreme attendance.’’
Conclusion and Analysis
Jones’ unrefuted testimony is that he passed out union lit-
erature in the presence of supervisors on many occasions. He
acknowledges that no management representative ever dis-
cussed these activities with him.
Respondent acknowledged by way of testimony that Jones,
and other employees, spoke out in favor of the Union at
Wowra’s employee meetings. Wowra testified that Jones
asked him why he didn’t want a union. Jones also testified
that he asked Wowra why management was concerned about
a union all of a sudden. Jones stated that he had been in a
union at Fort Bragg, and he thought a union was good.
Wowra responded, inter alia, that he didn’t feel it was a good
way to do business. There is absolutely no evidence that
Wowra, or any other management representative, dem-
onstrated any animus toward Jones because he articulated
prounion sentiments at an open meeting.
Wowra carried on a thorough investigation, and took
notes, which are in evidence, of his discussions with Allen
and Jones. There is assuredly no basis for a finding that Re-
spondent discharged Jones in violation of Section 8(a)(3) of
the Act. It is undisputed that Respondent did not engage in
any 8(a)(1) activity vis-a-vis Jones.
Nor is there any history of unfair labor practices commit-
ted by this Respondent.
Jones, a short term, 8-month employee, didn’t display any
particular attributes during his tenure, for Respondent to con-
sider him above average or valuable employee. To the con-
trary, his attendance record12 was deplorable. Wowra re-
viewed his record in an effort to ascertain if there were any
extenuating circumstances. What he found was Jones’ attend-
ance record. This did not serve as a basis for his discharge.
It served as another negative when considering the totality of
Jones’ conduct.
I don’t consider leaving the line gross misconduct, al-
though I can’t substitute my judgment for a reasonable busi-
ness justification.
What is gross misconduct, is what followed. Here is an
employee who curses at his supervisor, threatens to ‘‘if you
come on the outside I’ll beat your ass,’’ all in the presence
of other employees. Jones left the line and engaged in dis-
orderly conduct, all in violation of plant rules. Respondent
had more than ample reason for firing him, and I so con-
clude. Again, Respondent has more than adequately satisfied
its Wright Line burden.
I specifically credit Wowra who I’ve discussed earlier. I
also specifically credit Allen and Johnson. They testified in
detail, were unequivocal and evidenced an assuredness in
their testimony. Allen in particular strove to be fair. He relat-
ed facts as he remembered them, without embroidering.
Conversely, I find Jones not worthy of credibility. His
focus was to prevaricate and distort his testimony, with a
584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
view towards reinstatement and compensation, neither of
which are legally warranted.
Counsel for the General Counsel contends that she pro-
duced an ‘‘over whelming’’ array of witnesses:
Darlene Washington
Helen Daniel, an alleged discriminatee
Jayne Foreman
Jennie Cuttray
Ernestine Bethea, an alleged discriminatee
These witnesses, according to counsel for the General
Counsel, testified that employees left the line without super-
visory permission, to plug in the fan, talk to other employ-
ees, get water or ice, get tissue to wipe their faces, and var-
ious other personal endeavors. According to the testimony of
some of the witnesses, what this required, was to have some-
one hold the turkeys for the individual leaving the line.
In as much as I believe the line stopped, no one was hold-
ing the turkeys for Jones.
The employees who testified that employees left the line
without permission or penalty, testified in a vacuum and their
testimony ran hollow. Foreman, testified that the line did not
stop, although she admitted that she had never been asked
about the incident until the morning on which she testified,
approximately one year after the incident. Bethea testified
that in the event some of the employees want the fan on and
some of the employees want the fan off, a majority vote is
conducted on the production line. This is absurd. I do not
consider these witnesses credible. Even if credited, their testi-
mony has little relevance, because, as stated earlier, the
events occurring after Jones left the line, were certainly a
basis for termination. I therefore recommend that the 8(a)(3)
allegation as it relates to Larry Jones be dismissed. See
Wright Line, supra.
Helen Mae Daniel
Daniel was first hired by Respondent in 1974. She was
terminated on June 16, for stabbing another employee, Jessie
Williams. Daniel admitted that she ‘‘cut’’ Williams. She was
rehired on July 19. Documentary evidence reflects that Re-
spondent considered her an experienced employee who
would not require training or preparation.
On November 10, a line supervisor, Millie Locklear, asked
Daniel to cut the bars of the turkeys. Cutting bars is a func-
tion whereby an employee utilizing scissors cuts under the
breast so as to be able to insert the legs. Richard Ferguson,
a supervisor, had been cutting bars prior to Daniel arriving,
because no one else was available to do the job. Daniel
called another supervisor, Ralph Allen, over after an hour to
complain about her job assignment. Allen testified that Dan-
iel said to his, ‘‘I’m tired of this mother fucking shit.’’ Allen
asked Locklear to replace Daniel and to send her to his of-
fice. When Locklear told Daniel to go to Allen’s office she
replied, ‘‘yes, got damn it, I want him too.’’
A witness for the General Counsel, Jane Foreman, who
worked next to Daniel, testified she heard Daniel say, ‘‘this
damn shit ain’t right.’’ Foreman admitted telling Wowra that
Daniel ‘‘went off on Ralph.’’
Daniel continued to curse in the office, in the presence of
secretary Bessie Willis and Allen. Willis testified that Daniel
cursed for approximately 15 minutes, and that she remembers
that Daniel used words such as ‘‘damn.’’ Willis also testified
that Daniel was raising her voice acting agitated, and Allen
maintained a normal tone of voice.
Plant rules provide that the use of profanity is prohibited.
Therefore, Daniel was given a written notice for using pro-
fanity, which she refused to sign.
Thereafter, when Allen asked her to return to cutting bars,
Daniel told him ‘‘that she won’t on [sic] split next, [sic] cut
bars, she won’t do nothing.’’ Allen then told her that if she
didn’t want to do what he told her to do, then he couldn’t
use her. Daniel admitted that Allen gave her the choice of
returning to cutting bars or seeing Wowra.
Conclusion and Analysis
The record reflects that Daniel engaged in union activity.
She testified that she wore a union bottom and hat to work.
She further testified that Dick Locklear told her to remove
them. This independent 8(a)(1) allegation to be discussed
later.
There is nothing in the record to suggest that Respondent,
motivated by Daniel’s union activity, directed any antiunion
animus towards her.
Respondent avers that it terminated Daniel for disorderly
conduct and insubordination. In my view Respondent did not
seize upon a pretext to discharge Daniel. After his investiga-
tion, Wowra contemplated overnight what action to take, if
any.
I credit Allen’s version of the profanity, and specifically
discredit Daniel. Daniel reminded me of Alfreda Hammond.
She appeared to be seething and harbored a reckless dis-
regard for the truth. I believe that a certain amount of pro-
fanity was, and is, tolerated in the plant. It seems to me that
Respondent views this as going beyond the pale. I certainly
do. Moreover, Daniel refused to go back to work, even after
given the option.
Allen who was very credible, and didn’t appear to be mo-
tivated by any antiunion considerations. I found him to be
exacting. I believe he sincerely tried to be accurate and re-
main neutral. Daniel in my view, obscured the facts relating
to the incident.
I believed that Wowra was distressed with regard to taking
action against Daniel. She testified that Wowra told her he
was up all night attempting to make a decision, he had no
choice but to fire her. She acknowledged that the day before,
she told Wowra she knew she was going to be fired. When
told that she was being fired she replied, ‘‘no problem.’’ She
shook Wowra’s hand and hugged Personnel Manager Rus-
sell.
I firmly believe that Daniel was neither shocked nor sur-
prised by her termination. I believe she expected it, and fur-
ther I don’t believe that she herself felt that she was dis-
charged because of her union activities.
Accordingly, I recommend that the 8(a)(3) allegation as it
relates to Daniel be dismissed. See Wright Line, 251 NLRB
1083.
Ernestine Bethea
Bethea commenced to work for Respondent on July 21,
1986. She had attendance problems from the beginning and
throughout her employment.
585HOUSE OF RAEFORD FARMS
13 The counseling record reflects that Wowra talked to her on
April 26, 1989, referencing the date of the occurrence (absence) on
April 21, 1989.
In 1987, she was absent or late 116 times. From January
through July 14, 1988, she was absent or late 1 day out of
every 2 weeks.
On July 14, Wowra discussed Bethea’s poor attendance
record with her, and told her it would have to improve or
she would be terminated. She also received a written warning
on this date.
Bethea testified that she had an accident on August 15.
She went on leave August 16 and did not return until Janu-
ary 3, 1989.
On March 7, 1989, the Respondent announced and dis-
seminated a new absenteeism policy. Respondent assessed
‘‘occurrence points,’’ for absences and lateness. The new
policy was put into effect as of April 1, 1989. As of that date
all employees would start with a ‘‘clear slate.’’ Under this
policy an employee is terminated if they accumulate eight
occurrences (points), at any time. The policy is very detailed
and covers a multitude of potential situations. Under many
circumstances, fractions of points are assessed. Under this
policy, there is no latitude given.
A copy of the policy was attached to each employees’
paycheck and posted on the bulletin boards. It too, was post-
ed on the bulletin boards, and printed in the company news-
letter. This addendum specifically addresses, ‘‘Working
Hours/Doctors/Dentists visits.’’
Within the first week of the implementation of the new
policy, Bethea was absent for 3 days and received two
points. She received one point for a 2-day absence on April
2 and 3, 1989. Pursuant to the policy, one point is assessed
for 2 consecutive sickdays.
She received a second point for an absence on Friday,
April 7, 1989. A doctor’s note reflects that she was ill on
that day.
Bethea was assessed a third point when she was sick on
April 12, 1989, and did not report to work that day. She
again had a doctor’s note but again, pursuant to the policy
she was assessed one point.
Wowra testified he spoke to, and counseled Bethea in Al-
len’s office, after she had been assessed three points. Wowra
met with 20 to 30 other employees who had 3 occurrences.
Bethea acknowledged that Wowra spoke to her in late
April13 or early May, and showed her a sheet reflecting a lot
of absences. She also conceded that Wowra told her that he
counted times when she had doctor’s notes, and he had to
go by what the policy said, that if she were absent or late
another time she would be suspended.
On April 13, 1989, Bethea arrived to work late and re-
ceived half a point, bringing her total to 3-1/2 occurrence
points.
Lateness to the line on six occasions in April, May, and
June 1989 resulted in her being assessed a quarter point for
each occurrence, therefore totaling 1-1/2 points. After April
20, 1989, less than 3 weeks under the new established pol-
icy, she had accumulated 4-1/4 points. As stated earlier, she
was absent from work the entire day on April 21, 1989.
Therefore she was assessed one occurrence point. She did
produce a doctor’s note for that day. Inasmuch as she was
out of the plant for more than half a day she was assessed
one point, pursuant to the policy. On April 26 and 27, 1989,
Bethea was again late and received half a point for each oc-
currence. At that point in time she had accumulated 6-1/4 oc-
currence points. She was placed on a 3-day suspension, in
accordance with Respondent’s policy. As stated earlier
Wowra counseled Bethea on April 26, 1989.
Bethea left the plant early on June 7, 1989, and was as-
sessed half a point, bringing her accumulated total to 7-1/4
points. The next day, on June 8, 1989, she was late to the
line. She was absent on June 14, 1989, and was assessed one
occurrence point. Although Bethea takes issue with some of
her occurrence points, she testified that she did not keep any
personal time records. Respondent contends that it terminated
Bethea because she exceeded the allowable total of eight oc-
currences, by accumulating 8-1/2 occurrences when she was
absent on June 14, 1989.
Conclusion and Analysis
There is no question that Bethea actively and openly sup-
ported the Union.
The testimony elicited to support a finding of antiunion
animus with regard to Bethea is simply not plausible. Putting
it another way, she impressed me as a witness not worthy
of credibility.
For example, she testified that in January 1989, Supervisor
Allen told her to take off her union visor. Bethea provided
four affidavits to the Board on September 19 and October
19, 1988, June 21 and July 25, 1989. She does not allude
to the sunvisor incident in any of the four affidavits, nor
does she attempt to explain her omissions.
Allen denied that he ever saw Bethea wearing a union
sunvisor or that he told her to take it, or any other item, off.
I fully credit Allen in this regard. My assessment of his
credibility, which has been discussed with reference to other
witnesses, is just as applicable to the Bethea termination. He
was a precise and consistent witness.
I am convinced that the sunvisor incident never occurred.
Frances Lennox, testified that she and her sister, Bethea,
have lived together for 3-1/2 years. According to her testi-
mony, she called Respondent to report to Bethea’s supervisor
(Allen) to tell him that Bethea was ill. She also testified that
Bethea couldn’t make the call herself because she was in the
bathroom with a stomach virus, and she also had a problem
with her left arm.
Lennox testified that she was able to identify Allen’s voice
on the telephone, having spoken to him previously, person-
ally and by telephone. According to Lennox, she reported to
Allen that Bethea was ill, had been to the doctor, and Allen
questioned her ‘‘extensively’’ about her illness. Lennox testi-
fied that she asked Allen why he was harassing her and
Bethea, and that Allen started cursing her and said ‘‘I’m
tired of Tina (Bethea), just like Helen Daniel. I’m tired of
all this union bullshit.’’ Lennox stated that she told Allen she
did not understand why he was talking to her in that manner,
and that Allen hung up when she told him she was recording
the conversation.
On cross-examination, Lennox testified that the first time
she told anybody involved with these preceding about the
phone conversation, was the day before she testified, when
she spoke to counsel for the General Counsel and counsel for
the Charging Party.
586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lennox testified further that Allen’s tone of voice and
cursing were harassing. She had great difficulty recalling any
profanity, i.e., the exact words used, other than ‘‘dam’’ and
‘‘bullshit.’’
Based on the totality of the record, Allen enjoyed the rep-
utation of not ever uttering profanities. Interestingly, Mae
Helen Daniel, an alleged discriminatee who was fired for,
inter alia, using profanity, shares this opinion of Allen.
Allen testified that Bethea herself called in, stating she
was sick and would be out. During that conversation, some-
one else got on the line. She identified herself as Bethea’s
sister. She asked Allen why he was giving Bethea a hard
time, and further stated that she was recording the conversa-
tion. Allen told her he did not want to talk to her because
she didn’t work for Respondent and he hung up the phone.
He specifically denied stating that he was tired of Bethea,
Daniel, or the ‘‘union bullshit.’’
I am convinced that Lennox is an inveterate fabricator,
who manufactured a scenario to bolster her sister’s case. I
fully credit Allen and discredit Lennox.
The timing of Bethea’s termination further demonstrates
and convinces me that Bethea was not discharged based on
her union activity. For all intents the Union’s election cam-
paign was over on October 7, the day of the election. Bethea
was terminated many months after her substantial union ac-
tivity.
Respondent’s absenteeism and lateness policy in my opin-
ion, is objective and gives no quarter for discretion. The pol-
icy calls for discharge after eight points in a 12-month pe-
riod. Bethea exceeded the eight points in approximately 11
weeks.
Bethea testified that prior to meeting with Wowra, Allen
assured her that with a doctor’s excuse she would not be as-
sessed a point. Allen denied telling this to Bethea. Moreover,
Bethea acknowledged that Wowra, who supersedes Allen,
told her that points are assessed even if a doctor’s excuse is
provided. Wowra told Bethea that was the policy, and he had
to abide by it.
Bethea testified further, that the times she missed from
work were occasioned by back and neck problems from the
auto accident, and she was also being treated for carpal tun-
nel syndrome in her left arm. On cross-examination she ad-
mitted that she never told either Wowra or Allen about the
carpal tunnel syndrome.
The record is devoid of any evidence of disparity in the
application of Respondent’s policy.
Bethea kept no record of her time. In spite of this, she
challenges some of the lateness to the line. Bethea testified
that when she returned to work, after being absent, she ar-
rived 15 minutes early so as to enable her to arrive at the
line on time. She went to Allen’s office to get her timecard
and give him the doctor’s note. According to Bethea, Allen
made her late arriving at the line, by going inside the plant
and making her wait in his office. Later she testified that on
June 8, 1989, she came in early and was delayed by Allen.
She testified she was absent on June 7, 1989. She stated that
Allen had her timecard, and when he returned from the plant
he said he would write on her card that she was there at 6
a.m. She further complained that she would be late for the
line and Allen said to get the situation ‘‘squared away’’ with
the supervisors.
Allen testified that if such a scenario occurred, he would
instruct Bessie Willis to write in the time the employee con-
tended he or she was in his office. He conceded that there
were occasions when this situation occurred with Bethea,
however Allen denied there were any occasions where she
came in after being absent, and he made her wait in his of-
fice so that she would be late to the line. Bethea’s attendance
record for 1989 lists her as late to the line on six occasions.
On no occasion was she marked late to the line, on the day
after an absence, when she would have had to go to Allen’s
office to get her timecard.
I discredit Bethea and credit Allen with regard to this testi-
mony. She has concocted myths which the credible testimony
and documentary evidence firmly refute.
Bethea testified, in an effort to excise a point from her ac-
cumulation of points, by maintaining a perfect record for the
requisite period of time. According to her testimony, she had
not been absent or late for 28 days by May 1989. She related
that at the time Allen terminated her, on June 15, 1989, he
told her that he removed a point from her record. She told
Allen she couldn’t discern this because of all the points ap-
pearing on her record.
When cross-examined, referencing one of her several affi-
davits, she repudiated her direct testimony, admitting that
Allen said nothing about deleting an occurrence point. Al-
len’s testimony supports her in this regard. She never did in
fact, maintain a perfect record allowing the deletion of a
point.
I conclude that Bethea was terminated for the reason ad-
vanced by Respondent and not for any union or concerted
activity. See Wright Line, 251 NLRB 1083. I recommend
that the 8(a)(3) allegation as it relates to Bethea be dis-
missed.
The complaint contains extensive independent allegations
of Section 8(a)(1) of the Act. The discussion of these allega-
tions is keyed to the paragraphs of the complaint.
Paragraphs 9(a) and (b)
Paragraph 9(a) alleges that Area Manager McCollum, on
August 2, informed employees that it had terminated employ-
ees who had engaged in protected concerted activities. Para-
graph 9(b) of the complaint alleges that on that same day,
McCollum threatened employees with termination if they
joined other employees and engaged in protected and con-
certed activities.
Heywood Davis, testified in support of these allegations.
According to Davis on Tuesday of the week of the August
2 walkout, McCollum sent word that he wanted the employ-
ees to come inside for a meeting to settle what was going
on. He testified that he and 40 to 50 other employees went
into the plant, where McCollum told them to clock in. Davis
testified that no one was coming in or going out of the plant,
because McCollum had told some supervisors and other peo-
ple to lock the doors. He testified that McCollum told the
employees that they had to go back to work, if they didn’t,
they were fired because the people who were on the outside
had been fired. According to Davis, McCollum stated that he
had been told this by management, and that the people out-
side would not be returning to work.
Davis testified further, that when the employees left work
that afternoon, McCollum told them that they would return
to work the next day or be fired.
587HOUSE OF RAEFORD FARMS
McCollum and management concede that a short meeting
was held by McCollum on August 2. On the Morning of the
August 2 walkout, at approximately 6:15 a.m., McCollum,
accompanied by Sherwood Locklear and Wowra, went to the
parking lot and spoke to the employees. McCollum told them
that they had not been fired and asked them to return to
work. Thereafter he met with employees who returned and,
according to his testimony, explained to them that Respond-
ent was still going to operate and going to do the best they
could. McCollum stated further that some of the employees
would be requested to perform jobs that they were not used
to doing, but they were going to operate. The meeting, which
was held on the break floor, lasted 45 minutes.
McCollum specifically denied sending word outside to the
employees, prior to the meeting telling them they have to
come to work, or stating that anybody who did not come into
work would be fired. Moreover, he testified that the doors
to the plant were not locked. He specifically denied making
any statement during the meeting, referencing the people
who were still outside on strike, and denied telling the em-
ployees that would be fired if they joined the other employ-
ees who had walked out.
Conclusion and Analysis
Davis testified that he and 40 to 50 other employees where
locked in a meeting with McCollum, and McCollum engaged
in conduct violative of Section 8(a)(1) of the Act. Not a sin-
gle witness was presented to corroborate Davis’ version of
McCollum’s statements. It is patently incredible that McCol-
lum could tell the people on the parking lot that they were
not fired, invite them into the plant, and tell those who ac-
cepted the invitation, that the employees remaining on the
parking lot were fired.
I fully credit McCollum’s denials. He was specific and did
not waiver. He impressed me as being exacting and clear cut.
By way of contrast, Davis, in my opinion, purposely altered
the contents of McCollum’s comments. I am convinced that
Davis completely fabricated his version. Accordingly, I rec-
ommend that paragraphs 9(a) and (b) of the complaint be
dismissed.
Paragraph 9(c)
Paragraph 9(c) alleges that Wowra, Johnson, and McNeill
created the impression of surveillance.
Wowra is alleged to have created the impression of sur-
veillance on August 5, and during late September.
Heyward Davis testified, that during the week of the walk-
out, he was standing at a saw where McCollum and Wowra
were standing, 4 to 5 feet behind him. According to his testi-
mony, Wowra and McCollum were discussing production.
Wowra allegedly stated, ‘‘we know who the ring leaders are
and everything, and we will get with these people, and we
will try to work things out.’’ Davis testified further that
Wowra and McCollum were having a discussion between
themselves, not involving other employees. Davis admitted
that Wowra made no comment that the ring leaders be penal-
ized. That is his recollection. Both Wowra and McCollum
denied any conversation of this character.
I credit Wowra and McCollum that no such conversation
occurred. Their credibility has been discussed. I specifically
discredit Davis who has been the omnipresent fabricator
throughout these proceedings. His credibility has also been
discussed.
There is no testimony that Wowra made any statements at
meetings or otherwise, in ‘‘late September’’ or at anytime,
or that Respondent, or he, personally engaged in, or created,
the impression of surveillance.
There is no credible record testimony that Johnson created
the impression of surveillance.
Alfreda Hammond, an alleged discriminatee, testified that
several days before she was terminated, Bernita (McNeill)
Heard, told the supervisors at the white meat table that there
was a list of names of union supporters that McCollum had
under lock and key. Hammond testified further that on the
night of the election while sitting at the nurse’s station, wait-
ing for the voting to end, she heard Heard asking employees
who were wearing union shirts, their names and writing them
down.
Heard, who was the night secretary, denied that she or
McCollum kept any list of union activists, and she further
denied ever telling anyone that there was a list of union sup-
porters under lock and key. Moreover she specifically denied
keeping such a list.
Heard testified that she had a list of all the employees in
the department which she used to release employees to vote.
According to her testimony, after the voting, Heard threw
away the list and there is no evidence that she noted who
did or did not vote.
Heard impressed me as a responsible, credible witness.
She did her best to accurately recall, but did not color her
testimony. Conversely, Hammond was a vitriolic witness
whom I discredit. Her credibility was discussed earlier in the
context of her discharge.
I recommend that the allegations contained in paragraph
9(c) of the complaint be dismissed.
Paragraph 9(d)
Paragraph 9(d) of the complaint alleges that Dick
Locklear, Wowra, Johnson and Athens Barnes, threatened
employees with unspecified reprisals for their having en-
gaged in union and protected concerted activity.
There is no evidence to support the allegation in this para-
graph 9(d) as it relates to Dick Locklear.
With respect to Wowra, the incident and Davis’ testimony
were discussed under the section addressed as paragraph
9(c).
No testimony was adduced to support the allegation as it
relates to Barnes. Paragraph 9(j) alleges that Johnson threat-
ened employees with discharge because of their union activi-
ties on August 15, October 5 and 7. Paragraph 9(m) alleges
that on August 15 and October 5 Johnson threatened employ-
ees that their selection of the union as their collective-bar-
gaining representative would be futile.
Paragraph 9(o) alleges that on September 21, and August
15 and 5, Johnson threatened its employees with plant clo-
sure because of their union activities.
Evidence relating to these allegations was adduced by the
testimony of Carl Lindsey, who was led through his testi-
mony relating to Michael Washington’s union activity.
Lindsey testified that he attended a meeting, presided over
by Johnson, in August, within 2 weeks of the walkout. Ac-
cording to Lindsey, Johnson discussed a raise, incentive pay,
and vandalism in the parking lot. Lindsey testified that there
588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were 25 to 30 employees at the meeting, but the only em-
ployee he could remember as being present was ‘‘Beatrice,’’
the supply room person.
At some point, according to Lindsey, Johnson allegedly
stated ‘‘now that we have talked about our problems, lets
talk union.’’ Furthermore, according to Lindsey, Johnson al-
legedly stated that although the law did not permit him to
close the plant, he would see to it that it was passed into the
hands of his family members. Moreover, Johnson stated he
would be obligated by law to sit down and talk with the
union representatives, but he did not want to hear anything
they had to offer, and as far as he was concerned, they could
sit there and drink coffee and look at each other all day.
Lindsey testified further that Johnson stated there were trou-
blemakers in the plant, that they would not be tolerated, and
he would make sure the supervisors knew about it and did
something about it.
Wowra testified that he was present at this meeting and
the first set of meetings, and that the Union was not dis-
cussed in these meetings. Moreover, according to Wowra,
‘‘if an employee asked the question, he said—I said, and the
president of the Company also said that we weren’t there to
discuss the Union and that was not the purpose of the meet-
ings. That was made explicit [sic] clear everytime that the
question was brought up. That was not the purpose of those
meetings.’’
Heywood Davis, an alleged discriminatee, acknowledged
that the purpose of the meetings held the week after the
walkout was to discuss working conditions and problems in
the plant. Darlene Washington, Michael’s wife, testified that
she attended a meeting held on August 8 or 9, and that she
did not recall anything said by Johnson about the Union.
Eveyln Segur, a witness for the General Counsel, testified
with respect to the first meeting, that nothing was said about
the Union.
Krista McNeill testified that at the first meeting Johnson
asked what the problems were in the plant, and the employ-
ees made several complaints.
Mae Helen Daniel, another alleged discriminatee, testified
that she attended four meetings and that three were con-
cerned with the Union. She testified that at the first meeting
conducted by Johnson and Wowra, Johnson stated he was
going to fix up the bathrooms and the breakroom. Moreover,
according to the testimony of Daniel, Johnson stated he
didn’t know the plant was in such a mess and that he was
going to get with his lawyer and work out a raise for the
employees.
Daisy Little corroborated the testimony of Daniel, and
added that Johnson promised better benefits, including a
credit union.
Ernestine Bethea, another alleged discriminatee, testified
that she attended the meeting on August 15, and nothing was
said about the Union.
I am convinced by the overwhelming preponderance of the
evidence, that Lindsey concocted his testimony. He is contra-
dicted not only by Respondent witnesses, but also by the
Government’s witnesses. I recommend that the allegations re-
lating to Johnson in paragraphs 9(d), (J), (m), and (o) of the
complaint be dismissed. I further recommend that paragraph
9(d) be dismissed in its entirety.
Paragraph 9(e)
Paragraph 9(e) of the complaint alleges that Sherwood
Locklear, Roscoe McCollum, Dick Locklear, and Gary
Adkins, interrogated employees concerning their union sym-
pathies, desires, and activities, and the union sympathies, de-
sires, and activities of other employees.
No testimony was adduced to support this allegation as it
relates to Sherwood Locklear.
Heyward Davis testified that while walking down the steps
one afternoon behind McCollum, McCollum turned around
and asked him if he thought ‘‘the Union would get in there.’’
Davis responded that he didn’t know, they would see on Oc-
tober 7 (the date of the election). McCollum responded
‘‘okay’’ and that was the extent of the conversation.
Although Respondent doesn’t deny this interchange, it
hardly rises to the level of interrogation within the meaning
of Section 8(a)(1) of the Act. Suffice it to say, Davis’
prounion sentiments were no secret. McCollum was not seek-
ing information, although Davis, as he is prone to do, at-
tempted to color his testimony to that effect. There is no evi-
dence that Davis disseminated this interchange. I recommend
dismissal of the allegation in paragraph 9(e) as it relates to
McCollum. See Rossmore House, 269 NLRB 1176 (1984).
No evidence was presented to support the allegation that
Dick Locklear interrogated employees.
Gary Adkins, is alleged to have engaged in conduct viola-
tive of Section 8(a)(1) of the Act, in several other paragraphs
in addition to paragraph 9(e). In paragraph 9(i) he is alleged
to have promised employees additional benefits to discourage
union activities. In paragraph 9(j), which was amended in at
the hearing, he is alleged to have threatened employees with
discharge because of their union activities. In paragraph 9(o),
he is alleged to have threatened employees with plant clo-
sure. In paragraph 9(t), it is alleged that Adkins informed an
employee that he was terminated because of his union activi-
ties. In paragraph 9(n), Adkins is alleged to have threatened
employees with loss of jobs because of their union activities.
In view of the fact that Alfreda Hammond, is the sole wit-
ness who testified regarding conversations by Adkins, it
seems appropriate to discuss his conduct at this point.
Hammond, an alleged discriminatee, testified that on the
night before the election, she was standing across the street
from the plant with some union representatives. According to
her testimony, Adkins came outside the plant and hollered at
the union representatives that they didn’t have any business
across the street handing out papers. Allegedly, Adkins stated
they were standing on House of Raeford property. She fur-
ther testified that there was profanity going back and forth
across the street that night. According to Hammond, on the
night of the election, immediately after she voted, she met
Adkins at the nurses’ station in the presence of nurses and
several other people. Hammond testified that Adkins said she
had heard that she had voted for the Union and he asked her
if she was the individual across the street the night before.
She allegedly responded affirmatively. She testified further,
that Adkins escorted her outside to the gate and said he was
going to make sure that ‘‘those sons of bitches did not come
into the plant,’’ and that he meant the union people. Accord-
ing to Hammond, Adkins said to her he would make sure
that ‘‘my black ass’’ would not get back into the House of
Raeford, and he told the security guard not to let her back
in.
589HOUSE OF RAEFORD FARMS
Adkins testified that on the night of the election when he
encountered Hammond at the nurses’ station, she asked if he
would buy a case of beer, and he responded that he had
never bought a case of beer in his life.
Adkins specifically denied telling Hammond he would
make sure that ‘‘those sons-of-bitches would not come into
the plant,’’ and that he would make sure that Hammond’s
‘‘black ass’’ would not get back in the House of Raeford.
He further denied stating that he had heard she had voted for
the Union. Adkins did ask the guard not to let Hammond
back on the property, as she had been terminated prior there-
to. Richardson, who works at the first aid station testified
that she did not hear the term ‘‘black ass’’ used. She testified
that Adkins told Hammond that if the Union got in or not,
she, Hammond, had no business being there, because she no
longer worked there and she had to leave.
Adkins’ verbatim account of the conversation is as fol-
lows:
So, I go back in there and I ask her, I say Alfreda, I
said are you the lady that I was talking to last night
across the street, and she said yes. I said well, you
don’t work here no more do you. She said no. I said
what are you doing in here. She said I’m waiting on
one of my riders. I said well, you’re going to wait out-
side the plant because you don’t work here to start
with, and if something was to happen to you inside the
plant you could sue us. I said you’re going to have to
leave. She gets mad and says hell, you’re just mad be-
cause the Union’s wanting to come in here. I said lady,
I ain’t got nothing to do with the Union. I cannot stop
them from coming in here, but I can stop you from
being in here.
The credibility of Hammond has been discussed. She con-
sistently attempted to embroil Respondent in discussions re-
garding the Union, and when this failed, she contrived evi-
dence. Adkins, who was corroborated by Richardson, im-
pressed me as very credible. He didn’t exaggerate or embroi-
der. I believe he testified in accordance with what actually
was said.
What Adkins told Hammond were facts. After Hammond
voted she sat at the plant for some 5 hours. Adkins had a
right to tell her to leave, and a further right to suggest that
he would not rehire her. There is no nexus with her union
activity.
I recommend that the allegations relating to Gary Adkins,
in paragraphs 9(d), (i), (j), (o), (p), and (n), of the complaint
be dismissed. I further recommend that paragraph 9(e) be
dismissed in its entirety.
Paragraph (f)
Paragraph 9(f) of the complaint alleges that on August 4,
Supervisor Ralph Allen and Richard Ferguson, interrogated
employees concerning their involvement in protected con-
certed activities.
Michael Washington, an alleged discriminatee, testified in
support of these allegations. According to Washington he
came back from the walkout on August 4, and was called to
the Scale House office by Ralph Allen. He testified that
Betsy (Bessie Willis) and Richard Ferguson were present
during his conversation with Allen. Allen allegedly asked
Washington if he saw his picture in the newspaper with
Johnson, and Washington responded affirmatively. He testi-
fied further that Allen asked him if his wife came back and
again he responded in the affirmative. Allen allegedly then
asked him whether he had a brand new mobil home to pay
for, and how many bedrooms it had. Washington replied it
had two bedrooms. He then testified that he was asked by
Allen why he went on strike and he responded he was trying
to help the people. Allen allegedly stated he didn’t see why
he went out on strike because he was making $6 an hour.
Washington conceded that Allen didn’t ask him whether he
was for the Union, threaten him, tell him he should have re-
frained from the walkout, or say that his job was in danger.
Washington did not testify that either Willis or Ferguson
made any statements during the alleged meeting.
Allen, Ferguson, and Willis, a secretary, specifically and
emphatically denied Washington’s testimony. They all denied
that the conversation ever took place. Willis testified ‘‘as far
as I’m concerned that meeting didn’t take place. We didn’t
have a meeting with him [Washington].’’
I have fully discussed Washington’s credibility in the sec-
tion dealing with his discharge. He is equally incredible in
describing this meeting, and in my opinion fabricated his tes-
timony.
Allen, Ferguson, and Willis in my opinion were honest,
unbiased witnesses. They did not demonstrate any antag-
onism towards Washington. Their manner, in my view, was
objective and direct. I fully credit them.
Accordingly, I recommend that the allegations in para-
graph 9(f) of the complaint be dismissed in their entirety.
Paragraph 9(g)
Paragraph 9(g) of the complaint alleges that employees
were threatened and prohibited from wearing union insignia
in the plant. The following named individuals are alleged to
have engaged in the threats to prohibit, and the actual prohi-
bitions:
Marvin Johnson Ralph Allen
Sherwood Locklear Athens Barnes
Dick Locklear Don Brewer
Jimmy Burns
Apparently the testimony of Heywood Davis relates to the
allegation as it applies to Johnson. Davis testified that on Oc-
tober 7, as he was leaving the building where the voting took
place, Johnson made the comment, there’s another on (sic)
of union ‘‘sons-of-bitches’’ or ‘‘mother fuckers.’’ Davis tes-
tified that he had on a union shirt at the time. Johnson de-
nied the conversation in its entirety.
Davis’ credibility has been fully discussed. I believed
Johnson, that the conversation did not occur and I credit him.
Even assuming arguendo that the conversation did occur,
there is no testimony by Davis that he was told to remove
his union shirt or that he could not wear the shirt. Moreover
I note that at the time, Davis was not even employed at the
Respondent’s plant. Accordingly, I would dismiss said alle-
gation in paragraph 9(g) as it relates to Johnson.
No evidence was adduced to support the allegation as it
relates to Sherwood Locklear.
Michael Washington testified that he wore a union
sunvisor to work on more than one occasion, but on one oc-
casion Dick Locklear told him that he could not wear the
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sunvisor and to get a hardhat. Washington testified that he
removed the union visor.
Mae Helen Daniel testified that she wore a union button
to work about a week after the walkout. According to her
testimony Dick Locklear told her she could not wear the but-
ton until the election. She testified that she removed the but-
ton and approximately 1 week later, she received some union
hats and wore one to work. She testified that she passed out
the hats to other employees and that Dick Locklear told her
she could not wear the union hat.
Locklear denied both telling Washington that he had to
take off the sunvisor or that he told Daniel that she had to
remove a union button or pin. He conceded that he told
Washington who was wearing the sunvisor in an edible prod-
uct zone that he needed to put a hardhat on or a bump hat
over it and a hairnet over that. Locklear explained the base-
ball hat had to be covered with a hairnet in an edible product
zone which is a zone where the birds have been dressed, in-
cluding anything from the eviscerating department forward.
Locklear testified further that he told Daniel she had to wear
a hairnet over the union visor.
I fully credit the testimony of Dick Locklear, who was not
even employed by the Respondent at the time he testified.
I discredit both Washington and Daniel. I have discussed
their credibility in some detail earlier. Locklear impressed me
as an objective, honest, and neutral witness.
He explained to Washington that hard hats and nets must
be worn in edible product zones. Locklear admitted engaging
in discussions with Daniel about a union hat but denied tell-
ing her to remove a union button.
Suffice it to say, Tomes of documentary evidence have
been received into the record, including regulations issued by
the U.S. Department of Agriculture’s Food, Safety and In-
spection Service.
The Government’s directives address employee cleanliness,
dress, personal hygiene, and safety. Their sanitation policies
and requirements are vast and highly detailed. They literally
cover employees’ dress and ornamentation from head to toe.
Respondent concedes that various departmental super-
visors, from time to time, may deviate in the enforcement of
these rules. I find no evidence of disparate treatment between
prounion or antiunion advocates. Moreover, I am convinced
that Respondent historically has attempted to abide by these
rules. The Union’s organizational campaign, in my opinion,
had no part in the implementation or enforcing the regula-
tions.
I recommend that the allegation in paragraph 9(g) of the
complaint as it relates to Dick Locklear be dismissed.
No evidence was presented to support the allegation as it
relates to Jimmy Burns. Accordingly, I recommend that the
allegation be dismissed.
Darlene Washington, Michael Washington’s wife, testified
that on October 6, he wrote on her apron ‘‘its union time’’
and worked in the apron from 12 until the end of the work-
day. She testified that before work on the next day, Allen
saw her and told her she couldn’t work with the magic mark-
er on her apron and further, that they had stopped employees
from writing slogans on their aprons. Washington testified
further that Allen told her to get another apron. According
to her testimony, she had seen astrological signs and playboy
bunnies on the aprons of employees, prior to this incident.
She also testified that after this conversation she had seen
people writing on their aprons. Moreover, according to
Washington, the aprons are worn 3 to 4 days and then
thrown away.
In her testimony she testified that she had written on her
apron subsequent to the conversation with Ralph Allen. Ac-
cording to Washington no managerial employee told her she
could not write on her apron since the conversation occurred.
She did testify however, that she had written only her name
and clock number on her apron since the alleged conversa-
tion. Moreover, she conceded that she had worn a union T-
shirt and a union visor prior to the election, and no one had
ever told her to remove them.
Allen testified that ‘‘union time’’ was written in magic
marker all over the front of Washington’s apron. According
to Allen, Washington handled turkey giblets and livers, and
the U.S. Department of Agriculture would not allow ink on
an employee’s uniform because it could get on the turkey
product. Allen told Washington to get another apron and that
was the end of the conversation. He acknowledged that pre-
viously, employees had different things drawn on their
aprons but that Dick Locklear had the employees buy new
aprons and throw the old ones away. After that time, em-
ployees were only allowed to write their names and clock
numbers on the aprons, near the neck of the apron.
Respondent is justified in enforcing U.S. Department of
Agriculture regulations. The Board has decided in a legion
of cases that enforcing rules as to hygiene and cleanness is
justified in this type of industry.
Accordingly, I recommend dismissal of this allegation as
it relates to Ralph Allen.
No testimony was adduced to support the allegation as it
relates to Athens Barnes. Accordingly, I recommend dismis-
sal of the allegation.
Don Brewer, is alleged to be the quality control manager
of Respondent’s plant. As such, he issues memoranda to var-
ious management personnel and/or employees. They often re-
late to USDA and North Carolina Department of Agriculture
Regulations.
Neither the testimony nor the memoranda in evidence, in-
dicate any conduct on the part of Brewer which is violative
of Section 8(a)(1) of the Act. I recommend that paragraph
9(g) be dismissed in its entirety.
Paragraph 9(h)
Paragraph 9(h) alleges that Eric Wowra and Benita
McNeill engaged in surveillance of employees’ union activi-
ties.
The name ‘‘Benita McNeill’’ should be corrected to read
‘‘Bernita McNeill Heard.’’ I have heretofore discussed the
allegations relating to Wowra and Heard. Their credibility
has been addressed prior hereto. I credit them and conclude
that they neither engaged in, nor created the impression of
surveillance. Heywood Davis’ credibility has also been dis-
cussed, and I have found him to be a witness unworthy of
crediting. Accordingly, I recommend dismissal of section
9(h) of the complaint in its entirety.
591HOUSE OF RAEFORD FARMS
14 In 1989, turnover went down to 150 percent.
Paragraph 9(i)
Paragraph 9(i) of the complaint alleges that Johnson,
Wowra, Adkins, and Eric McPhatter promised employees ad-
ditional benefits to discourage their union activities.
Respondent concedes that it solicited grievances, pledged
to correct problems, and in fact made good on some of its
promises. The background evidence adduced by Respondent
is essentially undisputed.
Between July 1985, to February 1986, Wowra worked for
Respondent as its general manager. Respondent did not feel
that he fit into this position, so Wowra was terminated.
Thereafter, he worked at a pork processing cooperative in
Pennsylvania as general manager, and at a unionized facility
in Oakland, Iowa, as general manager for over a year. The
Iowa facility employed approximately 1300 employees.
In March or April 1988, Brenda Branch, food service and
deli sales manager, called Wowra and told him that Johnson
wanted to talk to him. She asked Wowra if he would be in-
terested in coming back to the plant. Wowra talked to John-
son and returned to the plant as personnel director. This was
approximately 2 months before the walkout.
In the spring of 1988, Johnson felt that ‘‘things weren’t
right in the plant.’’ The turnover at the plant was too high,
at that time, 250 percent.14 When Wowra returned to the
plant, he met with Johnson to discuss what functions he
would perform.
Johnson told Wowra he wanted him to find out why the
absenteeism and turnover rate were so high. In addition, he
was concerned with the safety program, plant crewing, and
the large number of employees requesting to borrow money.
Johnson suggested the possibility of starting a credit union
and possibly putting $10,000 in the bank, so the people could
borrow money and when paid back it would remain in the
credit union.
Wowra immediately commenced spending his days on the
plant floor talking to the over 1000 employees. Furthermore,
he attended employee group meetings with Lou Lucente,
general manager. Lou Lucente, who had been hired shortly
before Wowra, instituted a suggestion box and group meet-
ings were attended by employees to discuss problems.
Documentary evidence reflects that meetings were held in
July 1988, where grievances were solicited. On July 19,
Lucente, Wowra, and Don Brewer, quality control manager,
met with employees to discuss problems. The evidence re-
flects that employees claimed that supervisors tore up doc-
tor’s notes, weren’t sensitive to problems, showed favoritism,
dated subordinates, gossiped about the employees problems,
refused to transfer important telephone calls, used profanity,
fired employees on the spot, made sexist remarks, and failed
to train new employees. Other complaints were that the man-
agement employed too many family members, fired a boy-
friend if female employees wouldn’t ‘‘cooperate.’’ Employ-
ees also complained about various policies and plant rules,
including lack of notice of Saturday work, holiday pay poli-
cies, health excuse policies, vacation policies, and the bath-
room policy. Further, employees indicated that their classi-
fications and pay rates needed to be updated and a raise was
needed. Testimony by Wowra and documentary evidence re-
flect that he commenced investigating various employee ben-
efit plans. On July 14, Wowra met with William P. Stanley
Jr., senior vice president and consultant of W.E. Stanley
Company Inc., a Greensboro, North Carolina company.
Wowra and Stanley discussed various types of retirement
plans, including a 401-K plan.
In mid-July, Wowra prepared a document which he enti-
tled ‘‘Challenge 1988—1989,’’ which is in evidence. The
document set forth Wowra’s plans and goals wherein he
made specific suggestions on how to accomplish these goals.
The document reflects that the goals are to reduce plant
crewing, improve productivity, reduce processing cost, im-
prove management/supervisory effectiveness, install
management/supervisory incentive program, increase labor
salaries, and improve employee morale and reduce turnover.
Wowra advised that Respondent start an active safety pro-
gram, recognize long-term employees, restart the monthly
newspaper, investigate and install a pension plan, increase
formal and informal training, continue to upgrade the plant
appearance, install a management incentive plan, investigate
hourly wage increases, develop a strong professional man-
agement team, initiate an employee of the month program,
investigate a daycare program for employees’ children, and
have management picnics.
The agenda was typed on July 26, and presented by
Wowra to Johnson on that day. Later Wowra sat down with
Johnson to discuss the agenda. Johnson asked some ques-
tions, and Wowra made additional handwritten notes to the
document. Johnson asked how the employee meetings were
going and whether or not they should be continued. Wowra
told Johnson that he wasn’t sure about the value of the meet-
ings, he would get back to him about that. He told Johnson
that they ought to analyze the suggestion box. They dis-
cussed the situation with respect to employees’ constantly
asking for advances on their paychecks, and Johnson brought
up the possibility of setting up a $10,000 account for such
loans. Wowra did not want to manage such an account and
suggested that perhaps the money should be put in a credit
union. They also discussed the possibility of sending man-
agement to a North Carolina State football game, and install-
ing a 401-K plan, a physician’s health plan, and a retirement
plan.
On July 28, 2 days later, the first walkout of four employ-
ees occurred. On August 1, the following Monday, the em-
ployees walked out en masse. Thereafter, the following
week, Respondent commenced meeting with employees to
discuss their problems.
During the first set of meetings, Johnson solicited employ-
ees to discuss grievances and problems, and he made some
changes, and pledged to investigate other problems.
During the fourth meeting, Wowra told the employees that
he was in the process of implementing programs and correct-
ing problems when the walkout occurred, and that he desired
to continue to do what he had been hired to do. Furthermore,
Branch and Johnson told the employees that now that they
had gotten their attention they wanted a chance to continue
what they had begun.
592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Adkins was amended in at the hearing.
Conclusion and Analysis
Respondent’s actions were unrelated to any union activity.
This is obvious because Wowra was hired approximately 2-
1/2 months before any union activity, for the very purpose
of analyzing, rectifying, and adjusting employee problems.
Respondent’s conduct was motivated by legitimate busi-
ness reasons before and after the advent of any union activ-
ity. Moreover, on August 1, a mass walkout occurred. This
was certainly a graphic illustration that the employees were
dissatisfied and had problems. Respondent was more than
justified in finding out what those problems were and curing
them. Nor is an employer precluded from continuing, without
interruption, conduct it had embarked on months before. See
Clark Equipment Co., 278 NLRB 498 (1986), and Daniel
Construction Co., 264 NLRB 569 (1982).
Alfreda Hammond’s testimony makes no reference to Gary
Adkins’ promising additional benefits to discourage union
activity. According to Adkins’ testimony, Hammond asked
him to buy a case of beer. He refused, telling her he had
never done that before in his life.
Annie Hardy testified that around the latter part of August
or September 1, she was reading a Notice of Election posted
above the timeclock and Eric McPhatter, supervisor of pack-
ing, asked her what she thought. She testified further that
McPhatter told her to let him tell her what to think, and that
Hardy should think that they did not need a union, because
all a union would do is take their noney, and if a union was
voted in, ‘‘all Marvin’s [Johnson] going to do is close the
plant.’’ Hardy testified that McPhatter said ‘‘he had promised
a raige [sic] Labor Day,’’ ‘‘we got him where we want him
and if Marvin had did what his lawyer had told him to do,
it would not have come to all this, and that anything we ask
him from now on, we would get it.’’ Hardy testified that she
stated ‘‘let him close it,’’ and she walked away. She also tes-
tified that no one else was present during this alleged con-
versation.
McPhatter readily acknowledged that he spoke individually
with employees with reference to his opinion regarding the
Union, and in his opinion he did not think that they needed
a union, because all a union could do was take their money.
He did not specifically recall discussing the Union with
Hardy and denied ever telling her ‘‘let me tell you what you
should think,’’ or that if a union was voted in Johnson would
close that plant. He also specifically denied having told
Hardy that ‘‘they’’ had Johnson where they wanted him, and
that they would get anything they wanted in the future.
McPhatter denied making any of the statements which Hardy
alleged him to have made.
McPhatter was an extremely credible witness. He made a
sincere effort to recount accurately. He did not attempt to
equivocate. Accordingly, I fully credit his testimony.
Contrarily, Hardy focused on complete fabrication. If in
fact, McPhatter told her his opinion, she proceeded to falsely
embellish and distort the alleged conversation. McPhatter ac-
knowledged on cross-examination that he spoke to 40 or 50
employees, rendering his opinion. Hardy was a single wit-
ness. Where were the others? I completely discredit Hardy’s
testimony.
I recommend that the allegations appearing in paragraph
9(i) of the complaint be dismissed in their entirety.
Paragraph 9(j)
Paragraph 9(j) alleges that the following individuals threat-
ened employees with discharge because of their union activi-
ties:
Marvin Johnson Annie Gilchrist
Roscoe McCollum Constella McLeod
Lizzie Mae Harris Eric Wowra
Gary Adkins15
The allegation relating to Johnson, allegedly occurring on
August 15, has been fully discussed in section 9(d) of this
decision.
Suffice it to say, that a number of employees testified that
Wowra, Johnson, and Branch made flagrantly unlawful com-
ments, threatening discharge and plant closure because of
union activity. These allegations surfaced as the result of
group meetings.
Wowra conducted a series of meetings during the organi-
zational campaign. Approximately 50 employees attended
each meeting, which were held in the quality control lab. The
large size work force necessitated repeating each meeting 20
times.
In each of the meetings, Wowra employed notes which
were received into evidence. In the beginning, he para-
phrased from the notes. As time went on, he became familiar
enough with the text to use the notes as a guide.
During the first meeting, Wowra told the employees about
the meetings to be held, and stressed the importance of the
employees’ decision. He utilized a videotape which showed
employees arguing for and against unionization and empha-
sizing how the Union could not deliver with respect to prom-
ises made. He also discussed collective bargaining and what
would happen if the Union came into the plant. He told the
assembled employees that Respondent’s only obligation was
to bargain in good faith, and that it did not have to agree
to any of the Union’s demands. He stated that everything
goes to the bargaining table and four things could happen.
They could come out better off than when they went in, they
could come out with a contract that was the same as what
they had, except they would be paying union dues, they
could come out with less wages and benefits than they al-
ready enjoyed, or they could come out with no agreement.
He also discussed unionization in general, and informed the
employees with respect to dues, fees, and fines, loss of per-
sonal freedom, union rules, and the possibility of strikes.
The second series of meetings were also conducted by
Wowra. The general subject was the financial reports, LN-
2 reports, and he highlighted them. He discussed the finan-
cial reports of the local union and the financial reports of the
International, in Washington, D.C. He also discussed the
Union’s constitution.
Wowra and Branch both conducted the third series of
meetings. The general topic during these meetings was job
security. Wowra spoke first, telling the employees that
unions do not create job security, but that the employees as
individuals create their own job security by doing the best
that they can, following the rules, and making a quality prod-
uct that will result in repeat sales. He also discussed the im-
portance of voting and that it was important to vote, ‘‘don’t
593HOUSE OF RAEFORD FARMS
just not vote.’’ He specifically testified that he never said the
plant would close if the Union came in. What he did say,
was that any plant can close due to unfavorable economic
conditions, poor marketing, poor quality product, and poor
perception of a product. He told the employees that the
Union is not a customer, that the customer causes repeat
sales and allows people to stay in business. He also testified
that if a union interfered in delivering a product, it lost jobs,
and if it became uncompetitive because of unreasonable de-
mands, it lost jobs. He showed employees a film concerning
Tyson Foods where the Union passed out handbills accusing
the Company of operating under unsanitary conditions.
Wowra also informed the employees about his experiences
running a beef processing plant in Oakland, Iowa.
Brenda Branch testified that she spoke after Wowra from
notes she had made a few days before the meeting. Branch
utilized the notes for the first meeting or two. She testified
she urged them a little more than she did after the first cou-
ple of meetings and then memorized them. Branch testified
further that she did not attempt to ad lib because she is not
very good at ad libbing. Moreover she testified that she fol-
lowed pretty much the notes which are in evidence, word for
word. She spoke about job security, and told the employees
that union or no union, the plant had to earn a profit to re-
main in existence and for all of the employees including her-
self to have job security. She further explained that the
Union could not provide job security and could actually dam-
age security if they spread malicious lies to customers. She
discussed Tyson Foods and stressed that Food Lion was a
major customer, and that the Union had been threatening to
boycott Food Lion. Her notes and testimony reflect that she
stated that Marvin Johnson doesn’t want to shut the plant
down, he wants it to operate and be a success, but that if
for any reason it didn’t make good business sense to operate,
he could and would shut it down. She also told the employ-
ees that if a company is forced, due to economic business
conditions to cut back on its work force it would do that.
Moreover, if the Company was forced to close down because
it couldn’t make a reasonable profit, or because a strike shut
it down and it lost its customers, then it would have to go
out of business. Furthermore, according to Branch, she ad-
vised the employees that there was no law and no union con-
tract that says the company cannot do what it must do.
The fourth series of meetings were conducted by Wowra,
and his notes are in evidence. He discussed strikes and bar-
gaining. He showed a film of a strike at a Hormel plant in
Minnesota. He also discussed a strike at Golden Poultry. He
addressed a newspaper clipping wherein the union represent-
ative involved in organizing Respondent’s plant is quoted.
The final series of meetings was held on October 4 and
5. Wowra, Branch, and Johnson spoke.
Wowra spoke first, telling the employees that he wasn’t
hired to spend 12- and 14-hour days educating the employees
about the Union. Rather, he was hired to implement positive
programs to improve operations and benefits. He asked for
a chance to do what he was hired for. He explained the vot-
ing procedure. He addressed collective bargaining, stating
that Respondent had to bargain in good faith but it did not
have to agree to demands.
Branch, again used notes when she spoke. Again she fol-
lowed the notes almost word for word and did not ad lib.
She, inter alia, asked employees to vote no. She informed the
employees that they had gotten Respondent’s attention, Re-
spondent had commenced to solve problems, but it takes
time.
Branch had prepared notes, which are in evidence, for
Johnson, who spoke next. He told the employees that he
didn’t think they needed a union. Respondent did not have
a big board of directors, and most of them knew him by his
first name. Moreover, a lot of them came to him to borrow
money. He further testified that they come to him to discuss
problems and they didn’t need a third party diddling around.
He told the employees that the Respondent wasn’t a welfare
department, raises came from profits. Johnson testified fur-
ther, that he told employees if the supervisors did not treat
them right, the supervisors would be fired. Furthermore, he
told the employees that he was already taking more out of
their paychecks than he wanted, and he didn’t see any need
for them to vote in a union so he would have to take more
out of their checks. He mentioned the union flyer that said
he had made $9 million. Johnson informed the employees
that this was not true, some years he made money, and other
years he lost money. He further informed the employees that
making a profit was necessary to stay in business. He told
them he did not have any respect for the Union and he didn’t
like them and they could not tell him how to run his plant.
According to Johnson he stated that he would not be intimi-
dated by a strike and he was going to run turkeys with or
without them. Moreover, if a strike occurred, he would hire
replacements or run the turkeys somewhere else. Johnson
showed the employees a ballot and asked the employees to
vote ‘‘no.’’ He told them that they were either ‘‘with me or
against me,’’ and if they lined up with the Union, ‘‘the fight
has just begun.’’ He asked the employees to line up with him
and vote ‘‘no.’’
The testimony of the General Counsel’s witnesses was
vacuous and fragmentary. I’m convinced that most of the
witnesses other than the obvious prevaricators, heard what
they wanted to hear, I discussed the credibility of Carl
Lindsey and Annie Hardy in paragraphs 9(d) and (i). Neither
had any regard for the truth. None of the employees made
any notes of the meetings. I believe that in general most of
these witnesses were intelligent people. I recognize that they
are not sophisticated labor lawyers enabling them to distin-
guish nuances. The layman cannot be expected to recognize
the incompatibility between ‘‘would’’ and ‘‘could.’’
I am convinced that Respondent’s management, who de-
nied the unlawful remarks attributed to them, Wowra and
Johnson, did not threaten to discharge employees because of
their union activities. Wowra certainly isn’t unfamiliar to
unions, nor is Johnson wet behind the ears in this regard.
They utilized notes. When they deviated from their notes, I
am convinced they did not cross over the line into illegality.
The same can be said for Branch, who I believe did not ad
lib. I conclude that the speeches made by Johnson, Wowra
and Branch were protected under the free speech provisions
of Section 8(c) of the Act.
Carl Lindsey testified that approximately a week after a
meeting held by Wowra, he met with Roscoe McCollum in
McCollum’s office. According to Lindsey’s testimony,
McCollum told him that he could not go to anymore com-
pany meetings and McCollum asked Lindsey whether he
thought the Union was going to get in. Lindsey testified that
it was going like a freight train nonstop. He further testified
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that McCollum said ‘‘well, he can’t go to the meetings now
and you know what is going to come next.’’ According to
Lindsey he asked McCollum what he meant and McCollum
responded ‘‘life was a bitch just watch your step.’’
Respondent concedes that Lindsey was told he would not
be permitted to attend any of the company meetings where
the Union was discussed. Wowra testified that some of the
employees, including Lindsey, were disruptive during the
meetings and he was unable to conduct the meetings. There-
fore Wowra prepared a list of the disruptive employees and
instructed the plant manager to exclude them, including
Lindsey, from the meetings.
McCollum’s statements were vague, ambiguous, and did
not contain an implied threat to discharge Lindsey. Lindsey
doesn’t even suggest in his testimony that there was any ref-
erence made to his union activity. Accordingly, I recommend
dismissal of this allegation in paragraph 9(j) of the complaint
as it relates to McCollum.
No evidence was presented to support the allegation relat-
ing to Lizzie Mae Harris. Accordingly I recommend that the
allegation relating to Harris be dismissed.
The allegation relating to Gary Adkins has already been
discussed in section 9(e).
Annie Gilchrist, was a supervisor in the cutup and packing
department. Krista McNeill testified that while working in
the packing department the day before the election, Gilchrist
called her to the side and told her that she heard that if the
Union came in, they were going to close the plant and that
she (Gilchrist) needed her job. That was the extent of the
conversation.
Patricia Williams testified that on the day before the elec-
tion Gilchrist called her off the dark meat table, and told her
that she ‘‘better vote no.’’ Williams testified she asked Gil-
christ why, and Gilchrist responded ‘‘because I heard that the
Plant was going to close down and I needed my job.’’ She
testified further that she responded ‘‘I come looking and I
leave looking.’’
Martha Williams testified that on the day before the elec-
tion Gilchrist called her over and said ‘‘you need to vote
no,’’ and Williams asked Gilchrist why. Gilchrist responded
that it was ‘‘because the Union will get in here and we may
not have no job.’’ That was the extent of that conversation.
Cathlene Davis testified that she had been confused about
voting, and on the day before the election, she had a con-
versation with Gilchrist between the door and the parking lot.
Davis testified that Gilchrist told her she heard that she was
confused about the election, and that if they did not vote for
the House of Raeford, ‘‘we won’t have no job when we
come back in.’’
Gilchrist testified that she had one on one conversations
about the Union with approximately 8 to 10 employees in-
cluding those named above. She testified further that she said
the same thing to each of them. Gilchrist related that she said
‘‘I’m not asking you how you plan to vote.’’ She then told
the employees ‘‘I need my job and if the Union come, we
both might be out of a job.’’ When she was asked how long
these conversations lasted, she testified ‘‘it wasn’t even a
minute . . . .’’ The transcript should be corrected at page
1345 to correct the word ‘‘was’’ to ‘‘wasn’t.’’ The witness
testified using the word ‘‘wasn’t.’’
I have no doubt that Gilchrist was expressing her personal
opinion. It is also noted that Gilchrist, in her testimony used
the word ‘‘might,’’ and I credit her. There is no evidence
that Gilchrist’s remarks were communicated by employees to
other employees. The conversation occurred in the work
area, not in an office. Moreover, Gilchrist did not represent
that she was speaking on behalf of Respondent. I recommend
dismissal of the allegation relating to Gilchrist in paragraph
9(j) of the complaint.
Costella McLeod testified that she considers herself a
group leader. Respondent denies her supervisory status.
Mcleod is hourly paid and punches a timeclock. She
records individuals who arrive late to the line. She has no
authority to warn these employees. She and another em-
ployee set up the table, and turn on the belt and the water.
She sees that the employees at the table are aware of their
positions. She hands out knives and bags to employees. She
makes no product decisions regarding what is to be run on
a particular day. McLeod exercises no independent judgment,
but rather performs routine ministerial functions. She inter-
cedes when employees have problems, but she has no author-
ity to discipline them. She voted in the election without chal-
lenge. McNeill testified that McLeod’s coat was different
from that of other employees, but she wasn’t furnished the
coat until November 1988, after the election. I conclude that
McLeod is not a supervisor within the meaning of Section
2(11) of the Act.
Moreover, in my opinion the alleged remarks attributed to
McLeod, do not constitute violations of Section 8(a)(1) of
the Act.
Krista McNeill testified that McLeod told her, Charlene
Ray, and Patricia Williams, prior to the election that she
heard Johnson say he was going to get rid of all the trouble-
makers who started the strike and wore union sunvisors. She
also testified that on the Monday after the election, McLeod
told the same employees that she heard Johnson pays people
to vote against the Union, and he was going to get rid of
all the troublemakers.
No testimony was adduced from Ray or Williams regard-
ing the alleged conversations.
McNeill also testified that McLeod stated that she did not
care how anyone voted, because she would get whatever
anyone else got. Williams testified that McLeod told her
‘‘she didn’t give a shit how the employees vote.’’
McLeod testified that the women were discussing what
they knew about the Union, and she specifically denied say-
ing she heard that Johnson said he was going to get rid of
the troublemakers or the people who wore union sunvisors.
Additionally, McLeod testified that McNeill, Ray and Wil-
liams told her they heard Johnson say he was going to get
rid of the troublemakers. McLeod responded ‘‘I heard that
too.’’ She also testified that one of the employees said she
heard that Johnson paid people to vote against the Union,
and McLeod responded ‘‘I heard that too.’’
I credit McLeod’s version of the conversation. I discredit
McNeill, because I believe that she took plain gossip and
falsely attributed the remarks to McLeod. I believe that
McLeod did nothing more than agree that she heard the ru-
mors. She did not make any comments binding Respondent.
Furthermore, McNeill and Williams acknowledged that
Mcleod didn’t care about the Union one way or another. In-
terestingly my notes, made during her testimony, reflect that
she impressed me as an individual who couldn’t have cared
less about the Union. Accordingly, I recommend that the sec-
595HOUSE OF RAEFORD FARMS
tion in paragraph 9(j) of the complaint relating to McLeod
be dismissed, and furthermore that paragraph 9(j) be dis-
missed in its entirety.
Paragraph 9(k)
This paragraph was fully discussed in the section of this
decision captioned paragraph 9(i). I recommend that para-
graph 9(k) be dismissed.
Paragraph 9(l)
This paragraph of the complaint was fully discussed in
section 9(i). I recommend that paragraph 9(l) be dismissed.
Paragraph 9(m)
This paragraph of the complaint was fully discussed in
section 9(j) of this decision. I recommend that paragraph
9(m) be dismissed.
Paragraph 9(n)
This paragraph as it relates to Gary Adkins, was fully dis-
cussed in section paragraph 9(e) of this decision.
This paragraph as it relates to Hippotemus was withdrawn
at the hearing.
This paragraph as it relates to Annie Gilchrist, was fully
discussed in section paragraph 9(j) of this decision. I rec-
ommend that section 9(n) be dismissed .
Paragraph 9(o)
No evidence was presented relating to James ‘‘Tightrope.’’
The allegation in this paragraph as it relates to Eric
Wowra has been discussed in section paragraph 9(j).
The allegation as it relates to Marvin Johnson has been
fully discussed in paragraphs 9(d) and (j) of this decision.
The allegation as it relates to Gary Adkins has been dis-
cussed in section 9(e) of this decision.
No evidence was presented relating to the allegation in-
volving Terrel Hines.
Ethel Lee Melvin testified in support of the allegation as
it relates to McCollum. She testified, that on the night of the
election, McCollum put his arms around her neck and told
her ‘‘she better vote for the Union, no—because Marvin
Johnson is getting ready to close the damn plant.’’ Melvin
testified that she told McCollum ‘‘I don’t give a dam what
Marvin do. I’m voting for the Union,’’ and walked away.
After Melvin voted, she testified that McCollum was stand-
ing at the side of the wall and said ‘‘you done did it?’’ and
Melvin testified that she responded affirmatively.
McCollum testified that he did not speak with Melvin on
the day of the election. He testified further he did not tell
her how to vote or to vote, nor did he tell her that Johnson
was getting ready to close the plant. Moreover, according to
his testimony, McCollum did not see Melvin after she voted
and say ‘‘you done did it.’’
I fully credit McCollum, whose credibility I’ve discussed
earlier. No other witnesses testified that McCollum engaged
in this kind of conduct.
Counsel for Respondent called Melvin as his own witness.
She was unable, or refused, to respond to any of the details
of the group meetings. She testified over and over that she
slept throughout the meetings. Melvin was a world-class
evasionist, whose testimony was pure fiction.
The allegation as it relates to Gilchrist has been discussed
in paragraph 9(j) of this decision.
The allegations of this paragraph related to Eric McPhatter
have been fully discussed in section paragraph 9(i) of this
decision.
The allegation in this paragraph of the complaint as it re-
lates to Brenda Branch has been discussed in paragraph 9(j)
of the complaint.
Accordingly, I recommend dismissal of paragraph 9(o) of
the complaint in its entirety.
Paragraph 9(p)
This allegation was fully discussed in the section cap-
tioned paragraph 9(e). I recommend dismissal of paragraph
9(p).
Paragraph 9(q)
This paragraph has been fully discussed under the section
addressing the discharge of Alfreda Hammond. Accordingly,
it is recommended that paragraph 9(q) of the complaint be
dismissed in its entirety.
Paragraph 9(r)
The allegation in this paragraph have been discussed in
section paragraph 9(j). Accordingly, I recommend dismissal
of paragraph 9(r) of the complaint.
Paragraph 9(s)
Brenda Branch testified that she ordered approximately
1000 ‘‘vote no’’ T-shirts and gave them to Beatrice McCrae,
the supply room clerk, to distribute to employees. McCrae
testified that as part of her normal duties she keeps all sup-
plies which are distributed to the employees. She requires
them to sign for any such supplies in order to keep track of
the inventory, and at the end of the year she throws away
the list.
Therefore, McCrae, as is consistent with her normal proce-
dure, required the employees who asked for T-shirts to sign
a list. Management gave her no instructions to keep such a
list. There is no evidence that management was even aware
of the list. According to the testimony of McCrae, two em-
ployees, Monroe and Ware, saw the list because they helped
pass out the shirts.
McCrae decided not to give ‘‘vote no’’ T-shirts to employ-
ees who were wearing prounion T-shirts. Therefore, several
employees were denied shirts. Branch testified she was un-
aware of this until she received complaints from several em-
ployees. Thereupon, she called McCrae and asked why she
was not giving T-shirts to these employees. McCrae re-
sponded that she didn’t feel that someone who was wearing
a union T-shirt should get a ‘‘vote no’’ shirt. Branch in-
formed Johnson of the situation and he agreed with McCrae
that the employees had to be one way or the other.
There is no evidence that the list was utilized for polling
purposes. The employees with prounion shirts were literally
showing their sentiments on their chest. The list was simply
for the purpose of keeping track of inventory. No employees
were coerced or pressured into wearing the ‘‘vote no’’ shirts.
Accordingly, I recommend that this allegation in paragraph
9(s) of the complaint be dismissed.
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Received into evidence, which spelled out the prohibition on so-
licitation during working time. The new rule is not overly broad and
is presumptively valid.
17 Objections to an election were not the issue.
18 Page 4 of the pamphlet illustrates that ‘‘discussion,’’ (negotia-
tions) continued for 4 months.
Paragraph 9(t)
This allegation was withdrawn at the hearing.
Paragraph 9(u)
Apparently this allegation references Johnson’s statement
that he was going to run turkeys with the employees or with-
out them, and if there is a strike, he will either hire replace-
ments or run the turkeys someplace else. There was no nexus
between running the turkeys at another location and the
Union. Johnson was talking in the context of a strike occur-
ring and the fact that he could hire replacements or run the
turkeys elsewhere. By these remarks he was merely stating
what an employer is privileged and has the right to do, dur-
ing the course of an economic strike. Accordingly, his re-
marks were lawful. See M-B Co. 290 NLRB 68 (1988).
Accordingly, I recommend that this allegation appearing in
paragraph 9(u) of the complaint be dismissed.
Paragraph 9(v)
This allegation was withdrawn at the hearing.
Paragraph 9(w)
This allegation was withdrawn at the hearing.
Paragraph 9(x)
The allegation appearing as paragraph 9(x) was an addi-
tional paragraph which was amended in, at the hearing.
This paragraph alleges that Respondent maintained an un-
lawful no-solicitation/distribution rule.
Until July 11, 1989, Respondent maintained in its guide-
book for its employees at page 10, a no-solicitation rule pro-
hibiting all solicitations not approved by management.
Although no evidence was adduced that the rule was ever
enforced against employees, Respondent concedes that the
rule is presumptively invalid.
On July 11, 1989, Respondent specifically revoked the
rule and implemented a new rule.16 No purpose would be
served at this juncture to remedy a technical violation which
Respondent has already cured. It would not effectuate the
purposes of the Act. Accordingly, I recommend that para-
graph 9(x) of the complaint be dismissed.
Charging Parties Separate Objection
In a separate objection, not alleged to be 8(a)(1) conduct,
the Charging Party alleges that the election should be set
aside by virtue of Respondent’s objectionable conduct in its
October 6, distribution of a pamphlet, ‘‘Diary of a Strike.’’
The pamphlet describes a plot line that might occur should
the Union win the election. Different events appear on sepa-
rate pages, and each page is dated. The pamphlet portrays an
election where the Union wins by a few votes, ‘‘legal proce-
dures,’’ by both parties, certification after 5 months, negotia-
tions for 4 months and a strike. The pamphlet further delin-
eates some possible consequences of a strike, including, inter
alia, lost wages, property damage, loss of jobs, and veiled
threats.
The pamphlet must be considered in the context of the
lengthy, hotly contested campaign, where both parties en-
gaged in extensive campaign rhetoric. Moreover, in em-
ployee meetings, Wowra legally delineated the ramifications
of the collective-bargaining process and strikes. He neither
expressed nor implied that Respondent wouldn’t bargain. To
the contrary, he told the employees that an employer is obli-
gated to bargain in good faith. Indeed, the pamphlet that
issued, reflects on page four, a scenario where Respondent
negotiates for 4 months as of March 13, 1989, and on the
next page, a strike vote was taken on July 10, 1989.
I cannot perceive anything in the pamphlet that even re-
motely suggests that a strike and resultant loss of jobs or se-
curity are inevitable.
Furthermore, job security was also stressed by manage-
ment in the meetings. This was addressed in the context of
customer satisfaction, a quality product and a fair price. Re-
spondent sites Can-Tex Industries, 256 NLRB 863 (1981),
where language did not communicate that strikes and job
loss were inevitable. The language was found not to violate
Section 8(a)(1),17 and the text is similar to the pamphlet at
issue. The fact that the pages are dated in the pamphlet, in
my opinion, does nothing to enhance the Charging Party’s
‘‘inevitability’’ argument. In my view the dates are super-
fluous and are of no legal significance or consequence.
Counsel for the Charging Party relies on, among others, a
recent case Fred Wilkinson Associates, 297 NLRB 737
(1990). She asserts that the language at issue in that case, is
‘‘virtually identical,’’ to the language in the pamphlet. I find
Wilkinson inapposite. There, a letter was sent to employees
containing language which convinced the employees that a
strike was inevitable, as a means of obtaining concessions
from the employer. The language of the letter stated in perti-
nent part, ‘‘as you have learned over the last weeks, the
Union cannot guarantee that your wages and benefits will go
up or even stay the same. The only thing the Union can
guarantee is a strike. In fact, the only thing the Union can
do to try to get the company to agree to its demands is to
call a strike.’’
The Board in the Wilkinson case sites Amerace Corp., 217
NLRB 850 (1975). The language in that case states in perti-
nent part ‘‘in arguing against unionism, an employer is free
to discuss rationally the potency of strikes as a weapon and
the effectiveness of the Union seeking to represent his em-
ployees. It is, however, a different matter when the employer
leads the employees to believe that they must strike in order
to get concessions. A major presupposition of the concept of
collective bargaining is that minds can be changed by discus-
sion,18 and that skilled, rational, cogent argument can
produce change about the necessity for striking—Employees
should not be lead to believe, before voting that their choice
is simply between no union and striking. The whole message
to employees was to instill in them a fear of the adverse ef-
fect of collective bargaining, coupled with the admonition
that the selection of the petitioner as their bargaining rep-
resentative was excursion into complete futility.’’
597HOUSE OF RAEFORD FARMS
I conclude that Respondent’s pamphlet was within the per-
missible boundaries of free speech, within the meaning of
Section 8(c) of the Act, and not objectionable.
Accordingly, I recommend that this separate objection, and
the other objections discussed in the context of unfair labor
practices in this decision, be overruled. I further recommend
that the Board certify the results of the election.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The allegations of the complaint that Respondent has
engaged in conduct violative of Section 8(a)(1), (3), and (4)
of the Act have not been supported by substantial evidence.
4. The objections have not been supported by substantial
evidence.
[Recommended Order for dismissal omitted from publica-
tion.]