J. D. Jewell, Inc.

National Labor Relations Board - Board DecisionsMay 12, 1952

99 N.L.R.B. 61 (N.L.R.B. 1952)

J. D. JEWELL, INC. 61 WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL 1614, AFFILIATED WITH AMERICAN FEDERATION OF LABOR, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized in Section 8 (a) (3) of the Act. SAFEWAY STORES, INCORPORATED, Employer. Dated -------------------------- By ------------------------------------ (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. J. D. JEWELL, INC., AND MARVIN ALLEN, WILLIE ANGLIN, WILLIE LEE BARTLETT, TAYLOR BE, NNETT, LEONARD CAGLE, ERNEST CANTRELL, THOMAS DECKING, JAMES GAZAWAY, DUSTUS (BILL) GOWAN, JAMES H. SMITH , EARL STEPHENS, FLETCHER WHITMIRE, VESTON WILLIAMS, ROBERT SEALEY, J. O. MCLENDON, ED PIERCE, LEWIS PORTER, GEORGE VAN GIESEN, ROBERT ROPER, CECIL JARRARD and AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL. Case No. 10-CA-1226. May 12,1952 . Decision and Order On September 17,1951, Trial Examiner Lee J. Best, issued his Inter- mediate Report in the above-entitled proceeding finding that the cor- porate Respondent and certain of the individual Respondents had en- gaged in and were engaging in unfair labor practices in violation of Section 8 (a) (1) of the Labor Management Relations Act, as amended, and recommending that the Respondents cease and desist therefrom and the corporate Respondent take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that some of the individual Respondents had not engaged in unfair labor practices in violation of Section 8 (a) (1) of the Act and consequently recommended dismissal of the alle- gations of the complaint alleging participation in the said unfair labor practices by Marvin Allen, Taylor Bennett, Leonard Cagle, Thomas Decking, Earl Stephens, Fletcher Whitmire, Veston Williams, Ed Pierce, and George Van Giesen.1 The Respondents as to whom no dis- i The Intermediate Report, part D, 3, indicates that Van Giesen went to the aid of Harold Reid and Ed Roper, as well as Scheurich and Ackerman. Apparently the reference to Roper was an oversight, without effect upon our findings, as Van Giesen's testimony indicates it was Reid whom he twice helped, making no reference to Roper. 99 NLRB No. 20. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD missal was recommended filed exceptions to the Intermediate Report and a supporting brief.2 In addition they have requested oral argu- ment. This request is denied inasmuch as the record and briefs, in our opinion, adequately present the issues and the positions of the parties. The Board 3 has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the conclusions and recommendations of the Trial Examiner, with the following additions and modifications : 1. We agree with the Trial Examiner that the corporate Respondent violated Section 8 (a) (1) of the Act by the statement of Foreman Cecil Jarrard,4 following President Jewell's speech,' with reference to proposed increases in pay and a retirement plan. An undenied state- ment to the same effect and on the same occasion by Foreman William Barefield, not mentioned in the Intermediate Report, we likewise find to be a violation of Section 8 (a) (1) of the Act in that it contained both a promise of benefits if union activities were abstained from and a threat of retaliation if the Union came ins In addition we find, on the basis of Sam Qualls' testimony, set out in section C, 1, of the Intermediate Report, that Foreman Jarrard's threat that there would 2 As one of their exceptions the Respondents state that the record lacks proof of the charging Union 's compliance , "or the local organization affiliated with it. " The fact of compliance by a labor organization which Is required to comply is a matter for admin- istrative determination not litigable by the parties The Board is administratively satis- fied that the charging Union was in compliance at all times material to this proceeding. See McComb Mfg. Co , 95 NLRB 596 There is no evidence that a local organization had been perfected to represent the corporate Respondent ' s employees. 3 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [ Members Houston , Murdock , and Styles]. * In their brief the Respondents state that Jarrard was not "made a foreman until February 26 . . . and not notified of it until on or about March 7th or 8th , 1951 ," hence the statement on which the unfair labor practice finding is made occurred when Jarrard was an "ordinary employee," without power to bind the Respondent in the circumstances- (we note that no specific exception was taken to the finding.) Lingerfelt , an employee on the night shift , discharged Feb'nary 28, placed the Jewell speech and Jarrard 's remarks thereafter as occurring about 2 weeks before his discharge. However , he also testified that although Jarrard had been a truck driver in the fall of 1950, the direction of the night shift had been his duty for a month or two before Lingerfelt 's discharge ; that Lingerfelt had been "told " that Jarrard was "clean -up foreman " , and that Lingerfelt had noted that Jarrard directed his crew without participating in the work himself Jarrard did not testify without producing its records , the corporate Respondent denied that Jarrard had acted In the capacity of cleanup foreman or sanitation engineer before February 26. On this record we credit Lingerfelt, as the Trial Examiner apparently did 5 The text of President Jewell 's speech, although offered to the Trial Examiner at the hearing, was not made a part of the record. We consider the evidence with respect to it too fragmentary for conclusive comment despite Jewell's own admission that he told his employees he didn 't need any "third outsiders" to intervene. 6 Lingerfelt testified that Barefield " said they was going to give us a seven percent raise, and was working on retirement plan, but if the union come through why they would drop all of it ." Barefield was not asked if he made this statement , nor was the instance specifically referred to in his examination as a witness He denied commenting on union dues and assessments. J. D. JEWELL, INC. 63 be a layoff if the Union came in, which occurred approximately a week before the election, constituted a violation of Section 8 (a) (1) of the Act. We agree with the Trial Examiner 7 that Superintendent Cum- mings' interrogation of Frank Satterfield constituted interference, restraint, and coercion within the meaning of Section 8 (a) (1) of the Act .s 2. We agree with the Trial Examiner that the Respondent's truck drivers 9 spearheaded the antiunion campaign and engaged in violent antiunion activities consisting of assaults upon certain union agents and adherents after the ballot count on the night of March 15, 1951, and that Bunyan Bagwell, their supervisor," had full knowledge of and encouraged their violent activity, thus fixing the liability of the corporate Respondent therefor.- Also, we agree that the individual Respondents Willie Anglin,12 Willie Lee Bartlett, James Gazaway, Dustus (Bill) Gowan, and James H. Smith participated in the said violent mob action and assault,13 and that each of them is guilty of an unfair labor practice in violation of the Act. The Trial Examiner also found, and we agree, that J. 0. McLendon and Robert Roper, employees who were not truck drivers, participated in the March 15 assault upon union agents and adherents, as did Supervisors Robert Sealey'14 Cecil Jarrard, and Lewis Porter. Apart from Supervisor Bagwell's express authority to Gowan and others for violent action, the active participation of these three supervisory employees in the mob action clearly encouraged its continuance and 7 As exceptions were not filed to the Trial Examiner's finding no interference , restraint, and coercion in the comments and threats of Brewer, Shields, and McLendon whose super- visory authority was in issue , we do not pass upon that phase of the Intermediate Report. 8 See Jackson Pres8, Inc., 96 NLRB 897. 9 The Respondents except because the Trial Examiner found that the corporate Respond- ent "insisted " upon the inclusion of truck drivers in the unit . Admittedly the Respondent requested their inclusion. to We see no merit in the Respondent ' s exception to the finding that Banyan Bagwell was "manager of the freezer plant and transportation ." Bagwell 's own testimony was that he was "refrigeration and transportation manager." 11 The record lacks evidence concerning Bagwell ' s knowledge of the inception of the antiunion campaign of the truck drivers or of the preparation of the antiunion leaflet, and to the extent that the Trial Examiner ' s finding implies such knowledge , we do not adopt it. u The Respondents except to the findings of the Trial Examiner concerning the chase of the union men to Atlanta by individual Respondent Willie Anglin in his car . To clarify this point the record shows , and we find , that the union men were closely followed to Atlanta by another car at high speed , and that Willie Anglin attempted to chase them in his car, in the course of which he ran a third car off the road. 11 We shall dismiss the complaint as to Ernest Cantrell inasmuch as the record shows only that he participated in distributing the antiunion handbill. i4 Concerning Sealey ' s participation in the March 15th mob action and assault, the Respondents-without specific exception taken-argue in their brief that witness Boswell is not to be believed because he testified that Sealey had on a sport shirt with short sleeves although the temperature was 40 degrees at 6 o'clock that evening . Yet we note that individual Respondent Robert Roper testified that lie had on no topcoat or jacket at the time. The Respondents also argue that witnesses Boslsell, Ash, and Qualls are not to be believed because they were "in conflict on whether the radio in their car was going after they parked by the Jewell building ." Actually there was no real conflict in testimony as Boswell said it was on, Ash that he didn't "think " so, and Qualls that he couldn't remember. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD furnished implied authority for employee participation, thus fixing the liability of the corporate Respondent therefor. In addition we agree that each of these individual Respondents-McLendon, Roper, Sealey, Jarrard and Porter-is guilty of an unfair labor practice in violation of the Act 15 Finally, we agree that the corporate Respondent's failure to inquire into, investigate, or take affirmative disciplinary action 16 against the participating individuals constituted such condonation and ratifica- tion of the said March 15 occurrences as to constitute additional inter- ference in, restraint, and coercion of the corporate Respondent's employees in the exercise of rights guaranteed them in Section 7 of the Act-all in violation of Section 8 (a) (1) of the Act. The Labor Organization Involved Amalgamated Meat Cutters and Butcher Workmen of North Amer- ica, AFL, the charging Union, is a labor organization which admits to membership persons employed by the corporate Respondent 1T Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent J. D. Jewell, Inc., its officers, agents, successors, and assigns, including the individual Respondents Willie Anglin, Willie Lee Bartlett, James Gazaway, Dustus (Bill) Gowan, James H. Smith, Robert Sealey, J. O. Mc- Lendon, Lewis Porter, Robert Roper, and Cecil Jarrard, shall : 1. Cease and desist from : (a) Interrogating the employees of J. D. Jewell, Inc., threatening them with economic reprisal by reason of their union activities, and promising benefits if they abstain from union activities. (b) Engaging in, authorizing, encouraging, ratifying, or condoning physical assaults or threats of physical assault by employees of J. D. "We find that the individual Respondents Willie Anglin , Willie Lee Bartlett, James Gazaway, Dustus ( Bill ) Gowan, James H. Smith, J. O. McLendon , Robert Roper , Robert Sealey, Cecil Jarrard, and Lewis Porter acted as agents of the corporate Respondent at all times material herein, and hence individually constituted an "employer " within the meaning of Section 2 ( 2) of the Act. 16 Thurmond , vice president , treasurer . and attorney for the corporate Respondent, testi- fied that be was worried about the mob violence , as it was occurring , from the standpoint of whether there would "be any trouble about it." The charge was promptly filed the next day and his "lining up" employees to talk with Board personnel constituted the only investigation that was made. Likewise President Jewell testified that he was "stunned" by the news the next morning because he knew it would lead to "a very expensive hearing for the company ," but that he asked few questions about it because he "didn't want to know what happened." 17 A finding to this effect , supported by proof at the hearing , was apparently omitted from the Intermediate Report by oversight. J. D. JEWELL, INC. 65 & well, Inc., against other. employees or union representatives, in- tended to discourage membership in or concerted activities on behalf of Amalgamated Meat Cutters and Butcher Workmen of North Amer- ica, AFL, or any other labor organization. (c) In any other manner interfering with, restraining, or coercing employees of J. D. Jewell, Inc., in the exercise of the right to self- organization, to form labor organizations, to join or assist Amal- gamated Meat Cutters and Butcher Workmen of North America, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) The corporate Respondent shall instruct all its employees that physical assaults or threats of physical assault intended to discourage membership in or concerted activity on behalf of Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, or any other labor organization, will not be permitted in or about the property of J. D. Jewell, Inc., at any time, and take effective action, when required, to enforce these instructions. (b) Sign copies of the notices attached hereto marked "Appendix All and "Appendix B." (c) The corporate Respondent shall post said notices at each of its plants in Gainesville, Georgia, and vicinity. Copies of such notices, t be-furnished by the Regional Director for the Tenth Region, shall, after being signed by the corporate Respondent and the individual Respondents, respectively, be posted by the corporate Respondent immediately upon receipt thereof,i6nd maintained by it for sixty (60) days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by all the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Tenth Region, in writing, within ten (10) days from the date of this Order 18 what steps the Respondents have taken to comply herewith. IT Is FURTHER ORDERED that the complaint, insofar as it alleges that the individual Respondents Marvin Allen, Taylor Bennett, 8 In the event this Order is enforced by decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Leonard Cagle, Thomas Decking, Earl Stephens, Fletcher Whitmire, Veston Williams, Ed Pierce, George Van Giesen, and Ernest Cantrell violated Section 8 (a) (1) of the Act be, and it hereby is, dismissed. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : All our employees are instructed that physical assaults or threats of physical assault intended to discourage membership in or concerted activity on behalf of AMALGAMATED MEAT CUT- TERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL, or any other labor organization, will not be permitted in and about our property at any time, and that effective action will be taken, when required, to enforce these instructions. WE WILL NOT interrogate our employees concerning their union activities, or threaten them with economic reprisal by reason of such activities or promise them benefits if they abstain from union activities. WE WILL NOT authorize, encourage, ratify, or condone physi- cal assaults or threats of physical assault by our employees against other employees or union representatives, intended to discourage membership in or concerted activity on behalf of AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion to form labor organizations, to join or assist AMALGAM ED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. J. D. JEWELL, INC., Employer. By ---------------------- (Representative ) ((Title) Dated------ ------ J. D. JEWELL, INC. 67 This notice must remain posted for 60 days from the date thereof, and must not be altered, defaced, or covered by any other material. Appendix B NOTICE TO ALL EMPLOYEES OF J. D. JEWELL, INC. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify the employees of J. D. Jewell, Inc., Gainesville, Georgia, that : WE WILL NOT engage in physical assaults or threats of physical assault intended to discourage membership in or concerted activ- ity on behalf of AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL, or any other labor organi- zation, and we will not in any like or related manner restrain or coerce said employees in the exercise of the rights guaranteed them in Section 7 of the Act, as amended. WILLIE ANGLIN, WILLIE LEE BARTLETT, JAMES GAZAWAY, DUSTUS (BILL) GOWAN, JAMES H. SMITH, ROBERT SEALEY, J. O. MCLENDON, LEWIS PORTER, ROBERT ROPER, CECIL JARRARD. Dated -------------------- This notice must remain posted for sixty (60) consecutive days, from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon a charge filed on March 16, 1951, and a first amended charge filed on May 9, 1951, by Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, herein called the Union, the General Counsel of the National Labor Relations Board by the Regional Director for the Tenth Region (Atlanta, Georgia), issued a complaint dated May 9, 1951, against J. D. Jewell, Inc., here- in called the Respondent, and 20 individual employees, officials, and supervisors, herein called the Individual Respondents, alleging that the Respondent and Individual Respondents engaged in and are engaging in unfair labor practices affecting commerce within the meaning of Sections 8 (a) (1) and 2 (6) and (7) 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charge, first amended charge, complaint, and notice of the hearing were duly served upon all parties. With respect to the unfair labor practices, the complaint alleges in substance that in the months of February and March 1951, the Respondent and Individual Respondents interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act by (1) interrogation concerning their union activities and sympathies, (2) threats of discharge and other eco- nomic reprisal if they engaged in activities on behalf of or joined the Union, and (3) physical assaults on members and representatives of the Union. The Respondent and Individual Respondents filed answer to the complaint admitting all material allegations with respect to commerce, but denied all alle- gations with respect to unfair labor practices. Pursuant to notice, a hearing was conducted at Gainesville, Georgia, on May 25, 26, 28, 29, 30, 30, and June 1, 1951, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the Union, the Respondent, and all Individual Respondents were represented by counsel. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues in the case. At the close of the hearing, motion by the General Counsel to conform the pleadings to the proof was allowed without objection. Counsel for all parties waived oral argument. All parties were informed by the Trial Examiner con- cerning their right to file written briefs and proposed findings of fact and con- clusions of law. All briefs, proposed findings of fact, and conclusions of law filed by the General Counsel, the Union, the Respondent, and Individual Respond- ents have been given due consideration. Based upon the entire record and my observation of the witnesses in the case, I make the following : FINDINGS OF FACT 1. BUSINESS OF RESPONDENT J. D. Jewell, Inc., is a Georgia corporation having its principal place of busi- ness in the city of Gainesville, Georgia. It engages in the processing and sale of poultry products and byproducts, and operates a fleet of refrigerator trucks over the highways of the several States. During the year ending May 1, 1951, it processed and sold products exceeding $1,000,000 in value. More than 90 percent of its output in volume and value was shipped to customers' outside the State of Georgia. The Respondent is, therefore, engaged in commerce within the meaning of the Act. Because it is an enterprise engaged in producing and handling goods destined for out-of-State shipment valued in excess of $25,000 per annum, the Board assumes jurisdiction in this case.' By reason of their employment in the business of the Respondent, the Indi- vidual Respondents are also engaged in commerce within the meaning of the Act. HI. THE UNFAIR LABOR PRACTICES A. Organization and management Installations of the Respondent in Gainesville and vicinity include the jointly occupied main office and freezer plant on Church Street, the processing plant at the old airport, the byproducts plant, and the hatchery. 1 Stantalaus Implement & Hardware Co., Ltd., 91 NLRB 618. J. D. JEWELL, INC. . 69) Officials of the Respondent include Jesse D. Jewell, president; George Van. Geisen , vice president in charge of feed department and field work ; Howard Fuller, vice president in charge of the hatchery department ; R. H. Conway, secretary and office manager ; Charles H. Hearn, plant superintendent ; and Bunyan Bagwell, manager of the freezer plant and transportation. Charles J. Thurmond, a practicing attorney-at-law, is vice president, treasurer, and general counsel. Other supervisors within the meaning of the Act, as of March 15, 1951, in- clude C. O. Cummings, superintendent of the byproducts plant ; Robert Sealey, day superintendent at the processing plant ; Jesse Brown, night superintendent at the processing plant ; and Foremen William A. Barefield, Coleman Dunagan, Hoyt Dunagan, Robert Peeples, Haskell C. Stratton, Jr., Joe M. Terrell, Ben Underwood, Phillip Westmoreland, Elmer Peck, C. J. Murphy, and Cecil Jarrard.' Other Individual Respondents include Lewis Porter, personnel director ; Rob- ert Roper, stock clerk ; J. O. McLendon, senior employee and maintenance man at the hatchery ; Ed Pierce, serviceman for the breeder flock ; Willie Lee Bart- lett, freezer plant employee ; and over-the-road truck drivers Marvin Allen, Wil= lie Anglin, Taylor Bennett, Leonard Cagle, Ernest Cantrell, Thomas Decking, James Gazaway, Dustus (Bill) Gowan, James H. Smith, Earl Stephens, Fletcher Whitmire, and Veston Williams. The truck drivers are employed in the trans- portation department under the supervision and control of Manager Bunyan. Bagwell with headquarters at the freezer plant, where a dispatcher' s office is maintained. B. Negotations for an election In February 1951, Harold Reid and other employees of the Respondent inter- viewed International Organizer William Katz with respect to forming a labor organization. On or about February 19, 1951, Katz addressed a letter to the Re- spondent requesting recognition of the Union as bargaining representative. Thereafter, the Union filed a petition with the Board for an election limited to maintenance and production employees, and designated Robert Ackerman, in- ternational representative, to assist Katz in completing an organization. Acker- man arrived in Atlanta on March 3, 1951, and by telephone arranged for a con- ference with the Respondent in Gainesville to discuss the possibilities of a con- sent election. At the conference on March 5, 1951, the Respondent insisted on a bargaining unit to include over-the-road truck drivers and all other employees- The Union agreed, and a consent election was called in the processing plant at the airport for March 15, 1951, between shifts from 4 to 8 p. in. C. Interference, restraint, and coercion 1. Antiunion activity Prior to the election, President Jewell made a speech to his employees at the processing plant voicing his opposition to the Union and outsiders inter- vening between the Respondent and its employees. Following this speech Foreman Cecil Jarrard stated in the presence of James Lingerfelt and other employees that Mr. Jewell was going to give the employees a 7 percent raise in pay, and was also working on a retirement plan, but if the Union came in all of it would be dropped. On another occasion Jarrard said that it would cost from $25 to $40 to join the Union, and it could impose fines from $25 to $50 for failure to attend meetings. Sam Qualls heard him say that the Union ' Jarrard was appointed foreman of the cleanup crew on February 26, 1951. 215233-53-6 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would not do the employees any good, and that some would probably be laid ,off if it came in. William G. Sailers heard Individual Respondent J. O. Mc- Lendon at the hatchery frequently express his opposition to the Union and say that he would not work union labor or union sympathizers.3 J. B. Shields, assistant foreman in the picking department interrogated employee Zora Lee Bond, concerning her attendance at union meetings C. O. Cummings, superin- tendent of the byproducts plant, interrogated employee Frank Satterfield as to what he and the other boys thought about the Union. Joe Brewer, assistant foreman in the eviscerating department, inquired of employee Velva Townley, on the day of the election, whether she favored the Union. The "Cookie Jar," an independent restaurant just outside the processing plant gate, became a center of union and antiunion activity. A fight occurred there at midnight, shortly before the election, between Lula Sweat and Wanda Fay Gibbs. Robert Acker- man and other union adherents had remonstrated with Lula Sweat for renounc- ing her affiliation with the Union. The rumor was spread that a union repre- sentative had assaulted the girl. The facts concerning this incident were not clearly established, but antagonism between the two factions was stirred up. In the forenoon of election day, March 15, 1951, a group of over-the-road drivers in the office of Manager Bunyan Bagwell at the freezer plant discussed the possibilities of whipping International Representative Robert Ackerman' Individual Respondent Dustus (Bill) Gowan asked Manager Bagwell what would happen if they whipped him. Bagwell laughed and said nothing would happen- that Mr. Jewell would take care of them-and would make people sorry if they voted for the Union. In his own testimony Bagwell admitted that he said "Bill, as long as you stick to personal affairs-don't involve me or the Company whatever-it is plumb all right with me. You can whip any of them or all of them if you want to, as long as you stick to personal things." This state- ment was made in the presence of Individual Respondents James Gazaway and Leonard Cagle. Robert Ham, John J. Sosbee, and possibly other employees, were also present. Thereafter, Bunyan Bagwell was in company with his truck drivers throughout the day in the vicinity of the polls, at the "Cookie Jar," and in his office at the freezer plant that night when the ballots were counted and a riot occurred. He cautioned the truck drivers not to start any trouble around the polls because it might invalidate the election-saying there was time later on for that. Harold Reid, Edward Roper, Roy Bennett, Jim Knight, and union officials Roy Scheurich, William Katz, and Robert Ackerman distributed union handbills at the plant gate during the noon hour on March 15, 1951. At the same time Individual Respondents Dustus (Bill) Gowan, Willie Lee Bartlett, and others passed out antiunion leaflets signed by "POULTRY WORKERS ANTI-LABOR UNION ORGANIZATION COMMITTEE." When requested to identify the committee, Bill Gowan said "We are the truck drivers from the Jewell Company." He demanded an explanation why over-the-road truck drivers had been included in the bargaining unit, and said "We belong in a Teamsters Union and not in a God damned Meat Cutters Union." At this point the argument was broken off by departure of the union representatives to negotiate a voting eligibility list. Later in the afternoon a group of the truck drivers in the automobile of Individual Respondent Willie Anglin stopped Robert Ackerman near the polls, and resumed the argument concerning inclusion of over-the-road truck drivers S McLendon was work leader at the hatchery. * See testimony of John J. Sosbee and Bunyan Bagwell. Cross-examination of Sosbee as an adverse witness was permitted, because of his, reluctance to testify and admitted opposition to the Union. J. D. JEWELL, INC. 71 In the bargaining unit. Charles J. Thurmond, vice president and general counsel of the Respondent, drove up, and Ackerman requested him to explain the situ- ation. His explanation was accepted, and some of the truck drivers remarked to Ackerman, "We knew it all the time. We were pulling your leg." Thereupon, Ackerman invited the entire group to have coffee with him at the nearby "Cookie Jar." One said, "q. K. Come on. Spend some of that union money on us," and all accepted the invitation. 2. A tempest in the "Cookie Jar" Upon arrival in the "Cookie Jar," Robert Ackerman sat down at tables with the truck drivers, and ordered 13 cups of coffee for them and their associates. By reason of the election the group and a large number of others loitered there the remainder of the afternoon. Other representatives of the Union were in another room of the building. Arguments concerning the Union were renewed by the truck drivers, and some asserted that Mr. Jewell had assured them there would never be a labor union in his plants Ackerman was asked, "Why don't you go back where you came from ? Nobody sent for you." Individual Respondent James H. Smith inquired what damned church he belonged to. Ackerman resented aspersions on his nationality and religion, and said there was going to be a fair election even if it is in the State of Georgia, ' and that religion doesn't enter into it. Both men used profane language, and Individual Respondent James H. Smith attempted to fight, but was restrained by other members of the group. One fellow kept saying, "Let him talk." Individual Respondents George Van Geisen and Ed Pierce came in late, stood over against the window overlooking the airport but took no part in the arguments. Reference was made that Vice President Van Geisen was present. Finally the proprietor broke up the argu- ments by ordering all of them out of his restaurant. Ackerman then joined his union associates in another part of the building, and the disturbance subsided. In the course of the afternoon, John J. Sosbee heard Bill Gowan point out Harold Reid and say, "There is my meat." Bill Gowan also remarked to Edward Roper, an election observer for the Union, that he would pull his red coat off and beat hell out of him before night. At, approximately 8 p. in. it was announced that the voting was completed, and that the ballots would' be counted at the downtown office of the Respondent. Thereupon the crowd at the "Cookie Jar" dispersed. D. Riot on Church Street 1. Description of the premises The building occupied jointly by the Respondent as offices and freezer plant is situated on Church Street between Maple Street and the railroad tracks. The Respondent maintains a parking lot at the Maple Street end of the build- ing. An alleyway at the rear leads to the office of Manager Bunyan Bagwell. His office is also headquarters for over-the-road truck drivers under his super- vision and control. It serves as a dispatcher's office and remains open 24 hours a day. A corridor through the building leads from a doorway on the alley past Bagwell's office to a personnel office in front and onto the first landing of a broad stairway leading from the double-door entrance from Church Street to' the staff offices on the second floor. Church Street alongside the building is approximately 311/2 feet wide including a narrow sidewalk next to the building. Across Church Street in a parallel position stands the Davis-Washington Build- ing without curb or sidewalk. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The ballot count In advance of the election officials, Charles J. Thurmond and Roy Scheurich proceeded to the Jewell Building to set up a counting room. They entered through the Church Street entrance and peered into the corridor and personnel office to the left of the stairway and then went upstairs. At that time they saw no one in the building except President Jesse D. Jewell It work in his office upstairs. A conference room at the head of and overlooking the stairway was selected and set up as the place to count the ballots. Ed Pierce arrived and was designated as doorkeeper at the main entrance with instructions to admit only authorized personnel. Harold Reid, Edward Roper, and Robert Ackerman arrived in a Hudson automobile with William Katz, and parked the car adjacent to the wall of the Davis-Washington Building on Church Street facing towards the railroad at the intersection of Maple Street diagonally across from the main entrance of the Jewell Building. Other arrivals parked their cars in the park- ing lot and along both sides of Church Street. Approximately 15 people were admitted to the counting room and a few company officials waited in their offices in the building. Late comers observed some of the truck drivers and other em- ployees in the corridor and personnel office to the left of the stairway. When all authorized persons had entered, Ed Pierce locked the entrance doors and went into the counting room. Before the counting was completed, Superintendent Robert Sealey and Foreman Robert Peebles came to the main entrance, found the door unlocked, and entered the building. Peebles went into the corridor and personnel room to the left, and Sealey went upstairs to the door of the counting room. There he learned that the Union had a substantial lead in the counting, and went into the offices where officials of the Respondent were awaiting the result of the ballots. Within a few minutes President Jewell left the building, and Sealey accompanied him outside the entrance doorway. In leaving the building, Mr. Jewell paused at the first landing where truck drivers and others were assembled in the personnel room, and said "Boys, keep your chin up. Everything will possibly be all right." Sealey was in the group. From that point, Robert Sealey's testimony con- cerning his actions was somewhat vague and his memory obscure. He could not identify any of the employees on the stairway or outside the building with whom he was associated except Robert Peebles and Joe Reid. He did recall being again in the offices upstairs, and heard Charles J. Thurmond tell President Jewell by telephone that the election had been lost. He also called a secretary of Vice-President Van Geisen and told her about it. Then he was back in the street with Robert Peebles and Joe Reid arranging for two girls to be taken away in Peebles' automobile. He saw that a crowd of people had assembled in Church Street directly in front of the building entrance, but never identified any of them. Dolly May Wilkerson, an observer for the Union, credibly testified that when she and Betty Burrell, an observer for the Respondent , reached the street Iii advance of others from the counting room, Robert Sealey directed them to an automobile, and said "Girls, you better go on and get in the car because there is Hell going to be raised." Others in the street were saying the same thing, and she observed the Individual Respondent James H. Smith in the assembled throng. She and Betty went to the car and waited about 30 minutes until Sealey and Peeples arrived and drove them to the plant at the old airport. Upon getting in the car, Sealey said "I guess they got what they wanted. They ain't got what they think. As far as the one dollar an hour, they won't get it." Betty Burrell testified that Sealey and Peeples escorted them to the car, and then turned back to see what the trouble was when they heard a commotion in J. D. JEWELL, INC. 73 the street. Upon their return in few minutes, she inquired whether anybody was hurt, and Sealey said he thought one of the union men was hurt 6 3. Attack on union representatives A tally of the ballots was completed at approximately 10 p. m., and the group in the counting room slowly dispersed . The Union won the election by a sub- ^stantial majority . Roy Scheurich , Harold Reid , and Edward Roper descended the stairs, and were met at the doorway by an angry mob. Various witnesses estimated that 35 to 50 men were milling around in the street adjacent to the building entrance. Scheurich was knocked to the ground on the sidewalk 4 or 5 steps outside the door , but managed to crawl back into the building with his glasses hanging from one ear . Harold Reid and Edward Roper were attacked in the doorway by persons striking and attempting to pull them to the outside. The crowd was yelling, "Come on out." From the stairway inside , Robert Ackerman perceived the commotion and appealed to Charles J. Thurmond for protection . Thurmond ran downstairs and appealed to the crowd to break it up and let the union people alone. Harry Nix, a policeman, appeared at the door, and Thurmond requested him to prevent trouble and assist the union representatives in getting away in their cars. Vice-President Van Geisen pulled Harold Reid back inside the door , and held him against the wall away from his attackers . Two policemen were present, and there was a slight lull in the attack. Thurmond and Van Geisen announced that police protection was present and urged the representatives to proceed to their automobiles. The group was now congested at the foot of the stairs , and there was pushing and shoving to get away. Roy Scheurich shielded by Van Geisen moved to the left along the sidewalk next to the wall of the building and reached the parking lot. From there he drove away with Roy Bennett and Jim Knight to the police station seeking additional police protection. William Katz reached his car across the street and sat under the steering wheel with motor running, and awaited the arrival of his associates . Harold Reid was struck several times, but reached the car and got in the front seat beside Katz. Edward Roper and Robert Ackerman did not fare so well, because the attack of the mob was directed chiefly at them. Roper was cornered by the crowd with his back to the wall of the Davis-Washington Building near the rear of the Katz car. Van Geisen went to his assistance and held him away from the mob. Members of the mob were urging Van Geisen to turn him loose so they could get at him. Katz opened the left front door of the car and Roper was pulled in over the wheel into the back seat. Katz was attacked through the open door and his coat torn by members of the mob. While under attack, Robert Ackerman had reached the right hand rear door of the car, but had difficulty in opening it. It was locked. He was beaten to the ground , and was crying out for help . He appealed to one of the policemen , who said , "There is nothing I can do ." One of the policemen said, "Even your own folks won't let you in the car." 6 Van Geisen grabbed Ackerman and tried to carry him away to another car, but Ackerman insisted on getting in the car with Katz . The police urged that he go with Van Geisen. Finally the door was opened by those inside the car, and Ackerman scrambled into the back seat. Three of the glass windows of the car were smashed by the mob and there were cries of "Turn the car over ." Some yelled , "Get Bill Katz out of the car ." When Ackerman was in , Katz drove away across the railroad 6 Robert Peeples did not testify as a witness. 4 See testimony of Raymond Boswell , Lloyd Ash, and Sam Qualls. 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and took the highway to Atlanta. Driving at full speed, he eluded his pursuers, but one car, later identified as the Cadillac of the Individual Respondent Willie Anglin, chased him to the outskirts of Atlanta. Upon departure of the Katz car the mob quickly dispersed, and the parked automobiles disappeared in all directions. Charles J. Thurmond, George Van Geisen, Ed Pierce, Clyde Peck, Robert Sealey, Robert Peeples, and two election officials remained upon the scene. Van Geisen picked up the glasses of Robert Ackerman from the street, and handed them to one of the election officials. Roy Scheurich, Roy Bennett, and Jim Knight drove up in a Ford coupe followed by a police car with additional policemen. When Scheurich inquired as to the whereabouts of his union associates, Van Geisen said "They are probably in the river by now." When the mob dispersed Individual Respondent Dustus (Bill) Gowan limped into the office of Manager Bunyan Bagwell with a bruised hand, and told him "Some son-of-a-bitch hit me across the hand with a blackjack. When he hit me, I stumbled and hit my ankle." Thereupon, Bagwell ran out through the alley around the building and saw cars taking off in every direction. He also heard someone holler. Then he went home. Raymond Boswell, Lloyd Ash, and Sam Qualls in a parked automobile at the intersection of Church and Maple Streets heard a commotion in the street. They got out and stood in the shadow of a building and observed what happened. Boswell identified the Individual Respondents Robert Roper, Cecil Jarrard, and Robert Sealey. He saw Ilcbe t Sealey kick Robert Ackerman, and observed that the police did little or nothing to stop the rioting. He heard one of the police say "Your own people don't want you to get in the car with them." He heard someone say "Let's turn the car over," and slamming against the Katz car. Ash identified Willie Anglin, Dustus (Bill) Gowan, Robert Sealey, Lewis Porter, Cecil Jarrand, and Robert Roper. He saw three unidentified men with pieces of rubber hose, and one with a blackjack. He saw Robert Sealey kick Robert Ackerman, and Lewis Porter slap at him. He heard Cecil Jarrard and Robert Roper say "Turn it over" ; and someone hollered "Get Bill Bata out of the car." He observed that the police were urging Ackerman to get in his car before he got killed. Qualls identified Robert Roper, Lewis Porter, Robert Sealey, and Cecil Jarrard. He observed that the police just stood around, did not try to stop the fighting, and heard one of them say "Even your own folks won't let you in the car." ' James Lingerfelt credibly testified that Foreman Cecil Jarrard returned to the "Cookie Jar" that night after the riot and remarked to union adherents that they had won the Union, "but didn't have no union men." He said "they was in Atlanta if they didn't turn over before they got there." 8 Individual Respondent Lewis Porter, personnel director of the Respondent, admitted that he became involved in the mob around Robert Ackerman, was hit in the mouth and had his-hat knocked off, and then stood outside the crowd because it got too rough for him. He denied striking or kicking Ackerman, and could not identify anyone who participated in the fighting. He recognized several people who were not participating. Individual Respondent Robert Roper admitted that he and Ernest Cantrell passed out antiunion handbills on the eve of the election. Some unknown person had placed them in his car, and Bill Gowan first showed them to him that after- noon at the office. He later acted as observer for the Respondent at the elec- tion, helped count the ballots, but knew nothing about the "Poultry Workers 4 No policeman appeared as a witness. 9 Cecil Jarrard did not appear as a witness. J. D. JEWELL, INC. 75, Anti-labor Union Committee." He was present during the rioting, and identified James Gazaway and Willie Bartlett in the crowd at the door. He is an inven- tory clerk under the supervision of Vice-President Van Geisen, performs his duties in the personnel office space, and carries a key to both the personnel office and the front entrance. He could not identify anyone participating in the fighting, and denied any remarks about turning the car over, although he was personally acquainted with most of the truck drivers who daily frequented his office. At the hatchery on the morning of March 16, 1951, Individual Respondent J. O. McLendon was accused of participating in the riot and hitting Harold Reid. In the presence of Lamar Reynolds, William G. Sailers, and Ernest Ledford, he denied striking Reid, but admitted that he kicked the union man.' F. Meeting at the freezer plant-Dfarch 16, 1951 On the morning after the riot a group of truck drivers and other employees assembled at the freezer plant in the personnel office and the dispatcher's office occupied by Bunyan Bagwell. Among those present were Robert Roper, James H. Smith, Dustus (Bill) Gowan, Cecil Jarrard, Jesse Brown, Willie Anglin, Lewis porter, Robert IIam, and John J. Sosbee. Individual Respondent James H. Smith exhibited bruised hands. It was a subject of discussion that Willie Anglin had chased the union men to Atlanta in his Cadillac car, and ran a Lincoln off the road by mistake. Everybody laughed and thought it was a good joke. President Jewell came in the personnel office, and expressed his surprise at the election results. To Cecil Jarrard, he said "Cecil, I thought everybody would stick by me." To Jesse Brown he said "I didn't think the voting would go the way it did." 10 Night Superintendent Jesse Brown asserted that he didn't think the night shift voted the Union in. Personnel Director Lewis Porter said that the union people could be weeded out and the Union broken up. According to the witness Sosbee, and denied by Jewell, President Jewell said that he could take five men in Gainesville and start a small revolution and "When I start something, I go through with it." Truck driver James H. Smith spoke up and said there was plenty of time for that yet. Sosbee also testified that President Jewell inquired why they let them get away, and said "Leave them alone until things quiet down a bit." Jewell denied these remarks, and testified that he was hurt and humiliated by what had happened, and did not know about the riot until he ar- rived at the office that morning. Nevertheless, he made no investigation to apprehend the guilty employees or take any action about the affair. Concluding Findings Whether or not the speech of President Jewell to his employees exceeded the bounds of free speech, it is certain that resentment against the union organizers was inspired by reference to outsiders coming in to run his business. The statement of Foreman Cecil Jarrard, following the speech, with refer- ence to proposed increases in pay and a retirement plan contained both a promise of benefits to abstain from union activities, and a threat of retaliation if the Union came in." It is not clear whether J. O. McLendon, J. B. Shields, and Joe Brewer were supervisors within the meaning of the Act, and their interference with, restraint, and coercion of employees by threats and interrogation is not relied upon to ° J. 0. McLendon did not testify as a witness 10 Testimony of Robert Roper. 11 Allred Materials Corp., 95 NLRB 1064. '76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD support a finding of unfair labor practices, except to the extent that their anti- union activities indicate a pattern of conduct encouraged, and approved by the Respondent. The interrogation of employee Frank Satterfield by Superintendent Cummings constituted interference, restraint, and coercion by inquiring into the personal affairs of employees concerning their union activities." It is clearly established by a preponderance of the evidence that the over-the- ;road truck drivers of the Respondent spearheaded a violent antiunion campaign in the name of "Poultry Workers Anti-labor Union Committee" with the full 'knowledge, encouragement , and collaboration of their supervisor, Bunyan Bag- well , manager of the freezer plant and transportation . By collaboration and promises of immunity Bagwell fixed the Respondent with responsibility for their violent antiunion activity, which cannot be avoided by asserted limitation to the personal affairs of any or all of those engaged therein. Identified as par- ,ticipating in either or both the antiunion activities and riot on March 15, 1951, were the Individual Respondents Willie Anglin, Willie Lee Bartlett, Ernest Cantrell, James Gazaway, Dustus (Bill) Gowan, and James H. Smith. Identified as encouraging and participating in the action of the mob and assaulting Robert Ackerman were the Individual Respondents Robert Sealey, J. O. McLendon, and Lewis Porter. Identified also as encouraging and participating in the action of the mob were the Individual Respondents Robert Roper and Cecil Jarrard. Consequently, I find that each of them engaged in an unfair labor practice in violation of the Act. The Individual Respondents Marvin Allen, Taylor Bennett, Leonard Cagle, Thomas Decking, Earl Stephens, Fletcher Whitmire, and Veston Williams, were not identified in the antiunion activities of the truck drivers or participation in 'the assaults upon union representatives. It will be recommended, therefore, that the complaint as to them be dismissed. Although present at the scene of the riot, I cannot find by a preponderance of 'the evidence that the Individual Respondent Ed Pierce encouraged or par- ticipated therein, and shall therefore recommend that the complaint as to him be dismissed. I credit the testimony of George Van Geisen that he was absent from Gaines- ville on March 15, 1951, until he appeared at the "Cookie Jar" about 5 p. in., and was not cognizant of the antiunion activities of the truck drivers with whom he had little contact as vice president in charge of the feed department and field -work. I credit his testimony that his participation in the riot extended only to efforts to protect the union representatives from injury at the hands of the mob. It will , therefore, be recommended that the complaint as to him be dismissed. By reason of the collaboration, encouragement, and promise of immunity from disciplinary action by its manager of freezer plant and transportation, ,Runyan Bagwell ; the subsequent participation of its agents, supervisors, and employees in antiunion activities and assaults upon union representatives Robert Ackerman, Roy Scheurich, William Katz, Harold Reid, and Edward Roper ; and condonation and ratification of the unlawful acts of its agents and employees by failure to inquire into, investigate, or take affirmative disciplinary action against the guilty individuals, I find that the Respondent engaged in and is engaging in an unfair labor practice in violation of the Act'' ss Standard-Coosa -Thatcher Co., 85 NLRB 1521. 13 See : The American Thread Company , 94 NLRB 1699 ; Fred P. Weissman Co., 71 NLRB 147; Donnelly Garment Co., 50 NLRB 241; Taylor Colquitt Co., 47 NLRB 225; Yale Filing Supply Co ., 91 NLRB 221; F. B. Law and Son, 92 NLRB 826. J. D. JEWELL, INC. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 77 The activities of the Respondent and Individual Respondents set forth in Section III, hereof, occurring in connection with the operations of the Respondent described in Section I, hereof, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. ' V. THE REMEDY It having been found that the Respondent, J. D. Jewell, Inc., and its agents, the Individual Respondents, Willie Anglin, Willie Lee Bartlett, Ernest Cantrell, James Gazaway, Dustus (Bill) Gowan, James H. Smith, Robert Sealey, J. O. McLendon, Lewis Porter, Robert Roper, and Cecil Jarrard, have engaged in certain unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies, of the Act. It having been found that the Respondent interrogated its employees con- cerning their union activities, and threatened economic reprisal if the Union came in, it will be recommended that the Respondent cease and desist therefrom. Having found that the Respondent authorized, encouraged, ratified, and con- doned physical assaults upon union representatives and other antiunion activi- ties and demonstrations engaged in by certain Individual Respondents, which interfered with, restrained, and coerced other employees in the exercise of the rights guaranteed by Section 7 of the Act, I shall recommend that both the Respondent and named Individual Respondents cease and desist from such practices. Violations of the Act herein found are, in the opinion of the Trial Examiner, persuasively related to other unfair labor practices proscribed by the Act, and future acts of a like nature are anticipated from the past conduct of the Re- spondent and the named Individual Respondents. The preventive purposes of the Act will be thwarted unless the order is coextensive with the threat. To prevent a recurrence of such unfair labor practices and effectuate the policies of the Act and minimize industrial strife burdensome and obstructive to com- merce, it will be recommended that the Respondent cease and desist from in any manner infringing the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent and named Individual Respondents have engaged in and are engaging in unfair labor prac- tices within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.]