Balentine Packing Co.

In the Matter of BALENTINE PACKING COMPANY and PACKINGHOUSE WORKERS ORGANIZING COâIMITTEE r Cases Nos. R-394 and C-2478 SUPPLEMENTAL DECISION DECISION AND t ORDER Febrrua7 y 13,1943 On July 2, 1942, the Board issued a Decision and Direction of Elec- tion,in Case No. R-3928, a proceeding under Section 9 (c) of the Act.' Pursuant to the Direction of Election, an election, by secret ballot was conducted- on July 27, 1942, under the direction and supervision,of the Regional Director for the Tenth Region (Atlanta, Georgia ). On July 29, 1942, the Regional Director', acting pursuant to Article III, Sec- tion 10, of National Labor Relations Board Rules 'and Regulations- Series 2, ,as amended, issued and duly served, upon the parties a Report on Ordered Election. As to the balloting and the results thereof, the Regional Director reported as follows : Total on eligibility list-- ------------------------------------ 128 Total ballots cast------------------------------------------- 85 Total ballots challenged ------------------------------------- 5 Total void ballots------------------------------------------- 0 Total valid votes counted------------------------------------' 80 Votes cast for Packinghouse Workers Organizing Committee -_-- '20 Votes cast against Packinghouse Workers Organizing Commit- tee------------------------------------------------------ 60 Thereafter, the Union filed objections to the election .'- On Septem- ber 24, 1942, following an investigation , the Regional'Director issued a Report on Objections in which he found that the objections raised material and substantial issues. On October 22, 1942, after a com- 1 42 N,•L. R. B 15. ' 2 The Trial Examiner in the proceeding on the complaint granted a motion of the re- spondent that its answer to the complaint . also constitute its answer to the objections to the election 47'N. L. It. B.,, No. 68. . 489 I 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plaint proceeding had, been. instituted, the Board issued an order directing a hearing on the objections to the election and consolidating both cases. On December 31, 1942, the Trial Examiner issued his Intermediate Report in Case No. C-2478, the -complaint proceeding, finding that the respondent had not engaged in unfair labor practices and recommend- ing that the complaint be dismissed. A copy of the Intermediate Report is attached hereto. Neither the respondent nor the Union has excepted to the findings or recommendations of the Trial Examiner. The Board has considered the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was' committed. The rulings are hereby affirmed.' The Board has further considered the Intermediate Report and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. Since the allegations presented by the Union in support of.its,•objec- tions to the election are substantially the same as those offered in sup- port'of the charge filed in Case No. C-2478, and since'we have sustained the-recommendation of the Trial Examiner that the complaint issued in that case be dismissed,4 we findtha,t the objections to the election are without merit. Accordingly, we hereby overrule the objections. The results of the election show that no collective bargaining repre- sentative has been selected by a majority of the employees in the appropriate unit. The petition, of Packinghouse Workers Organizing Committee for investigation and certification of representatives, of employees of Balentine Packing Company, Greenville, South Carolina, will therefore be,dismissed. 1 1 ORDER Upon the entire record.in the two cases and pursuant to-Section 9 (c) and Section 10 (c) of the National Labor Relations Act and pursuant to Article III, Sections 9 and 10, of National Labor Relations Board Rules and Regulations-Series 2, as amended, IT IS HEREBY ORDERED that the complaint be, and it hereby is, dis- missed; IT 'IS FURTHER ORDERED that the petition for investigation and certi- fication of representatives of employees of Balentine Packing Com- pany, Greenville, South Carolina, filed by Packinghouse Workers Organizing Committee be, and it hereby is, dismissed. 3 An offer of proof was made at the hearing by the respondent. In ^,iew of our decision in-the case the offer need not be considered 4 Since the proceeding on the complaint is necessarily determinative of the represents tion case , we do not consider as herein applicable Article IT , Section 35 of"our '•Rules^and Regulations providing that where no exceptions have been filed to the findings of the Trial Examiner that no unfair labor practices have been engaged in , the case shall be considered closed BALENT-INE PACKING COMPANY INTERMEDIATE REPORT Mr. -S. Craig Carnes and Mr. M. A. Prowell, for the Board. Mr. D B. Leatherwood, of Greenville, S C., for the respondent. Mr. J. R. Kirby, of Greenville, S. C, for the Union. STATEMENT OF THE CASH. 491 Upon an amended charge filed by Packinghouse `Yorkers Organizing Commit- tee. herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director. for the Tenth Region (Atlanta, Georgia), issued its complaint dated November 9, 1942, against Balentine Packing Company, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section. 8 (1) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449, herein called the Act Concerning the unfair labor practices, the complaint alleged in substance that the respondent at various time,, from on or 'about May 1, 1942, engaged in and now is engaging in committing, authorizing, instigating and acquiescing in the -following acts: casting aspersions on union agents scheduled to act in a Board election; inciting racial discord to defeat the Union in the election; inducing union leaders to abandon the Union on the eve of the election ; urging employees to vote against the Union in the election ; threatening physical harm to- union adherents among its employees; interrogating employees concerning union meet- ing places ; threatening to collect union dues for its own benefit by physical force ; urging employees-to admonish negro employees not to vote in the election ; threat- ening employees with physical violence as a part of and prior to threatened dis- criminatory discharges for union activities; threatening physical harm to em- ployees if they participated in the election; circulating petitions during working hours in its plant asking for the discharge of employees suspected of union sympa- thy or lending the Union assistance in the election; rearranging the working hours of its employees in order to prevent complete employee participation in the election and defeat the Union ; advising employees during the balloting that it, wis.futile to vote because the Union had-been defeated in the election; assembling employees to allow speeches and talks against the Union ; remunerating employees for time spent in attending meetings during which speeches were made against the Union; and vilifying the Union and the union leaders ; and by the above acts interfered with, restrained, and coerced'its employees in the exercise of the rights guaranteed in Section 7 of the Act.' On or about November 27, 1942, the respondent filed an answer in which it denied the commission of any unfair labor practices. The answer also alleged in substance that the respondent was informed and believed that the charges filed by the Union were an attempt by the Union, acting through and by a representa- tive of the Board, to coerce the respondent (1) into posting notices that it would cease and desist from committing unfair labor practices which it, in fact, had ne%er committed, and (2) into an agreement that there would be no certification as to the outcome of the election held by the Board I On October 22, 1942, an order was issued consolidating this case with objections to the conduct of an election which had been directed by the Board in the Matter of Salentine Pack- ing,Coinpanv and Packinghouse Workers Organising Committee. 42 N L R B 15 3 The answer also alleged that an agent of the Board, to wit M. A. Prowell, had admitted that, the, charges were,without merit and an attempt thus to coerce the, respondent. The undersigned granted a motion to strike this allegation and sustained an objection to testi- mony offered thereunder, but allowed the respondent to place, the testimony in the record as an offer of proof. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice and after a postponement ordered by the Regional Director, a hearing on the complaint was held at Greenville, South Carolina, on,December 10 and 11, 1942, before the undersigned, the Trial Examiner duly designated by the Chief_ Trial Examiner. The Board and the respondent were represented by counsel and the Union by, its representative. All were allowed to participate in the hearing and were afforded full opportunity to be heard, to examine and cross-, examine witnesses, and to introduce evidence bearing on the issues. At the close-) of the hearing, motions were made that the pleadings be amended to conform to the proof with respect to such 'matters as dates and spelling of names. The motions were granted without objection. Also at the close of the hearing, counsel for the Board and the respondent, respectively, argued orally before 'the under- signed with respect to part of the issues. The parties were also given oppor- tunity to file briefs with the undersigned, but only the respondent has availed itself of this privilege. Upon the entire record in the case and from his observation of the witnesses; the undersigned makes the following:* FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT . Balentine Packing Company is a South Carolina corporation maintaining a plant in Greenville, South Carolina, where it is engaged in the manufacture of certain meat products. During the year 1942, the respondent has used raw materials consisting' principally of livestock, seasoning, paper boxes, and grinder supplies of a purchase value of approximately $1,500,000, of which about 10 per- cent came from outside the State of South Carolina,' During the same period, the respondent sold products of a sales value slightly in excess of $1,500,000, of which about 2 percent, consisting of hides and grease, was shipped outside the State of South Carolina. There are approximately 180 employees on the respondent's pay roll. ' IT. THE ORGANIZATION, INVOLVED Packinghouse Workers Organizing Committee is a labor organization affiliated with the Congress of Industrial Organizations It admits to membership em- ployees of the respondent. 111. THE UNFAIR LABOR PRACTICES On or about September 1941 the Union began an organizational campaign among the respondent's employees This campaign was still in progress during the spring and summer of 1942, and on April 29, 1942, the Union filed a petition with the Board, for investigation and certification of representatives Thereafter; pursuant to an investigation and hearing, the Board on July 2, 1942, Issued a decision and direction that an election be held among the respondent's employees in an appropriate unit` The directed election took place on July 27, 1942. The complaint alleges that the respondent engaged in certain acts of interference, restraint, and coercion during the pendency of the election and thereafter. Part of the conduct charged to the respondent was a conversation in the plant between W. I. DuBose, a foreman of the'pickling and curing room, and two women. employees shortly before the election. Prior to the election the Union had named - 3 The volume of business done by the respondent during 1942 is an estimate of its president based on the volume of business done up to the time of the hearing. '42N.L.•R.B.15. ' BALENTINE PACKING COMPANY 493 ,a colored employee to serve as a watcher at the ballot box At the time of the conversation mentioned above. DuBose asked the two women emplpyees.their at- titude toward the Union. These employees indicated to him their opposition to it and DuBose replied that it looked to him as though "they" were trying to make a race issue by having a colored erfiployee act as a watcher dating the election. Other conduct charged to the respondent in addition to that of,DuBose was based on the testimony of Buster Sullivan, an employee in the "weiner room". ,Sullivan testified that Ralph Styles, an inside salesman for the respondent, told him about three weeks before the election not to vote and asked him the day of the election whether he had voted. Sullivan also testified at one point that Styles told him the day of the election to get "the boys" to vote, but at another point testified' that Styles told him to tell them "not to vote " Styles testified that he told Sullivan shortly before the ballot box was to close on election day to hurry and vote and to get "the boys" to vote. He further testified that he talked to Sullivan about the election only on this one occasion In view of the confusion in Sullivan's testimony the undersigned credits Styles' version of this conversation. Whether Styles' remark on this occasion was attributable to the respondent as an unfair labor practice will be discussed'below. Sullivan also testified that about the time of the election, H J. Ward, a shipping clerk, asked Sullivan if he belonged to the Union, telling him that he was making enough money, and that if Sullivan voted for the Union he ought to be "kicked out."' Ward, because of illness, was not present at the hearing, but his denial that this conversation took place was incoiporated in a stipulation between the respective counsel-for the Board and the respondent. The undersigned is convinced that there was some conversation between Ward and Sullivan about the Union or the election. The undersigned is not convinced, however, after hearing and considering Sullivan's testimony that he stated the conversation with accuracy Sullivan testified, moreover, that he voted for the Union in the election. He also testified that he spoke to none of the other employees about the remarks of Sullivan. The evidence fails to establish that either Styles or Ward had super- visory authority. As indicated above, Sullivan's testimony about his conversa- tions with Styles and WL4rd was confused None of his testimony, moreover, indicates that either Styles or Ward in their conversations claimed to speak for the respondent. Under the circumstances, the undersigned is not convinced that their remarks and those of DuBose, as detailed above, were such as to support a finding of interference, restraint, and coercion in violation of the Act unless coupled.with other conduct in violation of the Act. There was also testimony that about 7 a. in the day of the election Brownlee South and Clyde Smith, employees in the cutting room, talked to a group of girl employees at or near it door leading into the so-called bacon room. Working hours begin at 7 a. m. in the respondent's plant. However, the management allows the employees several minutes leeway before they are required to begin work. It was common for employees during this period to congregate at a soft drinb machine at this point in the plant. It was at such a time and place that the remarks described below, were made. Jessie Batson, an employee in the bacon room, the Souths, and Levis Gilstrap, another cutting room employee who was also present, all testified about this occurrence. Batson testified that the Souths stated to 15 or 20 girl employees on this occasion that the employees in the cutting room were opposed to the Union and suggested that the girl employees vote against the Union and "keep it out". The testimony of the Souths shows $.Sulllvan's testimony was confused as to whether this event was before or after the election. 494 DE-C17;ONS OF NATIONAL LABOR RELATIONS BOARD that each indicated his opposition to the Union on this occasion and Gilstrap testified that he heard one of the Souths state at the time that the employees in the cutting room were opposed to the Union In the light of all the testimony on the subject the undersigned finds that remarks substantially like those testified to by Batson as set forth above were made by one or both of the Souths on this occasion. The remarks by the Souths on this occasion are of no significance, however, unless they represented the management at the time they spoke. Gil- strap, who testified for the respondent, on cross-examination referred to Clyde South as an assistant foreman, testifying further that whenever Foreman Avery Mitchell of the cutting department was absent Assistant Superintendent of the plant, J C Mulkey, would designate some employee in the cutting department to carry on in the absence of Mitchell. Gilstrap testified that according to his recollection Clyde South had been designated to do so on one or two occasions. His testimony was vague, however, as to when South had ever acted in this capacity during Mitchell's absence. Gilstrap testified, moreover, that other employees-had on occasions -similarly been assigned to such 'duty in Mitchell's absence. Mulkey testified that Clyde South had never been given any supervisory 'duties during Foreman Mitchell's absence and South testified he had not at any time exercised supervisory authority. South and Mulkey further testified that only Mulkey acted in a supervisory capacity over the department during Mitchell's absences The evidence indicated that Mitchell's absence from the de- partment had been rare and had not happened at all (luring the previous two years. Under all the circumstances the undersigned finds that Clyde South (lid not have supervisory authority at the time of the conversation detailed above. There is no testimony to support any claim that Brownlee South and Levis Gilstrap had supervisory authority and the undersigned finds that they did not have such authority. The evidence, moreover, does not show that the respondent authorized or had knowledge of the incident discussed above. ' Forelady Gilreath of the bacon department testified that she did not know of the occurrence and there,is,. nothing in the evidence to establish that she or any gther supervisory employee was in the vicinity at the time. Under all the circumstances the 'undersigned finds that the remarks of Clyde and Brownlee South in the bacon room on the occasion described above are not attributable to the respondent. Ed Toomey, an employee in the bacon room, called as a witness by the Board, testified that about the time of the election, Otto Mitchell, an employee in the cutting room, spoke to him while at work, Mitchell asking Toomey if lie belonged to the Union and telling Toomey that if he joined be would not be there long, as the plant would close Towne}- further testified that the day of the election Larry Coates, also an employee in tiie'cutting room, spoke to hum while at work and told him there was no' use to vote, as the Union had already lost the election. Both Mitchell and Coates testified that these conversations arose as a result of questions by Toomey. Mitchell testified that while he was waiting for an elevator in the plant, Toomey came to him and asked if he was going to vote in the election. Mitchell testified that' Iie'then indicated to Toomey he was not interested in the Union Coates testified that Toomey inquired of him what he thought of the Union and that Coates then told Toomey whether it was a good thing depended on the individual Neither of these emplo.Nees had supervisory authority. 'Moreover, the evidence does not establish that the respondent aut'hor' i2ed or had knowledge of the ieiuarks either of Mitchell or Coates Even though Toomey's version of the conversation with Mitehell,and.Coates,be creditedi their status as employees was not such aril the circumstances surrounding the conver- BALEN'TINE PACKING COMPANY 495 nations are not-of such a nature as to make the conversations attributable to the respondent.' Two other employees, Jim Hicks and Woodrow Mickler, were called as witnesses by the Board, and were interrogated regarding whether about the time of the election any remarks were made to them about the election or derogatory to the Union , Both,deuied, any such conversations except that Hicks testified Gilstrap, aentioned above, had inquired of Ricks on'the day of the election whether he was going to vote, Hicks replying negatively ., Gilstrap admitted that the conver- sation mentioned by Hicks took place , but testified he asked Hicks if the latter had voted That Gilstrap dud not iepreseut the niariagenient has been determined above Whether Hicks' or Gilstrap 's version of the conversation is accepted, since Grlstrap did not have supervisory authority, the undersigned finds that Gilstrap's conduct was not attributable to the respondent' There remains for consideration the nature and effect of a remark of D. B. Leatherwood, counsel - for the respondent , prior to the election at a meeting of supervisory and other employees who were excluded from the unit in the election ; likewise the nature and effect of a petition circulated in the plant about the i line of the election . Two to three weeks prior to the election Leatherwood spoke to the group mentioned above , explaining to them that they should not take any part,in the election which was about to be held inasmuch as such activity might invalidate the ,election. Dining the course of the meeting the fact was mentioned by someone in the groupothat there would be watchers at the ballot boxes and two of them for the Union would be Matthew Booker and one Mrs. Burns. Some- bod,N in the group stated that Booker was a colored employee Foreman DuBose testified that at this point in the meeting Leatherwood said he (lid not believe any of the women employees would belittle themselves by voting in the presence of this negro employee . Leatherwood's testimony gave a different version of his statement . at this meeting. He testified that he stated he could not conceive of Mrs. Burns sitting beside Booker during the election . Several persons present at the meeting, when called as witnesses by the respondent , corroborated Leather- wood's testimony. Regardless of which version of the statement is correct the undersigned views, as significant the fact that the statement by Leatherwood wars made to supervisory and other employees who were not allowed to vote in the election Moreover. there is no evidence that any representative of the management mentioned the race question in connection with the election , except for the remark of Foreman DuL' ose shortly before the election to the two women employees as set forth above. The petition , mentioned above , had its origin in the fact that for a long 'time prior to the election there had been "hard feeling" between DuBose and certain 6 Toomey also testified that about the time of the election 'a colored magazine salesman from Alabama made some ienrarks near the plant derogatory to the Union Since he was not an employee of the respondent: and the evidence fails to show that what he said was authorized, his remarks are not atti ibutable to the respondent - 7 Apparently cousel for the Board called Flicks and Diickler ' as witnesses- because- both made mitten statements to Union representatives prior to the hearing, indicating that Styles ' liad made iemarks fo 'them dei ogatoi y to'the Union 'and designed to influence the election. 'Moreover, Indz FIicks, «ife of John Hicks but not.an employee, and Sullivan testified that after the electron-Afickler made a statement at the former' s house ,that the (lay 'of the, election as he left the plant Styles asked Dickler 'if he Sias going to vote, Styles adding that he would kill Dickler if Mickler voted When questioned by board counsel both (ticks and Dickler testified that Styles bad made no remarks to theiri derogatory to the Union or regarding the election. Styles also denied having made any such statements to these employees. Since there is no direct evidence that Styles made such remarks, the undersigned finds that lie did not do so 496 DECISIONS OF_.NATIONAL LABOR RELATIONS BOARD other. employees in the plant. About the time of the election-some employees in the cutting room placed in circulation a petition which recited that, the employees could-not work in harmony with DuBose and requested his removal. One.day soon after,the election some employee handed Styles this petition and asked him to leave it in the bacon room for circulation. As Styles was going.through the bacon -room soon thereafter he showed the petition to Fore- lady Gilreath, left it there, and went to another part of the plant. Some of the girl employees in the bacon room looked at the petition. Soon there- after Styles returned to the bacon room and found that none of the employees had signed it. He then stated to certain of the girl employees in the room that it was impossible to work in harmony with Foreman DuBose- and" the petition was being circulated for that reason Styles left the department about that time and several girl employees signed the document. The record is silent regarding the extent to which the petition was further circulated, but one, morning soon thereafter when President Balentine went to the plant he found the petition on his desk. The respondent then made an investigation of the, matter, and decided not to discharge DuBose, who still has his employ- ment with the. respondent. The undersigned finds no evidence in the record to support any contention that the petition was in any way related to the Union-or Union activities Both Balentine and Attorney Leatherwood testi- fied that in the investigation of the petition after it was 'placed on Balentine's desk the matter of the Union in no way entered into ithe situation. Under the circumstances the undersigned finds nothing in the event "to support a finding of interference,, restraint, and coercion in violation of the Act: On the basis of the facts set forth above only the remarks of Foreman DuBose are attributable to the respondent. The undersigned is of the opinion that these,'remarks standing alone, however, are not sufficient to, support a finding of interference, restraint, and coercion in violation of the Act.' The undersigned will therefore recommend dismissal of the allegations in the complaint that the respondent has interfered with, restiained, or coerced its employees within the meaning of Section 8 (1) of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS of LAW 1. The operations of the respondent occurred in commerce within the meanuig of Section 2 (6) of the Act. 2. Packinghouse' Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2.(5) of the Act. 3. The respondent has -not interfered with, restrained, or coerced its employees in the' exercise of the rights guaranteed in Section 7 of the Act within the meaning of Section 8 (1) of the Act. a The respondent introduced evidence that J. R Kirby, an organizer for the Union , called at Leatherwood's office shortly before the hearing, admitted there was no foundation to the claims made by the Union in the instant case and offered to "make a d"eal" to keep the important witnesses away from the hearing. Kirby testified that he was not in Leather- wood's office at the time claimed by the respondent. In view of the other findings made herein it is unnecessary to resolve this conflicting evidence. 1 BALENTINE PACKING COMPANY 497 RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of, law, the undersigned recommends that the complaint against Baleutine Packing Company be dismissed As provided in Section 33 of Article 11 of the Rules and Regulations of.the National Labor Relations Board, Series 2-as amended, effective October 28, 1942-any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Building, Wash- ington, D. C., an original and four copies of a statement in writing,, setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies -of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue' orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. I WILLIAM B. BARTON, Trial Examiner. . Dated : December 31, 1942. I 513024-43-vol. 47-32