Angelica Corp.

National Labor Relations Board - Board Decisions

Sep 26, 1985

276 N.L.R.B. 617 (N.L.R.B. 1985)

,ANGELICA CORP - - 617
Angelica Corporation and International Leather
Goods, Plastic and Novelty Workers' Union,
AFL-CIO
Angelica Corporation and Linda M. Davis, a Peti-
tioner , and International Leather Goods , Plastic
and Novelty Workers' Union , AFL-CIO. Cases
26-CA-9316 and 26-RD-521
26 September 1985
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 17 December 1982 Administrative Law
Judge Steven M. Charno issued the attached deci-
sion . The Petitioner filed exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and has decided to
affirm the judge's rulings, findings, and conclusions
and to adopt the recommended Order as modified.
In this consolidated unfair labor practice and
representation case, the judge has found that the
Respondent violated Section 8(a)(1) of the Act by
maintaining and enforcing unlawful: no-distribution
and no-solicitation rules and by unlawfully promis-
ing employees increased wages and benefits. He
also found that the Respondent violated Section
8(a)(5) and (1) of the Act by, unilaterally informing
employees that it would offer them a new life in-
surance program, and by unilaterally changing con-
tractual wages and benefits after the decertification
election but prior to final resolution of the question
concerning representation. The judge also found
merit in the Union's election' objections to the
promises of benefits and announcement of unilater-
al insurance changes. He recommended that the
election be set aside, but he found that the linger-
ing effects of the Respondent's unlawful conduct
were such that no fair election would be .possible
and that the Respondent should be ordered to bar-
gain with the incumbent Union as the sole remedy
for its unlawful conduct.
Neither the Respondent nor the Union filed ex-
ceptions to the judge's decision. The individual Pe-
titioner in the representation case filed pro se ex-
ceptions, which essentially except to the sustaining
of the Union's objections and to the failure to
direct a second election. In the absence of excep-
tions to the judge's unfair labor practice findings
and conclusions of law, we shall adopt them.' We
disagree, however, with the judge's failure to rec-
ommend the holding of a rerun election. We be-
lieve that employee free choice can be best ascer-
tained here through the holding of a second elec-
tion, and not through imposition of: a Gissel bar-
gaining order.2 Although the Board has in some
cases found that preelection promises of benefits
followed by postelection grants of benefits warrant-
ed a Gissel-type3 bargaining order, to the exclusion
of a rerun election, those cases do not represent ap-
plication of a per se remedial rule.4 Consistent with
the principles of Gissel, the Board must assess the
question of appropriate remedy -on a case-by-case
basis. Here, the General Counsel has failed to dem-
onstrate that the preelection promises were so ex-
traordinary or that the postelection benefits granted
were so substantial that their- effects cannot be
erased by the use of traditional remedies and that
the question concerning representation raised by
the decertification petition cannot be resolved by
the preferred method of a fair Board . rerun elec-
tion. '
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Angelica Corporation, Waynesboro,
Tennessee, its officers, agents, successors, and as-
signs,- shall- take the action set forth in the Order as
modified. - ' -
Delete from the final paragraph of the Order the
reference to the, recommended dismissal of the peti-
tion.
MEMBER DENNIS,, dissenting in part.
The administrative law judge's unfair labor prac-
tice findings are uncontested. The only issue is
whether to -grant the decertification Petitioner's ex-
ceptions to the judge's recommended Gissel' bar-
i In finding the Respondent 's promulgation and maintenance of the no-
solicitation and no-distribution rules unlawful, the judge cited , inter alia,
TR W Bearings; 257 NLRB 442 (1981) Although the Board has since
overruled TRW in Our Way, Inc, 268 NLRB 394 (1983 ), the judge 's cita-
tion does not affect our disposition of the case
2 We agree , however, that the affirmative bargaining language in the
judge's recommended order is appropriate as the traditional remedy for
the Respondent 's 8(a)(5) violations in light of its continuing obligation to
recognize the Union's current incumbent status, pending the results of the
second election This traditional remedy is separate and distinct from the
extraordinary remedy of a Gissel bargaining order to the exclusion of a
rerun election.
s See NLRB Y. Gissel Packing Co, 395 U S. 575 (1969)
* E g, Dow Chemical Co, 250 NLRB 748 (1980), Westminster Commu-
nity Hospital, 221 NLRB 185 (1975)
NLRB v Gissel Packing Co, 395 U S 575 (1969) -
276 NLRB No. 38
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining order. Unlike the majority, I find no merit
in the exceptions and would affirm the judge. In so
doing, I rely on the analytical framework set forth
in my concurring opinion in' Regency Manor Nurs-
ing Home.2 _
The Union lost the election held 4 September
19813 by a vote of 86 to 76. The judge found, inter
alta, that the Respondent made unlawful implied
promises of wage and benefit increases at meetings
with its employees held., 12 August, just 3 weeks
before the election. The judge further concluded
the Respondent violated Section 8(a)(5) and (1)
before the election by informing employees it
would soon put in effect a new optional whole life
insurance. program. Finally, the judge found that, a
week after the election, on 11 September, the Re-
spondent distributed to employees a memorandum
fulfilling its preelection promises, and announcing
improved wages and benefits (including hourly
wage increases, a reduction in medical insurance
costs, addition of major medical coverage, and in-
creases in sickness and accident insurance benefits).
The judge concluded this conduct violated Section
8(a)(5) and (1).
The Respondent engaged in serious "hallmark"
violations' of the Act by granting employees sig-
nificant improvements in wages and benefits after
the election pursuant to its unlawful preelection
promises. The misconduct affected the entire unit.
No evidence of mitigating circumstances exists.
Accordingly, in my view, issuance of a remedial
bargaining order is fully, justified because of the
Respondent's grave and widespread illegal acts.
2 275 NLRB 1261 (1985)
3 All dates are 1981 The petition was filed 6 July 1981
4 See NLRB Y. Jamaica Towing, 632 F 2d 208, 212-213 (2d Cir 1980)
Timothy J. O'Leary, Esq., of Memphis, Tennessee, for the
General Counsel.
Thomas M. Hanna, Esq. (McMahon, Berger, Breckenridge,
,'Hanna, Linihan & Cody), of St. Louis, Missouri, for
the Respondent.
Thomas M. Kennedy, Esq. (Lewis, Greenwald & Kennedy,
P.C.), of New York, New York, for the Union.
Linda Davis, of Waynesboro, Tennessee, pro se.
promises of increased benefits , and refusing to bargain
with the International Leather Goods, Plastic and Novel-
ty Workers ' Union , AFL-CIO (Union). Respondent's
answer denied the commission of any unfair labor prac-
tice
The decertification petition filed in Case 26-RD-521
resulted in a secret -ballot election among Respondent's
employees which the Union lost . Timely objections filed
by the Union resulted in the Acting Regional Director's
recommendation that a hearing be held on -three objec-
tions : ( 1) Respondent had recognized Linda Davis (Peti-
tioner) as a bargaining agent , (2) Respondent had unilat-
erally announced a new benefit program prior to the
election , and (3 ) Respondent had made implied promises
of increased benefits . A Decision and Order issued by
the Board on November 24, 1981 , adopted the Acting
Regional Director 's findings and recommendations, and
referred Case 26-RD-521 for a hearing on the objec-
tions . By order issued November 30, 1981, the unfair
labor practice and the representation cases were consoli-
dated and set for hearing.
A hearing was held before me in Waynesboro, Tennes-
see, on June 14 and 15 , 1982.1 At the hearing , over Re-
spondent 's objection , the General Counsel was allowed
to amend the complaint to add paragraph 9(b), which re-
lated to an alleged August 31, 1981 implied promise of
increased wages and benefits , and an allegation , presum-
ably as part of paragraph 13 of the complaint , that Re-
spondent had unilaterally modified the terms and condi-
tions of employment on -or about March 1 , 1982. Briefs
were filed under extended due date of August 3, 1982, by
the General Counsel , the Respondent , and the Union.
FINDINGS OF FACT
1. JURISDICTION
Respondent is a corporation engaged in the manufac-
ture of washable uniform apparel at a facility located in
Waynesboro, Tennessee. Annually, Respondent, in the
course and conduct of its business operations, has sold
and shipped products, goods, and materials valued in
excess of $50,000 from Waynesboro to points outside the
State and has purchased and received products, goods,
and materials valued in excess of $50,000 at Waynesboro
from points outside the State. It is admitted, and I find,
that Respondent is an employer engaged in commerce
within the meaning of the Act.
The Union is admitted to be, and I find is, a labor or-
ganization within the meaning of the Act.
DECISION
STATEMENT OF THE CASE
STEVEN M . CHARNO , Administrative Law Judge. In
response to a charge filed September 15, 1981, and
amended October 29, 1981 , -a complaint was issued on
October 30 , 1981, in Case 26-CA-9316, which alleged
that Angelica Corporation (Respondent) had violated
Section 8 (a)(1) and (5) of the National Labor Relations
Act, by instituting and maintaining an unlawful rule con-
cerning solicitation and distribution , making implied
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent's production plants in the Tennessee
Region of its Uniform Group are located at Louisville,
Mississippi, and Waynesboro, Savannah , and Collinwood,
Tennessee . The Louisville plant is not organized , the Sa-
i The unopposed requests of counsel for the Union and the General
Counsel to correct the transcript are granted The transcript errors have
been noted and corrected
ANGELICA CORP.
vannah plant is represented by the Garment Workers of
America, and the Collinwood and Waynesboro (Trace)
plants 'are `represented by the,Union. It is alleged and ad-
mitted that the following employee unit is appropriate
for purposes of collective bargaining:
All production employees and quality control audi-
tors.employed at Angelica Corporation's Waynes-
boro, Tennessee facility, excluding all office clerical
employees, truckdrivers, 'technical personnel, me-
chanics, time study personnel, markers, pattern
makers, guards and supervisors ' as -defined in the
Act. 2
Respondent and the Union were parties to a collective-
bargaining agreement at the Waynesboro facility which,
by its terms, was effective from October 1, 1978, to Sep-
tember 30, 1981.
B. Solicitation and Distribution Rules
Davis began circulating the decertification petition
among her coworkers during the week of April 23,
1981.3 Approximately 1 week later, she was required to
report to Plant Manager Chester Hayes' office where she
met with Hayes and Respondent's regional personnel
manager, Darrell Matheny They informed her that they
had heard that she was circulating a petition, told -her.it
was against - Respondent's rules to do so, and quoted,the
rule to her. It was stipulated by the parties that at all
times material Respondent "maintained certain rules and
regulations at its Waynesboro facility, which made its
employees subject to prescribed discipline for the follow-
ing actions:
28. Unauthorized distribution of literature, writ-
ten or printed matter of any description on Compa-
ny premises.
'29. Unauthorized' soliciting or collecting contri-
butions for any purpose whatsoever on Company
premises. . . .
33. Unauthorized circulation of petitions of any
kind on Company premises.
After the rule was quoted, Davis asked whether she
might solicit signatures in the parking lot, to which
Matheny replied that the rule said "Company premises." -
None of the parties to the conversation mentioned circu-
lation of the petition during break or lunch periods.4
C. The Election Campaign
About May. 20, Ernest Newman, the Union's Interna-
tional representative, sent a letter to Respondent's
Waynesboro employees. As part of an overall effort to
convince its readers that the benefits which they enjoyed
were the result of unionization, the letter stated:
2 This bargaining unit represents a change agreed to by Respondent
and the Union from the unit originally certified in Case 26-RC-3053
? All dates hereinafter are 1981 , unless otherwise indicated
* On brief, Respondent appears to concede that these rules were "ap-
plied in a sweeping and all inclusive manner" and that Davis had been
reprimanded for violating the Respondent 's solicitation rule
619
It is not necessarly [sic] true that the Company
will pay for dependent insurance if there was no
Union, if this was true why do they not pay- for de-
pendent coverage in Mississippi. . . .
I am sending a copy of this letter to the Compa-
ny who can deny these statements if they wish. I
am inviting them to dispute these facts if I have not
stated the facts as they are.
On July 6, the decertification petition in Case 26-RD-
521 was filed.
Shortly thereafter, Matheny prepared a list of ques-
tions concerning the effect of decertification on Re-
spondent's Waynesboro employees. This list was typed
by Respondent's- St. Louis office and bears the caption'
"Questions taken fro m Darrell on 7/9/81." Matheny sub-
sequently prepared a corresponding list of answers, the
typed version of which was dated "7/10/81."5
Between July •19 and August 6, the Waynesboro em-
ployees asked Respondent' s management a number of
questions concerning the effect of decertification. Hayes
made notes of some of these questions, while Matheny
took notes of two question and answer sessions -with
small groups of employees on August 5.6
Some time during August, Davis had a conversation
with her supervisor, Lillian Prater, in which Davis ex-
pressed delight when Prater responded to a question
with the statement that "the Company-felt that they did
not need a third party_." Some time thereafter, Davis- was
called to Hayes' office where, in a short meeting with
Hayes and Matheny, the latter repeated Prater's state-
ment . Subsequently, Davis had a second conversation
with Prater in which Davis stated that the Union was
gaining on the antiunion forces and that Respondent
needed to do something if it did not want the Union to
stay. Later, in a conversation between Davis and Hayes
at the former's work station, Hayes mentioned Davis'
comment t to Prater, and Davis stated that the employees
-wanted Respondent to talk to them'.'
3 Matheny testified that the lists of questions and answers were, in fact
prepared at a later date and asserted that the dates on the lists were inac-
curate The two lists were typed on different machines, thereby diminish-
ing the probability that each was incorrectly dated by its respective
typist For that reason and because Matheny evidenced virtually no un-
aided recollection of events occurring prior to. the decertification elec-
tion, and based on my observation of his demeanor while on the stand, I
do not credit his testimony that the lists were prepared at a time later
than the dates appearing on the faces of the document
6 Matheny maintained that he used these notes of questions asked by
employees to prepare the lists of questions and answers dated, respective-
ly, July 9 and 10 In addition to the fact that the lists predate the ques-
tions recorded in the notes by at least a week , it appears significant that
the typed lists contain handwritten additions Matheny offered no expla-
nation of why-he found it necessary to make handwritten additions to the
typed lists when the added material, if his testimony were to be credited,
was available for inclusion prior to the time the lists were typed For the
foregoing reasons and based on my observation of his demeanor while
testifying, I do not credit Matheny on this point
Davis' entire testimony reflects an almost total lack of recall concern-
ing the dates of events and establishes her inability to accurately estimate
the intervals between events Thus, Davis testified that her first conversa-
tion with Prater occurred "several weeks" after July 22, her first conver-
sation with Hayes and Matheny "a week or two" after that, her nex, -on-
versation with Prater an indeterminate time thereafter , and her - second
conversation with Hayes 1 week after the second conversation with
Continued
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 7, Matheny sent a letter to Newman which
announced Respondent' s intention to offer all of its em-
ployees the option of purchasing whole life insurance at
rates "well below" those normally available to individ-
uals. The letter noted that the program had been ap-
proved by Respondent's management in April and would
be offered to employees in the Tennessee Region in
August. The letter concluded as follows:
There was some initial concern that in light of
the decertification petition that' was filed at Waynes-
boro on July 6, 1981, that we should withhold our
offering of this benefit to the employees in "the
Trace Plant. However, -after serious consideration,
we felt it would be discriminatory and very unfair
to deny them the opportunity to avail themselves of
this throughout the entire Corporation If, for any
reason you do not agree with me, I would greatly
appreciate hearing from you in writing no later than
August 14,.1981. Otherwise, we will proceed to im-
plement this program for all employees. -
A copy of the letter was contemporaneously sent to
Davis, although the record is silent why Respondent be-
lieved her to be an appropriate recipient.8 On August 10,
Respondent forwarded to, Newman and Davis an unin-
tentionally omitted attachment to the August 7 letter.
The attachment, which consisted of a memorandum from
Respondent's president to "Angelica Employees," out-
lined the specifics of the program, characterized it as a
"service" offered ',by ' Respondent and speculated that
many of Respondent's employees would find the pro-
gram to be a "substantial benefit."
D. The Meetings on August 12
On August 11, Davis was called to Hayes' office,
where Hayes told her that Respondent was going to
hold meetings with its employees on the following day
to answer some of the questions they had asked. Hayes
told Davis that the employees could ask any questions
they wanted to, "no matter how silly they sounded."
Davis their asked Hayes about the whole life insurance
program referred to in the August 7 letter, and Hayes re-
plied that he did not know anything about it. Finally,
Davis asked if she could ask questions concerning the.
"Mississippi- Plant ," and Hayes responded , "I don't see
why not." Davis was not told why she received advance
notice of-the August 12 meeting, and. the remainder of
the record is equally silent on this point.
On August 12, Respondent conducted a series of seven
group meetings for its Waynesboro employees. At each,
Hayes opened the meeting, and Matheny made a brief
statement -which ended with the following' sentences:
"the bottom line is that the company cannot promise
anything and the union can make any promises they
Prater and 3 or 4 weeks pnor to August 12 Clearly, the time frame,
within which these conversations took place , either began much earlier
than Davis remembered or was far more compact than was indicated by
her testimony '
8 It was Respondent 's unfulfilled intention to address a copy of the
letter to Davis, rather than send her a copy of the letter addressed to
Newman
want because only, the company can give increases in
wages or benefits. The union cannot " Immediately
thereafter, Hayes read a series of 24 questions to which
Matheny or Waldo Barron , Respondent's director. of
manufacturing , read answers. All three individuals read
from a script which consisted of the lists of questions and
answers which Matheny had prepared in July, together
with certain handwritten additions made prior to the
meeting . This script was reviewed and revised by Re-
spondent's St. Louis office before it was used. The rele-
vant questions and answers which were read at every
meeting are as follows: .
1. Q-If we do not have a union we lose our bene-
fits or get anymore [sic]?
A-You will not suffer the loss of any benefits or
working conditions you now enjoy.
2. Q-Will we get increases in money and benefits if
we don't have a union?
A-The answer to this question is quite obvious.
Absolutely yes. Angelica operates a number of
non-union plants . Their wages, benefits and condi-
tions are reviewed and improved regularly.
3. Q-If we do not have a Union will we get in-
creases in both October and how often down the
road?
A-We cannot promise you anything. I cannot tell
you that you will get an increase in October, but I
can tell you the history of what we do in other
non-union facilities . Angelica' has historically re-
viewed its non-union facilities annually or even
fewer months than that. We treat all non-union fa-
cilities the same.9
Prior to the August 12 meetings , Matheny prepared
four additional questions and answers which were added
to the script under- the injunction "hold until end." 1 °
The answer set forth above is taken from a summary memorandum
prepared by Matheny on the evening of August 12 using the script, a sec-
retary's long-hand notes and Matheny's own recollection Matheny testi-
fied that this memorandum was a more accurate reflection of what tran-
spired at the meetings than the script that was actually used The answer
represents the only instance in which the content of Matheny's memoran-
dum does not agree in substance with the content of the scnpt. Examina-
tion of the entire record relating to the August 12 meeting requires me to
conclude that the gaps in Matheny's testimony, concerning the use of an
unscripted answer in response to the third question, result from the fact
that he had no independent recollection of the details of the August 12
meeting without. referring either to the script or to his summary memo-
randum Davis, the only employee who testified concerning this answer,
recalled that the answer set forth in Matheny's memorandum was the one
given at the meeting she attended No other witness was brought forward
to challenge the accuracy of the memorandum For the foregoing reasons
and based on my observation of the demeanor of the witnesses while
they were on the stand, I credit the testimony given by Matheny and
Davis on this point and find that'the answer given to the third question
in Matheny's memorandum was the answer actually given at the August
12 meetings
1O In view of this'finding, together with the fact that Hayes was on
notice that Davis intended to raise questions concerning Respondent's
Mississippi employees, and based on my observation of his demeanor
while testifying, I cannot credit Matheny's testimony that Respondent
had no intention of comparing the benefits of its Waynesboro employees
with those of its nonunion employees -
ANGELICA CORP
The first three of these questions involved the benefits
enjoyed by the nonunion employees at Respondent's
Mississippi facility:
1. Q-Is.there an Angelica plant in Mississippi that
gets 4 holidays?
A-No. The- Angelica Plant which is non-union gets
9 paid holidays.
2. Q-Does the Plant have health insurance and
what kind?
A-Yes., The Louisville Plant has BC/BS/MM in-
surance
3. Q-Does the plant have the same sickness and
Accident insurance we have?
A-No. They get $60/wk. instead of $50.
In each case, the benefits received by the nonunion em-
ployees were superior to those received by Respondent's
Waynesboro employees. In a question and answer session
prior to the close of the first employee meeting, Davis
asked the first two questions relating to Mississippi bene-
fits and another employee asked the third. i l
It is undisputed that, at the remaining six meetings, the
three questions and answers relating to Mississippi bene-
fits were added to Respondent's prepared presentation.
In response to individual employee questions at four of
the seven group meetings, Respondent's answers depict-
ed the union contract as a barrier to past increases in em-
ployee benefits at Waynesboro.
Toward the close of the first meeting, Davis inquired
about the whole life insurance program which was the
subject of the August 7 letter:
Q. I received a letter about some kind of life in-
surance. What is that talking about?
A. All Angelica facilities throughout the corpora-
tion will be offered the new insurance. There will
be an insurance representative in each'plant present-
ing the program to you. Allowing you to buy more
insurance. It will be at a reduced cost. It can be
continued if you quit The amount you take out will
be your choice. Whatever you decide you will pay
for it through payroll deductions. It will not affect .
any insurance you now have with the company.
Davis testified credibly that Matheny prefaced his
answer with the phrase "Oh, I am glad that you brought
that up." Matheny did not indicate that the Union had to
approve the program prior to its implementation at
Waynesboro. The total number of employee meetings on
August 12 at which' the whole life insurance program
was mentioned cannot be determined from the record. t 2
' i Matheny , Davis, and Glenda Pierce, who is Davis' sister and fellow
employee, were the only witnesses to testify concerning the Mississippi
benefit statements Their agreement that all three questions were asked
by employees at the first meeting casts doubt on the extent to which
Matheny's memorandum actually includes all questions asked at each of
the meetings since the memorandum indicates that employees asked only
the first two questions
12 Matheny 's memorandum records the following question and answer
at the third employee meeting
18 Q Does the additional life insurance eliminate the current
policy9
A No It would be an addition to what you presently have
621
E. The August 21 Letter
In an August 13 letter from Newman to Matheny,
which was hand delivered to Hayes on that date, the
Union objected to the implementation of the whole life
insurance program and stated that, as the exclusive bar-
gaining agent for Respondent's employees, it was ready
to bargain with the Respondent concerning the entire in-
surance program. As a result of this objection, the whole
life insurance program was never implemented by Re-
spondent.
On August 13, Newman also sent a letter to all of Re-
spondent's Waynesboro employees stating that the Union
had objected to the whole life insurance program. At-
tached to this letter were copies of Newman's August 13
letter to Matheny and Matheny's August 7 letter to
Newman.
On August 21, Respondent posted on its bulletin board
and distributed to its Waynesboro employees a memoran-
dum in question and answer format concerning "the new
Whole Life Insurance Program" which made reference
to the program as one "which will be offered to you" by
a named insurance company and promised - a future an-
nouncement of when that company's consultants would
visit the Waynesboro facility. At no time thereafter did
Respondent inform its employees that the program
would not, in fact, be offered.
F. The August 31 Letter
On August 31, Respondent posted on its bulletin board
and distributed to its Waynesboro employees another
memorandum which posed the'question "[w]ill we get an
increase in wages and benefits if the Union is voted out,
and will it be in October?" The answer, after quoting a
Board pamphlet proscribing "promising or granting pro-
motions , pay raises, or other benefits to influence an em-
ployee's vote by a party capable of carrying out such
promises," went on to state:
Since the union can only negotiate they are not
"a party capable of carrying out such promises" and
therefore they can promise you anything as they are
not-restricted by these rules. If Angelica were to
take any such actions as discussed in the quote, An-
gelica would be in violation of the National Labor
Relations Board rules, and therefore Angelica
cannot promise wages or benefits at this time.
We can tell. you that it is a fact that Angelica re-
views all of its non-union facilities regularly, and
has given improvements in wages and benefits and
other privileges on an annual basis and at times,
.more often than on . an annual basis . All of Angel-
ica's non-union employees are reviewed in this same
manner.
This question would appear to be premised on some prior mention of the
program during the third meeting No other questions or answers about
the program at the third meeting are reflected in Matheny 's summary
memorandum It is, of course, possible that such questions and answers
were exchanged but not recorded in the memorandum See fn 11, supra
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If the Trace Facility were non-union it would be out affording the Union an opportunity to bargain about
reviewed like all- of Angelica's other_ non-union fa- the change.
cilities.
G: Postelection Conduct
On September, 4, a, secret-ballot election was held
among Respondent 's bargaining unit employees pursuant
to a Stipulation - for Certification Upon Consent Election.
The Union lost by a vote of 76 to 86.
On September 11, Respondent . posted on its bulletin
board and distributed to its Waynesboro employees a
memorandum which noted the results of the election and
made the following announcement:
As we told you previously , Angelica has always
reviewed and given improvements regularly at all
its facilities . In continuing that practice Angelica is
most pleased and happy to announce the following
- improvement [sic]; in wages and benefits which are
attached.
The attachment set forth. a schedule of hourly wage, in-
creases, a reduction in the cost of Blue Cross/Blue
Shield medical, coverage, the addition of major medical
coverage, and an increase in-the sickness and accident in-
surance benefit from $50 to $60 per week. The. wage in-
creases- were to be effective October 5 and the remaining
benefits, November 1. Matheny conceded that, the an-
nouncement was made in the context of the employees'
recent rejection of the Union and because there was a
"possibility" that such improvements could be delayed if
the Union were to file objections. No further announce-
ment of.these improvements in wages and benefits was
made to Respondent's employees. -
The last substantive paragraph of the September 11
memorandum made the following announcement:
To better communicate and discuss problems aris-
ing in the future, an employee relations committee
will be formed which will consist of production em-
ployees and management. More details concerning
the committee will be explained at a later date.
Matheny credibly testified that the purpose of the com-
mittee was "communicating" with employees concerning
economic , problems and changes in' wages, benefits, or
business practices: The committee was never formed, and
Respondent's Waynesboro employees received no further
communications concerning it.
On September 14, the.Union filed timely objections to
the conduct of the election. On September 31, the collec-
tive-bargaining agreement between Respondent and the
Union expired.
On Octber 5-and-November 1, respectively, Respond-
ent granted its employees the wage increases and benefit
improvements which had been announced on September
11. These improvements in wages and benefits were im-
plemented by Respondent without notice to or bargain-'
ing with the Union.
About March 1, 1982, Respondent changed the carrier
of its employees ' hospitalization insurance from Blue
Cross/Blue Shield to Omaha Insurance Company- with-
II. ANALYSIS
A. Solicitation and Distribution Rules
Respondent's rules, which were earlier set forth verba-
tim, unambiguously prohibit any and all "unauthorized"
solicitation, distribution, and circulation of petitions "on
Company premises." It appears uncontested that - these
rules constitute a complete ban on unauthorized commu-
nication at any time or place among the employees at
Respondent's Waynesboro facility.. Accordingly, I find
and conclude that the'promulgation and maintenance, of
these rules by Respondent violate Section 8(a)(1) of the
Act as charged. Olympic Villas, 241 NLRB 358, 363
(1979); AMC Air Conditioning Co., 232 NLRB 283, 284
(1977); see T.R. W., Inc., 257 NLRB 442 (1981). Similar-
ly, I find Respondent's enforcement of these rules against
Davis in late April to be violative of Section 8(a)(1).
B. Implied Promises 'of Benefit
The General Counsel argues on brief that Respondent
violated Section 8(a)(1) of the Act by making implied
promises of increased wages i 3 and benefits during the
August 12 meetings with its employees and through its
August 31 memorandum.
There is little dispute -about 'what occurred at the
August 12 meetings. The question-and-answer portion of
Respondent's presentation at each meeting began with
the statement -that a union defeat would not result in a
loss of benefits. This was immediately followed by an un-
equivocal promise of increased money and benefits with-
out a union, together with an announcement that Re-
spondent regularly reviewed and improved the terms and
conditions of employment at its nonunion plants. After
interspersing a disclaimer that it could promise nothing,
Respondent stated, "[w]e treat all nonunion facilities the
same." Toward the close of each meeting, Respondent
identified three benefits available to its nonunion employ-
ees in Mississippi, which were, superior to the benefits
available to its Waynesboro employees. In over half of
the group meetings , Respondent also made statements
tending to disparage the Union as a-barrier to past wage
and benefit increases.
On brief, Respondent argues that nothing more was
promised'than an annual review of benefits comparable
to that conducted at its other nonunion facilities. While
Respondent's statements at the August 12 meetings may
be somewhat ambiguous,•any ambiguity must be resolved
against the party making the statements. That is especial-
ly true where, as here, the statements were carefully pre-
pared in advance, rather than spontaneous. Thus, I find
that Respondent's direct promise of improved "money
and benefits," together with its assurance that all non-
" Although a promise of increased wages was not specifically alleged -
in the complaint, notwithstanding the amendments made at the hearing,
"it is well established that where , as here, the facts underlying the viola-
tion are fully developed at the hearing, an unfair labor practice finding
can be based on the issues litigated as well as those specifically alleged in
the complaint ." Keystone Pretzel Bakery, 242 NLRB 492 fn 2 (1979)
ANGELICA CORP
union facilities would be treated the same and its iter-
ation of the superior benefits available at a nonunion fa-
cility, constitute a promise that Respondent's Waynes-
boro employees would receive the benefits available at-
the Mississippi facility if the Union were to lose the de-
certification election. See Mervyn's, 240 NLRB 54, 56-58
(1979); Westminster Community Hospital, 221 NLRB 185
(1975)
Respondent also asserts on brief that, to the extent it
was erroneous in referring to the benefits available at its
Mississippi facility, such error was negated by the fact
that it was the Union which first raised the issue of the
benefits available to Respondent's nonunion, employees.
While Respondent is clearly entitled to answer the ques-
tions posed by its employees and to address the issues
raised by _the Union prior to an election, it is not entitled
to do so in such a way as to convey the message that it
is willing to do more for unrepresented employees than it
is for employees who are represented by the Union.
Similarly, Respondent's message to its Waynesboro em-
ployees goes far beyond any chronicle of fair treatment
in the past or assurance of future fair treatment appropri-
ate during a union campaign. Finally, I conclude that
Respondent's repeated, self-serving assertions that it
could make no promises did not detract from or obscure
what was otherwise a promise of benefits. See Mervyn's,
240 NLRB 54, 58 (1979); Raley's Inc., 236 NLRB 971,
972 (1978). For the foregoing reasons, • I find that Re-
spondent violated Section 8(a)(1) of the Act by promis-
ing ' its employees increased wages and benefits during
the August 12 group meetings.
The second allegation that Respondent made pro-
scribed promises of benefits to its Waynesboro employees
is based on the August 31 memorandum. Standing alone,
the statements in that memorandum would not constitute
a promise of benefit violative of the Act. Although the
memorandum notes that "improvements in wages and
benefits and other privileges" have resulted from Re-
spondent's regular reviews of its nonunion facilities, the
memorandum promises only that, absent the Union, the
Waynesboro facility would be reviewed in a manner
similar to that employed at Respondent's other nonunion
facilities. Although it falls marginally short of violating
the Act, the memorandum does not constitute an amelio-
rative effort sufficient to remedy the coercive effect of
Respondent's promises of increased wages. and benefits
during the August 12 meetings. 14
C. Direct Dealing
1. Before the election
The record is clear that, on two occasions prior to the
election, Respondent announced to its Waynesboro em-
ployees that it would soon implement a new benefit con-
sisting of an optional whole life insurance program., The
first announcement took place during the August -12
group meetings and the second, notwithstanding the
14 The General Counsel argues on brief that Respondent 's announce-
ment of a new life insurance program , if not found to be direct dealing
violative of the Act, should be found to constitute an unlawful promise of
benefit In view of my subsequent disposition of the direct dealing issue,
the General Counsel 's argument in the alternative is moot
623
Union's intervening objection, in'an August 21 memoran-
dum. Although the Union was initially notified of the
program, it was not given an opportunity to respond
prior to Respondent's first announcement, hor was it
ever given an opportunity to respond prior to Respond-
ent's first announcement, nor was it ever given an oppor-
tunity to bargain over the program 15
Respondent contends that it was compelled to offer
the insurance program to its Waynesboro employees be-
cause the program was being offered to its nonunion em-
ployees, and the law requires employers to treat union
and nonunion employees in a like manner. The logical
fulfillment of this legal duty would require Respondent
to offer the whole life insurance program to the designat-
ed bargaining representative at its Waynesboro facility.
Respondent, however, contends that it was prohibited
from bargaining with the Union by virtue of the decision
in Telautograph Corp, 199 NLRB 892 (1972). The sole
purpose of the Telautograph doctrine, prior to its rejec-
tion by the Board, was to maintain employer neutrality
during representation elections. See Dresser Industries,
264 NLRB 1088 (1982). There is no conceivable way in
which Respondent' s unilateral offer of a new benefit pro-
gram to its employees during a decertification election
campaign can be regarded as neutral . While the Telauto-
graph doctrine has served employers in the past as a
shield protecting them from- the immediate necessity of
bargaining over union proposals, it has not been, nor can
it be, lawfully used as a sword allowing employers to
unilaterally offer improved working conditions directly
to employees. I therefore find that Respondent's offer of
a whole life insurance 'program constitutes a violation of
Section 8(a)(1) and (5) of the Act.
2. After the election
It is undisputed that; in its September 11 memoran-
dum, Respondent unilaterally announced improvements
in wages and working conditions The record is equally
clear that Respondent implemented those changes in
wages and working conditions on October 5 and Novem-
ber 1, 1981, and that it implemented further changes in
March 1982.
It is well" established that the results of a decertifica-
tion election are not effective until -a certification of re-
sults of the election had been issued by the Board and an
employer's unilateral modification of the terms and con-
ditions of employment prior to the issuance of that certi-
fication violates Section 8(a)(5) Dow Chemical Co., 250
NLRB 756 (1980); Presbyterian Hospital of New York, 241
NLRB 996, 998 (1979). Respondent argues, however,
that its refusal to bargain is protected by the Telauto-
graph doctrine Again, Respondent's argument misses the
mark. While Telautograph would have entitled it to defer
bargaining until any legitimate question concerning rep-
resentation had been resolved, that doctrine did not au-
thorize it to unilaterally promulgate and implement
modifications in a collective-bargaining agreement prior
15 The fact that the program was-never implemented has no bearing
on the question of whether the offer in and of itself constituted impermis-
sible direct dealing See Tarlas Meat Co, 239 NLRB 1400 (1979), D & H
Mfg. Co, 239 NLRB 393 (1978)
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the issuance of the certification of results. According-
ly, with the exception set out below, I find that Re-
spondent's modifications of the wages and benefits of its
Waynesboro employees violate Section 8(a)(1) and (5) of
the Act.
I do not find -Respondent's unimplemented announce-
ment of an "employee relations committee" to be unlaw-
ful since the evidence establishes that the purpose of the
committee was to provide a medium of communication
not otherwise unlawful under the Act.
- D. Objections -
As noted, three objections have been referred by the
Board for hearing in this 'proceeding: 16 The first objec-
tion, which is based on Respondent's alleged recognition
of petitioner as a bargaining agent, 'is without record sup-
port. The only evidence arguably supporting this objec-
tion, the fact that Respondent sent petitioner a copy of a
letter announcing a new' benefit program, falls far short
of establishing recognition under any generally accepted
standard. Accordingly, I recommend dismissal of Objec-
tion 3.
The second and third objections set'for hearing allege
conduct corresponding to the paragraphs of the com-
plaint which charged that Respondent made implied
promises of increased benefits and unilaterally announced
a new benefit program prior to the election. Having
found 'that- Respondent committed these violations as
charged, I' find that Objections 9 and 11 should be sus-
tained and, therefore, recommend that the election in
Case 26-RD-521 be-set aside. See Dal-Tex Optical Co.,
137 NLRB 1782, 1786 (1962).
E. Bargaining Order
Both the General Counsel and the Union contend that
a fair election at this time would not be possible and,
therefore, seek a bargaining order. The Board has repeat-
edly held that-a postelection grant of benefits pursuant to
an unlawful promise of benefits made during the cntical
period creates a situation where the effect of an employ-
er's misconduct cannot be erased by merely setting an
election aside. E g., Dow Co., 250 NLRB 748 (1980);
Westminster' Community Hospital, 221 NLRB 185 (1975).
Moreover, a new election here would not fully remedy
Respondent's violation of Section 8(a)(5) during the criti-
cal period.!-Accordingly; -I shall recommend that' Re-
spondent be ordered to bargain collectively with the
Union.
CONCLUSIONS OF LAW
1. The Respondent is an - employer.- engaged, in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
16 At the hearing , counsel for the Union contended that Respondent's
solicitation and distribution rules, while not the subject of an objection
here set for hearing, should be found to constitute objectionable conduct
during the critical period The Board 's adoption of the Regional Direc-
tor's recommendation to dismiss the Union 's "catch -all" objection, to-
gether with the lack of notice given Respondent , make it highly question-
able whether I have authority to consider the matter In any event, the
Union abandoned this argument on brief
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3 All production employees and quality control audi-
tors employed at Angelica Corporation's Waynesboro,
Tennessee facility, excluding all office clerical employ-
ees, truckdrivers, technical personnel, mechanics, time
study personnel, markers, pattern makers, guards and su-
pervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has been and
now is the exclusive representative of the employees in
said unit for purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By maintaining and enforcing rules prohibiting the
unauthorized distribution of literature, solicitation, or cir-
culation of petitions at any time on company premises,
Respondent has engaged in, and is engaging in, unfair
labor practices in violation of Section 8(a)(1). of the Act.
6. By promising employees increased wages and bene-
fits in order to induce them to vote to decertify or other-
wise reject the Union as their bargaining representative,
Respondent has engaged in unfair-labor practices in vio-
lation of Section 8(a)(1) of the Act.
7. By Unilaterally informing its employees that it
would offer them a new life insurance benefit program,
Respondent has engaged in an unfair labor practice in
violation of Section 8(a)(1) and (5) of the Act.
8. By unilaterally changing the wages and benefits es-
tablished by the terms of the collective-bargaining agree-
ment between Respondent and the Union prior to final
resolution of the question concerning the continued rep-
resentative status of the Union raised in Case 26-RD-
521, Respondent engaged in and is engaging in conduct
violative of Section 8(a)(1) and (5) of the Act.
9. A preponderance of the credible evidence does not
establish that Respondent has otherwise violated the Act.
10. By its conduct set forth in paragraphs, 6 and 7, Re-
spondent has interfered with its employees' freedom of
choice in selecting a bargaining representative, and such
conduct warrants setting aside the election conducted on
September 14, 1981, in Case 26-RD-521.
THE REMEDY
Having found that Respondent violated Section 8(a)(1)
and (5) of the Act, I shall recommend that it'be'ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
For the reasons set forth above, I shall also recommend
that Respondent be ordered to bargain collectively with
the Union as the representative-of Respondent's produc-
tion employees. This order is not to be construed as re-
quiring rescission of the wages and benefits granted sub-
sequent to the election.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed17 •
17 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Contuiued
-ANGELICA CORP
ORDER
The Respondent, Angelica Corporation, Waynesboro,
Tennessee, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining in effect or enforcing rules 28, 29, and
33--of its "Rules and 'Regulations" or any. other rules
which prohibit the unauthorized distribution of literature,
solicitation, or circulation of petitions at any time on its
premises.
(b) Promising or granting employees increased wages
or benefits in order to induce them to vote to decertify
or otherwise reject the Union as their bargaining repre-
sentative.
(c) Refusing to bargain with the Union by dealing di-
rectly with employees concerning matters ;over which it
is obligated to bargain with the Union.
(d) Unilaterally changing the terms and conditions of
employment of its employees in the unit described in
paragraph 3 of the foregoing Conclusions of Law prior
to final resolution of any questions concerning the con-
tinued representation of the Union or any other incum-
bent union.
(e) In any like or related manner 'interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, recognize and bargain collectively with
the Union as the.exclusive representative of the employ-
ees in the appropriate unit described in paragraph 3 of
the foregoing Conclusions of Law and, on request,
embody in a signed agreement any understanding
reached.
(b) Post at Waynesboro, Tennessee place. of business
copies -of the attached notice marked "Appendix." i 8
Copies of the notice, on forms provided by the Regional
Director for Region 26, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days' in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent 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 Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that allegations of the
complaint not specifically found herein be dismissed.
IT IS FURTHER RECOMMENDED''that Objections 9.and
.11 be-sustained; the results of the election in Case-26-
RD-521 be set aside, and the petition dismissed.
Board and all objections to them shall be deemed waived for . all pur-
poses -
18 If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
II
625
WE WILL NOT promise to grant you increased wages
or benefits in order to induce you to decertify or other-
wise reject the International Leather Goods, Plastic and
Novelty Workers' Union, AFL-CIO as your bargaining
representative.
WE WILL NOT refuse to bargain with the International
Leather Goods, Plastic and Novelty Workers' Union by
dealing directly with employees concerning matters over
which we are obligated to bargain with that Union.
WE WILL NOT unilaterally modify the'wages or bene-
fits of bargaining unit employees without notice to or
bargaining with the International Leather Goods, Plastic
and Novelty Workers' Union, AFL-CIO prior to. a final
resolution of any question concerning the continued rep-
resentative status of that union. _
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, recognize and' bargain collec-
tively with the International Leather Goods, Plastic and
Novelty Workers' Union, AFL-CIO for - the unit de-
scribed herein with respect to rates of pay, wages, hours
of work and other terms and conditions of employment,
and WE WILL, on request, embody in a 'signed agreement
any understanding reached. The bargaining unit is:
All production employees and quality, control audi-
tors employed at Angelica Corporation's Waynes-
boro, Tennesse facility, excluding all office clerical
employees, truckdrivers, technical personnel, me-
chanics, time study personnel , markers, pattern
makers, guards and supervisors as defined in the
Act. r
WE WILL notify 'you that we have withdrawn and
abolished rules 28, 29, and 33 of our "Rules and Regula-
tions," which prohibited the unauthorized distribution of
literature, solicitation and circulation of petitions on our
premises.
ANGELICA CORPORATION