Abouris, Inc.

National Labor Relations Board - Board Decisions

Sep 11, 1979

244 N.L.R.B. 980 (N.L.R.B. 1979)

DEC(ISIONS OF NATIONAL LABOR RELATIONS BOARD
Abouris, Inc. and International Ladies' Garment
Workers' Union, AFL-CIO. Cases 11 CA 7829
and 11 RC 4549
September II, 1979
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CIIAIRMAN FANNING AND MEMBERS JENKINS
AND PNELL.O
On May 29, 1979, Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that Respondent, Abouris, Inc., Marion, South
Carolina, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
DECISION
FRANK H. ITKIN, Administrative Law Judge: The above
consolidated cases were heard before me in Marion, South
Carolina, on Feburary 6, 1979. Upon the entire record in
this proceeding, including my observation of the witnesses,
and after due consideration of the briefs of counsel, I make
the following findings of fact and conclusions of law:
FINDINGS OF FACT
A. Introduction
It is undisputed and I find and conclude that the Com-
pany is an employer engaged in commerce within the
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
In the absence of exceptions, we adopt, proforma, the Administrative Law
Judge's findings with respect to conversations involving Garth Holmes, Pau-
line Green, and Rebecca Faulk.
meaning of Section 2(6) and (7) of the Act. It is also undis-
puted and I find and conclude that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
On June 30, 1978, the Regional Director for the Board ap-
proved a stipulation executed by the Union and the Com-
pany for certification upon a consent election in Case I I-
RC 4549. Thereafter, on August I1, a secret-ballot election
was conducted among the agreed-upon unit of the Compa-
ny's production and maintenance employees at its Marion
facility. There were approximately 80 eligible voters 28
cast ballots for the Union; 34 cast ballots against the par-
ticipating labor organization; and 5 ballots were chal-
lenged. On August 16, the Union filed timely objections to
conduct affecting the results of the election. On October 25,
the Union withdrew four of its seven objections. The re-
maining objections state:
Objection 3. Employer and/or agents of the em-
ployer interrogated eligible voters regarding their
union sentiments.
Objection 4. Employer and/or agents of the employer
threatened to close down the plant and throw employ-
ees out of work as retaliation for a favorable union
vote in order to influence the outcome of the election.
Objection 6. Employer and/or agents of the em-
ployer promised eligible voters benefits and improved
conditions if the outcome of the election was favorable
to the Company in order to influence the outcome of
the election.
In the meantime, on August 28, 1978, the Union also
filed unfair labor practice charges against the Company in
Case 11 CA-7829. Thereafter, on October 19, the Regional
Director issued an unfair labor practice complaint. On Oc-
tober 30, the Regional Director issued a report on the ob-
jections in Case II1-RC-4549 and an order consolidating
the representation and unfair labor practices cases. The Re-
gional Director determined that: (I) Objections 3, 4. and 6
raise material and substantial issues which can best be re-
solved by a hearing; (2) the evidence offered by the Union
in support of its objections is identical to that offered in
support of the unfair labor practice charges; and (3) conse-
quently, the two cases should be consolidated for hearing
and decision. The evidence adduced at the hearing is sum-
marized below.
B. The Company's Conduct Prior to the Election
Pauline Green, formerly employed by the Company as a
sewing machine operator for 5 months, testified that on or
about August 10, 1978, Plant Manager Garth Holmes
spoke to her and coworker Rebecca Faulk at work. Green
recalled:
Well, Mr. Holmes came up to my sewing machine and
he asked me did I have any questions about what was
going on, and I told him I did not. So he went on to
say, "Remember, Rosie and Bobby and myself are de-
pending on you Friday."
Green claimed that "Rosie" referred to her "supervisor"
and "Bobby" was the "plant superintendent." Green could
not recall anything further. Green was then asked: "Did he
244 NLRB No. 164
980
Johnson could not remember anything further about this
conversation. She then was asked: "Was anything men-
tioned in that conversation about production?" Johnson re-
sponded: "Yes. She [Christmas] told me that I know the,
haven't been bothering me about making production."'
Priscilla Foxworth. employed by the Company as a sew-
ing machine operator, testified that about August 11, 1978.
she had the following conversation with Supervisor Christ-
mas:
Well, Ms. Christmas came to me and she said. Priscilla.
... I would like to talk to you ... like friend to friend,
not as employee to employee. I said, yes. I was sewing
and I stopped. she said that it . . . was almost time for
us to vote. She said that if the Union came in that she
couldn't stick her neck out for a lot of girls like she had
been doing. She said because if the Union came in that
they would have shop stewards and she couldn't do
that anymore.
Foxworth gave the following example of how supervisor
Christmas "stuck her neck out for" the employee:
Well, if I was on something that I couldn't make pro-
duction on, she [Christmas] would change me to some-
thing that was more easier for me to do.
Supervisor Brenda Christmas denied that she "ever had]
any conversations with Geraldine Blackman on the subject
of the Union." Christmas claimed that on election da, Au-
gust I I.
We [the supervisors] went to Mr. Holmes' office, about
9 and spent the time [there] until after the election.
In addition, Christmas denied "ever" having a conversation
"on the subject of the Union" with Priscilla Foxworth.
However. Christmas admitted that she had discussed the
Union with Jacqueline Johnson. Christmas explained:
At her [Johnson's] machine. I spoke to her about the
card. I told her that just because she had signed the
card, it didn't mean that she was a member of the
Union, and that she could probably get it back i she
wanted it, and that was the extent of it.
Johnson did not "respond."'
I On cross-examination. Johnson acknowledged that she had accompanied
the union representatives to Plant Manager Holmes' office when recognition
was demanded and that this request for recognition was prior to the aboue
conversations with Supervisor Christmas She acknowledged that her "par-
ticipation in union activities was no secret." Johnson placed er to conver-
sations with Christmas on August I and 3. 1978 As for the August 1 conser-
sation. Johnson recalled on cross-examination
I was sitting there at my sewing machine working and Brenda ('hrst-
masjust walked up to me and said. "You know the plant will close It the
Union comes in."
As for the August 3 conversation, Johnson recalled on cross-examination:
I was at my sewing machine working. and Brenda Christmas came up to
me and asked me how was I going to vote I didn't say anything. I kept
on working. Then, Brenda told me not to let Becky brainwash me. that
I had a mind of my own and I could think for msself..
Johnson acknowledged "that's all that was said .
I On cross-examination. Christmas was asked: "And you admit talking to
one of these employees about getting her Union card hack.. How did you
happen to single this one out to talk to her" Christmas responded: "I like
Jackie. and I just thought I would talk to her about it "
[Holmes] say anything about 'making it better' or 'making
things better?'" Green respondended: "He said he would
try to make things better."
Rebecca Faulk, employed by the Company as a sewing
machine operator, testified that about August 10, 1978.
Plant Manager Holmes had the following conversation with
her and coworker Green:
Mr. Garth Holmes came to Pauline Green's machine
and he sat between both of us. He asked, "is [there]
any questions," and she [Green] said "no, I don't have
any." He said, "On Friday, I'm depending on you and
I promise I'll make things better."
Faulk "did not hear any more of the conversation that went
on....
Geraldine Blackman, employed by the Company as a
sewing machine operator, testified that about August II1.
1978, Supervisor Brenda Christmas had the following con-
versation with her:
She [Christmas] came up to my machine and said,
"Geraldine, I want you to help us." And. I told her
that I'll do what I think is right. And Brenda Christ-
mas went on to say that if the Union win[s] that she
and Bobby couldn't help me anymore.
Blackman explained that "Bobby" was "the assistant man-
ager." Furthermore, Blackman recalled that "Bobby . . .
gave me a tie-rating" in the past "to help me make produc-
tion on the operation I was doing."'
Jacqueline Johnson, employed by the Company as a sew-
ing machine operator, recalled the following conversation
with Supervisor Christmas "about two weeks before the
election in 1978:"
Brenda Christmas came up to my sewing machine. She
asked me how I was going to vote. I didn't say any-
thing. Then Brenda told me not to let [co-worker]
Becky brainwash me, that I had a mind of my own and
I could think for myself.
Johnson could recall nothing else about this conversation.
She was then asked: "Was anything said about what would
happen if the Union came in?" Johnson then responded:
"Yes, Brenda told me that the plant would close if the
Union came in."
Johnson next recalled that about August 3, 1978, she had
"another conversation" with Supervisor Christmas. as fol-
lows:
Brenda asked me, well really told me, just because I
signed one of those yellow cards, that that doesn't
mean I had to vote for the Union. Then, Brenda asked
me, if I could get the card back, would I want it, and I
said no.
* 4t
She told me if the Union came in the plant would
close.
I On cross-examination. Blackman noted that August I was the day of
the board-conducted election, and the above conversation was some 30 min-
utes to I hour "before I voted."
ABOURIS, INC. 981
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plant Manager Garth Holmes acknowledged that 'a con-
versation between Ms. Green and myself did take place"
about August 10, 1978. Holmes recalled:
Well, I approached Ms. Green and either sat down at a
bench or stopped between her machine and Ms.
Faulk's machine, but I was talking primarily to Ms.
Green at this particular time. And I told her, as I had
told the other persons that I talked to on this subject,
that we would like to count on them for their help and,
in this conversation, I reiterated to her that we were
continuing to try to make Abouris the best place in
Marion in which to work.
Holmes denied using the word "promise"-he assertedly
said that he was "trying to make it better."
I credit the testimony of Geraldine Blackman, Jacqueline
Johnson, and Priscilla Foxworth as summarized and quoted
above. Blackman, Johnson, and Foxworth, presently em-
ployed by the Company, impressed me as trustworthy and
reliable witnesses. In their testimony, they attribute to their
supervisor, Brenda Christmas, a similar pattern of opposi-
tion to the Union's organizational effort. Insofar as Brenda
Christmas has denied the statements and conduct attrib-
uted to her by Blackman, Johnson, and Foxworth, I credit
the testimony of the latter as more complete and trustwor-
thy. In making this credibility determination, I have taken
into account the fact that, at times, the memory of each of
these three employee witnesses was faulty and had to be
refreshed. However, upon the entire record, including the
demeanor of the witnesses, I am persuaded that Supervisor
Christmas in fact made the statements and engaged in the
conduct as detailed supra. In particular, I reject as incredi-
ble Christmas' assertion that she "went to Mr. Holmes' of-
fice about 9 a.m. and spent the time [there] until after the
election" on August II1.
Rebecca Faulk testified that Plant Manager Garth
Holmes stated to her and coworker Pauline Green: "I
promise you I'll make things better." Green, however, could
only recall that Holmes stated that he "would try to make
things better." Green's version of this conversation is con-
sistent with Holmes' acknowledgment that he stated that he
was "trying to make it better." Under all the circumstances.
including the demeanor of the witnesses, I am persuaded
here that Green's recollection of this conversation is more
accurate and reliable. In sum, I find that Holmes stated to
the two employees that he was "trying to make it better" at
the Employer's facility.
Discussion
The General Counsel alleges that Respondent Company
violated Section 8(a)(I) of the Act as a consequence of Su-
pervisor Christmas' interrogations, threats, and related co-
ercive conduct prior to the Board-conducted representation
election on August 11, 1978. The credible evidence of rec-
ord, as recited supra, supports these allegations. Thus, em-
ployee Johnson credibly recalled that Supervisor Christmas
approached the employee at work about 2 weeks before the
election and questioned the employee "how I [Johnson] was
going to vote." Christmas, at the same time, warned the
employee, "not to let [co-worker] Becky brainwash me" and
"that the plant would close if the Union came in." Within a
few days of this conversation, Christmas apprised Johnson
at work, "just because I [Johnson] signed on of these yellow
cards . . . doesn't mean I had to vote for the Union...."
Then Christmas pointedly asked the employee, "if I [John-
son] could get the card back would I want it...." The
employee replied "no." In this same conversation, Christ-
mas reminded the employee that "they [management]
haven't been bothering me [Johnson] about making produc-
tion... ."
In a similar vein, Supervisor Christmas apprised em-
ployee Blackman at work shortly before the election that "if
the Union win[s] . . . she [Christmas] and Bobby [also a
member of management] couldn't help me [Blackman] any-
more." Blackman understood that Christmas' statement
was in reference to assisting the employee "to help ... make
production." Likewise, Christmas warned employee Fox-
worth at work shortly before the election "that if the Union
came in ... she [Christmas] wouldn't stick her neck out for
a lot of girls like she had been doing." Foxworth also un-
derstood that Christmas' statement was in reference to as-
sisting employees to meet their production requirements.
Section 7 of the Act guarantees employees "the right to
self-organization, to form, join, or assist labor organiza-
tions. to bargain collectively through representatives of
their own choosing, and to engage in other concerted activi-
ties," as well as the right "to refrain from any or all such
activities." Section 8(a)(l) of the act makes it an unfair la-
bor practice for an employer "to interfere with, restrain, or
coerce employees" in the exercise of their Section 7 rights.
The "broad purpose of Section 8(a)(1) is to establish 'the
right of employees to organize for mutual aid without em-
ployer interference' .... " N.L.R.B. v. Exchange Parts Co.,
375 U.S. 405, 409-410 (1964). In assessing employer con-
duct under Section 8(a)(1). the Courts have noted that the
"employee is sensitive and responsive to even the most sub-
tle expression on the part of his employer, whose good will
is so necessary" for continued employment. N. L. R.B. v. The
Griswold Manufacturing Company, 106 F.2d 713, 722 (3d
Cir. 1939); N.L.R.B. v. Gissel Packing Co., 395 U.S. 575,
618-620 (1969). And the "test" of interference, restraint, or
coercion under Section 8(a)(1) is "whether the employer
engaged in conduct which, it may reasonably be said, tends
to interfere with the free exercise of employee rights under
the Act." See Time-O-Matic, Inc. v. N.L.R.B., 264 F.2d 96,
99 (7th Cir. 1959).
I find and conclude that Supervisor Christmas coercively
interrogated employee Johnson at work concerning the em-
ployee's sentiments for the Union. At the same time, Christ-
mas threatened the employee "that the plant would close if
the Union came in." Within a few days of this incident,
Christmas again coercively interrogated this employee
about her Union sentiments by asking the employee "if I
(Johnson] could get the card back would I want it." The
employee replied "no." Christmas, having unsuccessfully
attempted to persuade this employee to withdraw her union
card, warned the employee that in the past, management
had not been "bothering [her] about making production."
Such statements and conduct plainly tend to impinge upon
employee Section 7 rights, in violation of Section 8(a)(l) of
the Act. Indeed, Christmas similarly admonished employ-
982
ABOURIS. INC.
ees Blackman and Foxworth that if the Union won the
election. Christmas "couldn't help" the employees any fur-
ther in meeting their production requirements Christmas
"wouldn't stick her neck out for a lot of girls like she had
been doing." Such statements also tend to interfere with
employee protected activities, in violation of Section 8(a)(1)
of the Act.
As the Supreme Court stated in N.L.R.B. v. Gissel Pack-
ing Co., 395 U.S. 575, 616-620 (1969):
Any assessment of the precise scope of employer ex-
pression, of course, must be made in the context of its
labor relations setting. Thus, an employer's rights can-
not outweigh the equal rights of the employees to asso-
ciate freely. .... And any balancing of those rights must
take into account the economic dependence of the em-
ployees on their employers, and the necessary tendency
of the former, because of that relationship, to pick up
intended implications of the latter that might be more
readily dismissed by a more distinterested ear.
* * * . *
We therefore agree with the court below that "[c]on-
veyance of the employer's belief, even though sincere,
that unionization will or may result in the closing of
the plant is not a statement of fact unless, which is
most improbable, the eventuality of closing is capable
of proof." 397 F.2d 157, 160.... [For,] an employer is
free only to tell "what he reasonably believes will be
the likely economic consequences of unionization that
are outside his control," and not "threats of economic
reprisal to be taken solely on his own volition."
N.L.R.B. v. River Togs, Inc., 382 F.2d 198, 202 (C.A.
2d Cir. 1967).
Supervisor Christmas' statements to these employees were
"not carefully phrased on the basis of objective fact to con-
vey an Employer's belief as to demonstrably probable con-
sequences beyond [the Employer's] control...." Ibid. They
were, instead, proscribed threats.
In sum, I find and conclude that Respondent Company
violated Section 8(aXl) by the foregoing coercive state-
ments and conduct.' Furthermore, the foregoing coercive
statements and conduct occurred after the filing of the rep-
resentation petition and before the election and were, in my
view, of such a nature so as to interfere with the free choice
of Respondent's employees in the August I I representation
election. I would therefore sustain Objections 3 and 4, as
recited above. I would dismiss objection 6 as not supported
by the credible evidence of record.
CONCLUSIONS OF LAW
1. Respondent Company is an employer engaged in
commerce within the meaning of Section 2(2). (6), and (7)
of the Act.
2. Charging Party Union is a labor organization within
the meaning of Section 2(5) of the Act.
' I am not persuaded on this record that Plant Manager Holmes' statement
to employees Green and Faulk. as credited above, constituted unlawful
promises of benefit, as is alleged. I would therefore dismiss this allegation.
3. Respondent Company violated Section 8(a)(1) of' the
Act by coercively interrogating an employee with regard to
her union sentiments; by threatening an employee that the
plant would close if the employees voted for union repre-
sentation: by attempting to get an employee to withdraw
her union membership card; and by threatening employees
with more onerous working conditions if the Union wins in
the Board-conducted representation election, affecting com-
merce as alleged.
4. Respondent Company has not committed other unfair
labor practices as alleged in the complaint.
5. With respect to Objections 3 and 4 in the related rep-
resentation proceeding. I would sustain the objections. I
would, however. overrule Objection 6 as not supported b>
the credible evidence of record. Respondent. by engaging.
in the coercive conduct found above, has interfered with the
employees' exercise of a fair and free choice in the represen-
tation election conducted on August 11. 1978.
REMEDY
To remedy the foregoing unfair labor practices. Respon-
dent will be directed to cease and desist from engaging in
such conduct, and to post the attached notice.
ORDER5
The Respondent, Abouris. Inc.. Marion. South Carolina.
its officers. agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union sentiments.
(b) Threatening employees with a plant closing if the
employees chose the International Ladies' Garment Work-
ers' Union, AFL CIO, or any other labor organization, as
their collective-bargaining representative.
(c) Attempting to get employees to withdraw their union
membership cards.
(d) Threatening employees with more onerous working
conditions if the above Union, or any other labor organiza-
tion, wins a representation election.
(e) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the National Labor Rela-
tions Board.
2. Take the following affirmative action:
(a) Post at its facility in Marion, South Carolina, copies
of the notice attached hereto as "Appendix.", Copies of
said notice, on forms provided by the Regional Director for
Region II. after being duly signed by Respondent, shall be
In the event no exceptions are filed, as provided by Sec. 102.46 of the
Rules and Regulations of the Natonal Labor Relations Board. the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order. and all objections thereto shall he deemed
waived for all purposes.
I In the event that this Order is enforced b a Judgment of the Ulnited
States Court of Appeals, the words In the notice reading "Posted b? Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enlbrcing an Order of the Na-
tional Labor Relations Board"
983
DE(ISIONS OF NATIONAL LABOR RELATIONS BOARD
posted immediately' upon receipt thereof, in conspicuous
places, and be maintained for 60 consecutive days. Reason-
able steps shall he taken to insure that the notices are not
altered, defaced, or covered by any other material.
(h) Notify the Regional Director for Region II, in writ-
ing, within 20 days from the date of this Order what steps
Respondent has taken to comply herewith.
11 Is FUR IHIER ORDI)ERIi) that allegations in the complaint
not specifically found herein he dismissed.
11 IS FUR lIER ORRI)RI) that the Union's Objections 3
and 4 he, and they hereby are sustained and that the elec-
tion conducted on August I . 1978, in Case I 11 RC 4549 be
set aside.
APPENDIX
NoH-ciF TO EMPIOYFFS
PosrID BY ORDER OF THE
NAIIONAl. LABOR REI.ATI(NS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that Abou-
ris, Inc., has violated the National Labor Relations Act and
has ordered us to post this notice. We therefore notify' you
that:
WE WI1.1, NOr coercively interrogate our employees
about their Union sentiments.
WE UWI.Il. NOT threaten our employees with a plant
closing if they chose International Ladies' Garment
Workers' Union, AFL CIO. or any other labor organi-
zation, as their collective bargaining representative.
Wt WllI NOT attempt to get our employees to with-
draw their Union membership cards.
WEi wlIl.L NOT threaten our employees with more
onerous working conditions if the above Union, or any
other labor organization, wins a representative elec-
tion.
WE: wIL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed in Section 7 of the National
Labor Relations Act.
ABOURIS, IN(.
984