Sun Coast Foods, Inc.

National Labor Relations Board - Board Decisions

Jan 30, 1985

273 N.L.R.B. 1642 (N.L.R.B. 1985)

1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sun Coast Foods, Inc. and International Chemical
' Workers Union, Local 540. Cases 15-CA-8758
and 15-CA-8836
30 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 21 October 1983 Administrative Law Judge
J. Pargen -Robertson issued the attached decision.
The Respondent and the General Counsel each
filed exceptions, supporting briefs, and answering
briefs.1
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions only to the ' extent consistent with this
Decision 'and Order.
This case involves actions that occurred follow-
ing the closing of a pet food processing plant oper-
ated by Quaker Oats, Inc. and its reopening by the
Respondent. On 25 June 1982 3 Quaker Oats ceased
operating and terminated its employees, including
70 production and maintenance employees repre-
sented by the Union. 4 .The Respondent reopened
the facility 19 July, employing 51 production and
maintenance employees. The Respondent's entire
unit work- force was drawn from the group of em-
ployees who formerly worked at Quaker Oats. In
addition the Respondent hired several individuals
who were supervisors and managers for Quaker
Oats. These included John Christensen, manager
for Quaker Oats and vice president and general
manager for the Respondent; Andy Hammond,
manager of employee and community relations at
Quaker Oats and purchasing and planning manager
for the Respondent; Richard Bishop, manager of
engineering and maintenance for both Employers;
and Zelma McKnight, maintenance supervisor for
Quaker Oats and plant supervisor for the Respond-
ent.
' The Charging Party filed a motion seeking leave to adopt as its own
the General Counsel's exceptions We grant the motion and, accordingly,
we have treated the General Counsel's exceptions as constituting also the
Charging Party's cross-exceptions
2 The Respondent and the General Counsel have excepted to some of
the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
3 All dates are in 1982 unless otherwise indicated
4 Quaker Oats and the Union had a collective-bargaining agreement in
which Quaker Oats recognized the Union as the representative for all
maintenance and production employees at its canning plant at Pasca-
goula, Mississippi, excluding all office and clerical employees, laboratory
employees, watchmen, guards, and all supervisory employees as defined
in the National Labor Relations Act, as amended
Although the Respondent initially, on request,
had agreed to meet with the Union, on 16 Septem-
ber the Respondent canceled the scheduled meet-
ing with the Union and since that date has refused
to bargain with the Union. The Respondent relied
on a petition signed by 35 of its 51 unit employees
asserting that they did not wish to be represented
by the Union.
The General Couriel alleged that the Respond-
ent unlawfully refused to hire seven job applicants
because of their union activities at Quaker -Oats.
The General Counsel also alleged , that certain un-
lawful' statements- were made by the Respondent's
supervisors and that the Respondent unlawfiilly re-
fused to bargain with the Union. .
The judge found that there was no evidence that
the Respondent's decision to employ 51 rather than
70 employees was unlawfully motivated'. The judge
found, however, that the Respondent unlawfully
refused to hire four individuals because of their
union activities. The judge also found that the ,Re-
spondent violated Section , -8(a)(1) of the Act by
threatening employees that it would screen job ap-
plicants to avoid dealing with the Union and griev-
ances. The judge further found that the Respond-
ent violated Section 8(a)(5) and (1) of the At by
failing to recognize and bargain with the 'union
from the date the Respondent began operations.
The General Counsel excepts to the judge's find-
ing that the Respondent's decision to employ a re-
duced work force was not unlawful. The General
Counsel also argues that the judge erred in finding
that the Respondent lawfully refused to hire. appli-
cants Jack Crowley and Eddie Mims. The Re-
spondent excepts to all violations found by the
judge. For the reasons set out below we find merit
to the Respondent's exceptions and shall dismiss
the complaint in its entirety.
A. The Reduced Work Force
As noted above, the Respondent commenced op-
erations 19 July with a unit work force of 51 em-
ployees. The judge found that no evidence was
presented to show that this reduction from 70 em-
ployees used by Quaker Oats was unlawfully moti-
vated. The judge therefore considered only wheth-
er the Respondent discriminatorily selected em-
ployees other than the alleged discriminatees.
The General Counsel excepts to this finding. The
General Counsel contends that the Respondent re-
duced its work force in order to eliminate the
Union, and in particular to eliminate union support-
ers who were active in filing grievances while em-
ployed by Quaker Oats. The General Counsel as-
serts that the Respondent's vice president and gen-
eral manager, Christensen, gave conflicting testimo-
273 NLRB No. 203
SUN COAST FOODS 1643
ny on the Respondent's need to reduce its work
force, testifying at one point that a reduction was
needed to make a profit and at another point that a
second additional shift of employees was what a
profitable company required.
The Respondent asserts in answer that the Gen-
eral Counsel failed to allege the reduction in work
force as a violation of the Act. The Respondent
further contends that the record does not support
such a finding.
We find merit in the Respondent's position and
reject the General Counsel's exceptions. The com-
plaint allegations made no mention of the Respond-
ent's decision to hire fewer employees than its
predecessor employed, and this aspect was not
fully litigated at the hearing. Even assuming the al-
legation was fully litigated, we do not find suffi-
cient evidence of unlawful conduct by the Re-
spondent.
Christensen credibly testified that as a Quaker
Oats manager he instructed his supervisors to
design a plan for improved efficiency and economy
to present to potential buyers which would require
fewer employees to operate the facility. This testi-
mony was corroborated by the supervisors, who
detailed a procedure they used in evaluating the
number of workers needed and the best workers
for each job. As discussed by the judge, the Re-
spondent's implementation of this system involved
consideration of each applicant's demonstrated
work ability and seniority at Quaker Oats. Chris-
tensen's additional remark on the need for a second
shift related to a genuine but less immediate inter-
est in increasing efficiency further by addition of a
second shift and is not inconsistent with his plan to
reduce costs as long as the plant operated on a
single shift basis. We are not persuaded that Chris-
tensen's comment on the need for a second shift
casts doubt on the Respondent's motive. Rather,
we find that it was the Respondent's intention to
begin operations with a smaller work force than
that employed by Quaker Oats, an objective that
was reflected in a reduction of similar proportions
among the nonunion salaried employees and within
the Respondent's lawful discretion. 5 Accordingly,
we agree with the judge that the proper inquiry is
whether the Respondent rejected certain applicants
for discriminatory reasons.
5 An alleged successor employer, of course, has a nght to choose the
size and composition of its own work force limited only by the duty not
to discriminate against employees of its predecessor for reasons pro-
scnbed by the Act. General Processing Corp., 267 NLRB 1281 (1983).
B. Findings on the 8(a)(1) Allegations and Union
Animus
The judge found that in 1977 alleged discrimina-
tee Jack Crowley was elected union president on a
platform pledging to file and process employee
grievances. Beginning with Crowley's term and
continuing until Quaker Oats' close, the number of
grievances filed and pursued by employees in-
creased. The judge found that this was a source of
considerable disturbance to Quaker Oats' manage-
ment. The judge also found that certain Quaker
Oats' supervisors told employees that the griev-
ances and the presence of the Union caused the
plant to close and that if the plant reopened it
would be without a union. 6 The judge concluded
that the Respondent, through the supervisors it re-
tained from Quaker Oats, harbored animus toward
the Union and toward those employees who were
identified with the Union in its post-1977 period.
The judge did not find that these remarks violated
the Act because they were made before the Re-
spondent was created. However, the judge found
that about a week after the Respondent reopened
the plant alleged discriminatee Mary Long tele-
phoned Christensen to ask why she had not been
hired. Long testified that Christensen said he had
told his supervisors to screen applicants for em-
ployment carefully, and to select employees so as
to avoid the "predicament" that existed at Quaker
Oats. Long admitted that Christensen never men-
tioned the Union nor defined what he meant by
Quaker Oats' predicament. The judge determined,
however, that Christensen's references to screening
and to avoiding the "predicament" were designed
to tell Long that the Respondent was not going to
deal with the Union and grievances. The judge
relied in part on his findings that while Quaker
Oats was in operation Christensen and other
Quaker Oats' supervisors told employees that there
would not be a union under the new owners. The
judge concluded that Christensen's remarks to
Long violated Section 8(a)(1) of the Act.
We disagree. In the context in which it was
made, Christensen's reference to screening and his
Specifically, the judge found that in the spring of 1982, amid rumors
that Quaker Oats was closing the plant, Christensen told Quaker Oats
employee Eldon Waltman that Quaker Oats main office was "real upset
about the way the union was wnting gnevances for women and blacks."
The judge also found that on 22 June, while escorting a potential buyer
through the Quaker Oats plant, Chnstensen told employee Crowley that,
although things looked good for finding a buyer to keep the plant in op-
eration, there would be no union when the plant reopened. In addition
the judge found that on 29 April Quaker Oats Supervisor Richard Bishop
told employee Alvin Bethany that the Union was the cause of the plant
closing and that the plant would be without a union if It reopened. Final-
ly the judge found that between 29 Apnl and 25 June Quaker Oats Su-
pervisor Zelma McKnight told employees that neither "trouble makers"
nor the Union would be there when the plant reopened.
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remark on Quaker Oats' predicament is ambiguous
and is a likely reference to that company's inability
to remain in business. We do not find that these
ambiguous statements violated the Act. The record
does not show that Long was aware of the more
pointed remarks made by Quaker Oats' supervisors
prior to closing that might arguably give some
other veiled meaning to Christensen's statement. In
any event the statement on its face remains an in-
nocuous comment which would not reasonably
tend to restrain, interfere with, or coerce employ-
ees in the exercise of their rights.
We also disagree with the judge that the evi-
dence establishes that the Respondent harbored a
general animus toward the Union. While we agree
that the remarks made by various supervisors while
employed by Quaker Oats tend to show antiunion
sentiment, we note that the Respondent nonetheless
selected its entire work force from employees of its
predecessor. By doing so the Respondent assured
itself of the Union's presence, at least as far as the
Respondent's obligation to recognize the Union
until its majority standing was placed in doubt as
discussed below. Such a step by the Respondent
strongly militates against the finding that the Re-
spondent held and acted on the views expressed by
its supervisors prior to their employment. The Re-
spondent could have precluded any obligation to
recognize the Union as representative of its work
force by considering the 233 employment applica-
tions it received prior to opening, over 70 percent
of which were from persons not employed by
Quaker Oats, and hiring a majority who had not
been employed by Quaker Oats. In view of the
hiring procedure used by the Respondent we find
that the evidence does not establish that the Re-
spondent harbored animus toward the Union.
C. The Refusal to Hire7
As noted above, for the reasons stated below, we
reverse the judge's finding that the Respondent
violated Section 8(a)(3) and (1) by refusing to hire
the four individuals discussed below.
1. Mary Long was hired by Quaker Oats in 1955.
From 1969 until Quaker Oats closed she worked as
a janitor. For the last few months of Quaker's op-
eration, she was the sole janitor employed. The
judge found that Long was a union member since
1955, that she served as shop steward in the late
1960s, and that she was the financial secretary
around 1977. Long also was on the Union's negoti-
ating committees for collective-bargaining agree-
7 We agree with the judge's conclusions that the Respondent did not
violate the Act by refusing to employ applicants Henry Davis, Jack
Crowley, and Eddie Mims We find no merit to the exceptions of the
General Counsel regarding Crowley and Mims
ments and for a special experimental project agree-
ment ("the sardine committee"). The judge found
that Long was first in seniority in the maintenance
department. Of 22 employees junior to Long, 10
were hired. Long was replaced by Swetlena Goff,
who had worked for Quaker Oats since 1976 in the
casting department.
The judge found no documentary evidence of
poor work. He credited Long's testimony that she
never received a written warning or criticism. The
judge found that she was complimented on her per-
formance by her supervisor and by Christensen.
Supervisors Bishop and McKnight, however, testi-
fied that the plant was not properly maintained by
Long during the last few months.
The judge did not credit the testimony that
Long's work was inferior. He concluded that Long
should have been selected for employment based
on the Respondent's guidelines of seniority and
work performance. The judge considered that
Long was "deeply and visibly" involved in the
Union after 1977. Relying on his earlier findings
that the Respondent was hostile toward the Union
after 1977, the judge found the Respondent's basis
for not hiring Long to be pretextual and concluded
that the failure to hire Long violated Section
8(a)(3) of the Act.
The Respondent argues that Long's union activi-
ties were negligible. Long testified that she handled
only four or five grievances while she was a union
officer. As a committee member, Long was not a
primary spokesman. The Respondent contends that
Long was a good employee for a number of years,
but that in the last few months of employment her
ability to complete her job duties diminished be-
cause of health problems which caused her to miss
4 or 5 weeks of work and which coincided with
Quaker Oats' elimination of the other janitorial po-
sition. The Respondent relied on the testimony of
Supervisors McKnight, Christensen, and Bishop
that Long frequently complained about not feeling
well and that her work deteriorated. Supervisor
Bishop testified that he decided to hire another in-
dividual because of Long's difficulties.
We find merit to the Respondent's exceptions.
The General Counsel has failed to carry her
burden to show that the Respondent refused to hire
Long because of her union activities. The main de-
ficiency in the General Counsel's case is the failure
to show that Long's union involvement after 1977
was part of the Union's resurgent activity. Al-
though Long was a union member and served as fi-
nancial secretary and negotiating committee
member in the post-1977 era, we note that she had
minimal involvment with grievances and that em-
ployees with comparable union affiliations were
SUN COAST FOODS 1645
both hired and rejected by the Respondent. When
this factor is combined with the Respondent's lack
of demonstrated animus, the General Counsel's
prima facie case fails.
Even assuming that the prima facie case was
made, we find that the Respondent has demonstrat-
ed that it would not have hired Long even in the •
absence of her union activities. The judge credited
Long's testimony that her work was not criticized,
and the Respondent readily admitted that Long
was a good employee for many years. However,
Long admitted in her testimony that in the several
months before Quaker Oats closed, she was hospi-
talized and was absent from work for 4 to 5 weeks
with ill health. She further testified that, on her
return to work, the duties required of her had dou-
bled. Given these factors, we find that the Re-
spondent believed that another individual was more
capable of fulfilling its job requirements and for
that reason did not hire Long.
2. David Sewell was a manufacturing specialist
in Quaker Oats' manufacturing department. After
1977, Sewell was a steward, a chief steward, a vice
president and, at the close, president of the Union.
During that time he served on 15 to 20 grievance
committees. Sewell was first in seniority among the
manufacturing department employees who applied
to the Respondent for jobs. The judge credited
Sewell's testimony that his work was never criti-
cized. The judge concluded that Sewell would
have been hired in the absence of union activity.
We disagree with the judge and find merit to the
Respondent's exceptions. The Respondent's super-
visors credibly testified that the manufacturing de-
partment at Quaker Oats was the least efficient di-
vision. The Respondent's belief in this opinion is
demonstrated by the fact that the Respondent hired
just 2 of the 11 individuals from that department
who applied. 8 One of the employees hired served
as a steward in 1980; several rejected employees
had no visible union affiliation. We are convinced
by these factors that the Respondent applied the
lawful criteria of seniority and work performance.
Although Sewell had greater seniority than those
employees hired, the General Counsel has not
shown that his performance was equal to or better
than that of the individuals who were accepted.
When we consider this in combination with the ab-
sence of union animus of the Respondent, we must
conclude that the General Counsel has not carried
her burden to show unlawful discrimination.
• In dismissing the allegations that the Respondent refused to hire
Sewell, Sipp, and Sanderson, each of whom worked m the manufacturing
department, we note an incongruity in the judge's decision in that he ac-
cepted as lawful the Respondent's decision to hire only two employees
from this department, but nevertheless found that three persons were un-
lawfully denied employment.
3. Eugene Sipp was a meat handler in the manu-
facturing department at Quaker Oats. Sipp was a
steward from 1977 to 1978 and filed four or five
grievances while serving in that capacity. He also
acted as recording secretary from 1978 to 1982,
and was on the grievance and negotiating commit-
tees. Sipp was eighth in seniority in the manufac-
turing department. The judge credited his testimo-
ny that his work was never criticized and conclud-
ed that in the absence of union activities Sipp
would have been hired. We disagree, and find, for
the same reasons as we found in the case of David
Sewell, that the General Counsel has failed to
make out a case of unlawful discrimination.
4. Curtis Sanderson was a forklift operator in the
manufacturing department at Quaker Oats. Sander-
son was a member of the Union since his hire in
1970 and served as steward in 1979 and 1980, when
he processed between 15 and 25 grievances. The
evidence does not indicate any union activity by
Sanderson after 1980. Sanderson was fourth in se-
niority in his department. The judge credited his
testimony that he was never criticized for the qual-
ity of his work. The judge concluded that he
would have been hired in the absence of union ac-
tivity. We disagree and find, again for the reasons
cited in the case of David Sewell, that the General
Counsel has failed to show discrimination in the
Respondent's refusal to hire Sanderson.
D. The Refusal to Bargain
The General Counsel alleged that the Respond-
ent unlawfully refused to bargain with the Union
by withdrawing recognition 16 September. The
judge found that the Respondent is a successor to
Quaker Oats whose obligation to bargain with the
Union attached 19 July, the date the Respondent
resumed operations with the 51 employees it had
hired.
The judge found that the Respondent's officers,
Christensen and Hammond, while they were agents
of Quaker Oats, negotiated with the Union con-
cerning the effects of Quaker Oats' closing. During
those negotiations, from late April until late June,
Union Representative Hubert Mills repeatedly in-
quired about the identity of prospective buyers of
the plant. Mills asked Hammond and Christensen
to inform any buyer of the Union's representative
status. The judge found that the Union made de-
mands for recognition 6 May and 24, 29, and 30
June during Mills' meetings with Hammond and
Christensen.
On 7 July the Union sent a bargaining demand
letter to the Respondent's registered agent, Karl
Wiesenburg. Wiesenburg replied that he did not
have bargaining authority. On 5 August Mills again
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wrote to Wiesenburg and requested a bargaining
meeting or, if Wiesenburg lacked authority to bar-
gain, the name of the appropriate official. On 16
August Wiesenburg wrote to Mills advising that his
letter had been forwarded to the Respondent's vice
president, Christensen. On 8 September Mills sent a
bargaining demand letter to Christensen. On 13
September the Respondent's manager, Hammond,
telephoned Mills and agreed to meet with the
Union 22 September.
On 16 September Hammond received a petition
signed by 35 of the 51 unit employees stating that
the employees did not wish to be represented by
the Union. Relying on the petition as casting a
doubt on the Union's majority status, Hammond
wrote to Mills 16 September and canceled the
meeting. Since that date the Respondent has re-
fused to recognize and bargain with the Union.
The judge found that the Respondent violated
Section 8(a)(5) of the Act by failing since 19 July
to recognize the Union. The judge found that the
Respondent engaged in unlawful dilatory tactics
between 19 July and 13 September. The judge
found that this unlawful conduct, combined with
what the judge found to be the Respondent's un-
lawful threats and refusals to hire, precluded the
Respondent from having a good-faith doubt of the
Union's majority status. In addition, the judge im-
plied that the employee petition on which the Re-
spondent relied was tainted by supervisory assist-
ance. We find merit to the Respondent's exceptions
to these findings.
We cannot agree that the Respondent engaged in
dilatory tactics before recognizing the Union. We
agree with the judge that the Respondent's obliga-
tion to bargain on request attached 19 July. 9 Fol-
lowing that date the Union made its bargaining
demand 5 August. This demand was promptly an-
swered by the Respondent's agent, Wiesenburg, 16
August. Although the Respondent did not contact
the Union between 16 August and the Union's next
demand 8 September, we do not consider such a
gap of time so unreasonable as to indicate bad
faith.' ° We find that the Respondent's 13 Septem-
ber reply and its agreement to meet 22 September
satisfied its obligations.
We further find that the Respondent was privi-
leged to withdraw recognition from the Union 16
September. On that date the Respondent was pre-
sented with a petition signed by a majority of its
9 The Respondent concedes it is a successor and that it was obligated
to bargain with the Union 19 July In light of this, Chairman Dotson
finds It unnecessary to express his view on the Board's law concerning
successorship
is It appears that the Respondent's inaction after 16 August may have
been caused by a misunderstanding that Mills was to contact Christensen
directly
employees expressing their desire not to be repre-
sented by the Union." Such a petition is an ade-
quate basis on which the Respondent could base a
reasonable doubt of the Union's majority status.
Based on our dismissal of the complaint in all other
respects, the Respondent's doubt was raised in an
atmosphere free of unfair labor practices." Ac-
cordingly, the Respondent has not engaged in any
conduct violative of Section 8(a)(5) of the Act.
Based on our conclusions that the Respondent
has not engaged in any unlawful conduct, we shall
order that the complaint be dismissed.
ORDER
The National Labor Relations Board orders that
the complaint is dismissed in its entirety.
" The petition heading read, "We the following employees, do not
wish for the International Chemical Workers' Union to represent us The
following employees names are listed below"
" We reject any implication by the judge that the employees' petition
was tainted by supervisory participation The record demonstrates that
the petition was instigated by a unit employee in response to rumors that
the Respondent and the Union were preparing to bargain Employee
Swetlena Goff testified that she and another unit employee composed the
petition but were uncertain of the Union's complete name Upon their in-
quiry, a supervisor told the employees the Union's name Goff testified
that she asked another supervisor for permission to seek employees' sig-
natures The supervisor responded that he "didn't care" We find nothing
in these circumstances to justify a finding of supervisory assistance that
would taint the employees' expression of disinterest in the Union
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge.
This case was heard in Pascagoula, Mississippi, on May
23, 24, 25, and 26, 1983. Case 15-CA-8758 was filed on
October 28, and amended on November 4, 1982. The
complaint issued on December 10, 1982, and was amend-
ed on February 3, 1983. Case 15-CA-8836 was filed on
December 28, 1982. That complaint issued on January
31, 1983. As shown hereafter, the complaints allege that
Respondent engaged in various violations of Section
8(a)(1), (3), and (5) of the Act
On the entire record, and from my observation of the
witnesses, and after due consideration of the briefs filed
by the General Counsel and Respondent, I make the fol-
lowing
FINDINGS OF FACT
I. ALLEGED UNFAIR LABOR PRACTICES
A. Background'
This case involves activity shortly before and during
the closing of a plant, and the plant's purchase and re-
' The commerce, facts, and conclusions are not at Issue Respondent
admits that from July 19, 1962, Respondent, a Mississippi corporation
with facilities located in Pascagoula, Mississippi, is engaged in the proc-
Continued
SUN COAST FOODS 1647
opening by a successor employer. Until the end of June
1982, Quaker Oats engaged in the manufacture of canned
pet food in Pascagoula, Mississippi.
In April 1982, the employees were advised that
Quaker Oats would close its Pascagoula facility. At the
time of that announcement and for several years before
1982, the Pascagoula employees were represented by
International Chemical Workers Union, Local 540. The
General Counsel alleges that during the period before
the facility was closed by Quaker, and reopened by Sun
Coast Foods, employees were coerced through state-
ments from their supervisors in violation of Section
8(a)(1) of the Act. Through those alleged illegal state-
ments and others, the General Counsel contends that su-
pervisors expressed displeasure with the Union which
stemmed from the Union through new officers, .adopting
a more aggressive position on grievances and negotia-
tions since 1977. The General Counsel alleges that the
employees were threatened that the successor employer
would operate without the Union and without trouble-
makers.
After the facility was closed and its employees laid ,off
on June 25, 1982, the Quaker facility was reopened by its
buyer, Sun Coast Foods, Inc on July 19, 1982. Sun
Coast employed 51 hourly employees. All 51 of those
employees formerly worked at the same facility for
Quaker. Immediately before its close, Quaker employed
70 hourly employees.
The General Counsel alleges that Respondent refused
to hire seven former Quaker employees because of their
involvement with the Union since the Union started its
more aggressive activity in 1977. Those seven employees
are Jack Crowley, Henry Davis, Mary Long, Eddie
Mims, Curtis Sanderson, David Sewell, and Eugene
Sipp.
During the period before the closing by Quaker, the
Union negotiated with Quaker. During those discussions,
the Union questioned Quaker as to whether it had a
buyer. The officials representing Quaker included John
Christensen, manager for Quaker at Pascagoula, and
Andy Hammond, Quaker's manager of employee and
community relations at Pascagoula. Immediately upon
reopening by Sun Coast, Christensen was installed as Sun
Coast's vice president and general manager and Ham-
mond was Sun Coast's purchasing and planning manager.
As of the last meeting between the Union and Quaker on
June 30, Christensen and Hammond told the Union that
they did not have a firm buyer, but they agreed to
inform the Union when a buyer was identified. However,
neither Christensen nor Hammond told the Union about
Sun Coast's purchase.
On July 7, 1982, the Union requested to meet and bar-
gain with Sun Coast through Sun Coast's registered
agent for service of process, Attorney Karl Wiesenburg.
The certificate and articles of incorporation of Sun Coast
Foods, Inc., filed with the Mississippi Secretary of State
on June 29, 1982, list Karl Wiesenburg as its registered
essing and sale of canned pet food, and is an employer engaged in com-
merce within the meaning of Sec 2(6) and (7) of the Act The complaint
alleges, and Respondent admits, that the Charging Party (the Union) is a
labor organization within the meaning of Sec 2(5) of the Act
agent. Shortly thereafter, Wiesenburg informed the
Union that he lacked authority to bargain for Sun Coast
On August 5, the Union wrote Wiesenburg requesting
the name of the person that was authorized to bargain
for Sun Coast. Wiesenburg wrote the Union on August
16, acknowledging that he was the registered agent for
service of process for Sun Coast. Wiesenburg indicated
that he had forwarded the Union's letter to John Chris-
tensen.
On September 8, 1982, the Union again requested that
Sun Coast meet to negotiate for its Pascagoula employ-
ees This request was sent to John Christensen at the
Pascagoula facility Respondent was given a September
14 deadline to respond before the Union filed charges
with the Labor Board.
On September 13, Andy Hammond called the Union
and agreed to meet. That call was confirmed in a Sep-
tember 14, 1982 letter from Hammond to the Union's
representative, Hubert Mills ' The parties agreed to meet
on September 22, 1982. -
On September 16, 1982, Hammond wrote Mills that
Respondent had been presented with a petition from 35
of its 51 employees expressing that they did not wish the
Union to represent them. Hammond indicated Respond-
ent would not meet with the Union
The General Counsel alleges that Respondent violated
Section 8(a)(1) and (5) by withdrawing its recognition of
the Union.
B The 8(a)(1) Allegations
Before 1977, there was some concern that the Union
was not actually processing grievances at Quaker Oats'
Pascagoula facility Jack Crowley ran and was elected
president of Local 540 on a campaign that he would file
and process grievances. Supervisors Roger Danley and
Zelma McKnight and General Manager Christensen ad-
mitted that employee grievances did increase after 1977
when Crowley was elected president. Union Representa-
tive Hubert Mills credibly testified that before 1977 few
grievances reached arbitration—the stage where he
became involved. However, with the election of Crow-
ley, grievances increased to the point that from 1977 to
the plant's June 1982 closing, Mills received more griev-
ances for arbitration from Local 540 regarding Quaker's
Pascagoula employees than from all of the 17 other
locals he serviced.
John Tucker2 and, subsequently, David Sewell fol-
lowed Crowley as Local president before Quaker's June
1982 closing. The testimony indicated that the rate of
grievances continued to increase after Crowley left
office.
1. John Christensen
Former Quaker employee Eldon Waltman testified
there were rumors in the spring of 1982 that the Pasca-
goula plant would close Around that time, Waltman was
called into John Christensen's office to receive a ring for
2 Tucker was not employed by Respondent after the July 19 opening
However, he is not alleged as a discnminatee, and the record does not
indicate anything regarding the failure to employ Tucker
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
20 years' service. While waiting for two foremen, Walt-
man asked Christensen about the possibility of the plant
closing. According to Waltman, Christensen told him:
He said right at the present time that there wasn't
no plans to close it, but they was—the Chicago
office was real upset about the way the union was
writing grievances for women and blacks. At the
time they had about 36 in the process. And that
they was upset about not accepting the contract for
the sardines, and the sardines needed to come there
and hold the plant together, and about that time the
other bosses come in.
On April 29, 1982, Christensen announced to all em-
ployees that Quaker Oats would close the Pascagoula
plant.
On June 22, 1982, Jack Crowley saw Christensen es-
corting a group throughout the plant. Crowley went to
Christensen as Christensen passed through the waste
treatment area. According to Crowley:
I asked Mr. Christian how would be—what was the
chance of the plant, and how did it look for the
people that worked there? And he told me things
was looking good, and he said, "I'll guarantee you
one thing when it opens back up, that there won't
be any union here."
About a week after Sun Coast started production on
July 19, 1982, Mary Long called and asked Christensen
why she had not been called back to work:
So he told me he knew what I meant, and he felt
the same way. He said he didn't [know] why I
wasn't hired. He said, but he had told Eddie Furby
and Dick Bishop and McKnight that he was going
to leave it up to the three of them, and for them to
screen those people good and to pick those that
called back, because if they didn't they'd be in the
same predicament they was before, and we couldn't
have that.
Discussion
John Christensen denied making the above mentioned
comments to either Waltman, Crowley, or Mary Long.
For several reasons, I do not credit Christensen's denials.
In the first place and most importantly, I was not im-
pressed with Christensen's demeanor. Throughout his
testimony, Christensen appeared nervous and ill at ease.
Moreover, Christensen appeared overly anxious to ex-
plain portions of his testimony.
Secondly, the record demonstrated that John Christen-
sen was a knowledgeable manager that was in demand.
Sun Coast informed him that his agreement to stay on
and run the plant was vital to its interest in buying the
facility. Nevertheless, according to Chnstensen's testimo-
ny, he was divorced from many of the important deci-
sions at the facility. Christensen testified to the effect
that he knew little about the development of the sale
until shortly before the plant reopened. Christensen pro-
fessed to have no advance knowledge that he was be-
coming a vice president and general manager for Sun
Coast. He professed to know of no discussions involving
the buyers regarding the Union. 3 He knew little about
the work performance of most of the alleged discrimina-
tees, and he professed little knowledge about the selec-
tion of Sun Coast employees. I find it unusual that any
person charged with running a relatively small plant
would have so little knowledge about relevant issues. It
is particularly surprising here in view of the demand for
Christensen to continue running the plant. It is doubtful
that anyone would be in demand if he knew no more
than Christensen professed he knew.
Thirdly, the statements considered above were alleg-
edly uttered by several different supervisors to numerous
employees. Substantial evidence does show that the
Union increased its activities after 1977 to the point
where almost any employer would have been disturbed.
I find it incredible that Quaker's Pascagoula managers
were not disturbed, and I discredit Christensen's testimo-
ny to that effect. Against that background, Christensen's
comments to Waltman appear logical. Moreover, I was
impressed with the demeanor of Waltman, Crowley, and
Long as they testified regarding the alleged comments
by Christensen. All three were able to testify in a com-
fortable manner regarding the alleged comments and the
facts material to those particular circumstances.
2. Richard Bishop
a. Jack Crowley
Jack Crowley testified that he called the plant on July
7, 1982, about his application for employment with Re-
spondent. Crowley testified that he talked with Dick
Bishop.
Oh yes On—I believe it was July the 7th, I called
the plant, and I talked to Dick Bishop, and I asked
him was he going to call me back, and he in return
he said the company has hired all the people that
they intended to, and I said, "Well, what will be the
chances of me getting on later?" And he said—kind
of laughed over the phone, and made the statement
to me that, that because I was a trouble maker, and
because of my union activity, I wouldn't get on,
and hung the phone up.
Bishop denied having any phone call with Crowley re-
garding Crowley's application at Sun Coast.
Discussion
I was generally impressed with Jack Crowley's testi-
mony. In most areas, he appeared to testify candidly.
However, I am convinced that Crowley was not always
truthful. Apparently Crowley made several phone calls
to Respondent's employee Ralph Bethany and inquired
as to occurrences at the plant and as to Bethany's will-
ingness to testify in the instant hearing. When questioned
about Bethany, Crowley contended that he was unaware
3 Nevertheless, art 7 2 of the asset purchase agreement between Re-
spondent and Quaker Oats (in evidence) demonstrates that the buyers
(Respondent) did discuss and become aware of the Union at the Pasca-
goula facility
SUN COAST FOODS 1649
that Bethany worked for Respondent. That statement
was untrue. It was obvious that Crowley knew where
Bethany worked.
It appeared that Crowley felt he was prohibited from
talking with Bethany and, for that reason, he refused to
admit facts which may have been incriminating. Similar-
ly, his testimony regarding the Bishop phone call in-
volved Crowley's personal interest (i.e., whether he was
illegally denied employment). Therefore, in view of
Crowley's demonstrated reluctance to be truthful when
his personal interests are at stake, I shall discredit his tes-
timony about the Bishop phone conversation.
b. Alvin Ralph Bethany
Alvin Ralph Bethany testified to a conversation he had
with Richard Bishop following the plant closing an-
nouncement on April 29, 1982. At the hearing, Bethany
testified that he had a conversation with Bishop in the
parking lot and:
We was talking—more or less we was talking about
sardines. And he said that the union was the cause
of the sardines not—not to go through. And that
was it on that.
Bethany denied at the hearing that Bishop said that the
plant was closing because of the Union or that the plant
would have no union if it reopened. However, two writ-
ten statements by Bethany were introduced into evi-
dence. Bethany admitted signing the two statements. In
both, Bethany testified that on April 29, 1982, Ralph
Bishop told him that the plant was closing because of the
Union and that, when it reopened, it would be without a
union. One of the statements was given to the Union in
July 1982; the other to Board Agent Clement Kenning-
ton in February 1983.
Bethany denied telling the Union and Board Agent
Kennington that Bishop attributed the plant closing to
the Union. I am convinced and find that Bethany did tes-
tify as related in those two affidavits. Bethany, who is
currently employed by Respondent, admitted that he was
under pressure not to testify, and that the pressure was
getting to him. He was not under similar pressure when
he gave the written statements.
I am convinced and find that Ralph Bishop told em-
ployee Bethany on April 29, 1982, that the Union was
the cause of the plant closing and that the plant would
be without a union if it reopened. 4 See Alvin J. Bart &
Co., 236 NLRB 242 (1978); Star Kist, Samoa, 237 NLRB
238 (1978); see also Fed.R.Evid. 803(24), 804(b)(1), and
804(b)(5).
3. Zelma McKnight
Eldon Waltman testified that following the April an-
nouncement that the plant would close, his fellow em-
ployees frequently asked their supervisor, Zelma
McKnight, if "he knows anything, who was going to
4 This matter was not alleged as an 8(aX1) violation. However, I find
that the conversation occurred, and I will consider that in subsequent
findings herein where such considerations are material to the particular
issue at hand.
take over the company or what, and who was going to
work."
According to Waltman, on many of these occasions,
McKnight replied to the employees to the effect that
"troublemakers" and the "Union" would not be there
when the plant reopened. Waltman testified that all those
incidents occurred between the April announcement that
the plant would close and the actual closing. Waltman
said that McKnight did not identify the troublemakers.
Former employee James Page corroborated Waltman.
Page testified that he overheard a conversation in the
maintenance shop a few weeks before Quaker closed the
plant. Zelma McKnight, Eldon Waltman, Lonnie
Graham, Bert Rae, and Carl Scale were present. Page
overheard Zelma McKnight say that the plant "would
probably reopen, but there wasn't going to be any union
there and there Wasn't going to be any trouble makers."
Zelma McKnight denied threatening that the reopened
facility would be nonunion without troublemakers. Re-
spondent also called Bert Rae, Lonnie Graham, and
Robert McLain who are currently employed by Re-
spondent. All those employees worked under Zelma
McKnight at Quaker and all testified that they never
overheard McKnight say that troublemakers and the
Union would be eliminated if the plant reopened.
McKnight admitted that employees asked him about
the possibility of the plant reopening. However, accord-
ing to McKnight, he always responded simply that he
did not know.
Discussion
Zelma McKnight was a supervisor under the direct su-
pervision of Manager of Engineering and Maintenance
Richard Bishop. The alleged comments made by
McKnight are similar to the comments Bishop made to
Alvin Bethany (above). I am convinced, on the basis of
the entire record, that several supervisors, including
Christensen, Bishop, and McKnight, felt that the Union
and "troublemakers" within the Union contributed to the
closing of the Pascagoula plant. Therefore, I find that
the probabilities are that McKnight made the threats as
testified by Waltman and Page.
Moreover, I do not credit McKnight on the basis of
my observation of his demeanor. I do not believe that
McKnight replied to numerous questions about possible
reopening by simply saying that he knew nothing.
During the time of those conversations McKnight
along with Bishop and others were involved in efforts to
organize a more efficient operation at Pascagoula. Obvi-
ously, grievances oftentimes have a detrimental effect on
efficiency. Respondent's contention that it was not both-
ered by increased grievances does not wash in view of
the strong emphasis the reorganization group placed on
streamlining their operations. McKnight admitted that
there was an increase in the number of grievances filed,
and that those grievances affected his operation by
taking people from their work "to go to the union meet-
ings and so forth:"
Waltman testified that McKnight occasionally men-
tioned "that the union wouldn't be there [when the plant
reopened] to write grievances on him, and giving him
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hard times, is the way [McKnight] put it." I am con-
vinced and find that Waltman and Page testified truthful-
ly. I do not credit McKnight. Nor do I credit the testi-
mony of those employees who currently work for Re-
spondent.
C. The Refusal to Hire
As shown above, the credited evidence in support of
the 8(a)(1) allegations demonstrates that it was Respond-
ent's intent through its supervisory force to eliminate the
Union. The initial decision regarding hire at Sun Coast
rested with John Christensen. According to Christensen,
he delegated that responsibility to three of his high-level
supervisors, Richard Bishop, Lee Dodge, and Ed Furby
As shown above, credited evidence demonstrated that
Respondent's supervisory hierarchy felt that the Union
and grievances under the collective-bargaining agree-
ment contributed to Quaker Oats' decision to close.
Other evidence demonstrated that it was not unusual for
supervisors to blame the Union for Quaker Oats' prob-
lems at Pascagoula. Former employees Corinthian Smith
and James Shannon credibly testified that Supervisor
Ronald Landrum told employees, before the plant
closed, that grievances were a nuisance to him and to
management, and that when the plant reopened, it would
be without a union.
The record proves that Respondent, through John
Christensen and his supervisors, was motivated to elimi-
nate the Union when the plant reopened on July 19,
1982. The General Counsel contends that the plan to
eliminate the Union followed two routes . (1) The Com-
pany planned to deny reinstatement to hardcore union
supporters, and (2) Respondent planned to deny recogni-
tion to the Union.
The alleged refusals to hire
In analyzing these allegations, it is important to distin-
guish the instant situation from a discharge case. Here,
the General Counsel presented no evidence contesting
Respondent's decision to employ 51 hourly employees as
opposed to the 70 employed by Quaker at the time of
closing. Therefore, the critical query must involve
whether Respondent discriminatorily selected for em-
ployment employees other rather than the alleged discri-
minatees, because of their protected activities.
In consideration of the above issue, I shall consider:
(1) whether the particular employee was associated with
the post-1977 union activities in light of my finding
above of Respondent's demonstrated animus; (2) whether
the particular employee was discnminatonly denied em-
ployment; 5 and (3) whether the evidence established that
that particular alleged discriminatee would have been
denied employment in the absence of protected activity.
5 In consideration of this issue, I note that General Counsel did not
prove that Respondent's asserted basis for selecting employees was, in
and of itself, illegal Therefore, as to each individual, I shall apply the
standard used by Respondent The factors used were (1) number of years
of canning factory experience, and (2) demonstrated good work perform-
ance (see letters from Respondent to Hankins of the NLRB Regional
Office (G C Exhs 22 and 23))
a. Jack Crowley
There is no doubt that Crowley was visibly involved
in protected activity. Crowley was elected president of
Local 540 in 1977 after he campaigned on a platform to
process grievances. Crowley estimated that he was in-
volved in the processing of approximately 170 griev-
ances. After serving as president for 2-1/2 years, Crow-
ley served as steward and chief steward until the plant
closed. Crowley testified that he and Andy Hammond
had words regarding the filing of grievances during
meetings in 1977 and 1978. According to Crowley, Ham-
mond threatened to discharge him in 1978 when Crow-
ley brought up grievances being filed with black employ-
ees. Hammond testified that he did not recall having
those disputes with Crowley.
Regardless of my determination as to whether the
Crowley-Hammond arguments occurred in 1977 and
1978, it is clear, and I find, that Respondent was aware
of Jack Crowley's deep involvement in the post-1977
union. The record, and especially that portion noted in
discussions above, clearly established that Respondent
was motivated to rid itself of Jack Crowley.
Therefore, I shall now consider whether the record
shows that Crowley was discriminatorily rejected for
employment.
As indicated above, Respondent allegedly based its
employment decision on two factors: (1) seniority and (2)
work performance.
(1) Seniority
The record includes a maintenance department seniori-
ty list dated June 25, 1982. Twenty-two employees ap-
peared on that list. Jack Crowley, who was originally
hired by Quaker on August 14, 1972, appears as the 18th
employee on the seniority list. Only four employees are
listed as junior to Crowley. None of those four junior
employees were hired by Respondent. Additionally,
seven employees listed as senior to Jack Crowley were
not hired One of those seven is listed as "disabled," and
another is alleged discnminatee Mary C. Long.
On the basis of the above evidence, which was not dis-
puted by the General Counsel, I find that Jack Crowley
did not qualify for employment by Respondent on the
basis of his seniority
(2) Job performance
Respondent offered testimony which included testimo-
ny from a former supervisor of Jack Crowley to the
effect that Crowley did not perform his work satisfacto-
rily That former supervisor, Lonnie Roberts, is not pres-
ently employed by Respondent. Crowley, in his testimo-
ny, contended that he was a competent employee.
Work review evaluations in the record show that Jack
Crowley was rated "marginal" on maintenance skills in
March and April 1979. No other work review evalua-
tions were received in evidence. Columns for good, satis-
factory, marginal, and unsatisfactory appear on the eval-
uation form.
The General Counsel offered "change notices" for
Jack Crowley from Quaker Oats business records. Those
SUN COAST FOODS 1651
notices which were dated in 1972, 1973, and 1974 list
Crowley as a trainee and list his "quality of service" as
good. Ratings of excellent, good, fair, and poor were in-
cluded on those forms
Change forms submitted also include thi ee dates, Janu-
ary 6, 1975, and August 24 and 31, 1981. The 1975 form
lists Crowley's "new job class" as "maintenance man"
and the "good block" under quality of service is
checked. Both the 1981 forms appear to represent in-
creases in pay and list, as "reason," "operation of seniori-
ty." On those two 1981 change forms, no rating is given
under "quality of service."
Despite the confusion over the quality of Crowley's
performance, Crowley did admit that he was not skilled
at electrical work or at reading blueprints. He admitted
that he performed no troubleshooting work and that he
was not a certified welder. Crowley admitted that he
was once asked by Supervisor McKnight to waive se-
niority in order to permit Eddie Mims 6 to return to the
maintenance department. Crowley admitted that he has
taken only 2 of over 18 training courses offered for
maintenance employees.
In addition to the above, Respondent offered testimo-
ny through Manager of Engineering and Maintenance
Richard Bishop to the effect that all the needed skills in
maintenance were covered by hiring employees, many of
whom having more than one of 1he skills required, who
appeared before Jack Crowley on the seniority list. No
evidence in the record rebutted that testimony.
In view of the above, I am unable to find that Re-
spondent treated Jack Crowley with disparity. The
record does not support a finding that but for his union
and other protected activities, Jack Crowley would have
been selected for employment. The record does show, as
alleged by Respondent, that in consideration of seniority
and work performance, a full employee complement was
hired from those employees senior to Crowley. The
record failed to show that any of the employees hired
lacked competence or that their prior work performance
was unsatisfactory.
The General Counsel correctly questioned Respond-
ent's contention that its supervisors did not consult work
records before making the decision on selection of the
work force. However, that fact does not establish a vio-
lation If the record had developed discrepancies be-
tween work records and testimony from supervisors, I
may have questioned that testimony and, perhaps, cred-
ited documentary evidence on the issue of work per-
formance. However, in the case of Jack Crowley, the
records failed to show such a discrepancy. Therefore, I
find that discrimination was not proven as to Crowley.
b. Henry Davis
Davis worked for Quaker from 1973 until the plant
closed on June 25, 1982. His last job was "Depalletizer
Operator" under the direct supervision of Fred
McKnight. Lee Dodge was head of the canning depart-
ment over Fred McKnight. Dodge selected employees
from canning for employment with Respondent.
6 MIMS is also an alleged discnnunatee in these proceedings
(1) Union activities
Davis joined the Union around 1974 About 2-1/2 or 3
years before the plant closed in 1982, Jack Crowley ap-
pointed Henry Davis to the position of shop steward.
Davis estimated that he filed 20 or 25 grievances for
other employees.
Davis testified that while he was shop steward, first
Jack Crowley was president, then John Tucker. Eugene
Sipp was recording secretary and treasurer, Dave Sewell
was vice president, and Curtis Sanderson was one of the
shop stewards
(2) Seniority
Henry Davis was 16th on the canning department
June 25, 1982 seniority list. The list included a total of 27
employees. Of those 15 employees with more seniority
than Henry Davis, 11 were hired by Respondent. Of the
four not hired, one, Fannie Mae Williams, a depalletizer
operator, did not apply and another, Robert G. Heston,
was disabled. The two others with more seniority than
Henry Davis that were not hired were Dorothy Mae
Williams who, like Davis, was a depalletizer operator,
and Jack S Schmiers, a "clean-up leaderman."
Of the 11 employees with less seniority, four were
hired. One did not apply, one was disabled, and five
were not hired. No one formerly employed as a "depal-
letizer operator" was hired. The only Quaker "depalle-
tizer operators" were Fannie Mae Williams, Dorothy
Mae Williams, and Henry Davis. The four employees
junior to Henry Davis that were hired by Respondent,
included two "cereal unloaders," a "blender operator,"
and a "closer attendant"
(3) Job performance
Davis admitted that when he was assigned to the
"closer attendant" job, he could not keep up and was
disqualified from working that position When operating
a forklift, Davis backed into a post on one occasion and
lifted into and bent one of the production lines on an-
other occasion. He also admitted spilling a pallet of
10,000 cans Davis was removed from the job of greasing
machines because he was "putting too much grease in
the machines." Davis was unable to hold an unloading
job because the ladder he had to climb to measure syrup
was "too high for [him] to climb up."
Davis received a written warning on October 7, 1980,
for urinating in one of the cans at his work station on the
depalletizer. Davis admitted that he had done that on
other occasions and that female employees complained
that the cans he used to relieve himself got mixed in with
the other cans on the sanitary line and the workers got
urine all over their hands.
I sympathize with Davis. He impressed me as an
honest man. However, the record did not reveal the ex-
istence of any jobs at Respondent for which Davis was
qualified. As shown above, no depalletizer operators
were hired by Respondent and, by his own admissions,
Davis had shown an inability to handle other positions.
Although Davis' union activities may have been a
source of concern, the record demonstrates that Henry
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis would have been denied employment by Respond-
ent in the absence of protected activities.
c Mary Long
Mary Long was hired by Quaker on June 25, 1955.
She served as janitor from 1969 until the plant closed on
June 25, 1982. Her last immediate supervisor was J B
George. George worked under the supervision of Mark
Chamberlain who was directly under John Christensen.
When the plant closed, Long was the only janitor at the
plant
(1) Union activity
Before 1977, Long was a shop steward once in the late
'60s. She had been a member of the Local since 1955.
After the Union became more aggressive under Jack
Crowley, Long became financial secretary for Local 540
around 1977. She was on the Local's negotiating com-
mittee for its last three contracts with Quaker, and she
was on the Local's negotiating committee for a special
agreement for an experimental project with sardines.
(2) Seniority
Mary Long was at the top of the maintenance employ-
ees June 25, 1982 seniority list. Twenty-two employees
were listed as junior to her. Ten of those twenty-two
were hired by Respondent. Long was replaced by an
employee from the casing department, Swetlena Goff
Goff was not employed as janitor when Quaker
closed, and there is no evidence showing that she had
janitorial experience. Goff was employed by Quaker in
1976—some 21 years after Mary Long.
Additionally, Goff was not a member of Local 540
She testified that she notified Quaker that she had
dropped out of the Union in 1978. As shown below,
Goff circulated a petition to decertify Local 540 in Sep-
tember 1982.
(3) Job performance
Long credibly testified that she never received
writeups or criticism of her work during the 27 years she
worked for Quaker. She testified without rebuttal that
shortly before the plant closed in June 1982, Mark
Chamberlain complimented her work.
Yes, used to before the plant closed, he'd come by
the garbage can and helped me with the garbage
can, and told me that he knew it had been hard,
but—it was a lot of work, but I had kept the plant
real clean, and he appreciated the way I had kept
the front up in there trying to sell the plant, and he
felt like what I had done had helped to sell the
plant, and he just wanted me to know that he ap-
preciated it
Long testified without rebuttal that John Christensen
and Supervisor J. B. George complimented her work.
Q. I see. How about Mr. Christensen, did he ever
talk to you about your job?
A Well, once he—maybe more than once, sever-
al times when he would see me, he told us that
myself and Margaret Boyd, another employee there,
that our names were all over Chicago for keeping
the office like a hospital
Q. I see And how about your supervisor, J. B.
George, did he ever talk to you about your job?
A. Yeah, each time I come in contact with Mr.
George, he would tell me "looking good, looking,
keep up the good work."
Neither Chamberlain nor George was called to dispute
Long's testimony. Christensen first testified that after
cutting janitors from two down to one, Mary Long com-
plained that she could not do all the work. Christensen
testified that he understood that was why she was not re-
hired Later, Christensen testified that he observed that
Long was not cleaning the offices up to standard
Richard Bishop testified that restrooms were not
cleaned while Mary Long was the lone janitor. Zelma
McKnight testified there were several areas that needed
attention when Long was janitor. Both Bishop and
McKnight testified that Mary Long frequently com-
plained about her health
Discussion
Unlike the situation with employees mentioned above,
there is no documentary evidence demonstrating that
Mary Long performed her work poorly. Long's testimo-
ny that she was complimented by all her supervisors,
George, Chamberlain, and Christensen, is unrebutted. I
was impressed by Long's demeanor. She testified com-
fortably with apparent candor I shall credit her testimo-
ny
Neither Bishop nor Zelma McKnight, who testified
against Long, supervised her work.
No one testified that Long was ever written up, or
spoken to, as to poor quality work. Long testified that
she was never spoken to or disciplined
Therefore, I am unable to credit testimony that Long's
work was inferior. It was Quaker's policy to discipline
employees when necessary, as shown regarding other al-
leged discnminatees. Long testified without contradic-
tion that she was never disciplined in her 27 years with
Quaker Oats.
In view of the above, I find that Respondent refused
to employ Mary Long in violation of its asserted guide-
lines Mary Long should have been selected for employ-
ment on the basis of being the most senior employee in
the maintenance department and having an unblemished
work record
Mary Long was deeply and visibly involved in the af-
fairs of Local 540 after 1977.
Respondent's hostility to the activities of the Union
from 1977 is shown above. I find that Respondent's as-
serted bases for the discharge of Mary Long were pre-
textual and the true reason was her involvement in union
affairs after 1977.
In view of my findings above, and especially in consid-
eration of the fact that Mary Long was the only janitor
employed by Quaker Oats on June 25, 1982, I find that
SUN COAST FOODS 1653
the record evidence does not show that Mary Long
would have been denied employment absent her protect-
ed activities.
d. Eddie Mims
Eddie Mims was hired by Quaker on October 4, 1972.
Mims worked in the maintenance department. He
worked in the boiler room for the 3-1/2 to 4 months
before the plant closed on June 25, 1982. Like all the
other alleged discriminatees, Mims applied for work with
Respondent but was not hired.
(1) Seniority
Mims was one of the most junior maintenance depart-
ment employees. He ranked 19th out of 22. None of the
employees below him were hired by Respondent. Nei-
ther of the two employees immediately above him in se-
niority, Jack Crowley and Arnold Martino, were hired.
However, Martino was listed as disabled. Of the 18
maintenance employees with more seniority than Mims,
only 10 were hired by Respondent.
(2) Work performance
Respondent contends that its major problem with
Mims' job performance involved his temper. Former Su-
pervisor Lonnie Roberts testified to a series of incidents
during 1977, 1978, and 1979 when Mims lost his temper
and became abusive. Roberts testified that Mims threat-
ened him physically on numerous occasions during that
period of time. Mims admitted that he and Roberts had
arguments. However, Mims attributed those occurrences
to Roberts having "racial problems." Roberts is white.
Mims is black. Mims denied that he ever threatened
Lonnie Roberts.
On April 14, 1982, Mims had a run in with his supervi-
sor at that time, Harry Winnett. Subsequently, a meeting
was held with Andy Hammond, Harry Winnett, Grant
Murry, Union Steward David Sewell, and Mims. Ham-
mond pointed out that Mims had been loud, insulting,
threatening, and insubordinate. Mims, in turn, accused
his supervisors of being prejudiced. Mims stated that he
was "not going to tolerate it."
Findings
Obviously, employees are protected under the Act
from discipline because they vigorously prosecute griev-
ances under their collective-bargaining agreement. In the
case of Eddie Mims, some of Respondent's evidence re-
garding his intemperate behavior occurred in the context
of grievance proceedings. On other occasions, Mims may
have been protesting what he viewed as racial discrimi-
nation by supervisory personnel. However, the record
shows that, on several other occasions, Mims had run-ins
with supervisors, including Lonnie Roberts and Harry
Winnett, which did not involve protected activity. The
record shows that on numerous occasions, Eddie Mims
appeared to become irrational in his anger over what
should have been nothing more than a minor incident.
One such incident which was noted by former Supervi-
sor Roberts in his personal records 7 (quoted in part) fol-
lows:
I stopped & touched Eddie on the left shoulder, as
he turned around I told him to get off the phone &
back to work, the reason I told him in this manner
was that I saw a football sheet in front of him, I
then told him to put that thing up as I have told
you before you are not to bring them to work.
Eddie got verry upset at this time & said he was
talking to his wife. I told him I didn't care who he
was talking to, to hang up the phone, at this time
Eddie became verry upset he started cursing & yell-
ing at me about no M.F. was going to interupt him
while he was talking to his wife. He then hit the
phone receiver against the bottom of the phone
booth. I told him to stay there, I went to the proc-
essing door to see if Eddie Furby was inside, I
wanted a witness, Furby was not (no one was). At
this time Eddie said something else on the phone
and hung it up. I then followed him to the shop
where I told him to come over to the lathe where
Jack was. I told Jack I wanted him to know what
had happened. Eddie yelled out, you dam richt, I
will tell you what happen, I started telling Jack but
didn't ged far. Eddie was yelling in my face, about
no bonch of M.F.s was going to interupt him while
he was talking to his wife not even John C, & he
would tell him the same thing, I told him he would
probably get the chance. I told Jack he was talking
on the phone with a football card in front of him,
he said (Eddie) you are a dam lyer. I ask him to
show Jack what he had & he said what he had in
his pocket was his business & no M.F. was going to
see in it. At this time he was about 12 inches from
my face & beating his fist on the belt guard on the
lathe. [Sic.]
Mims admitted the above incident. However, he
denied that he was upset or that he cursed Roberts. Un-
fortunately, from Mims' standpoint, the record demon-
strates the occurrence of several instances similar to that
above.
In view of the substantial evidence, including Mims'
admissions, and the testimony of Lonnie Roberts and
Andy Hammond, I am convinced and find that Eddie
Mims had a number of serious disputes with supervisors
during which he became loud and insubordinate. In
making that finding, I note that one of the witnesses for
the General Counsel, alleged discriminatee David
Sewell, was not asked and did not testify in corrobora-
tion of Mims regarding the April 14, 1982 meeting with
Andy Hammond, Winnett, and Murry. I must presume
that Sewell would not have corroborated Mims if he had
been asked about that incident.
I find that Mims' behavior was a justifiable basis on
which to downgrade Mims' job performance. Additional-
7 Roberts recorded in his personal record several other incidents in-
volving Mims.
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly, as shown above, Mims lacked the necessary seniority
to qualify for one of the jobs offered by Respondent
Therefore, I find that Eddie Mims was not treated dis-
criminatorily Mims would not have been employed by
Respondent in the absence of his protected activity.
e. Curtis Sanderson
Curtis Sanderson started working for Quaker Oats on
January 19, 1970. He worked until the facility closed on
June 25, 1982. At that time his job was forklift operator.
Ronald Landrum was Sanderson's immediate supervisor
The department head over Landrum was Production
Manager Lee Dodge Sanderson applied for work with
Respondent in early July 1982.
Sanderson was a member of the Union from shortly
after his original hire date Sanderson testified that,
during the first 6 years of his employment, the Local had
a reputation of being close to management and not pur-
suing employee grievances. Sanderson served as shop
steward in 1979 and 1980 and processed some 15, 20, or
25 grievances. 8 In processing those grievances, Sander-
son worked with Supervisors Furby and Ronald "Slim
Landrum."
Evidence showed that Landrum was particularly hos-
tile to the Union and to the filing of grievances. Former
employee Corinthian Smith, who was a leaderman (man-
ufacturing specialist) when the plant closed, testified as
follows regarding a conversation with Landrum about 3
weeks before the plant closed:
I said, "Well," I said, "I'm going to do the best I
can long as I'm here." He said, "These other
people," he says, " I feel sorry for them in a way,"
he said, "There's a lot of them going to be standing
around with their mouth open, and it'll be too bad,
because when Quaker Oats sell out," he says, "A lot
of them won't be able to come back here, and we
won't have to be bothered with them any more. It's
hard to get along with them, and we just won't
have to be bothered with them any more." And he
says, "Nothing can help them then, because they'll
be on the outside looking in." He says, "Because as
far as the union's concerned, and all of that," he
says, "It'll be done away with. Because I'm really
tired of these grievance being filed against me,
anyway," he said, "it's just getting a nuisance
Every time you turn around it's just grievance,
grievance."
He says, "But it won't be long, and it'll all be
over." He said, "No union, and grievance—filing
grievance will help then, because another company
will have it, "take it over." That's the conversation
we had that day.
Smith testified to another conversation with Landrum
about a week later Employee James Shannon was also
present:
8 Ronald Landrum testified that he was unaware that Sanderson was
an officer in the Union Landrum did not deny that Sanderson was shop
steward or that Landrum was involved in the processing of gnevances
with Sanderson
Okay, so he—he say, "Smitty, you've never ever re-
fused to do what I tell you to do," says, "But, I'm
going to tell you," he says, "It's a job around here
to supervise some of these people today They're
slow about doing it, they don't want to—act like
they don't want to do it," he says, "and if you try
to push them too hard, they're going to have griev-
ances up against you," he says, "it's just pretty
rough on you. Like I told you back there," says,
"It's all winding down, it's just winding down to
where I won't have to be going through this stuff."
He said, "Of course, you take these grievances
they're having written up on me and filing against
me, and all that," he says, "then I got to put up
with it," he says, "it's just getting to be a nuisance
with it." He said, "But it won't be long before all
this will be over," he says, "and most of them's
going to be standing on the outside looking on the
inside, it just be something else to do." He says, "I
feel sorry for them," he says, "But I don't think the
company going to hire them back," he says, "they
won't have no help if we get them back, going in
the grievances or what not, won't accept every,"
says, "I don't believe they'll accept them back here
any more."
James Shannon testified that he recalled a conversation
with Corinthian Smith and other employees present with
Ronald Landrum where Landrum told them that the
plant would close down, and he would hire some of
them back but Landrum guaranteed there would be no
union.
Ronald Landrum denied discussing the Union with
Smith or Shannon He denied telling them what could
occur to the Union if the plant reopened. I was not im-
pressed with Landrum's demeanor. Both Corinthian
Smith and James Shannon demonstrated good demeanor
Neither is alleged as an alleged discriminatee herein and
neither has anything to gain through this proceeding.
Their testimony appeared logical, and I credit their testi-
mony.
In view of Sanderson's involvement in the grievance
procedures with Ronald Landrum, it is apparent that
Landrum's remarks to Smith constitute threats to not
rehire Sanderson after the plant reopened.
The testimony of Lee Dodge demonstrated that
Ronald Landrum was instrumental in selecting which
employees under his supervision at Quaker would be re-
hired by Respondent Landrum rejected Sanderson as an
employee for Respondent. On the basis of the above
facts, I find that Ronald Landrum was motivated to
reject Sanderson because of his activities on behalf of
Local 540.
I shall now consider whether Respondent discriminat-
ed against Sanderson by applying the guidelines set forth
in Respondent's statements of position to the Board.
(1) Seniority
Curtis Sanderson ranked fourth on the Quaker manu-
facturing department seniority list for June 25, 1982.
Two of the three employees senior to Sanderson, Corm-
SUN COAST FOODS 1655
thian Smith and James Shannon, did not apply for em-
ployment with Respondent. The other employee senior
to Curtis Sanderson was David Sewell, another alleged
discriminatee that was denied employment
There were 14 employees on the seniority list for the
manufacturing department. Only two were hired by Re-
spondent. Those two, Howard L. Walters classified as
meat handler and Willie L Tanksley classified as laborer,
ranked 11th and 12th on the seniority list.
Curtis Sanderson was classified as manufacturing spe-
cialist on June 25, 1982 Manufacturing specialist was the
most skilled, highest nonsupervisory ranking position in
the department 9
(2) Work performance
Ronald Landrum testified that Curtis Sanderson was
not a "willing worker." Landrum and Lee Dodge said
that Sanderson took excessive breaks and talked too
much. Landrum characterized Sanderson as not being
cooperative He said Sanderson "would be disagreeable"
sometimes after receiving a work order However, Lan-
drum admitted that he never wrote up Sanderson for
poor work or other work performance infractions He
admitted that Sanderson had a fair "amount of ability."
According to Sanderson's tesnmony, he received a
number of writeups before his marriage in 1975. Howev-
er, since his marriage, Sanderson has received only one
other wnteup 10 The testimony of Dodge and Landrum
failed to show that they were aware of those pre-1976
disciplinary wnteups on Sanderson. Dodge and Landrum
did not include the wnteups in their alleged basis for re-
fusing to hire Sanderson.
Sanderson testified in dispute with Dodge and Lan-
drum, that he was never cautioned about taking exces-
sive breaktime, or wandering away from his work sta-
tion, and he was never late for work.
I credit Sanderson's account of his work perform-
ance 11 Sanderson was open about his w riteups and he
demonstrated excellent demeanor Although Respondent
contended his work performance was poor, that evalua-
tion was not documented even though it was the prac-
tice at Quaker to write up employees in similar instances.
I find that the assertions of Landrum and Dodge as to
Sanderson's work performance were untrue and were ad-
vanced as a pretext in order to avoid hiring Curtis San-
derson.
The record demonstrates, and I find, that Curtis San-
derson was denied employment by Respondent because
of his union related activities while he worked at Quaker
Oats. In consideration of the objective factors of senion-
9 Although Respondent contended that employees reached the position
of manufacturing specialist solely through seniority, the collective-bar-
gaining agreement at sec 5 10(b) indicates that although preference is
given the senior applicant for a position, "il sflo employee shall be select-
ed unless he has the ability to perform the job within 30 working days"
10 Sanderson had a dispute with another employee in the break room
Sanderson told the other employee to stop cursing in the presence of an
employee's wife and child Sanderson received a 3-day suspension for
threatening to harm the other employee
" Additionally, Sanderson was supported by the testimony of David
Sewell Sewell worked as leaderman over Sanderson and Eugene Sipp
(see below) and testified that Sanderson and Sipp "did excellent work"
ty and work performance, Sanderson should have been
hired.
f David Sewell
David Sewell was hired by Quaker on January 12,
1970. At the June 25, 1982 plant closing, Sewell, like
Sanderson, was classified as manufacturing specialist
under the supervision of Ronald Landrum. Sewell ap-
plied for work with Respondent but was told by Lee
Dodge that he "didn't make the list."
Sewell was shop steward, then chief shop steward
during the presidency of Jack Crowley Subsequently,
Sewell was elected vice president under John Tucker.
After Tucker's presidency, Sewell became president of
Local 540. He was Local president when the plant
closed on June 25, 1982. During his time as chief stew-
ard, vice president, and president, Sewell served on some
15 to 20 grievance committees He testified that some of
the grievance discussions became "heated."
(1) Seniority
David Sewell was the most senior of those manufac-
turing department employees that applied for work with
Respondent. No one senior to him in that department
was hired by Respondent
(2) Work performance
David Sewell was categorized similarly to Curtis San-
derson by both Lee Dodge and Ronald Landrum. Ac-
cording to Dodge, Sewell did not work well on his own,
lacked initiative, and took excessive breaks. Landrum tes-
tified that Sewell took excessive breaks and was not a
willing worker.
On the other hand, David Sewell testified that he was
never criticized for his work.
I credit Sewell. It is unbelievable that an employee as
incompetent as Dodge and Landrum would have us be-
lieve they had in, David Sewell would be promoted to
and maintained in a leaderman position. Despite Dodge
and Landrum's testimony to the contrary, the collective-
bargaining agreement at section 5.10(b) provides that
Sewell could not hold the leaderman position unless he
had the ability. Moreover, despite Dodge's indication
that Sewell was always an unsatisfactory employee, there
was no documentation to that effect.
As in the case of Sanderson, I find that Respondent's
assertions as to the reasons Sewell was not hired were
pretextual. Sewell would have been employed, but for
his union activities, under an objective application of the
seniority and work performance guidelines which Re-
spondent claimed it applied
g. Eugene Sipp
Eugene Sipp was employed by Quaker from August
28, 1972, until the June 25, 1982 closing. He was classi-
fied as a meat handler under Ronald Landrum.
Sipp became active in the Union in 1977 when he
became shop steward. He filed four or five grievances.
After about a year as steward, Sipp became recording
secretary for the Local He held that job until the plant
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
closed. As recording secretary, he served on the griev-
ance committee which consisted of the Local president,
vice president, and recording secretary. On the manage-
ment side during the grievance meetings, those present
would include the particular supervisor involved in the
grievance, along with Andy Hammond, Bob Chamber-
lain, and sometimes John Christensen.
Sipp was also on the negotiating committee after
1977. 12 Sipp served on the grievance committee regard-
ing the sardines experiment.'3
(1) Seniority
Sipp ranked eighth on the June 25, 1982 seniority list
from the manufacturing department. However, none of
the seven more senior employees were hired by Re-
spondent. Those seven included David Sewell and Curtis
Sanderson. The only manufacturing employees hired by
Respondent were Howard L. Walters and Willie L.
Tanksley. Both were junior to Sipp.
(2) Work performance
Ronald Landrum admitted that Eugene Sipp per-
formed his job well. According to Landrum, "[w]hen
[Sipp] performed [his work], he performed it good."
However, according to Landrum, Sipp, like Sanderson
and Sewell, was not a willing worker and he took exces-
sive breaks.
Lee Dodge described Eugene Sipp as "a person with a
lot of ability. Natural ability but again wouldn't perform,
wouldn't use his ability, excessive breaks, and absent
from his work area."
Again, as in the case of Sanderson and Sewell, Re-
spondent produced no documentation" in support of its
assertion that Sipp took excessive breaks and was not a
willing worker.
Sipp candidly testified that after 1977, he received no
oral or written criticism of his work from his supervi-
sors. Sipp testified that he was continuously compliment-
ed on his work and that he and another employee were
frequently selected to do the inventory because of their
ability. I was impressed with Sipp's demeanor, and I
credit his testimony in full.
As in the case of Sanderson and Sewell, I find that Re-
spondent refused to hire Sipp for pretextual and spurious
reasons. If Respondent had applied its objective guide-
lines of seniority and work performance in a nondiscrim-
inatory fashion, Sipp would have been hired in July
1982. I find that he was unlawfully denied employment
because of his union activities after 1977.
12 As part of its defense, Respondent claimed that it hired several em-
ployees who were deeply involved with the Union at Quaker Sipp cor-
roborated other evidence by testifying that those employees who are
listed below did not play an active role in union affairs after the signing
of the 1979-1980 collective-bargaining contract D L Davis, Cumbest,
Cohn Brown, Bert Rea, Tanner, Willie Tanksley, and Ralph Bethany
13 According to Sipp, during one of the meetings over the sardine ex-
periment in 1981, John Christensen remarked that "the Company was
used to getting what they wanted from the Union"
14 Sipp testified that he did receive one wnteup in 1977 when he and
two other employees went home without authonzation
D. The Alleged 8(a)(5) Violation
On June 25, 1982, when Quaker Oats closed its Pasca-
goula, Mississippi canning plant, it was party to a collec-
tive-bargaining agreement with Local 540 which was to
be effective from January 24, 1980, until January 24,
1983. The contract applied to maintenance and produc-
tion employees at Quaker's Pascagoula facility. Local
540 had exclusively represented the employees in the
Pascagoula bargaining unit for a number of years before
1980.
Following its close on June 25, the Pascagoula facility
was sold to Sun Coast Foods, Inc. (Respondent). On
July 19, 1982, Sun Coast opened and resumed the oper-
ation formerly conducted by Quaker Oats using the same
facility. Sun Coast employed 51 hourly employees. All
51 formerly worked for Quaker Oats at the same facility.
Quaker Oats' payroll at the time the facility was closed
included some 70 hourly employees.
Additionally, Sun Coast employed several supervisors
that were employed by Quaker Oats including General
Manager Christensen, Meat and Processing Manager Lee
Dodge, Engineering and Maintenance Manager Richard
Bishop, Purchasing and Planning Manager Andy Ham-
mond, and several lower level supervisors.
According to the testimony of International Chemical
Workers Union Representative Hubert Mills, 15 after
Quaker Oats announced on April 29, 1982, that the plant
would close, he met with John Christensen and Andy
Hammond on May 6, to discuss the effects of the clos-
ing. During that meeting, Mills stated to Christensen:
Well, if you find a buyer will you agree to get him
to—inform them that there's a union here and get
them to accept our contract?
Christensen then replied:
Well, you're getting the cart before the horse.
We've got to find a buyer first
Mills met again with Hammond on June 24, 1982, to
discuss the closing. Mills asked if a buyer had been
found. Hammond replied, "[N]o, they had some look-
ers."
At a June 29, 1982 meeting Hammond again told Mills
they had no buyer. At a June 30, 1982 meeting Mills was
again told by Hammond they had no buyer. Mills then
asked Hammond why the local newspaper had a story
that Sun Coast Foods was buying the plant Hammond
replied:
"Well, I don't know," says, "I understand that some
people got some options on it, but we didn't have a
buyer"
Mills then replied:
Well, we want to negotiate with you on the sale of
this, and taking these people back and all, and when
15 Mills demonstrated excellent demeanor In large measure, his testi-
mony was not contested I credit his testimony
SUN COAST FOODS 1657
you find out who's buying the plant, will you let
me know?
Nevertheless, Mills was never advised about the sale
of the plant. Mills had the Union's legal department
check on Sun Coast Foods. He was advised that Karl
Wiesenburg, Pascagoula, Mississippi, was the registered
agent for Sun Coast Foods, Inc.
On July 7, 1982, Mills sent a bargaining demand letter
to Wiesenburg. Approximately a week after July 7, Karl
Wiesenburg left a message for Mills stating that he did
not have authority to bargain on behalf of Respondent.
On August 5, 1982, Mills again wrote Wiesenburg. He
informed Wiesenburg that he had learned that the sale of
the Quaker Oats plant to Sun Coast was finalized on July
15, 1982. Mills again advised Wiesenburg that the Union
represented the plant's employees. He requested to meet
concerning those employees and, if Wiesenburg lacked
authority to bargain, that Wiesenburg advise him of the
name and address of the person who had authority.
On August 16, Wiesenburg wrote Mills advising that
he is Sun Coast's registered agent. Wiesenburg also
stated that he had forwarded Mills' letter to John Chris-
tensen.
Having heard nothing further, Mills sent a bargaining
demand letter to John Christensen on September 8, 1982.
Mills stated that he would file charges with the Labor
Board unless he heard something by September 14, 1982.
On September 13, 1982, Andy Hammond called and
agreed to meet with Mills on September 22, 1982. Those
arrangements were confirmed by Hammond in a Septem-
ber 14 letter wherein he also stated that Respondent does
not intend to "assume the labor agreement between"
Quaker Oats and the Union.
On September 16, Hammond wrote Mills canceling
the September 22 meeting. Hammond stated that 35 of
their 51 employees had presented Sun Coast with a peti-
tion stating they did not wish the Union to represent
them.
Since September 16, Respondent has not agreed to
recognize and meet with the Union.
Finding
There is no doubt that Respondent is the successor to
Quaker Oats at Pascagoula. Although there was a brief
hiatus 16 in operation from June 25 to July 19, 1982,
there was continuity of the same business operations; Re-
spondent used substantially the same work force as
Quaker; Respondent employed substantially the same su-
pervisory hierarchy; and Respondent manufactured the
same product. (NLRB v. Burns Security Services, 406 U.S.
272 (1972).)
Although The General Counsel does not contend that
Respondent had an obligation to bargain before setting
initial terms and conditions of employment, it is clear,
and I find, that Respondent's bargaining obligation at-
tached no later than the start of operations on July 19,
1982. At that time it had employed a full complement of
51 hourly employees and all those employees were
16 See Grico Corp., 265 NLRB 1344 (1982), where a hiatus was found
not to affect the finding of a successorship relationship.
former Quaker Oats bargaining unit employees. (Ranch-
Way, Inc., 203 NLRB 911(1973); Turnbull Enterprises,
259 NLRB 934 (1982).) Therefore, whether the critical
date on which the bargaining obligation attached is de-
termined by the bargaining demand (Pre-Engineered
Building Products, 228 NLRB 841 (1977)), or the date
when a full complement was employed (Pacific Hide &
Fur Depot, 223 NLRB 1029 (1976), enf. denied 553 F.2d
609 (9th Cir. 1977)), it is clear that Respondent was obli-
gated to recognize and bargain with the Union on July
19, 1982.
Before July 19, 1982, the Union had demanded recog-
nition. On July 7, 1982, the Union made its demand on
Respondent's registered agent Karl Wiesenburg. Even
before that date, the Union made its demand for recogni-
tion on May 6 and June 24, 29, and 30, 1982, through
John Christensen and Andy Hammond. Despite the
status of Christensen and Hammond on those dates, it is
clear that they both became agents of Respondent on or
before July 19, 1982 and, at that time, they were fully
aware of the Union's desire to be recognized by Re-
spondent and to meet with Respondent and negotiate.
From before July 19, 1982, Respondent was dilatory in
treating the Union's demand for recognition. Neither
Hammond nor Christensen advised the Union that Sun
Coast had purchased the Quaker Oats plant even though
they agreed to do so on June 30, 1982. After its demands
on Christensen and Hammond and its July 7 and August
5, 1982 demands on Agent Karl Wiesenburg, the Union
received no response from Respondent until September
13, 1982.
During that delay, Respondent was engaged in activity
violative of Section 8(a)(1) and (3) as shown above.
The general rules in successor situations is that the ma-
jority status of the predecessor's union is presumed
absent a showing that the successor employer had a
good-faith doubt as to the majority status of the union
which must be based on objective considerations (Celan-
ese Corp. of America, 95 NLRB 664 (1954); Saks Fifth
Avenue, 247 NLRB 1047 (1980)). Moreover, the employ-
er must show that the objective considerations were
known to it at the time of withdrawal and were raised in
a context free of employer unfair labor practices (Com-
puter Sciences Corp. 236 NLRB 266, 281 (1978); Dayton
Motels, 212 NLRB 553 (1974); Orion Corp. v. NLRB, 515
F.2d 81 (7th Cir. 1975)).
The circumstances here demonstrate that the above
conditions were not satisfied and Respondent did not
demonstrate that it acted in good faith when it withdrew
recognition.
As shown above at the time of Respondent's with-
drawal, the alleged objective considerations were raised
in the context of unfair labor practice violations. More-
over, it appears obvious that Respondent was already in
violation of Section 8(a)(5) when it withdrew recognition
on September 16, 1983.
On July 19, 1982, when Respondent started produc-
tion, it was faced with prior demands to bargain from
the Union. Those demands had been made to Respond-
ent's general manager John Christensen, to its purchasing
and planning manager Andy Hammond, and to its regis-
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tered agent Karl Wiesenburg. Additional demands were
made by the Union on August 5 and September 8, 1982.
By not recognizing the Union on July 19, 1982, Re-
spondent violated Section 8(a)(1) and (5) of the Act.
Respondent, of course, contends that it recognized and
agreed to meet with the Union during a September 13,
1982 phone conversation between Andy Hammond and
Hubert Mills. Those arrangements were confirmed in
Hammond's September 14 letter to Mills.
According to Purchasing and Planning Manager Andy
Hammond, Respondent's supervisor for casing in the
warehousing department Frank Murry, was asked by em-
ployee Swetlena Goff to supply the wording for an em-
ployee petition." Goff told Hammond that "she didn't
want the Union to carry the plant and wanted to let Mr.
Christian[sen] know how the employees felt." The em-
ployees' petition contains the following heading:
We the following employees, do not wish for the
International Chemical Workers Union to represent
us. The following employees names are listed
below.
Subsequently, according to Swetlena Goff, she showed
the petition to Supervisor Zelma McKnight and asked
McKnight to permit her to circulate the petition during
her working time. McKnight told her he did not care.
Goff circulated the petition during her working time."
The petition contains 35 signatures. Each signature is
dated. The dates are September 14, 15, and 16, 1982.
According to Hammond, Swetlena Goff gave the
completed petition to Supervisor Zelma McKnight.
McKnight gave the petition to Manager of Engineering
Richard Bishop who passed it on to John Christensen.
Christensen gave the petition to Hammond. On Septem-
ber 16, Hammond wrote the withdrawal of recognition
letter to the Union.
Under the above circumstances, I find that Respondent
violated Section 8(a)(1) and (5) by refusing to recognize
and bargain with the Union from July 19, 1982. Re-
spondent unreasonably delayed responding to the
Union's numerous demands for recognition during a time
when it, as successor to Quaker Oats, had an obligation
to recognize the Union. During that unreasonable delay,
Respondent engaged in activity violative of Section
8(a)(1) and (3). Moreover, immediately after its delayed
recognition, upon being presented with a petition pre-
pared with the assistance of two of its supervisors, Re-
spondent withdrew recognition and canceled its sched-
uled meeting with the Union.
Where, as here, the predecessor employer was party to
a collective-bargaining contract with the Union, the suc-
cessor must give the Union a reasonable period in which
to negotiate in the absence of employer unfair labor
17 Frank Murry did not testify Swetlena Goff testified at the hearing
that employee Mary Bell wrote the heading on the petition and that
Frank Murry supplied her and Bell with the Union's name However, in
October 1982, Goff told Andy Hammond that she asked Supervisor
Murry to supply the words for the petition
is Goff testified that on other occasions she was permitted to solicit
money if "someone was sick"
practices. Here, the Union was deprived of any opportu-
nity to negotiate.
II. RESPONDENT'S ADDITIONAL 8( A )( 1) DEFENSE
Respondent correctly contends that several of the al-
leged 8(a)(1) violations occurred before its creation. The
record demonstrates that Respondent was incorporated
on June 29, 1982, and that it started operation on July
19, 1982.
The complaint did not allege, and the General Counsel
did not show, that Respondent's predecessor committed
8(a)(1) violations, and that Respondent was aware of
those violations at the time of its purchase. The General
Counsel did show that supervisors of both the Respond-
ent and its predecessor engaged in certain 8(a)(1) con-
duct before the predecessor sold the facility but at a time
when the closing and sale of the facility was anticipated.
Obviously, such conduct demonstrates animus and
motive on the part of those supervisors. However, as to
the technical 8(a)(1) violations, I agree with Respondent
An employer cannot be found guilty of 8(a)(1) violations
when those violations occurred before its creation.
The General Counsel does allege that Respondent vio-
lated Section 8(a)(1) during the John Christensen phone
conversation with Mary Long. As shown above, Mary
Long credibly testified that she called Christensen about
a week after July 19, 1982, to inquire why she had not
been called back to work. Christensen told her that he
had directed his supervisors to carefully screen appli-
cants and to select employees so as to avoid the same
predicament they had before. In isolation, Christensen's
above comments may appear innocuous. However, at
that time, the employees had been advised by several su-
pervisors, including Christensen, Bishop, Zelma
McKnight, and Ronald Landrum, that the new employ-
ees would not have the Union, and that troublemakers
would be eliminated. When Long called, Christensen
was responding to her inquiry as to why she had not
been called to work. Christensen's reference to thorough
screening of applicants and avoidance of the former
"predicament" was obviously designed to tell Long that
Sun Coast was not going to get into the predicament of
dealing with the Union and grievances. I find that Chris-
tensen's comments evidence violations of Section 8(a)(1)
CONCLUSIONS OF LAW
1. The Respondent, Sun Coast Foods, Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. International Chemical Workers Union, Local 540,
is a labor organization within the meaning of Section
2(5) of the Act.
3. By threatening employees that it would carefully
screen applicants and avoid its former predicament, Re-
spondent threatened that it would select job applicants so
as to avoid having to deal with the Union and the filing
of grievances, and thereby engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
4. All maintenance and production employees of the
Company's canning plant at Pascagoula, Mississippi, ex-
cluding all office and clerical employees, laboratory em-
SUN COAST FOODS

1659
ployees, watchmen, guards, and all supervisory employ-
ees as defined in the National Labor Relations Act, con-
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
5. At all times material herein, and especially since
July 19, 1982, International Chemical Workers Union,
Local 540, has been, and is, the exclusive collective-bar-
gaining representative of the employees in the above-
mentioned appropriate unit.
6. By refusing to recognize and bargain with the
Union since July 19, 1982, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act.
7. By refusing to employ Mary Long, Curtis Sander-
son, David Sewell, and Eugene Sipp, since on or about
July 19, 1982, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act.
8. Respondent has not otherwise engaged in violation
of unfair labor practices as alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. As I
have found that Respondent unlawfully refused to
employ Mary Long, Curtis Sanderson, David Sewell,
and Eugene Sipp, I shall recommend that Respondent be
ordered to offer those employees immediate and full re-
instatement to the jobs they formerly held with Quaker
Oats or, if those jobs no longer exist, to substantially
equivalent positions without prejudice to their seniority
or other rights and privileges. I shall further recommend
that Respondent be ordered to make whole Mary Long,
Curtis Sanderson, David Sewell, and Eugene Sipp for
any loss of earnings they may have suffered as a result of
the discrimination against them. Backpay may be com-
puted with interest as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB
651 (1977).19
[Recommended Order omitted from publication.]
19 See generally Isis Plumbing Co., 138 NLRB 716 (1962).