Frank Smith and Sons Co.

182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Frank Smith and Sons Company and Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Local 540. Cases 16-CA-5187 and 16-RC-6280 June 7, 1974 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On February 8, 1974, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the Charging Party filed an answering 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 authority in this proceeding to a three-member panel. The Board has considered the record 1 and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions3 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Frank Smith and Sons Company, Waco, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS HEREBY FURTHER ORDERED that the election conducted herein on June 14, 1973, be, and it hereby is, set aside. [Direction -Second- Election and Excelsior -of footnote omitted from publication.] CHAIRMAN MILLER, dissenting: The findings of the Administrative Law Judge upon which he premises his conclusion that Respon- dent violated Section 8(a)(1) of the Act are found in section II , B, of his Decision and read as follows: I conclude and find that Respondent through C.D. Shawd, Howard Smith, and Joe Padillo told the employees that if the Union came in the plant it would insist that their workweek be cut to 40 hours because the Union wanted to get more dues and that consequently the employees pay would be less since they would not be allowed to work overtime. This message was given to the employ- ees in the context that it would happen if they selected the union as their bargaining representa- tive. Coming from the Respondent in speeches such as Shawd's where Respondent sought to show that a union had little say in what happened, this statement would be taken by employees as a certainty. These Respondent statements violated Section 8(a)(1) of the Act and I so find and conclude. In my view, the above finding and conclusion is internally inconsistent and cannot provide a proper basis for an 8(a)(1) finding. It will be noted that the finding is to the effect that the Union would insist that the employees' workweek would be cut to 40 hours because of the Union's desire for more dues, and hence a larger work force. How that can be characterized as a threat of action to be taken by Respondent I find most puzzling in the first instance. But when it is then coupled with a finding that Respondent had "sought to show that a union had little say in what happened," I find the conclusion that "this statement would be taken by employees as a certainty" to be little short of absurd. I therefore dissent from my colleagues' affirmation of the Administrative Law Judge's conclusion as to this matter. I would dismiss the complaint in its entirety, since the Administrative Law Judge found no other violations of the law to have occurred. i We find that the Administrative Law Judge's Decision is supported by the record evidence herein. We do not rely on a fourth, independent translation which the Administrative Law Judge had made of an exhibit after the trial had concluded and which was not served on the parties 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. 3 The apparent inconsistency cited by our dissenting colleague, when considered in light of the totality of the Administrative Law Judge's findings, is merely an ambiguity which does not affect the validity of the Administrative Law Judge's conclusion. As the Administrative Law Judge found, based on credited testimony, Respondent's president told the English-speaking employees that if the Union won, they would lose their overtime and that they could work only 40 hours a week He further found that, in addition to President Smith 's threat to the English-speaking employees, Respondent told the Spanish-speaking employees that the Union would insist that they not be allowed to work overtime and that Respondent, in fact, would not allow them to work overtime, if they selected the Union as their bargaining representative . The Administrative Law Judge's conclusion, therefore, as quoted by our colleague, while somewhat ambiguous, is clearly founded on the Respondent's threats to discontinue overtime if the Union won the election . The Administrative Law Judge's finding that Respondent indicated that the Union had little to say in what happened merely emphasizes that although the threat, when made to the Spanish-speaking employees, was couched in terms of union insistence, Respondent clearly conveyed to these employees that the Respondent would, in fact, discontinue overtime if the employees selected the Union. 211 NLRB No. 20 FRANK SMITH AND SONS 183 DECISION STATEMENT OF THE CASE JOHN M. DYER, Administrative Law Judge: On June 11, 1973,1 the Amalgamated Meat Cutters & Butcher Work- men of North America, AFL-CIO, Local 540, herein called the Union, filed a charge against Frank Smith and. Sons Company, herein called the Company or Respondent, alleging that the Company had violated Section 8(a)(1) and (3) of the Act. The Union filed an amended charge on July 13 deleting the 8(a)(3) allegations. Following the filing of an NLRB representation petition by the Union, a Stipulation for Certification Upon Consent Election was approved by the Regional Director on May 15 and a secret-ballot election was conducted on June 14, which resulted in 48 votes being cast for the Union and 84 against and challenged ballots were insufficient to affect the results of the election. On June 19, the Union filed timely objections to the election, which stated that the Company had failed to provide the Union with a list of employees with correct addresses and that on the day prior to the election the Company had held captive audience meetings for Mexican national employees in which they had been promised increased economic benefits if the Union lost the election and threatened with reduced benefits if the Union won the election. The objections also alleged that the Company reduced the work hours of its Mexican national employees. An allegation of a discharge violative of the Act was later withdrawn. On July 20 the Regional Director issued his Report on Objections and ordered a hearing in regard to the three objections. On July 27 the Regional Director issued an .order consolidating cases, complaint and . notice of hearing. The complaint alleges that Respondent through its owner Howard Smith, Labor Consultant C. D. Shawd, and alleged foreman,, Joe Padillo, on June 13 promised employees a wage raise if they refrained from assisting the Union and threatened that if the Union became their bargaining agent the workweek would be reduced to 40 hours and their paychecks would be smaller and that they would lose existing restroom privileges. Respondent denied any violations of the Act and that Padillo was a supervisor. At the trial of this matter held on September 5 and 6 and November 19, in Waco, Texas, the complaint was amended to add an allegation that Howard Smith in violation of Section 8(a)(1) made promises of benefit and threats of loss of benefit on June 5 and 8 to employees. The parties stipulated that such alleged activities were not to be considered in the objections in the representation case. Some facts in this case are not controverted but the allegations regarding statements allegedly made on June 5, 8, and 13 are in dispute. One of the problems in this case is the fact that some of the employees are Mexican nationals who may be in this country illegally. Most of them do not speak English and understand only Spanish. Mr. Smith stated that his Spanish was very limited and as a consequence if he spoke an interpreter was necessary. Mr. Shawd's speech on June 13 was written in English and translated into Spanish by Mr. Shawd who stated his Spanish was adequate in most conversations. The parties agree that in most cases it is impossible to make a literal translation from English to Spanish or vice versa and that translations must be a bit flexible. I have concluded that Respondent violated Section 8(a)(1) of the Act in some of the instances alleged but not in others and I will recommend that the election held on June 14 be set aside and that an appropriate notice be posted and that other allegations of the complaint and the objections be dismissed. All parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally. General Counsel, Respondent, and the Union have all filed briefs which have been carefully considered. Upon the entire record in this case including my evaluation of the reliability of the witnesses based on the evidence received and my observation of their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is a Texas corporation with its principal office and place of business in Waco, Texas, where it is engaged in poultry processing. During the past year Respondent sold and shipped to points directly outside the State of Texas products valued in excess of $50,000 and during the same period received goods and services directly from outside the State of Texas valued in excess of $50,000. Respondent admits and I find that it is and has been at all times material herein engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits and I find that the Union herein is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Undisputed Facts Respondent is a chicken processor employing approxi- mately 150 people in its production and maintenance unit. Howard Smith is the president (and apparently the owner) of the corporation and Joe Padillo is at present a foreman but did not have that status at the time of the relevant allegations. C. G. Shawd is an independent labor consult- ant who was retained by Respondent for his services and who on one event made a speech in Spanish to Respon- dent's Mexican national employees. From the testimony it is fair to assume that a large percentage of the Mexican national employees are illegally in this country and are subject to deportation. Union Business Agent Allen Lewis distributed union literature near the plant and in the plant's parking lot, held meetings with the employees, and filed the petition for an election referred to above. Pursuant to the Board rule, Respondent gave the Union a list of its employees' names but did not include their addresses. The Union complained and a new list with names and addresses was submitted I Unless otherwise stated all events took place in 1973. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Union's agreement that it would not use the omissions of the prior list as an objection to the election. Using this new "Excelisor list" the Union mailed literature to the employees and of the 150 on the list, it had some 23 envelopes returned with the notation that the addressee was not there or that the letter was not deliverable at that address. The Company had a notice on its bulletin board in English stating that employees were to keep their current addresses known to the Company. At some point between May 15 and the date of the election , June 14, Respondent had one of its supervisors talk to some of the employees and check addresses but any changes it found were not given to the Union. According to undenied testimony when Respondent received the objections from the Union it checked the records and found that it did not have correct addresses for the 23 employees whose mail was undeliverable. The Union's objection is that the employer should have secured correct addresses of all its employees and made such known to it, and should have forwarded to the Union such correct addresses as became known to it in the interim before the election. It is problematical as to whether Respondent had some corrected addresses it had not given to the Union within the few days prior to the election. Where it is understood that a portion of Respondent's employees are illegal immigrants, it is not surprising that the addresses given to Respondent are not correct. It would be probable that persons in such situations would not want correct addresses on any record. In the circumstances I find that Respondent provided such addresses as it had and that its action or nonaction did not interfere with the Union's right to a listing of employees' names and addresses. Accordingly, I would recommend that the Union's objection on this matter be dismissed. B. The June 5, 8, and 13 Meetings Howard Smith testified that he spoke to the employees some 20 to 25 times between the date that the stipulation for an election was signed and the date of the election. At the hearing General Counsel amended the complaint to allege that Howard Smith, in employee meetings on June 5 and 8, threatened that employees would lose certain benefits such as Christmas bonuses, retirement benefits, or insurance benefits if they selected the Union as their bargaining agent. The meetings on these two occasions were with English speaking employees. Susanna Garcia testified that at the first meeting Smith asked the employees to give him a chance to win the election and said they could lose items such as their Christmas bonuses, retirement plan, or insurance benefits if they went with the Union. She stated that at the second meeting Howard Smith asked the employees to give him a chance and he would pay them 5 or 10 cents more if he won the election but if the Union won they would lose their overtime because they would only be allowed to work 40 hours a week. During cross-examination she said that Smith threatened to withhold their Christmas bonus if he lost the election and that they would also lose their insurance and retirement plan. Howard Smith denied that he had ever said anything about a retirement plan principally because Respondent does not have a retirement plan. Respondent does have a profit-sharing plan. Smith specifically denied making any statements about a 5- or 10-cent increase or threatening to cut out the Christmas bonus, a retirement plan, or an insurance plan. He testified that in one of his talks he told the employees their wages were frozen but if the wage and hour law was passed and signed, the Company would have to follow the law and increase their wages . Smith denied telling the employees that their workweek would be reduced to 40 hours or they would get smaller paychecks, if they joined the Union. On June 13 a meeting of all the Mexican national employees was held. Labor Consultant Shawd testified that he drew up a list of questions and answers in English and translated them into Spanish for his speech . Shawd stated that he could get by in conversational Spanish but because his Spanish was not the best Joe Padillo was brought up on the stage for his translation abilities . Mr. Smith was present and spoke to Shawd or Padillo several times during the meeting which lasted about 45 minutes, of which about 25 minutes was consumed with Shawd 's question and answer speech. The remaining time was spent in questions and answers and although Padillo remembered only two questions being asked in Spanish which he translated, the testimony is not conclusive as to how much Padillo participated. It is clear that on several occasions Smith prompted statements by Shawd by telling him something which Shawd or Padillo then expressed to the employees in Spanish. The Spanish notes from which Shawd spoke were received in evidence as an exhibit . None of the parties was particularly satisfied with the English translation given by the other and three separate translations were received from them, and I have had a fourth translation prepared by an independent party. All the translations are similar in that they express the Company's dominance in any relationship with the Union. Shawd apparently tried to make it clear to the employees that the Company had the last word in everything so that if it didn't like what the Union proposed the Union could either leave or it could strike but final determination of issues was up to Respondent . One unnumbered question and answer was translated as follows: Q. Why will the Union demand a 40 hour work week for the employees? A. It is clear-if nobody works more than 40 hours a week-the Company will hire more employees from whom the Union expects more money . The Union gets more money but the employees will earn less. Shawd testified that in addition to using his prepared speech he told the employees how the election would be run, what the voting procedure would be, showed them a folded portion of the election notice which had the ballot on it, and explained how to vote no. He told them the election would be secret and no one would know how they voted and that if the Union lost the Company would be free to resume its normal practices , but if the Union won it would come up with a contract proposal and there would FRANK SMITH AND SONS be negotiations which might last 3 weeks, 3 months, or longer. Shawd testified he told the-employees that the wage freeze then in effect would continue until the matter was settled one way or another, but explained that if the wage and hour law went into effect which it might do in 60 to 90 days, there would probably be an increase in the minimum wage of 20 cents an hour. Shawd testified that an employee asked about a 40-hour workweek and he replied that under a union contract the Union would likely have provisions which would make it difficult or awkward for the Company to grant overtime to the employees, and the result would be to reduce the hours to 40 so the Company would have to hire more employees and the Union could have more dues paying prospects. In this particular Mr. Shawd's testimony is not as specific as the question and answer on his notes, supra. The parties agreed that there can be no direct word for word translation of Spanish into English or vice versa and there are some English words which have no counterpart in Spanish. Therefore there must be some interpretation in the translation. Accordingly I have concluded that since Mr. Shawd made his own translation of English into Spanish, if there is any ambiguity or doubt in the translation it must be resolved against Respondent. The employees who were receiving this message are not sophisticates, but are Mexican nationals entirely unfamiliar with the niceties of phrasing in labor matters and occupy precarious positions in this country since most if not all of them are subject to deportation. It appears that the message was made clear to them , that if they persisted in voting for the Union and bringing it into the plant, they would lose a part of their wages since their overtime would be eliminated . Similarly, since Shawd admits speaking about the wage hour law, I conclude that something was said to the employees about the possibility of wage raise. The sum mentioned by Shawd is 20 cents an hour. Since the evidence tends to show that about that time the Company was paying $1.70 an hour, it is difficult to imagine how a $2 minimum wage law would have been complied with if Respondent raised its wages 20 cents an hour. Padillo testified that Shawd told the employees the wage would probably go to $2 per hour within a month or so but he was not promising them anything. From this testimony I conclude that Respondent indicated to its employees that they would probably be receiving a wage raise in the near future. It is doubtful if the Mexican national employees understood the complexi- ties of the wage hour law or its relation to a raise. Unfortunately we do not have this part of Mr. Shawd's speech in writing. There is some testimony by General Counsel's witnesses that they were told by the Company that if the Union did come into the plant and employees reported to work with alcohol on their breath they could be fired and that they would not be permitted the same restroom privileges they now enjoyed without the Union. It is possible that in some of the Spanish conversations that took place Padillo might have made such a reference but Respondent's witnesses deny making such statements. Padillo testified that at a meeting prior to June 13 he told the employees that the Union wanted to get more people 185 employed in order to get more dues. As for the June 13 meeting Padillo admitted he said something about 40 hours and believes he said that under a union contract the Company would be forced to hire more people in order to do the same work and the Union wanted more people in order to get more dues. - In those situations in which Padillo was acting as a translator such as at the June 13 meeting and when he was invited to speak at other meetings and addressed the employees as he stated, I find that he was acting as an agent of Respondent and that Respondent is responsible for his statements. I further find despite his denial that Howard Smith made the statement about workweeks being cut to 40 hours and wages lowered as a consequence. This statement was made by Shawd and Smith was following Shawd's advice at that time which enhances the probability of Smith making a similar statement. I credit the employees' testimony in this regard. I conclude and find that Respondent through C. D. Shawd, Howard Smith, and Joe Padillo told the employees that if the Union came in the plant it would insist that their workweek be cut to 40 hours because the Union wanted to get more dues and that consequently the employees pay would be less since they would not be allowed to work overtime. This message was given to the employees in the context that it would happen if they selected the union as their bargaining representative. Coming from the Respon- dent in speeches such as Shawd's where Respondent sought to show that a union had little say in what happened, this statement would be taken by employees as a certainty. These Respondent statements violated Section 8(a)(1) of the Act and I so find and conclude. The evidence convinces me that Smith and Shawd told the employees they would be receiving a 20-cent raise shortly after the election. I believe that Smith and Shawd attempted to put this raise in the context of passage of a wage hour law but from the testimony it appears they were unable to make this clear to some of the employees. Coming as such statements may have along with other statements as to what the Union could do or what the Company might do, it may have been misinterpreted by employees who would mainly be interested in raises and not in the niceties of how they would get them. Mentioning raises to employees with as little knowledge of English as a number of these employees had, it is quite conceivable that they latched on to the promise of a raise without realizing it was conditioned on a wage hour law being passed and signed. It seems clear from Mr. Shawd's testimony that he had counseled Respondent it could give no raises unless a national wage hour law was enacted which would mean that raises must be given. From the testimony I do not conclude that Respondent was engaging in brinksmanship in talking about raises but coupled its remarks with the wage hour law provisions. Though Respondent's employ- ees may not have understood this message or its implica- tions, I cannot find that Respondent violated Section 8(a)(1) of the Act by these statements. Respondent after receiving the objections to the election attempted to negate the idea that it had made any threats or promises in its June 13 speech by having some of its 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees sign a statement . Mr. Smith got a local probation officer, Mr. Reyna, to act as translator and had him translate an English statement orally into Spanish to groups of the Mexican national employees who had attended the June 13 speech. Padillo brought the employ- ees in groups of six or seven to the office . Smith and a notary public were present while this procedure went on. The statement recites that there were no promises or threats and was signed by 19 employees. No oath was administered to the employees although it is signed by the notary public indicating that it was sworn to. I cannot credit this written statement which was not made under oath and which was made in the circum- stances recited above. Padillo stated he knew that Reyna was a probation officer and whether this knowledge was passed to the employees is not known. However, these employees who probably are illegal immigrants would be under severe compulsion to do whatever Respondent wished, even if we credit Reyna that his translation was good and that the employees understood it. General Counsel urges that I find this Respondent action violative of Section 8(a)(1) as an illegal interrogation of its employees. This action was never alleged by General Counsel as violative of the Act nor was such suggested at the trial despite the testimony in regard to it. I cannot find that such action violated Section 8(a)(1) under these circumstances. C. The Wage Raises On the motion of the General Counsel and the Union the trial in this matter was reopened on November 19 to consider the question of whether raises given by Respon- dent on September 21 and November 16 pursuant to a written announcement by Respondent on September 14 was violative of Section 8(a)(l). The parties agreed that the following notice signed by Howard Smith was placed on the bulletin board on September 14: NOTICE TO OUR EMPLOYEES All new employees will start at the rate of $1.70 per hour. On September 21, 1973 all employees who have been here 3 months or longer will receive $1.80 per hour and on November 16, 1973 raised (sic) to $1.90 per hour. There is no question but that the raises were given as the notice indicates. In October after the motion to reopen was made, Respondent posted the following notice signed by Howard Smith on its bulletin board. NOTICE TO ALL EMPLOYEES TO ASSURE THERE IS NO MISUNDERSTANDING AMONG THE EMPLOYEES THIS IS TO ADVISE THAT THE REASONS FOR THE RECENT RAISES AND ANNOUNCEMENT WAS SOLELY TO ENABLE THE COMPANY TO MEET OUR COMPETITION IN THE LABOR MARKET, TO ENABLE US TO HIRE NEW EMPLOYEES, AND TO HELP REDUCE THE LARGE TURNOVER AMONG OUR PRESENT EMPLOYEES . NO OTHER REASONS ENTERED INTO OUR DECISION TO TAKE THIS ACTION. General Counsel maintains that the granting of these raises shortly after the completion of the first part of the case demonstrates that the promise of raises alleged as violative by General Counsel was being kept by Respon- dent in making the raises at this time and constitutes proof that such promises were made and is a separate 8(a)(1) violation in that the raises were given during the pendency of the representation case. General Counsel offered no statements or other evidence other then the fact that the raises were given. The parties stipulated that on September 6, President Nixon vetoed a wage hour bill. Respondent offered testimony that it had suffered an increasing amount of labor turnover during the summer of 1973. It showed that from a turnover rate which ranged between 21 and 25 in May, the number jumped to 36 in June, dropped to 28 in July, then jumped to 48 in August. Howard Smith testified he believed the large turnover increase in August came as a result of its competition, a turkey processor in Waco, announcing in June that it was raising wages to over $2 per hour effective in July. Respondent stated that if the wage hour bill had been passed it would have raised its wages pursuant thereto and believes it would not have suffered the high rate of labor turnover it experienced in August. Respondent also adduced testimony that some 3 or 4 weeks after the June 14 election there was a shutdown by the "hangers" who start the chickens on the hanging line. The testimony showed that the shutdown occurred following the morning break and when Howard Smith talked to the employees to ascertain the problem, he was told they wanted raises since the employees at the turkey processing plant had just received a large wage increase. Smith testifed and his testimony was corroborated, that he told the employees that due to the pendency of the representation case he could not raise any wages and that the employees could either go back to work or they could go home. The employees returned to work. Smith said he was then relying on Shawd's advice that Respondent could not raise wages during this period that after the veto of the wage hour bill he discussed the problem of labor turnover and wage rates with his counsel since he felt it was necessary to do something in order to keep his people and be able to hire others. Attorney Parker advised him that he appeared to have justification for the wage increases and shortly thereafter the first notice was posted. General Counsel asserts that it apparently was not necessary for Respondent to grant the wage increases since it did hire new employees and apparently felt it was able to do so at the time of the brief strike. Respondent also claimed that the labor market was tight in its area and offered labor statistic summaries for Waco and for McClennan County which was objected to by General Counsel. I receive them in evidence but find them not persuasive. The summaries as such show that the labor market ran somewhat in the area of 3 percent unemploy- ment which is a bit tighter than some other areas of the country but it does not necessarily indicate that the labor market was tight for Respondent's needs. In any event the undisputed testimony does show that Respondent did suffer a large turnover in August which amounted to almost a third of its employees in the FRANK SMITH AND SONS production and maintenance unit. With the uncontradicted testimony of the wage increase at a competitive plant it would seem that Respondent has made out a reasonable case as to why it was necessary to raise wages. I find that Respondent's actions, followed as it was by an announce- ment to all the employees regarding the reasons for the raise, negates the inference that the raises were made in violation of the Act and consequently find that this activity did not violate Section 8(a)(1) and does not support an inference that wage raises were promised not tied to the wage and hour law. D. Objections to the Election On the basis of finding the 8(a)(1) violation noted above I find that part of Union's Objection No. 2 is supported by evidence and that the election held on June 14 should be set aside. No evidence was offered in support of Union's Objection No. 3 and it should be dismissed. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, and therein, found to constitute unfair labor practices in violation of Section 8(a)(1) of the Act, occurring in connection with Respondent's business operations as set forth above in section I, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor-disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act as follows: Having found that Respondent violated Section 8(a)(1) of the Act by threatening that employees would not be allowed to work overtime and would therefore have their pay reduced if they selected the Union as their bargaining agent and Respondent having unlawfully thereby sought to have its employees reject the Union in a scheduled election and since it is a part of the purpose of the Act to prevent the commission of unfair labor practices, I recommend that Respondent be ordered to cease and desist from violating the Act in the same or a similar manner. On the basis of the foregoing findings and the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning 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. Respondent violated Section 8(a)(1) of the Act by unlawfully threatening that employees would not be allowed to work overtime and would therefore have their pay reduced if they selected the Union as their bargaining agent. RECOMMENDED ORDER2 187 Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case considered as a whole, it is recommended that Frank Smith and Sons Company of Waco, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully threatening that employees would not be allowed to work overtime and would therefore have their pay reduced if they selected the Union as their bargaining agent. (b) In the same or any similar manner interfering with, restraining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its plant in Waco, Texas, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms furnished by the Regional Director for Region 16, shall, after being duly signed by an authorized representative of Respondent, be posted by Respondent immediately upon receipt thereof and 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 notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. It is further recommended that the election in Case 16-RC-6280 conducted on June 14, 1973, be set aside and a new election conducted at an appropriate time. 2 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. 3 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Following a trial in which the company, the Union, and the General Counsel of the National Labor Relations Board participated and offered evidence, it has been found that we violated the Act. We have been ordered to post this notice and to abide by what we say in this notice. WE WILL NOT unlawfully threaten that employees would not be allowed to work overtime and would 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therefore have their pay reduced if they selected the This is an official notice and must not be defaced by Union as their bargaining agent . anyone. WE WILL NOT in the same or any similar manner This notice must remain posted for 60 consecutive days interfere with, restrain, or coerce employees in the from the date of posting and must not be altered, defaced, exercise of rights under Section 7 of the Act. or covered by any other material. Any questions concerning this notice or compliance with FRANK SMITH AND SONS its provisions may be directed to the Board's Office, COMPANY Federal Office Building, Room 8-A-24, 819. Taylor (Employer) Street, Fort Worth, Texas 176102, 1 Telephone 817- 334-2921. Dated By (Representative) (Title)