Bryan Brothers Packing Co.

BRYAN BROTHERS PACKING CO. 1179 unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit it: All employees at our Breezewood, Pennsylvania, restaurant excluding sea- sonal employees, guards, professional employees, and supervisors as defined in the Act. WE WILL NOT threaten our employees that our bake shop will close, that they will be required to pay for the laundering of their uniforms, or that any other reprisal will be taken for engaging in union activities. WE WILL NOT create the impression that we are engaged in surveillance of employee union activities. WE WILL NOT discourage membership in Hotel & Restaurant Employees and Bartenders International Union, Local Union No. 397, AFL-CIO, or any other labor organization by discriminatorily discharging, or laying off any of our employees. WE WILL NOT refuse to bargain collectively with Hotel & Restaurant Employees and Bartenders International Union, Local Union No. 397, AFL- CIO, as the exclusive representative of all the employees in the bargaining unit described above. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Hotel & Restaurant Employees and Bartenders International Union, Local Union No. 397, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified to the Labor-Management Reporting and Disclosure Act of 1959. POST HOUSES, 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, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 644-2969. Bryan Brothers Packing Company and Amalgamated Meatcut- ters and Butcher Workmen of North America, AFL-CIO, Local 515. Case 26-CA-2334. November 18, 1966 DECISION AND ORDER On July 28, 1966, Trial Examiner Marion C. Ladwig issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He further found that Respondent did not engage in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, the Respondent filed exceptions to 161 NLRB No. 107. 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Trial Examiner's Decision and a supporting brief. The General Counsel filed cross-exceptions 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 [Chairman McCulloch and Members Fanning and Jenkins]. 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 Exam- iner's Decision, the exceptions, cross-exceptions, and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein.' [The Board adopted the Trial Examiner's Recommended Order with the following modifications : . [1. Add the following as paragraph 1(c) and reletter the present paragraph 1(c) to 1(d) : P (c) Creating the impression of surveillance of the employees' union activities." , [2. Add the following as the third paragraph in the Appendix attached to the Trial Examiner's Decision : [WE WILL NOT create the impression of surveillance of our employees' union activities.] 'We reject the Trial Examiner's conclusion that there was not sufficient evidence to support the allegation that the Company created the impression of surveillance of its em- ployees' union activities. In his interrogation of Dismukes, Foreman Herschell Christian repeatedly referred to Dismukes' union activity and associations in a manner tending to create the Impression of surveillance, and thereby violated Section 8(a) (1) of the Act. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, heard before Trial Examiner Marion C. Ladwig at West Point, Mississippi, on June 7 and 8, 1966,' pursuant to a charge filed by the Union (Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local 515) on February 23 and a complaint, issued on April 11, involves primarily the issues (a) whether preelection speeches made by an official of the Respondent (also called the Company) contained threats of plant closure, loss of jobs, and discharge if the employees voted for the, Union, and (b) whether foremen coer- cively interrogated and threatened employees, and created the impression of surveillance of.their union activities. Upon' the entire record, including my observation of the demeanor Of the wit- nesses, and after due consideration of 'the briefs filed by the General Counsel and the Company, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The Company is a Mississippi corporation, which is engaged in the heat processing business in West Point, Mississippi, from which it ships annually finished ' Unless otherwise Indicated, all dates refer to the year 1966. BRYAN BROTHERS PACKING CO. 1181 products valued in excess of $50,000 directly to points outside that State, and where it purchases and receives annually goods valued in excess of $50,000 directly from points outside that State. The Company admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Preelection speeches 1. January speech Shortly after the parties signed a stipulated consent agreement on January 25 for an election to be held in a representation proceeding on March 4, Vice Presi- dent John H. Bryan, Sr, gave an antiunion speech to the Company's approximately 500 production and maintenance employees, divided into four different groups. Although the speech to each of the groups was apparently read verbatim in large part, no explanation was made why the written document was not offered as evidence, nor why Bryan was not called to testify about what was said. The testimony is in great conflict about the contents of the speech. The General Counsel called 10 witnesses (4 current male employees and 6 former female employees who had been laid off or terminated before the election), to testify about the alleged threats in the speech. The Company called one official, Personnel Manager J. B. Stroud, to deny most of this testimony and to give his version of what Bryan had said in the repeated speech. Upon careful analysis of the testimony, I find that much of Stroud's version of the January speech is corroborated (although in different words) by one or more of the General Counsel's witnesses. Briefly, Stroud testified that Vice Presi- dent Bryan told each group that he wanted to talk to them about a serious matter; the election would be held on March 4; the same Union had tried to get into the plant previously and had failed; the Company's position remained the same-that it was not to the Company's or the employees' best interest to have a union; in some of the plants where the Union represented the employees, some of the employees had lost their jobs in strikes; in the event the Union was voted in, and there was no bargaining agreement reached and a strike was called, striking employees could be replaced; striking employees would not draw workmen's com- pensation; the employees had been treated fairly and had been given six wage increases in the past 6 years; and he resented them going around trying to bring a union in while he and management were reviewing the past year's results and trying to give them a wage increase. (There was no allegation that the last comment interfered with the election.) yan threatened to All six former employees testified, in various ways, that Br close the plant if the employees voted for the Union. Some of them also testified that Bryan stated that if the employees left, there would be no coming back; and that employees would be fired if they voted for the Union or if the Company found out who signed union cards. Employees Joe L. Bush testified that he did not understand Bryan to say anything in the speech about closing the plant, but that Bryan said that "nobody is going to come in and push and shove him around and tell him what to do." Employee Henry E. Graves testified that Bryan said "we are not going to have any union bosses, any outsiders coming in telling us how to run our business"; employee Curtis Cannon testified that Bryan said: "We are not going to have no union in this plant pushing us around"; and employee Bobbie Dismukes recalled that "he said wasn't no outsiders, union organizer, going to come in and tell them how to run it." The last three employees all recalled a threat to close to prevent such interference. I got the impression from Personnel Manager Stroud's testimony that he had recently reviewed the written speech; whereas the employees apparently had kept no notes of what they had heard, and appeared to be having difficulty recalling the details of what was said and how it was said. While all 11 witnesses appeared to be endeavoring to testify truthfully, the conflicts were too great for me to reconcile all the testimony. Upon reviewing this testimony, and considering the entire record and the probabilities of the situation, I do not conclude that Vice President Bryan expressly threatened to close the plant or to take other reprisals if the employees voted for the Union. Although the failure of the Company to offer the written speech in evidence raises certain suspicions that the wording of 1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the speech was not favorable to the Company's defense, and at least implied certain reprisals, I find that there is no preponderance of the evidence that the January speech violated Section 8(a)(1) as alleged. 2. March speech On March 3, the day before the election, Vice President Bryan similarly gave another speech to the employees, in two groups. This written speech likewise was not offered in evidence. Here, however, there was some agreement in the testimony about certain sig- nificant contents of the speech. Employee Graves testified that Bryan stated: "I know some of you have signed cards, but it is not too late for you to vote 'No,' and that is what we want you to do, is vote 'No', because my brother and 1, we have the keys in our pockets to this plant, and it is up to us to say whether it stays open, or closed." [Emphasis supplied.] Personnel Manager Stroud related that Bryan stated "that he and his brother owned the plant, they had the keys in their pocket, and if they said it would stay open, it would stay open, and if they said it would stay closed, it would close, and nobody would run the plant but them." [Emphasis supplied.] In considering the import of this statement, I note that the portion about the plant staying open or being closed is omitted from the summary of the speech in the Company's brief-at the place where Stroud' s quoted testimony is interpolated in the brackets as follows: In the second speech which was given on March 3, 1966, Mr. Stroud testi- fied that Mr. Bryan . . . told of hearing a rumor around the plant that the Government would not let them close the plant because they had some Gov- ernment contracts and he wanted the employees to know that the company did not have very many Government contracts at that time and that in the second place the Government would not run the plant nor would the Union run the plant. He further said in his speech that he and his brother owned the plant and that they had the keys in their pockets ["and if they said the plant would stay open, it would stay open, and if they said it would stay closed, it would close"] and that nobody would run the plant but them. I find that the comment about the owners having the keys in their pockets, and the part omitted from the Company's summary of the speech in the brief, consti- tuted an implied threat to close the plant, in violation of Section 8(a)(1) of the Act. - B. Alleged interrogations Sometime in February, employee Bobbie Dismukes was called off his job by an assistant foreman and sent to another part of the department about 100 feet away, where he was interrogated by Foreman Herschell Christian, outside the hearing of other employees. According to Dismukes, Christian "told me he was getting bad reports 2 about me, and I asked him what it was, and he said he heard I was for the Union, and I told him that was a lie . -.. I asked him where it come from, so he told me it didn't come from down there, it come from the outside." Later in the conversation, Christian stated: "I just wanted to know where you stood." (According to Christian's testimony, "I told him [Dismukes] that I had heard the rumor that he had been to the union meeting in Columbus." Dismukes admitted that he had, stating that he had been told different things and that he just wanted to go and find out the truth. •"I told him . . . that he should go and find out, that I didn't hold it against him, and neither would the company, that he should go and find out the truth.") In testifying about the conversations with Christian, Dismukes appeared to have a clear recollection of what had happened, and to be a trustworthy witness. However, I was not as favorably impressed by the demeanor of Foreman Christian,- who did not appear to be as forthright a witness. I credit Dismukes' account of the conversations. A few -days later, his assistant foreman again relieved him and sent him to the same place where, according to Dismukes' credited testimony, Christian said: "I just don't understand you.... You tell me one thing, and then somebody else tells me another thing, and I hear other • things about you." Asked what, Christian said: "I heard you were riding with the Union man," which Dismukes denied. 2 Page 62, line 4, of the transcript is corrected to read "bad, reports" instead of "back reports .', W - .. • . _ - , . • - - • - . BRYAN BROTHERS PACKING CO. 1183 Then Christian "told me he was going back and talk to Mr. John Bryan," (appar- ently John Bryan, Jr.), and told Dismukes "to remain back there" until Christian got back. Upon his return, Christian said "Mr. John" was angry about it, and that he would talk to Bryan the next day. (Although denying this testimony, Christian testified that in this second interrogation of Dismukes, "I told him that I had heard he was back over at the union meeting again, and he flatly denied this ... . I told him just to forget about these rumors and do his job satisfactorily, and he didn't have anything to worry about, just do the job, and that is all I would ask of him.") On the next day, according to Dismukes, "I asked him did he talk" with Bryan, and "what did he say," but Christian stated that he never did get an answer from Bryan. (According to Christian, Dismukes "called me up to his work station and said he was still concerned about these rumors that had been told on him, and I told him just to forget them . and anything else that he heard, and just do his job, and that was all that would be required of him." Then they shook hands.) Later, on the day of the March speech, Foreman Christian told most of the employees in the department to go to the warehouse to listen to the speech, but told Dismukes and Curtis Cannon (a union leader) to remain on the floor and help the foreman. When the employees returned, according to Dismukes, he asked Christian why Christian did not let him and Cannon go to the meeting. Christian replied, "We wanted to keep the good ones from the bad ones." Dismukes told him "I understand, but I have an idea why you didn't let us attend the meeting," because "we went to the union meeting at Columbus." Christian smiled and said, "It could be the reason." (Christian denied this conversation, and testified that he kept back a total of 8 employees in the department out of 60 or 70. Explaining on cross-examination why he kept Dismukes and Cannon on the "head table" in the department, he testified that "they were familiar with the separation of the meat, the job that had to be done," although later admitting that others were also so qualified.) I got the impression from Christian' s demeanor on the stand that he was not making a full disclosure of what actually happened, and discredit his testimony where it is in conflict with Dismukes'. I find that in the context of the Company' s antiunion campaign, and Bryan's implied threat that the plant would be closed, the repeated interrogation of Dis- mukes was coercive. I rely particularly upon Christian's statement to him that Christian had been getting "bad reports" about him; Christian's statement that "I just wanted to know where you stood"; Christian's later statement that "I just don't understand you . . . . I heard you were riding with the Union man"; Chris- tian's having Dismukes remain apart from his job while Christian purportedly went to the office to talk to an official about him; Christian's reporting back that the official was angry about it; and Christian's statements to Dismukes subsequently that "We wanted to keep the good' ones from the bad ones," and that Dismukes' and Cannon's going to a union meeting could be the reason for Christian' s action. In view of the above finding that Christian's repeated interrogation of Dismukes was coercive, I find it unnecessary to rule on the alleged coercive 'effect of Chris- tian's interrogation of employee Bush, about how Bush "liked" Bryan's first speech. Neither do I find it necessary to resolve the many conflicts in the testimony con- cerning Foreman R. O. Vinson's alleged interrogation of employee Graves. I do not find sufficient evidence in the record to support the allegation that the Company created the impression of surveillance of the employees' union activities. CONCLUSIONS OF LAW 1. By threatening to close the plant if the employees voted for the Union, and by engaging in coercive interrogations, the Company has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found; that the Respondent has committed certain unfair labor practices, I shall recommend that it be ordered to cease and desist from such conduct and from any like or related invasion of its employees' Section 7 rights, and to take 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain affirmative action, which I find necessary to remedy and to remove the effect of the unfair labor practices and to effectuate the policies of the Act. Accordingly, on the basis of the foregoing findings and conclusions , and on the entire record, I recommend pursuant to Section 10(c) of the Act, issuance of the following: RECOMMENDED ORDER Respondent, Bryan Brothers Packing Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to close the plant if its employees vote for union representation. (b) Coercively interrogating its employees concerning union activities or their union sympathies. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its plant at West Point, Mississippi, copies of the attached notice marked "Appendix." 3 Copies of such notice, to be furnished by the Regional Director for Region 26 (Memphis, Tennessee), after being duly signed by an authorized representative of the Respondent, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 26, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith? IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. 3 In the event that this Recommended Order is adopted by the Board, the words "an Order" shall be substituted for "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing" shall be inserted immediately preceding "an Order." I In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Decision, 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 Relations Act, as amended, we hereby notify our employees that: WE WILL NOT threaten to close the plant if our employees vote for a union. WE WILL NOT coercively interrogate our employees about union activities or their union support. WE WILL NOT interfere with our employees' union activities. BRYAN BROTHERS PACKING COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of post- ing, 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 with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161.