Mayfield 's Dairy Farms, Inc.

National Labor Relations Board - Board Decisions

Aug 20, 1976

225 N.L.R.B. 1017 (N.L.R.B. 1976)

MAYFIELD'S DAIRY FARMS, INC. 1017
Mayfield 's Dairy Farms, Inc. ,and Jerry Newman and
Don Kirksey . Cases 10-CA-11756-1 and 10-CA-
11756-2
August 20, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On June 17, 1976, Administrative Law Judge Eu-
gene George Goslee issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief I
and has decided to affirm the rulings, findings' I and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Mayfield's Dairy Farms,
Inc., Athens, Tennessee, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
i The request for oral argument by the Respondent is hereby denied as
the record and briefs adequately present the issues and positions of the
parties
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GOSLEE, Administrative Law Judge:
These consolidated cases came on to be heard before me
on May 5, 1976, at Athens, Tennessee, upon a complaint I
issued by the General Counsel of the National Labor Rela-
tions Board and an answer filed by Mayfield's Dairy
Farms, Inc.,' hereinafter called the Respondent. The issues
raised by the pleadings relate to whether or not the Re-
spondent violated Section 8(a)(1) of the Act by interrogat-
ing its employees about their union activities and interests
and by threatening its employees with reprisals if they en-
gaged in union activities. Briefs have been received from
the General Counsel and the Respondent, and have been
duly considered.
Upon the entire record in this proceeding, and having
observed the testimony and demeanor of the witness, I
hereby make the following:
FINDINGS OF FACT
1. PRELIMINARY MATTERS
(Commerce, Jurisdiction, and Labor Organization)
The complaint alleges, the answer admits, and I find that
(1) the Respondent is engaged in the production of dairy
products at its facility at Athens, Tennessee; (2) the
Respondent's purchases of goods in interstate commerce
are sufficient to satisfy the Board's standard for the asser-
tion of jurisdiction, and (3) the Respondent is an employer
within the meaning of Section 2(2) of the Act, and is en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act. The complaint also alleges, the answer ad-
mits, and I find that Teamsters Local Union No. 519,
Knoxville and Vicinity, Tennessee, hereinafter called the
Union, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES ALLEGED
The complaint alleges, and the answer denies, one inci-
dent of a threat of reprisal for activities on behalf of the
Union, and six incidents of interrogation of employees
concerning their union membership, activities, and desires.
All of the incidents alleged transpired during the course of
the Union's organizing campaign, and all of the incidents
involved former employees Jerry Newman and Don Kirk-
sey, and the Respondent's acknowledged agents, Carl M.
Hutsell and Dennis Grub.
Don Kirksey testified on direct examination that on or
about October 1, 1975,3 he was approached while in the
employees checkout room by Route Superintendent Carl
M. Hutsell. Hutsell asked Kirksey if he had been ap-
proached about the Union, and if Kirksey had been pres-
sured to sign a union card. Kirksey replied that he had not
been pressured, and explained that he had heard a good
deal about the union activities in the plant, knew that a
union meeting was scheduled, and intended to attend to
see what was going on. Hutsell advised Kirksey not to at-
tend the meeting because it would indicate support for the
Union, and counseled Kirksey that a union would not be
of any benefit to the Company. Kirksey finally replied that
he could not decide one way or another on the issue and
did not know what was going on.
i The order consolidating cases , complaint , and notice of hearing was
issued on March 18, 1976, upon charges filed on February 2, 1976, and duly
served on the Respondent
2 The name of the Respondent appears as corrected at the hearing
' All dates hereinafter are in 1975, unless specified to the contrary
225 NLRB No. 145
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At a later time, on or about October 15, Kirksey was
approached by Hutsell while making a delivery to Harrod's
Supermarket. Hutsell asked if Kirksey had decided how he
stood with the Union, and Kirksey replied that, while he
had given the matter some thought, he had not decided.
Hutsell argued that Kirksey should decide against the
Union, but the latter refused to make any commitment.
Approximately 1 week later, Hutsell again approached
Kirksey at Harrod's Supermarket, and again asked if Kirk-
sey had made up his mind about the Union. Kirksey re-
plied that he had. Hutsell expressed the hope that Kirksey
had decided to vote against the Union, but Kirksey replied
that he did not intend to publicly announce his decision,
that the choice would be by secret ballot and he did not
want to make anyone angry by announcing what he had
decided. Hutsell then cautioned Kirksey that he was one of
the older employees and should speak out against the
Union and denounce it Kirksey replied negatively to the
suggestion, but agreed that it was expected that Hutsell, as
a member of management, would speak out against the
Union.
Jerry Newman, like Kirksey a former employee of the
Respondent, testified that in late September or early Octo-
ber he was called into the office of Shipping Supervisor
Dennis Grub. A conversation ensued about the Union
coming into Mayfield's Dairy, and Grub asked Newman
what he thought about the Union. Newman replied that he
didn't know exactly what to think at that time, but intend-
ed to think the matter over before he voted. Grub inter-
posed his belief that the employees at Mayfield's did not
really need a union, and Newman repeated that he would
think about the matter.
A week or more later Grub again confronted Newman
in the office, and stated that he wanted to know what New-
man thought about the Union. Grub explained that he
didn't know how to talk to Newman, because he didn't
know Newman's feelings about the Union. Newman re-
plied that he intended to vote for the Union, and Grub
answered that he couldn't understand why Newman would
want to vote for the Union, as well as he had made out
with the Company. Newman replied that he had decided to
vote for the Union because of the way things had been in
the immediate past.
Approximately a week later Route Superintendent Hut-
sell came up to Newman in the route sales room and asked
what Newman thought about the Union. Without waiting
for Newman to reply, Hutsell added that he believed the
reason Newman intended to vote for the Union was be-
cause he feared losing his job. Newman conceded that this
was correct. Hutsell then stated that he would appreciate
Newman's vote for the Company.
On the following Saturday, Hutsell again confronted
Newman, expressed that Newman ought to vote for the
Company, and asked Newman how many employees
would vote for the Union, and how many would vote for
the Company. Newman conceded that the vote would be
close, and Hutsell stated his belief that the Union would
not receive over 30 votes.
Kirksey and Newman were both subjected to strenuous
cross-examinations, and basically adhered to their version
of the conversations with Hutsell and Grub as related on
direct examination. Kirksey did explain on cross-examina-
tion that in his first conversation with Hutsell the latter
remarked that he had heard of some incidents where em-
ployees were pressured to sign union cards, and expressed
the belief that some employees had signed cards without
knowing their significance. Kirksey acknowledged a long-
standing and friendly relationship with Hutsell, and New-
man made a similar acknowledgment with respect to both
Grub and Hutsell.
Hutsell was called to testify by the Respondent and gen-
erally denied that he interrogated or threatened any em-
ployee. According to Hutsell, neither he nor Kirksey
worked on October 1, 15, or 22, so that, according to
Hutsell's version, he could not have talked to Kirksey on
those dates. Hutsell did admit that he met Kirksey at
Harrod's Supermarket on October 21, at which time he
reminded Kirksey of how good the Company had been to
him, and solicited Kirksey to vote against the Union. Hut-
sell also admitted to having had a conversation with New-
man, on a date unrecalled, but, according to Hutsell, New-
man approached him on several occasions to comment
about the Union or other matters. On one particular occa-
sion Newman stopped Hutsell and asked if employees
would be fired because of their union activities. According
to Hutsell, he assured Newman that no one would be dis-
charged because of union activities.
I cannot credit Hutsell's testimony, which was unrespon-
sive, rambling, and interspersed with self-righteous and
self-serving declarations Hutsell was several times cau-
tioned by Respondent's counsel, as well as by the Adminis-
trative Law Judge, but he persisted in giving a rambling
dialogue totally unresponsive to the questions asked.'
I find the testimony of Shipping Supervisor Dennis Grub
no more credible than that professed by Hutsell A consid-
erable portion of Grub's testimony was directed to estab-
lishing his close personal relationship with Newman and
the existence of a longstanding friendship. Like Hutsell,
Grub denied that he instituted any conversations with
Newman about the Union, and testified that, while such
conversations did occur, they were always initiated by
Newman. I discredit Grub's testimony.
As a part of its defense, the Respondent adduced testi-
mony from its personnel manager, Bill Akins, that on Sep-
tember 22 the Union made a demand for recognition.
While the Respondent did not further pursue this matter it
is assumed that it contends that the interrogations were
privileged as a means to determine whether the Union ac-
tually represented a majority of the employees in the bar-
gaining unit. Factually the defense has no merit. Assuming
an initial demand for recognition, the majority of the inter-
rogations occurred after October 16, the date on which the
Respondent and the Union signed a consent agreement for
an election, so that the interrogations could not have been
conducted for the purpose of determining the Union's
claim of majority status. Legally, the defense of privileged
interrogations to determine the merits of a claim of majori-
The evidence that neither Hutsell nor Kirksey worked on October 1, 15,
or 22 is not persuasive that the interrogations did not occur Both employees
testified that the interrogations took place on or about the dates alleged in
the complaint
MAYFIELD'S DAIRY FARMS, INC. 1019
ty status is equally unmeritorious . No explanation was giv-
en to the employees as to the reason for the interrogations
and it is certain that they were not given any assurances
against reprisals . Accordingly , even if I could find that the
Respondent 's defense had merit on the facts, its reliance on
the rule of Blue Flash 5 and related cases is badly mis-
placed.
Secondly the Respondent contends that , assuming ar-
guendo that the interrogations took place, they did not rise
to the level of interference , restraint , and coercion because
they were unaccompanied by any threats , and took place
in the course of friendly conversations between old ac-
quaintances . It is not the law that an interrogation must be
accompanied by other unfair labor practices before it rises
to a violation of the Act .' Nor does the existence of a per-
sonal friendship between the interrogator and the employ-
ee being interrogated legalize conduct which is otherwise
unlawful . On the contrary , an interrogation by a friendly
supervisor may have a far more coercive impact than an
interrogation by a hostile agent of management .? Unlike
the factual situation in Mitchell Standard Corporation,8
which the Respondent relies on , the interrogations here
were not limited to a mere attempt to determine the
employee's union sentiments , but were accompanied by so-
licitations to reject the Union and publicly supports the
Company's antiunion campaign.
The Respondent further contends that some of Hutsell's
remarks to Newman in which he solicited Newman's vote
against the Union were privileged under Section 8(c) of the
Act. I agree that the solicitation of Newman to vote against
the Union , unaccompanied by any threat of reprisal, is not
a violation of the Act. This does not, however, provide any
reason to find that the accompanying interrogations of
how Newman and his fellow employees felt about the
Union was lawful . The questioning of an employee as to
his union sympathies and how he intends to vote in a
Board conducted election is not the expression of "any
views , argument or opinion."
Finally, the Respondent contends that, even if the inter-
rogations took place, they were isolated, and cannot justify
a remedial order. In support of this contention the Respon-
dent argues that 190 employees were involved in the cam-
paign and election , the alleged unlawful conduct was limit-
ed to 2 of 25 company supervisors, and the Respondent is
not charged with any other unfair labor practices.
I find the Respondent 's contentions unavailing. There
were seven separate interrogations , unexplained by any le-
gitimate reason, unaccompanied by any assurances against
reprisal , and obviously conducted as an integral part of the
Respondent 's admittedly intensive campaign to defeat the
Union. The interrogations were neither isolated nor incon-
sequential, and a remedy is obviously necessary.'
I find , and conclude accordingly , that the Respondent
5 Blue Flash Express, Inc, 109 NLRB 591 (1954)
6 Blue Flash Express, supra at 593
7 Wichita Eagle & Beacon Publishing Company, Inc, 199 NLRB 360, 370
(1972), Caster Mold & Machine Company, Inc, 148 NLRB 1614, 1621
(1964)
8 Mitchell Standard Corporation, 140 NLRB 496, 506-507 (1963)
9 See Carolina American Textiles, Inc, 219 NLRB 457 (1975), and cases
cited therein
violated Section 8(a)(1) of the Act by the conduct of its
agents, Carl M. Hutsell and Dennis Grub, in interrogating
employees Don Kirksey and Jerry Newman. I further find
and conclude , however, that the General Counsel has not
proved as alleged that on or about October 1 the Respon-
dent threatened its employees with reprisal . Hutsell coun-
seled Kirksey not to attend a union meeting because it
would display his sympathy, but the statement was unac-
companied by any threat.10
THE REMEDY
Having found that the Respondent violated Section
8(a)(1) of the National Labor Relations Act by interrogat-
ing its employees concerning their activities , sympathies,
and interests with respect to Teamsters Local Union No.
519, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action to rem-
edy the unfair labor practices and effectuate the policies of
the Act.
CONCLUSIONS OF LAW
I. The Respondent , Mayfield 's Dairy Farms , Inc., is an
employer within the meaning of Section 2(2) of the Act,
and is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union, Teamsters Local Union No. 519, Knox-
ville and Vicinity , Tennessee , is a labor organization within
the meaning of Section 2(5) of the Act.
3. By interrogating its employees Jerry Newman and
Don Kirksey concerning their activities , sympathies, and
interests with respect to Teamsters Local Union No. 519,
and by interrogating Jerry Newman about the union activi-
ties , sympathies , and interests of his fellow employees, the
Respondent violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact , conclusions of law,
and upon the entire record in this proceeding , and pur-
suant to the provisions of Section 10(c) of the Act , I hereby
issue the following recommended-
ORDER 11
The Respondent, Mayfield's Dairy Farms, Inc, Athens,
Tennessee , its officers, agents , successors , and assigns,
shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their union
101 reject the General Counsel 's demand in his brief, relying on Interna-
tional Harvester Company, 170 NLRB 1074 ( 1968), that I make all findings
of fact and conclusions of law favorable to his case which can be drawn
from the records as a whole , and whether or not alleged or argued, as a
device unbecoming a lawyer, and a packet of arrant nonsense
11 In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities , sympathies , or interests , or the union activities,
sympathies , or interests of their fellow employees.
(b) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action to remedy the
unfair labor practices and to effectuate the policies of the
Act.
(a) Post at its place of business at Athens , Tennessee,
copies of the attached notice marked "Appendix." 12 Cop-
ies of said notice, on forms to be provided by the Regional
Director for Region 10, after being duly signed by the
Respondent's authorized representative, shall be posted by
it immediately upon receipt thereof , and be maintained by
it for 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken to insure
12 In the event the Board 's Order is enforced by a Judgment of the 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 "
that said notices are not altered , defaced , or covered by
any other material.
(b) Notify the Regional Director for Region 10, in writ-
ing, within 20 days of the date of this Order, what steps
have been taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT question our employees concerning
their activities, sympathies, or interests with respect to
Teamsters Local Union No. 519, and WE WILL NOT
question our employees concerning the union activi-
ties , sympathies , or interests of their fellow employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Na-
tional Labor Relations Act.
MAYFIELD'S DAIRY FARMS, INC.