Southern Frozen Foods, Inc.

National Labor Relations Board - Board Decisions

Mar 28, 1973

202 N.L.R.B. 753 (N.L.R.B. 1973)

SOUTHERN FROZEN FOODS, INC. 753
Southern Frozen Foods , Inc. and Laborers ' District
Council of Georgia & South Carolina , affiliated
with Laborers ' International Union of North Amer-
ica, AFL-CIO. Case 1O-CA-93741
March 28, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On October 5, 1972, Administrative Law Judge
David S. Davidson issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the Charging Party
filed cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
Administrative Law Judge's Decision in light of the
exceptions and briefs and finds that except as
hereinafter set forth the complaint in case
1O-CA-9374 should be dismissed. The Board has
therefore decided to affirm the Administrative Law
Judge's rulings, findings, and conclusions only to the
extent consistent herewith.
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(1) of the Act by warning
and threatening employee Mollie Mae Butler with
discharge for talking about the Union; threatening
employee James Felton with some unspecified
reprisal if he served as an election observer for the
Union; and Supervisor Kato Harvey's speeches to
employees threatening them with loss of employment
if they chose union representation. The Administra-
tive Law Judge further found that certain campaign
literature distributed by Respondent contained
threats in violation of Section 8(a)(1) of the Act.
Respondent has filed exceptions to the above
findings and recommendations, some of which we,
for reasons hereinafter set forth, find meritorious.
The record shows that Butler along with about
eight other employees worked in Respondent's poly-
repack department. Their job was to place food
previously frozen in bulk into individual containers
and to weigh them. Sometime early in December
1971, Freddie Mae Trice, a supervisor in that
department, informed Personnel Director Bobby
Studdard that she had a problem in her section. She
stated that Butler was talking about the Union on the
job and that an employee who worked across the line
from Butler did not want to hear about it and wanted
someone to stop Butler. She further told Studdard
she had tried to stop Butler but that Butler paid no
attention to her and other supervisors.
On the following day, Studdard talked to Butler.
He informed her that he had received a complaint
about her running her mouth on the line about the
Union, that he didn't give a damn how she felt about
the Union, and that she could talk about it at breaks
or lunchtime but that, as long as Respondent was
paying her, they expected her to do her job and let
others do so. Studdard also stated that if Butler did
not do as he asked and if he heard another complaint
he would see to it that she was dismissed.
The Administrative Law Judge found that Respon-
dent sought to keep all talk on the line to a minimum
because it interfered with work. He further found,
however, that such efforts were largely unsuccessful
and that the rule against talk while working, to the
extent it existed, was regularly violated by all
employees. As there was no evidence that any
disciplinary action was taken against employees for
failing to stop talking or that any employee had
previously been threatened with discharge for failure
to comply with instructions to stop talking, he
concluded that Studdard warned Butler and threat-
ened her with discharge, not for the purpose of
stopping her from talking in general while she
worked, but to keep her from talking about the
Union. Accordingly, he concluded that Respondent's
disciplining Butler in this manner violated Section
8(a)(1) of the Act. We disagree.
The evidence shows, and the Administrative Law
Judge found, that Studdard's warning to Butler
followed a conversation Studdard had with Trice on
the previous day wherein Trice informed him that
Butler's talking about the Union while working was
disturbing another employee who had complained
and did not want to hear about the Union. While
there is no evidence that any other employees who
were regularly told to stop talking were threatened
with discharge for failure to comply, there is no
evidence that their talking had interfered with the
work of others. Since Butler's talking prompted a
complaint from a fellow worker, Respondent could
for legitimate business reasons have required that she
stop talking during worktime. Studdard's warning
referred only to worktime and made it clear that at
other times Butler was free to talk about the Union.
I Case 10-RC-8934 was originally consolidated with the instant case for
the resolution of certain issues arising with respect to an election conducted
pursuant to an agreement for consent election See the Rules and
Regulations of the National Labor Relations Board, Sec 102 62(a) Prior to
the transfer of Case l0-CA-9374 to the Board, Case 10-RC-8934 was
severed and remanded to the Regional Director for further appropriate
action Accordingly, Respondent's exceptions insofar as they relate to the
Administrative Law Judge's findings and recommendations in Case
l0-RC-8934 are not before the Board for determination, and we make no
findings as to them
202 NLRB No. 92
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As there is no evidence that would otherwise indicate
discriminatory enforcement of Respondent's prohi-
bition against talking while at work, we shall dismiss
this allegation of the complaint.
We do not agree with the Administrative Law
Judge's finding that Respondent violated Section
8(a)(1) of the Act with regard to Gerard Maron's
conversation with employee James Felton.
The record shows that, on the day before the
runoff election, the Union notified Respondent by
telegraph that four employees, Willie B. Williams,
Arthur Mae Hilton, Willie James Odum, and James
Felton, would be observers for the Union and
requested that they be excused from work for that
purpose on election day. Williams, Odum, and
Felton constituted three of Respondent's five forklift
operators, according to Maron. As the forklifts were
essential to Respondent's overall operation, he called
the men in to find out if they were going to serve as
observers, since, if they did, he would need to
designate replacements for them. Both Odum and
Williams stated they did not intend to be observers
and would be at work on election day.
Felton, however, told Maron that as he had given
the Union his word that he would be an observer he
would so serve. At some point Felton asked how the
Company would feel if he were an observer and
whether he would put himself in a bad light by
serving. According to Felton's credited testimony,
Maron replied that Felton would be putting himself
on the spot if he were an observer. While dismissing
allegations that Respondent's inquiry as to whether
the trio intended to act as observers constituted
unlawful interrogation, the Administrative Law
Judge nevertheless found that Maron's response to
Felton, that by acting as an observer he would be
putting himself on the spot, conveyed a threat of
unspecified reprisal in violation of Section 8(a)(1).
With the latter conclusion we disagree.
The record shows that Felton, after asserting he
would serve as an observer, followed this up by
questioning Maron as to how the Company would
feel if he were an observer and also by asking if he
would be fired. Maron assured him that there would
be no harm but that he would be putting himself on
the spot. In such a situation, because of the
ambiguous nature of the remark that Felton would
be putting himself "on the spot," in the absence of
other conduct or statements that Felton could
reasonably have interpreted as indicating hostility on
Respondent's part, we view Maron's remark as
merely a gratuitous observation which said nothing
more than an employee serving as a union observer
in a hotly contested election maintains a highly
visible profile and thus by this action, puts himself
"on the spot." Where the comment, as here, is
gratuitous, ambiguous, and made in response to a
question asked which arose during the course of a
legitimate inquiry and was accompanied by specific
assurances against any reprisals, it cannot be said to
have had the effect of conveying any threat.
Accordingly, we shall dismiss this allegation of the
complaint.
Nor do we agree with the Administrative Law
Judge's 8(a)(1) finding based on speeches made by
Supervisor Harvey. Regarding the allegedly coercive
remarks, the background facts show the following:
Respondent, a subsidiary of Seabrook Foods, Inc.,
is engaged in the manufacture, processing, distribu-
tion, and sale of frozen foods, some of which are
turnip roots and greens. Because of the different
harvesting times for roots and greens, the packaging
of this product involved the packaging of a mixture,
part of which had been previously frozen in bulk and
part of which was fresh and unfrozen. At one time
this product had been packaged at the plant of
another Seabrook Foods subsidiary in New Jersey.
However, after the employees at that plant had
become unionized, contract restrictions relating to
the handling of a mixture of frozen and unfrozen
produce caused the work to be moved to Respon-
dent's plant where it constituted a substantial portion
of the work in the poly-repack department, where
Harvey was assistant manager.
On several occasions, Harvey spoke to assembled
employees in the department about the pending
runoff election. In the course of his remarks, Harvey
told the employees that he was a supervisor, that he
had to be for the Company, and that he wished they
would be the same. He further stated that they were
doing all right and he thought that they could
continue to do all right and did not need a union to
do better. He also made reference to the termination
of the turnip operation at a plant of Seabrook Foods
in New Jersey and made reference to the possible
loss of the packaging of mixed turnip roots and
greens which was then being done in the poly-repack
department at Montezuma. Harvey testified regard-
ing his reference to the root turnip operation
basically as follows:
Well, I told them about the-together were
putting up about seventy-eight million pounds of
turnips with roots and so that the handline was
doing about seventy-five per cent of them. And
also I thought if they cut that out, that was sort of
hurt their jobs.
Well I was told that they were putting up
turnips with roots up at Seabrook Farms and
also-and also if the Union come in, they may cut
that out at Southern Frozen Foods.
SOUTHERN FROZEN FOODS , INC. 755
So I told the people that worked in my
department they had enough turnip roots for
three weeks , I mean they behind . And if they cut
that out, they was cutting their job and so that
mean that why they not putting the turnip roots at
Seabrook the time the Union come in. And I
figure if the Union come in here , that'll come out
with your work. That' s what I meant.
The Administrative Law Judge concluded that
Harvey's remarks about the possible loss of turnip
packing were not a reasoned and factual statement of
what had happened in New Jersey and implied that if
the Union won the election , the work of packaging
mixed turnip and greens might be lost by the poly-
repack department for reasons unrelated to econom-
ic necessities or any contract the Union might
negotiate . In this regard , he found Harvey failed to
explain that the contract restrictions (negotiated by
the Union) rather than a unilateral determination by
Respondent 's parent led to the loss of the work at the
New Jersey plant . He thus found that Harvey's
remarks about turnip -packing work conveyed a
threat of reprisal and violated Section 8 (a)(1).
The record further reveals that on January 10,
1972, Respondent mailed to employees a letter
which, inter alia, stated that restrictive union de-
mands had helped reduce the number of jobs at the
New Jersey plant . The letter continued:
At the New Jersey plant the company is restricted
from running frozen and fresh vegetables togeth-
er. They don't run turnips and greens as we do. If
we were restricted like this, we would not run the
7,500,000 pounds of turnip and greens we ran in
1971. .
The Administrative Law Judge nevertheless found
this letter was not likely to have dispelled or nullified
the effects of Harvey's appeals.
In our view , Harvey's remarks are ambiguous and
do not clearly imply a threat that a union victory
would automatically be followed by a loss of
employment . Harvey's statements , especially when
taken together with Respondent 's January 10, 1972,
letter , do nothing more than raise the possibility that
if the Union came in it could conceivably restrict
Respondent the way it had restricted the parent
company in New Jersey, with the result that the
turnips would be packed elsewhere. Considering the
totality of statements concerning the turnip opera-
tion , we are not prepared to say that Respondent's
communications threatened employees with loss of
employment . Accordingly, we find such remarks
permissible and not violative of the Act.
The record reveals that both the Respondent and
the Union engaged in an extensive and vigorous
campaign to gain employee support for their respec-
tive positions in the election . The Administrative
Law Judge reviewed at length Respondent 's litera-
ture and gave particular attention to that bearing on
the issues of strikes , plant closing , and other adverse
consequences of a union victory. On the basis of such
literature , more specifically, communications dated
January 5, 14, 21, and 24, 1972, the Administrative
Law Judge found that during the preelection period
Respondent threatened its employees with reprisals
in the event they chose to be represented by the
Union and thereby violated Section 8 (a)(1) of the
Act.
The letter dated January 5, 1972, announced the
time and place of the next election . It began by
telling employees:
The time has come for us to talk turkey. We know
we need to make some changes , and we will once
we get this union mess out of the way. .. .
After stating that there was nothing the union could
do to make the plant a better place to work or to get
more money for the employees, the letter continued:
Put yourself in our position ! If you have a friend
who is appreciative of what you try to do for him
and another who makes demands-which of
them are you going to help the most? The answer
is obvious-we are human the same as you are.
The Administrative Law Judge found the letter
conveyed a thinly veiled threat that Respondent
would be less responsive to the employees ' needs for
changes if they chose a union than if they rejected it.
We agree . As the letter threatened lack of responsive-
ness if the employees chose a union and promised the
benefit of making needed changes if the union were
rejected , we find that Respondent 's January 5, 1972,
letter independently violated Section 8(a)(1) of the
Act.
Unlike the Administrative Law Judge , however, we
are of the view that the remainder of Respondent's
campaign literature was permissible . The letter of
January 24 told the employees not to believe that
what the Union was offering was better than
Respondent President Williams' proven intentions. It
reminded employees that , as of then, help was always
available and cautioned them not to "let an outsider
change all of that ." It also stated that those who were
wise would "gratefully accept the concerned efforts
of those who really care about you." It concluded, "I
will continue to try to prove to you that all that has
been said by me is true ." The Administrative Law
Judge found that the theme of this letter conveyed a
threat that Respondent would try to help those who
were grateful but that if employees did not give
Respondent the opportunity by voting the Union
out, an outsider (the Union) would change all that.
In our view , a reading of the entire letter reveals
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nothing more than a campaign expression that the
Company intended to stand on its past record of
concerned efforts on behalf of employees, the
opinion that more is offered by such a record than by
the promise of union organizers, coupled with an
appeal not to bring in an outsider.
Both the letter of January 14 and a cartoon
distributed on January 21 spoke of the possibility of
a strike at Respondent's plant which could be caused
by union demands.
In our view, a reading of the entire record does not
support the Administrative Law Judge's conclusion
that the above-mentioned pieces of literature distrib-
uted on January 14, 21, and 24, along with others,
constituted a threat that Respondent would throw its
employees out of work regardless of the economic
realities if the Union won the election. Respondent's
communications at most represent one side of a
heated campaign typified by sharp conflicts of
interests. We note that from time to time the Union
replied in an equally vigorous, partisan, and aggres-
sive manner. Accordingly, we find on the basis of the
totality of the campaign that with the exception of
the January 5, 1972 letter Respondent's literature did
not contain unlawful threats of retaliation if the
Union were selected to represent the employees but
rather were recitals of Respondent's beliefs regarding
demonstrable economic consequences which could
possibly flow from unionization. As such, the
statements are protected by Section 8(c) of the Act.
Accordingly, we shall dismiss the complaint except
as it relates to the January 5 letter.
REMEDY
Having found that Respondent has engaged in an
unfair labor practice, we shall order it to cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. As the
only violation found, however, arose from the
sending of one letter, we will not, in these circum-
stances, order an extraordinary remedy or broad
order.
CONCLUSIONS OF LAW
1. Southern Frozen Foods, Inc., is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Laborers' District Council of Georgia & South
Carolina, affiliated with Laborers' International
Union of North America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. By threatening its employees that it would be
less responsive to their needs if the union won the
election, Respondent has engaged in an unfair labor
practice affecting commerce within the meaning of
Section 8(a)(1) of the Act.
4. Respondent's conduct has not otherwise violat-
ed Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Southern Frozen Foods, Inc., Montezuma, Georgia,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Telling its employees it would be less responsive
to their needs in the event they choose union
representation.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their statutory rights.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its places of business at Montezuma,
Georgia, copies of the attached notice marked
"Appendix." 2 Copies of said notice, on forms
provided by the Regional Director for Region 10,
after being duly signed by Respondent's authorized
representative, shall be posted by Respondent
immediately upon receipt thereof and maintained by
it for 60 consecutive days thereafter, in conspicious
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Decision
and Order, what steps the Respondent has taken to
comply herewith.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
violations not herein found.
2 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees that we
will do less for you if you choose to be
represented by a union than if you choose to
remain unrepresented.
SOUTHERN FROZEN FOODS, INC.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees,
in the exercise of your rights to organize your-
selves, to form , join , or help unions , to bargain
collectively through the representatives you
choose, to act together for collective bargaining or
other aid or protection , or to refrain from any or
all of these things.
All our employees are free , if they choose , to join
Laborers ' District Council of Georgia & South
Carolina, affiliated with Laborers ' International
Union of North America , AFL-CIO, or any other
labor organization.
SOUTHERN FROZEN
FOODS, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Peachtree Building, Room 701, 730
Peachtree Street N.E., Atlanta, Georgia 30308,
Telephone 404-526-5760.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: On
January 21, 1972, Laborers' District Council of Georgia &
South Carolina, affiliated with Laborers' International
Union of North America, AFL-CIO, hereinafter referred
to as the Union, filed a charge in Case 10-CA-9374. On
April 11, 1972, the complaint issued alleging that Respon-
dent violated Section 8(a)(1) of the Act by threats of
discharge and improper restriction of employee union
activity on company property on December 2, 1971,i by
threats of plant closure on January 7, 1972; by interroga-
tion and threats of reprisal on January 26, 1972; and by
threats of the inevitability of a strike, plant closure, other
reprisals contained in leaflets and materials distributed to
employees between November 5, 1971, and January 30,
1972. In its answer , Respondent denies the commission of
any unfair labor practices.
On October 26, 1971, a petition for a representation
election was filed by the Union in Case 10-RC-8934.
I The complaint was amended at the hearing to change the date and
place of these allegations
2 Amalgamated Meatcutters and Butcher Workmen of North America,
AFL-CIO
3 The Report on Objections in its findings and conclusions lists objection
8 among those overruled and omits it from those remaining in issue The
757
Pursuant to an agreement for consent election approved on
November 5, 1971, an election was held on December 9,
1971, among the Employer 's production and maintenance
employees . The election resulted in a vote of 310 votes for
the Petitioner, 20 for the Intervenor ,2 300 for neither
Union, 16 challenged ballots, and 2 void ballots. After
investigation , eight challenges were sustained and eight
overruled. As it then appeared that no choice on the ballot
had received the majority of valid votes cast, a runoff
election was directed . That election was held on January
27, 1972, and resulted in a vote of 213 for the Union, 344
against the Union, 2 void ballots, and 47 challenged
ballots. On February 3, 1972, the Union filed timely
objections to the runoff election . After an investigation, the
Regional Director issued a Report on Objections in which
he overruled objections 3, 4, 5, 6, 7, 9, and a portion of
objection 10. With respect to objection 1, 2, 8, and the
remainder of 10, he found that the evidence submitted
during the investigation raised substantial and material
issues of fact which could best be resolved after a hearing.
Accordingly, he directed that Case 10-RC-8934 be
consolidated with 10-CA-9374 for purposes of hearing,
ruling, and decision with respect to those objections.3
Objections 1, 2, and 10 raise essentially the same issues as
the allegations of the complaint . Objection 8 alleges that
the Employer turned away two prospective voters who
came to the plant gate on election day.
A hearing in the consolidated cases was held before me
at Oglethorpe, Georgia, on May 3 and 4, 1972. At the
conclusion of the hearing , oral argument was waived, and
the parties were given leave to file briefs which have been
received from the Charging Party and Respondent.
Upon the entire record in this case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent , a Georgia corporation , has its office and
place of business at Montezuma, Georgia, where it engages
in the manufacture , processing, distribution, and sale of
frozen foods. During the past calendar year , a representa-
tive period, Respondent sold and shipped products valued
in excess of $50,000 directly to customers located outside
the State of Georgia. I find that Respondent is an employer
within the meaning of the Act and that it will effectuate the
policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
order directing hearing also fails to include objection 8 However, the body
of the report clearly states that objection 8 raises material and substantial
issues affecting the results of the election which may be best resolved after a
hearing Accordingly , it seems clear that the concluding portions of the
report contain an inadvertent error in failing to list objection 8 among the
objections to be heard
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Respondent has two plants and three warehouses in
Montezuma, Georgia. One plant is known as the main
plant and the other is known as the Gold King plant, about
one half mile away. Respondent is a subsidiary of
Seabrook Foods which either directly or through other
subsidiaries operates frozen food processing plants in New
Jersey, Texas, California, and Florida. Employees at the
New Jersey and California plants are or have been
represented by unions.
The Montezuma operation is seasonal, employing from
500 to 800 employees, depending upon the time of year.
About 60 percent of its employees are female and at least
68 percent are black. A majority of its supervisors are also
black. The educational level of Respondent's employees is
low, and most of its employees are unskilled. Respondent
is the largest employer in the area, and total nonfarm
employment in the area is between 1,300 and 1,500.
B. The Warning to Mollie Butler
Before the first election, Mollie Butler worked in the
poly-repack department on a handline. Employees on this
line repacked in individual containers produce that
previously had been frozen in bulk. Theirjob was to place
the product in bags and to weigh them. About nine
employees worked in close proximity with one another on
this line.
One morning, about a week before the first election,
Butler was called off the line into the office of Kato
Harvey, Jr., a supervisor in the department. Personnel
Director Studdard and Harvey were present. Studdard told
Butler that he had a complaint about her "running her
mouth" on the line about the Union, that he didn't "give a
damn how she felt about the Union," that she could talk
about it at breaks or lunchtime, but that as long as
Respondent was paying her, they expected her to do her
job and let others do theirs. Butler denied talking about the
Union during worktime. Studdard told her that if she did
not do as he asked and if he heard another complaint, he
would see to it that she was dismissed.' This was the only
time that Studdard came to the department to talk to an
employee.
Studdard's warning to Butler followed a conversation he
had with Line Supervisor Trice the previous day after a
supervisors' meeting. Trice told him Butler was talking
about the Union on thejob and that someone who worked
across from Butler did not want to hear any more about it
and wanted someone to stop Butler. Trice told him that she
had tried to stop Butler, but that Butler did not pay any
attention to her or the other supervisors. Studdard did not
talk to Harvey before talking to Butler and did not know
whether Harvey tried to stop Butler from talking.
4 Butler, Studdard, and Harvey all testified to this conversation
According to Butler, Studdard warned her simply for talking about the
Union without limiting the warning to talk during worktime However, she
also conceded on cross-examination that Studdard told her she could talk
about the Union on breaks or lunchtime, but not during worktime I have
credited Studdard as to what he said His testimony is substantially
corroborated by that of Harvey
The complaint alleges that Studdard unlawfully threat-
ened Butler with discharge and told Butler she could not
talk about the Union at any time on Respondent's
premises. I have rejected Butler's version of the incident
and find that she was warned only against talking about
the Union during worktime and threatened with discharge
should she again do that. However, the question remains
whether the more limited restriction and threat interfered
with employee rights. Respondent contends that Butler
violated an unwritten rule against talking of any kind while
employees were at work and that the restriction and threat
were justified.
There is testimony by Harvey that Respondent sought to
keep talk on, the line to a minimum because it interfered
with work. However, it is abundantly clear that efforts to
stop talking were largely unsuccessful and that the rule, to
the extent that it existed, was regularly violated by all
employees. When Studdard spoke to Butler , he warned her
only about talking about the Union and said nothing to her
about talking on the job otherwise.5 Although all employ-
ees were regularly told to stop talking while working, there
is no evidence that any other disciplinary action was taken
against them for talking or that any employee had
previously been threatened with discharge for failure to
comply. In the light of these facts and the employee
complaint which Trice reported to Studdard, I find that
Studdard warned Butler and threatened her with discharge
not for the purpose of stopping her from talking in general
while she worked but to stop her from talking about the
Union during worktime.
While Respondent could lawfully enforce discipline
during working hours and stop any talking, Studdard
singled out Butler for warning because of the subject
matter she chose to talk about. The clear import of this
warning was that talking about the Union was a more
serious infraction than just plain talking on the job. As
Butler was a strong supporter of the Union and Respon-
dent's opposition to the Union was well known to the
employees, I find that Studdard's warning to Butler
violated Section 8(a)(I) of the Act .6
C. The Alleged Threats by Kato Harvey, Jr.
Kato Harvey, Jr. was assistant manager of the poly-
repack department. Until January 7, 1972, that department
was located at the Gold King plant. On January 7, the
department closed down for a 2-week period to permit its
relocation in the main plant where new processing
equipment was to be installed and one of its handlines was
to be eliminated. There is no contention that these changes
were made for anything but ordinary business reasons
On several occasions before the move of the poly-repack
department, Harvey spoke to the assembled employees in
the department about the election. These talks were given
as employees returned from lunch and each lasted about 5
5 Harvey testified that Butler was less responsive to other supervisors
than other employees when told to stop talking, but there is no indication
that Studdard said anything to her about that or about Trice's report to him
that Butler did not pay attention to her
6 The Coca-Cola Company, Foods Division, 196 NLRB No 137, Louisville
Chair Company, Inc, 161 NLRB 358, 362-363, enfd 385 F 2d 922 (C A 6)
SOUTHERN FROZEN FOODS, INC
minutes. There were approximately 50 employees in the
department who were asked to stop work and listen to
Harvey. Harvey spoke without a prepared text. The
complaint and evidence focus upon the last of the speeches
given by Harvey before the layoff. In dispute is the timing
of that speech and what Harvey said on that occasion
Three witnesses for the General Counsel testified that
Harvey spoke to them on January 7, the day of the
shutdown. Harvey denied that he was at the Gold King
plant after lunch that day and testified that he last spoke to
the employees sometime in December. Other employees
who testified for Respondent agreed that Harvey did not
speak to them on January 7 and testified that he might
have spoken to them in January, but did not remember
exactly when he spoke to them I accept Harvey's
testimony that he did not speak on January 7. However, I
find it unnecessary to pinpoint the exact date of Harvey's
last speech, for it is clear that it was in either late
December or early January and between the two elections.
Of the witnesses who testified concerning the speech,
Harvey appeared to have the best recollection of what he
said, and the others all reflected difficulties in recollection
to a considerable extent. Harvey himself testified that he
mentioned topics which none of Respondent's other
witnesses recalled. Two of the General Counsel's witnesses
were no longer employed by Respondent. One of them was
an active union supporter, whose layoff the Union had
protested and much of whose testimony was uncorroborat-
ed despite the fact that some 50 employees heard the
speech. The other had almost no recollection of what
Harvey said. The third witness for the General Counsel
appeared to have partial recollection of Harvey's speeches,
but his testimony tended toward vagueness and he seemed
to confuse remarks about the Union with statements about
the layoff and change of operations in the department,
which may not have been made at the same time or by
Harvey. I have concluded that Harvey's version of his
speech is the most reliable account and I have credited
him.
Harvey told the employees that he was a supervisor, that
he had to be for the Company, and that he wished they
would be the same. He told them that they were doing all
right and he thought that they could continue to do all
right and did not need a union to do better.
During the course of his remarks, Harvey made two
points which relate to the allegations of the complaint. The
first of these related to the possible loss of the packaging of
mixed turnip roots and greens which was then being done
in the poly-repack department. Apparently because of
different harvesting times for roots and greens, the
packaging of this product involved the packaging of a
mixture, part of which had been previously frozen in bulk
and part of which was fresh and unfrozen. At one time, this
product had been packaged at the plant of Seabrook
Foods, a subsidiary in New Jersey. However, after the
employees at that plant had become unionized, contract
restrictions relating to the handling of a mixture of frozen
and unfrozen produce caused the work to be moved to
Respondent's plant where it constituted a substantial
portion of the work in the poly-repack department.
Harvey initially testified as to his remarks in this
connection upon
follows:
Q.
A.
Q
A.
759
examination by Respondent's counsel as
All right. So was there anything else?
Anything else I told them?
Right . At that time.
Well I told them about the-together were
putting up about seventy-eight million pounds of
turnips with roots and so that the handline was doing
about seventy-five per cent of them. And also I thought
if they cut that out, that was sort of hurt their jobs.
Q. What do you mean "if they cut that out," Mr.
Harvey?
A. If they cutting out putting up turnips with roots
in the poly repack, they wouldn't have much to do,
wouldn't stay in business
Q. Had anything happened that made you think
they might cut out the roots?
A. Well I was told that they were putting up
turnips with roots up at Seabrook Farms and also-and
also if the Union come in, they may cut that out at
Southern Frozen Foods.
Q. Now I'm not sure I understand what you had to
say about the turnip roots. Would you tell us again
what you told your people about Seabrook and the
turnip roots?
*
A. So I told the people that worked in my
department they had enough turnip roots for three
weeks, I mean they behind. And if they cut that out,
they was cutting their job and so that mean that why
they not putting the turnip roots at Seabrook the time
the Union come in. And I figure if the Union come in
here, that'll come out with your work. That's what I
meant.
Trial Examiner: That's what you said to the people?
The Witness: That's right. That's what I said.
Q. (By Mr. Currie) Did you give any explanation
of how or why the union cut out the turnip roots at
Seabrook?
A. Well they said they didn't allow them to mix
together like we was doing down here.
Q. Didn't allow them to mix them together.
A. Yes, sir, like we was doing.
Mr. McDonald: Objection, I want to object here. I
don't think it's clear whether the witness is saying what
he understood or what he told the employees.
Trial Examiner: That can be clarified and should be.
If you can continue with the answer.
Q. (By Mr. Currie) Did you say this to the
employees at that time?
A. That's right because that was about thirty-five
per cent of my talk-job down here. You see that's a lot
of work to get out for them.
Q. Where did you get your information about the
turnip roots at Seabrook?
A. Well Mr. Williams had told us.
The packaging of the mixed turnip roots and greens was
also mentioned in a letter sent over the signature of
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's President Williams to the employees on
January 10, 1972, quoted in the summary of Respondent's
preelection communications set forth below.
It is clear from Harvey's own description of his remarks
that he made a strong and emotional appeal to the
employees for support for the Company. With respect to
the future of their work, he stressed the contribution the
turnip packing made to their steady employment and the
impact on their employment that any loss of the turnip
packing would have. Each time Harvey was asked to state
affirmatively in his testimony what he said to employees,
he omitted any statement of the reason the turnip packing
might be lost Only when specifically asked if he told the
reason to the employees did he indicate that he gave it.
Even then, it does not appear that he said more than
because of the union in New Jersey or that he explained
that contract restrictions rather than a unilateral determi-
nation by Respondent's parent led to the loss of the work
in New Jersey.
In these circumstances, I conclude that Harvey's remarks
about the possible loss of turnip packing were not a
reasoned and factual statement of what had happened in
New Jersey and implied that if the Union won the election
the work of packaging mixed turnip roots and greens might
be lost by the poly-repack department for reasons
unrelated to economic necessities or any contract the
Union might negotiate.
In these circumstances, I conclude that Harvey's remarks
about the possible loss of turnip packing were not a
reasoned and factual statement of what had happened in
New Jersey and implied that if the Union won the election
the work of packaging mixed turnip roots and greens might
be lost by the poly-repack department for reasons
unrelated to economic necessities or any contract the
Union might negotiate.
While the January 10 letter stated the case somewhat
more clearly, given the composition of Respondent's work
force, Harvey's verbal appeal in the plant was not likely to
be disspelled or nullified by the letter, particularly as the
letter itself made no reference to Harvey's remarks and
stressed the impact of restrictions on employment with
scant explanation of what they were, how they came about,
and what would have to happen before they would exist in
Respondent 's plant.
I find that Harvey's remarks about the turnip packing
work conveyed a threat of reprisal and violated Section
8(a)(1) of the Act.7
The other aspect of Harvey's testimony which requires
examination relates to remarks Harvey made about the
closing of an Armstrong plant in Macon. After Harvey
denied that he said the town would become a ghost town,8
Harvey testified that he told the employees, "You don't
want anything happen to your town like it has happen to
Armstrong up in Macon," referring to a strike in Macon
which resulted in violence and closing of the plant.
Again it is difficult to tell from Harvey's testimony
7 NLRB v Gissel Packing Co, 395 U S 575, 616-620
8 A witness for the General Counsel so testified
v Odum did not testify Williams testified that in their conversation
Maron asked how the Union got in touch with him , and Maron conceded
that he might have asked Williams that However , it appears from Williams'
testimony that this question may have been prompted by Williams' prior
exactly what he said to the employees. However, in this
case Harvey was not referring to any action by Respondent
or its parent. While Harvey undoubtedly gave only a brief
explanation of what had happened at Armstrong, he
indicated that those events were the consequence of a
strike and appealed to the employees ' personal knowledge
of those events . I do not find that standing alone Harvey's
remarks about Armstrong threatened plant closure as a
consequence of a union victory in the election . However,
they are to be considered as part of the context in which
Respondent 's campaign literature is evaluated below.
D. The Alleged Interrogation and Threats by
Gerard Maron
On the day before the runoff election, the Union by
telegram notified Respondent that Willie B. Williams,
James Felton, Willie James Odum, and Authur Mae Hilton
would be observers for the Union and requested that they
be excused from work on the following day. Late in the
day, Gerard Maron, director of warehousing and transpor-
tation for Respondent , received a copy of the telegram and
called Williams, Felton, and Odum into his office one at a
time. Williams, Felton , and Odum were three of five
employees who operated forklifts supplying and removing
materials from the production lines under the supervision
of Maron
According to Maron, he called the three men in because
he needed to know whether they intended to serve as
observers and whether he would need replacements for
them. Maron asked each of them his intentions . Williams
and Odum indicated that they did not intend to be
observers and would be at work the next day. Felton,
however, told Maron that he had given his word to the
Union and would be an observer . There is little dispute in
the evidence as to what Maron said to Williams and
Odum ,9 but there is significant conflict in the testimony of
Maron and Felton. Both agreed that Felton asked Maron
how the Company would feel if he were an observer and
whether he would put himself in a bad light with the
Company by serving. According to Maron, he assured
Felton that there would be no hard feelings if he served.
According to Felton, Maron said he would be putting
himself on the spot, Felton asked if he would get fired or
anything like that, and Maron replied that he would not
necessarily get fired , but he would be putting himself on
the spot.
After speaking to the three employees in his office,
Maron went to each of them in the work area to ask them
once again their intentions so that he could get someone to
replace them if necessary.10 According to Maron, he did so
to make certain that they had understood him properly
while in the office. According to Williams, during this
second conversation , Maron said that if the Union got in,
there would be a "poor chance" about his job. Williams
testified that he asked Maron if that meant Maron would
statement that he did not know how the Union got his name
[U Maron testified only as to his second conversation with Williams and
Odum Felton testified that Maron also spoke to him a second time, and
Williams testified that Maron went to Felton after speaking to Williams in
the work area
SOUTHERN FROZEN FOODS, INC. 761
fire him, and Maron replied that wasn't it and that if he
wanted to be an observer he should not let Maron stop
him. Maron demed saying anything to Williams concern-
ing a poor chance about his job.
As between Maron and Williams, I have credited Maron.
Williams had previously told Maron he would not be an
observer, and Williams' own testimony indicates that he
may have misunderstood Maron's initial remark when
Maron spoke to him the second time. With respect to
Maron's alleged remarks to Felton in the office the issue is
closer. Unlike Williams and Odum, Felton did not disclaim
any intention to serve. Felton concededly questioned
Maron as to how the Company would feel if he were an
observer. As Felton told Maron in his office that he would
be an observer, Maron knew that he would need a
replacement for Felton and there was little reason for
Maron to question Felton a second time in the work area
unless he had reason to believe that Felton might have
changed his mind. I find that in response to Felton's
question in Maron's office, Maron told Felton he would be
putting himself on the spot by being an observer at the
election.
The complaint alleges that Maron interrogated and
threatened employees. The allegation as to interrogation
rests on Maron's questions as to the intentions of the three
employees to serve as observers and the question to
Williams concerning how the Union got his name. Maron
testified that he called the employees into his office to ask
their intentions because he needed to know whether he
needed replacements for them the next day and that he
repeated his questions in the work area because he was not
certain that Odum had understood him in the office.
Maron's explanation for his initial questioning of the three
employees is plausible and confirmed by Williams' version
of their conversation in the office. It hardly intruded on the
privacy of the employees to ask their intentions when the
Union had already notified the Employer that they would
be observers
However, while Maron may have been entitled to
question the three employees as to their intentions, he was
not entitled to use that inquiry as an occasion to attempt to
discourage Felton from serving as observer. I have
accepted Maron's versions of what he said to Williams and
Odum, both of whom told Maron that they would not
serve as observers. But I have credited Felton that in
response to his questions, Maron told him he would be
putting himself on the spot if he were an observer. This
response conveyed a threat of unspecified reprisal. Even
though Felton may not have been frightened by it, Maron's
statement violated Section 8(a)(1) of the Act.
E. Respondent's Campaign Literature
1. The facts
The complaint alleges that between November 5, 1971,
and January 30, 1972, by distribution of campaign leaflets
and materials Respondent threatened employees that a
strike would inevitably occur, that the plant would close,
and that there would be other reprisals if the Union won
the election
Both Respondent and the Union engaged in extensive
and vigorous campaigns to gain employee support for their
respective positions in the election. Both mailed letters to
employees at their homes, handed out leaflets to employees
at the plant, and made radio broadcasts over local radio
stations. Respondent also posted campaign literature on
company bulletin boards. The parties attempted to place in
evidence documentary evidence covering the entire cam-
paign between the first and second election. It is neither
possible nor necessary to reproduce all that evidence here,
but it is necessary to summarize the literature bearing upon
the issues of strikes, plant closing, and other adverse
consequences of a union victory.
a. Respondent's communications before the first
election
(1) On either November 3 or November 8, Respondent
posted a leaflet on plant bulletin boards showing photo
copies of newspaper clippings relating to a strike in an
unrelated plant in Bristol, Virginia, with several captions
superimposed above or next to them. The leaflet was
headed "WOULD YOU LIKE THIS TO HAPPEN
HERE?" The clippings and added comments depicted the
course of a strike which ended with 185 strikers replaced.
Next to one of the clippings appeared the following
comments:
The facts speak for themselves. This is not the only
place this has happened. Ask Mr. McKinney about
Bristol Door, 100 people lost Jobs here.
Also ask him why Cortrim employees did not want
their leadership any longer!
This is the man who wants to represent you! Would he
lead you any differently than he led these people?
He led them right OUT OF A JOB!
(2) On December 1, 1971, Respondent posted a leaflet
showing the photograph of a closed plant with a "For Sale"
sign in front of it. Under the picture appears the text:
NO DOUBT ABOUT IT!
The Union won its demands in this meat-packing
plant-but they forced the plant to close.
Closing the plant (and its cattle pens ) may have
sweetened the air in this neighborhood, but it surely
soured on the Georgia workers who lost their jobs,
cattle growers who lost this market, countless mer-
chants, bankers, and others who lost these customers.
Employees, stockholders in the company, everybody
came out losers.
b. Respondent's undated communications
A number of leaflets were introduced which bear no
dates. The record indicates that these were posted or
distributed to employees between the two elections,
probably closer to the date of the first election than the
second.
(1) A cartoon posted in the plant pictured a black man
seated at a table in a room. Behind him in a corner a sign
stood bearing the legend "No Work." To his side is a
representation of Union Representative Bartlett, saying,
"Albert I'm sorry but you should have realized I was only
PROMISING 1 t " Beneath the cartoon was the caption,
"THIS COULD BE YOU""
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) Another cartoon posted in the plant was captioned,
"IS THIS IN YOUR FUTURE?" It depicted a plant on
strike with locked gates and tall grass in front of the gate,
and showed a man seated at a table, with a strike sign
behind him, and wife and child nearby. The wife asks "But
how are we going to pay our bills honey?"
(3) A leaflet stated- "VOTE NO BECAUSE . .. You
will NOT have to worry about the union calling you out on
STRIKE if the union LOSES the election ." Other undated
leaflets repeated the theme that a vote no is for no strikes,
union dues, fines, assessments , or outside interference. One
of them stated that the vote was secret and "YOU ARE
100% FREE TO VOTE NO." Another leaflet described a
strike that was called off after the strikers were replaced
and pointed out that they lost theirjobs.
c. Respondent 's communications between the two
elections
(1) A letter dated December 13, 1971,11 and mailed to
the employees initially thanked employees for their support
in the first election and announced that there would be a
runoff election. The letter continued:
We were disappointed that about 75 people that were
eligible didn 't vote. We feel sure that most of you who
didn't vote were against the, union. We ask that you be
sure to vote in the runoff . Don't let your plant go by
forfeit. Don't ruin yourjob by letting the union in your
plant . Look at the people leading this union drive. Do
you want to trust your job and your future to these
people? Do you have more confidence in them than
you do in your supervision and management?
The letter concluded with an expression of confidence
that Respondent would win the runoff election.
(2) A letter dated December 20, 1971, stated:
This past week on several occasions I was told that
some people were saying we were going to close the
plant . I want to stop that rumor. When I met with you, I
told you then that we were not going to close the plant
or move it.
The only possible loss in employment as a result of a
union would occur in the event the union should win
and come to us with some unreasonable demands. The
only reason we might have to close some line or lines is
that it would no longer be profitable to operate them.
No decision, as to what to do about our operation, that
has been made up to now has been affected one way or
the other because of union activity. The thought I want
to leave with you is that I want to run every possible
pound of product through this plant that is humanly
possible . We have a tremendous investment here, and
our intent is to use it to the fullest.
(3) A leaflet handed out with paychecks on December
23, 1971, reprinted a newspaper picture of a Santa Claus
with a caption stating that in St. Joe, Florida , Santa walked
empty sidewalks and strikes and merchants faced a bleak
Christmas because the town had been hit with a strike
against the local paper mill which was the largest employer
in the area. Below the reprint appeared:
WE HAVE SEEN THE "SEASON GREETING"
FROM MR. BARTLETT, BUT SOMEHOW HE
"FAILED" TO MENTION WHAT YOUR NEXT
CHRISTMAS COULD BE LIKE'!
(4) A letter dated December 27, 1971, signed by
Williams, generally looked ahead toward the coming year
and did not mention the Union. After reviewing some
contemplated changes and prospects for the coming year,
the letter concluded:
As has been my policy, this letter is written to keep you
informed on exactly what the thinking of management
is. It is my sincere desire that every employee be given
all this cost center makes a contribution to the profits
of our company.
It is my firm conviction that each of us-you, me and
everyone else connected with our company-must
strive harder than ever before for the good of each
individual and for the good of the company in 1972.
(5) A letter dated January 5, 1972, announced the date
and the place of the next election . It continued:
The time has come for us to talk turkey. We know we
need to make some changes, and we will once we get
this union mess out of the way. The plain facts are the
union can not do anything for you to make this a better
place to work or get you more money.
Put yourself in our position : If you have a friend who is
appreciative of what you try to do for him and another
who makes demands-which one of them are you
going to help the most? The answer is obvious-we are
human the same as you are.
If we are going to continue to grow and maintain our
operation providing jobs in Montezuma , we must have
your help You probably have not looked at the
company's side of the situation-but you should.
Believe me , what is good for the company is good for
you. Having a union would not be good for the
company-so it cannot be good for you.
The best thing you can do-if your future is here in
Montezuma and you plan on making a career working
for Southern Frozen Foods-is to vote this union out
of here once and for all. When that is done all of us can
get back to the business at hand-trying to make a
profit which is where whatever benefits you and I enjoy
come from.
The letter closed by inviting employees to bring any
questions the work possible. It is my responsibility to see
that they had to Williams or their supervisors.
(6) A letter dated January 10, 1972 , repeated the date
and place of the runoff election and urged all employees to
vote. It continued:
We have told you where the union in New Jersey, by its
restrictive demands and by its wage demands, has
helped reduce the number of employees from about
3,000 to 1,200. Could the Laborers union do the same
thing here? Why take a chance.
At the New Jersey plant the company is restricted from
running frozen and fresh vegetables together . The don't
run turnips and greens as we do. If we were restricted
like this, we would not run the 7,500, 000 pounds of
11 All letters from Respondent described herein were signed by its
president , Williams
SOUTHERN FROZEN FOODS, INC. 763
turnips and greens we ran in 1971. Think how many
hours of work and jobs would be lost. Also if the union
by unreasonable demands caused us to stop running
any particular products, we would have to permanently
lay off people. What would this do to you? We know
the men could probably travel to other towns for jobs,
but what could women get.
I ask you to think about the progress we have made in
wages and benefits over the last 5 years. If allowed to
do so, we will continue to review and improve these
items in the future.
We hope you vote `No' on January 27, 1972.
(7) On January 12, 1972 , a leaflet was either posted or
distributed stating:
VOTE NO BECAUSE .. .
Strikers have a hard time supporting their families
... NO UNION means NO STRIKES
(8) A letter dated January 14, 1972, and signed by
Williams explained why Company representatives did not
visit employees at their homes to campaign. Then it
questioned what the Union could guarantee in return for
its dues. It continued:
If they give you a promise or a guarantee, how can they
carry it out? Your Company doesn ' t have to agree to
anything the Union proposes. We won't agree to
anything we feel is bad for you or the Company. The
only thing the Union can do about it is try to force us
by a strike If you strike we have the right to replace
you. Strikes only happen in Union plants. The Union
would have to get you an extra $6.50 a month for you
to even break even. Your Company has given all the
raise Phase 2 of the wage freeze allows. No one knows
when the freeze will end.
We appreciate your help in making the Company what
it is. We feel that we would never do more for Mr.
Bartlett than we would do for you voluntarily.
Several people have asked us why we are against the
Union. We are against the Union because we know
that they can wreck the Company and reduce the
number of jobs. We have all seen what has happened at
Seabrook. We don't want that here We don't know of
a single plant where more jobs have been created by a
union. We don't know a single customer that the Union
can get us . We do know of some customers we would
lose if the Union caused us to up our prices.
The letter concludes with an attack on Bartlett and the
Union's record.
(9) A letter dated January 17, 1972, dealt with other
matters , including a response to a union demand for an
opportunity to talk to the employees at the plant on
company time . In explaining its rejection, the letter stated,
"We certainly aren't going to help them wreck your
future."
(10) On January 21, 1972, Respondent mailed employees
a leaflet captioned, "Big Daddy, The Great Fight Promot-
er." With text and cartoons the leaflet depicted the
interruption of a successful and happy relationship
between Respondent's president, Williams, and "you" (the
employees) by the appearance of Union Representative
Bartlett, referred to here and elsewhere as "Big Daddy,"
who promotes dissatisfaction, causes Williams and "you"
to fight, and walks away carrying a big bag of union dues
from a plant marked "closed" in front of which Williams
and "you" lie prostrate. The final caption reads "YOU
stand to loose (sic), not BIG DADDY."
(11) A leaflet dated January 24, 1972, and passed out at
the plant gate to employees by Respondent depicted
leading union adherents and representatives as a worthless
poker hand and Respondent 's representatives as an ace-
high straight . Beneath them appears, "IF YOU WERE
BETTING ON YOUR JOB, YOUR FUTURE, TRUTH,
AND YOUR LIFE WHICH HAND WOULD YOU
WANT???? THINK!!!! VOTE `NO,' January 27th."
(12) A letter dated January 24, 1972, urged all employees
to vote , explained again why Respondent's representatives
did not visit employees at their homes , stressed the
interrelationship of the interests of Respondent and the
employees , and concluded:
We all have our faults and certainly we all have
experienced many failures. No one is kidding me and I
don't want someone else to try to kid you into believing
that what the union is offering is better than my
intents-which have been proven.
We need each other-the way our system is today my
help is always available-don't let an outsider change
all that.
Those of you who are wise , and I honestly feel most of
you are, will gratefully accept the concerned efforts of
those who really care about you. This is a day when we
cannot make it alone. We should be grateful for the
unselfish concern of those around us who are not
looking to profit at our expense but help solely because
they care and are concerned.
Concern , however , is not enough unless we intend to
give ourselves in a real and positive program seeking
solution to these problems. I am concerned and if given
the opportunity through your vote on January 27-I
will continue to try to prove to you that all that has
been said by me is true.
d. The Union 's Communications
Much of the union literature ignored Respondent's
leaflets and letters and stressed the worth of union
representation to employees, support of the Union by
public figures, and the size and activity of the Union's
membership . Its few references to Respondent 's campaign
were generalized seeking to characterize Respondent's
program as one of confusion , brainwashing, and misrepre-
sentation , and attacking its credibility. At union meetings,
Union Representative Bartlett told employees that there
could be no strike without a majority vote by employees,
and expressed the belief that if the Union won the election
it could get a contract. In a radio broadcast , the Union
disclaimed any desire to reduce Respondent's profits or
disrupt its business , pointing out that the Union's record of
growth proved that it had been constructive.
2. Concluding findings
The Charging Party in its brief contends that the facts in
this case closely parallel those in the Sinclair case , decided
by the Supreme Court sub nom . N. L. R. B. v. Gissel Packing
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, Inc, 395 U.S. 575, and that the rationale of the
Court set forth at 395 U.S. 616-620 warrants the conclu-
sion that Respondent's campaign materials in this case
taken separately or as a whole were coercive and
threatening. Respondent on the other hand contends that
its communications to employees at no time exceeded the
bounds of protected free speech.
In at least one respect Respondent's campaign in this
case pursued a theme not present in the Sinclair case In its
letter of January 5, 1972, Respondent first acknowledged
the need for changes and asserted that they would be made
once the Union "mess" was out of the way Next, it made it
clear that a union victory would not produce the changes,
stating that the Union could not do anything to make the
plant a better place to work or get them more money. The
letter than put a question, the answer to which was
"obvious." The Company would do more for a friend who
was appreciative-employees who rejected the Union
-than for another who made demands-employees who
had a union make demands on their behalf. This message
was more than a generalized statement of the harm which
might flow from unionization. It was a thinly veiled threat
that Respondent would be less responsive to the employ-
ees' needs for changes if they chose the Union than if they
rejected it. It was not a simple statement that Respondent
would do as much for the employees without a union as
with; it was a statement that with a union it would do less
for them than without one.
Respondent's next to last preelection letter dated
January 24 restated this threat albeit in different and less
direct terms. The letter told employees not to believe that
what the Union was offering was better than President
Williams' proven intentions. It reminded employees that as
of then, help was always available and cautioned them not
to "let an outsider change all of that " Then it stated that
those who were wise would "gratefully accept the con-
cerned efforts of those who really care about you." It
concluded, "I am concerned and if given the opportunity
through your vote on January 27-I will continue to try to
prove to you that all that has been said by me is true "
Once again Respondent conveyed that it would try to help
those who were grateful ("a friend who is appreciative")
but that if employees did not give Respondent the
opportunity by voting the Union out, an outsider (the
Union) would change all that.
The January 5 and 24 letters threatened reprisal against
employees in the event they chose to be represented by the
Union and exceeded the legitimate bounds of campaign
propaganda
The recurrent discussion of strikes and their conse-
quences in Respondent's literature contains substantial
similarities to the facts in the Sinclair case. It is true that,
unlike Sinclair, at no time did Respondent here state in so
many words that it had no hope that the Union would not
call a strike, but in a less direct way Respondent conveyed
the same message and portrayed the dire consequences
which would ensue to the employees if there were a strike.
The January 14 letter most directly spoke of the strike
possibility at Respondent's plant. It stated that Respon-
dent did not have to agree to anything the Union proposed,
that it would not agree to anything it believed was bad for
the employees and the Company, and that the only thing
the Union could do about it was try to force the Company
by a strike. While this letter added that Respondent would
never do more for Union Representative Bartlett than it
would do for the employees voluntarily, as shown above, in
its January 5 and 24 letters Respondent told employees
that in fact it would not do as much for Bartlett as it would
do for them voluntarily. The certainty of a strike if the
Union won was also symbolically expressed by the January
21 cartoon distributed shortly before the election. Person-
alizing its cartoon characters to represent Williams, "you,"
and Bartlett, it did not merely depict what might happen at
a hypothetical plant, but showed Bartlett provoking a fight
which would cause the plant to close and leave Williams
and "you" beaten Taken together the letters and leaflet
conveyed not merely that unreasonable demands would
provoke a strike but that with the Union a strike would be
necessary even to obtain changes Respondent would make
voluntarily without a union.
The express content of these letters was not repeated in
Respondent's other literature, but the campaign literature
otherwise served only to reenforce them. Cartoons showed
employees out of work and on strike. Leaflets and letters
repeatedly stressed the harmful consequences to employees
of strikes and the importance of a "no" vote to employees'
jobs and their futures.
It is true that in December 20, Respondent specifically
disclaimed the truth of any rumor that Respondent was
going to close the plant. But in the same letter Respondent
raised the possibility of loss of employment as a result of
unreasonable demands, demands to which its literature
otherwise indicated it would never accede, and its January
5 letter made it clear that even reasonable demands would
be resisted by Respondent. Thus, its December disclaimer
may have been effective to discount any rumors that
Respondent would close its plant in direct retaliation
against the union activity, but it hardly served to negate the
thrust of its argument that a union victory would bung a
strike accompanied by replacement of the strikers or
closing of the plant.
These communications were not predictions "carefully
phrased on the basis of objective fact to convey an
employer's belief as to demonstrably probable conse-
quences beyond his control." 12 Rather they directly
conveyed that Respondent would "take action solely on
[its] own initiative for reasons unrelated to economic
necessities and known only to [It]" 13 to resist demands for
changes that Respondent might make in the absence of a
union and leave the Union with a strike as its only
alternative carrying with it the probable result of loss of
jobs or a plant shutdown. The conclusion follows that
Respondent intended "to threaten to throw employees out
of work regardless of the economic realities," 14 if the
Union won the election. I find that Respondent's written
communications to its employees during the preelection
12 NLRB v Gissel Packing Company, Inc, supra at 618 'a Id at 619
11 Ibid
SOUTHERN FROZEN FOODS, INC. 765
period violated Section 8(a)(1) of the Act as alleged in the
complaint.15
IV. THE OBJECTIONS TO THE ELECTION
Objections 1, 2, and 10(a) raise the same issues as the
allegations of the complaint. As I have found that between
the two elections Kato Harvey, Jr., threatened employees
in the poly-repack department with loss of work if the
Union won the election and Respondent's written commu-
nications to employees threatened the inevitability of a
strike, plant closure, and other reprisals, I find merit in
objections 2 and 10(a) and will recommend that they be
sustained.
There remains for consideration objection 8 which
alleges that Respondent interfered with the election by
restricting the access of employees to the polls.
There were approximately 770 eligible voters in the
runoff election, including some who were laid off. Polling
places were provided at the main plant and at the Gold
King plant. On the day of the election, Personnel Director
Studdard gave Plant Security Officer Haughbook a list of
39 laid-off employees who were eligible to vote at the main
plant and told him they should be admitted to the plant to
vote. From 2 or 3 p.m. until 7 p.m., night superintendent
Earl Johns and Assistant Personnel Director Sipp English
stayed at the main plant gate to assist Haughbook in
identifying those who presented themselves to vote
Twenty-three employees whose names were on the list
appeared and were accompanied to the polls by Haugh-
book in two groups. Haughbook was away from the gate
with them for much of the period between 5 and 6 p.m.
Five laid-off employees whose names were not on the list
also appeared and, upon being identified by English, were
also taken to the polls to vote. One laid-off employee, Reba
McKenzie, came to the gate and asked Johns if she were
eligible to vote. Johns asked her if she had been eligible to
vote in the first election. When she said no, Johns told her
she would not be eligible to vote in the runoff election, and
she left.16
There is disputed testimony as to whether two additional
employees sought entry to the plant to vote and were
turned away. Although both Johns and English both
denied that anyone else was turned away, I credit Martha
Collier that she and Ola Kiegler appeared at the gate at
around 5:30 or 6 p.m when Haughbook was absent from
the gate Gwendolyn Jackson, a nonemployee who had
assisted Respondent in its campaign, was standing near the
gate. Collier and Kiegler asked Jackson if they could vote.
Jackson asked Johns. Johns asked for their names, said
their names were not on the list, and that if they had not
worked that year they could not vote. Collier and Kiegler
said nothing more and left.17 Collier had last worked at the
Gold King plant and was aware that there was also a
polling place at that plant. Collier's name was not on the
15 See also Bancroft Manufacturing Company, Inc, 189 NLRB 619
' Johns and English so testified
" Johns and English testified that they turned no one away at the gate
other than McKenzie and that they could not recall seeing Collier or Kiegler
at the gate However, Collier seemed certain identifying Johns and English
as present at the gate and Haughbook as not present The time of her
appearance at the gate coincides with Haughbook's testimony as to his
absences accompanying voters to the polls In addition to laid-off
eligibility list at either plant, but Kiegler's name was on the
Gold King plant eligibility list. Collier and, apparently
Kiegler, did not go to the Gold King plant to see if they
could vote there.
The Board has held that its challenge procedure
"generally guarantees the right to every individual who
asserts other than a totally frivolous claim to employee
status to appear at the polls and cast a ballot, even though
his name may not appear on the eligibility list." 18 It is not
for the employer to determine eligibility, but for the Board
upon the employer's challenge. Even in the absence of
evidence that voters who were turned away were in fact
eligible to vote, the Board has found merit in objections
based on a denial of access to the polls.19
Here there is evidence only that three laid-off employees
were denied access to the plant. Two of them appeared at
the wrong polling place, but if they had not been denied
entry to the polls they might have learned that they were to
go to the Gold King plant. Unlike the two cases cited
above, even if all three, as well as all the challenged voters,
had been found eligible, it does not appear that their votes
could have made any difference in the outcome of the
election which involved a large number of employees.
There is no suggestion that any substantial number of
prospective voters may have been similarly deterred from
voting or that any of those who voted or other prospective
voters were affected by these incidents. Were this the only
basis for setting the election aside, I would be reluctant to
recommend that a new election be held in these circum-
stances. However, as I have found merit in other objections
and recommend that a new election be held in any event, I
will recommend that this objection be sustained in order to
stress the importance of the Board's guarantee of access to
the polls and the necessity for Respondent to follow
procedures which will implement that guarantee in the next
election.
On the basis of these findings, it is my decision that
Objections 2, 8, and 10(a) to the January 27, 1972, election
have merit. I recommend that they be sustained and that
the election be set aside.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
THE REMEDY
Having found that Respondent violated Section 8(a)(1)
employees who were eligible to vote, a large number of other employees
passed through the gate while Johns and English were there I am persuaded
that Collier was truthful in her testimony concerning her appearance and
brief conversation at the gate
' Ace Letter Service Co, 187 NLRB 581
19 Ace Letter Service Co, supra. Alabaster Lime Company, 190 NLRB No
113
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
The Charging Party contends that the unfair labor
practices found above make this an "exceptional" case
marked by "outrageous " and "pervasive" unfair labor
practices in which a bargaining order should be entered
even in the absence of any inquiry into the majority status
of the Union, citing N L.R B v. Gissel Packing Company,
Inc., 395 U.S. 575, 613-614; N.L.R.B. v. S. S. Logan
Packing Company, 386 F.2d 562, 570 (C.A. 4); and
N.L.R B v. Heck's Inc., 398 F.2d 337, 338 (C.A. 4).
Respondent contends that even assuming that every
allegation of the complaint were sustained , such a remedy
would not be appropriate in this case . The General
Counsel has not requested any unusual remedy and has
taken no position with respect to the Charging Party's
contention.
While the cases relied upon by the Charging Party
indicate that a bargaining order might be an appropriate
remedy in such exceptional cases, the Board since Gissel
has declined to issue a bargaining order absent proof of
majority in cases in which the unfair labor practices found
were clearly as outrageous and pervasive , if not more so,
than here.20 Pursuant to these decisions , I shall not
recommend issuance of a bargaining order in this case.
The question remains whether short of a bargaining
order any other unusual order should be recommended. In
The Loray Corporation, supra, the Board ordered that
several actions be taken by the Respondent in addition to
the usual posting of notices to insure dissipation of the
effects of the employer's unfair labor practices. While the
variety of unfair labor practices found in that case was
greater than those found herein, there can be little doubt
that here also Respondent 's unlawful communications
reached every member of the unit in which the election was
conducted . While there is no evidence of unlawful speeches
to employees by Respondent's president, practically all of
the many letters sent to employees were sent over his
signature , and those letters themselves contained the
foundation for the finding that Respondent's communica-
tions violated the Act. Therefore it is appropriate here, as
in Loray, to order that the "Notice to All Employees" be
signed by Respondent's president in whose name the
unlawful threats were made . In addition , as Respondent's
letters and other literature were mailed to employees at
their homes and as Respondent ' s operations are to some
extent seasonal , it is appropriate to order that Respondent
mail copies of the signed notice to employees at their
20 The Loray Corporation, 184 NLRB No 57, GTE Automatic Electric,
Inc, 196 NLRB No 134 See also Ship Shape Maintenance Co, Inc, 189
NLRB 395, Heck's Inc , 191 NLRB No 146, Tarrant Manufacturing
Company, 196 NLRB No 119 The Union asserts that here , unlike those
cases , the vote in the first election on December 9, 1971, showed that a
majority of the employees favored representation by a union , since out of
638 valid ballots cast by eligible voters , 310 voted for the Union and 20
homes so that all employees may have a chance to read it
at their leisure and to insure that employees who are absent
due to layoff or other reasons during the posting period
will be adequately informed 21
Moreover, as many of the leaflets reinforcing Respon-
dent's threats were posted on the plant bulletin boards
during the preelection period and as it is recommended
that a new election be conducted, it is appropriate to order
further that the Union be given reasonable access to
Respondent 's bulletin boards and all places where notices
to employees are customarily posted . As it is recommended
that a new election be conducted, it is appropriate that
such access be given the Union during the preelection
period from the time the Regional Director issues his
decision on the objections until such time as the new
election is conducted.
CONCLUSIONS OF LAW
1. Southern Frozen Foods, Inc., is an employer
engaged in commerce within the meaning of Section 2(2),
(6) and (7) of the Act.
2. Laborers' District Council of Georgia and South
Carolina, affiliated with Laborers' International Union of
North America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By threatening employees that work would be lost,
that a strike would be inevitable , causing loss of employ-
ment or closing of the plant, and that other reprisals would
be taken if the Union won an election , and by threatening
employees with discharge for union activity under color of
enforcement of a discriminatonly applied rule against
talking while at work and with other reprisals for union
activity, Respondent has engaged in and is engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) of the Act.
[Recommended Order omitted from publication.]
ORDER SEVERING AND REMANDING
Case 10-RC-8934
Pursuant to the terms of the Order Directing Hearing
and Consolidating Cases issued by the Regional Director
for Region 10 in Case 10-RC-8934, it is ordered that Case
10-RC-8934 be, and it hereby is, severed and remanded to
the Regional Director for Region 10 for further action in
accordance with Section 102.62(a) of the Board 's Rules
and Regulations.
voted for the Intervenor However , the fact that an employee votes for one
labor organization does not mean that he would have voted for another
Moreover, the Regional Director's report indicates that there were 834
employees eligible to vote in that election
21 The Loray Corporation , supra, Braswell Motor Freight Lines , Inc, 196
NLRB No 10