Azalea Meats, Inc.

AZALEA MEATS, INC. 585 Azalea Meats, Inc. and Meat Cutter, Packinghouse & Allied Food Workers, District Union 433, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Cases 11-CA- $800 and 2852. June 17, 1966 DECISION AND ORDER On April 5, 1966, Trial Examiner William J. Brown issued his Decision in the above-entitled proceeding, finding that the Respond- ent has engaged in and is engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent has not engaged in certain other unfair labor practices, as to which he recommended that the complaint be dis- missed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. The Board has reviewed 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 considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications. We agree with the Trial Examiner that the Union at all material times represented a clear majority of the employees in the appropri- ate unit. We would, however, count among the 109 cards, which the Trial Examiner found valid and authenticated, the cards of Henry Haynes, Fred Campbell, Quellie Calloway, and John Miller. These cards, including that of Haynes (see footnote 13 of the Trial Exam- iner's Decision) were among nine marked with an X and the names of the employees affixed by the person or persons soliciting their designations. The other five employees appeared and testified as to the circumstances under which they affixed their marks. Accord- ingly, there can be no question as to the validity of their cards. However, these four did not appear and testify. But, their solicitors did testify that each signed with an X in the presence of the respec- tive solicitor and each was told that the card was "for the Union." In these circumstances, we consider these cards equally valid and entitled to be counted with all the others on the Union's behalf. 159 NLRB No. 55. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We also agree with the Trial Examiner that Respondent violated Section 8 (a) (5) by refusing to recognize and bargain with the Union as the majority representative of the employees 'in the appropriate unit, and that the Respondent's assertion of a good-faith doubt as to the Union's status is not substantiated by the record. We think the Trial Examiner's Decision makes clear that his finding of an absence of good faith is predicated on his conclusion that the Respondent both before and after the Union's initial demand for recognition engaged in various acts of interference, restraint, and coercion, as detailed in his Decision, directed against the employees in the exercise of their statutory rights. We are of the opinion that the Respondent's conduct was calculated to undermine the Union's position with the employees so as to dissipate its majority status, and that such conduct clearly establishes the illegality of Respond- ent's refusal to bargain.' The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Add the following at the end of paragraph 1(e) : "or to refrain from joining or assisting such labor organization." [2. Add the following as paragraph 2(b), the present paragraph 2(b) and those subsequent thereto being consecutively relettered : [" (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full rein- statement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." [3. Add the following as the fifth paragraph of the Appendix : [WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from joining or assisting such or any other labor organization. [4. Add the following immediately below the signature line at the bottom of the Appendix attached to the Trial Examiner's Decision : [NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces.] 'Joy Silk Mills, Inc., 85 NLRB 1236, enfd . 185 F.2d 732 (C.A.D.C.), cert. dented'341 U.S. 914. AZALEA MEATS, INC. 587 -TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding under Section 10(b) of the National Labor Relations Act, as amended, hereinafter referred to as the "Act," came on to be heard before Trial Examiner William J. Brown at Orangeburg, South Carolina, December 7, 8, and 9, 1965.1 The original charge of unfair labor practices had been filed on August 5, by the above-indicated Charging Party, hereinafter sometimes referred to as the "Union"; the consolidated complaint herein was issued October 21 by the General Counsel of the National Labor Relations Board, hereinafter referred to as the "General.Counsel" and the "Board," acting through the Board's Regional Director for Region 11. The complaint alleged, in addition to jurisdictional matter and the supervisory status of certain named individuals, the commission of unfair labor practices defined within the scope of Section 8(a)(1), (3), and (5) of the Act on the part of the above-named Respondent, hereinafter sometimes the "Company." 2 The Company's duly filed answer denied the allegations respecting the labor organization status of the Union, the appropriateness of the bargaining unit set forth in the complaint, and the commission of the unfair labor practices alleged.3 The answer affirmatively alleged, with respect to the allegations of refusal to bar- gain, that it continuously offered to submit the issue of the Union's claim to majority status to an election and that the Union employed coercive tactics in securing authorization cards from employees many of whom, it was alleged, were unaware of what they were signing. The Company separately moved by letter dated November 30, to make section 7 of the complaint, relating to alleged discrimination in pay, more definite and cer- tain. With respect to this latter motion, the General Counsel replied by letter dated December 1, to the effect that section 7 related to alleged discriminatory changes on or about June 20 in working conditions of employees Leroy Jenkins, Edward Chandler, and Ansel Ott whereby Jenkins was deprived of 1-month overtime work, and Chandler and Ott were transferred to lower paid work. On December 3, Trial Examiner W. Edwin Youngblood denied the Company's motion to make more definite and certain on the basis of the sufficiency in this regard of the General Counsel's December 1 letter. At the hearing the parties appeared as noted above and participated with full opportunity to present evidence and- argument on the issues. In the course of the hearing the General Counsel moved to amend the complaint to add an allegation of discriminatory discharge of John Edward Fine on or about December 6. Over opposition of the Company, I allowed the amendment with assurance to the Com- pany that it would be allowed time to prepare its defense in this regard at the conclusion of the General Counsel's case in chief. - At the conclusion of the General Counsel's case=in-chief, I granted the Com- pany's motion, unopposed by the General Counsel, to dismiss the allegations respecting discrimination with respect to Ott, and the motion respecting unfair labor practices through the agency of Plant Manager Robert Maier. I denied the company motion respecting allegations concerning Supervisors Arthur Felkel and O'Neal Hill as well as the motion that an election be ordered to resolve the repre- sentation matters. Subsequent to the hearing briefs were received from the Company and the Union; they have been fully considered. On the basis of the entire record herein,4 and on my observation of the witnesses and in consideration of the oral and written argument of counsel, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The pleadings and evidence herein indicate and I find that the Company is a corporation organized under the.laws of the State of South Carolina with a place 'Dates hereinafter relate to the year 1965 unless otherwise indicated. 2 The evidence indicates that the Company was known as "Southland Provision Com- pany" until sometime in 1965. $ The answer also denied the allegations of the complaint respecting dates of filing and service of the charges but a stipulation of all parties entered into at the outset of the bearing establishes the accuracy of the complaint's allegations in that regard. ' The transcript at page 476, line 8, is corrected by substituting "part passu" in lieu of "Perry Parcel." 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of business, the only plant here involved, at Orangeburg, South Carolina, where it is engaged in the slaughter and processing of livestock. During a typical 12-month period the Company receives at its Orangeburg plant materials and goods valued in excess of $50,000 and shipped to said plant directly from points outside the State of South Carolina. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and assertion of Board jurisdiction is warranted. II. THE LABOR ORGANIZATION INVOLVED The Company's answer denies the allegations of paragraph 4 of the complaint respecting the labor organization status of the Union. This position is reasserted in the Company's brief. Thomas Scarborough, a general organizer for the Union, testified that it existed for the purpose, at least in part, of organizing meat plant employees and representing them in dealings with their employers, and in nego- tiating contracts respecting their wages, hours, and working conditions. In addition, the evidence in this case abundantly establishes that the Union procured the sig- natures of company employees on `cards which purport to authorize the Union to represent the signer and on his behalf to negotiate and conclude with the employer agreements respecting wages, hours, and conditions of employment. It also appears from the uncontradicted testimony of Scarborough that employees of a plant, upon successful organization by the Union, elect a committee to negotiate an agreement with their employer, and that the employees vote on ratification of any agreement consummated by the committee on their behalf. They also vote for local union officers. The evidence establishes that the Union has, for some period prior to the events herein concerned, represented employees of Hi-Grade Meat Products Corp., a meat packer in Orangeburg and that Hi-Grade employees members of the Union, participated in efforts to organize employees of the Company looking to representa- tion by the Union. On the basis of the foregoing, I find that the Union is a labor organization within the purview of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction and summary of events As noted above, the Company is engaged at its Orangeburg plant in the purchase and slaughter of livestock and the processing of meat for sale to restaurants and, conceivably, other customers. Its principal executive is Griffith 5 but the extent of Griffith's participation in day-to-day operation is uncertain on the record herein which tends to indicate that the principal executive in residence is General Manager Robert S. Maier. Working directly under Maier is Walter C. Emde, office manager and J. Clyde Fairey, superintendent. Working under and reporting to Fairey are Hugh Kea, livestock foreman; Arthur Felkel, packaging department supervisor; O'Neal Hill, sausage kitchen supervisor; and Frank Griffith, garage supervisor. The supervisory status under the Act of all the foregoing is established by the pleadings. Union organization among employees of the Company appears to have had its inception when two employees of Hi-Grade, Thomas Moss and Willie Jennings, members of the Union, approached company employees, secured some signatures on union authorization cards 6 and prevailed upon Scarborough to undertake a campaign of organizing company employees. Scarborough came to Orangeburg sometime about mid-April and met some company employees at meetings at the homes of Moss and Jennings. The company employees particularly active in organizing on behalf of the Union included Mrs. Cornelia Binnicker, Woodrow g General Counsel's Exhibit 2, the Union's letter of May 25 addressed to the Company and representing Its initial request for recognition, Indicates transmittal of a copy to A. D. Griffith, president, Southland Provision Co., Inc 6 The authorization cards involved In the present case measure 33/8 by 51/2 inches with a space indicated for the employee signature beneath an unequivocal designation of the Union as the signer's representative on one side, the other side bearing the return address of the Union and standard addressee-postage-paid markings. AZALEA MEATS, INC. 589 Morgan, Harry Lee Zimmerman, Leland Rutland, Dallas Simpson, and John Wes- ley Jenning,7 each of whom testified not only to their signatures on authorization cards but also to the signing of cards by other employees in their presence. By letter dated May 24 the Union informed the Company of its claim to rep- resent a majority of company employees in the unit herein concerned, the appro- priateness of which, placed in issue by the Company's answer, is discussed below. The May 24 letter transmitted photostatic copies of union authorization cards of more than 100 employees and requested recognition and collective -bargaining nego- tiations. Subsequent union letters transmitted additional authorization card photo- stats and repeated the bargaining demand. On behalf of the Company, Attorney Sims asserted a doubt as to the majority status of the Union , referred to informa- tion on coercive organizational tactics and suggested that if the Union persisted in its claim, the matter be submitted to the Board in the form of a representation petition. The complaint alleges and the Company's answer denies several instances of company interference with employees self-organizational rights in the periods before and after the Union's initial demand for recognition. The complaint also alleges and the Company denies discriminatory treatment of Chandler and Leroy Jenkins on or about June 20 and the discriminatory discharge of Fine on December 6. The pleadings also raise issues as to the appropriateness of the unit in which the Union seeks recognition and its majority status in that unit. B. Interference, restraint, and coercion 1. Clyde Fairey: Superintendent Fairey is alleged to have interrogated employ- ees as to their union membership , sympathies, and activities on certain specified dates in the period May 19 through June 7, and to have threatened, on June 1 and 17, discontinuance of credit union loans to employees if the Union succeeded in its campaign. Harry Lee Zimmerman, an employee with 3 years' service with the Company who signed a card at Moss' solicitation on March 12, testified that on May 19 he was sent to Fairey's office by his foreman, Felkel, and that there Fairey in a "man-to-man" talk asked him if he had signed a card Dallas Simpson, 15-year employee with the Company and one of the active union organizers, testified that on June 1, Fairey called him to his office and there asked him if he had signed a union card and when given an affirmative reply, asked why he had done so. Employee Jacob Myers testified that sometime in May, Fairey called him into the office and asked him if he had signed a union card. Employee John Baker testified that in the latter part of May, Fairey showed him the union demand let- ter of May 24 and asked what his name was doing on it and why he had signed. Testimony was given by employees Luther Brown and Samuel and David Green to the effect that Fairey asked them why they had signed union cards. Fairey conceded having a discussion with Harry Lee Zimmerman in his office on or about May 19 but asserted that the discussion was about some other subject when Zimmerman introduced the subject of the Union and asked Fairey's opinion of it. Fairey testified that he gave his opinion to the effect that a man loses his identity when he joins a union. Fairey denied questioning Zimmerman as to whether he had signed a card. I credit Zimmerman's account of the discussion in the office and find that Fairey did interrogate him as to whether he had signed a card. With respect to Dallas Simpson Fairey testified that he sent for Simpson after learning from Foreman Collins that Simpson wanted to see him on a personal mat- ter. He denied asking Simpson why he had signed a union card. I am convinced on my appraisal of the witnesses that Simpson was scrupulously honest in his tes- timony as to the conversation and I find that on the occasion in question Fairey did ask him why he had signed a card for the Union. Particularly in the context of Fairey's references to his experiences with the Union at Hi-Grade and his refer- ences to loss of individual identity on joining a union , this question constituted interference with employee rights under Section 7. At the hearing and in its brief the Company objected to consideration being given to cards which were identified by the solicitor but not by the signatory employee. This objection was overruled by me. see Winn-Dixie Stores, Inc, 143 NLRB 848, affd. 341 F 2d 750 (C.A. 0), cert denied 382 U.S. 830. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fairey recalled talking to Jacob Myers in his office and said that only after Myers brought up the subject of the Union did he relate his experiences at Hi-Grade respecting . the drawbacks of union representation . I credit Myers' account to the effect that Fairey asked if he had signed a card and conclude that this constituted interference within the scope of Section 8(a)(1) of the Act. With respect to the testimony of Baker, Brown , and the two Greens , Fairey tes- tified that only after they introduced the subject of he Union did he relate his experience at Hi-Grade and express his opinion of the loss of identity on joining a union. I credit the testimony of the General Counsel's witnesses which plainly relates .to questioning after the union letter of May 24 had revealed the fact of their signing. The question as to why they had signed constituted interrogation and interference within the scope of Section 8 (a)(1). With respect . to the allegations that Fairey threatened discontinuance of credit union loan privileges , Dallas Simpson testified that in the course of his talk with Fairey in the latter's office referred to above Fairey referred to previous favors to Simpson and to Simpson's borrowing from the credit union and said that if the Union came in he would not be able to do that. On cross-examination Simpson conceded that he did not regard the conversation as threatening. Fairey denied telling Simpson that he would not be able to borrow or otherwise threatening employees . He conceded giving Simpson , and the others he talked to, his per- sonal opinion of the adverse consequences of union representation . I credit Simp- son's account and find that Fairey threatened loss of credit union borrowing privi- leges theretofore existing in the event the Union secured status as the employee's representative . This threat constituted interference within the purview of Section 8(a)(1) of the Act. 2. Arthur Felkel : Felkel, supervisor of the packaging department, is alleged to have interrogated employees on May 19 as to their support of the Union. Cor- nelia Binnicker, an employee of the packaging department with 8 years' service with the Company, was one of the early card signers of the Union and engaged in solicitation of a number of sister employees of the packaging department. She testified that about the third week in May Felkel talked to her in Fairey's office and asked her what she hoped to gain by her actions and whether she thought she was leading people wrong and that he followed up these questions by showing her a writing critical of the Union . At the conclusion of the talk, according to Bin- nicker, Felkel asked if she didn't think that Company had the right to prevent the Union from coming if it did not want it. Felkel denied talking to Binnicker about the Union . He conceded talking to her in Fairey's office about rates of pay, benefits , and working conditions but asserted that the talk was merely pursuant to his practice of discussing individual employee attitudes from time to time. I found Binnicker convincing in her testi- mony and I do not credit Felkel's denial that the Union was brought up by him in their talk. I find that her account of his questioning her as to her solicitation of other employees is correct and that by such questioning coupled with disparage- ment of the Union, the Company engaged in interference within the scope of Sec- tion 8(a)(1). 3. Hugh Kea: Kea, livestock foreman and cattle buyer, is alleged to have inter- rogated employees as to their union activities and the union activities of other employees and to have threatened them with loss of certain benefits and closing of the plant if the Union succeeded. John W. Jennings , an employee of the Company's livestock department signed a card early in April and procured signatures of at least two other employees on union authorization cards. He testified that about June 9 while he was wearing a union steward button , Kea asked him if he thought the button would help him, and added that Company President Griffith said that if the Union came in he would close the plant. Jennings also attributed to Kea the statement that if the Union came the Christmas bonus would be discontinued as would the privilege of buying meat from the Company. Edward Chandler, an employee allegedly discriminatorily demoted in reprisal for his union activities , testified that on June 20 Kea called him and his fellow employee, Ott, to the office and said, "The Union 's got to you hasn't it?" and when Chandler agreed, Kea asked if he had worked under a union previously, then said could not say anything about it. Thereupon Kea informed Chandler that he was being changed from a salaried to an hourly rated basis. LeRoy Jenkins, an employee who signed a union card early in the campaign and was allegedly deprived of a month 's overtime pay in reprisal for union activity, AZALEA MEATS, INC. 591 testified that one Saturday night in mid-June Kea reproached him for not having finished his work and said that he would show them how a union works by writ- ing a report on him and that under union representation, upon three such reports he would be out. According to Jenkins, Kea added that Company President Grif- fith would not work with any union. Jenkins persisted in his account under vig- orous cross-examination. Kea denied having any conversation with Jennings about the Union. He testi- fied,that he had reprimanded Leroy Jenkins for loafing and had referred to it as a second or third offense but made no mention of the Union. Night Watchman Loadholt corroborated Kea's account of the Jenkins' conversation. Kea denied having accused Chandler of having let the Union get to him. Neither Kea nor LeRoy Jenkins impressed me in their testimony. I found Jen- nings and Chandler, on the other hand, convincing in their accounts and their demeanor on the stand. In accordance with their testimony I find that Kea threat- ened closing of the plant and loss of the Christmas bonus and meat purchase privi- lege as a consequence of union success and that Kea engaged in interrogation into employee union activity by asking Jennings if he thought the Union would help him and by asking Chandler as to whether the Union had got to him. These questions and threats constituted unfair labor practices under Section 8(a)(1) of the Act. 4. O'Neal Hill: Hill, supervisor of the sausage department, is alleged to have interrogated employees as to union activities in May. Leland Rutland, an employee with 16 years service with the Company signed a union card on May 5 and thereafter procured other employees' signatures. He testified that sometime in May as he was leaving the plant after punching out, Hill came to him. and asked about a misunderstanding. When Rutland asked if he referred to the Union, Hill, according to Rutland, said that he did. Hill then asked if Rutland thought a union could help and when Rutland reported that it helped employees of Hi-Grade, Hill expressed his personal opinion that it could not help at the Com- pany. They parted amicably. After some difficulty with his recollection, Rutland recalled that Hill asked him if he was signing up other employees. Hill denied discussing the Union with Rutland. I found him an impressive wit- ness and credit him in his denial. C. Discrimination 1. Edward Chandler: As amplified by General Counsel's response to the com- pany motion to make the complaint more definite and certain with respect to alleged discrimination, the complaint charges that on or about June 20 Chandler, in reprisal for union activity, was assigned to lower paid duties and his method of compensation was altered with resultant loss of earnings. The evidence is some- what confusing; the one certain element in the case is the clear portrayal of Chan- dler as an employee of considerable skill at his meatcutter trade but with a record of undependability both as to his absenteeism and his allegiance to the Union. Chandler had been employed about 2 years at the time of the hearing. He signed a union card at the solicitation of LeRoy Jenkins on June 13; there is no indication that Chandler engaged in any union activity other than signing the card, and the evidence indicates that sometime in August or September he talked to Maier about withdrawing from his •support of the Union.8 In short, he was by no means a particularly active or enthusiastic union adherent. Chandler was hired as a meatcutter sometime about December 1963. There is a conflict between his testimony and that of Kea as to his hiring rate. The pay- roll records were not produced and I credit Chandler's account that he was initi- ally hired on a salary basis at $75 per week and by degrees worked his salary up to $90 per week by June 1965. He had initially been excused from the require- ment of punching a timeclock but sometime prior to the Union's organizing cam- paign the timeclock punching rule was apparently made applicable to him, although he continued to enjoy a salary status and the privilege of leaving when -his day's quota of cutting was completed. There is some dispute in the evidence as to the quality of his work, Chandler testifying that some (unidentified) salesmen praised the quality of his cuts, whereas Kea testified to complaints from certain salesmen, whom he identified, commencing almost immediately after Chandler's initial 8 According to lea's testimony, Chandler asked him about withdrawing from the Union sometime during the week after he signed the card 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment and continuing thereafter. Chandler conceded that Kea never praised his work and in fact ordered him to observe his fellowcutter, Ott, to learn how to improve his own cuts. Sometime in April, Chandler quit for a period of some weeks when he heard a rumor that the Company was getting ready to fire him and shortly after Kea had discussed with him the difficulties caused by his drinking.9 When Chandler returned after this absence he came back at $85 but was soon raised to the $90 figure. As noted above, Chandler signed a union card on June 13. His name was included among those additional signers set forth on the Union's third demand for recognition, that of June 18. There is no doubt but that there was a discussion among Kea, Chandler, and Ott on the night of'June 20. As to the contents of that discussion there is a clear conflict between the accounts of Chandler and Kea; Ott did not testify, the General Counsel stating that Ott could not be located. I credit Chandler's testimony, as against Kea's contrary testimony, and find that on June 20 he was called to the office by Kea who said, undoubtedly referring to the union letter dated June 18, that he saw that the Union got to him and Ott and that he was going to take him off his salary basis and put him on an hourly rate. Chandler also recalled that Kea said he would make it hard for him. The transfer was apparently immediately effective as appears from Chandler's testimony that his next paycheck amounted to $66 as contrasted with his previous $90 salary. Sometime apparently within the next 2 months, Chandler was asked to transfer to the shipping department, under the supervision of G. B. Thomas, to train as a replacement for a man due to take a vacation . He remained there until the time of the hearing, having rejected an opportunity to return to cutting sometime in September or October on account of personal differences with Ott. His present rate is $1.85 per hour. The deficiencies laid to Chandler by Kea appear to have been long condoned prior to his union affiliation. I was not favorably impressed with Kea's account of poor quality reports of Chandler's cutting particularly since it does not appear that a poor cut could be traced to one, rather than the other, of the two cutters. Appraising the evidence with respect to Chandler's treatment I find, particularly in view of Kea's conversation with him on June 20, that it preponderates in favor of the conclusion that he was, in reprisal for his support of the Union, transferred from a salaried basis to an hourly rated basis with consequent loss of earnings or expenditure of greater effort to equal former earnings. This period of discrimina- tion commenced June 20 and apparently had continued to the date of the hearing. 2. LeRoy Jenkins: LeRoy Jenkins is an employee with some 10 years service with the Company. He signed a union card on March 23 and his name was included among the signers in the Union's first demand letter of May 24. Accord- ing to his testimony he had a talk with his boss, Kea, sometime in mid-June about the Union as above mentioned. As above noted I find that the evidence does not preponderate in favor of the conclusion that he was threatened on account of his union activities in this conversation. The contention of the General Counsel and the Union is that Jenkins was deprived of overtime for a period of about 1-month commencing on or about June 20 and that this deprivation was in reprisal for his union activity or membership. The evidence is somewhat difficult to untangle but, viewed in its totality, it clearly appears that there is not a preponderance in favor of the conclusion either that there was a deprivation of overtime or that, if there was, it was in reprisal for union membership or activity. In June, at the time of the discussion between Jenkins and Kea, Jenkins was working in the beef department breaking beef, Jenkins was regularly, according to his account, working 45 or 46 hours per week. He testified that about a month later, his overtime opportunities were eliminated when Kea told him to punch out when Ott and Chandler did, which would result in his working only about 30 to 35 hours per week. Jenkins testified that this condition continued for about a month when he was assigned new duties to supplement his hours and restored to his over- time opportunities. On cross-examination, Jenkins placed the period of his depriva- tion as having occurred in August . He insisted that in some weeks he was not making his hours he had theretofore enjoyed. Finally he conceded that he made less hours in June than in July or August. O There is an indication in pea's testimony that Chandler also had a broken foot about this time. AZALEA MEATS, INC. 593 The payroll record in evidence as a joint exhibit is inconclusive. The evidence does not preponderate in favor of the General Counsel's contentions as to either element of the alleged violation of the Act, viz neither discrimination nor motiva- tion therefor. 3. John Edward Fine: Fine was hired May 8 or 9 as an employee of the Com- pany's garage where he worked with fellow employee Adam Wayman under the supervision of Frank Griffith. He signed a union card on May 14 and his name was included among the card signers on the list attached to the Union's initial recognition demand of May 24. When he was first hired, his hours of work were from 7 a.m. to 5 p .m., but soon thereafter his hours were shortened to a 7 to 4 schedule. Fine's duties consisted of regular maintenance and servicing of the Com- pany's trucks which are usually out on deliveries in the morning and return in the afternoon, so that the bulk of the maintenance work is performed in the afternoon. Sometime in June or July, Griffith cursed Fine over a difficulty arising in con- nection with their installation of new axles on Griffith's sports car. Thereafter Griffith frequently cursed Fine and he frequently reported this to Fairey. Griffith also cursed Wayman. About May 28 Griffith asked Fine why he had signed a union card and about 2 weeks later Griffith, referring to a union badge Fine was wearing at work, asked him if he was passing out union badges. The evidence indicates that a number of other employees wore union badges but apparently Fine was the only badge wearer in the garage, although it appears from the Union's May 24 letter that Way- man also signed a card sometime prior to that date.'° Fine testified that on June 15, after punching in at 7 he was ordered by Griffith to punch out at 8 and then return at 1 p.m.; Fine did this and punched out for the day between 7:30 and 8 p.m. Griffith, according to Fine, said that the split shift was ordered by Maier because the garage employees were making too much time. This split shift continued to occur 1 or 2 days a week thereafter until Fine was discharged on Monday, December 6.11 Fine was discharged by Griffith on reporting for work on Monday December 6. The preceding Friday there had been an incident between them arising from Fine's complaint about a mistake in his time records; there had apparently been previous similar shortages and resultant disputes . On reporting on December 6, Griffith said they had had their last run-in and that Fine was discharged. Fine had some discus- sion with Fairey thereafter. The following day, Fine testified, he asked Griffith for his job back and was refused and then referred to Fairey to obtain his termination check. Cross-examination of Fine developed that Saturday, December 4, was a regu- larly scheduled workday for Fine. He testified that at noon on Friday December 3 he told Griffith that he would be unable to work the following day because he had to take his children to a clinic; Griffith was angry and walked out without saying anything. Griffith did not testify. Fairey, whom I find a credible witness, testified that Griffith reported to him that he had fired Fine for missing a work day and that he had approved Griffith's action. Fine's union membership was known to the Company long prior to his dis- charge. I reject the notion that the split shift arrangement indicates a union ani- mus directed against Fine since the evidence indicates it to be a natural arrange- ment of the work schedules in the garage because of the ebb and flow of the workload. There were apparently plenty of hours of work still available for Fine as appears from the fact that the timecard disputes included one over whether 13 or 15 hours were worked on a certain day. There is no evidence that Wayman who also signed a card was not similarly affected. Outside of his signing a card, and wearing a union badge Fine does not appear to have been particularly active in the Union and apparently did not solicit other signatures either in or out of the plant. 10 Wayman's card was signed at the solicitation of Henry Lee Zimmerman who testified that the card was signed on the date it bore, viz "the 30th." In fact, the card nears a date of May 30 thus presenting a discrepancy which it appears unnecessary to resolve. n The change to the split shift is not alleged as an unfair labor practice but apparently offered to show animus against Fine in connection with the allegations of discriminatory discharge on December 6. 243-084-67-vol. 159-39 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There was a -substantial lapse of time between the Company 's discovery of his membership in the Union and his discharge . The evidence does not establish that Griffith assented to Fine's Saturday absence. Viewed in its totality it does not preponderate in favor of the conclusion that his discharge was an unfair labor practice within Section 8(a)(3) of the Act. D. The refusal to bargain As noted above, the Union's campaign to organize employees of the Company commenced in early April. On May 24 the Union wrote Maier asserting that a majority of employees in the production and maintenance unit 12 had signed cards designating the Union as their bargaining representative . The letter attached photo- static copies of the cards signed by the 100-plus employees whose names were furnished in the union letter and set out a willingness to have the originals exam- ined by the Company in the presence of -a neutral party. Company Attorney Sims replied on June 2 that the Company needed time to investigate . Under date of June 4 the Union forwarded photostatic copies of 10 additional signed cards. On June 14, Sims wrote that many disciepancies had been found in the Union 's cards and that reports of union threats had been received . Sims' letter concluded with a suggestion that the parties submit the matter of majority representation to the Board. The Union replied on June 18 with nine additional cards and a request for speedy recognition . The charge herein including that of refusal to bargain was filed August 5. First, with respect to the appropriateness of the unit in which the Union seeks recognition . It appears from a stipulation entered into at the hearing and the tes- timony of the Company Office Manager Walter C. Emde, that General Counsel's Exhibit 8 is a correct list, as of May 24, of all hourly paid employees and that there are no salaried nonsupervisory production and maintenance employees. The question becomes one as to the appropirateness of a production and maintenance unit, including truckdrivers. A production and maintenance unit, a type specifi- cally referred to in the Act , is presumptively appropriate . See Appliance Supply Company, 127 NLRB 319, 321 . With respect to truckdrivers, they are includable in a production and maintenance unit absent a labor organization's seeking sepa- rate representation for them. Dayton Aviation Radio & Equipment Corporation, 124 NLRB 306, 307. The excluded groups are those normally excludable. In ac- cordance with the foregoing, I find and conclude that the unit in which the Union sought recognition was an appropriate unit for purposes of collective bargaining. The evidence establishes beyond peradventure of doubt, that at all material times a majority of company employees in the above -named appropriate unit had signed cards on behalf of the Union as their bargaining representative . The cards received in evidence at the hearing, see footnote 5, supra, were authenticated either by the signer or by the solicitor of the signature who testified that the signer signed, or made his mark , in the solicitor's presence. These cards are not ambiguous or dual purpose on their face , and it would require convincing evidence of fraud or strong misrepresentations to exclude them from consideration as effective authori- zations to the Union to act as the signer's representative. The total of such cards received in evidence as to which there appeared no question as to authenticity or validity as effective designations of the Union as bargaining representative num- bered 109 , which as the Union points out in its brief, constitutes a clear majority in the appropriate unit.13 The Company asserts that its refusal to bargain with the Union was based on a good-faith doubt that the Union had a valid majority support and that its good faith was established by its willingness to have the representation matter resolved by a Board election. The Union contends that the Company 's campaign of inter- 12 The appropriateness of the bargaining unit is discussed infra. 13 General Counsel's Exhibit 11-i, purporting to be a card signed by Elijah Jefferson, 14-i, by O'Dell Simpson and 15-f, by Robert Heyward, Jr , were rejected as exhibits. Ruling was reserved on General Counsel's Exhibit 32 a union card on which employee Henry Haynes made his X, at the solicitation of Thomas Moss, the Hi -Grade employee referred to above, who told Haynes , it was a union ( unspecified ) card and would mean better work conditions The evidence does not establish that Haynes signed with intent to designate the Union as his representative and the card is rejected. AZALEA MEATS, INC. 595 rogating and threatening employees soon after the commencement of the union campaign establishes the absence of good-faith doubt on the Company 's part as to the union majority representation. This is not a case involving an ambiguous or "dual-purpose" card or one in which false or misleading representations were made to significantly large groups of card signers . The card is clear and unambiguous on its face and, making due allowances for the low educational level of some of the signers , it is clear that the signers knew what they were signing and intended to designate the Union as their bargaining representative . Furthermore the Union's demand letters, commencing with the initial demand of May 24 listed the names of employee signers and enclosed photostatic copies of their cards which would be available for check as to signature against records undoubtedly (IRS forms W-4 for example) in the Company's possession . There is, furthermore, no basis in the record for a find- ing that employees were threatened or coerced in connection with their signatures or for the Company's assertion that it believed they were. The Company relies on Briggs IGA Foodliner, 146 NLRB 443 and Norlee Togs, Inc., 129 NLRB 14. Norlee Togs is distinguishable on the material basis that in Norlee, unlike here, the Union never told the employer it represented a majority or offered to show it the signed representation cards; in Norlee, unlike here, the Com- pany filed a representation petition and refrained from acts of interference, restraint, and coercion . Briggs IGA Foodliner is also unlike the instant case as appears from the Board's references to an employer representation petition, and the absence of contemporaneous unfair labor practices. With respect to its contention that its refusal to bargain with the Union was based on a good faith doubt as to the Union's majority, the Company presented the testimony of employee Irvin, Godfrey to the effect that on June 3 employees Leland Rutland and Odell Simpson threatened him with loss of his job and that of his wife . He testified that he reported these threats to Emde and Fairey. The testimony that he reported threats to Emde and Fairey is not corroborated by them. I do not credit Godfrey's testimony of threats by Rutland and Odell Simpson. Even if it were credited there would not be sufficient basis to warrant a conclusion that the incidents be related could reasonably be said to have formed the basis for the -Company's refusal to bargain here. As detailed above, I find that the Company, both before and after the Union's initial demand of May 24 engaged in various acts of interference , restraint, and coercion directed against employees in the exercise of their statutory rights to self-organization . While it is true that the Company's General Manager Maier instructed his supervisory staff, on receipt of the union demand , to refrain from interference with or discrimination against employees , the evidence is clear that his instructions were disregarded and the Company must bear the responsibility for the several occasions of questioning and other acts of interference and discrimination. American Oil Company, Inc., 14 NLRB 990, enfd. 114 F.2d 1009 (C.A. 4). In the circumstances of the present case, including instances of interference both before and after the Union's initial demand for recognition and the absence of substantial evidence that a good faith doubt actually existed, I find and conclude that the Company's assertion of good faith doubt is not substantiated on the entire record herein, and that its refusal to bargain was an unfair labor practice within Section 8 (a)(5) of the Act . Since the Union at all material times represented a clear majority of employees in the appropriate unit the Company should be required to recognize and bargain with it. Hamburg Shirt Corporation, 156 NLRB 511. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above and there found to constitute unfair labor practices have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V THE REMEDY In view of the findings above that the Company has engaged in unfair labor practices defined within Section 8(a)(1), (3), and (5) of the Act, I shall recom- mend that it be required to cease and desist therefrom and take such affirmative action as appears necessary and appropriate to effectuate the policies of the Act. 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. All production and maintenance employees, including truckdrivers, em- ployed by the Company at its Orangeburg, South Carolina, plant, excluding all office clerical employees , professional employees, cattle buyers, salesmen , sales pro- motion men, guards and supervisors as defined in the Act, constitute a unit appro- priate for collective bargaining within the meaning of Section 9 (b) of the Act. 2. At all material times, the Union has been and is the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 of the Act. 3. By refusing to bargain collectively with the Union as the exclusive repre- sentative of employees in the unit herein found appropriate the Company has engaged and is engaging in the unfair labor practices defined in Section 8(a) (5) and (1) of the Act. 4. By interrogating employees as to their signing of union authorization cards and their actions in soliciting other employees to sign such cards, and by threat- ening discontinuance of Christmas bonuses and employee loan and meat purchase privileges in the event the Union organized the plant, the Company engaged in unfair labor practices defined in Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case it is recommended that the Company, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours of employment, and other terms and conditions of employment with the Union as exclusive representative of its employees in the following appropriate unit: all production and maintenance employees, including truckdrivers at the Orangeburg, South Carolina, plant, excluding all office clerical employees, professional employ- ees, cattle buyers, salesmen , sales promotion men, guards and supervisors as defined in the Act; (b) Interrogating employees concerning their activities in signing or soliciting other employees to sign union authorization cards in a manner constituting inter- ference, restraint, and coercion within the meaning of Section 8(a) (1) of the Act; (c) Informing employees that existing Christmas bonus benefits and privileges as to credit union loans and employee meat purchases would be discontinued or cur- tailed if the Union succeeded in organizing the plant or otherwise threatening loss of benefits in reprisal for support of the Union; (d) Discouraging membership in the Union or any other labor organization of its employees by altering their method of compensation from a salaried to an hourly rated basis in reprisal for participation in union activities; (e) In any like or related manner interfering with , restraining, or coercing em- ployees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist the above-named union or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action which appears necessary and appropri- ate to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as exclusive representa- tive of employees in the unit found appropriate above, and embody any understand- ing reached in a signed agreement. (b) Offer to reinstate employee Edward Chandler to his former salaried basis and make him whole for loss of earnings resulting from his change from a salaried to an hourly pay basis during the period June 20, 1965, to the date of such rein- statement, in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. AZALEA MEATS, INC. 597" (c) Post at the Company's Orangeburg, South Carolina, plant, copies of the attached notice marked "Appendix." 14 Copies of said notice, to be furnished by the Regional Director for Region 11, shall , after being duly signed by an author- ized iepresentative of the Company, be posted 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 . Reason- able steps shall be taken by the Company to see to it that said notices are not altered, defaced, or covered by other material. (d) Notify the Regional Director for Region 11, in writing, within 20 days from receipt of this Decision , what steps the Company has taken to comply herewith 15 It is recommended that the complaint be dismissed as to allegations of unfair labor practices therein not herein specifically found to have been committed. 14 If this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals , Enforcing an Order" for the words "a Decision and Order." 15 If this Recommended Order is adopted by the Board , this provision shall be modified to read: "Notify the Regional Director for Region 11, In writing , within '10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Re- lations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain with Meat Cutters, Packinghouse & Allied Food Workers, District Union 433, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO in the following appropriate unit: All production and maintenance employees, including truckdrivers, at the Company's Orangeburg, South Carolina, plant, excluding all office cleri-, cal employees, professional employees , cattle buyers, salesmen, sales pro- motion men, guards, and supervisors as defined in the Act. WE WILL NOT interrogate employees concerning their signing of union authorization cards of their soliciting of others to sign such cards. WE WILL NOT inform employees that we will discontinue Christmas bonuses or curtail credit union borrowing or meat purchase privileges or otherwise threaten employees as a consequence of the Union's organizing employees. WE WILL NOT discourage membership in or activities in support of the Union by transferring employees from a salaried to an hourly basis or in any other manner discriminating against them in regard to hire, tenure, or terms or conditions of employment because of their union membership or activity. WE WILL offer reinstatement to a salaried basis to Edward Chandler and make him whole for earnings lost due to his transfer from a salaried to an hourly basis. WE WILL, on request, bargain with the above Union as exclusive employee representative in the above unit and embody any agreement in a written signed contract. All our employees are free to become or remain members of the above-named or any other labor organization. AZALEA MEATS, INC., Employer. Dated-------- ----------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, 1831 Nissen Building, 310 West Fourth Street , Winston-Salem, North Carolina 27101, Telephone 723-2911.