Mccarty Processors, Inc And Mccarty Farms, Inc

MCCARTY PROCESSORS McCarty Processors, Inc and McCarty Farms, Inc and United Food and Commercial Workers International Union, AFL-CIO-CLC and its Agent, Local Union No 1529 Case 15-CA- 10481 and 15-RD-607 January 17, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On June 30, 1988, Administrative Law Judge Hutton S Brandon issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel and the Union filed reply briefs The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions2 and to adopt the recommended Order as modified ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, McCarty Processors, Inc and McCarty i The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The judge made the following inadvertent errors in his decision he interchanged Objection 6 for Objection 14 in the first paragraph of sec II B 5 a and Objection 2 for Objection 4 in the first paragraph of sec II B 6 a We also note that the judge failed to decide whether to the extent Objection 13 is based on the alleged threats attributed to Assistant Superintendent Martin the objection was established We find it unneces sary to pass on this matter because we adopt the judge s findings that Ob jection 13 was established on the basis of remarks made by other supervi sors The judge made the following errors in his Conclusions of Law he included Objections 2 and 14 among the meritorious objections and he omitted findings that the Respondent violated Sec 8 (a)(1) by threatening plant closure and plant removal and by soliciting employees to campaign against the Union Accordingly we have modified the judge s recom mended Order to reflect these changes To conform the judge s remedy to his findings and Order we adopt his remedy except we shall not order that all the proceedings held in con nection with the decertification petition should be vacated Instead we shall order that only the results of the November 19 1987 election are to be vacated 2 In the absence of exceptions we adopt the judge s recommended dis missal of the allegation that Assistant Superintendent Billy Martin unlaw fully interrogated Arcell Smith on November 17 1987 Member Cracraft does not rely on Sunnyvale Medical Clinic 277 NLRB 1217 (1985) in adopting the judges conclusion that the Respond ent did not violate Sec 8(a)(1) in interrogating Smith on November 17 1987 359 Farms, Inc, Jackson, Mississippi, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified 1 Insert the following as paragraph 1(e) and re- letter the subsequent paragraph "(e) Threatening employees with plant closure and plant removal because of their representation by the Union " 2 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL NOT promise or grant wage or other benefit increases to employees to dissuade them from supporting United Food and Commercial Workers International Union, AFL-CIO-CLC and its agent, Local Union No 1529, or any other labor organization WE WILL NOT threaten employees with the futili- ty of representation by the above named or any other labor organization WE WILL NOT discourage support for the above named Union or any other labor organization by informing employees that wage increases were withheld from them in the past because of their union representation WE WILL NOT threaten our employees with un specified reprisals or permit abusive conduct toward them by other employees because of their union support WE WILL NOT unilaterally grant increases in wages and benefits to our bargaining unit employ- ees without notice to or bargaining with the above named Union WE WILL NOT solicit employees to campaign against the above named or any other labor organs zation 292 NLRB No 50 360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL recognize and, on request, bargain with United Food and Commercial Workers Inter- national Union, AFL-CIO-CLC and its agent, Local Union No 1529, as the duly designated rep resentative of a majority of our employees in the following unit appropriate for the purposes of col lective bargaining All production and maintenance employees, in- cluding truck drivers, driver salesmen and the shipping and receiving clerks employed at our 238 Wilmington Street, Jackson, Mississippi fa- cility, excluding, all office clerical employees, professional employees, salesmen, buyers, watchmen and guards and supervisors as de fined in the Act WE WILL, on request, embody in a signed agree ment any understanding reached with the Union MCCARTY PROCESSORS, INC AND MCCARTY FARMS, INC Clement J Kennington Esq for the General Counsel Andrew C Partee Jr Esq (Partee Waldrop Monte and Evans) of New Orleans Louisiana for the Respond ent Roger K Doolittle Esq, of Jackson, Mississippi for the Charging Party DECISION STATEMENT OF THE CASE HUTTON S BRANDON, Administrative Law Judge These cases were heard at Jackson Mississippi on 13 through 15 April 1988 The charge in Case 15-CA- 10481 was filed by United Food and Commercial Work ers International Union AFL-CIO-CLC and its agent Local Union No 1529 (the Unions) on 8 December 19871 and amended on 12 January 1988 The original complaint issued on 15 January and was amended on 1 April 1988 and at the hearing here The primary issues are whether McCarty Processors Inc and McCarty Farms, Inc (Respondent McCarty and Respondent McCarty Farms respectively and collectively called Re spondent) (a) unlawfully interrogated and threatened em ployees and promised them wages and benefits in viola tion of Section 8(a)(1) of the National Labor Relations Act (the Act) (b) unilaterally granted employees an in crease in wages and benefits during a time when the re suits of a decertification election and the Union s loss of majority status was in issue thereby violating Section 8(a)(5) and (1) of the Act and (c) whether, if Respond ent in fact committed the unfair labor practices alleged they are sufficient to preclude the likelihood of a fair rerun election and warrant the entry of a remedial bar gaining order The petition in Case 15-RD-607 was filed by Flossie N Hawkins on 21 October 1986 An election was held on 13 March with the Union receiving the numerical ma jonty of the valid ballots cast Timely objections to the election filed by Respondent were overruled in a report on objections issued by the Regional Director for Region 15 on 23 April However, following the filing of excep tions by Respondent, the National Labor Relations Board (the Board), sustaining one of the Respondent s objections having to do with a union dues waiver during the Union campaign issued a Decision and Direction of Second Election dated 13 October 2 Pursuant to the Board s direction a second election was held on 19 No vember This time the Union failed to receive a majority of the ballots cast but filed timely objections to the elec tion The Regional Director issued a second report on objections and an order directing hearing on objections dated 30 December specifying the existence of issues re garding the Union s Objections 2, 4, 6, 13 14, 15, and 19 Noting that the cases involved the same parties and issues the Regional Director on 15 January 1988 issued an order consolidating Cases 15-RD-607 with 15-CA- 10481 for hearing On the entire record including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel, Respondent, and the Union I make the following FINDINGS OF FACT I JURISDICTION Respondent McCarty and Respondent McCarty Farms are affiliated corporations with offices and a place of business located at 238 Wilmington Street, Jackson Mis sissippi where they are engaged in the business of proc essing and selling poultry products From the Wilming ton Street facility Respondent in the course of its bust ness operations during the 12 month period preceding is suance of the complaint sold and shipped products valued in excess of $50 000 directly to customers located outside the State of Mississippi During the same period Respondent purchased and received in its Jackson facili ty goods and materials valued in excess of $50 000 direct ly from points located outside the State of Mississippi The complaint alleges Respondent admits and I find that Respondent is an employer within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act The com plaint further alleges Respondent by its answer admits and I also find that the Union is, and has been at all ma terial times a labor organization within the meaning of Section 2(5) of the Act All dates are in 1987 unless otherwise stated 2 The Board s decision is reported at 286 NLRB 703 MCCARTY PROCESSORS 361 iI THE ALLEGED UNFAIR LABOR PRACTICES A Background The parties are in agreement that the Unions prede cessor United Packing House Food and Outside Work ers, AFL-CIO was certified as the collective bargaining representative of employees in a unit of production and maintenance employees3 of Respondents predecessor State Poultry Company Inc in September 1968 There after the Unions predecessor and Respondents prede cessor negotiated successive collective bargaining agree ments covering unit employees through 1975 although both the Union and Respondents predecessor went through name changes during the period The parties further agreed that the Union has had successive collec tive bargaining agreements with Respondent under Re spondent s current name since 1975 with the most recent agreement being effective from 1 January 1984 through 31 December 1986 The last wage increase for unit em ployees provided under that agreement was given on 1 January 1986 Despite the filing of the petition in Case 15-RD-607 in October 1986 the Union and Respondent began negotia tions on a new bargaining agreement in December 1986 Two negotiating meetings were held in that month one in January 1987, and the last on 12 February The nego tiations were not successful Following the election on 13 March, and despite a vote of 338 to 195 in favor of rep resentation by the Union in a unit of approximately 568 eligible voters Respondent refused to recognize the Union4 and contested the election by filing objections As already noted Respondents objection to the election based on the contention that the Union s promise not to collect membership dues during the election campaign provided the employees with a substantial benefit inter fering with the election was sustained by the Board The rerun election held on 19 November resulted in a vote of 335 against and 251 for representation in a unit of ap proximately 630 eligible voters As also previously noted the Unions Objections 2 4 13 14 15 and 19 to the rerun election are largely coextensive with the unfair labor practices alleged in Case 15-CA-10481 and are the subjects of this proceeding A remaining objection number 6 presented issues of fact and was alsoconsoli dated for hearing with the unfair labor practice case 5 3 The precise unit description alleged in the complaint and admitted by Respondent to be an appropriate one for collective bargaining purposes is All production and maintenance employees including truck drivers driver salesmen and shipping and receiving clerks employed by Re spondent at its 238 Wilmington Street Jackson Mississippi facility excluding all office clerical employees professional employees sales men buyers watchmen and guards and supervisors as defined in the Act 4 The Union through counsel by letter dated 29 April following the Regional Directors Report on Respondents Objections to the Election finding the objections to be without merit requested dates for negotia tions from Respondents counsel The record does not indicate a re sponse to the request but Respondent does not deny that it refused to recognize the Union following the 13 March election 5 The Union withdrew its remaining objections specifically objections 1 3 5 7-12 and 16-18 Respondent admitted as the complaint alleged that on the day following the rerun election it unilaterally grant ed the unit employees a 20 cent per hour wage increase, and that on 1 January 1988 it granted them an additional 20 cent per hour increase As the complaint further al leged and Respondent also admitted on 3 January 1988 Respondent also unilaterally increased benefits of its unit employees by providing them with attendance bonuses employment anniversary bonuses additional life insur ance and short term disability benefits Despite the results of the 19 November election and following the filing of its objections, the Union again through letter of counsel dated 17 December to Re spondent s counsel requested dates for the purposes of negotiations, and further requested that the letter be considered as a continuing request to meet and bargain regarding the contract covering the unit employees Re spondent does not contest its refusal to meet with the Union and contends that the Union lacked majority status as shown by the rerun election Most of Respondents alleged unlawful conduct took place within the 2 week period preceding the rerun elec tion Evidence regarding Respondents conduct will be described and analyzed below under the name of the in dividual supervisor of Respondents to whom the unlaw ful conduct was attributed B Conduct and Statements Attributed to Supervisors 1 Ron Marble a The allegations and the evidence Ron Marble was at material times employed by Re spondent as its plant manager at the Wilmington Street facility, although he was not responsible for the debon ing section of the plant which employs almost half the unit employees Marble was active as a management rep resentative in relations with the Union and estimated in his testimony that he had assisted on behalf of Respond ent in negotiating about four prior contacts with the Union The complaint as amended alleged that on or about 12 November Marble threatened an employee with plant closure if the Union won the scheduled 19 November election and on or about 19 November threatened an em ployee that a strike would be inevitable if the Union won the election The plant closure allegation is coextensive with the Union s objection 15 The General Counsel relied on the testimony of employee Pamela D Winston to establish these allegations Winston testified that on 18 November Billy Howing ton prepack and packing supervisor had Winston re lieved from her position on the production line and told her that Marble wanted to talk to her Winston proceed ed to an open spot in the plant a short distance away where Marble awaited her There according to Win ston s testimony Marble 6 Respondent admitted in its answer to the complaint and the com plaint amendments that those individuals alleged as supervisors were at material times supervisors within the meaning of Sec 2(11) of the Act 362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD told me that we didn't need a union . . . and he told me that if I voted the Union back in there that they was going, uh, close McCarty down . . . they was going to put a padlock on it, and he told me that I was going to be replaced by someone else . . . that's if we gotten it back in there, by me being a union member, you know, he said that my job would be replaced by someone else. On cross-examination Winston conceded that Marble's reference to her replacement was in the context of the occurrence of a strike and that if she did not want to work somebody else would come in there and do the job. Marble conceded the fact of a conversation with Win- ston as well as the general circumstances of the conver- sation although he did not recall the date. Marble related that he told Winston that the Company in negotiations earlier in the year with the Union had offered a 10-cent- per-hour wage increase whereas the Union was demand- ing a $ 1.50-per-hour increase . He pointed out that the Union's demand was unreasonable, that Respondent would not be able to meet that , that the Union had paint- ed itself into a corner, that the ultimate weapon of the Union would be a strike, and that if people honored the strike Respondent had the lawful right to hire replace- ments. Marble further related that he assured Winston that the plant would run "chickens " and he would be there, and he specifically denied stating that if the Union was voted back in he would put a padlock on the door. The complaint also alleges that Marble during Novem- ber orally promised employees increases in wages if they voted against the Union in the election and orally threat- ened an employee by telling the employee that Respond- ent was "not going to put up with another union in the plant." These allegations are coextensive with the Union Objections 4 and 19. In support of these allegations the General Counsel produced the testimony of Jimmie Lee Cleveland, an employee in the packing department. Cleveland testified that on 18 November right after lunch Marble got her off the line and talked to her tell- ing her that the Union was talking about striking and that he wanted her to know that if the Union struck and she. went out with them she could easily be replaced but that if she wanted to stay in and work her job would be guaranteed to her . She further testified that he told her to vote the Union out and said that "he was not going to put up with nar another union in the plant because he was tired of being pushed around by the Union." Cleve- land repeated this testimony almost verbatim on cross-ex- amination . Marble in his testimony did not address the remarks specifically attributed to him by Cleveland and did not deny having had any conversation with her. b. Conclusion Even if fully credited Winston's testimony fails to es- tablish that Marble threatened that if the Union were elected a strike would be inevitable . And while Marble conceded that in remarks to Winston that he referred to a strike and the probable replacement of employees, these references failed to amount to a threat that a strike was inevitable . His expression of a belief that the Union may have "painted itself in a corner " on its demands for a $1.50-per-hour increase, a demand widely publicized to employees by the Union, and the ultimate consequence of that demand amounted to no more than an expression of an opinion protected under Section 8(c) of the Act. Accordingly, I find the General Counsel has not proved that Marble threatened the inevitability of a strike and shall recommend that this allegation of the complaint be dismissed. Winston's testimony, on the other hand, if believed, would establish Marble did threaten plant closure in the event the Union won the election. Marble's denial of the attribution requires a credibility determination between the two. I was impressed by Winston's sincerity and be- lieve she made an effort to tell the truth as she recalled it. In contrast Marble must be rated as less sincere. His coyness and evasiveness . in responding to the General Counsel's questions concerning Respondent 's campaign in opposition to the Union served to undermine his ve- racity. He refused to concede that Respondent engaged in a "campaign" against the Union in the election when the entire record and Marble's admitted conduct demon- strates that Respondent was anything but neutral in the matter. Nevertheless, a threat of plant closure is incon- sistent with Marble's reference to the strike and the re- placement of strikers in the same conversation . Obvious- ly, an independent determination to close the plant simply as a result of the Union's election would eliminate a strike or strike consequences as a concern to be dis- cussed with employees. Further, although Marble dis- cussed strike consequences with Cleveland as set forth above, she attributed no threat of plant closure to him and on the contrary, related he told her if she came to work during the strike her job would be guaranteed. I, therefore, find improbable, under all the circumstances, a threat of plant closure by Marble and conclude that Win- ston's testimony on the point is inaccurate and unreliable and do not credit her on this point. I, therefore, conclude the General Counsel has failed to establish this allegation of the complaint. Moreover, I find no support for Objec- tion 15 flowing from the foregoing evidence. Marble did not respond to the testimony of Cleveland and left such testimony uncontradicted. Most of Cleve- land's testimony regarding unlawful conduct or remarks by other supervisors was likewise undenied. Cleveland appeared to testify in an honest manner and in demeanor provided no basis for doubting either the truthfulness of her testimony or its accuracy. She did not, however, nor did any other witness attribute to Marble any promise of a wage increase if the Union were voted out. Although Marble had admittedly instructed supervisors to tell em- ployees that they would receive the benefits received by employees of Respondent's other plants if they rejected the Union, and although Marble conceded he talked to over 200 employees on the union matter, there remains no direct evidence that Marble himself told employees they would get a wage increase if the Union was reject- ed. Accordingly, this allegation of the complaint must be dismissed, and, thus it provides no support for the Union's Objection 19. However, it must be found, and I so find, that Marble did threaten as the complaint alleges MCCARTY PROCESSORS 363 that he said he was tired of being pushed around and was not going to put up with nar another union in the plant The clear implication of this remark was that Re spondent would not tolerate reelection of the Union and that the Union s election would be a useless act By Mar ble s remark in this regard I find Respondent violated Section 8(a)(1) of the Act as alleged Respondents con duct in this regard substantiates the claim in the Union s Objection 4 to the election that Respondent created the impression of futility of selecting the Union Accordingly merit is found to this objection which must be sustained 2 Billy Howington7 Prepack and Packing Supervisor Billy Howington was the subject of a number of complaint allegations all relat ed to either a promise to employees of a wage increase if they rejected the Union or a threat that back dues to the Union totaling $160 or more would be deducted from employees pay if the Union was elected to represent them The alleged promise of benefits is coextensive with the Union s Objection 19 Five employee witnesses testified regarding these alle gations without contradiction from Howington who failed to testify Thus, Bobbie Claiborne, a packing de partment employee who was a member of the Union and who had previously served as a steward, testified that during the week before the election Howington, her su pervisor, called her a few feet aside from her work pose tion and asked her if she wanted a 20 cent raise and quickly explained that if she voted the Union out she would get a 20 cent raise then and another 20 cent raise in January Moreover he told her if she voted the Union in she would have to pay back time' union dues which would be $100 out of her check Claiborne made no re sponse other then to ask Howington if the dues would be taken out at one time, and after Howington s affirmative answer she remarked that she did not want that Clai borne testified she had never been informed that the Union would require payment of back dues On the con trary the record reflects the Union had distributed litera ture to employees dated 13 November stating that no members owed dues for the period of time following the expiration of the old contract on 1 January The litera ture further explained that the Union s policy was that no members had an obligation to pay dues for any period of time they were not covered by a contract Winston previously identified above, testified regard ing a similar conversation with Howington She related that Howington talked to her on 16 November stating that they didn t need a union, that if the Union were voted out everybody would be treated the same, that when the Union was voted out employees would get a 20 cent raise the first of December and another one on 1 January 1988 and that she would get a $15 bonus on her birthday Howington added that if the Union got back in employee members would have to pay back dues amounting to $150, and Respondent would take it out of paychecks the Friday following the election Finally he told Winston to vote no and get the Union out of there cause they didn t need it Winston reported that she afterward observed Howington calling other employees off the line and talking to them that same day Howington also talked to packing department employ ee Cleveland Cleveland testified that on 17 November Howington talked to her on her production line and dis played to her a memo dated 29 October from John R McCarty, president of McCarty Farms, and directed to employees of McCarty Foods, an organization affiliated with Respondent The memo announced and listed an in crease in employee benefits to be implemented on 3 Jan uary 1988 Inserted at the bottom of the list was the handprinted statement Remember You could have this if you were a part of the McCarty Family The list rep resented improvements in vacations attendance bonuses, life insurance, and short term disability It is undisputed that the improvements were applicable to McCarty Foods employees employed at other plants and were not then applicable to bargaining unit employees Cleveland testified that Howington asked her if she thought the Union could get her all those things She replied equivocally saying she depended on the Lord rather than the Union, and Howington left her without saying more On 19 November, according to the testimony of pack ing department employee Sallie Blount Howington her direct supervisor tapped her on the shoulder as she was going to the voting area and told her to vote for her raise She further testified that she overheard Howing ton make the same remarks to two fellow employees, Willie Etta Lee8 and Geraldine Palmer The testimony of Clairborne, Winston, Lee Cleveland and Blount was reasonable and mutually corroborative to the extent of showing a pattern in the conduct and re marks of Howington in efforts to dissuade employees from union support I find such testimony credible par ticularly in the absence of contradiction Further, the re marks attributed to Howington are consistent with those attributed to other supervisors relating to the promise of raises as discussed infra Accordingly I find Howington made the marks claimed by these witnesses Howington s remarks to Claiborne and Winston ap peared to be a clear unlawful promise of benefits to em ployees if the Union were voted out The display of the McCarty Foods announcement with the handprinted portion at the bottom of the announcement likewise car reed the clear implication of the promise of benefits as does Howington's remark to Blount and Lee to vote for The General Counsel moved in his brief to correct the spelling of Howington s name wherein it now appears in the transcript as Hailing ton Because the spelling sought by the Motion appears to be consistent with that in documents and pleadings received in evidence the motion is granted The General Counsels further motion to also correct the tran script spelling of the names Maricell Sparks McLean Lovett and Burn ham wherever they presently appear as Mancel Spark McClain Loveit and Burnen is likewise granted 8 Lee in her testimony for the General Counsel confirmed that How ington told her to vote for her 20-cent raise as she was going in to vote However she said Howington had whispered this in her ear She also confirmed that Howington had spoken in the same manner to Geraldine Palmer Palmer did not testify Whether Blount is credited as having overheard Howington s remark to Lee it is clear based on Lee s credible and uncontradicted testimony that Howington did ask Lee to vote for her raise It is also reasonable to infer in the absence of contradiction and I so infer he made a similar remark to Palmer 364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD their raises. As related infra Howington was not the only supervisor to make such statements to employees. Indeed, Marble testified that he instructed all supervisors to tell employees these benefits would be granted them if the Union was voted out. Respondent's defense regarding the promise of benefits is based on its claim that Howington was only truthfully advising employees that the benefits granted to McCarty Foods employees who were unrepresented by a union would be extended to the unit employees in the absence of union representation. Respondent asserts that its cus- tomary practice was to ensure that benefit changes were uniformly extended to all of its employees. In support of this proposition Respondent produced evidence to show that twice during the time of the last bargaining agree- ment with the Union the agreement was reopened for ne- gotiations, and wages of unit employees were made con- sistent with those granted to nonunit employees in Re- spondent's other plants. Further, the wage rates at all Respondent's plants have been the same since 1976, ac- cording to the testimony of John Lott, Respondent's di- rector of administrative services. Other benefits for em- ployees were generally the same except that bargaining unit employees had an additional holiday for a period of time until the additional holiday was ultimately granted to all unit employees. Finally, Lott testified that benefits were determined by top management following recom- mendations from Lott based on a study of industry sur- veys. Despite Respondent's prior practice it is clear from Respondent's own evidence that Respondent granted the nonunit employees a 20-cent-per-hour increase in early January. That increase was not extended to unit employ- ees who, at the time of the November election, had not had a wage increase since January 1986. Moreover, there was no evidence that Respondent had ever sought agree- ment or acquiescence from the Union to extend the Janu- ary 1987 nonunit increase to unit employees. Indeed, un- contradicted record evidence reveals that in negotiations with the Union on a unit employee wage increase prior to the first election in March, Respondent had only of- fered a 10-cent-per-hour increase. Based on these facts it appears that the promise of an immediate 20-cent-per-hour increase to unit employees, followed by another one a month later and coupled with other promised benefit improvements constituted a pow- erful inducement to employees who had had no increases for almost 2 years to reject the Union. It is well estab- lished that an employer's promising of increased wages or benefits in order to dissuade employees from support- ing a union is violative of Section 8(a)(1) of the Act. Churchill Supermarkets, 285 NLRB 138 (1987); United Electrical, 279 NLRB 208 (1986); Angelica Corp., 276 NLRB 617 (1985); Management Training Corp., 261 NLRB 131 (1982); U.S. Industries, 247 NLRB 361 (1980). On the other hand, as Respondent's brief points out, quoting from Globe Shopping City, 203 NLRB 177, 181 (1973), "Section 8(c) grants to an employer the right in a manner and setting free from coercion to compare bene- fits presently in effect in his unorganized operation with those enjoyed by employees in a similar operation which has union representation."9 And an employer during a union election campaign may point out those employee benefits which it has by custom or practice uniformly ex- tended to unrepresented employees or is otherwise natu- rally or obviously available to them. See Noral Color Corp., 276 NLRB 567, 570, 575 (1985). However, an em- ployer exceeds the bounds of Section 8(c) when it goes beyond a comparison of benefits between represented and unrepresented employees and makes a specific prom- ise of benefits, not warranted by a past practice or custom, conditioned on rejection of union representation. Here Respondent, I conclude, did just that through Howington's promises and those like it by other supervi- sors discussed infra. Respondent's defense that Howington's promises were justified by its prior practice of uniformly extending the same benefits to employees in all its plants is not persua- sive here. This is because Respondent, regardless of what had transpired in earlier years, withheld from bargaining unit employees those benefits it had extended to employ- ees in its unrepresented plant in January 1987. Although a withholding might be understandable and legitimate during the period of negotiating with the Union it must be recalled that there is absolutely no evidence that Re- spondent at any time offered the Union those benefits in- stituted for unrepresented employees. In this regard this case is distinguishable from the situation in Noral Color Corp., supra. There no violation was found in an employ- er's pointing out to its employees that a stock option plan which had been previously rejected by the Union was available to employees outside the represented unit. Be- cause the Union had rejected the stock option plan, the employees would not likely perceive the employer's ob- servations regarding the availability of the plan to non- unit employees as a promise of a benefit which they could not have received while represented by the Union. A different situation prevails here. Respondent had in effect withheld from the Union and the unit employees those benefits long since granted to unrepresented em- ployees while at the same time promising unit employees that these benefits would be extended to them only if they rejected representation. Respondent's failure to offer the Union the nonunit benefits effectively destroys its past practice defense. In sum, Respondent through Howington clearly pointed out to unit employees that it was willing to do more for them if they were unrepre- sented. Angelica Corp., supra. See also Dow Chemical Co., 250 NLRB 748, 754 (1980), enf. denied 660 F.2d 637 (5th Cir. 1981). Accordingly, I conclude as the complaint al- leges that Respondent through Howington in this in- stance, violated Section 8(a)(1) of the Act by promising benefits to employees to induce them to reject the Union. Based on this evidence I also find and conclude the Union's Objection 19 to the election has merit and must be sustained. Sec. 8(c) of the Act provides that: The expressing of any views, arguments, or opinion, or the dis- semination thereof, whether in written, printed , graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. MCCARTY PROCESSORS 365 With respect to the threat of cumulative back dues ob ligations and deductions Respondent in its arguments again relies on the truth Thus Respondent argues that despite statements and leaflets distributed by the Union to employees prior to the March and November election, advising employees that there would be no back dues during the time employees were without a contract, the Union nevertheless continued throughout 1987 to send monthly dues bills to Respondent listing the dues obliga tions of each unit employee on checkoff authorization Under these circumstances as well as the Board s deci sion on the objections to the first election Respondent as serts it was entitled to truthfully advise employees that their back dues were continuing to accumulate and that they would be deducted and forwarded to the Union if it won the election Howington s remarks to the employees regarding the back dues, according to Respondent was therefore accurate, truthful and in keeping with Re spondent s posting of copies of the dues deduction lists in the employee lunchroom prior to the election That the back dues were suspended only and not waived was shown, Respondent argues by the Union s continued dis patch of the monthly dues bills to Respondent As already noted, the Board found merit to Respond ent s objection to the first election on the basis that the Union s waiver of back dues constituted an improper grant of substantial benefits which interfered with the election The Union s actions before the second election regarding the waiver of back dues appears to be a con tinuation of the same position advanced before the first election However, this time the Union made clear to employees in the leaflet dated 13 November if it had not previously made it clear that the dues were being waived rather than postponed and announced that it had always been the Union s policy not to collect dues from members for any period of time they are not covered by a contract Moreover Elijah Lovett vice president of the local union in testimony here reaffirmed that policy and practice He further explained that the billings on dues had continued to be forwarded to Respondent on a monthly basis due to the Union s failure to commit nicate with the clerical responsible for forwarding the billings It is clear that the Union in the 13 November leaflet did not condition a waiver of dues on the outcome of the election as was the case in Loubella Extendables 206 NLRB 183 (1973) where the waiver of dues was found to be objectionable Nor was the waiver of dues in the instant case dependent on the support of the Union before the election the situation found objectionable in Equitable Construction Co 266 NLRB 668 (1983) Indeed, the waiver here was not even dependant upon an individuals voting in the election However whether the Union s waiver of accrued dues in this case constituted improper conduct which impacted on the November election the issue of the legality of Howington s threats regarding dues arrearages must be considered in the context of the Board s ruling on the Union s dues waiver during the March election campaign The Board found such waiver objectionable indicating the Union could not thereafter waive accrued dues without again engaging in objectionable conduct To be sure based on Board Member Cracraft s concurring opinion the Board in its decision did not have the evidence present here of the Union s past practice or policy of routinely waiving dues during periods when member employees were working without a contract Whether this factor alone would have made a difference in the result is problemati cal because only Member Cracraft noted the factor The fact remains that it was not unreasonable for Respondent to view the Board decision on the objections as establish ing the law on the dues waiver issue extant between the parties, and that there was therefore a continuing liability for back dues on the part of employee members Accord ingly, and particularly in view of the Union s continued submission of dues bills to Respondent Respondent was entitled to advise employee members that dues were con tinuing to accrue and would at the time of the election approach the amount mentioned by Howington to the employees 10 Under these circumstances I find that the Respondent did not violate Section 8(a)(1) of the Act by warning em ployees concerning the deduction of dues arrearages if the Union were elected 3 John McLean a The evidence The complaint alleges that McLean a swing supervi sor under Second Processing Superintendent Bill Martin, was involved in four instances of unlawful promises of increased wages and benefits if employees rejected the Union two instances of threats to employees indicating the futility of selecting the Union and one instance of an unlawful threat of a lump sum deduction of accrued dues if the Union was elected A total of seven employees tes tified in support of the complaint allegations regarding McLean Charlie Mae Boone an 11 year employee of Respond ent who worked under Supervisor Howington related that she had a conversation with McLean around 2 p in on 10 November McLean had sent a relief person to her job and took Boone to a room near her work area which she referred to as the electrical room There she and McLean talked alone for about 15 minutes regarding the Union According to Boone McLean told her McCarty wanted the Union out of the plant and said it had al ready cost the employees about $900 in backpay He went on to state that if they got the Union out of the plant Boone would be given a 20 cent raise as soon as the Union was voted out and 20 cents at the first of the new year He thereafter showed her a list of benefits the food plants were receiving the list being those benefits announced on 29 October applicable to Foods Wage Employees McLean told Boone that she would be re ceiving the same benefits by not having a union Similarly Mary Ann Miller an employee in Respond ent s cut up department and a union steward testified 10 Although it is unclear from the record whether dues accrued over a period of time were deducted as a lump sum the evidence presented in the prior objections case and noted by the Board revealed that employees on leaves for illness or any other reason were charged in full for dues arrearage when they returned to work 366 DECIS]ONS OF THE NATIONAL LABOR RELATIONS BOARD that on 16 November she had a conversation with McLean who took her to a small room near the ice- house. McLean referred to the list of benefits enjoyed by Respondent's nonunit employees and told Miller that she would receive those benefits if the Union was voted out and that she would get two 20-cent raises. Likewise, Willie Etta Lee, also a union steward who worked in the packing department, testified that on 16 November, McLean took her a short distance from her work station and talked to her alone. He said that they had to get the Union out and explained that the Union had bribed the employees when the Union won the last election. He showed her a paper that contained a list of contract pro- posals put out by the Union and setting forth Respond- ent's "no" response to the proposals. According to Lee, McLean said that the Respondent had said no to all the proposals and they would continue to say no. He added that Respondent would never say yes to anything on that paper. He went on to advise Lee that if they voted the Union out they would get a 20-cent raise then and a 20- cent raise in January. Lee also testified that on 19 No- vember just outside the polling area as she was going to vote McLean told her vote against the Union if she wanted a raise. Arcell Smith, another union steward and long-time employee of Respondent, related in her testimony that she had a conversation with McLean and his superior, Bill Martin, on 17 November in a small room near her work area which she referred to as the control room. After remarking that they did not need a union he stated that if "ya'll vote the Union a lot of peoples going to lose their job." When Smith inquired why McLean re- plied that if the employees went out on strike they would be replaced. Further in the conversation McLean stated that if they got rid of the Union, Respondent would give the employees a 20-cent raise then and 20- cent per hour at the first of the year. He reminded Smith regarding the importance of the right decision about get- ting the Union out and said he guaranteed her that she would get the rates mentioned bv_ him because McCarty had written a letter about it. Employee Cleveland attributed similar remarks to McLean on 18 November. McLean took her off her line and took her to a corner of the work area where he showed her a paper with the Union's proposals on it. This was the same list of proposals prepared by the Union for bargaining and reflecting the Company's re- sponse to each proposal as "no." According to Cleve- land, McLean said that all that "stuff was just another union lie." He said the Company had said no and was going to keep on saying no, and that they were not going to give the Union anything. This remark provides the basis for the complaint allegation that McLean threatened employees that it would always reject the union bargaining request, thereby indicating a futility of employee selection of the Union. McLean in a second conversation with Cleveland the same morning stated if employees voted the Union out on 19 November, they would get a 20-cent raise then and another one the first of the year. McLean also asked Cleveland if she was aware of all the names that were posted on the walls in the breakroom. When she replied negatively McLean ex- plained that those were the names of people who owed "back union dues" and that each one of those names owed at least $160 back dues all of which would be taken out of their paychecks at one time. McLean said the Union had sent the list of names to the Respondent and added that Respondent had appealed the first elec- tion in order to give employees a chance to vote the Union out because the Union had been lying to the em- ployees about the back dues. Like Cleveland, Winston testified that McLean talked to her on 17 November in what she called a supply room where he had called her aside. In a discussion centered on the fact that the employees did not need the Union, McLean had stated, according to Winston, that Respond- ent wanted the Union out of there and cautioned Win- ston not to believe the papers that the Union had sent the employees through the mail. He had also stated that Respondent was always going to say "no" to the Union. McLean did not testify and the employee testimony set forth above remains uncontradicted. Although these em- ployees had previously been union members and could be expected to be partisan there is no reasonable basis for rejecting any aspect of their testimony regarding McLean. Such testimony was mutually corroborative. Accordingly, I credit them and find that McLean made the remarks attributed to him. On the reasoning set out above I find Respondent through McLean unlawfully promised increased wages and benefits to the employees if they voted against the Union and blamed past with- holding of wages on union representation. I further find that he told employees to vote against the Union if they wanted to obtain wage increases. I also find that McLean, as alleged, indicated the futility of union repre- sentation by stating that Respondent would continue to say no to union bargaining requests. In these respects Re- spondent violated Section 8(a)(1) of the Act through McLean's remarks. On the other hand, consistent with the conclusions reached supra, I find McLean did not violate Section 8(a)(1) of the Act by advising employees of their contin- ued dues obligation and an anticipated lump sum deduc- tion of back dues. As earlier noted, the Board's decision in the prior objections case lent itself to the clear inter- pretation that the Union could not waive dues without conferring on employees benefits which would interfere with the election. And a lump sum deduction of dues would appear to be in keeping with past practice of the Union, charging employees in full for dues accrued during leaves for illnesses and other reasons. According- ly, I find no violation of Section 8(a)(1) in this regard. In light of the findings regarding McLean I find merit to the Union Objection 4 to the election to the effect that the Respondent created the impression of futility of selecting the Union. Similarly, the promise of increased wages and benefits found to have been made above fur- ther substantiate Objection 19 that Respondent promised employees benefits if they voted against the Union. Ac- cordingly, further merit is found to this objection. MCCARTY PROCESSORS 367 4 Billy Martin a The evidence Billy Martin was employed by Respondent at material times as the assistant superintendent, second processing, who reported directly to Plant Manager Marble Ac cording to the complaint allegations, Martin promised employees wage increases if they voted against the Union, threatened employees with the inevitability of strikes and the loss of jobs if the Union continued as the employee collective bargaining representative, interrogat ed employees concerning their union desire, and solicited employees to persuade other employees to vote against the Union These allegations are coextensive with the Union Objection 2 complaining of Respondent's interro gation of employees concerning their union membership, Objection 13 complaining of threats to employees be cause of their membership in the Union, and Objection 19 involving improper promises of benefits The General Counsel relied on two witnesses to estab lish the allegations regarding Martin, employees Arcell Smith and Vernell Jones Smith testified that Martin called her to a place she called the control room on 17 November to talk to her about the Union He stated that they had too many good people in the plant to keep the Union and lose their jobs, because if employees voted the Union in a lot of people gonna lose their jobs When Smith inquired why, Martin explained that if the employees struck and went out they couldn t come back in you 11 be replaced or fired When Smith replied that the Union had not said anything about a strike Martin responded that that is the only weapon the Union had to threaten the Company with and McCarty was not going to give in to a strike He went on to state that if the employees got rid of the Union they would get a 20 cent per hour increase and 20 cents at the first of the year and he guaranteed it Martin noted that Smith was a union steward and asked her if she was going to the union meeting Smith, recalling that a flyer had been dis tributed announcing the union meeting the night before the election replied that she probably would attend He told her to tell employees that they could guarantee that they would get a 20 cent raise then and a 20 cent raise at the first of the year Smith remarked that she could not make up the people s mind for them, that they made up their own mind to which Martin replied that stewards nevertheless had a lot of influence over the people and she could tell them It appears that Martin followed a similar course with Vernell Jones another union steward who testified that in the afternoon of 17 November Martin talked to her in what she described as the electrical room about 50 feet away from her work station He asked her to vote the Union out and to tell the people to vote the Union out He asked her if she had seen the letter being circulated that reported benefits that employees would get if they voted the Union out He said employees would not get one penny if the Union was voted in and told her that employees would get 20 cents the next day after they voted the Union out and 20 cents the first of the year He referred to a list of proposals the Union had made in negotiations and stated that the Union was not going to get all of that, but that employees would get the other benefits announced by Respondent if they voted the Union out He repeatedly asked Jones as a steward to talk to employees to ask them to vote the Union out be cause people would listen to her Jones declined saying she was not going to tell them which way to vote According to Jones Martin again called for her on 18 November and talked to her in the same place This time he displayed to her a list of benefits that he had referred to in their meeting the day before He said he wanted her to make sure that she understood that if they voted the Union out that they would get the benefits at that time He again asked her to vote no and tell the people to vote no, because if they voted the Union out they would get all those benefits but if the Union stayed in they would not b Conclusion Martin did not testify and therefore the testimony of Smith and Jones is not contradicted Both testified in a straightforward and credible manner I find their testimo ny reliable and credit it Based upon their testimony I find that Martin did promise wage increases if employees voted against the Union as alleged in the complaint Consistent with my earlier findings regarding such a promise I find the promise violated Section 8(a)(1) of the Act The Board has long held that a solicitation by an employer of an employee to campaign against a union violates Section 8(a)(1) of the Act See General Motors Corp, 234 NLRB 995 996 (1978) I find Martin s solicita tion here of Jones and Smith violative as alleged On the other hand I do not find that Martin unlawful ly interrogated Smith by asking if she was going to a publicly announced union meeting Coerciveness of inter rogation must be determined in the light of all the cir cumstances consistent with the Board s policy announced in Rossmore House 269 NLRB 1176 (1984) affd 760 F 2d 1006 (9th cir 1985) Smith was a union steward well known to management And Smith had previously participated in negotiations on the Union s behalf with Respondents counsel in prior years Under these circum stances and despite the fact that other violative remarks occurred within the same conversation I find it unlikely that Martin s question would have tended to coerce or restrain Smith See Sunnyvale Medical Clinic 277 NLRB 1217 (1985) Based on the foregoing I find to the extent the Union s Objection 2 is based on the alleged interrogation attributed to Martin such objection has not been estab lished The unlawful promise of benefit found further supports the meritoriousness of the Union Objection 19, however and warrants sustaining the objection 5 Randy Burnham a The evidence Three employees Williams Miller and Nola Bell testi feed in support of complaint allegations that Randy Burn ham promised employees increased wages and benefits for union rejection, threatened employees that it would be futile to have continued representation by the Union 368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD threatened an employee with a deduction of a year s dues if the Union won the election and told an employee outside the polling area to vote against the Union to obtain a 40 cent wage increase These complaint allega tions are coextensive with the Union s Objections 4, 6, and 19 According to Williams, Burnham a cut up supervisor under the ultimate supervision of Martin, came to her at her work position during the week prior to the election and in talking to her about the election, told her that if the employees voted the Union out they would get a 20 cent raise the following Monday after the election and another one after the new year Moreover, he told her that if they voted the Union out they would not have to work 5 years anymore to get 2 weeks vacation, and that they could earn that amount of vacation after 3 years He also referred to a birthday bonus which had been an nounced in a letter which he stated he would show Wil hams but never did The following week the week of the election, Wil Hams had another conversation with Burnham at her work area On this occasion he discussed with her a union leaflet in which the Union had announced to em ployees that they would owe no back dues during the period when employees were working without a con tract In large handwritten print across the face of the leaflet was written Another Union lie' and Wait until Monday Burnham told Williams that the union state ment was a lie and that the Union had already sent a letter to the Respondent from its Memphis office seeking to collect back dues On 16 November according to employee Miller s tests mony Burnham approached her at her work position in the cutup department and showed her the 29 October memo of McCarty to the nonunit employees listing in creases in employee benefits In discussion with Miller regarding this memo Burnham pointed out that the unit employees would get these benefits if the Union was voted out He also stated that the employees would get a 20 cent raise now and a 20 cent raise after the first of the year Nola Bell a 12 year employee of Respondent related that Burnham, her supervisor, had a conversation with her on 17 November She testified that she approached Burnham to ask him a question about her job when he brought up the subject of the Union He then took her to the back dock area where he talked to her about the 29 October McCarty memo He had her read it and they talked He told Bell that the employees would get a 20 cent raise immediately and another one at the first of January if the Union was voted out Bell further testified that she saw Burnham take about 50 people out to talk to them that day Regarding the allegation about Burnham s remarks in the polling area Williams testified that as she and other employees were going to the voting area Burnham was standing about 25 feet from the entrance to the polling area and told her and other employees as they walked by to go vote for that 40 cent raise b Conclusion The testimony of Williams Miller, and Bell in the foregoing respects was not contradicted by Burnham who did not testify Accordingly, the testimony of Bell, Miller and Williams is credited Based on that testimony I find that Respondent through Burnham did make promises of increased wages and benefits if the Union was rejected by the employees Consistent with the con clusions reached above regarding similar promises I find these promises were unlawful and violative of Section 8(a)(1) as alleged This conclusion requires a similar con clusion that the Union Objection 19 must be sustained On the other hand I find no support in the testimony of these three employees to establish the further complaint allegations that Burnham stated it would be futile for em ployees to vote for continued representation by the Union Similarly and based on reasoning already stated above I find Burnham s remarks regarding dues deduc tions were not unlawful Therefore I find no violation of Section 8(a)(1) based on these allegations Moreover, I find the evidence insufficient on these allegations to lend any further validity to the Union s Objections 4 or 14 6 Billy Cook a The evidence The complaint sets forth one allegation regarding Billy Cook a shipping department supervisor on 17 Novem ber Thus the complaint alleges that Cook promised an employee increased wages and benefits if the Union was not selected by the employees and threatened that it would be futile for employees to seek continued union representation One employee Miller testified in support of this allegation which is coextensive with the Union s Objections 2 and 19 Miller testified that on 17 Novem ber she had a conversation with Cook one of her former supervisors on a dock near the deboning department According to Miller Cook told her the same things that Burnham and McLean had previously said to her and also told her that President John McCarty was a very rich man and that as long as they had a union he was not going to give them anything Although Miller s testimo ny was not contradicted by Cook I find it insufficient to establish a specific promise of benefit Her testimony that Cook went over with her the same things that Burnham and McLean had earlier told her and in which unlawful promises were found above to have been made is too vague to substantiate a specific promise of benefit on Cook s part Accordingly, I find no violation of Section 8(a)(1) based on any unlawful promise of Cook and to this extent I find no support for Objection 19 On the other hand Millers testimony that Cook said that as long as the employees had a union McCarty was not going to give them anything clearly establishes the threat that it would be futile for employees to seek continued union representation Accordingly, I find Respondent violated Section 8(a)(1) in this regard as alleged in the complaint In addition this conclusion substantiates the further merit of the Union s Objection 4 that Respondent created the impression of futility of selecting the Union MCCARTY PROCESSORS 369 7 Gerald Smith a The evidence Gerald Smith at all material times was a supervisor in the deboning section of the plant and worked under Barry Sparks deboning superintendent and Duncan Mancell, deboning manager The complaint , as amended, alleged that on 12 November , Smith interrogated an em ployee about how the employee was going to vote and promised an employee increased wages and benefits if the Union was rejected by the employee It further al leged similar activity on the part of Smith on 17 Novem ber, and also alleged that on 18 November , Sparks per mitted an employee to harass and curse another employ ee because of that employee 's union support One em ployee Bulah Thompson, testified regarding all of these allegations Thompson began working for Respondent in Septem ber 1985 and in November 1987 was working in the de boning section of the plant under Smith She testified that on 12 November, Smith took her off her job and took her to a rear dock at the plant where he talked to her about the election She testified that he asked her had she made up her mind which way she was going to vote She replied that she had not and Smith stated that the best thing was to vote the Union out, because McCarty did not want the Union in the plant Further, Smith related that employees were going to get a 20 cent raise in December and in January they were going to get another 20 cent raise, but that if they did not vote the Union out they were not going to get any raise The conversation lasted about 5 minutes before Thompson re turned to work According to Thompson Smith again took her off her line on 17 November and took her back to the same area where the previous conversation took place There he again told her that employees should vote the Union out because it was not doing them any good and that McCarty did not want a union in the plant He repeated his statement regarding the December and January raises if the Union were voted out In re sponse to a leading question Thompson related that in both conversations with Smith he asked her how she was going to vote and she responded in a noncommital way Regarding the Respondents permitting an employee to harass and curse another one because of the second em ployees union support, Thompson testified that on 18 November she was placed to work on the deboning line between Shawn Stranton and another employee known only to her as Robert Both Robert and Stranton talked to her in an effort to dissuade her from union support in the election She rejected their overtures and Robert thereafter left her alone However Stranton continued to nag Thompson saying that he needed his 20 cents and that she ought to vote the Union out because the Union was not doing them any good Thompson tried to move up the line from Stranton but he moved with her and `cursed" her calling her everything according to Thompson but a child of God Supervisor Smith was two steps away from Thompson and Stranton at the time and Thompson turned to Smith asking him if he heard Stranton cursing her out Smith told Thompson he didn t hear anything and he did nothing Smith testified for Respondent and denied that he had taken Thompson off the line to discuss the union issue or wage increases He related he knew she was a union sup porter and talking to her would be useless Further he denied overhearing an exchange between Stranton and Thompson other than to hear her yelling something to Stranton about getting out of her face He told Thomp son to calm down and they would work the matter out According to Smith, he reported the matter to his supen or, Barry Sparks, and Stranton and Thompson were sub sequently pulled off the line by Sparks who talked to them Further evidence was offered by Respondent concern ing the confrontation between Stranton and Thompson not all of it in keeping with Smith s testimony Sparks contrary to Smith testified that he learned of the con frontation from Mancell who reported that a threatening remark had been made to Thompson by Stranton Sparks thereafter removed Stranton from the production line and talked to him Stranton had conceded that he had made a threatening remark with racial overtones to Thompson and Sparks cautioned him not to do it again saying that he would not stand for it Sparks further re lated that he talked to Thompson also about the matter and told her not to antagonize fellow employees because they worked with knives and if there was a fight there could be serious problems Mancell s version was that he learned from an employ ee that Stranton had issued a threat to Thompson and he thereafter directed Sparks to investigate telling him that they were not going to tolerate that type of behavior in the plant Mancell added that Sparks subsequently re ported to him that he had talked to Thompson and Stranton b Conclusion Thompson s testimony regarding the discussion she had with Smith was generally clear and in my opinion honestly delivered I do not believe that her testimony regarding the discussions with Smith were either a prod uct of her imagination or an intent to fabricate The re marks she had attributed to him in the discussions were totally in keeping with those attributed to other supervi sors here and never contradicted The conduct attributed to Smith is also consistent with a pattern of supervisors taking employees aside to discuss the union issue with them Accordingly I credit Thompson s testimony that she did have the discussions with Smith and that he gen erally made the remarks she attributed to him However Thompson exhibited some confusion in her testimony re garding whether Sparks on both occasions that he talked to her had asked her whether she had made up her mind about how she was going to vote or how she intended to vote finally testifying that he had asked her both ques tions on both occasions I find the question of whether she had made up her mind how she was going to vote would not without more, be coercive because a response would not necessarily reveal union inclinations or sup port Because Thompson's answer was noncommital on that question it is unlikely that Smith would have asked her further how she was going to vote Under these cir 370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cumstances, I do not credit Thompson's testimony that Smith asked her how she was going to vote and shall recommend that this allegation of the complaint be dis- missed. To the extent that the interrogation allegation goes to substantiate the Union's Objection 2 regarding in- terrogation I find no support for the objection based on Smiths remarks. Having found, however, on Thompson's accredited testimony that Smith did promise higher wages and benefits if the Union was rejected by the em- ployees, I find Respondent violated Section 8(a)(1) of the Act as alleged in the complaint based on Sparks' con- duct. This finding provides further substantiation of the Union's Objection 19. Regarding the allegation that Respondent permitted an employee to harass and curse out another employee be- cause of the employees' union support I again credit Thompson's testimony over that of Smith. Smith's claim that he reported the matter to his supervisor, Sparks, was not corroborated by Sparks. Moreover, it is clear that despite the fact that the incident occurred in front of him, Sparks made no effort to ascertain the cause of the problem or the legitimacy of Thompson's complaint. Indeed, Respondent's failure to discipline Stranton who admitted to Respondent that he had issued the threat to Thompson coupled with Respondent's treatment of Thompson as an antagonizer, reflects a disregard for the facts and, in light of Respondent's knowledge that the underlying dispute involved the union issue, Respond- ent's disposition to disparately treat union supporters. I find Respondent's action in this regard was coercive and violated Section 8(a)(1) of the Act as alleged in the com- plaint. 8. Barry Sparks a. The evidence The complaint, as amended , attributes to Sparks an in- cident of threatening an employee with plant closure and other unspecified reprisals for union support , and also al- leges he requested an employee to persuade other em- ployees to vote against the Union . The allegation is coex- tensive with the Union 's Objections 13 and 15. Two wit- nesses, Thompson and employee Princess Brown , testi- fied in support of these allegations. Brown, a member of the Union, testified that on 18 November, Sparks took her from her position on the line to his office where he told her he wanted to talk to her about the Union. In the conversation, which Brown said lasted about an hour Sparks asked her what good it was doing to have a union when the Union was not doing anything for em- ployees, because employees were getting the same bene- fits as the nonunion plants. Sparks also allegedly stated that if the Union was reelected then McCarty would close the plant down and everyone in the plant would lose their job and the plant would be moved to Forest, Mississippi, or McGee, Mississippi . Sparks even pointed out that Respondent had considered the purchase of some land in Hazelhurst, Mississippi. Sparks asked Brown to go out and ask other employees to vote against the Union. Sparks conceded that he had discussed the Union with Brown before the election . However, he testified the dis- cussion took place on the line rather than in an office, explaining that he did not have an office at the time. He denied making the remarks attributed to him by Brown saying that the subject of plant closure never carne up, and no reference was made to moving the plant to McGee or Forest or Respondent's attempt to buy land in Hazelhurst. Sparks specifically denied he asked Brown to influence other employees against the Union. Sparks' testimony that he did not have an office at the time of the Union election was corroborated by Mancell who testified that construction was not started on Sparks' office until December. Mancell pointed out that before that time there was a small general office that su- pervisors used in the rear of the deboning section which was not private and an hour-long conversation could not take place there without constant interruption by a flow of employees going through that office. In addition to Brown's testimony regarding Sparks, Bulah Thompson testified that on 18 November she also had a conversation with Sparks about 50 or 60 feet away from her work station on the production line. In that conversation Sparks told her that he knew she and her sister, Baby Ruth Brent , also an employee of Respond- ent, were "up in the Union," and if they voted the Union back in, Thompson was going to need somebody on each side of her everyday, all day, because he was going to stay on her back. This event occurred after the episode with Stranton referred to above. Although Sparks conceded in his testimony that he had talked to Thompson as already related above, he denied discussing with her the Union being voted back in and generally denied making the other remarks she at- tributed to him. He did admit he mentioned to her the intensity of feelings among employees at the time be- cause of the union situation. b. Conclusion The fact that Sparks did not have a personal office at the time of the discussion claimed by Brown is insuffi- cient to negate Brown's testimony that the discussion took place in an office. Brown testified that the office was about 5 minutes walking distance from her work sta- tion thus suggesting that it was totally outside of the de- partment and within another area of the plant. Brown's testimony struck me as credible and reliable. Weighed against Sparks blunt denials unaccompanied by any de- tailed explanation of his version of the discussions with Brown regarding the Union, a discussion the contents of which Sparks testified he could not recall. I find Brown's testimony more convincing. Accordingly, I credit Brown over Sparks and conclude that Respondent through Sparks violated Section 8(a)(1) of the Act as alleged by threatening plant closure and plant removal and by asking Brown to persuade other employees against the Union. Based on these conclusions I also find merit to the Union's Objection 15 contending that Respondent threatened plant closure if the Union won the election. I previously found Thompson's testimony credible above, and I find it no less credible when balanced against Sparks' testimony regarding the comments she testified he made. Moreover, a close examination of the MCCARTY PROCESSORS record fails to reveal that Sparks specifically denied that he told Thompson that he would make things hard on her Crediting Thompson I find that Respondent unlaw fully threatened reprisals in violation of Section 8(a)(1) of the Act as alleged in the complaint 11 Further to the extent that this violation is coextensive with the Union s Objection 13 complaining of threats and coercion of em ployees because of their membership in and activities on behalf of the Union, I find merit to Objection 13 9 Duncan Mancell a The evidence The complaint as amended, alleges that Mancell on 9 and 16 November threatened employees with unspecified reprisals if they voted for the Union The complaint was amended at the hearing based on Mancell s own testimo ny and over Respondents objection to allege that begin ning 9 and 16 November, Mancell systematically and in dividually orally promised benefits to 80 percent of the deboning department employees in order to get them to vote against the Union These allegations are coextensive with the Union s Objections 13 and 19 Evidence regard mg the initial allegation was supplied by one employee Shirley Williams Williams testified that during the week before the election Mancell had approached her in the breakroom before the beginning of work and asked her if he could talk to her She declined saying that she was eating her breakfast He left After she completed her breakfast she reported to work and found Mancell wait mg for her According to Williams Mancell told her he knew she was for the Union and that if the Union was voted in the plant he would make sure she would catch hell as long as she was in the plant Williams, a union member,testified that she attempted to reply to Mancell but he turned and walked off Mancell admitted in his testimony that he had attempt ed to talk to Williams in the breakroom one morning before work but she had declined to talk to him He could not recall any follow up attempt to talk to her Asked if he recalled any conversation with Williams in which there was any mention of what would happen when the Union was voted in Mancell answered nega tively Further asked if he recalled any conversation in which there was any reference to her catching hell Mancell again responded negatively However he specif ically denied that he told her at any time that if the Union was voted in she would catch hell as long as she was in the plant On cross examination Mancell conceded that he had talked to approximately 80 percent of the 300 employees under his jurisdiction concerning the Union during the 11 In his brief the General Counsel moved to amend the complaint to allege additional threats violative of Sec 8(a)(1) based on admissions of Sparks on cross examination that he told over 100 employees before the election that they would receive the benefits granted the employees in Respondent s other plants if they rejected the Union I find it unnecessary to consider or grant the motion because as granting it would add nothing to the remedy provided for violations of the same nature already found here to have been committed by Respondent Sparks admission however has been considered as reflecting the extensiveness of Respondents dis semmation of its message regarding the grant of benefits to employees if they rejected the Union in the election 371 week or 10 day period prior to the election Although he could not recall the individual conversations with em ployees he stated that he expressed to them Respondent s view that the Union was not needed at Respondent s plant because the nonunion facilities had similar benefits and that employees could get the benefits that the other plants had without the Union b Conclusion Mancell never explained in his testimony what he had wanted to talk to Williams about on the morning when he interrupted her breakfast in the breakroom It would appear reasonable that if Mancell had wanted to talk to her he would have followed up on the matter as Wil liams claimed he did when she reported for work in her department It is not unreasonable to believe that Man cell was piqued by Williams refusal to talk to him earli er Under these circumstances, and because Williams tes timony impressed me as reasonable, positive, and con vincing and because her recall appeared to be clear, I credit Williams over Mancell I find that he did issue the threat she attributed to him which I find violative of Section 8(a)(1) of the Act as alleged Based on this con elusion I find further merit to Objection 13 and conclude it must be sustained Mancell s admission that he talked to 80 percent of the deboning department employees advising them that they would get the same benefit as nonunion plants constitutes a promise of benefit because as the record evidence es tablishes that Respondent was making every effort to communicate to employees that the nonunion plants en joyed a 20 cent per hour higher wage rate and additional benefits Accordingly, on Mancell s own testimony I must conclude and for the reasons already related above, that his remarks constituted an unlawful promise of bene fits in violation of Section 8(a)(1) of the Act To this extent further merit is found to the Union s Objection 19 which must be sustained C Other Evidence Regarding the Objections Objection 6 to the election complained that Respond ent prevented employees orderly and free flow to and from the voting areas and solicited company support im mediately in and about the area adjacent to the voting areas during times when the polls were open for voting The testimony of Lee Claiborne and Blount regarding remarks made by Howington to them or others in their presence as they went to vote in the election has already been related It appears that Howington s remarks took place at the entrance to a hallway approximately 20 feet in length 12 leading to the breakroom in which the poll ing was taking place Moreover Lee testified that How ington had stopped her group for a few minutes requir ing them to wait in the entrance to the hallway Only a few voters come out before Howington allowed the de layed group to proceed in It was during the delay that Howington made his comments to the employees going to vote as already related Respondent through cross ex 12 This approximation is based on a scale diagram of Respondents fa cility which was received in evidence 372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD amination of the General Counsel's witnesses attempted to establish that Howington's action in delaying the em- ployees was justified by the crowding of the hallway by employees leaving the polling area after voting. In my opinion, this attempt was unsuccessful, and in the ab- sence of testimony from Howington, I cannot conclude that the delay of employees going into vote was warrant- ed, particularly because Howington used the delay to un- lawfully ask employees to vote for their "raise" in oppo- sition to the Union. Accordingly, and in light of the un- lawful requests made to the employees to vote for the wage increases as already found above, I conclude that Objection 6 has merit and must be sustained. D. The Alleged Violations of Section 8(a)(5) and (1) of the Act in the Unilateral Grant of Increased Wages and Benefits 1. The material facts True to the promises of its supervisors made before to the election, Respondent on the day following the elec- tion in identical memos from Marble and Mancell to "All Employees" announced a pay increase of 20 cents per hour to employees with more than 1 year of employment with Respondent. The memos also announced another 20-cent-per-hour increase for employees in the same cate- gory would be effective 3 January 1988. Increases were also provided to employees with less than 1 year of serv- ice. According to these memos the increases put the Jackson plant on the same pay level as the other McCarty plants. A third memo addressed to all Jackson processing em- ployees signed by H. F. McCarty Jr. dated 20 Novem- ber and listing "Election Results" as the subject, con- gratulated the employees on the election results and spe- cifically tied such results to the grant of the wage in- crease. Thus the memo stated: I have given instructions that the Jackson plant im- mediately receive the same pay and benefits as the other McCarty plants. I will be in the Jackson plant in the near future to thank you personally for the vote of confidence in McCarty. We will continue working to keep that confidence. 2. Arguments and conclusions The General Counsel and the Union contend, as the complaint alleges, that the grant of the wage and benefit increases while the objection period was pending and while the results of the objection were not final consti- tuted a violation of Section 8(a)(5) and (1) of the Act. Respondent conversely argues that it did nothing more than provide equal treatment to unit employees by giving them what benefits its nonunion employees enjoyed. It is clear that the Union thoughout the events in- volved in this case occupied the status of an incumbent collective-bargaining representative. It was entitled to the rebuttable presumption of continued majority status. Aside from the election of 19 November there was no showing by affirmative evidence that the Union had lost its majority status. In light of the merit found to the Union's objections to the November election the results of that election, like the results of the first election, es- tablishes nothing to rebut the presumption of the Union's continuing majority status. The mere existence of the pending decertification petition does not license an em- ployer's withdrawal from recognition or bargaining with an incumbent union. Dresser Industries, 264 NLRB 1088 (1982). Accordingly, where the Board has not yet issued a certification of results of election in a decertification election, an employer acts at its peril when it unilaterally modifies the terms and conditions of employment of unit employees. See Angelica Corp., supra; Dow Chemical Co., supra; Presbyterian Hospital, 241 NLRB 996, 998 (1979). Therefore, Respondent here was not free to unilaterally grant the wage benefit increases which were granted on 20 November. It follows, and because I have found merit to the Union's objections to the election, I conclude that Respondent's unilateral action in granting the wage and benefit increases violated Section 8(a)(5) and (1) of the Act as alleged in the complaint.13 Angelica Corp., supra. E. The Appropriateness of a Gissel Bargaining Order The General Counsel and the Union argue that under all the circumstances of this case, including the gravity and extent of Respondent's unlawful conduct, a fair rerun election has been rendered improbable so that a bargaining order under the principles enunciated in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), must be entered in this case. In Gissel the Supreme Court estab- lished the standards for determining whether bargaining orders may be utilized to remedy an employer's unfair labor practices. Thus, the Court held a bargaining order may be granted where an employer's unfair labor prac- tice is "outrageous" and "pervasive." A bargaining order may also be granted in a second category of cases of a less extraordinary nature marked by less pervasive unfair labor practices which nonetheless have a tendency to un- dermine majority strength. However, a bargaining order is not appropriate, the Court said, in a third category of cases involving minor or less extensive unfair labor prac- tices "which, because of their minimal impact on the election machinery, will not sustain a bargaining order." The General Counsel and the Union assert the instant call case falls under the first category above while Re- spondent argues that Respondent's conduct if at all un- lawful falls into the third category precluding the entry of the bargaining order here. The Respondent's unlawful conduct found here was varied and extensive. It consisted of unlawfully promis- ing and granting wage and benefit increases to dissuade employees from union support, solicitation of employees to dissuade other employees from union support, threat- ening employees with the futility of election of the Union, allowing an employee to curse or harass another employee in an attempt to discourage the second em- ployee's union support, threatening an employee because of an employee's union support, and threatening in one 13 An order requiring Respondent not to engage in unilateral actions will be recommended here. This order, however, should not be construed as requiring that the wage and benefit increases be rescinded. Dow Chem- ical Corp., supra. MCCARTY PROCESSORS instance plant closure if the employees selected the Union to continue to represent them Respondents con duct in the promise of wage and benefit increases was the most pervasive of all its unlawful conduct The promise was frequently repeated to a large number of employees Indeed Mancell conceded that he had dis cussed these promises of increases with approximately 80 percent of his employees And based on uncontradicted testimony in the record other supervisors talked to a large number of employees making the same promises Further, Marble admitted that all supervisors were in structed to carry the same unlawful message to all unit employees The actual grant of the increases touched all unit employees The Board has indicated in some cases that such conduct cannot easily be erased for the benefits granted remain in effect and serve as a constant reminder to employees of Respondents use of economic weapons to defeat the Union See, e g Dow Chemical Co supra J J Newberry Co 249 NLRB 991 (1980), enf denied in pertinent part 645 F 2d 148 (2d Cir 1981), Apple Tree Chevrolet 251 NLRB 666 (1980), enf denied in pert part 671 F 2d 838 (4th Cir 1982), Honolulu Sporting Goods Co 239 NLRB 1277 (1977), Westminster Community Hospital, 221 NLRB 185 (1975) Skaggs Drug Centers 197 NLRB 1240 (1972) enfd 84 LRRM 2384 (9th Cir 1973) Tower Records 182 NLRB 382 (1970) enfd 79 LRRM 2736 (9th Cir 1972) C & G Electric 180 NLRB 427 (1969) See also Royal Aluminum Foundry, 208 NLRB 102 (1974) Soil Mechanics Corp, 200 NLRB 544 (1972) In other more recent cases the Board has taken a more conservative approach holding the preelection promise of benefits and post election grant of such benefits are in sufficient to warrant the issuance of a Gissel bargaining order as opposed to the use of more traditional remedies See e g Angelica Corp, supra, Wm T Burnett & Co 273 NLRB 1084 (1984) See also Walgreen Co 221 NLRB 1096 (1975) In the Angelica case the Board ex plained its apparent departure from prior precedent by observing that such prior precedent did not represent ap plication of a per se remedial rule and observed that under Gissel the Board was required to assess the ques tion of an appropriate remedy on a case by case basis In my opinion the instant case is distinguishable from the facts in Angelica Burnett and Walgreen and dictate a contrary result Respondents conduct here was both more flagrant and pervasive Here Respondent unlike in the cited cases specifically tied the promise and grant of the wage and benefit increases to the rejection of the Union Moreover, the wage increases promised and granted totaled 40 cents per hour for most employees and represented an increase of about 8 percent for each employee Such increases must be regarded as substan tial The impact on employees was even greater because they had not had an increase for almost 2 years prior to the time the increases were granted Respondents ex pressed concern in bringing unit employees up to the scale of nonrepresented employees at its other plants is belied by Respondents failure to offer the Union in ne gotiations the same wages and benefits accorded the non union employees One can only conclude Respondent simply stated bought the election results achieved in No vember by promising and granting employees wages and 373 benefits not previously offered to and rejected by their collective bargaining representative Under these circumstances, and considering the other unlawful conduct of Respondent including remarks mdi cating the futility of union organization there is little likelihood that traditional remedies will relieve employ ees of the lasting impression left by the promise and grant of wage and benefit increases that Respondent is the sole source of the benefits not only received but likely to be available in the future and that union repre sentation provides no hope for improvement See NLRB v Exchange Parts Co 375 U S 405 (1964) Rather be cause Respondent made it clear in its preelection prom ises and postelection announcements that the benefits were granted largely as a reward for rejecting the Union, and keeping in mind that the wage and benefit in creases will not be rescinded by the order recommended here employees may reasonably expect a similar reward if they reject the Union in any rerun election making the fairness of such rerun highly unlikely Accordingly the facts of this case, I conclude, put it more in line with those considered by the Board in Cam vac International 288 NLRB 816 (1988), in which a bargaining order was found warranted based in large part on the employer s announcement and grant of wage and benefit increases the lasting effects of which would be difficult to remedy by traditional means Considering the foregoing I conclude Respondent s conduct falls within the second, if not the first category of conduct warranting the entry of a Gissel bargaining order Accordingly and having concluded that the 19 November election was a nullity I shall recommend the entry of such a bargaining order CONCLUSIONS OF LAW 1 Respondent is an employer within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the mean mg of Section 2(5) of the Act 3 By systematically promising and subsequently grant ing increases in wages and other benefits to employees to dissuade them from voting for the Union in a decertifica tion election Respondent has engaged in and is engag mg in unfair labor practices in violation of Section 8(a)(1) of the Act 4 By threatening employees with the futility of their election of the Union to represent them in collective bar gaining, Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1) of the Act 5 By discouraging employee support of the Union by informing employees that wage increases had been with held from them in the past because of their union repre sentation , Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1) of the Act 6 By threatening employees with unspecified reprisals and allowing abusive conduct toward them by other em ployees because of their union support, Respondent has 374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD engaged in and is engaging in, unfair labor practices in violation of Section 8(a)(1) of the Act 7 All production and maintenance employees, includ ing truckdrivers driver salesman and shipping and re ceiving clerks employed by Respondent at its 238 Wil mington Street, Jackson, Mississippi facility, excluding all office clerical employees, professional employees sales men, buyers, watchmen and guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 8 At all times material the Union has been, and now is the exclusive representative of the employees in the unit listed in paragraph 7 above for the purposes of col lective bargaining within the meaning of Section 9(a) of the Act 9 By unilaterally changing the wages and other bene fits of unit employees without notice to or negotiating with the Union, prior to final resolution of the question concerning the continued representative status of the Union raised in Case 15-RD-607, Respondent has en gaged in, and is engaging in, unfair labor practices in violation of Section 8(a)(5) and (1) of the Act 10 A preponderance of the credible evidence does not establish that Respondent has violated the Act in any other manner alleged in the complaint 11 The Unions Objections 2, 4, 6, 13, 14, 15, and 19 to the election conducted in Case 15-RD-607 are merito rious and must be sustained and the election conducted on 19 November 1987 in Case 15-RD-607 must be set aside 12 By engaging in the unfair labor practices set forth in paragraphs 3 4 5 6, and 9 above Respondent has at tempted to undermine the Union s majority status and has precluded the holding of a fair rerun election thereby making a bargaining order an appropriate remedy for Respondents unfair labor practices 13 The unfair labor practices found in paragraphs 3 4 5 6 and 9 above constitute unfair labor practices affect mg commence within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I recommend that it cease and desist therefrom and that it take certain affirmative action which I find necessary to remedy and remove the effects of the unfair labor practices found and to effectu ate the policies of the Act Having found that Respondent by its unlawful conduct including the promising and granting of a general wage increase to its employees interfered with the election held on 19 November 1987 thus substantiating the Union s objections to the election I recommend that the election held in Case 15-RD-607 be set aside The rec ommended order in this regard is not to be construed as requiring rescission of the wages and benefits granted to unit employees subsequent to the election Having fur ther found that Respondent by its unlawful conduct has precluded the holding of a fair rerun election under the circumstances of this case, I further recommend that the petition in Case 15-RD-607 be dismissed that all pro ceedings held in connection therewith be vacated and set aside and that a bargaining order issue requiring Re spondent to recognize and bargain with the Union On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed 14 ORDER Respondent, McCarty Processors, Inc and McCarty Farms Inc Jackson, Mississippi its officers agents, suc cessors and assigns, shall 1 Cease and desist from systematically promising and granting wage increases and other benefits to its employ ees represented by the United Food and Commercial Workers International Union AFL-CIO-CLC, and its agent, Local Union No 1529 to dissuade them from voting for the Union (a) Threatening employees with the futility of their election of the Union to represent them (b) Discouraging support for the Union by informing employees that wages have been withheld in the past be cause of their representation by the Union (c) Threatening employees with unspecified reprisals and permitting abusive conduct toward them by other employees because of their support for the Union (d) Unilaterally granting increases in unit employees wages and benefits without notification to and bargain mg with the Union (e) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) On request recognize and bargain collectively with the Union as exclusive representative of the employees in the appropriate unit described in paragraph 7 in the above conclusions of law and on request embody in a signed agreement any understanding reached (b) Post at its Jackson Mississippi place of business copies of the attached notice marked Appendix 15 Copies of the notice on forms provided by the Regional Director for Region 15 after being signed by the Re spondent s authorized representative shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond ent to ensure that the notices are not altered defaced, or covered by any other material (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 14 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses 15 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al 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 MCCARTY PROCESSORS 375 IT IS FURTHER ORDERED that the allegations of the election in Case 15-RD-607 be set aside and the petition complaint notspecifically found herein be dismissed dismissed IT IS FURTHER ORDERED that the Union s Objections 2 4, 6, 13, 14, 15, and 19 be sustained the results of the