NLRB v. Sunnyland Packing Company

• Decision Date: 12 December 1966
• Docket Number: No. 22853.,22853.
• Citation: 369 F.2d 787
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SUNNYLAND PACKING COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

369 F.2d 787 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SUNNYLAND PACKING COMPANY, Respondent.

No. 22853.

United States Court of Appeals Fifth Circuit.

December 12, 1966.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Elliott Moore, Atty., N.L.R.B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, N.L.R.B., for petitioner.

O. R. T. Bowden, Jacksonville, Fla., Hamilton & Bowden, Jacksonville, Fla., for respondent.

Before BROWN, GEWIN and GOLDBERG, Circuit Judges.

GEWIN, Circuit Judge:

The National Labor Relations Board petitions for the enforcement of its order issued against respondent, Sunnyland Packing Company, for violations of Section 8(a) (1) and (3) of the National Labor Relations Act, 28 U.S.C.A. § 158 (a) (1), (3) (1964 ed.). The order is based on the Trial Examiner's findings of unlawful interrogation, threats and solicitation and the discharge of employee Howard Fulghum because of his union interest and activity. The order requires respondent to cease and desist from engaging in conduct violative of the Act and to reinstate, with back pay and interest, the discharged employee.

Respondent, Sunnyland Packing Company, a Georgia corporation located at Thomasville, Georgia, is engaged in the processing, sale, and distribution of meat products. Respondent's production and maintenance employees have been the object of a number of union organizing campaigns, and they have participated in at least one Board-conducted election, in 1955. The most recent campaign by the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, began during January 1963 and continued until at least March 1964. During that time union activity was greatest in early 1963 and then again in early 1964. By registered letter dated January 11, 1964, the union sent respondent a list of 189 of respondent's employees who, according to the letter, had signed union authorization cards.¹ On March 31, 1964, the union filed charges against respondent alleging that from about January 11, 1964, respondent's supervisory personnel had unlawfully interrogated its employees about their union interest and activities and had unlawfully solicited employees to withdraw from the union. The union also alleged that respondent had discriminatorily discharged six employees because of their union activity. General Counsel issued a complaint on May 25, 1964, charging that the alleged statements by respondent's supervisors were in violation of Section 8(a) (1) of the National Labor Relations Act and that the discharge of one employee, Howard Fulghum, violated Section 8(a) (3) of the Act. A hearing was held on July 14, 1964, and the Trial Examiner found that respondent had committed unfair labor practices in violation of Section 8(a) (1) and (3) and ordered respondent to cease and desist from any practices which would violate the Act and to reinstate Howard Fulghum with back pay. On March 1, 1965, the National Labor Relations Board adopted the findings, conclusions and recommendations and order of the Trial Examiner. 151 NLRB No. 44. On August 2, 1965, the Board filed this petition for enforcement of the order pursuant to Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 160(e) (1964 ed.). We grant the petition for enforcement of the Board's order as modified.

Respondent challenges this petition for enforcement by contending that certain statements allegedly made by respondent did not interfere with, restrain or coerce the employees in their drive for unionization and that Howard Fulghum was not discharged because of his union activities. Respondent also contends that the Board's order prohibits activities which are not unlawful under the Act, and prohibits unlawful acts not found to have been committed by Respondent; therefore, it is contended the order is too broad under the facts of this case.

In accordance with the statutory standard² our review of the Labor Board's decision is limited to a determination of whether on the record as a whole there is substantial evidence to support the findings of the Board. A finding of substantial evidence cannot be made merely on the basis of evidence which in and of itself justifies the Board's decision, but must take into account that body of evidence opposed to the Board's view. Universal Camera Corp. v. N.L. R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1950).

Based on the uncontradicted testimony of various employees the Board found that during the months of January, February and March, 1964, several of respondent's supervisors committed acts of interrogation, threats and solicitation in violation of Section 8(a) (1). Such testimony revealed that respondent's supervisors had told employees that they were "doing the wrong thing" and "would be sorry" in regard to their union interest, thereby threatening economic or other reprisals for continued union activities. Employee testimony also demonstrated that respondent's supervisors had on a number of occasions interrogated employees about their or other employees' union activities or leanings. And finally, such testimony brought to light the various instances of supervisory solicitation of employees to withdraw from the union.

In evaluating the above testimony the Trial Examiner took into consideration the context in which the several statements were made,³ and the demeanor of the various witnesses. He also considered the fact that since there were 600 to 700 employees in respondent's plant, the acts complained of could be found to be so isolated as to call for no remedial action; but in view of the fact that the testimony revealed eight separate incidents involving six different supervisors and constituting twelve distinct violations, such acts were not found to be "isolated."

After considering all of the foregoing the Board concluded that anti-union animus⁴ was self-evident in the conduct of the supervisors and this conduct, interrogations, threats, and solicitations, was directed at the employees' self-organizational efforts and, as such, constituted interference with, and restraint and coercion of employees in the exercise of their rights under Section 7 of the Act.

Respondent has objected to the Board's decision on the grounds that neither the words used nor the circumstances surrounding the alleged unlawful conversations amounted to interference, restraint or coercion, but are protected statements under Section 8(c) of the Act. It also argues that the statements were casual inquiries or opinions and too inconsequential in their impact to constitute a violation or warrant a Board remedy.

We have carefully reviewed the entire record. The testimony of the employees as to the statements made by respondent is essentially uncontradicted, and these statements quite clearly constituted unlawful interrogation, threats and solicitation and were not casual and innocuous conversations. These acts took place at a time when the union was undergoing a renewed effort towards organization of respondent's employees and were specifically aimed at coercing certain employees to abandon their organizational drive. As such they exceed the limits of Section 8(c). We therefore conclude that there is substantial evidence on the record as a whole to support the Trial Examiner's findings that such conduct violated Section 8(a) (1). N.L. R.B. v. Camco, Inc., 340 F.2d 803, 804-847 (5 Cir. 1965); N.L.R.B. v. J. Weingarten, Inc., 339 F.2d 498, 502 (5 Cir. 1964); N.L.R.B. v. Harbison-Fisher Mfg. Co., 304 F.2d 738, 739 (5 Cir. 1962); N.L.R.B. v. Hill & Hill Truck Line, 266 F.2d 883, 885-886 (5 Cir. 1959).

The events comprising the discharge of employee Howard Fulghum are rather involved and must be stated in some detail. Fulghum was first employed by respondent late in August 1959, and assigned to work in the beef cooler on the night shift. In mid-1963 he requested a job as "beef tagger" and in July 1963 his request was granted. Fulghum held that position until he was discharged. Essentially his duties were to receive telephone messages from salesmen regarding the particular preferences of individual customers as to the kinds and qualities of meat ordered, and then make selections from among the meat ready for shipment and earmark them for specified customers. Respondent had no complaints about Fulghum's performance as a beef tagger; on the contrary, he was considered a good employee. On February 13, 1964, Donny Lewis, Fulghum's foreman, took him to the office of Hosea Vann, Vice President/Plant Superintendent. There, Vann told Fulghum that a salesman's job was open, and he thought Fulghum would make a good salesman, and that he wanted Fulghum to try the job. The Trial Examiner found that there was indeed an opening for a salesman at that time and that Vann, in considering persons to fill the vacancy, gave thought to the qualifications and potential of Fulghum and three or four other individuals before deciding that Fulghum was the "best qualified." In accordance with the above findings, the Trial Examiner concluded that Vann's decision to offer Fulghum a sales job was based upon considerations unrelated to unionism.⁵ Fulghum was then sent to the sales office where he talked to Assistant Sales Manager "Red" Stringer in the presence of Sales Manager William Kennington. Stringer inquired about his home situation and Fulghum replied that he had just bought a new home into which he planned to move the following week.⁶ Stringer then gave specific information to Fulghum about the duties of this job. He would start as a trainee. At least at first he would be required to attend sales meetings at Miami, Savannah, and Augusta; expenses for these trips would be defrayed by respondent with the exception of the first trip. For the present he would not be given a new automobile but could ride the bus or with other salesmen. He was told that, as a salesman-trainee, he would...