Rudy's Farm Company

RUDY'S FARM COMPANY Rudy's Farm Company and United Food and Com- mercial Workers International Union, AFL-CIO, District 405.' Case 26-CA-7445 September 19, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On June 29, 1979, Administrative Law Judge Nancy M. Sherman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the Charging Party filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions2 of the Administrative Law Judge and to adopt her recommended Order, as modified herein.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Rudy's Farm Company, Nashville, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied: Insert the following as paragraph 2(c) and reletter the subsequent paragraphs accordingly: "(c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, The Charging Party's name, Amalgamated Meat Cutters and Butcher Workmen of North America, District 405, has been changed in recognition of the June 7. 1979, merger between the Retail Clerks International Union and the Amalgamated Meatcutters and Butcher Workmen of North Amer- ica. 2 We agree with the Administrative Law Judge's conclusions that Respon- dent violated Sec. 8(aX5). (3), and (I) of the Act as alleged. We do not. however, rely on the Administrative Law Judge's unnecessary observations. expressed in the latter part of par. 2 of sec. D, 1, of her Decision concerning the possible economic consequences which might result from Respondent's loss of Winn-Dixie as a customer. As there are no exceptions to her discus- sion at fn. 17 of her Decision, we likewise find unnecessary and do not rely on the Administrative Law Judge's discussion therein of the appropriateness of deferring the issues in this case to arbitration. I We have modified the Administrative Law Judge's recommended Order to include the provision that all pertinent records be made available to the Board for the purpose of computing backpay. all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." DECISION NANCY M. SHERMAN, Administrative Law Judge: This case was heard in Nashville, Tennessee, on March 8, 1979, pursuant to a charge filed by Amalgamated Meat Cutters and Butcher Workmen of North America, District 405, AFL-CIO (the Union), on October 6, 1978, and amended on November 7, 1978, and a complaint issued on Novem- ber 16, 1978. The questions presented are whether Respon- dent Rudy's Farm Company (Rudy's or Respondent), vio- lated Section 8(aX5) and (1) of the National Labor Relations Act, as amended, (the Act), by unilaterally pro- mulgating and enforcing a rule forbidding employees to park in Respondent's employee parking lot vehicles owned by them which bore bumper stickers advocating a con- sumer boycott of the Winn-Dixie grocery chain: and vio- lated Section 8(a)(1) and (3) by refusing to allow employees to park on Respondent's employee parking lot vehicles owned by them bearing such bumper stickers and by threatening employees with layoffs and lawsuits if such boycott signs caused Respondent to lose Winn-Dixie's busi- ness. Upon the entire record, including the demeanor of the witnesses, and after due consideration of the briefs filed by Respondent and by counsel for the General Counsel (the General Counsel). I make the following: FINDINGS OF FACT I. JURISDICTION Respondent is a corporation which packs, processes, and sells meat in Nashville, Tennessee. During the year preced- ing the issuance of the complaint Respondent received at its Nashville location products valued in excess of $50,000 di- rectly from points located outside Tennessee and sold and shipped from its Nashville location products valued in ex- cess of $50.000 directly to points located outside Tennessee. I find that., as Respondent concedes, Respondent is engaged in commerce within the meaning of the Act, and that asser- tion of jurisdiction over its operations will effectuate the policies of the Act. The Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background On July 1, 1974, the Union was certified as the exclusive bargaining representative of an admittedly appropriate unit of Respondent's employees, which unit is described in Con- clusion of Law number 3, infra. At all times material herein the Union and Respondent were parties to a collective-bar- gaining agreement covering the certified unit. Respondent concedes that at all relevant times herein it was under a 245 NLRB No. 13 43 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duty to bargain with the Union as the exclusive representa- tive of the certified unit. Although Respondent's Nashville plant does "job" cer- tain items, the only product produced at that plant is pack- aged sausage. Respondent divides its sales into two catego- ries: "retail sales" to grocery chains such as Kroger, Safeway, and Winn-Dixie, which account for about 28 per- cent of Respondent's total sales, and sales to food service customers such as McDonald's and other institutional buy- ers, which account for the remaining 72 percent of Respon- dent's sales. Winn-Dixie is Respondent's largest "retail" food customer and during the calendar year 1978 ac- counted for about 9 percent of Respondent's total "retail" sales and about 2.6 percent of Respondent's total sales.' Respondent has between 5,000 and 7,000 customers. For a number of years Winn-Dixie had had labor dis- putes with the Union's parent International. with the Union's sister locals, with other AFL CIO affiliates, and with other unions.' About August 1, 1978, the Union began to distribute to its members, members of other unions, and the general public handbills which urged them not to shop at Winn-Dixie because of its unfair labor practices The handbills alleged that the boycott had been sanctioned by the AFL-CIO at the request of several specified AFL CIO unions, including the Union's parent International and an- other International union (the Retail Clerks) which had been involved in Winn-Dixie litigation, some of whose lo- cals had also been so involved (see supra fn. 2). William D. Hardison, Jr., Respondent's president, testified that in late August 1978 he saw on the car of union representative Billy H. Atnip a bumper sticker urging a boycott of Winn-Dixie and inferred that the Union was conducting such a boycott. On September 18, 1978, Francis Cooper, Respondent's sales representative in Florida, told Harry Womack, Re- spondent's vice president in charge of sales, that the Winn- Dixie buyer in Tampa had failed to give Cooper a promised order. That afternoon Fitzgerald, Winn-Dixie's meat mer- chandiser in Montgomery, Alabama, telephoned Womack that Fitzgerald had heard that employees at Rudy's were actively supporting a boycott of Winn-Dixie. Womack as- ' My statistical findings in these two sentences are based on the testimony of Harry Womack, Respondent's vice president in charge of sales, and mathematical calculations based thereon. 2 Winn-Dixie Stores, Inc., and its subsidiary Winn-Dixie Greenville, Inc, 124 NLRB 908 (1959): Winn-Dixie Stores, Inc., and Winn-Dixie Greenville, Inc., 128 NLRB 574(1960); Winn-Dixie Stores, Inc., 138 NLRB 1355 (1962). enfd. 324 F.2d 502 (5th Cir. 1963). adjudication in civil contempt, 353 F.2d 76 (5th Cir. 1965), adjudication in criminal contempt, 386 F.2d 309 (5th Cir. 1967); Winn-Dixie Stores, Inc., and Winn-Dixie Louisville, Inc.. 143 NLRB 848 (1963), enfd. 341 F.2d 750 (6th Cir. 1965), cert. denied 382 U.S. 830 (1965); Winn-Dixie Stores, Inc., 147 NLRB 788 (1964). enfd. as modified 361 F.2d 512 (5th Cir. 1966), cert. denied 385 U.S. 935 (1966). backpay proceed- ing 170 NLRB 1734 (1%968), enfd. 413 F.2d 1008 (5th Cir. 1969); Winn-Dixie Stores, Inc., 153 NLRB 273 (1965), enforcement denied, 410 F.2d 1119 (5th Cir. 1969); Winn-Dixie Greenville, Inc., 157 NLRB 657 (1966), enfd. 379 F.2d 958 (4th Cir. 1967), cert. denied 389 U.S. 952 (1967): Winn-Dixie Stores, Inc., Tampa Division, 166 NLRB 227 (1967). enfd. 414 F.2d 786 (5th Cir. 1969); Winn-Dixie Stores, Inc., 181 NLRB 611 (1970), enfd. in part, 448 F.2d 8 (4th Cir. 1971), supplemental decision, 206 NLRB 777 (1973). enfd. 502 F.2d 1151 (4th Cir. 1974); Winn-Dixie Stores, Inc., 224 NLRB 1418 (1976), enfd. in part, 567 F.2d 1343 (5th Cir. 1978), rehearing denied, 575 F.2d 1107 (5th Cir. 1978); Winn-Dixie Teras, Inc. d/b/a Foodway, 234 NLRB 72 (1978); 235 NLRB 415 (1978); 235 NLRB 1479 (1978); Winn- Dixie Stores, Inc., 236 NLRB 1547 (1978). See also Winn-Dixie Atlanta, 207 NLRB 290 (1973). sured Fitzgerald that to his knowledge there was no truth to that report. The following morning Cooper telephoned Wo- mack that Winn-Dixie's Jacksonville division, which had been giving him an order every week, had told Cooper that Winn-Dixie did not need any product and would not give a reason why. On the following morning Hardimon, Respon- dent's sales manager in Atlanta. telephoned Womack that Winn-Dixie in Atlanta, which represented business of $5,000 to $6,000 weekly, had told him that it would not need any products.4 On the morning of Wednesday, September 20. Womack instructed Cooper and regional salesman James Goolsby to go to Winn-Dlxie's corporate office in Jacksonville, Florida, to see Minshew, who is in charge of corporate meat pur- chasing with Winn-Dixie. The record fails to show anything further about this proposed visit. Also on September 20 Womack gave a telephoned report of these Winn-Dixie contacts to Respondent's president, Hardison, who was then out of town. On the morning of Thursday, September 21, Womack telephoned Winn-Dixie representative Bailey, whose office is in Louisville and who is in charge of the Winn-Dixie operation which includes Nashville, that Womack had heard about a "so-called rumor" that Respondent's em- ployees had been actively supporting the boycott of Winn- Dixie and said that so far as he knew none of Respondent's employees was actively supporting it. Bailey said that he had received a telephone call from someone in Nashville, Tennessee. that Respondent's employees had "Boycott Winn-Dixie" stickers on their cars, that supporting notices were on Respondent's bulletin board, and that Respon- dent's employees had had meetings and discussed the boy- cott. Womack said that he knew nothing about it. Bailey said that he would visit Womack the next time Bailey was in Nashville. That same afternoon Bailey came to Wo- mack's office. Bailey again described the telephone call that he said he had received and said that it disturbed him greatly that Respondent's "people" would be supporting a "Boycott Winn-Dixie Strike or whatever it would be." Wo- mack said that he knew of no evidence that Respondent's personnel "had any bumper stickers or meetings or any- thing like that." At Bailey's request Womack took him on a plant tour which established that there were no notices on the bulletin boards.5 The tour did not include the employee parking lot areas, most of which would not normally be seen by an outside visitor to Womack's office, because Bai- ley did not ask to see them. As Bailey left he said that he was satisfied that Respon- dent was not trying to hurt Winn-Dixie. and that he felt everything would be all right. Bailey's visit was the second and last 1978 visit paid by a Winn-Dixie representative to Respondent's plant. Visits by Winn-Dixie representatives are not common and are paid both with and without ad- vance notice to Respondent. Not to he confused with company President William D. Hardison. Jr. 4 My findings as to Cooper's Fitzgerald's, and fHardimon's reports to Wo- mack are based on Womack's testimony. which was not offered or received to establish the truth of the reports. 5 Respondent's contract with the Union provides, "wo bulletin boards shall be provided for the posting of notices by the Union covering Union recreational and social affairs, notices of union meetings. appointments and other business: and elections and results of union elections." 44 RUDY'S FARM COMPANY Also on Thursday, September 21, the Winn-Dixie matter was discussed in a conference or conferences held between Womack, company President Hardison, and Dan Rudy, who is Respondent's founder, chairman of Respondent's board, and Respondent's former owner. Hardison testified that Rudy, who did not testify, was "quite upset" by the Winn-Dixie problem because he felt that it was going to cost Respondent a great deal of business. Hardison testified that Rudy had authority to and did in fact issue instructions to Respondent's guards, probably through Vice President John Niznick, that employees who drove to the plant with "Boycott Winn-Dixie" bumper stickers on their cars would be required either to remove the stickers or to remove their cars from Respondent's employee parking lot. The director of manufacturing, Tim Wrinn, testified that he learned about these instructions on an undisclosed date before Sat- urday, September 23. Uncontradicted evidence summarized infra establishes that one of the guards gave such instruc- tions to an employee at 6:40 a.m. on Saturday, September 23. Because Hardison did not attach any date or hour to Rudy's instructions and because knowledge as to the date and hour of Rudy's instructions is peculiarly within Re- spondent's possession, I find that Rudy issued these instruc- tions on Thursday, September 21, by which date Rudy was aware of and concerned by the alleged Winn-Dixie prob- lem. The following day, September 22, Womack telephoned Minshew that Bailey had visited Respondent's plant, and he said that the rumor which had been reported to Bailey was untrue. Minshew said, "Go and call on these different divisions. I don't see any problems." B. The Union's Distribution of "Boycott Winn-Dixie" Bumper Stickers to its Membership On the evening of September 21, at a regular member- ship meeting attended by 35 or 40 of Respondent's employ- ees, union Secretary-Treasurer Atnip told those present that employees of Winn-Dixie were trying to get into the Union. He brought out some bumper stickers about 3-1/2 inches by 7 inches, with the words "Boycott Winn-Dixie" in 3/4- inch black letters on a yellow background. At the bottom of these stickers was printed, in much smaller type, a printing- trades union label and the words, "Distributed by Union Label & Service Trades Dept., AFL-CIO and Food & Bev- erage Trade Dept., AFL-CIO." Atnip said that these bumper stickers would offer some type of help and asked if any of the members wanted to support these Winn-Dixie employees in their efforts. Bumper stickers were accepted by employees Marion Rochelle Parrish and Vickie Jackson, by Bonnie Bates and Paul Rhodon (inferentially), and per- haps by others. C. Respondent Forbids Employees To Park Vehicles with "Boycott Winn-Dixie" Stickers on the Company's Employee Parking Lots I. Respondent's employee parking lot areas At all times relevant herein Respondent maintained on its premises several parking lot areas which employees were permitted to use. In order to park a vehicle on the lot an employee must affix to the driver's side front bumper a sticker bearing Respondent's name. Most, but not all of the parking spaces which employees are permitted to use can be reached only by driving past a guarded gate on company property and in front of the plant building. At least before the events which gave rise to this case Respondent had no rule against parking on its premises employees' vehicles which bore bumper stickers or wind- shield stickers. Employees have parked on company prem- ises vehicles which bear political stickers, religious stickers, and stickers urging support of various athletic teams. 2. Efforts of Respondent's guard to prevent employees from parking vehicles on the employee parking lot with "Boycott" stickers Employees Jackson and Parrish put a "Boycott" bumper sticker in the front windshield of her truck and on her car bumper, respectively. Both of them drove to work, with the bumper stickers thus displayed, on Friday, September 22, and parked in the employee parking lot without incident. Company President Hardison and Director of Manufactur- ing Wrinn credibly testified that they were unaware of the bumper stickers that day. On Saturday, September 23, Jackson again drove her truck to the plant, still with the bumper sticker displayed in her windshield, and at about 6:40 a.m. parked in an em- ployee parking area which could be reached without driv- ing through the guarded gate. 6 Company guard Tommy Ca- rothers came over to her and said that she could not park there. She asked where he wanted her to park. He said that if she was going to keep the bumper sticker in her wind- shield, she was going to have to park on the street. Thinking he was joking, she got out, slammed the door, said that she was trying to go to work, and walked by him. He went over to the gate, stood in front of her, and told her that she was not going in. Meanwhile, employees Parrish and Bates each drove into the parking lot with "Boycott Winn-Dixie" stick- ers affixed to their respective cars. Parrish parked in the same area as Jackson. The record fails to show which part of the parking lot was used by Bates, but I infer from her subsequent conduct and remarks that she too parked in an area which could be reached without driving through the guarded gate. When Bates approached the guarded gate Carothers told her that she could not go in. Carothers then telephoned the superintendent of packaging, Emma Good- win, that two employees had come to work with "Boycott Winn-Dixie" stickers on their cars. She referred the call to Director of Manufacturing Wrinn, who told Carothers to instruct Jackson and Bates to come into the office. Caroth- ers relayed these instructions. Meanwhile, Jackson and Bates telephoned union representative Atnip to tell him about the bumper sticker problem. When Parrish reached the guarded gate after parking her car she met Jackson and Bates. Parrish asked them what was going on. They asked her whether she had a Winn-Dixie bumper sticker on her car. She said yes. Jackson or Bates said, "Well, you can't park here." Parrish then asked Carothers what was wrong. I She credibly testified that she often parked there on Saturdays, which were not regularly scheduled work da)s. 45 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carothers said that he had been given orders that any em- ployee with Winn-Dixie bumper stickers on his car could not park there. Parrish then drove her truck off company property, parked it in front of the plant on public property, and clocked in on time. In addition to the "Boycott Winn- Dixie" sticker on the back bumper her car bore on the front bumper the sticker with Respondent's name, which any em- ployee must display in order to use Respondent's employee parking lot. 3. Efforts by director of manufacturing Wrinn to prevent employees from parking vehicles on the employee parking lot with "Boycott" stickers After directing Bates and Jackson to come to the office Wrinn asked employee Ora Starks to attend the meeting because she happened to be in the area and Respondent wanted a union steward present. Wrinn then received a re- port from the guard that employee Rhodon, who had parked his truck on the company parking lot before dawn, also had a "Boycott Winn-Dixie" sign on his truck. Wrinn thereupon called for Rhodon, who was also a union stew- ard, to attend the meeting. Present were Bates, Jackson, Starks, Wrinn, Rhodon, and Goodwin. Wrinn said that Winn-Dixie was a very good customer, that Respondent received one of its biggest orders from Winn-Dixie, that if Winn-Dixie saw the stickers on the em- ployees' cars it might cause Winn-Dixie to stop buying from Respondent, and that he was not going to let that happen. Wrinn said that he was not requiring the employ- ees to remove their stickers but unless they did they could not park in the employee parking lot. He asked them to remove the stickers. The employees said that they had paid for their vehicles and could put anything on them that they wanted to. Bates said that Atnip had instructed them to put the stickers on, and that the employees would keep them on. Wrinn asked them to park on the street. Bates and Jack- son said that they had volunteered to come in and work that Saturday (which was not a regularly scheduled work- ing day), that they were not going to park on the street, and that if they could not park in the employee lot they would go home and collect 4 hours' call-in pay. They then left Wrinn's office and headed toward the door to the building. After a brief discussion with stewards Rhodon and Starks management caught Bates and Jackson before they had left the building and told them to return. Wrinn then said that he wanted them to understand that if they left they were leaving voluntarily, and that they had a choice of parking on the lot without a bumper sticker and working or parking on the street and working. Bates and Jackson again said that they were not taking off the bumper stickers, that they were not offered a choice, that they would not park in the lot, and that if they parked on the street their cars would be towed. Wrinn asked if they would park on the street if he could guarantee that their cars would not be towed. The employees said no. They further said that if they parked on the street their cars might be hit. Wrinn said that if they left it was on a voluntary basis and they would not receive pay. At this point Bates and Jackson left the office and again telephoned Atnip about the matter, using a phone in the building. Wrinn conferred with Goodwin, Rhodon, and Starks and then sent Goodwin to tell Bates and Jackson to return. While awaiting their return Wrinn asked Rhodon about the "Boycott" bumper sticker on his truck. Rhodon said that he would not remove the sticker. Wrinn asked him to move his truck, and Rhodon said no, that Respondent would have to call a wrecker to tow it off. Wrinn said that Respondent had its own wrecker. Rhodon said, "Well, that old thing will tear [my truck] up. You'll have to buy me a new one." Meanwhile, Goodwin caught up with Jackson and Bates at the door to the building. Goodwin told them to come on and go to work, and that she would have Har- dison, Wrinn, and Atnip get together and straighten the matter out. Bates and Jackson then returned to Wrinn's office. He told them to change clothes and go to work and said that he would get back to them. Bates and Jackson then changed clothes and started to work. 4. Respondent's efforts to induce union representative Atnip to have employees refrain from parking vehicles with "Boycott" stickers on company property After Bates and Jackson had left Wrinn's office stewards Rhodon and Starks said something about calling Atnip. Wrinn tried to call Atnip but could not reach him. After Rhodon and Starks returned to work Wrinn reached Atnip by telephone. Atnip said that Wrinn was violating the em- ployees' civil rights, and that if Wrinn did not stop harass- ing them Atnip would shut the plant down.7 Wrinn then telephoned Hardison that four people had reported for work with "Boycott Winn-Dixie" bumper stickers, and that management had had "numerous meet- ings" with these employees and with the union steward. Hardison asked where the situation stood at the moment. Wrinn said that all the employees were working, that three cars were in the company parking lot with the stickers on, and that Parrish's car was out on the road with a sticker on it. At about 7:30 a.m., immediately after this conversation with Wrinn, Hardison telephoned Atnip. Hardison asked Atnip to have the employees stop displaying the stickers when their cars were parked on Respondent's parking lot because Respondent stood a good chance to lose Winn- Dixie's business if Winn-Dixie saw those stickers on Re- spondent's property. Hardison said that Respondent had no objection to the employees' displaying the stickers on their cars off company property. Atnip said that the employees had a right to display the stickers, that this was a boycott put into effect by the International, and that helping it was part of his job. Hardison asked him to display the stickers somewhere other than in Respondent's parking lot. Atnip said that there was nothing he could do about it now, al- though maybe something could have been worked out if Respondent had called him in advance. Hardison said, "we didn't know to call you in advance. I'm calling you as fast as I can." Thereafter, union steward Starks told employee Parrish to return her car to the plant parking lot. At about 8:45 a.m., during her break, Parrish did so. The "Boycott" sticker remained on her car. I The bargaining agreement contains a no-strike provision. 46 RUDY'S FARM COMPANY 5. Company President Hardison induces the employees to refrain from parking vehicles on company property with "Boycott" stickers Thereafter, between 9 a.m. and 10:30 a.m. that same morning, Hardison met with Director of Manufacturing Wrinn, Labor Relations Director Delbert Poole, and em- ployees Rhodon, Parrish, Jackson, and Bates. Hardison told the employees that Winn-Dixie was one of Respon- dent's principal customers, and that its business represented about 5 percent of Respondent's total "retail" sales,' with an immediate potential of 10 percent because Respondent had first orders pending in certain locations. 9 Hardison fur- ther said that a few days previously Winn-Dixie had unex- plainedly withheld some orders, and thereafter Winn-Dixie representatives had visited Respondent's plant to ascertain whether Respondent's employees were "actively involved in a boycott against Winn-Dixie with stickers on anything that ranged from [Respondent's] company bulletin boards, com- pany cars and company trucks and employee cars." Hardi- son went on to say that Winn-Dixie's inspection had been based on rumor, and that after completing it Winn-Dixie had resumed ordering from Respondent. 0° Hardison said that he feared Respondent would lose Winn-Dixie's busi- ness if the employees brought "Boycott" stickers onto Re- spondent's parking lot. Hardison also said that a loss of Winn-Dixie's business would probably cause a layoff of about 15 employees, and that almost all of the employees who were working that Saturday were working on Winn- Dixie orders. Hardison went on to say that Respondent had no dispute with the Union. He stated that the following Monday he would notify the rest of the people at the plant to take the stickers off. He said that he regarded the four employees who had displayed the "Boycott" stickers that day as "ringleaders" in bringing such stickers onto com- pany property, and that if they did not voluntarily remove such stickers after being informed that they might seriously damage Respondent, "I would personally do everything le- gally that I could do to protect the interest of the Com- pany," including discharge, disciplining them up to dis- charge, or suing them individually for damages flowing from loss of business and loss of income to Respondent. Employee Jackson said that she and some of the other employees had attended the state fair wearing "Boycott Winn-Dixie" tee shirts, and that she had driven up and down in front of Winn-Dixie with a "Boycott Winn-Dixie" sign on the car and a Rudy's sticker on the front bumper. She remarked that she could get in trouble over this. Hardi- son said that he did not care what the employees did away from the plant with respect to boycotting Winn-Dixie, handbilling Winn-Dixie, wearing "Boycott Winn-Dixie" tee shirts, or putting "Boycott Winn-Dixie" bumper stickers on their cars, but that he did not want the employees to park their cars on company property with "Boycott" stickers on The correct figure was 9 percent. 'My finding in the text is based on the testimonies of Hardison and Wrinn. I believe that Jackson was mistaken in testifying that Hardison said that most of the work at the plant was done for Winn-Dixie. '°This finding is based on Wrinn's testimony. I believe that Jackson was mistaken in testifying that Hardison said Winn-Dixie had found a "Boycott" bumper sticker on one car. them because he was afraid such conduct would cause Re- spondent to lose Winn-Dixie's business. During this discussion the employees repeatedly said that they owned and had paid for the vehicles involved and could put anything on them that the employees wanted. However, at the end of the meeting all four said that they would remove the stickers. Rhodon said that Hardison had always been "straight" with him, and that Rhodon would remove his stickers because he did not want to do anything to hurt Respondent's business. Parrish said that she had had "no idea at all that we could have this kind of repercus- sions" and did not want to do anything to hurt Respon- dent's business. Bates said that if union representative At- nip told her to put the bumper sticker back on she would put it back on immediately and leave it on. 6. Aftermath On the following Monday morning, September 25, acting pursuant to president Hardison's instructions, Labor Rela- tions Director Poole and Foreman Jackie Gunter stationed themselves at the guardhouse at a point where they could be seen by occupants of entering vehicles to see how many employees had "Boycott Winn-Dixie" stickers on their cars. Hardison testified that if Poole and Gunter had seen any Hardison would have expected them to report the employ- ees' names to him. Poole and Gunter saw none that day, and Poole saw none at any time thereafter. Similarly, after September 23, 1978, Director of Manufacturing Wrinn nev- er saw another such sticker on a vehicle in Respondent's parking lot. Respondent's bulletin boards never carried any literature urging a boycott of Winn-Dixie. Also on September 25 Womack, Respondent's vice pres- ident in charge of sales, travelled from Nashville to Jack- sonville for a personal visit to Minshew, who heads Winn- Dixie's meat purchases. According to the uncontradicted and credible testimony of Womack. a witness for Respon- dent, the following occurred: Womack said that he wanted Minshew to be aware of the fact that on the previous Satur- day morning some employees showed up with "Boycott Winn-Dixie" on their bumpers. Womack did not tell Min- shew what Respondent had done about the bumper stick- ers. Womack said that he "didn't know what [Respondent] really could do about it, but I still wanted to assure him that we at Rudy's Farm Company was not supporting or doing anything to damage Winn-Dixie." The only thing which Womack did during this visit was to make this re- port. Respondent's April 1979 brief states that Winn-Dixie is- sued the order for the Tampa division promised prior to Womack's visit, and that Winn-Dixie has increased its pur- chases of Respondent's products since Womack's Septem- ber 25, 1978, visit to Minshew. There is no evidence or claim that Respondent ever altered its earlier position with respect to the bumper stickers. The four employees who were called into the office for the September 23 conversation with company President Hardison were paid for the time which they spent there. The record fails to show whether employees Bates and Jackson who, inferentially, punched in late that morning because of their morning contacts with the guards and with 47 DECISIONS OF NATIONAL LABOR RELATIONS BOARD management about the bumper stickers were paid for any period before they punched in. None of these four employ- ees filed a grievance concerning the conversation about the bumper stickers and the statements made by Hardison. Laying to one side management's instructions not to park in the employee parking lot with a sticker, nobody was ever disciplined at the plant for using a "Boycott Winn-Dixie" bumper sticker. No written reprimands, warnings, or other documents were placed in the files of the four employees who had such stickers on their cars on September 23. D. Analysis and Conclusions I. Whether Respondent's employees engaged in an activity protected by Section 7 of the Act when they displayed "Boycott Winn-Dixie" bumper stickers on their vehicles when parked in employee parking areas on company property The threshold question presented is whether Respon- dent's employees engaged in an activity protected by Sec- tion 7 of the Act when they displayed "Boycott Winn-Dix- ie" bumper stickers on their vehicles when parked in employee parking areas on company property." In con- tending that this activity was so protected the General Counsel relies primarily on The Firestone Tire and Rubber Co., Inc., 238 NLRB 1323 (1978). That case held that a nonstriking steward in a nonstriking technical unit engaged in protected activity when he parked on his employer's em- ployee parking lot an automobile in which he normally drove to work to which he had attached several signs urging a boycott of his employer's products in support of a current economic strike by employees in a production and mainte- nance unit in the same plant and represented by the same union. Respondent's brief suggests that Firestone was wrongly decided.2 However, presumably recognizing that I am bound thereby,'3 Respondent's argument to me is de- " Because such language was not obscene I regard as irrelevant the deci- sion in Southwestern Bell Telephone Company. 200 NLRB 667 (1972), which held that employees were not engaged in protected activity when they wore at work sweatshirts which used obscene language in attacking their employ- er's wage policies. The opinion expressly stated that but for the obscene character of the language used the result might have been otherwise. See 200 NLRB at 671. 2 1 perceive no relevance, to either Firestone or the instant case, of several cases cited by Respondent. Thus, N.LR.B. v. Montgomery Ward d& Com- panyv, 157 F.2d 486, 496 (8th Cir. 1946), and United Biscuit Company of Amenrica v. N.L.R.B., 128 F.2d 771, 776 (7th Cir. 1942), involved employees who remained on their employer's payroll but refrained from performing some of their regular duties. N.LR.B v. Red Top, Inc., 455 F.2d 721 (8th Cir. 1972), involved a housekeeping service's employees who threatened to com- plain to one of their employer's customers, a hospital, about their own em- ployer's management. N.LR.B. v. Local Union No. 1229, International Brotherhood of Electrical Workers, A.F.L. (efferson Standard Broadcasting Company), 346 U.S. 464 (1953), involved employees of a radio station who circulated a letter to the general public which disparaged the quality of their employer's programs without revealing that the criticism was being ad- vanced in the context of a labor dispute with the radio station. Bell Federal Savings and Loan Association of Bellevue, 214 NLRB 75 (1974), involved a switchboard operator who told a certified union about telephone calls be- tween the employer's president and its attorney. None of these factual situ- ations resembles the situation presented either in Firestone or in the case at bar. " Iowa Beef Packers, Inc., 144 NLRB 615, 616 (1963), modified 331 F.2d 176 (8th Cir. 1964). voted largely to efforts to distinguish Firestone. Thus, Re- spondent points out that the employee in Firestone was urg- ing a boycott of his own employer's product to assist his own employer's employees (although in a different unit) in a dispute with their common employer, while Respondent's employees were urging a consumer boycott of one of Re- spondent's customers to assist the customer's employees in a dispute with the customer. However, Section 2(3)'s provi- sion that the term "employee ... shall not be limited to the employees of a particular employer, unless the Act explic- itly states otherwise" was "intended to protect employees when they engage in otherwise proper concerted activities in support of employees of employers other than their own." See Eastex, Inc. v. N.L.R.B., 437 U.S. 556, 564-565 (1978). See also Circle Bindery, Inc., 218 NLRB 861 (1975), enfd. 536 F.2d 447 (Ist Cir. 1976), holding that a nonunion bindery could not lawfully discharge an employee because he caused it to lose a unionized customer by reporting to the union that his employer was binding booklets with a union label. Indeed, Respondent conceded at the hearing although Respondent's brief is more cautious, that Respon- dent could not lawfully forbid its employees to engage off company property in activities promoting a boycott of Winn-Dixie, even in contexts where Winn-Dixie could readily perceive that such employees worked for Respon- dent. At least arguably inconsistently with this concession Re- spondent further seeks to distinguish Firestone on the ground that in that case there was no evidence that the employer was threatened with any loss of business as a re- sult of the attempted boycott." However, Winn-Dixie in- creased its purchases of Respondent's sausage after Re- spondent's vice president in charge of sales told Winn-Dixie representative Minshew about the "Boycott Winn-Dixie" bumper stickers displayed by Respondent's employees, fur- ther said that he "didn't know what we really could do about it, but . . . we at Rudy's Farm Company was not supporting or doing anything to damage Winn-Dixie," and said nothing at all about Respondent's action in limiting employees' use of such stickers. The evidence that Minshew is in charge of Winn-Dixie's meat purchases and maintains his office in Winn-Dixie's corporate office in Jacksonville, Florida, leads me to infer that he is the corporate superior of the Alabama and Tennessee Winn-Dixie representatives, who had reportedly expressed concern on earlier occasions about the boycott, as well as of the Atlanta, Tampa, and Jacksonville buyers for Winn-Dixie, who had reportedly withheld their orders from Respondent without explana- tion. Accordingly, Winn-Dixie's conduct after this report from Respondent's vice president that Respondent felt helpless about its employees' display of "Boycott Winn- Dixie" bumper stickers substantially diminishes the weight of the largely hearsay evidence regarding the prior com- 141I think it highly improbable that such a showing would have changed the result in Firestone; an otherwise protected activity does not ordinarily become unprotected because it has achieved its intended purpose. However, this comment is really beside the point here. Respondent's employees were not seeking to cause the consuming public to stop buying Respondent's sau- sage or to cause Winn-Dixie to stop buying sausage from Respondent: rather, Respondent's employees were trying to induce the consuming public to stop buying merchandise, which for some consumers would include Re- spondent's sausage, from Winn-Dixie. 48 RUDY'S FARM COMPANY ments and conduct of Minshew's subordinates about Winn- Dixie's willingness to continue buying sausage from Re- spondent. Furthermore, more than 97 percent of Respon- dent's sales and 91 percent of its "retail" sales are to cus- tomers other than Winn-Dixie, and assuming that Winn- Dixie did stop buying sausage from Respondent, Respon- dent might in consequence sell more sausage to other gro- cery chains for the benefit of consumers who were willing to patronize stores other than Winn-Dixie in order to buy Re- spondent's sausage." In other words, Winn-Dixie's reaction to the "boycott Winn-Dixie" stickers could not have caused Respondent to lose more than a small percentage of its sales and did not, in fact, adversely affect them at all. Of course, neither the Union nor Respondent's employ- ees used the "Boycott Winn-Dixie" stickers with the spe- cific intent of diminishing Respondent's sales. Respondent chooses to disregard this fact in relying on The Hoover Company v. N..L.R.B., 191 F.2d 380, 390 (6th Cir. 1951), where the employees acted with the specific intent of dimin- ishing the sales of their own employer in furtherance of their dispute with that employer. I regard this distinction as critical in the normal case, such as this one, where the em- ployees' own employer has only a limited business relation- ship with the disputing employer whose sales to consumers are the specific object of attack. Otherwise, action by Winn- Dixie would empower all of the many food manufacturers and others who do business with Winn-Dixie's retail gro- cery chain to limit the right of their own employees, num- bering perhaps in the thousands, to forward a consumer boycott of Winn-Dixie. I need not and do not determine the materiality of specific intent where the firm against which the consumer boycott is directed is the only customer or a proportionally very large customer of the employees' own employer. Cf. Coors Container Company, 238 NLRB 1312 (1978); K & K Construction Co., Inc. v. .. R.L.B., 592 F.2d 1228 (3d Cir. 1979).1' For the foregoing reasons I conclude that in displaying "Boycott Winn-Dixie" bumper stickers on their vehicles while parked in Respondent's employee parking lot Re- spondent's employees were exercising a right afforded them under Section 7 of the Act. 2. Whether the Union effectively waived rights in connection with display of bumper stickers It is undisputed that before the events which gave rise to this case Respondent's employees had been permitted to park in Respondent's parking lot without any restrictions on the bumper stickers which the parked vehicles could carry. Accordingly, both the General Counsel and Respon- dent seem tacitly to assume that in the absence of a collec- tive-bargaining agreement Respondent would be under a duty to bargain with respect to a rule which forbids em- "'The preface to the bargaining agreement indicates that Respondent's sausage is retailed under Respondent's brand name. In any event, its devo- tees could perhaps recognize it by its flavor and texture. "1A fortiori, the instant case differs from Kenai Helicopters, Kenai Air Ser- vice, Inc., db/la 235 NLRB 931, 935-938 (1978), also cited by Respondent. Those discharges were motivated by a reasonable belief that the dischargees were planning to use a contemplated strike to divert the respondent employ- er's business to a competitor whom the dischargees were planning to join. ployees, on pain of discipline, to display "Boycott Winn- Dixie" bumper stickers on their cars while parked in Re- spondent's employee parking lot. I agree. See Peerless Pub- lications, Inc. (Pottstown Mercury,), 231 NLRB 244, 245 (1977): General Electric Company, 192 NLRB 68, 72 (1971). enfd. 466 F.2d 1177 (6th Cir. 1972); Wil-Kil Pest Control Company, A Division of Copesan Services, Inc., 181 NLRB 749, 750-751 (1970)., enfd. 440 F.2d 371 (7th Cir. 1971): Diversified Industries, a Division of Independent Stave Com- panv, 208 NLRB 233, 236 239 (1974). Further, the General Counsel and Respondent agree that the Union has the power effectively to waive the employees' right to display such strikers on their vehicles in Respon- dent's employee parking lot. I would have no difficulty with this proposition if I had agreed with Respondent that such a rule did not restrict rights protected by Section 7. Al- though making the contention which I have accepted, su- pra, that the rule did restrict Section 7 rights the General Counsel expressly conceded on the record that the Union nonetheless had power effectively to waive them. In view of my conclusion on the merits of the "waiver" issue I need not and do not determine whether I must or should accept this concession. See N.L. R.B. v. Magnavox Compan v of Ten- nessee, 415 U.S. 322 (1974): Piasecki Aircraft Corporation v. N.L.R.B., 280 F.2d 575, 586-689 (3d Cir. 1960), charging party's petition for cert. denied, 364 U.S. 933 (1961): Inter- national Union of Electrical, Radio and Machine WfVorkers, AFL CIO v. N.L.R.B. (NECO Electrical Products Corp.), 289 F.2d 757, 760-762 (D.C. Cir. 1960). Respondent rests its waiver claim on a provision in the collective-bargaining agreement affording Respondent the right to "make reasonable rules and regulations governing its operations and the works [sic] of its employees, to revise the same from time to time, and to require compliance by the employees therewith provided such are not used for the purpose of discrimination against any employee or the Union." In addition, Respondent relies on a provision in the preamble to the agreement that "The sales of the Com- pany's product in the market place and the purchases of the Company's products by the employees shall be encouraged by both the Union and the Company." Also, Respondent offered into evidence its work rules in effect on September 23, 1978, which forbid, inter alia, "International interfer- ence with production or operations in some manner more than horseplay." However, a statutory right can be effec- tively waived only by the use of clear and unmistakable language, and the union must have knowingly waived its interest in the matter. See Peerless Publications, supra, 231 NLRB at 258: National Broadcasting Company, Inc., 241 NLRB No. 147 (Administrative Law Judge Decision page 4) (1979);: The Timken Roller Bearing Co. v. N.L.R.B, 325 F.2d 746, 751 (6th Cir. 1963), cert denied 376 U.S. 971 (1964). Moreover, company President Hardison testified that "never in my wildest dreams when we were negotiating a labor contract ... or writing a set of Company rules, did I think that somebody would come up and want to take an action like this," referring to the "Boycott Winn-Dixie" bumper stickers. I regard Hardison's testimony in this re- spect as vitiating any claim that the quoted language effects a waiver of the bumper sticker matter under the relevant standards set forth above. Indeed, because the bumper sticker rule limited the employees' statutory right to engage 49 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in union activity, Respondent's contractual right to impose it would be excluded by the contractual requirements that its rules be "reasonable" and not be "used for the purpose of discrimination against any employee or the Union."' For the foregoing reasons I conclude that Respondent's imposition and enforcement of the bumper sticker rule vio- lated Section 8(a)(1) and (3) of the Act. 3. Whether Respondent's imposition and enforcement of the bumper sticker rule violated Section 8(a)(5) and (1) of the Act As found supra, on Thursday, September 21, the chair- man of Respondent's board of directors issued instructions to Respondent's guards that employees who drove to the plant with "Boycott Winn-Dixie" bumper stickers on their cars would be required to remove the stickers or to remove their cars from Respondent's employee parking lot. How- ever, the Union did not find out about the new rule until after Respondent had started to enforce it against the em- ployees on September 23, 2 days after Respondent had in- structed its guards to enforce the rule. I conclude that by promulgating the rule on September 21 and enforcing it on and after September 23 without giving the Union prior no- tice and an opportunity to bargain about the rule Respon- dent violated Section 8(a)(5) and (I) of the Act. See Hed- strom Company, a subsidiary of Brown Group, Inc., 235 NLRB (1978); General Electric, supra, 192 NLRB 1198, 1202, 1206 at 72. I disagree with the apparent contention in Respondent's brief that company President Hardison's telephone conver- sation with union representative Atnip on the morning of September 23 constituted an offer to bargain with the Union about the bumper-sticker rule. Hardison did not evince any willingness to bargain about the matter but merely asked Atnip to induce the employees to comply with the rule. On the other hand, during this conversation Atnip indicated that he was not willing to bargain about the rule either. Accordingly, if the bumper sticker rule had not re- stricted the employees' exercise of Section 7 rights this con- versation might have warranted Respondent's subsequent maintenance and enforcement of the rule. However, be- cause the rule did restrict Section 7 rights which, although perhaps waivable, are not mandatory subjects of collective bargaining so far as the Union is concerned, I conclude that the Union's subsequent unwillingness to discuss the rule not only constituted no defense to Respondent's prior action in " Respondent does not renew in its brief its apparent suggestion at the hearing that the issues in this case be deferred to the contractual grievance- arbitration machinery. Because the General Counsel contends that the bumper sticker rule violated Sec. 8(aXI) and (3) such deferral would be inappropriate under General American Transportation Corporation, 228 NLRB 808 (1977). In any event, such deferral would appear to be inappro- priate because a determination as to whether use of the bumper stickers constituted a statutory right affects the standard to be used in determining whether the contract effectively waived that right. See National Rejectors Industries, 234 NLRB 251 (1978); Brewery Delivery Employees Local Union 46, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Port Distributing Corp.), 236 NLRB 1175 (1978); Brew'- ery Delivery Employees Local Union 46, Teamsters (Guinness-Harp Corpora- tion, Metrobeer Division), 236 NLRB 1160 (1978): Pincus Brothers, Inc.- Maxwell, 237 NLRB 1063 (1978). unilaterally promulgating and enforcing it but also did not justify its subsequent maintenance and enforcement. 4. Whether Respondent violated the Act by threatening to discipline or sue the employees who displayed "Boycott Winn-Dixie" stickers on their vehicles in Respondent's employee parking lot I have found that by displaying "Boycott Winn-Dixie" stickers on the employees' own vehicles while parked in Respondent's employee parking lot the employees were ex- ercising rights guaranteed them by Section 7 of the Act. I have further found that these rights were not effectively waived. Accordingly, Respondent violated Section 8(a)(I) of the Act by threatening to discharge or discipline the em- ployees if they engaged in such activity in the future. Also, Respondent violated Section 8(a)(1) by threatening to sue them individually for damages flowing from loss of business and loss of income to Respondent due to breach of that rule. See S. E. Nichols Marcy Corp., 229 NLRB 75 (1977). CONCLUSIONS OF LAW I. Respondent is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times since July 1, 1974, the Union has been and is now the exclusive representative under Section 9(a) of the Act of the following unit which is appropriate for collective-bargaining purposes within the meaning of Sec- tion 9(b): All production and maintenance employees and truckdrivers employed by Respondent at its 2424 Music Valley Drive, Nashville, Tennessee, plant, excluding office clerical employees, salesmen, driver-salesmen, managerial employees, guards, and supervisors as defined in the Act. 4. Respondent has violated Section 8(a)(1) and (3) of the Act by promulgating and enforcing a rule which forbids employees to park on its employee parking lot vehicles owned by them which bear bumper stickers advocating a consumer boycott of Winn-Dixie. 5. Respondent has violated Section 8(a)(5) and (1) of the Act by unilaterally promulgating and enforcing that rule. 6. Respondent has violated Section 8(a)(1) of the Act by threatening to discharge or discipline employees who break that rule and to sue such employees for damages flowing from loss of business and loss of income to Respondent due to breach of that rule. 7. Such unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be required to cease and desist therefrom and from like or related con- duct. Affirmatively, Respondent will be required to rescind the unlawful rule. Also, because Respondent's unlawful ef- forts to enforce the unlawful rule probably caused employ- ees Bates and Jackson to punch in late on September 23. 1978, and thereby to lose pay, as a precautionary matter 50 RUDY'S FARM COMPANY Respondent will he required to make them whole for anll: such losses. Backpay will be computed with interest as pre- scribed by Florida Steel Corporation, 231 NLRB 651 (1977).8 In addition, Respondent will be required to post appropriate notices. Upon the foregoing findings of fact, conclusions of law, and pursuant to Section 10(c) of the Act I hereby issue the following recommended Order: ORDER" The Respondent. Rudy's Farm Company, Nashville., Tennessee. its officers. agents, successors. and assigns, shall: I. Cease and desist from: (a) Forbidding employees to park on Respondent's em- ployee parking lot vehicles owned by them which bear bumper stickers advocating a consumer boycott of Winn- Dixie. (b) Promulgating and enforcing such a rule without giv- ing prior notice and a prior opportunity to bargain to Amalgamated Meat Cutters and Butcher Workmen of North America. District 405. AFL CIO. (c) In any like or related manner interfering with the Amalgamated's efforts to bargain collectively with Respon- dent. (d) Threatening to discharge or discipline employees for breach of such a rule. " See, generally. Isis Plumbing & Heating Co.. 138 NLRB 716 (1962). B1 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings. conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (e) Threatening to sue employees for damages flowing from loss of business and loss of income to Respondent due to breach of that rule. (f) In any like or related manner interfering with. re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act. (a) Rescind its rule which forbids employees to park on Respondent's employee parking lot vehicles owned b' them which bear bumper stickers advocating a consumer boycott of Winn-Dixie. (b) Make employees Vickie Jackson and Bonnie Bates whole for any loss of pay they may have suffered on Sep- tember 23, 1978. in consequence of Respondent's efforts to enforce the bumper sticker rule, in the manner set forth in that part of this Decision entitled "The Remedy." (c) Post at its Nashville, Tennessee. plant copies of the attached notice marked "Appendix.""' Copies of said no- tice, on forms provided by the Regional Director for Re- gion 26. after being signed bh Respondent's representatives. shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places. including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered. defaced. or covered by an, other mate- nal. (d) Notify the Regional Director for Region 26, in writ- ing, within 20 days from the date of this Order what steps Respondent has taken to comply herewith. In the eent that this Order is enforced by a Judgment of a nited States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" hall read Posted Pursuant to a Judg- ment of the United States Court of .sppc.als Enforcing ain Order o1 the Na- tional Labor Relations Board." 51