Mayfield 's Dairy Farms, Inc.

MAYFIELD'S DAIRY FARMS, INC. 1017 Mayfield's Dairy Farms, Inc. ,and Jerry Newman and Don Kirksey . Cases 10-CA-11756-1 and 10-CA- 11756-2 August 20, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On June 17, 1976, Administrative Law Judge Eu- gene George Goslee issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief I and has decided to affirm the rulings, findings' I and conclusions 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Mayfield's Dairy Farms, Inc., Athens, Tennessee, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. i The request for oral argument by the Respondent is hereby denied as the record and briefs adequately present the issues and positions of 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 over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE EUGENE GEORGE GOSLEE, Administrative Law Judge: These consolidated cases came on to be heard before me on May 5, 1976, at Athens, Tennessee, upon a complaint I issued by the General Counsel of the National Labor Rela- tions Board and an answer filed by Mayfield's Dairy Farms, Inc.,' hereinafter called the Respondent. The issues raised by the pleadings relate to whether or not the Re- spondent violated Section 8(a)(1) of the Act by interrogat- ing its employees about their union activities and interests and by threatening its employees with reprisals if they en- gaged in union activities. Briefs have been received from the General Counsel and the Respondent, and have been duly considered. Upon the entire record in this proceeding, and having observed the testimony and demeanor of the witness, I hereby make the following: FINDINGS OF FACT 1. PRELIMINARY MATTERS (Commerce, Jurisdiction, and Labor Organization) The complaint alleges, the answer admits, and I find that (1) the Respondent is engaged in the production of dairy products at its facility at Athens, Tennessee; (2) the Respondent's purchases of goods in interstate commerce are sufficient to satisfy the Board's standard for the asser- tion of jurisdiction, and (3) the Respondent is an employer within the meaning of Section 2(2) of the Act, and is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. The complaint also alleges, the answer ad- mits, and I find that Teamsters Local Union No. 519, Knoxville and Vicinity, Tennessee, hereinafter called the Union, is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES ALLEGED The complaint alleges, and the answer denies, one inci- dent of a threat of reprisal for activities on behalf of the Union, and six incidents of interrogation of employees concerning their union membership, activities, and desires. All of the incidents alleged transpired during the course of the Union's organizing campaign, and all of the incidents involved former employees Jerry Newman and Don Kirk- sey, and the Respondent's acknowledged agents, Carl M. Hutsell and Dennis Grub. Don Kirksey testified on direct examination that on or about October 1, 1975,3 he was approached while in the employees checkout room by Route Superintendent Carl M. Hutsell. Hutsell asked Kirksey if he had been ap- proached about the Union, and if Kirksey had been pres- sured to sign a union card. Kirksey replied that he had not been pressured, and explained that he had heard a good deal about the union activities in the plant, knew that a union meeting was scheduled, and intended to attend to see what was going on. Hutsell advised Kirksey not to at- tend the meeting because it would indicate support for the Union, and counseled Kirksey that a union would not be of any benefit to the Company. Kirksey finally replied that he could not decide one way or another on the issue and did not know what was going on. i The order consolidating cases , complaint, and notice of hearing was issued on March 18, 1976, upon charges filed on February 2, 1976, and duly served on the Respondent 2 The name of the Respondent appears as corrected at the hearing ' All dates hereinafter are in 1975, unless specified to the contrary 225 NLRB No. 145 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At a later time, on or about October 15, Kirksey was approached by Hutsell while making a delivery to Harrod's Supermarket. Hutsell asked if Kirksey had decided how he stood with the Union, and Kirksey replied that, while he had given the matter some thought, he had not decided. Hutsell argued that Kirksey should decide against the Union, but the latter refused to make any commitment. Approximately 1 week later, Hutsell again approached Kirksey at Harrod's Supermarket, and again asked if Kirk- sey had made up his mind about the Union. Kirksey re- plied that he had. Hutsell expressed the hope that Kirksey had decided to vote against the Union, but Kirksey replied that he did not intend to publicly announce his decision, that the choice would be by secret ballot and he did not want to make anyone angry by announcing what he had decided. Hutsell then cautioned Kirksey that he was one of the older employees and should speak out against the Union and denounce it Kirksey replied negatively to the suggestion, but agreed that it was expected that Hutsell, as a member of management, would speak out against the Union. Jerry Newman, like Kirksey a former employee of the Respondent, testified that in late September or early Octo- ber he was called into the office of Shipping Supervisor Dennis Grub. A conversation ensued about the Union coming into Mayfield's Dairy, and Grub asked Newman what he thought about the Union. Newman replied that he didn't know exactly what to think at that time, but intend- ed to think the matter over before he voted. Grub inter- posed his belief that the employees at Mayfield's did not really need a union, and Newman repeated that he would think about the matter. A week or more later Grub again confronted Newman in the office, and stated that he wanted to know what New- man thought about the Union. Grub explained that he didn't know how to talk to Newman, because he didn't know Newman's feelings about the Union. Newman re- plied that he intended to vote for the Union, and Grub answered that he couldn't understand why Newman would want to vote for the Union, as well as he had made out with the Company. Newman replied that he had decided to vote for the Union because of the way things had been in the immediate past. Approximately a week later Route Superintendent Hut- sell came up to Newman in the route sales room and asked what Newman thought about the Union. Without waiting for Newman to reply, Hutsell added that he believed the reason Newman intended to vote for the Union was be- cause he feared losing his job. Newman conceded that this was correct. Hutsell then stated that he would appreciate Newman's vote for the Company. On the following Saturday, Hutsell again confronted Newman, expressed that Newman ought to vote for the Company, and asked Newman how many employees would vote for the Union, and how many would vote for the Company. Newman conceded that the vote would be close, and Hutsell stated his belief that the Union would not receive over 30 votes. Kirksey and Newman were both subjected to strenuous cross-examinations, and basically adhered to their version of the conversations with Hutsell and Grub as related on direct examination. Kirksey did explain on cross-examina- tion that in his first conversation with Hutsell the latter remarked that he had heard of some incidents where em- ployees were pressured to sign union cards, and expressed the belief that some employees had signed cards without knowing their significance. Kirksey acknowledged a long- standing and friendly relationship with Hutsell, and New- man made a similar acknowledgment with respect to both Grub and Hutsell. Hutsell was called to testify by the Respondent and gen- erally denied that he interrogated or threatened any em- ployee. According to Hutsell, neither he nor Kirksey worked on October 1, 15, or 22, so that, according to Hutsell's version, he could not have talked to Kirksey on those dates. Hutsell did admit that he met Kirksey at Harrod's Supermarket on October 21, at which time he reminded Kirksey of how good the Company had been to him, and solicited Kirksey to vote against the Union. Hut- sell also admitted to having had a conversation with New- man, on a date unrecalled, but, according to Hutsell, New- man approached him on several occasions to comment about the Union or other matters. On one particular occa- sion Newman stopped Hutsell and asked if employees would be fired because of their union activities. According to Hutsell, he assured Newman that no one would be dis- charged because of union activities. I cannot credit Hutsell's testimony, which was unrespon- sive, rambling, and interspersed with self-righteous and self-serving declarations Hutsell was several times cau- tioned by Respondent's counsel, as well as by the Adminis- trative Law Judge, but he persisted in giving a rambling dialogue totally unresponsive to the questions asked.' I find the testimony of Shipping Supervisor Dennis Grub no more credible than that professed by Hutsell A consid- erable portion of Grub's testimony was directed to estab- lishing his close personal relationship with Newman and the existence of a longstanding friendship. Like Hutsell, Grub denied that he instituted any conversations with Newman about the Union, and testified that, while such conversations did occur, they were always initiated by Newman. I discredit Grub's testimony. As a part of its defense, the Respondent adduced testi- mony from its personnel manager, Bill Akins, that on Sep- tember 22 the Union made a demand for recognition. While the Respondent did not further pursue this matter it is assumed that it contends that the interrogations were privileged as a means to determine whether the Union ac- tually represented a majority of the employees in the bar- gaining unit. Factually the defense has no merit. Assuming an initial demand for recognition, the majority of the inter- rogations occurred after October 16, the date on which the Respondent and the Union signed a consent agreement for an election, so that the interrogations could not have been conducted for the purpose of determining the Union's claim of majority status. Legally, the defense of privileged interrogations to determine the merits of a claim of majori- The evidence that neither Hutsell nor Kirksey worked on October 1, 15, or 22 is not persuasive that the interrogations did not occur Both employees testified that the interrogations took place on or about the dates alleged in the complaint MAYFIELD'S DAIRY FARMS, INC. 1019 ty status is equally unmeritorious . No explanation was giv- en to the employees as to the reason for the interrogations and it is certain that they were not given any assurances against reprisals . Accordingly, even if I could find that the Respondent's defense had merit on the facts, its reliance on the rule of Blue Flash 5 and related cases is badly mis- placed. Secondly the Respondent contends that, assuming ar- guendo that the interrogations took place, they did not rise to the level of interference , restraint, and coercion because they were unaccompanied by any threats , and took place in the course of friendly conversations between old ac- quaintances. It is not the law that an interrogation must be accompanied by other unfair labor practices before it rises to a violation of the Act.' Nor does the existence of a per- sonal friendship between the interrogator and the employ- ee being interrogated legalize conduct which is otherwise unlawful . On the contrary , an interrogation by a friendly supervisor may have a far more coercive impact than an interrogation by a hostile agent of management.? Unlike the factual situation in Mitchell Standard Corporation,8 which the Respondent relies on , the interrogations here were not limited to a mere attempt to determine the employee's union sentiments, but were accompanied by so- licitations to reject the Union and publicly supports the Company's antiunion campaign. The Respondent further contends that some of Hutsell's remarks to Newman in which he solicited Newman's vote against the Union were privileged under Section 8(c) of the Act. I agree that the solicitation of Newman to vote against the Union, unaccompanied by any threat of reprisal, is not a violation of the Act. This does not, however, provide any reason to find that the accompanying interrogations of how Newman and his fellow employees felt about the Union was lawful . The questioning of an employee as to his union sympathies and how he intends to vote in a Board conducted election is not the expression of "any views, argument or opinion." Finally, the Respondent contends that, even if the inter- rogations took place, they were isolated, and cannot justify a remedial order. In support of this contention the Respon- dent argues that 190 employees were involved in the cam- paign and election , the alleged unlawful conduct was limit- ed to 2 of 25 company supervisors, and the Respondent is not charged with any other unfair labor practices. I find the Respondent's contentions unavailing. There were seven separate interrogations , unexplained by any le- gitimate reason, unaccompanied by any assurances against reprisal, and obviously conducted as an integral part of the Respondent's admittedly intensive campaign to defeat the Union. The interrogations were neither isolated nor incon- sequential, and a remedy is obviously necessary.' I find, and conclude accordingly, that the Respondent 5 Blue Flash Express, Inc, 109 NLRB 591 (1954) 6 Blue Flash Express, supra at 593 7 Wichita Eagle & Beacon Publishing Company, Inc, 199 NLRB 360, 370 (1972), Caster Mold & Machine Company, Inc, 148 NLRB 1614, 1621 (1964) 8 Mitchell Standard Corporation, 140 NLRB 496, 506-507 (1963) 9 See Carolina American Textiles, Inc, 219 NLRB 457 (1975), and cases cited therein violated Section 8(a)(1) of the Act by the conduct of its agents, Carl M. Hutsell and Dennis Grub, in interrogating employees Don Kirksey and Jerry Newman. I further find and conclude, however, that the General Counsel has not proved as alleged that on or about October 1 the Respon- dent threatened its employees with reprisal. Hutsell coun- seled Kirksey not to attend a union meeting because it would display his sympathy, but the statement was unac- companied by any threat.10 THE REMEDY Having found that the Respondent violated Section 8(a)(1) of the National Labor Relations Act by interrogat- ing its employees concerning their activities , sympathies, and interests with respect to Teamsters Local Union No. 519, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action to rem- edy the unfair labor practices and effectuate the policies of the Act. CONCLUSIONS OF LAW I. The Respondent, Mayfield's Dairy Farms, Inc., is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Teamsters Local Union No. 519, Knox- ville and Vicinity , Tennessee, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating its employees Jerry Newman and Don Kirksey concerning their activities , sympathies, and interests with respect to Teamsters Local Union No. 519, and by interrogating Jerry Newman about the union activi- ties, sympathies, and interests of his fellow employees, the Respondent violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record in this proceeding , and pur- suant to the provisions of Section 10(c) of the Act , I hereby issue the following recommended- ORDER 11 The Respondent, Mayfield's Dairy Farms, Inc, Athens, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union 101 reject the General Counsel 's demand in his brief, relying on Interna- tional Harvester Company, 170 NLRB 1074 ( 1968), that I make all findings of fact and conclusions of law favorable to his case which can be drawn from the records as a whole , and whether or not alleged or argued, as a device unbecoming a lawyer, and a packet of arrant nonsense 11 In the event no exceptions are filed as provided by Sec 10246 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 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities, sympathies, or interests, or the union activities, sympathies, or interests of their fellow employees. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action to remedy the unfair labor practices and to effectuate the policies of the Act. (a) Post at its place of business at Athens , Tennessee, copies of the attached notice marked "Appendix." 12 Cop- ies of said notice, on forms to be provided by the Regional Director for Region 10, after being duly signed by the Respondent's authorized representative, shall be posted by it 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 cus- tomarily posted. Reasonable steps shall be taken to insure 12 In the event the Board's Order is enforced by a Judgment of the 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 " that said notices are not altered , defaced, or covered by any other material. (b) Notify the Regional Director for Region 10, in writ- ing, within 20 days of the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT question our employees concerning their activities, sympathies, or interests with respect to Teamsters Local Union No. 519, and WE WILL NOT question our employees concerning the union activi- ties, sympathies , or interests of their fellow employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Na- tional Labor Relations Act. MAYFIELD'S DAIRY FARMS, INC.