Southern Frozen Foods, Inc.Download PDFNational Labor Relations Board - Board DecisionsMar 28, 1973202 N.L.R.B. 753 (N.L.R.B. 1973) Copy Citation 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 Copy with citationCopy as parenthetical citation