Caron International, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1979

246 N.L.R.B. 1120 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Caron International, Inc. and Amalgamated Clothing
and Textile Workers Union, AFL-CIO, CLC.
Cases 33-CA 3897 and 33-RC-2333
December 14, 1979
DECISION AND ORDER
On April 27, 1979, Administrative Law Judge
Richard J. Murphy issued the attached Decision in
this proceeding. Thereafter, Respondent Employer
and the Charging Party-Petitioner filed exceptions
and supporting briefs.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
We find no merit in the Petitioner's exception to
the Administrative Law Judge's conclusion that the
threat to group leader Caswell does not warrant in-
validating the election herein. In resolving the ques-
tion of whether certain Employer misconduct is de
minimis with respect to affecting the results of an elec-
tion, the Board takes into consideration the number
of violations, their severity, the extent of dissemina-
tion, the size of the unit, and other relevant factors.
See, e.g., Super Thrif Markets, Inc., I/a Enola Super
Thrift, 233 NLRB 409 (1977). Here, the conduct com-
plained of was isolated, directed toward a single em-
ployee in a unit of approximately 850 employees who
were employed at five different locations (one being
some 25 miles distant from the others), at the end of
an extensive preelection campaign devoid of any
other objectionable conduct. Cf. Dresser Industries,
i Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dn' Wall Products. Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 While Chairman Fanning dissented in Coca-Cola Bottling Companv Con-
solidated 232 NLRB 717 (1977), he here distinguishes the facts of that case
where he would have set aside the election. There only one plant was in-
volved and the majority of Members Penello and Murphy analyzed the facts
as affecting only 2 employees in a unit of 106. Chairman Fanning noted that
the Board did not usually rely upon the number of employees affected. Here,
however, the 846 unit employees work at five separate locations. the threat of
discharge to I employee occurred the day before the election, and there is no
testimony by other employees that they were aware of it, nor is there any
contention that they were. Therefore, the Chairman agrees fully with the
Administrative Law Judge in finding it an unfair labor practice, but die minl-
mis so far as interfering with the election.
In doing so, however, we do not rely on those cases cited by the Admin-
istratise l.avw Judge which deal only with Sec. 8(a)( I ), though cited by him In
his Decision in the section entitled V ObJections to the Election." They
stand for the proposition that certain statentents or conduct by a respondent
may be so de minimis in nature that they do not constitute an 8(a)4 I) viola-
tion. In this case, the 8(a I ) violation is plainly made out, and the issue here
is whether a new election is justified on the sole basis of the single 8(a)( )
violation. Although the two issues may be analogous, they are not the same.
Inc., 242 NLRB 74 (1979). The record shows no other
employee present duing Caron's remarks to Caswell,
nor is there evidence that the remarks were overheard
by or disseminated to any of the employees at the
Employer's facilities. We further note that Caswell
also sought and received assurances from Personnel
Director Wood to the effect that he (Caswell) could
be discharged only for poor job performance. In these
circumstances we agree with the Administrative Law
Judge's conclusion that the unfair labor practice con-
duct is too minimal to have interfered with the con-
duct of a free and fair election. Accordingly, we shall
certify the results of the election herein. See also
McIndustries Inc., 224 NLRB 1298, 1304 (1976).
In Dal-Tex Optical Company, Inc., 137 NLRB
1782, 1787 (1962), cited by the dissent, the Board con-
cluded that "we shall look to the economic realities of
the employer-employee relationship and shall set
aside an election where we find that the employer's
conduct has resulted in substantial interference with the
election .... "(Emphasis supplied.) We there exam-
ined the objectionable statements made by the em-
ployer in three captive-audience speeches to employ-
ees, and found as an ultimate conclusion that "the
entire content of the Employer's speeches, taken as a
whole, with the clear threats and implied anticipatory
refusal to bargain if the Union should win the elec-
tion, generated an atmosphere of fear of economic
loss and complete hostility . . . which destroyed the
laboratory conditions ... and prevented the employ-
ees' expression of a free choice in the election." This
conclusion followed immediately after the reference
to a "substantial interference" test that our col-
leagues, Members Jenkins and Truesdale, for some
reason here label as "out of context." The Dal-Tex
rationale is, of course, consistent with our entertain-
ing objections to conduct "affecting the results" of an
election. In the instant case the record does not in our
view warrant a conclusion that the conduct com-
plained of affected the results of the election. Con-
trary to the dissent's assertions, this conclusion does
not even approach-much less result in--"the excep-
tion swallowing the rule." Rather it merely recognizes
that, in the particular circumstances of this case, there
is no evidence that the conduct complained of has
resulted in any interference with the election, which is
the Board's test in evaluating conduct alleged as ob-
jectionable. Indeed, the dissent appears to have con-
fused the Dal-Tex point that conduct violative of Sec-
tion 8(a)( ) is a foriori objectionable, with evaluation
of whether the conduct has, by itself, affected the re-
sults of an election such that it warrants our setting
the election aside.
In effect, Members Jenkins and Truesdale would
transform the "a/fbrtiori" language of Dal-7ex into a
246 NLRB No. 179
1120
CARON INTERNATIONAL. IN('.
per se approach and set aside any election where
8(a)( I) conduct found violative of the Act occurred in
the critical period. Thus, they would disregard the
limited exception of Super Thrfi which they purport
to recognize: that is, violations as to which "it is virtu-
ally impossible to conclude that they would have af-t:
fected the results of the election." This case, we be-
lieve, fits that exception. The Board is a quasi-judicial
agency and this case has been to a hearing. To con-
clude now, on the basis of a per se rule, that the single
threat here affected the election results is to totally
disregard the record before us.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Caron International, Inc..
Rochelle, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Amalgamated Clothing
and Textile Workers Union. AFL-CIO, CLC. and
that said labor organizaton is not the exclusive repre-
sentative of all the employees, in the unit herein in-
volved, within the meaning of Section 9(a) of the Na-
tional Labor Relations Act, as amended.
MEMBERS JENKINS AND TRUESDALE, dissenting in
part:
We join our colleagues in finding that Respondent
violated Section 8(a)(1) of the Act by threatening on
two occasions to discharge employee Larry Caswell
because of his union activities. We cannot, however,
join in our colleagues' acceptance of the Administra-
tive Law Judge's conclusion that the substantive vio-
lation does not justify invalidating the election and
directing a second election.
I The dissent emphasizes that a threat to discharge a leading union sup-
porter has been termed "coercion of a most serious nature." The Board s)
stated in its opinion on remand in General Stencils. Inc.. 195 NLRB 1109.
1110 (1972. What the dissent does not mention, however, is that the Board
there considered the "most salient violation" to be the plant closure threat
that "all but inevitably" was discussed among employees. and that the Board
noted the possibility of "a situation in which a senous threat may. in fact.
remain isolated .. ." Obviously the facts in General Stencils do not provide
any' comfort for the dissent, for as the Board made clear:
(I The Emplover made not one threat, but a series of serious threats
which, if carried out, would affect every employee in the unit. I is
realistic. indeed, to conclude that each potentially affected employee
had reason to learn the nature of such threats and to discuss the possible
consequences with fellow emloyees. Ibid
The facts are fully set forth in the Administrative
Law Judge's Decision and need not be detailed here.
It is sufficient to note that on August 30. 1978. the
day befbre the election, Rick Caron, general foreman
of Respondent's "dye house" and nephew of Respon-
dent's president and chairman of the board, twice
threatened to discharge Caswell because of his union
activities. The two threats occurred approximately I
or 1-1/2 hours apart, the latter as part of a purported
"apology" tr the former.
It is well settled that our normal practice is to set
aside an election whenever an unfair practice occurs
during the critical period because "[c]onduct violative
of Section 8(a)(l) is, a f/rtiori, conduct which inter-
feres with the exercise of a free and untrammeled
choice in an election." Dal-Tex Optical Companl,.
Inc., 137 NLRB at 1786. "The only recognized excep-
tion to this policy is where the violations are such that
it is virtually impossible to conclude that they could
have affected the results of the election." Super Thrii
Markets, Inc. /a Enola Super ThriJi, 233 NLRB 409
(1977). In finding this latter test satisfied and declin-
ing to set aside the election, our colleagues primarily
rely on three facts, to wit: that the threats were di-
rected to only one employee, that there was no show-
ing the remarks were overheard by or disseminated to
other employees, and that the unit was composed of
numerous employees. We respectfully disagree.
A threat to discharge a leading union supporter is
"coercion of a most serious nature."5 As the Board
stated in General Stencils. Inc., 195 NLRB at 1109 10
(1972):
A direct threat of loss of employment . . . is
one of the most flagrant means by which an em-
ployer can hope to dissuade employees from se-
lecting a bargaining representative.... Such
threats can only have one purpose, to deprive
employees of their right freely to select or reject a
bargaining representative!
That the threats herein were directed to only one em-
ployee and that no showing was made of dissemina-
tion to others are not grounds for finding that it is
"virtually impossible to conclude that they could
have affected the results of the election." We will not
presume, as the majority apparently does, that these
serious threats were not disseminated to other unit
employees. Indeed, this presumption used by the ma-
jority is directly contrary to Board precedent. 6 Our
' Sol Henkind, an Individual. d/h/a Greenpak Care (Center, ec.. 236 NlRB
683, 686 (1978).
6 Montgomenr Wa4rd & Co, Incorporated. 232 NLRB 848 (1977). See also
Sol HenAind. supra; Coca-Cola Bottling Compan, Consoldaied. 232 NlRB
717. 718 1977) (dissenting opinion o Chairman Fanning): ('obth and Equip-
ment Sales Corp, 228 NLRB 440 (1977) Intercontinenitul M.anujaclurmn
Company. Inc. 167 NLRB 769, 770 (1967) Cf. (ustm Recte'rn. Do o
Keivtone Resources,. Inc.. 230 NL.RB 247 (19771
I 121
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusion in this regard is not altered by the fact that
the threats were directed to one employee at one of
five plant locations composing the unit, particularly
where, as here, the record contains no evidence show-
ing that there was no interchange of or interaction
between their respective employees, or even that the
plants were geographically separated. Further, there
is not even any evidence showing the relative sizes of
the employee complements at the plants composing
the unit.
We are also puzzled by the majority's apparent
abandonment of our longstanding policies regarding
setting aside elections due to serious unfair labor
practices committed during the preelection critical
period. As the foregoing references to Dal-Tex and
Super Thrift illustrate, the position now advocated by
the majority would result in what has heretofore been
the exception swallowing the rule of which it was
born. In our view, this departure from Board prec-
edent is unwarranted and dangerous.
Moreover, the majority's use of an incomplete and
out of context quotation from Dal-Tex does not sup-
port their position. A complete reading of Dal-Tex
leads to the inescapable conclusion that the quotation
refers to certain oral statements, "implied threats
couched in the guise of statements of legal position,"
which had not been found violative of the Act.7 Were
it otherwise, the thrust of our holdings in Dal-Tex
and its progeny would be of little or no significance.
Simply stated, the paragraph cited by the majority
held that employer statements of position which are
(or were) protected by Section 8(c) from an unfair
labor practice finding would nonetheless be grounds
'In context, the complete statement is as follows:
Prior cases involving objections to elections, have held, although not
uniformly, statements similar to those involved herein to the effect that
the employer would not bargain, were merely an expression of the Em-
ployer's "legal position." On the other hand, it has long been well settled
that the same type of statement is not within the "free speech" protec-
tion of Sec. 8(c) of the Act but, rather, constitutes interference, restraint,
and coercion of employees within the meaning of Sec. 8(aX 1 ) of the Act.
We find no logic or sound reason for this disparity of treatment depend-
ing on the nature of the proceeding in which the issue is raised before
the Board. Conduct violative of Sec. 8(a)(I) is, a foriori, conduct which
interferes with the exercise of a free and untrammeled choice in an
election. This is so because the test of conduct which may interfere with
the "laboratory conditions" for an election is considerably more restric-
tive than the test of conduct which amounts to interference, restraint, or
coercion which violates Sec. 8(aXI). Accordingly, to the extent they are
inconsistent herewith, we hereby overrule National Furniture Manufac-
turing Company. Inc. 1106 NLRB 1300 (1953)1, and similar cases holding
such statements to be privileged under Sec. 8(c).
To adhere to those decisions would be to sanction implied threats
couched in the guise of statements of legal position. Such an approach is
too mechanical, fails to consider all the surrounding circumstances, and
is inconsistent with the duty of this Board to enforce and advance the
statutory policy of encouraging the practice and procedure of collective
bargaining by protecting the full freedom of employees to select repre-
sentative of their own choosing. Rather, we shall look to the economic
realities of the employer-employee relationship and shall set aside an
election where we find that the employer's conduct has resulted in sub-
stantial interference with the election, regardless of the form in which
the statement was made. [Dal-Tex, supra at 1786-87.]
for setting aside an election where we find that these
statements have resulted il substantial interference
with the election. The quotation is completely irrele-
vant where, as here, no 8(c) issue is presented and the
8(a)(l) unfair labor practice is serious and clearly
made out. Indeed, the thrust of our decision in Dal-
Tex, as well as the many decisions which have fol-
lowed it, was that any 8(a)(1) conduct during the
critical period results, "aforiori," in substantial inter-
ference with the election. "This is so because the test
of conduct which may interfere with the 'laboratory
conditions' for an election is considerably more re-
strictive than the test of conduct which amounts to
interference, restraint, or coercion which violates Sec-
tion 8(a)(1)."9
We would set aside this election and direct the
holding of a second election at such time as the Re-
gional Director for Region 33 deems appropriated.
' Subject, of course, to the narrow exception set forth in Super Thrift,
supra.
9 Dal-Tex, supra at 1786-87.
10 For the reasons stated in Chairman Fanning's dissenting opinion in
Coca-Cola Bottling Company, supra, Member Jenkins would find any reliance
placed upon Mclndustries, Inc., 224 NLRB 1298, misplaced.
DECISION
STATEMENT OF THE CASE
RICHARD J. MURPHY. Administrative Law Judge: This is
a proceeding under the National Labor Relations Act, as
amended, 29 U.S.C. §151, et seq., hereinafter referred to as
the Act. A consolidated hearing was held on two proceed-
ings which involved identical issues of fact. The hearing
was held in Rochelle, Illinois, on February 15, 1979. Briefs
were filed by the General Counsel and Respondent on
March 19, 1979.
Following the filing of a petition on July 20, 1978 by
Amalgamated Clothing and Textile Workers Union, AFL-
CIO, CLC (the Union), and pursuant to a Stipulation for
Certification Upon Consent Election, an election by secret
ballot was conducted on August 31 in respect to representa-
tion of certain of Caron International, Inc.'s (Respondent),
employees. The election was conducted under the supervi-
sion of the Regional Director for Region 33. At that elec-
tion 667 valid votes were counted, of which 366 votes were
cast against the Union and 301 votes were cast for the
Union.
One of the consolidated cases herein, 33-CA-3897, is a
complaint proceeding based on a charge filed by the Union
on September 12, which alleges that Respondent violated
Section 8(a)(1)of the Act by threatening to close its Ro-
chelle, Illinois, plant if a union were selected by the employ-
ees, and by threatening an employee with discharge be-
cause of union activities. The other consolidated case, 33-
RC-2333, involves union objections filed September I I to
the results of the certification election described above. The
objections to the election are based on the same factual
allegations as are asserted in the complaint case.
I All dates are in 1978 unless otherwise indicated.
1122
CARON INTERNATIONAL. INC.
The essential questions presented for decision here are:
I. Whether Respondent. through Prem Sud. its manager
of industrial engineering, communicated to Ellen Salinas a
threat to close its Rochelle plant if the Union was successful
in its organization campaign.
2. Whether on August 30. the day before the certification
election, through Richard O. J. Caron. its dye house super-
visor Respondent threatened Larry Caswell with discharge
becuase of Caswell's union activity.
3. Whether if the acts alleged were committed the elec-
tion in which the Union failed to receive a majority of the
valid votes cast should be set aside.
Upon the entire record, including my observation of the
demeanor of the witnesses and after consideration of the
briefs filed by Respondent and the General Counsel, I make
the following:
FINDINGS OF FACI AND CON( LUSIONS OF LAWV
I. JURISDIC)TION
By its answer Respondent admits jurisdiction. Respon-
dent is a Delaware corporation which has an office and
textile plant at Rochelle. Illinois. where it is engaged in the
business of' processing wool and synthetic fibers. Respon-
dent annually transports in interstate commerce materials
valued in excess of $50.000. At all times material herein
Respondent employed approximately 680 employees and
45 management personnel at its four facilities in Rochelle.
These facilities are a dye house, packaging plant, and two
warehouses. Respondent operates another plant in Oregon.
Illinois, located approximately 25 miles from Rochelle, at
which it has 170 employees.
11. LABOR ORGANIZATION
Amalgamated Clothing and Textile Workers Union.
AFL-CIO, CLC, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. STATUS OF EMPLOYEES, SUPERVISORS, AND AGENTS
In this proceeding it is stipulated that Ellen "Becky" Sa-
linas and Larry Caswell, the two witnesses presented by the
General Counsel, were at all times material employees of
Respondent, and that Human Resources Director Rex
Wood, Dye House General Supervisor Richard O. J.
"Rick" Caron, Warehouse Foreman Bill Daub. Foreman
Ray Kannheiser. Jr.. Industrial Engineering Manager Prem
Sud, and Industrial Engineer Kevin Sudbury were at all
times material supervisors for Respondent.
IV. UNFAIR .ABOR PRACTICES ISSUES
A. The Threat of Plant Closure
1. Testimony of Ellen Salinas
Ellen Salinas commenced working for Respondent in
February 1977 and continued in that employment until the
week of the hearing. Salinas testified that on or about July
20 she received her first paycheck under new piecework
rates, and that when she came to work on that day she
complained to the industrial engineer. Kevin Sudbury.
about the rates. Salinas further testified that later that day
her foreman instructed her to report to Sudbury's office at
the 5 p.m. break, at which time the new incentive rates
would be discussed. She testified that she did go to Sud-
burv's office, that Sudbury told her that Industrial Engineer
Manager Prem Sud wanted to speak to her, and that Sud-
bury took Salinas to Sud's office. She testified that she was
alone with Sud in his office for about an hour. that Sud told
her that she was a good worker and asked her to be patient
while the new rate system was being installed. Salinas told
Sud that the machines were not working right. that the tim-
ing was off. Salinas stated that Sud responded by saying
that he would check into that problem and would talk to
the plant manager to see if Salinas could be reimbursed for
lost earnings, but that it must he kept confidential. Salinas
then testified that Sud stated:
He also told me that he had worked in a lot of plants
and he had put rates in a lot of plants, union and non-
union plants and when he had worked in one plant in
particular, they had tried to get a union in and the
union got in and the plant was closed up and moved.
He told me that the same thing could happen at Caron.
He also told me that the union had tried to get in there
several times and there was no reason to think that the
union could get there this time. He told me that there
was no way that us girls could get the base rates
changed because of the union election. They were
afraid that the people in the plant would think that the
only reason they were doing it is because of the union.
They wouldn't do it for the people.
Salinas then testified that she returned to Sudbury's of-
fice. that he explained the incentive rate system. and that
she was excused to go back to work.
On cross-examination Salinas testified that she voluntar-
ily resigned her employment the day before the hearing.
She reiterated her testimony that she was in Sud's and Sud-
bury's offices on or about July 20. She reviewed the affidavit
she gave to the General Counsel on September 19, which
statement specified that it was July 21 that she was in the
Sud and Sudbury offices. She testified that she recalled that
date because it was after her first paycheck on the new rates
and right after vacation. On redirect examination she testi-
fied that she received her paycheck on July 20, and that it
was the next day that she spoke with Sud and Sudbury.
At the conclusion of the hearing Salinas was recalled by
the General Counsel, and after reviewing her timesheets
testified that it was possible that the meeting occurred on
June 21 rather than July 21, that it was possible that the
conversation occurred before her vacation rather than after.
and that in fact she had been working on the new incentive
rates in June.
2. Testimony of Kevin Sudbury
Kevin Sudbury, plant industrial engineer for Respon-
dent, testified that on July 20 and 21 he did not see Salinas.
and he testified in detail as to his activities during the pe-
riod from 10 p.m. on July 20 through 2 p.m. on July 21. He
presented timestudy sheets which verified those activities
I 1123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which were inconsistent with a meeting with Salinas on July
21.
Sudbury testified that he had two conversations with Sa-
linas about the incentive rates, that the first was on June 5.
that the second was on June 21, and that Salinas then re-
quested the opportunity to discuss the incentive rates with
Sud and Sudbury. Sudbury testified that he made arrange-
ments with Sud and with Salinas' supervisor, and that he
escorted her to his office. He testified that they discussed the
timestudies and the new incentive rates. He testified that
after a 45-minute discussion in his office he took her to
Sud's office where she remained for about 30 minutes. He
testified that Sud brought her back to his office, and that at
that time Becky agreed that after vacation she would give
the new system a good try. He testified that the vacation
period is a 2-week plant shutdown during early July in
which the majority of the employees take their vacations,
and that Salinas took her vacation at that time. Sudbury
testified that incentive operators such as Salinas keep rec-
ords of their work activities called a daily production sheet.
which record shows when an employee has downtime for
meetings with supervision. He testified that the production
records do not indicate a meeting on July 21 but do show a
meeting on June 20. Sudbury testified that the new incen-
tive rates were installed during the first week of May, and
that Salinas' first check reflecting the new rates would have
been received during the week of June 7. Production rec-
ords confirm that date.
3. Testimony of Prem Sud
Prem Sud testified that he was manager of industrial en-
gineering for Respondent, and that prior thereto he had
been employed by other companies in similar capacities for
14 years. He testified that while there were no union elec-
tions at any of the plant locations at which he previously
was employed, each of the plants other than Respondent's
at which he worked was unionized. He testified that none of
the plants at which he was employed was ever shut down
because of union problems, although many of the plants
have been closed. Sud testified that the meeting on June 21
came about when Sudbury informed Sud that Salinas had
requested a meeting, and that he agreed to meet with her.
Sud further testified he talked with Salinas for about 30
minutes. Sud testified that during that time he explained to
Salinas how the incentive system works, that in response to
this explanation she was relaxed and appeared appreciative,
that he asked her to give the system a try, and that she said
she would when she came back from vacation. Sud testified
that he then escorted her to Sudbury's office and left her
there. Sud testified that during that meeting the subject of
unions did not come up, that the subject of plant closings
did not come up, and that nothing was said about the pos-
sibility of Respondent closing its plants. Sud testified that
Salinas first received payment under the new incentive rates
in a check dated May 26. On cross-examination Sud admit-
ted that he had discussed the events of June 21 and July 21
with Sudbury, and that he had been told that the plant
closings of prior employers which had occurred had been
for reasons other than union reasons. However, he con-
ceded that he was not part of the decisionmaking process
that led to those plant closings.
Finding on Plant Closure Issue
In resolving the conflict on this issue I credit the testi-
mony of Prem Sud. The testimony of Sud and Sudbury was
clear, consistent, and without internal conflict. On the other
hand, the testimony of Ellen Salinas, after correction on
rebuttal, was marked by confusion and uncertainty as to
the date of the meeting at which the alleged threat of plant
closing was made, uncertainty-after professed certainty
as to whether it was before or after the plant closing for
vacation, and as to the date the new incentive rates become
effective. It is not convincing. It is this demonstratedly im-
perfect recollection that causes me not to accept the Salinas
version, not the fact that there may have been a material
need to place the meeting on July 21 rather than June 21.2
I therefore find that the General Counsel has failed to
prove that Respondent threatened to close any of its plants
if the Union were successful in its organizing campaign.
B. The Threat To Discharge an Empl-v)ee fi)r Union
Ac4 ivnit
1. Testimony of Larry David Caswell
Larry David Caswell testified that he has been employed
by Respondent for approximately 12 years, that he is a
group leader and dye tank operator in the new raw stock
area, and that his work area is 100 to 150 feet from the dye
house office. Caswell testified that when he came to work on
August 30 the day before the union election he had several
conversations with Respondent's supervisors, and that the
first conversation was with Rick Caron, general foreman of
the dye house and nephew of the president and chairman of
the board of Respondent. Caswell testified that the first
conversation with Rick Caron took place about 8 to 8:30
a.m. just outside the dye house office, and that Ray Kann-
heiser. Jr.. Respondent's foreman in charge of the winding
room, was present. Caswell described that conversation as
follows:
First. Rick Caron, just a few minutes ago, had posted a
notice on a pillar inside the dye house office from the
in-plant committee against the union and it stated that
if we used good common sense and used our heads, we
would vote against the union. And I said to Rick Ca-
ron outside the office there, I said, "Rick, if we used
our heads and used good common sense, we would
vote for the union" and he turned to me and said,
"Larry, if the union loses the election, you will be ter-
minated." I then turned to Ray Kannheiser and said,
"you heard that, didn't you? He's threatening me," but
Rick Caron repeated and said he did not hear anything
because he is supervisory personnel. So then I turned
and left.
Caswell testified that he had an additional conversation
with Rick Caron about 1 hour or 1-1/2 hours later in Cas-
2 The election was held by stipulation as a result of a union petition filed
July 20. If the Salinas-Sud conversation occurred prior to that date state-
ments made at the meeting could not be considered on the question of
whether the election should be set aside. GoodS ear Tire and Rubber Comnpanv.
138 NLRB 453 (1962); Jerome J Jocomet. d/b/a Redi ,Novel' (Co and R-N
Amusement Corporation, 222 NLRB 899 (1976).
1124
CARON INTERNATIONAL, INC.
well's work area, and that only Caron and Caswell were
present. Caswell described that second conversation as fol-
lows:
Well. Rick Caron approached me and said that he was
sorry for what he had said. And he said that said.
"Larry, you have a lot of good ideas, but" he said, "a
lot of times you go off on tantrums like supporting the
union and calling OSHA," but he again apologized to
me and said he did not know why I had not been
looking through my personnel file. Then he left.
Caswell testified that subsequently he had a conversation
with Bill Daub, a warehouse foreman for Respondent, in
Caswell's work area, and that no one else was present. Cas-
well testified that Daub requested Caswell not to do any-
thing about the Rick Caron threat and requested Caswell as
a personal favor to drop the issue. Caswell testified that he
promised Daub to tell Rick Caron that Daub had made the
request. Caswell testified that during the afternoon he ap-
proached Rick Caron in the dye house office, that no one
else was present, that he then told Rick Caron that Daub
had made a personal request that the matter be dropped.
and that at that time Rick Caron said that he would appre-
ciate it if the matter was dropped. Caswell testified that a
while later Rick Caron again approached him and apolo-
gized, and that no one else was present at the time the
apology was tendered. Caswell further testified that after
Rick Caron left he called Rex Wood, Respondent's human
resources director. told Wood of the conversations with
Rick Caron and Bill Daub. and said that he wanted Wood
to know that the foremen were threatening people. Caswell
then testified that Wood told him that Wood would con-
sider it a favor if the matter was dropped, and that Caswell
could not be terminated unless he messed up badly.
On cross-examination Caswell reiterated his testimony on
direct.
2. Testimony of Rex Wood
Rex Wood, corporate human resources director for Re-
spondent, testified that he was involved in Respondent's
campaign leading up to the union election on August 31.
He testified that Respondent became aware of the union
campaign at end of May or June I through handbills that
were passed out. He testified that the campaign was active
from Respondent's and the Union's standpoint, that the
Company conducted three captive-audience meetings and
made approximately 10 to 12 mailings. that there were
company postings in the plant, and that there were in-plant
committees for and against the Union. Wood testified that
Caswell was an active union supporter during the cam-
paign, and that Caswell telephoned Wood on August 30
and said that he felt that Rick Caron had threatened him.
Wood denied that he had requested Caswell to drop the
charge and testified that he assured Caswell that the only
reason a person can be terminated is due to job perform-
ance.
3. Testimony of Richard O. J. "Rick" Caron
Rick Caron testified that he was general supervisor in the
dye house, that he knew Larry Caswell, and that he recalled
having several conversations with Caswell on August 30
involving the union election. Caswell was not under his su-
pervision at that time. In his direct testimony Caron denied
threatening to discharge Caswell. On cross-examination Ca-
ron admitted to a close family relationship to the president
and chairman of the board and to other members of the
board of directors. Caron testified that he participated in
the Company's antiunion campaign by attending meetings
and posting posters.
4. Testimony of Ray Kannheiser. Jr.
Ray Kannheiser, Jr.. testified that he is a supervisor for
Respondent on the first shift. Kannheiser testified that he
knew Caswell, and that on August 30 he came upon Rick
Caron and Caswell when they were having a conversation.
His testimony as to what he heard of that conversation is as
follows:
Well, they were arguing back and forth and Rick sass,
"Well you can be terminated" and Caswell said,
"You're my witness, he threatened me."
Kannheiser testified that he did not hear any threatening by
Caron.
Finding on Threat of Discharge Issue
I find that the testimony of Caswell should be credited.
The fact of the conversations between Rick Caron and Cas-
well is confirmed by Caron and by Kannheiser. Kannheiser.
a witness for Respondent. testified that he heard Caron sav
to Caswell. "Well you can be terminated," and Kannheiser
testified that Caswell called on him to be a witness to the
threat. Respondent presents no testimony that Caron de-
nied the threat in Kannheiser's presence. Moreover, the
Caswell testimony that Daub, a foreman, asked Caswell to
drop the matter is unrebutted. Respondent presented three
witnesses in rebuttal of Caswell but failed to produce Daub
or explain his absence. Finally, the brief testimony of Rick
Caron consists of an admission that he had conversations
with Caswell and a denial of the threats. However, Caron
did not relate the subject of those conversations and explain
why he had several conversations with Caswell, who was
not under Caron's supervision.
For these reasons it is clear to me that the testimony of
Caswell should be credited. I therefore find that Respon-
dent threatened to discharge Caswell because of union ac-
tivity, and that by these threats Respondent is guilt of an
unfair labor practice in violation of Section 8(a)(1) of the
Act.
B. ()JF( ri(Ns It) ItiE tt:t (II
The objections to the election which was held on August
31 were based on the alleged plant closing threat and the
alleged threat to dismiss an employee because of union ac-
tivitv. I have found that there is no evidence to support the
alleged plant closing threat and also have found that Re-
spondent did threaten discharge of an employee for union
activity. thereby violating Section 8(a(I) of the Act. The
testimon on that violation is summarized above. That is
the onlx credible evidence submitted b the General Courn-
I 1125
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sel of unlawful activity by Respondent during the election
campaign. It occurred on the day before the election. The
first threat of discharge was made in response to a comment
made by employee Caswell to Supervisor Caron. The later
threat that day was made during the course of what appears
to be a less than sincere apology or retraction. However,
these discussions are insufficient to taint the election. No
other employees testified that they were aware of the threat.
In the context of a vigorous election campaign conducted
by both the Union and Respondent I conclude and find
that the threats to Caswell, while an unfair labor practice,
are de minimis and therefore do not justify invalidating the
election. Arvin Industries, Inc., 226 NLRB 925 (1976); Bos-
ton Cab Company, Inc., 212 NLRB 560 (1974); Dieckbrader
Express, Inc., 168 NLRB 867 (1967). Therefore, the unlaw-
ful acts do not justify invalidating the election.
Vl. REMEDY
Having found that Respondent has engaged in an unfair
labor practice in violation of Section 8(a)(l) of the Act, I
recommend that it be ordered to cease and desist therefrom
and from like and related conduct and that it be ordered to
take certain affirmative action necessary to effectuate the
policies of the Act.
Upon the foregoing findings of fact, and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its dye house, packaging plant, and ware-
houses at Rochelle, Illinois, and at its plant at Oregon, Illi-
nois, the attached notice.4 Copies of said notice, on forms
provided by the Regional Director for Region 33, after
being duly signed by Respondent, shall be posted by it im-
mediately upon receipt thereof, and be maintained by it for
a period of 60 consecutive days therafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for Region 33, in writ-
ing, within 20 days from the date of this Order, what steps
it is taking to comply herewith.
IT IS FURTHER ORDERED that the objections filed in Case
33 RC-2333 be overruled.
I In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by the Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional abor Relations Board."
APPENDIX
ORDER3
The Respondent, Caron International, Inc., Rochelle, Il-
linois, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Threatening employees with discharge because of
their union activities.
3 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 thereto shall be deemed
waived for all purposes.
NoricE To EMPLOYEES
POSTED BY ORDER OF IHF
NAIIONAL LABOR RELAIIONS BOARD
An Agency of the United States Government
WE wll.l. NOT threaten employees with discharge be-
cause of their union activities.
WI, wlu. NOI in any like or related manner interfere
with employees in the exercise of their rights guaran-
teed in Section 7 of the National Labor Relations Act.
CARON INIERNAIIONA. IN('.
1126