Aliceville Cotton Mill, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1972

200 N.L.R.B. 906 (N.L.R.B. 1972)

906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aliceville Cotton Mill, Inc and United Textile Work- DECISION
ers of America Case 10-CA-9352
December 14, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On August 28, 1972, Administrative Law Judge
Marion C Ladwig issued the attached Decision in
this proceeding Thereafter , Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed exceptions
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
attached 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 as modified
below
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that Aliceville
Cotton Mill, Inc, Aliceville, Alabama, its officers,
agents, successors , and assigns , shall take the action
set forth in said recommended Order, as so modified
In paragraph 2(a) of the Order, after the word
"Union" add "for a period of 1 year if necessary "2
' The Respondent has excepted to certain credibility findings made by
the Administrative 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 were incorrect Standard Dry Wall
Products Inc 91 NLRB 544 enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings
The Respondent has also excepted to the Administrative Law Judge s
apparent reliance as a factor in support of his credibility findings on the
fact that all four of Respondents witnesses had campaigned against the
Union Both the Board and the courts have held that the trier of the facts is
not compelled to credit the testimony of a witness , even where uncontradict
ed, especially where the witness is highly interested See Spent Sunlamp
Division Cooper Hewitt Electric Co Inc 162 NLRB 1148 1154 fn 7 1 C
Sutton Handle Factory v N L R B 255 F 2d 697 698 (C A 8)
In view of our concurrence in the Administrative Law Judge s credibility
findings including his finding that employee Johnson was not told at any
time that employee Noland made a threat with respect to Johnson we find
it unnecessary to and do not adopt his further superfluous finding that
Noland was terminated on June 25 so that any such report to Johnson
would have been in June and not in the later critical period before the
election
2 See Mar Jac Poultry Company Inc 136 NLRB 785 Burnett Construc
lion Company 149 NLRB 1419 , 1421 enfd 350 F 2d 57 (C A 10)
STATEMENT OF THE CASE
MARION C LADWIG, Administrative Law Judge This
case was tried at Carrolton, Alabama, on July 20, 1972
The charge was filed by the Umon on January 3, 1972, and
the complaint was issued on January 24, alleging that the
Company, the Respondent , on and since December 15,
1971, had refused to bargain with the Union pursuant to
the November 29, 1971, certification in the earlier
representation case The General Counsel filed a motion
for summary judgment with the Board on February 16,
1972, and the Board on February 22 issued a motion to
show cause why the motion should not be granted In its
timely response, the Company asserted that the Umon's
certification was invalid because threats by union advo-
cates before the election created "such an atmosphere of
fear and violence as to make a free election impossible "
On May 19, the Board denied the motion for summary
judgment, being of the opinion that the Company had
raised substantial and material issues as to whether the
Company's proffered evidence "is sufficient to show that a
general atmosphere of fear surrounding the election
warranted setting it aside " The Regional Director issued a
notice of hearing on May 24, 1972
The ultimate question is whether the Company's admit-
ted refusal to bargain violated Section 8(a)(5) and (1) of the
National Labor Relations Act, or whether the refusal was
justified because of an invalid certification
Upon the entire record, including my observation of the
demeanor of the witnesses , and in the absence of briefs, I
make the following
FINDINGS OF FACT
I JURISDICTION
The Company , an Alabama corporation , is engaged in
the manufacture of yarn and other textile products at its
plant in Ahceville , Alabama, where it annually ships goods
valued in excess of $50,000 directly to customers located
outside the State The Company admits, and I find , that it
is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that the Union is a labor
organization within the meaning of Section 2(5) of the Act
II ALLEGED UNFAIR LABOR PRACTICES
A Prior Proceedings
The petition in Case 10-RC-8328 was filed on July 17,
1970, and an election (directed by the Regional Director)
was conducted on September 23, 1970 The vote was 120
for and 113 against union representation , with 8 challenged
ballots The Company filed timely objections On Novem-
ber 12 , 1970, after an investigation of the challenges and
the objections , the Regional Director issued a supplemen-
tal decision , finding the objections to be without merit,
overruling five of the challenges (resulting in a revised tally
of 120 votes for and 118 against union representation), and
deferring ruling on the challenges to the three remaining
ballots because they were cast by alleged discrumnatees in
200 NLRB No 131
ALICEVILLE COTTON MILL 907
a pending unfair labor practice case discussed below The
Company filed a timely request for review, excepting to the
Regional Director's failure to find merit to certain ones of
the Company's objections and his failure to provide a
hearing The Board denied the request as not raising
substantial issues warranting review
Meanwhile, charges had been filed against the Company
in July and August 1970, alleging various 8(a)(1) and (3)
violations committed by the Company during the Union's
1970 organizational campaign On October 22, 1971, the
Board in Ahceville Cotton Mill, Inc, 193 NLRB No 136,
found that the Company had violated Section 8(a)(1) by
soliciting employees to persuade other employees to defect
from the Union and by threatening not to bargain in good
faith if the Union was successful in organizing the
employees, as well as by unlawfully interrogating employ-
ees and soliciting them to inform on the union activities of
other employees, by engaging in and creating the impres-
sion of union surveillance, by promising employees
benefits to dissuade them from union activities, and by
threatening to close the plant, withhold wage increases, or
discharge employees The Board also found several 8(a)(3)
violations, including the unlawful termination of employ-
ees James Cochrane, E E Miller, and J H Bonner, whose
undetermined challenged ballots were delaying a final tally
of ballots in the representation case
On November 2, 1971, after nearly a year's delay, the
Regional Director ordered the three challenged ballots to
be counted (resulting in a final tally of 123 votes for and
118 votes against union representation) The Union was
certified on November 29, 1971, as the exclusive represent-
ative for "all production and maintenance employees
including inspectors and packers, and the air-conditioning
technician employed at the Employer's Aliceville, Alabama
plant, but excluding all office clerical employees, profes-
sional employees, guards and watchmen, and supervisors
as defined in the Act "
B Invalid Certification as Defense
1 Limited supportive evidence
In seeking a hearing on its defense that the Union's
certification was invalid, the Company in its response to
the General Counsel's motion for summary judgment
asserted that during the critical period before the election
-from July 17 to September 23, 1970-there were "threats
of physical injury, destruction of property, anonymous
telephone calls, and anonymous notes to various employ-
ees made by union advocates and/or union agents," and
that "reports of these threats, coercion and violence were
widespread and discussed throughout the plant immediate-
ly preceding the election " Yet at the trial, without
explanation, the Company called as witnesses only four
employees, who gave only limited evidence, and much of
that in summary fashion I note that all four of them had
campaigned against the Union As indicated below, there
are serious questions about their credibility
a Testimony of Billy Eaves
(1) Killing of dogs
Employee Eaves, who testified that he tried to get other
employees not to vote for the Union, testified that on
separate days, about 2 weeks before the September 23
election, one of his dogs was poisoned and another one
shot When asked if he told anyone in the plant about the
killings, he testified that he told Earl Ray Hemphill and
James Henry Johnson (two other company witnesses who
likewise campaigned against the Union) Eaves testified
that he did not know who killed the dogs, but that his
neighbor, union supporter Larry Braddock, said that he
knew what happened to them and that something might
happen "to the rest of them and me too if I didn't go and
vote for the Union " (Emphasis supplied) When asked to
repeat what Braddock said, Eaves testified, "He said
he knows what happened to my dogs Something might
happen to me, too, if I didn't go with the Union "
(Emphasis supplied) Braddock testified that he lived two
doors from Eaves and knew that Eaves was supposed to
have some dogs, but that he did not visit Eaves very often
and did not recall ever seeing Eaves' dogs He denied that
he ever heard anything about the dogs being poisoned or
shot, and that he said anything to Eaves about the dogs
I discredit Eaves' testimony about the purported threat
for several reasons On the stand, as quoted above, Eaves
repeatedly claimed that Braddock said that he knew what
happened to the dogs and that something might happen to
Eaves too (or "to the rest of them and me too") if Eaves did
not vote for or "go with" the Union If such a threat had
been made to Eaves' life, undoubtedly he would have
remembered it when he gave a postelection affidavit to the
Board agent on October 14, 1970, when the Regional
Office was investigating the Company's objections Eaves'
affidavit (which was introduced into evidence over the
Company's objection) stated that, about 3 days before the
election, Braddock told Eaves, "Bally, I know what
happened to your dogs and something will happen to the
rest of them if you don't go with the Union"-not
mentioning any threat to Eaves' life (Emphasis supplied)
None of the other three company witnesses corroborated
Eaves' claim that Braddock had threatened has life or his
other dogs Employee Johnson was not questioned about
the dogs or the purported threat Employee Johnny Smith,
when called by the Company, testified that Evans "told me
that he had some dogs killed" and that he "suspected the
Union killed them," but that "he never did tell me why nor
nothing " Employee Hemphill, the other company witness,
detracted from Eaves' testimony in two respects First,
Hemphill testified that Eaves said that "someone" told him
that the thing that happened to the dogs "would happen to
him as well as the other dogs " Inasmuch as both Hemphill
and Eaves were campaigners against the Union, I consider
it most likely that, if union supporter Braddock had in fact
made the threat, Eaves would have identified him
Secondly, when Hemphill gave his postelection affidavit on
October 14, 1970 (soon after the election), he claimed that
the dogs were killed much earlier, not about 2 weeks before
the September 23 election as Eaves claimed His affidavit
(not introduced as evidence) admittedly stated that the
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dogs were killed "somewhere around the last of July or first
of August "
After weighing all the conflicts in the evidence and
considering Eaves' demeanor as a witness (he appeared to
be attempting to ingratiate himself with the Company), I
find that Eaves fabricated at least the part of his testimony
in which he claimed that union supporter Braddock stated
he knew what happened to the dogs and stated that
something might or would happen to Eaves (and/or his
remaining dogs) if Eaves did not vote for or go with the
Union Even assuming that at some time two of the dogs
were for some reason killed (although there is no
corroboration from any less partisan source), I find that
Eaves' claim that it occurred shortly before the election
(contrary to Hemphill's affidavit) was a fabrication to
support the Company's contention that there was an
atmosphere of fear surrounding the election Accordingly I
also discredit company witness Hemphill's testimony,
given at the trial after Eaves testified, that Eaves informed
him that someone had told Eaves that the thing that
happened to the dogs "would happen to him as well as the
other dogs " I find this also to be a fabrication
(2) Purported threat to get him
Employee Eaves also testified, without giving any of the
circumstances, that union supporter Albert Bowens told
him about 2 or 3 weeks before the election that "if I didn't
go with the Union someone might have to get me, if they
had to get me behind my back " According to Eaves'
postelection affidavit, Bowen stated, "If you don't vote for
the union some of us are going to get you if we have to get
you behind your back "
Employee Bowens, who impressed me as an honest,
forthright witness, credibly testified that he has been
married to Eaves' sister for 6 years, that they sat around
the house during the election campaign and talked about
the Union, "I was for it and he was against it," that there
was not any bad blood between them over the Union, and
that they continued to maintain social contact with each
other I credit Bowens' emphatic denial that he ever told
Eaves that he would get him behind his back
Having found employee Eaves not to be a trustworthy
witness, I discredit his testimony about a threat to get him
behind his back
b Testimony by Earl Ray Hemphill
(1) Purported threat to leave unfinished work
Employee Hemphill, who campaigned against the
Union, passing out antiunion literature , has been found
above to have given fabricated testimony concerning the
purported threat by employee Braddock to employee
Eaves' life It is further clear that he was not testifying
candidly concerning a purported threat by union supporter
Braddock to leave an excessive number of full frames for
Hemphill to doff
The Company asserted proof, in its response to the
General Counsel's motion for summary judgment, that
approximately "one month" prior to the election (i e,
about the latter part of August 1970) an employee, doffer
Hemphill , was told by a union advocate , doffer Braddock,
"If I would sign a union card , he would leave me in good
shape on that job and if I didn 't sign a union card, he
would leave as many frames full to be doffed as he could "
Then , the Company asserted, "after his repeated refusals to
sign a union card and support the union , his frames were
continuously left in bad shape so that he was unable to
properly perform his job "
When called as a witness , first shift doffer Hemphill
testified that between July 17 (when the petition was filed)
and September 1970, employee Braddock, the doffer on
the preceding third shift, was the union supporter in
particular who attempted to get him to sign a union card
And when he refused to sign , "They [identified as
Braddock ] said that they could leave the frames full for me
to start with " Hemphill then answered , "Yes" to the
company counsel's question , "Did, after July 17 and before
September 23 of '70, did you have a lot of frames , in fact,
left full?" However, when asked to pinpoint the date of
Braddock 's threat, Hemphill indicated that it was about
the third week in June, about a month before July 17-by
testifying that it happened "About two weeks before
vacation," and that the vacation was taken during the week
of July 4 Later in Hemphill's direct testimony he
answered , "No, sir," to the question , "During this time we
are talking about from the filing of the petition [July 17] to
the election , did you have any disagreement with Braddock
other than your opposition to the Union?" He was not
asked about any disagreement back in June, when
Hemphill claimed the threat was made Braddock admitted
that he did leave some full frames for Hemphill, but
explained that he did so because the Hemplull father and
son, doffers on the first and second shift, "were working
against me," leaving him as many as five to eight full
frames He testified that "If they were going to make me
work I was going to make them work ," that this dispute
had nothing to do with the union campaign, and that it
continued after the election He denied threatening to leave
frames full because Hemphill was not a union supporter
Doffer Hemphill clearly gave conflicting and exaggerat-
ed testimony concerning the number of full frames left for
him Although testifying that he was responsible for
doffing 16 frames, and "You 've got" the three piecework
spinners and the boss "fussing about frames being
stopped," he first testified that during this period, from
July 17 to September 23, 1970, "I come in every morning
and would have about 10 or 12 frames stopped or ready to
stop at 8 o'clock ," and "That's two hours and a half behind
at 8 o'clock You stay behind two hours and a half until
you doff all 16 frames " He next testified that 10 to 12 full
frames were left "practically every day " He then added, "I
would say four out of the six [workdays each week] there
were at least that many ready," and "maybe six or eight"
on the remaining days I do not believe this If union
supporter Braddock had in fact made the purported threat
to antiunion campaigner Hemphill for not signing a union
card, undoubtedly Hemphill would have (which he does
not claim) reported the threat to the Company at the
time-and not wait until the Company was seeking
grounds for setting aside the election Also, it is inconceiv-
able to me that the Company would have tolerated, for a 2-
ALICEVILLE COTTON MILL 909
month period, such an amount of downtime caused by the
union supporter-whether 10 or 12 full frames from a total
of 16 frames were left "every morning" or "practically
every day" or two-thirds of the time Such an uncorrobo-
rated, implausible story adversely reflects upon his trust-
worthiness as a witness
I find that Hemphill's testimony about the purported
threat is another fabrication, and therefore discredit it
(2) Other purported threats
Employee Hemphill also testified that on the night
before the election, he found a note in the front seat of his
car He produced a small note, on white paper measuring
slightly more than 4 inches square, with the words written
in ink and small capital letters on the upper part of the
note, "If you do not vote yes for the union you will get
your a- whipped among other things" (the word "yes"
being underscored three times) He testified that he did not
recognize the writing and had no idea whom the note came
from He claimed that he showed the note to his father and
also to employee Johnny Smith (another antiunion
campaigner), but this claim is not corroborated
The note received in evidence does exist But there is no
proof, other than Hemphill's word, that it was found and
written before the election (I note that the wording is
similar to the message of the anonymous telephone call
discussed later) There is no evidence of any other
threatening note And even if the note were in fact written
before the election, it is hard to understand how its author
could believe that such a note could influence the vote of
antiunion campaigner Hemphill
Having found that Hemphill fabricated testimony about
two other purported threats, I find his testimony too
unreliable to credit his uncorroborated claim that he
received the threatening note before the election
In addition, Hemphill testified that, about a day or so
before the election, he overheard "some people down there
at the mill"-he does not remember who-saying that
union supporter Bowen "said that cars could be wrecked on
the parking lot out there if the Union didn't go in "
(Emphasis supplied) Although he positively testified that
he did not hear Bowen say this, I note that the Company
(in its above-mentioned response) asserted proof that
"during the critical period, this same employee [Hemphill]
heard a union advocate [Bowen] telling a group of
employees in the plant that if the union won the election
`those who opposed the union would have their cars
wrecked in the parking lot' " (Emphasis supplied) There
is no corroboration that employee Bowen made either
version of the purported threat, or that any of the
employees was talking about such a threat I discredit
Hemphill's testimony about overhearing talk of the
purported threat
Hemphill's testimony about an anonymous telephone
call is discussed later
c Testimony by James Henry Johnson
(1) Purported threats to whip him
At the trial , employee James Henry Johnson claimed for
the first time that two union supporters, employees James
"Preacher" Cochrane and Tommy Hams, threatened to
whip him shortly before the election
Johnson claimed that this happened "a couple of
evenings" after he and four other antiumon employees
went to employee Don Noland (a leading union advocate)
and "asked him to quit and get him ajob with a company
that already had a union " Johnson added, "It was wrong
for us to do it, I reckon " Johnson testified that Cochrane
and Harris heard about it, were "real mad," and Harris
"said that he didn't think it was much of a man for all of us
to go" to Noland, and "told me that he was as much of a
man as anybody there and he could handle anybody in the
plant, referring to there were five of us who talked
with Don And if I didn't believe it, he would stop me
between Geiger and Ahceville and show me and all that he
would do to me if I didn't let them alone As close as
I can get, that he would whoop me " When testifying about
this incident, Johnson appeared to be a compliant witness
He first testified that Cochrane and Harris had scabbard
knives "they were making at the mill in their back
pockets " Then when asked by company counsel if they
brandished the knives, Johnson changed his story, testify-
ing, "Tommy had his in his hand Whether he pulled it on
me or not I don't know but I took it that way " When
questioned about whether he had mentioned Cochrane and
Harris in his October 14, 1970, postelection affidavit
(which was not introduced as evidence), Johnson testified,
"I mentioned them very strong" in it He later conceded
that there was nothing in his affidavit about the incident,
but testified that it occurred about "three weeks before the
election" (i e , early September), and that Cochrane and
Harris were employees at the time He elsewhere testified
that it occurred in July
It is clear that Johnson's conversation with Cochrane
and Harris occurred weeks before the July 17 petition was
filed, and not during the critical period between July 17
and the election Cochrane and Hams (as found by the
Board in the earlier complaint case) were terminated in late
June Preacher Cochrane, who impressed me favorably as a
witness, credibly testified that on June 8, the day after the
June 7 meeting (about which there was testimony in the
earlier complaint case), Hams walked up to Johnson and
asked Johnson about his and other employees' dumping on
Don Noland about organizing the Union and threatening
to whip Noland Then Harris said he would take on any
one of them at any time outside the gate, and Cochrane
said he would back Harris up Neither Cochrane nor
Harris had a knife, "We were going in to work "
Thus, company witness Johnson belatedly grasped on an
incident which occurred early in the campaign, over 5
weeks before the July 17 petition was filed, and falsely
testified that this occurred about 3 weeks before the
September 23 election, in support of the Company's
contention that threats and violence surrounded the
election From his demeanor on the stand, Johnson
appeared to be more interested in supporting the Com-
pany's cause than reporting accurately what happened I
discredit Johnson's testimony that Cochrane and Hams
threatened him during the critical period before the
election
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Johnson next testified that about 2 weeks after
this incident, an employee (Mutt Cromwell, who did not
testify) came in and reported that Don Noland "said he
was gomg to make it rough on me" and "was going to
whoop me if I didn't let everybody else alone in the
Company" (Emphasis supplied) In its response to the
motion for summary judgment, the Company asserted
proof that "during the critical period, the leading union
adherent in the plant [Don Noland] sent word to him
[Johnson], `That he was going to whip my-if I didn't join
the Union and my job would be made a lot easier if I
did ' " (Emphasis supplied) On the stand, Johnson denied
that anybody approached him and attempted to get him to
sign a union card during the period from July 17 through
September 23 There is no contention that either version of
the purported threat had been reported to the Company
either before Noland's June 25 termination or before the
September 23 election I consider it most unlikely that, if
such a threat by union supporter Noland actually had been
reported to antiunion campaigner Johnson, we would have
failed to notify the Company at the time Because of this,
as well as the significantly conflicting versions and
Johnson's unreliability as a witness, I doubt his uncorrobo-
rated testimony that the purported threat was reported to
him However, even if there were such a report, it would
have been in June, not in the critical period before the
election as as asserted by the Company
(2) Purported threat of fine
After falsely testifying that certain June incidents
occurred months later, around the first part of September
(to support the Company's defense), employee Johnson
testified about another purported conversation which he
claimed took place the night before the election, when he
was trying to get employee James King "to vote for the
Company " According to Johnson, King "said that if he
didn't vote for the Union he could be find from $500 to
$1,000 and that they would know how he voted because the
cards were marked and [terminated union advocate] Don
[Noland] was sitting there " (Emphasis supplied) Although
Johnson claimed that this conversation occurred before the
election, his repeated use of the past tense is some
indication that if there was such a conversation, it referred
to what was believed had happened on election day, and
the conversation therefore occurred after the election
Johnson testified that he tried to tell King the ballots were
not marked, and asked who told him this, but King would
not talk any more Upon further direct examination,
Johnson claimed that King gave a fuller explanation,
testifying that King explained that the ones who were
supposed to be fined were the "ones that has signed union
cards and that didn't vote for the Union," and that they
would be fined "because they were already a member of
the Union "
There was absolutely no corroboration that such a
conversation took place either before or after the election,
and no proof that any union representative or supporter
told King or any other employee anything like this
Having discredited Johnson's testimony that two other
threats were made between July 17 and September 23
(both purported threats having concerned employee
Noland who was no longer working after July 17, having
been terminated in June), having concluded from observ-
mg Johnson's demeanor on the stand that he appeared to
be more interested in supporting the Company's cause than
reporting accurately what happened, and in the absence of
any corroboration at the trial, I discredit Johnson's
testimony that his conversation with employee King, if it
occurred at all, occurred before the election
(3) Other testimony
Employee Johnson further testified that "a little before
the election," employee Billy Hutton missed a night's work
and Billy's brother, another employee, said that somebody
came to his house, trying to get Billy to sign a union card,
that Billy would not sign, "and his father wouldn't let him
come to work because he was afraid of what Billy would do
or whoever came to his house would " It appears unlikely
that the Union would be seeking the employee's signature
on a union card, rather than seeking a yes vote, shortly
before the election Nonetheless, this testimony is not
corroborated, I consider Johnson's testimony most unreli-
able, and even if the father did, at some time and for some
reason, direct one of his sons not to report to work one
night, there is no proof that the Union or any of its
supporters caused any fear on the father's part, nor any
showing how this might affect any vote at the election
Johnson was next asked on direct examination if he had
heard talk in the plant about threats or anything received,
and Johnson answered
A A lot of threats were received
Q Was there a general conversation in the plant9
A Yes All the time about it
TRIAL EXAMINER Could you be more specific about
THE wITNEss No Because if you tried to get every
threat or every little threatening phone call or anything
that was made you could sit up here all day And I
couldn't determine you a date
The counsel then asked him about threatening telephone
calls, and Johnson testified that "Several talked about
them Johnny [Smith] over there , he talked about his " This
is discussed later Johnson then added, "A lot of them
wouldn't talk about them because they were scared " He
then testified about one employee who was upset because
"They put vote yes tags on her frame "
There is no corroboration of this general testimony that
there was widespread conversation in the plant about
threats, that a lot of threats or threatening telephone calls
were received , that "several" employees talked about
threatening telephone calls, or that the employees were
"scared " I discredit this general testimony as a fabrication
to support the Company's defense
d Testimony by Johnny Smith
(1) Anonymous telephone call
The only witness who testified that he received an
anonymous telephone call was employee Johnny Smith
who, I note, testified that he "tried to talk people out of
signing" for the Union He testified that on the night
ALICEVILLE COTTON MILL 911
before the election, some unknown man called and "told
me if I didn't vote for the Union he would whoop my a-
So, I started asking him who it was and he hung up " He
also testified that the next morning, before work, he told
company witnesses Earl Ray Hemphill and James Henry
Johnson , who likewise were antiunion campaigners, about
the call Both Hemphill and Johnson corroborated this
testimony that Smith reported the call to them Although I
have found Hemphill and Johnson not to be trustworthy
witnesses and have discredited much of their testimony, I
credit Smith's testimony that he received the anonymous
call and reported it to the two other antiumon campaign-
ers There was nothing in Smith 's demeanor when so
testifying to cause me to doubt this part of his testimony
The evidence does not disclose who placed the call, or
give any indication whether the call was placed by
someone who somehow thought that the call could
influence Smith's vote , or by someone wanting a basis for
setting aside the election if the Union should win See Bush
Hog, Inc v NLRB , 420 F 2d 1266, 1269 (C A 5, 1969),
referring to "third parties or one of the protagonists who
doubted the election outcome anonymously creat[ing]
incidents and then attempt [ing] to use them to set aside the
election "
Regardless of the motive of the caller, I find that this
anonymous call, to one antiunion campaigner and reported
to two other antiunion campaigners , did not create an
atmosphere of fear, N L R B v Golden Age Beverage Co,
415 F 2d 26, 31-32 (C A 5, 1969), and did not tend "to
interfere with a free and uncoerced choice by the
employees," Home Town Foods v N L R B, 416 F 2d 392,
400 (C A 5, 1969)
(2) Purported overheard threat
On the other hand, I do not believe employee Smith's
uncorroborated testimony about overhearing a white union
advocate threatening a black employee with sugar in his
gas tank Smith casually testified, without giving any
further details, that in the plant about 2 weeks before the
election he was "talking to this attendant , Hinton fellow,
sweeping the floor," that union advocate "John Thomas
walked up and when he did I turned and walked off and I
heard John tell this fellow that if he didn't vote for the
[Union] he might come up with sugar in his gas tank"
(Emphasis supplied) There is no evidence, or contention,
that Smith verified what was said, or made any response,
or reported the matter to the Company at the time Thus,
insofar as this uncorroborated testimony is concerned,
antiunion campaigner Smith overheard a white union
supporter intimidating a black employee, without doing
anything about it-until after the election Then, as
revealed by the Company's response to the motion for
summary judgment, Smith did not claim after the election
that Thomas said that employee Hinton might come up
with sugar in his gas tank, as Smith claimed at the trial In
the response, the Company asserted proof that the
overheard statement was, "If you don't vote for the Union,
your car will come up with sugar in the gas tank"
(Emphasis supplied)
Because of the casual manner in which Smith testified
about this serious threat, the unlikelihood that he would
have so testified if he had in fact overheard a black
employee being intimidated to vote for the Union and had
done something about it, and the significant shift in the
testimony (from "will" to "might"), I discredit Smith's
uncorroborated testimony about the purported threat
2 Contentions and concluding findings
At the close of trial, the General Counsel moved for
judgment on the pleadings , contending that the Company
had not sustained its burden of proof that there was an
atmosphere of fear surrounding the election In its closing
arguments , the Company contended that "the conduct was
of such an aggravated nature as to create an atmosphere so
permeated with fear and reprisal that a free choice in the
election was in fact rendered impossible " The Company
argued that it should be kept in mind that the persons
threatened with a union fine and sugar in the gas tank
(referring to uncorroborated testimony which has been
discredited) were black employees being threatened by
white employees , and cited "the closeness of the vote" (123
for and 118 against union representation), and the "status
of the perpetrators of the threats" as well-known union
supporters and campaigners It then argued that the threats
"were communicated to other employees throughout the
plant," that the "wholesale threats and other misconduct
can neither be called de nunimis nor isolated," and
that the "cumulative effect of these threats " must be
considered
Nowhere does the Company explain why, if there were
such wholesale threats which were communicated to
employees throughout the plant, the Company relied solely
on the testimony of the four antiunion campaigners
-much of whose testimony, as discussed above, was
shifting, conflicting, unreliable , and/or uncorroborated,
and given in a summary fashion or without specifics-and
failed to call a single less partisan or uncommitted
employee , or others , to give direct testimony of the
purported threats and communication or corroborating
evidence There is no basis for assuming that other
evidence , if presented, would have been more credible
In the absence of other evidence, I have carefully
scrutinized and weighed the limited evidence presented I
find that there is insufficient credible evidence to support
the Company 's contention that there was an atmosphere of
fear surrounding the election , making a free choice of the
employees impossible It "must be kept in mind that the
burden is on the party objecting to the conduct of the
representation election to prove that there has been
prejudice to the fairness of the election " N L R B v
Golden Age Beverage Co, 415 F 2d 26, 30 (C A 5, 1969) I
agree with the General Counsel that the Company has not
sustained that burden
Accordingly, I reject the Company's defense that the
Union's November 29, 1971, certification was invalid, and
grant the General Counsel's motion for judgment on the
pleadings , in view of the Company's admitted refusal on
and since December 15 , 1971, to honor the certification
and bargain with the Union
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1 There was not a general atmosphere of fear sur-
rounding the September 23, 1970, election, interfering with
a free and uncoerced choice by the employees
2 By refusing on and since December 15, 1971, to
bargain with the Union as the validly certified exclusive
representative of its employees in an appropriate unit of all
production and maintenance employees including inspec-
tors and packers, and the air-conditioning technician
employed at its Aliceville,Alabama, plant, but excluding all
office clerical employees, professional employees, guards
and watchmen, and supervisors as defined in the Act, the
Company engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the Act
THE REMEDY
In order to effectuate the policies of the Act, I find it
necessary that the Respondent be ordered to cease and
desist from the unfair labor practices found and from like
or related invasions of the employees' Section 7 rights, and
to take certain affirmative action
A majority of the unit employees having voted for union
representation on September 23, 1970, the Union's
November 29, 1971, certification having been delayed for
about a year because of the Respondent's discriminatory
termination (as found by the Board in the earlier complaint
case) of three employees who voted in the election, the
Respondent having refused since December 15, 1971, to
bargain with the Union, asserting that it was entitled to a
hearing on its contention that the certification was invalid
as a result of an atmosphere of fear and violence
surrounding the election, and the Respondent, after having
been granted a hearing, having failed to substantiate its
contention with credible evidence, thus frustrating the
employees' bargaining rights for a long period of time, I
find it important that this case be expedited
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended 1
ORDER
Respondent, Aliceville Cotton Mill, Inc, its officers,
agents, successors, and assigns, shall
1 Cease and desist from
(a) Refusing to bargain collectively with United Textile
Workers of America as the exclusive representative of its
employees in an appropriate unit of all production and
maintenance employees including inspectors and packers,
and the air-conditioning technician employed at its
Aliceville, Alabama plant, but excluding all office clerical
employees, professional employees, guards and watchmen,
and supervisors as defined in the Act
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Upon request, bargain in good faith with the Union
as the exclusive representative of the employees in the
above-described appropriate unit and embody in a signed
agreement any understanding reached
(b) Post at its plant in Aliceville, Alabama, copies of the
attached notice marked "Appendix "2 Copies of the notice,
on forms provided by the Regional Director for Region 10,
after being duly signed by an authorized representative of
the Respondent , shall be posted by the Respondent
immediately upon receipt thereof , and be maintained for
60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced , or covered by any other material
(c) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the
Respondent has taken to comply herewith
1 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National 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 shall be deemed
waived for all purposes
2 In the event that the Board s Order is enforced by a Judgment of the
United States Court of Appeals the words in the notice reading 'Posted by
Order of the National Labor Relations Board' shall be changed to 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
The National Labor Relations Board having found, after
trial, that we violated Federal law by refusing to bargain
with the Union following its certification as the exclusive
representative of our plant employees
WE WILL bargain upon request with United Textile
Workers of America and put in writing and sign any
bargaining agreement we reach covering these employ-
ees
All production and maintenance employees
including inspectors and packers , and the air-
conditioning technician employed at our Alice-
ville, Alabama plant, but excluding all office
clerical employees, professional employees,
guards and watchmen, and supervisors as defined
in the Act
ALICEVILLE COTTON MILL,
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 concern-
ALICEVILLE COTTON MILL 913
ing this notice or compliance with its provisions may be Building, 730 Peachtree Street, N E, Atlanta, Georgia
directed to the Board 's Offiee, Room 701 Peachtree 30308, Telephone 404-526-5760