Poultry Enterprises, Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1953

102 N.L.R.B. 211 (N.L.R.B. 1953)

POULTRY ENTERPRISES , INC . 211
All our employees are free to become or remain members of the above-named
union or any other labor organization except to the extent that this right may
be affected by an agreement in conformity with Section 8 (a) (3) of the amended
Act.
Dated ----------------
PARMA WATER LINTER COMPANY,
Employer.
By ----------------------------------
(Representative ) ( Title)
This notice must remain posted 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
POULTRY ENTERPRISES, INC. and AMALGAMATED MEAT CUTIM34 &
BUTCHER WORKMEN OF NORTH AMERICA , LOCAL 442, A . F. OF L.
Case No. 10-CA-1!23. January 14, 1953
Decision and Order
On July 9, 1952, Trial Examiner Sidney Lindner issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent filed
exceptions to the Intermediate Report and a supporting brief.' The
General Counsel and the Union filed no exceptions.
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed 3 The Board has considered the Inter-
I The Respondent 's request for oral argument is denied because in our opinion the record,
exceptions , and brief adequately present the issues and positions of the parties.
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated
its powers in connection with this case to a three -member panel [ Members Houston,
Murdock, and Styles].
The Respondent requests the dismissal of the coinplaipt on the ground that the findings
of the Trial - Examiner- are not supported, by the preponderance of the evideppe and the
Trial Examiner demonstrated bias and prejudice in crediting only those witnesses whose
testimony supported the complaint . It is the Board 's established principle that a Trial
Examiner ' s credibility findings are entitled to great weight , because in resolving conflicting
testimony he is in a position to observe the demeanor of the witnesses . Wood Manufac-
turing Company, 95 NLRB 633; Somerset Classics, Inc., 90 NLRB 1676 . A careful analysis
of the record reveals no bias or prejudice on the part of the Trial Examiner and persuades
us that the Trial Examiner 's findings in this case are supported by the preponderance of
the evidence.
The Respondent contends also that the complaint should be dismissed on grounds relating
to the compliance status of the Local and the International . The fact of compliance by
a labor organization which Is required to comply is a matter for administrative determina-
tiou;;alnl is net 110e4ble4b-tho .Itles. Moreover , the Board is admidistratively satisfied
that the Local and the International are, and have been, in comNia'nce *e all .material,
times. See Sunbeam Corporation, 94 NLRB 844 ; Swift & Company, 94 NLRB 917 ;
cf. Highland Park Manufacturing Company, 340 U. S. 929. We hereby deny the Respond-
ent's motion to dismiss the complaint.
102 NLRB No. 27.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediate Report,' the Respondent's exceptions and brief, and the en-
tire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following
addition : 5
Subsequent to the filing of its exceptions to the Intermediate Report,
the Respondent on October 7, 1952, applied for leave to amend its
answer to the complaint to the effect that it had received from its
employees a statement that 145 of the 149 employees then on the pay-
roll requested the Respondent not to recognize the Union. In the
event the Board does not concede the accuracy of this statement, the
Respondent desires the Board to reopen the record to take further
evidence thereon. Where an employer has, as in the instant case, un-
lawfully refused to bargain with a union which, at the time of such
refusal, represented a majority of the employees, the Board finds it
necessary in order to effectuate the policies of the Act to require the
employer to bargain with the union, despite its failure thereafter to
retain its majority e Consequently, further proof of such loss of
majority could not affect our determination that the issuance of an
order requiring the Respondent to bargain with the union is necessary
to remedy its violation of Section 8 (a) (5). Accordingly, we hereby
deny the application of the Respondent.
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board orders that the Respondent, Poultry Enterprises,
Inc., its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Amalgamated Meat Cut-
ters & Butcher Workmen of North America, Local 442, A. F. of L.,
4 We note and correct the following minor misstatements or inadvertent errors in the
Intermediate Report , none of which affect the Trial Examiner 's ultimate conclusions, or
our concurrence therein :
(1) The Trial Examiner stated that on February 23, 1951, the Union had been authorized
by 73 employees of the 133 in the appropriate unit to represent them The record shows
that 71 employees filed union authorization cards by the specified date
(2) The Trial Examiner found that four of Respondent 's witnesses remembered only
that Martin had said nothing about closing the plant during the meetings called by the
Respondent Although the testimony of these witnesses reveals that they could remember
little else about the meetings , they did testify that Martin had said he would pay as much
as the other plants in the community . Two of them also testified that Martin told the
employees they could do as they pleased about joining or staying out of the Union.
( 1) Marvin Owen should read Marvin Owens.
S The General Counsel contends that ( 1) Bennie Talton 's attendance at a union meeting
on March 6 , 1951 , and (2) a unilateral wage increase in June 1951 were violative of the
Act. The Trial Examiner found it unnecessary to mule on the issue of surveillance by
Talton and concluded that the wage increase was not contrary to the Act As there wer•
no exceptions thereto, we shall not disturb these findings of the Trial Examiner.
6 See Geigy Company , Inc, 99 NLRB 822, and cases cited therein.
POULTRY ENTERPRISES, INC. 213
as the exclusive representative of all its employees in the appropriate
unit with respect to rates of pay, wages, hours of employment, and
other conditions of employment.
(b) Promising benefits to its employees to discourage self-organi-
zation; threatening to close its plant if it has to deal with the Union;
polling of the employees on the question of proceeding with union
organization; interrogating its employees concerning their union affili-
ations; preparing and distributing revocation forms to its employees
which revoke authority previously given the Union to represent them
in collective bargaining matters; and surveilling union meetings.
(c) In any manner interfering with, restraining, or coercing its
employees in the exercise of their rights to self-organization, to form
labor organizations, to join or assist Amalgamated Meat Cutters &
Butcher Workmen of North America, Local 442, A. F. of L., or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or protec-
tion or to refrain from any or all of such activities, as guaranteed in
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action designed to effectuate the
policies of the Act :
(a) Upon request, bargain collectively with Amalgamated Meat
Cutters & Butcher Workmen of North America, Local 442, A. F. of L.,
as the exclusive bargaining agent of all its employees in the afore-
said unit, with respect to rates of pay, wages, hours of employment,
and other conditions of employment, and if an understanding is
reached, embody such understanding in a signed agreement.
(b) Post at its plant in Gainesville, Georgia, copies of the notice
attached to the Intermediate Report marked "Appendix A." 7 Copies
of said notice to be furnished by the Regional Director for the Tenth
Region, shall, after being duly signed by Respondent's representative,
be posted by Respondent immediately upon receipt thereof and main-
tained by it for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
T This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order " In the caption thereof. In the
event this Order is enforced by 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 vn Order."
250933-vol . 102-53-15
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for the Tenth Region (Atlanta,
Georgia), in writing, within ten (10) days from the date of this
Order what steps Respondent has taken to comply herewith.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge and series of amended charges duly filed by Amalgamated Meat
Cutters & Butcher Workmen of North America, Local 442, A. F. of L., hereinafter
called the Union, the General Counsel of the National Labor Relations Board, by
the Regional Director for the Tenth Region (Atlanta, Georgia), issued a com-
plaint dated March 18, 1952, against Poultry Enterprises, Inc., hereinafter called
the Respondent alleging that the latter had engaged and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (1) and
(5) and Section 2 (6) and (7) of the National Labor Relations Act as amended,
61 Stat. 136 (29 U. S. C., Supp. I, See. 141 et seq.), hereinafter referred to as
the Act.
With respect to the unfair labor practices the complaint as amended at the
hearing alleges in substance that : (1) the Respondent on or about February 28,
1951, and at all times thereafter refused and continues to refuse to bargain col-
lectively with the Union as the exclusive representative of the employees in an
appropriate unit, with respect to rates of pay, wages, hours of employment, and
other conditions of employment ; and (2) on different dates from March 1951
through July 1951, the Respondent through its officers, supervisors, and repre-
sentatives specifically named, interrogated its employees about their union mem-
berships, sympathies, activities, and desires ; spied upon and kept under
surveillance the union meetings and activities of its employees ; threatened its
employees with economic reprisals if they became or remained members of or
assisted the Union; promised economic benefits to induce its employees to refrain
from joining, assisting, or remaining members of the Union, solicited withdrawals
from the Union from its employees and coerced its employees into signing such
revocations.
The Respondent's answer duly filed, in part admitted certain allegations of the
complaint, but denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held in Gainesville, Georgia, on April 21, 22,
23, and 24, 1952, before the undersigned Trial Examiner, duly designated by the
Chief Trial Examiner. The General Counsel, counsel for the Respondent, and
the representative of the Union participated in the hearing and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, to intro-
duce relevant evidence, to argue the issues orally upon the record, and to file
briefs and proposed findings and conclusions. A brief and proposed findings and
conclusions were received from the Respondent on June 2, 1952, and has been
duly considered.
During the course of the hearing, various motions were made by counsel for
the Respondent to dismiss the complaint on procedural grounds and on the merits.
These motions where not denied or granted at the hearing are disposed of by the
following findings and recommendations. A motion by the General Counsel to
amend paragraph 9 of the complaint to delete therefrom the names of Sales
Manager Roark and Foreman Jones and the dates alongside said names was
granted without objection. A motion by the General Counsel made at the end
of the hearing to conform the pleadings to the proof with respect to formal mat-
ters such as dates, the spelling of names and the like was granted without
POULTRY ENTERPRISES, INC . 215
objection. At the close of the hearing the General Counsel and counsel for the
Respondent presented oral argument to the Trial Examiner.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Poultry Enterprises , Inc., is a Georgia corporation having its principal office
and place of business in Gainesville, Georgia, where it is engaged in the business
of processing poultry. In the course and conduct of its business operations
during a representative 12-month period, the Respondent purchased live poultry
valued in excess of $2,000,000 practically all of which poultry was obtained from
sources inside the State of Georgia. During the same period sales of dressed
poultry were valued in excess of $2,000,000, about $1,000,000 of which amount
represents the value of poultry sold and shipped to customers located outside the
State of Georgia. The Respondent's answer admits and it is hereby found that
the Respondent is engaged in commerce within the meaning of the Act. See also
Case No. 10-RC-1299 where the Board found that the Respondent is engaged in
commerce within the meaning of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters & Butcher Workmen of North America, Local 442,
A. F. of L., is a labor organization within the meaning of the Act, admitting to
membership employees of the Respondent.'
III. THE UNFAIR LABOR PRACTICES
A. Preliminary statement
The details related hereinafter arose within the framework of these more
general facts : During January, February, and March 1951, the Union held
several meetings in its efforts to organize the employees of the poultry-dressing
plants in the Gainesville, Georgia area. Edward Manley, a former employee
of the Respondent testified that a number of Respondent's employees spoke
to him about the possibility of a union organization in the plant to assist them
to obtain better working conditions and more hours. Manley obtained a sup-
ply of union cards from the Union's international representative Bob Ackerman
at a meeting he attended early in February for the Swift & Company employees.
Manley signed up several employees and additional cards were signed by em-
ployees at their homes and at the plant before starting work and during their
lunch hours. During the period February 16 through February 23, 73 employees
signed cards authorizing the Union to represent them in collective bargaining
matters with the Respondent. On February 27, 1951, William Katz, an inter-
national representative of the Union, sent a letter by registered mail to the
Respondent, which was received by the Respondent on February 28, advising
that the Respondent's employees had selected the Union to represent their
interests in the matter of collective bargaining affecting hours, wages, and work-
ing conditions and requesting a meeting to negotiate a contract at Respondent's
earliest convenience. Simultaneously therewith the Union filed a petition for
certification of representatives with the Board. Under date of February 28, the
Respondent in a letter signed by J. H. Martin, president, advised the Union
' It was so stipulated by the parties during the hearing in Case No. 10-RC-1299.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that on the basis of its present information the Union 's request to be recognized
as bargaining agent for Respondent's employees was denied. On March 12 the
Union filed an unfair labor practice charge in this matter. On or about March
19, during the course of an investigation of the Union's representation petition,
a meeting was held attended by a Board field examiner , Martin, and S. G.
Stewart, Jr., Respondent's general manager. The appropriate unit was dis-
cussed and the Board field examiner allegedly advised the Respondent's rep-
resentatives that it could consent to an election or it could continue to refuse
to bargain, in which event the Board would hold a hearing in the matter and,
if sufficient showing was made by the Union regarding its representation of the
employees, an election would be directed by the Board. Martin indicated that he
would like a delay in the holding of the election? Shortly after the above-
described meeting Martin addressed four separate groups of employees regard-
ing the Union and general conditions in the plant at meetings held over a 2-
week period during the latter part of March, in the showroom of his Chevrolet
agency, located in another part of town. On April 6 the hearing in the repr3-
sentation case was held. In the meantime, practically all of the employees who
had authorized the Union to act for them in collective-bargaining matters, as
well as employees who had not signed union cards, signed slips revoking the
authority previously given the Union. On April 23 the Board issued its Deci-
sion and Direction of Election in Case No. 10-RC-1299 setting forth that an
election by secret ballot was to be conducted among the employees of a defined
appropriate unit not later than 30 days after the date of the said decision. On
April 30 the Union, upon information received that Respondent had engaged
in other unfair labor practices, filed an amended charge with the Regional
Office of the Board. On May 3, by direction of the Board, an order amending
the previously issued Direction of Election was issued striking therefrom the
words "as early as possible but not later than 30 days from the date of this
Direction," and substituting therefor the words, "at such time as the Regional
Director deems an election may appropriately be conducted." Further amended
unfair labor practice charges were filed by the Union with the Board's Regional
Office. During June 1951 the Respondent granted an across-the-board wage
increase to its employees. On or about July 8, 1951, a foreman of the Respond-
ent is alleged to have surveilled a union meeting. The Union requested permis-
sion to withdraw its petition for certification of representatives previously filed
in Case No. 10-RO-1299 and on March 20, 1952, an order permitting the with-
drawal of the petition was granted by the Board. In the interim, on March 18,
1952, the complaint in this matter was issued.
B. The refusal to bargain; interference, restraint, and coercion
1. The appropriate unit
The amended complaint alleges, the Respondent's answer admits, and it
is hereby found that all production and maintenance employees, including
truck drivers of the Respondent's Gainesville, Georgia, plant, excluding office
clerical employees, guards, and all supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act e
2 Stewart had Just recovered from a siege of the mumps at the time of this meeting.
Since the incubation period for this disease is 9 to 21 days and the female employees in
the plant had not had the disease , Martin questioned the field examiner as to whether the
election could be delayed until a later date with a view to possibly preventing other em-
ployees in the plant from contracting the disease.
8 The Board in its Decision and Direction of Election issued on April 23, 1951 , in Case
No. 10-RC-1299 found the above -described unit appropriate.
POULTRY ENTERPRISES, INC . 217
2. Representation by the Union of a majority in the appropriate unit
At the hearing there was received in evidence Respondent's payroll for the
week ending March 3, 1951, showing a total of 133 employees for that week.
The parties stipulated at the hearing that 67 employees signed union authoriza-
tion cards on various dates between February 16 and February 23, 1951, in-
clusive.' In addition, the General Counsel adduced testimony from 6 employees
who identified their signatures on union authorization cards signed on various
dates between February 16 and February 21, 1951, inclusive. The Respondent
attacked the validity of the signature on the card of James Graham, Jr. While
Graham testified that his handwriting was poor and he was not certain that
he signed the card, he stated unequivocally that at the time the card was given
him by employee Ed Manley, a leading protagonist for the Union, it was his
opinion that the employees needed a union and upon returning the card to
Manley it was his (Graham's) intention to have the Union represent him. I
find that the Graham card was valid. Thus on February 23, 1951, the Union
had been authorized by 73 employees of the 133 in the appropriate unit to
represent them for the purposes of collective bargaining.'
I find that on February 23, 1951, and at all times material thereafter, the
Union was and now is the duly designated representative of a majority of the
employees in the aforesaid appropriate unit for the purposes of collective
bargaining.
3. The refusal to bargain ; interference, restraint, and coercion
The record does not disclose any history of collective bargaining in the
Respondent's plant prior to February 1951. Manley testified, that at the time
the Union was conducting its organization campaign, in several of the poultry-
dressing plants in Gainesville, some of Respondent's employees indicated their
desire for a union to assist them in obtaining better treatment and better
working conditions. Manley obtained a batch of union-authorization cards
which he distributed to Respondent's employees and also successfully solicited
memberships from a number of employees. As noted hereinabove, within a
period of a week from February 16 to February 23, 73 employees signed author-
izations to the Union to represent them in matters of collective bargaining.
William Katz, international representative of the Union, testified without
contradiction, that upon receiving the signed union-authorization cards from
the employees, he visited Respondent's plant on February 26 and spoke to
Fred Roark, Respondent's sales manager and assistant plant manager. Katz
told Roark that the Union represented a majority of Respondent's employees
and was in a position to negotiate a collective-bargaining contract in their
behalf. Roark advised Katz that he should see J. H. Martin, president of
Respondent, who was located elsewhere. Katz attempted several times to
+ The stipulation included in addition to the 67 set forth above , the signed union-
authorization cards of Louise Dean bearing date of March 7 , 1951, J. N. Farmer, Jr., and
Rufus Morrison both bearing date of March 15, 1951.
a The General Counsel contended that A. N. Jones and Bennie Talton whose names
appear on the payroll referred to hereinabove were foremen and supervisors within the
meaning of the Act. The Respondent asserted they were production and maintenance
employees and should be included in the appropriate unit. As to A. N. Jones no proof
was adduced by the General Counsel regarding his work status . Since there is no valid
reason in the record for excluding him from the appropriate unit he will be included.
There is considerable conflicting testimony regarding the duties and authority of Bennie
Talton. In view of the clear majority as indicated above I find it unnecessary to resolve
this issue.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contact Martin at the Respondent's plant and the Martin Chevrolet Agency'
by telephone and personally without success.
Under date of February 27, Katz sent the following letter to Respondent :
Dear Mr. Martin :
The poultry workers under your employ in the Pine Street plant, have
selected our organization, the Amalgamated Meat Cutters & Butcher Work-
men of North America, A. F. of L., to represent their interests in the matter
of collective bargaining affecting hours, wages and working conditions.
We are in a position to meet with you to negotiate a contract at your
earliest convenience.
Trusting that you will give this matter your immediate attention, I
remain.
On the same day the Union filed a petition for certification of representatives
with the Board's Regional Office, docketed under Case No. 1O-RC-1299.
On February 28 Martin replied to the Union's request to bargain collectively
with the following letter addressed to Katz :
Dear Sir:
On the basis of our present information your request to he recognized as
bargaining agent for our employees is denied.
The Union did nothing further in pursuit of its request to bargain with the
Respondent. Nor did the Respondent make any inquiries of the Union regard-
ing the alleged representation of the majority of the employees or of the appro-
priateness of the unit it purported to represent. Stewart testified that he found
out for the first time at the instant hearing that the Union represented a majority
of Respondent's employees.
On or about :March 19 a conference was held to discuss the Union's petition
for certification of representatives, attended by Martin, Stewart, and Board
Field Examiner George. Stewart testified that George advised the Respondent
it could agree to a consent election or continue to refuse to bargain in which
event the Board would order an election. On cross-examination, Stewart
admitted that the discussion with George encompassed among other matters
the appropriate unit and the Union's showing of interest and George told the
Respondent's representatives that that was not a question which Respondent
could resolve by checking the signed cards, but would ultimately be decided
by the Board.
Shortly after the above-noted conference, the Respondent held 4 separate
meetings over a 2-week period with different groups of employees in the show-
room of the Martin Chevrolet Agency. Wallace Nix, foreman of production,
explained that the employees were in a state of confusion and could not work.
Some employees inquired if the rumor was true that if they did not join the
Union they would lose their jobs. Others asked him what Martin had to say
about it. Nix testified that he asked Martin if he would see the employees in
groups, answer their questions, and put their minds at ease Stewart testifying
regarding the reason for the meetings, stated that employees inquired if they
would lose their jobs if they did not join the Union and since he was at a loss
to advise them, he thought Martin "could get them straight" by talking to them.
Stewart was unable to recall any of the employees who talked to him.
Grace Williams a former employee and member of the union organizing com-
mittee, denied that she at any time requested Nix for the opportunity to talk
with Martin, nor was she aware of or did she hear any employees make such a
The Martin Chevrolet Agency in which J . H. Martin has an interest , is located in
Gainesville about a half mile distant from Respondent 's plant.
POULTRY ENTERPRISES, INC . 219
request. Umie Mae Dockery, presently employed by the Respondent, testifying
as its witness, stated that Nix told the employees that Martin was going to
conduct a meeting and wanted the employees to attend. I do not credit the
testimony of Nix or Stewart in this regard.
The employees were given transportation to the meeting place in the auto-
mobiles of Nix and Stewart.' They were paid for the time spent at the meeting.
In attendance at all of the meetings in addition to the employees and Martin,
were Stewart, Nix, and Mrs. J. H. Martin, wife of Martin and a joint stock-
holder with him in the Respondent corporation.
Martin talked to the employees about the Union, and among other things, its
organizational activities at the poultry-dressing plants in Gainesville.
Marvin Owen, an employee of the Respondent from June 1949 until October
1951, testified that Martin told the employees that he would pay them as much
as any plant paid in which the Union represented the employees. Martin also
told the employees that the poultry-dressing plant gave him his smallest income
and that since he "already had his living made he did not have to run it to make
a living." Martin inquired of each employee individually if he would continue
to work for the Respondent if the wage scale was the same as that in union-
organized plants and not attempt to bring the Union into Respondent's plant, or
proceed with the union organization. Owen admitted that during the course
of the meeting, Martin said this was a free country and the employees could
join or not join the Union as they pleased.
Era Chastain, a former employee, testified that at the meeting she attended,
Martin told the employees that if they did not join the Union, he would see to it
that they would receive as much wages as the employees in any of the other
poultry-dressing plants. In this regard, Chastain in response to a leading ques-
tion, testified that Martin said he always paid as high wages as any plant in
the business and he would continue his policy in order to keep his best employees.
Iova Cowart, who has worked intermittently for the Respondent since the
plant started operating, in substance testified similarly to Chastain. In addi-
tion Cowart testified that Martin inquired of the employees if they wanted the
Union to come into the plant.
Nora Evans, employed by the Respondent for 3 years, corroborated Owen's
testimony regarding Martin's statement about the fact that he "already had his
living made." Evans testified further that during the meeting she attended,
Martin said that he did not want the employees to join the Union and threatened
to close down the plant before he would deal with the Union. Martin referred
to the fact that the Chevrolet Agency had been the source of his livelihood before
he started the poultry-dressing plant and would continue to be.
Louise Dean, an employee for 2 months at the time of the Union organizing
campaign, testified that while Martin told the employees at the meeting she
attended that he had always paid as high wages as other plants in the industry
and would continue that policy whether or not the employees joined the Union
in order to hold on to the best employees, he nevertheless made it clear that
Respondent did not want a union representing the employees in its plant. Dean
also testified that at the opening of the meeting, Mrs. Martin read a clipping from
a Miami , Florida, newspaper, describing a strike by employees in a laundry and
Martin commented that Respondent did not want a union and have "anything
like that happen here."
Grace Williams, an employee of the Respondent from 1950 until April 1951;
and a member of the union organizing committee, testified that Martin said that
he would rather not have a union in Respondent's plant and he would pay as
7 Some employees used their own cars.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
much as the Swift & Company, plant, if the employees abandoned their efforts
toward the union organization. Martin, according to Williams, also said the
employees would work more hours than they had been.' Williams further testi-
fied on cross-examination that Martin told the group they had the right to join
or not join the Union, but supplemented this statement with the comment that
"he could close the doors to the place any time he wanted to."
Lillian Hambrick testifying as a witness for the Respondent admitted on cross-
examination that Martin asked some of the employees who attended the meeting
with her why they wanted the Union.
It is interesting to note that although the plant had been in operation since
1942, the Respondent never found it necessary to hold even one meeting with
its employees previous to their union organizing efforts and the Union's request
to bargain. As found hereinabove, the Respondent's explanations for the Mar-
tin meetings are not credited.
Wallace Nix, supervisor of production, who attended all of the Martin meet-
ings, denied that he heard Martin tell the employees that if the Union was
brought into the plant to represent them in collective-bargaining matters, he
would close the plant down or that he was not compelled to run the plant since
"he already had a living made." On the contrary, Nix testified that Martin
stated that he needed the plant; that anybody in the chicken business had to
have a plant in order to operate ; that if he did not have a plant he could not
buy chickens from farmers in the country ; and that it would be "foolish" to
remain in the chicken business in a big way without a poultry-dressing plant.
Nix testified further that with respect to wages, Martin told the employees
it was his policy to pay the same as the competing plants and if he did not,
Respondent would lose its best help. Martin according to Nix said, "if you join
[pointing to an employee], and you don't join [pointing to another employee],
you both get the same money. It don't make a bit of difference. You are on
your own. You don't have to join, but you can join if you want to. It won't
interfere with your job one way or the other."
Stewart denied that Martin mentioned closing the plant or that "he already
had a living made" at any of the meetings. Regarding future wages, Stewart's
testimony differed from Nix's. Martin, according to Stewart, told the employees
he would pay the same as the "average plant" scale, but specifically excluded
the Swift & Company plant. Martin mentioned that he paid the mechanics in
his automobile agency and the employees of his feed store the same rates as
competing businesses in similar lines.
Mrs. J. H. Martin, in effect corroborated the testimony of Nix and Stewart.
She testified also that Martin, in answer to the question, "if we have a union,
will we get a bonus?" replied "that when we have a union-.-it would help set
the policy, the pay and the bonuses, or anything else-so he could not give them
an answer , without their say so."
The testimony of Nix, Stewart, and Mrs. J. H. Martin, hereinabove set forth,
was not convincing. I do not credit it.
The Respondent also adduced testimony from a number of employee witnesses.
William Parks, a truck driver, presently employed by Respondent, attended
three meetings and helped transport other employees in his car. He was paid
for the time thus spent. Parks denied that Martin said anything about clos-
ing the plant. He did not observe a poll taken of employees, nor did he see
Martin point his finger at each employee and ask them any questions. Parks
testified that Martin did not say anything about the employees joining or not
9 There is some evidence in the record that the employees had not been working full
40-hour weeks.
POULTRY ENTERPRISES, INC. 221
joining the Union. In fact Parks stated that Martin did not mention the Union
at all. Parks from his demeanor on the witness stand impressed me as an un-
reliable and untrustworthy witness. I do not credit his testimony.
The memory and forgetfulness of employees Dessie Lee Smith, Mandy Lou
Stephens, Ruby Mae Hammond , and Lottie Howell, testifying as Respondent's
witnesses , as to what Martin said at the meetings they attended, were almost
startling in their unanimity. All denied that Martin mentioned anything about
closing the plant, but could not remember anything else he said. I do not credit
their testimony.
I was impressed with the credibility of Owen, Chastain, Cowart, Evans, Dean,
and Williams, as reflected by the reasonableness of their overall testimony and
their attitude and demeanor on the witness stand and find that the statements
attributed to Martin were made substantially as testified to by the said
witnesses.
It was stipulated at the hearing that of the 131 employees on Respondent's
payroll for the week ending April 7, 1951, 127 signed revocations of union
authorization bearing date April 3, 4, 5, 6, or 7.° Stewart testified that several
employees inquired how they could withdraw from the Union. Stewart con-
sulted with Respondent's lawyer, Judge Wheeler, who advised Stewart that
withdrawal could be accomplished, that he had previously been called on the
matter by some employees and instructed them how it could be done.10 Later
that day a revocation form was dictated to one of Respondent's stenographers
over the telephone by Judge Wheeler. It was run off on the ditto machine at
the Martin Feed & Poultry Co., (owned by Mr. and Mrs. J. H. Martin) and
brought to Stewart's office. The form reads as follows :
National Labor Relations Board
10th Region
Peachtree-7th Building
50 Seventh Street, N. E.
Atlanta, Georgia
Having heretofore signed an agreement authorizing the Amalgamated
Meat Cutters and Butcher Workmen of North America to represent me and
in my behalf, to negotiate and conclude all agreements as to wages, hours
and all other conditions of employment, I hereby expressly revoke the
authority so given and now deny to said named organization the right to
represent me in any way with my employment or in any other way.
This - day of -, 1951,
-----------------------------
Employee of Poultry Enterprises, Ino.
Stewart testified that the revocation forms were placed on the desks in the
main office occupied by himself and Roark, some were placed in the employee's
waiting room and in the stenographer' s office.11 Within minutes after the revo-
cation forms were delivered to the plant, a number of employees who were in
Stewart's office signed them and left them there. Others were signed in different
*Included in this group were some employees who had not previously signed union-
futhorization Cards as for example employee Dockery.
10 The parties stipulated that Judge Wheeler received a telephone call at his home one
night from a female employee who sought information on withdrawing from the Union.
Judge Wheeler told the caller that in his opinion if she had made up her mind to withdraw
from the Union without coercion of any kind she could do it . Judge Wheeler dictated
a form of revocation to the employee which in substance is the one set forth , supra.
11 Stewart also explained that the forms were not distributed around the plant but were
taken from his desk by employees and placed by the latter in various parts of the plants.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parts of the plant while the employees were at work. Stewart testified that "all
seemed to get back into my office someway." The forms were kept in the Re-
spondent's files until the date of the hearing herein.
Owen testified that while at his position on the conveyer chain he saw some
employees signing forms. Owen approached Nix who was there and inquired
what the men were signing. Nix asked him if he had signed a union card.
Upon Owen's affirmative reply Nix asked if he wished to revoke the authoriza-
tion previously given to the Union and gave him a blank form which Owen
signed.
Nix testifying regarding this incident stated that he had obtained a batch of
revocation forms from the office and at the request of several employees brought
them to the rear of the plant in the vicinity where Owen was working. While
some of the employees were signing forms, Owen asked Nix for one and signed it.
Nix denied that he inquired into Owen's union membership. As previously
found Nix was not a convincing witness. From his demeanor he impressed me
as an unreliable witness. I do not credit his denials and find that the incident
with Owen regarding the signing of the revocation form took place substantially
as testified to by Owen.
Cowart testified that Nix asked her if she wanted to sign "a paper" revoking
her union authorization. She told him she did and went to Stewart's office
where she signed one and left it there. Nix did not specifically deny this incident.
He unequivocally denied that he ever requested any employee to sign a revocation
form. I credit Cowart's testimony regarding this incident.
Dean testified that she had been asked by Nix one day as she was going to
lunch if she wanted to sign a revocation form. She did not answer. On April 4,
in the course of performing her work she went to Nix for something, told him
it was her birthday and she "might as well sign it." Nix according to Dean said
"you wouldn't sign a better thing on your birthday." Nix then brought her a
form which she signed.
Testifying regarding this incident, Nix denied that he gave Dean a revocation
form at her work position and asked her to sign. He stated that a few days
after the bulk of employees had signed the forms, Dean came to the office at lunch
time and requested a revocation form which the office girl gave her. I do not
credit Nix's testimony and find that Dean signed the revocation form substan-
tially under the circumstances testified to by her.
Clyde Hammond , a packer presently employed by Respondent testified credibly
that Nix said to a number of employees "if you wanted to sign the paper to keep
off the Union, do it or not as you please." Hammond obtained a form from
Stewart's desk which he signed and left there.
Williams testified that a few days before she signed the revocation form on
April 4, she was asked by Nix if she was going to sign to which she replied that
she did not know. She signed the form in the office with Nix and the office girl
present. The following day Williams asked Nix if all the employees had signed.
Nix said all but two or three. Williams inquired "if we signed those would that
keep the Union from coming in." Nix replied that "he hoped so." Williams
then asked what would happen if she had not signed the form. Nix, according to
Williams, said "it could have meant whether [I] [kept my] job or not,"
Nix testifying in contradiction to Williams, stated that after Williams signed
the form she asked what would have happened if she had not signed. Nix
replied "not a thing in the world. It would not have made a bit of difference
in the world if you signed it or did not sign it-it would not have made a bit
of difference." I do not credit Nix 's testimony.
On April 6 the hearing in Case No. 10-RC-1299 took place resulting in a
Decision and Direction of Election issued by the Board on April 23. The Board
POULTRY ENTERPRISES, INC. 223
found the appropriate unit to be as set forth infra and directed an election to be
conducted "not later than 30 days from the date of this Direction."
On April 30, amended unfair labor practice charges were filed by the Union.
On May 3, the Board amended its Direction of Election by striking therefrom
the words "as early as possible, but not later than 30 days from the date of this
Direction" and substituting therefor the words, "at such time as the Regional
Director deems an election may appropriately be conducted."
During the month of June the Respondent, without consulting the Union,
unilaterally increased the wages of its production and maintenance employees
from 75 cents to 80 cents an hour. Stewart testified that he obtained informa-
tion that a competitor, Piedmont Poultry Co., was paying 80 cents an hour and
assuming that to be the general pay rate, Respondent instituted the increased
pay rate.
Dean testified credibly that on Sunday July 8, while she and several other
employees were attending a union meeting at the home of one Eldridge Robinson"
located on the Atlanta highway, she observed Nix and another person seated
in an automobile parked on the side of the highway facing the home where the
meeting was being held. Dean stated that the car remained in the same position
for approximately 45 minutes and could be seen from the living-room window
where the meeting was being conducted. According to Dean neither Nix nor the
other occupant of the car left it during the entire period it was parked.
Nix admitted that he was in the parked car as testified to by Dean. He denied
however, that it was with the intention to spy on a union meeting. He testified
that he had dinner with his brother-in-law on a Sunday afternoon. After
dinner his brother-in-law who was in the trucking business asked him to take
a ride down the road so that he could head off one of his trucks to give the driver
a message before he reached town. They parked in a position located just
before a fork in the road leading into town's Nix testified further that he was
not aware that a union meeting was to take place at approximately this location
before he was taken there by his brother-in-law. As previously indicated Nix's
testimony was generally unconvincing and not credible. I do not credit his
explanation for being in the parked car facing the Robinson home at a time
when the union meeting was being held there and find that he was there inten-
tionally for the purpose of surveilling the meeting.'
"Robinson was an employee of the Gainesville Mill. Dean testified that the meeting was
attended by Gainesville Mill employees and some of Respondent's employees were supposed
to attend.
U This was at the side of a grocery store opposite the Robinson home on the Atlanta
highway.
14 The amended complaint alleges the attendance of Bennie Talton, claimed by the
General Counsel to be a foreman, at the March 6 union meeting at the Dixie Hunt Hotel
was surveillance in violation of Section 8 (a) (1) of the Act. I find It unnecessary to
make any further finding or conclusion with respect to this incident. Interference, re-
straint, and coercion of Respondent ' s employees has been found hereinabove In the sur-
veillance of the union meeting by Nix. This finding provides an adequate basis for an
effective remedial order and a conclusion of surveillance in the Talton incident will add
neither to the character of the violation nor to the scope or breadth of the remedy.
Chicago Typographical, 86 NLRB 1041 ; Water Front Employer's Association of the Pacific
Coast, 90 NLRB 1021. In view of this I will not resolve the conflicting testimony re-
garding Talton's alleged supervisory status or rule on the motion to strike certain testi-
mony of Grace Williams, a General Counsel's witness that she did not Invite Talton to
attend the union meeting, because In Its Inconsistency with the testimony of Talton,
another General Counsel witness, It tended Improperly to Impeach Talton's testimony. I
note however, that if it were necessary to rule on the said motion It would be denied. See
Wigmore on Evidence , Vol. III , Sec. 907 . See also Moultrie Repair Co. v. Hill, 120 Ga.
730; 48 S. E. 143 where the court said "While the rule is that a party cannot Impeach his
own witness'by proof of general bad character, nor by proof of contradictory statements,
unless it is shown that he has been entrapped by the witness, still It has never been held
that a party is bound by the testimony of his witness to such an extent that he cannot
introduce other evidence which disproves the facts testified to by the witness." See also
Hollinsworth v. State, 79 Ga. 607, 4 S. E. 560; Cronan v. Roberts , 65 Ga. 678.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about March 18, 1952, the Union requested withdrawal of its petition
for certification of representatives. An order permitting withdrawal of the
said petition was issued by the Board on March 20, 1952. The instant complaint
was issued on March 18, 1952, as aforesaid.
Concluding Findings
(a) As to interference, restraint, and coercion
The record reveals and it is hereby found that during the course of his talks
with the employees, Martin told them, among other things, that this was a
free country and the employees could join or not join the Union as they pleased
and that he would pay as much as the other plants paid whether or not there
was a union. These statements, however, were interspersed with his threats
to close the plant before he would deal with the Union ; with his promise of
benefits to the employees if they did not join the Union; and with the polling
of the employees as heretofore found. Under the circumstances, Martin's openly
stated neutrality toward the Union did not mitigate the interference inherent
in the threats, promises of benefits, and interrogation. See Somerset Classics,
Inc., 90 NLRB 1676; J. J. Newberry, 88 NLRB 1638; Kalleher and Mee, Inc.,
87 NLRB 410.
The Respondent also contended at the hearing and in its brief that the with-
drawal of the employees from the Union was a voluntary act without coercion
on the part of Respondent. While there is no evidence in the record that any
employees were directed to resign from the Union with an explicit threat
that they would be discharged or otherwise penalized for failure to do so, it is
nevertheless established than an employer violates Section 8 (a) (1) of the
Act, where as here, it actually prepared the revocation forms, participated in
the distribution of the same to the employees, and permitted the use of its offices
for the signing and filing of the said forms. See American Bottling Company,
99 NLRB 345; Louisville Container Corporation, 99 NLRB 81; Phillips and
Buttorff Manufacturing Company, 96 NLRB 1091; Southern Block and Pipe
Corporation, 90 NLRB 590; Lindley Box and Paper Company, 73 NLRB 553.
See also The Red Rock Company case, 84 NLRB 521, where the Board held
that the handing or exhibiting by the employer to its employees of documents
purporting to deny the Union's authority to represent them in bargaining with
the employer was tantamount to compulsion to sign them.
The General Counsel in oral argument contended that the unilateral wage in-
crease which Respondent gave its employees in June 1951 was violative of the
Act. The amended complaint fails to allege this act as a violation. As noted
previously, testimony was adduced by the parties regarding the wage increase
and it was fully litigated. The General Counsel relies on the fact that the
Union had previously demanded recognition and its petition for certification of
representatives was pending. He also attempted to prove that Respondent's
wage scale in previous years was generally lower than other poultry-dressing
plants in the area . On the other hand, Stewart testified credibly that he as-
sumed that the rate paid by Piedmont Poultry Co., of 80 cents an hour was
the general pay rate for all plants and therefore he instituted the wage increase.
There is no evidence that the wage increase was discussed by the Union with
the Respondent or that it attempted to do so. In view of the above, I find
that the record does not support a finding that the wage increase in June 1951
was violative of the Act. See Kalleher and Mee, Inc., supra; Dixie Mercerizing
Company, 86 NLRB 285.
POULTRY ENTERPRISES, INC. 225
On the basis of the foregoing, the preponderance of the evidence, and the
record as a whole, I conclude and find that by the following enumerated acts,
the Respondent interfered with, restrained , and coerced its employees in the
exercise of the rights guaranteed by Section 7 of the Act , in violation of Section
8 (a) (1) thereof:
(a) Martin's promise to the employees that he would pay them as much as
any plant paid in which the Union represented the employees , if they did not
join the Union.
(b) Martin 's threat that he did not have to run the poultry-dressing plant to
make a living, and his further threat to close it down before he would deal
with the Union.
(c) Martin's polling of the employees on the question of proceeding with union
organization or continuing to work without a union if the wage scale was the
same as in unionized plants.
(d) Martin's promise of more hours if the employees would abandon their
efforts toward union organization.
(e) Nix 's questioning of Owen as to his union membership when the latter
requested a revocation form.
(f) The preparation of the revocation forms and distribution of same to em-
ployees wherein it was stated that the particular employee who signed revoked
the authority given the Union to represent him in collective-bargaining matters,
and which forms as they were signed in the general manager 's office and other
parts of the plant were left with the general manager and kept by the latter
until the hearing herein.
( g) Surveillance of a union meeting on July 8 with Nix.
(b) A8 to the refusal to bargain
As has been set forth hereinabove, the Union, having theretofore been desig-
nated by a majority of the employees in the appropriate unit as their collective-
bargaining representative, wrote the Respondent on February 27, 1951, re-
questing the Respondent to meet with it at its earliest convenience to negotiate
a collective-bargaining contract. On February 28, 1951, Martin, acting for the
Respondent, replied in writing denying the Union's request to be recognized as
the bargaining agent for the Respondent's employees. The basis for this denial
was "our present information." The complaint alleges that the Respondent has
illegally refused to bargain with the Union since that date.
When an employer acts in good faith he may, of course, without subjecting
himself to an infraction of Section 8 (a) (5) of the Act, challenge a union's
asserted majority and require proof of such majority by an election or other
appropriate method. It is the Respondent's contention that at the March 19
conference on the Union's representation petition, when Martin, Stewart, and
Field Examiner George were present it sought information as to whether the
Union represented a majority of its employees. And it was then informed by
the field examiner that it could consent to an election to determine the ques-
tion or continue to refuse to bargain in which event a Board-directed election
would be held. In this situation, continues the Respondent, the Board having
before it a petition for certification of representatives filed by the Union with
full knowledge of the number of employees who had signed union cards, the
Union acquiesced in having the question determined by an election and thereby
waived any right to complain.
It is undisputed that the Union executed a waiver in the usual form. By the
execution of the waiver, the Union agreed in effect that in the event an election
were held and the result of the election were adverse to it, it would not make
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
use of the alleged unfair labor acts and conduct of the Respondent which pre-
ceded the date of the election and which were the basis of the charge filed on
March 12, 1951, as evidence that the Respondent interfered with the conduct of
the election. In this case however, no election was ever conducted and as a
matter of fact the amended unfair labor practice charges filed on April 30, 1951,
were never waived. Furthermore, the waiver is purely an administrative process
of the Board. By it the Union did no more thdn agree with the Board that it
would participate in an election and take its chances that the previous conduct
of the Respondent would not so seriously influence the employees as to affect
their votes. The undersigned does not agree with the Respondent that the waiver
extended to, or that it could extend to, the unfair labor practices committed by
the Respondent. For the Act, concerned as it is with the elimination of prac-
tices interfering with commerce, has created public rights of enforcement of
which it has entrusted to the Board. Violations of the proscriptions of the Act
may not be waived or settled without the Board's approval. The Respondent's
contention is without merit. See The Pickwick Company, 69 NLRB 314. Cf.
Denton Sleeping Garment Mills, Inc., 93 NLRB 329.
Nor is it a defense to the Respondent's refusal to bargain that it acted upon
the erroneous statement of a field examiner that "it could continue to refuse to
bargain" in which event the Board would direct an election to be held. Even
assuming arguendo that such a statement was made by the field examiner" it
appears obvious from the record that it was made during a discussion while the
field examiner was attempting to get the parties to agree to a consent election
in order to obviate the necessity for holding a hearing. Moreover, previous
to the conference with the field examiner, the Respondent had unequivocally
expressed itself in the letter of February 28 set forth hereinabove, and having
refused to bargain with the Union from the date, it cannot now rely upon alleged
erroneous advice of a Board agent. The task of making binding interpretations
of the Act is a judicial function vested in the Board with ultimate power to re-
view in the courts. The field examiner's primary function is to investigate
alleged charges of unfair labor practices and representation petitions. Further-
more, one who commits an unlawful act because of an honest but mistaken under-
standing of the law is not absolved from responsibility for his unlawful conduct.
Cf. West Texas Utilities Company, Inc., 85 NLRB 1396 and cases cited therein;
enforced 184 F. 2d 233 (C. A. D. C.) ; cert. den. 341 U. S. 939.
In the instant case, as found hereinabove, the Respondent at no time challenged
the Union's majority and in fact made no effort to require the Union to prove its
majority. In any event a challenge to a majority does not shield an employer
if it is motivated not by a bona fide doubt as to the existence of the majority but
rather by a rejection of the collective bargaining principle or by a desire to gain
time within which to undermine the Union's support. See The Red Rock Com-
pany, supra; Joy Silk Mills, Inc., 85 NLRB 1263, enforced as modified in respects
not material here, 185 F. 2d 732 (C. A. D. C.).
On the record of this case, there can be little doubt that despite its present
protestations to the contrary the Respondent's refusal on February 28, 1951, to
meet or deal with the Union was not sincerely motivated but was actuated by a
purpose to avoid its statutory duty to bargain by obtaining time within which it
might effectively move to dissipate the Union's strength. Shortly after receipt of
the Union's demand the Respondent embarked upon a coercive course of conduct
"Stewart testified that the field examiner made the above-noted statement. However,
.during oral argument, Respondent's counsel said that the field examiner told the Respondent
"you can sit down and bargain with the Union or if you refuse we will order an election."
This statement was made as the two alternatives open to the Respondent.
POULTRY ENTERPRISES, INC. 227
which revealed with unmistakeable clarity that the question with which it was,
really concerned was not whether the Union in fact had a majority at the time
but rather how that majority, if it existed, could be subverted or destroyed. As
found hereinabove, the Respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act by
the various acts enumerated. As a climax to a campaign to destroy the majority
status of the Union the Respondent prepared revocation forms which it dis-
tributed to its employees and which were signed in the general manager's office
whereby the employees renounced the previous authorization given the Union
to represent them as their collective-bargaining agent. Within a short time
after the revocation forms were received practically all of the employees signed
them (127 out of 129), including employees who had not previously signed union-
authorization cards. The spirit of wholesome cooperation that is implicit in a
bona fide doubt does not normally find expression in such patent interference
and restraint as was evinced here by Respondent. The Respondent's objective
actions clearly belie its pretense of subjective good faith.
Nor are the cases cited in Respondent's brief applicable to the facts herein,
The Respondent is scarcely in a position now to complain that no proof of ma-
jority was offered when it not only failed to request the submission of such proof
but after unequivocally stating that it would not recognize the Union as the
bargaining agent for the employees "on the basis of [our] present information"
it thereafter engaged in an antiunion course of conduct, thus disclosing beyond
mistake that it would not have engaged in bargaining even if the proof had been
presented. See Everett Van Kleeck & Co., Inc., 88 NLRB 785; M. H. Davidson
Company, 94 NLRB 142; Louisville Container Corporation, supra.
As has been found above, the Union enjoyed a majority status at the time
the Respondent refused to bargain with it on February 28, 1951. The subsequent
defection as evidenced by the revocations of union authorizations is attributable
to the Respondent's intervening unfair labor practices. It is axiomatic that an
employer may not by his own misconduct destroy a union's majority and then
claim to be relieved of his duty to bargain with it on the ground that it no longer
represents the majority of the employees. In an unbroken line of decisions the
Supreme Court, the courts of appeals and the Board have held that the appro-
priate means to expunge the effects of a refusal to bargain is to require the
employer to bargain with the Union which before the unlawfully induced de-
fection from its ranks was the majority choice. See M. H. Davidson Company,
case, supra, and the cases cited therein.
Upon the record as a whole, it is concluded and found that on February 28,
1951, and thereafter, the Respondent unjustifiably refused to recognize and
bargain with the Union as the exclusive representative of its employees in the
appropriate unit and has thereby interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act
in violation of Section 8 (a) (5) thereof.
The Respondent has submitted a number of proposed findings and conclusions.
Of the proposed findings 1, 2, 3, 4, and 6 are accepted. The remaining requested
findings and the conclusions of law are rejected either because contrary to the
findings and conclusions made in the report herein, omnibus in nature, or so
phrased that granting of them will confuse the findings and conclusions.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent, described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
v. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain affirma-
tive action which will effectuate the policies of the Act.
It has been found that the Respondent has refused to bargain collectively
with the Union, the statutory representative in the appropriate unit. It will
be recommended that the Respondent bargain collectively with the Union and
embody any understanding reached in a signed agreement.
It has also been found that the Respondent has engaged in certain acts of
interference, restraint, and coercion, by promising benefits to its employees ;
by threatening to close the plant; by the polling of employees; by interrogation ;
by preparing and distributing revocation forms to the employees, whereby
they revoked the authority given the Union to represent them in collective
bargaining matters ; and by surveillance of a union meeting. It will therefore
be recommended that the Respondent cease and desist therefrom.
The Respondent's infraction of the Act herein found discloses a fixed purpose
to defeat self-organization and its objectives. Because of the Respondent's
unlawful conduct and its underlying purposes, I am persuaded that the unfair
labor practices found are related to the other unfair labor practices proscribed
by the Act and that the danger of their commission in the future is to be
anticipated from the course of the Respondent's conduct in the past. The
preventative purposes of the Act will be thwarted unless the remedial order is
coextensive with the threat. In order, therefore, to make effective the inter-
dependent guarantees of Section 7 to prevent a recurrence of unfair labor
practices and to minimize strife which burdens and obstructs commerce and
thus to effectuate the policies of the Act, it will be recommended that the
Respondent be ordered to cease and desist from infringing in any manner
upon the rights guaranteed by 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 & Butcher Workmen of North America, Local
442, A. F. of L., is a labor organization within the meaning of Section 2 (5) of
the Act.
2. All production and maintenance employees, including truck drivers, of the
Respondent 's Gainesville , Georgia , plant , excluding office clerical employees,
professional employees, guards, and all supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
3. At all times since February 23, 1951, Amalgamated Meat Cutters & Butcher
Workmen of North America, Local 442, A. F. of L., has been and now is the
representative of the majority of the employees of the Respondent in the unit
above-described, for the purposes of collective bargaining within the meaning
of Section 9 (a) of the Act.
4. By refusing on February 28, 1951 , and at all times thereafter to bargain
collectively with Amalgamated Meat Cutters & Butcher Workmen of North
America, Local 442, A. F. of L., as the exclusive representative of all its
POULTRY ENTERPRISES, INC . 229
employees in the aforesaid appropriate unit, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a)
(5) of the Act.
5. By interfering with , restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
6. 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.]
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the Labor Management
Relations Act of 1947, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with AMALGAMATED MEAT CUR
TEES & BUTCHER WORKMEN OF NORTH AMERICA, LocAL 442, A. F. of L., as
the exclusive representative of all employees in the appropriate unit
described below.
WE WILL Nor in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist AMALGAMATED MEAT CUTTERS & BUTCHER
WORKMEN OF NORTH AMERICA, LoCAL 442, A. F. of L., 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 agreement requiring membership in a labor organization as a condition
of employment as authorized in Section 8 (a) (3) of the National Labor
Relations Act, as amended.
WE WILL bargain collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit
described herein with respect to rates of pay, wages, hours of employment,
and other conditions of employment , and if an understanding is reached,
embody such understanding in a signed agreement. The bargaining unit is :
All production and maintenance employees including truck drivers,
at our plant in Gainesville, Georgia, excluding office clerical employees,
guards, and all supervisors as defined in the Act.
All our employees are free to become or remain members of this union, or
any other labor organization.
POULTRY ENTERPRISES, INC.,
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.
250983-vol. 102-53-16