Custom Recovery

National Labor Relations Board - Board Decisions

Jun 16, 1977

230 N.L.R.B. 247 (N.L.R.B. 1977)

CUSTOM RECOVERY
Custom Recovery, Dlv. of Keystone Resources, Inc.
and United Steelworkers of America, AFL-CIO-
CLC. Cases 10-CA-11825 and 10-RC-10569
June 16, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On October 8, 1976, Administrative Law Judge
Julius Cohn issued the attached Decision in this
proceeding. Thereafter, Employer filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Custom Recov-
ery, Div. of Keystone Resources, Inc., Greensboro,
Georgia, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 Member Walther would not find a violation for Supervisor Humphress'
alleged threat to employee Waller concerning union solicitation in view of
the following circumstances: Humphress knew Waller was campaigning for
the Union during working time; Humphress prohibited Waller from
campaigning during working time only and expressly permitted campaign-
ing during lunch hour and breaktime; there is no evidence that the
Respondent allowed nonunion solicitation during working time; and since
there is only one violation of the Act in this matter, it is clear that the
Respondent did not have any union animus or animus against Waller. For
the reasons set forth by Chairman Miller in his dissenting opinion in Daylin,
Inc., Discount Division d/b/a Miller's Discount Dept. Stores, 198 NLRB 281
(1972), Member Walther does not adhere to the majority opinion in that
Decision.
Chairman Fanning and Member Penello disagree with their colleague
because he has ignored the applicable law. For, as found by the
Administrative Law Judge, in the absence of a valid rule the prohibition of
employee solicitation interferes with employee rights unless the employer
230 NLRB No. 32
can affirmatively show impairment of production (Daylin Inc., supra). Here,
Respondent had no rule and did not show production was impaired (in fact,
it did not even produce employee witnesses to testify they were solicited).
Further, in the absence of a valid rule whether or not other solicitation is
allowed (mentioned by the Administrative Law Judge in a "moreover"
context) is irrelevant.
DECISION
STATEMENT OF THE CASE
JuLIus COHN, Administrative Law Judge: This consoli-
dated proceeding was heard on May 26 and 27, 1976, in
Greensboro, Georgia. Upon a charge filed and served on
March 1, 1976, the Regional Director for Region 10 issued
the complaint in this proceeding on April 22, 1976, alleging
that Custom Recovery, Division of Keystone Resources,
Inc., herein called the Respondent or Employer, violated
Section 8(aXl) of the Act in various respects.
Pursuant to a Decision and Direction of Election issued
on February 19, 1976, an election was conducted among
certain of Respondent's employees on March 19, 1976. The
tally disclosed that of 78 valid votes counted 33 were cast
for the Petitioner, 37 were cast against it, and 8 ballots were
challenged. The challenges were sufficient in number to
affect the results of the election, and on March 26, 1976,
the Petitioner filed timely objections to conduct affecting
the results of the election. On May 11, 1976, the Acting
Regional Director issued a Supplemental Decision finding
that six of the challenged ballots were cast by persons who
were not employees of the employer on either the eligibility
date or the date of election and were consequently
ineligible to vote and the challenges to their ballots were
sustained. The remaining two challenged ballots were not
resolved as they were insufficient to affect the results of the
election. As to the Petitioner's objections, Objections I and
3 were withdrawn by the Petitioner and the Acting
Regional Director found that Objections 2 and 4 raised
issues identical to those in the unfair labor practices found
and accordingly ordered the cases consolidated for hear-
ing.
Respondent filed an answer denying the commission of
unfair labor practices.
Issues
Whether Respondent by its supervisors and agents
engaged in various acts of interrogation of its employees.
Whether Respondent by its supervisors and agents
threatened to close the plant if the Union were selected as
the collective-bargaining representative.
Whether Respondent threatened employees with loss of
profit sharing and other benefits.
Whether Respondent threatened employees with loss of
work should the Union be selected as the representative of
the employees.
Whether Respondent threatened an employee with
discharge because he engaged in union activity.
247
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Respondent, a Pennsylvania corporation, has a plant and
place of business at Greensboro, Georgia, where it is
engaged in the business of recycling nonferrous metals.
During the past 12 months, Respondent purchased and
received goods valued in excess of $50,000 from suppliers
located outside the State of Georgia. The complaint alleges,
the answer admits, and I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO-CLC, herein
called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent has been engaged at its Greensboro, Geor-
gia, plant in the business of recycling nonferrous metals by
processing them from shipments of scrap received from its
sole customer, Western Electric. In October 1975 Respon-
dent was advised that Western Electric was building a new
plant in South Carolina and would cease sending scrap
materials to Respondent as soon as it would be able to
process them in its own plant. By December 1975, there
was a reduction of 25 percent of the materials normally
sent by Western Electric and this resulted in the layoff of
about 24 employees at the end of January 1976. The
employees were informed of this layoff at a meeting on
January 26. By letter dated March 12, 1976, Western
Electric notified Respondent that, effective June 30, 1976,
scrap shipments to the Greensboro plant would be
terminated.
In the meantime the Union had filed a petition for a
representation election on January 8, 1976. This initiated a
campaign in the course of which Respondent held meetings
at which six speeches were given by its general manager,
Joseph Humphress. He spoke to assembled groups of
employees, delivering the same speech to each shift. The
speeches delivered on January 14 and 26 and March 15 are
contended by General Counsel to have contained remarks
violative of the Act. In addition, the General Counsel has
alleged that Respondent's supervisors engaged in conduct
including various acts of illegal interrogation of employees,
a threat to close the plant, and a threat to discharge an
employee because of his union activity.
B. The Speeches
Before beginning a discussion of the contents of the
speeches, it is necessary to dispose of an issue raised by the
General Counsel concerning the method of their delivery
by Humphress which would be applicable to all the
speeches. It is contended that Humphress did not read
them exactly as written but rather looked out at his
audience and made remarks which are not in the written
text. This contention relies mainly on the testimony of
Patrick Rush, one of the employees who had been laid off
at the end of January, but who attended both of the
meetings that month. Rush stated that Humphress had
some sheets of paper in his hand while talking and, while
he thought that Humphress was reading from the papers,
he was not doing so word for word and was looking mostly
at the audience. On cross-examination, Rush insisted that
Humphress had not been reading from the papers he held
in his hand despite being advised of testimony of others to
the effect that Humphress actually read the speeches; and
Rush rather testily stated that he knows when somebody is
pretending and he knows when someone is reading from a
paper and when he is not. He also stated that he did not
know what was written on the papers Humphress was
holding but did know that Humphress was not following it.
As part of the text of the first speech on January 14,
Humphress apologized to the employees for having to read
the speech word for word, stating that his attorneys had
advised that it was necessary to have a written record of the
meetings. Humphress testified that he actually read the
speeches word for word and, when he did glance up at
times, he stopped reading for that moment. He said he just
held the speech in front of him and read it without trying to
maintain eye contact with the audience. John Reese,
Respondent's production manager, said he was familiar
with all the speeches, having helped in their preparation
and read them over many times. He stated that there was
no doubt that Humphress read the same speech verbatim
to all shifts.
The testimony of Rush to the effect that Humphress was
not reading word for word from his papers is not supported
by other employee witnesses who addressed this matter.
Freddie Wright, an employee, testified with respect to a
speech given by Humphress which, it turned out, did not
relate to any allegation of the complaint. However, in the
course of this testimony, Wright stated that Humphress
appeared to be reading that speech. Elgin Armstrong,
another employee, had submitted an affidavit to the Board
in which he averred that Humphress appeared to be
reading his speeches and then testified that at the time he
gave his statement he believed that Humphress was reading
the speeches. Finally another employee, Jessie James
Howell, said during the course of his testimony concerning
the March 15 speech that Humphress spoke from papers he
had with him and appeared to be reading from them.
Thus, Rush was the only witness who stated that
Humphress was not completely reading his speeches and
this was based upon his conclusions derived from observa-
tion and not on actual knowledge. As all the other
witnesses corroborated Humphress, I do not credit Rush,
particularly as his testimony as a whole revealed a shaky
recollection except for one or two items about which he
was concerned. I therefore find that the speeches delivered
by Humphress were read from prepared papers and the
evidence is insufficient to find that he ad-libbed or
departed from the texts.
The complaint alleges that on or about January 20, 1976,
Humphress threatened to close the plant if the Union were
designated as collective-bargaining representative and,
further, he threatened employees with loss of profit sharing,
248
CUSTOM RECOVERY
attendance bonuses, wages, company-paid insurance,
loans, and other benefits, and with loss of work if the
Union were designated. By amendment to the complaint, it
is also alleged that on March 15 Humphress threatened
employees with loss of employment opportunities. All these
allegations relate to the speeches made by Humphress. The
record reveals that Humphress spoke to the employees on
January 14 and 26, so it will be assumed that the
allegations concerning his conduct on January 20 relate to
either of the two dates in January.
Patrick Rush testified that, at the beginning of the
January 14 speech, Humphress stated that the Union was
the cause of the Respondent's closing its plant in Atlanta.
He said that Humphress also told the employees that, if the
Union came in, the Company would cut off their profit-
sharing checks and they would not be able to borrow
money any longer. The text of the speech reads as follows:
On Monday, we received a letter from the Steelworkers
Union - that's the same Union we had before we had
to close the plant over in Atlanta. Anyhow, the Union
has asked the National Labor Relations Board to hold
an election here to decide if you want a union.
There is no further reference in the speech to the plant
closing in Atlanta nor any discussion of the causes of that
shutdown. Humphress stated that he mentioned the
Atlanta plant purely as a means of identifying the Union
involved herein. I find that the wording of this portion of
the speech is not a sufficient basis for inferring that
Respondent attributed the Atlanta closing to the Union.
Nor are any facts given which would relate to the situation
in the Greensboro plant so as to constitute a threat that the
Greensboro plant would be shut down as a result of
selection of the Union.
The reference in the speech to profit sharing is as
follows:
Let me give you an example - Unions like to have as
many people as possible doing as little work as possible.
The reason for that is the more workers, the more
money the union makes. Now in this plant, just ask
yourselves what that would do to your profit sharing
payout.
There is nothing in this statement which implies that
Respondent would cut out profit sharing, as contended.
Humphress has merely indicated his opinion that a union
may attempt to put more people to work, causing greater
expense to the Company and thereby a reduction of profit
sharing. I find that the reference in the speech concerning
profit sharing is devoid of any threat to cut it out.
Although Rush testified that Humphress said employees
would not be able to borrow money, there is no reference
to loans in any of the speeches. However, Humphress
stated that the subject of loans came up during the course
of the second speech when an employee asked a question
about it. Humphress replied that the Company would
adhere to the advice of counsel that it stop making loans
because Respondent may be open to a charge of trying to
influence employees or purchase votes. From the uncon-
tradicted testimony of Humphress, it appears that Respon-
dent had no established policy or structure concerning
loans which were made on an individual basis in situations
where an employee may have needed a few dollars to tide
him over. As Respondent appeared to be acting in good-
faith reliance on the advice of counsel in this matter, and
there is no evidence that employees actually requested and
were refused loans during the pendency of the petition, nor
does it appear that Respondent linked the Union as the
cause of its suspending any loan to an employee, nor did it
indicate that loans would be completely stopped in the
event of a union victory, I find that, by responding to the
employee's questions in this manner during the course of a
speech, Humphress, on behalf of Respondent, did not
violate Section 8(aXl) of the Act.1
Two employees testified concerning the second speech
which Humphress delivered on January 26. On this
occasion Humphress had announced the layoff of 24
employees because Western Electric was doing some of the
work at one of its own plants and was constructing another
plant in South Carolina which would eventually require the
shutdown of Respondent's plant. Freddie Wright testified
that Humphress asked whether the employees did not think
it would be hard to get new business if they were unionized
or did they think it would be easier if they stayed the way
they were. Wright also said that Humphress told the people
it was going to be up to them to decide whether the Union
was going to help them or hurt them. The other employee,
Sidney Waller, also testified as to the announcement by
Humphress of the layoff and the fact that Western Electric
was going to move their work to South Carolina. Waller
said that Humphress told them that he did not know what
they were going to do if the place were shut down, but he
said he was going to try and look around and get some
other kind of business and would let them know. There is
no reference to the Union in Waller's testimony. I find
nothing in the testimony of these witnesses nor, indeed, the
speech itself, which is part of this record, impermissible
under Section 8(c) of the Act. In this connection it is noted
that there is no issue in this proceeding regarding the layoff
of the 24 employees at the end of January nor of the
eventual closing of the plant at the end of June as a result
of the loss of Respondent's sole customer. Humphress set
forth only his personal experience and opinion "that
unions hurt efficiency and make it harder to get new
work." An employer is free to tell "what he reasonably
believes will be the likely consequences of unionization
that are outside his control," and not "threats of economic
reprisal to be taken on his volition." 2
The final witness of General Counsel concerning a
speech was Jessie James Howell. At the outset, he testified
to a speech allegedly delivered on March 9. Although
Respondent conceded that a speech had been given on that
date, it was apparent that Howell was incorrect as to the
time when the speech he was testifying about was given.
Finally the General Counsel was permitted to amend
paragraph 9(a) of the amended complaint so as to allege
that the speech in question occurred on March 15 rather
2 N.LR.B. v. River Togs, Inc., 382 F.2d 198., 202 (CA. 2, 1967).
249
Cutter Laboratories, Inc., 221 NLRB 161 (1975).
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than on March 9. Before that speech was actually delivered
a letter was passed around among the employees which
had been received by Respondent from Western Electric
advising that, effective June 30, scrap shipments to the
Greensboro plant would be terminated. According to
Howell, Humphress started to talk about the Union and
told the employees "to take the right fork of the road
because it was our future. If we did not take the right fork
of the road we would be out of a job because Southern Bell
was moving its material to another plant in South Carolina
that they were building down there. And, that they were
looking for a new company to move in. And, the new
company would not come in where there was a union."
While Humphress actually spoke about the same subjects
as reported by Howell in his testimony, it is clear that
Howell had taken these remarks out of context. According
to the text of the speech, Humphress actually said: "several
weeks ago, I told you that this plant was going to lose its
only customer - Western Electric. As it stands now, we
will stop receiving any busines from Western Electric by
the end of June 1976 just 3 months away. If we are unable
to find a new customer we will be out of business and this
plant will be closed by the end of summer." Thus, at this
point, the reference to the closing of the plant was not
made in connection with the union organizational cam-
paign but rather to the loss of the sole customer, Western
Electric. Humphress went on to talk about the difficulty of
obtaining new customers and stated his opinion as to
unions and their methods. With reference to customers he
said, "And the companies we hope to get are interested in
one thing - a dependable company that delivers a good
product each time." He said he did not think that the
Union could help them in getting business. Finally, he said
that he did not know whether a union would keep them
from getting a new customer but he did know one thing for
sure: "the Union sure as hell is not going to win us any
customers, and it could hurt us in our efforts to change this
plant into a new operation." While it is fairly obvious that
in his speech Humphress was emphasizing that a union
could possibly make it difficult for Respondent to obtain
new business he did not say baldly that some company
would not give them business if there were a union. I do
not credit the testimony of Howell as to this latter
statement. Apart from the fact that I have already found
that the speeches of Humphress were delivered from
prepared text, Howell was not certain in his testimony; he
was confused as to the dates of the speeches and appeared
to have them mixed up in his mind; he also said that on
March 15, the same date of this speech, Reese also spoke to
the employees when in fact Reese addressed them
concerning voting procedures on the day before the
election. Moreover, there is the uncontradicted testimony
of Reese and Humphress to the effect that Howell was
actually asleep during a portion of the March 15 speech
and was rebuked by Humphress. Finally, Howell's testimo-
ny is not corroborated by any other employee who
attended the meeting. I find that the speech of March 15
contains a prediction of the possibility that Respondent
may not be able to attract new customers, a consequence
beyond its control, rather than a threat of action on its part
which would result in the loss of employment opportunities
should the employees select the Union as their collective-
bargaining representative. It therefore does not violate the
Act.3
Accordingly, on the basis of the above I find that
Respondent, through its general manager, Humphress, did
not violate Section 8(a)(1) of the Act as a result of the
speeches he delivered on January 16 and 26 and March 15.
C. The Alleged Interrogations
1. By Foreman Gary Cato
It is alleged that on or about January 5 Foreman Cato
unlawfully interrogated employee Grover Cochran. Coch-
ran said that around the first of January while he was
working Cato, his supervisor, came up and asked him if he
knew anything about a union trying to come out there and
Cochran replied that he did. Cato then asked him if it
would help him any and Cochran said it probably would.
Cato allegedly said that the Union would not do anything,
the people would then go out on strike and would not get
paid for that time, and the Company would have a right to
hire new people. Upon cross-examination, it developed
that Cochran had actually included the contents of two
conversations he allegedly had with Cato. The discussion
about strikes occurred, according to Cochran, on the
occasion of the second conversation immediately after the
July 14 speech by Humphress. Also, in relating the
contents of the first speech on cross-examination, Cochran
stated that Cato asked, "Do you know anything about a
union," to which Cochran replied "Uh-huh, I didn't know
anything about it." This is the opposite of what he said on
direct examination. Cato denied ever talking to Cochran
prior to the filing of the union petition on January 12,
stating that he was unaware of the existence of the Union
until he was informed by Humphress of the filing of the
petition. He recalls a conversation with Cochran and other
employees after Humphress delivered his January 14
speech when employees asked him various questions
concerning it, to which he responded as best he could. He
further denies asking any employees questions concerning
their knowledge of a union.
It is apparent that Cochran was confused, and his
testimony concerning his alleged talks with Cato was
inconsistent between direct and cross-examination. He also
referred to a conversation occurring prior to the filing of
the petition and the record is bare of any evidence of
activity at that time. In these circumstances I do not credit
Cochran and accordingly will dismiss this allegation of a
violation of Section 8(aXl).
Another employee, Sidney Waller, testified that, during a
conversation about 4 or 5 days before the election, Cato
asked him what he thought about the Union. Waller
replied that "the way things are running it does not matter
which way it goes." There followed a conversation in which
Cato told him he would appreciate it if he would vote no
and keep the Union out, that everything would be better
off without the Union, and he urged Waller to talk to the
3 N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969).
250
CUSTOM RECOVERY
other employees and help keep the Union out. However,
on cross-examination Waller changed his testimony with
respect to whether Cato asked him what he thought about
the Union. Waller said at this point that Cato did not ask
him any questions but just told him how he felt about the
Union and hoped that Waller would vote no. Cato himself
testified that he had not one but rather two conversations
with Waller during the course of which the Union was
mentioned. These occurred in January and in mid-Febru-
ary and, according to Cato, were just normal general
conversations in which Waller stated that he was in a mess
with the Union because supervisors were avoiding him.
Cato told him that this was because everyone was busy and
the supervisors were spread out. Cato states that their
conversations related to the economy and high prices and
worry concerning their jobs in the event the plant was
unable to find new business.
In view of Waller's admission that Cato did not ask him
questions concerning the Union or how Waller felt about
the Union, I find that Cato did not unlawfully interrogate
Waller concerning his sympathies for the Union.
2. By Foreman Richard Ellis
Albert Shelton, an employee, stated that about 2 weeks
before the election he had a discussion with his supervisor,
Richard Ellis. This occurred in the yard where Shelton was
working and Ellis asked him how he felt about the Union.
Shelton replied by saying, "I am for anything if it will
help." This was all of the conversation and Shelton had no
further conversations with either Ellis or any other
supervisor concerning the Union before the election. Ellis
testified to a conversation with Shelton about the second
week in March in which the Union was mentioned. He said
he walked over to where Shelton was working and looked
at his work and a conversation ensued about income tax
refunds. Ellis said he did not think he was going to get
anything back while Shelton said that he received his
refund on Saturday. Shelton then said that he lost about
$60 of it playing poker to which Ellis retorted, "Damn,
Robert, you would have been better off to go to union
meetings." Ellis then walked away and that was all of the
conversation according to him. He denied asking Shelton
any questions concerning the Union. In the circumstances,
even if the incident occurred as related by Shelton, I find
such casual query about the Union allegedly made by Ellis
in a friendly atmosphere, unaccompanied by any threats or
even pejorative language about the Union, not to be
coercive and therefore not violative of Section 8(aXl) of
the Act.
It is also alleged that Ellis unlawfully interrogated Sidney
Waller early in March. Waller testified that about 10 days
before the election Ellis approached him while he was
working on the first shift and asked how he was doing. Ellis
then asked what he thought about the Union and Waller
replied that the way things stood it did not matter. Ellis
then asked whether they ever had any union meetings and
Waller said he did not know because he had not been to
any; Ellis then said that he would love to find out where
the union meeting was going to be and whether he could
go. He wanted to know who could tell him where the union
meeting was going to be and Waller said that he did not
know. Ellis then said he hoped that he would vote no. Ellis
said that he had been told by Reese that he and Humphress
thought well of Waller, to which the latter said he would
leave it at that; that he had not decided which way he was
going to vote and was not telling anybody. Waller also said
that he had ridden to work with Ellis but they had not
spoken more than a few words, and he told Ellis that he did
not know anything about the Union. Ellis testified that he
never had any conversation in the plant with Waller
concerning the Union but, on the occasion when he asked
for a ride to work, Waller asked what was going to happen
and Ellis said that he did not know. Waller asked whether
he thought the plant was going to close down and Ellis
replied that he did not know that either. Waller then asked
what he thought was going to happen if the Union came in
and Ellis said that he had no knowledge of anything
happening as far as the plant closing down. Ellis said he
did not know about the plant's future because he did not
know whether they were going to get another customer.
In this exchange I credit Waller, as I was impressed with
his sincerity and manner and, although somewhat garru-
lous, was consistent in his testimony, while Ellis showed a
lack of candor. Ellis contradicted himself; he testified on
direct that Waller asked him what he thought would
happen if the Union came in, while on cross he said that
neither Waller nor Shelton asked him what he thought. All
of Respondent's supervisors, including Ellis, stated they
had received instructions and were provided with a list of
what and what not to say to employees. In accordance with
this, Ellis said that, if asked by an employee, he could and
would state an opinion. Yet as to Waller, Ellis stated he
kept telling him that he had no opinion. I find that Ellis
coercively interrogated Waller as to what he thought about
the Union, in violation of Section 8(aX I) of the Act.
3. By Foreman Jim Roper
Freddie Wright testified that he had a conversation with
Foreman Jim Roper while he was sitting on a payloader
after a lunch break. Roper came over and asked what did
he think about the Union, and Wright replied that he did
not really think anything. Roper then began making a
comparison of wages between Respondent and another
company, Universal, where they had a union and the
employees were making less money than at Respondent.
Wright also said that Roper told him that the Union had a
lot to do with the plant going out of business in Atlanta. As
to that, Wright, on cross-examination, stated that he was
the one that brought up the subject, by asking why the
Atlanta plant went out of business. At first, Wright testified
that Roper said that they (the Union) had a lot to do with
it. Changing his testimony somewhat, Wright then testified
that Roper could have said that the Union had something
to do with the Atlanta plant. In view of this shading of
testimony by Wright as between the direct and cross-
examination, Wright's credibility as to whether Roper
questioned him about the Union is in doubt. It is possible
that Wright called over Roper, as the latter testified, and
initiated a conversation concerning the Union, as contend-
ed by Respondent. In view of this credibility resolution, I
find the evidence insufficient to establish that Roper
251
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercively interrogated Wright concerning his feelings
about the Union.
4. By Foreman Jewell Bryan
Elgin Armstrong testified that after a meeting in the
cafeteria he was in a boxcar with two other employees,
Wilson and Ashley. He said they were talking when Bryan
came in and asked what they all thought about the Union.
Wilson had been saying that he was not going to vote for it
because a union caused him to go bankrupt. Ashley had
said that his dad had worked on a union job and that it was
not worth anything. Bryan asked Armstrong what he
thought and Armstrong made no comment. Bryan then
said he would not vote for "no shit like that." Armstrong
just walked off. Armstrong stated that this occurred after
the meeting on the day before the election. This proved to
be an error as the affidavit concerning this incident which
Armstrong gave to the Board was dated March 10, 9 days
before the election. Ashley, one of the employees involved,
testified that the incident occurred about 3 or 4 weeks
before the election. He said that they were standing around
the boxcar and he and Wilson began talking about the
Union. Wilson asked Armstrong what he thought about
the Union. Armstrong replied that he did not know why he
was asking that and Wilson said no more to him. Wilson
was then talking about an experience he had with a union
when Bryan came in and said he didn't see why we needed
a union anyway and then walked away. Ashley said that
Bryan talked only to Wilson and him and had his back to
Armstrong at the time. Ashley stated he never heard Bryan
ask Armstrong any questions. Bryan himself testified that
he came by this car to check the material there. As he was
walking through, he heard the employees discussing a
union and Wilson was talking about having been involved.
Bryan said he told Wilson that he did not think that they
needed a union here; in his opinion, the Union was not
worth a damn. He turned around and walked away. He
denied asking Armstrong any questions about a union.
With regard to this incident, it is clear that Armstrong was
confused as to at least the date, while, on the other hand,
Ashley credibly testified that Bryan did not talk to
Armstrong at all. In these circumstances, I find that it has
not been established by a preponderance of the credible
evidence that the Respondent by Supervisor Bryan interro-
gated Armstrong concerning the Union.
5. By Production Manager John Reese
Sidney Waller testified that he was on the hill about 2
days before the election when Reese came up to him and
asked what he thought about the Union. Waller told him
the way "the thing is running it doesn't matter which way it
goes." Reese said he hoped Waller did not make the wrong
decision; he would make the right decision if he voted no
and that that would help keep the Union out. Waller then
walked off but turned around and noticed that Reese was
writing something on a piece of paper. Reese himself
testified that the only conversation he had was the day
before the election after the 24-hour speech. Reese went to
Waller and said that he hoped he had his support in this
election and hoped that Waller was going to vote no. Reese
said he did not ask any questions and that was the end of
the conversation because he then walked on and talked to
somebody else. He stated that he made an effort to talk to
every employee on that date, asking them to vote no in the
election. Other than the date, the only difference in the
testimony of Waller and Reese is with regard to the
opening of the conversation which Waller alleges began by
Reese asking him what he thought about the Union. I
credit Reese who testified in a forthright clear manner and
freely stated that on the day of the election he spoke to
many employees asking their assistance and expressing the
hope that they would vote against the Union; and I find
that the account of Reese is the more likely version of this
conversation. There is nothing unlawful in that type of
activity. Accordingly, I find that it has not been established
that Respondent by Reese unlawfully interrogated Waller.
D. The Alleged Threats To Close the Plant
During the conversation described above between
Freddie Wright and Foreman Jim Roper, Wright stated
that Roper had said that the Union had a lot to do with the
plant going out of business in Atlanta. On cross-examina-
tion Wright said that, in response to Roper's telling him to
ask any questions he may have, he asked why the Atlanta
plant went out of business. Wright first said that Roper
told him the Union had a lot to do with it, and then waffled
by saying Roper could have said the Union had something
to do with it. As related above, Roper testified that the
conversation began when Wright called him over and
asked when he thought the plant was going to close, to
which Roper replied that he did not know but they were
losing their customers. Wright then asked if he thought the
Union had something to do with the closing at Atlanta.
Roper said that he did not know, but he thought that they
had problems with the working facilities there, that there
were also strike problems and this was the same union.
Even if we accept Wright's version of the conversation,
admittedly it was he who initiated the portion concerning
the plant closing in Atlanta. In the special context of this
case where the subject of plant closure was uppermost in
everyone's mind in view of the loss of Respondent's sole
customer, a fact by this time known to all employees, I find
this conversation much too ambiguous to infer that Roper
was threatening Wright with plant closure should he vote
for the Union. It had been made clear to all that the plant
could very well close by June 30 or shortly thereafter,
regardless of the outcome of the election. I therefore find
that Respondent did not violate the Act as a result of this
conversation between Roper and Wright and will dismiss
such allegation.
The other alleged threats, concerning loss of job
opportunities and threats to close the plant uttered by
Humphress during the course of his speeches, have already
been previously discussed and I have found no violations
of Section 8(aXl) deriving from the contents of the
speeches.
E. The Alleged Threat To Discharge Waller
Waller testified that, about a week after the representa-
tion hearing, Humphress and Reese came by the place
252
CUSTOM RECOVERY
where he was working and Humphress stopped at a table
and called Waller over. Humphress asked Waller to give
him one of the union cards he had and Waller said he did
not have any. Humphress said he was told that Waller had
been passing out cards. Waller replied that he did not have
any and he did not pass out any. He said if he had one he
would give it to Humphress and let him sign it. Humphress
then said, according to Waller, that from the time he came
in the gate to the time he went out he was on company
time, and he asked Waller if he understood that. Waller
said he did. Waller recalled that Humphress also said that
he had three or four employees and the foreman watching
him and if he got anything on him he would be fired.
On cross-examination Waller stated that he attended the
NLRB hearing and was called to the witness stand but did
not testify. As to the occurrence in the plant he said that
Reese first asked him a question concerning his work, and
then Humphress called him over and asked him for a union
card. Waller denied that Humphress had told him that
several other employees said that Waller was bothering
them. Nor did he admit that Humphress had said Waller
had been talking to employees when he should be working.
Reese accompanied Humphress that day on a tour of the
plant for safety reasons. Reese testified that before they left
Waller's area, Humphress called over Waller and told him
he had been informed by two other foremen and some
employees that Waller was campaigning on company time
and passing out cards. Waller did not respond and
Humphress proceeded to tell him, "If I see anybody
campaigning during working time or passing out cards
during working time I am going to terminate them on the
spot." Humphress told Waller that he did not care what
they did on breaks and lunch because that was their own
time. In his testimony, Humphress said people had
reported to him that Waller was leaving his area and going
over the plant attempting to talk to groups of people and
get them to sign cards, and that this was within the first 10
days of February after the hearing before the Board. On
that day he saw Waller, called him aside, and told him it
had been reported that he had been campaigning for the
Union and that this was strictly illegal during company
time. During that time he should be working. He told
Waller that during lunch hour or break time it was his own
business, but during hours that he was supposed to be
working they expected him to do just that. Finally,
Humphress said he told Waller that anyone found
campaigning for the Union during working time would be
terminated on the spot.
There is a considerable divergence between the versions
of this incident as recounted by Waller and by Humphress
and Reese. However, I shall assume, arguendo, the
correctness of the account given by Humphress and Reese.
In effect, Humphress threatened Waller with discharge
should he be caught in union solicitation on company or
working time. There is no evidence that Respondent had in
existence any rule against solicitation.
It has long been recognized, as the Supreme Court has
stated, that "No restrictions may be placed on the
employees' right to discuss self-organization amongst
4 N.L RB. v. The Babcock i Wilcox Company, 351 U.S. 105, 113 (1965).
5 Daylin Inc.. Discount Division d/bla Miller's Discount Dept. Stores, 198
NLRB 281 (1972).
themselves unless the employer can demonstrate that a
restriction is necessary to maintain production or disci-
pline."4 The Board has more recently put it as follows:
The correct view, however, is that any prohibition of
solicitation, by rule or discipline, interferes with
employee rights, and that such interference must - in
the absence of a valid rule - be supported by an
affirmative showing of impairment of production. s
Having found that there is no valid rule, I further find
that there has been no showing of impairment of produc-
tion. Humphress testified that they had "a number of
people who mentioned that Sidney Waller was leaving his
area and going over the plant and attempting to get groups
of people that he could talk to or talk with. And, I was told
that he did this for the purposes of trying to get cards
signed." Such a statement is hearsay, self-serving, and not
probative of the question whether Waller's activities
interfered with production. Finally, if it is contended that
Humphress was enunciating a rule, its promulgation was
indeed precipitous, and enforced by a threat directed to the
most active of the union supporters who had shortly before
testified at the representation hearing, and, moreover,
discriminatory since it did not apply to other forms of
solicitation. s In conclusion, I find that Respondent violated
Section 8(aXI) of the Act by threatening Waller with
discharge should he continue to engage in solicitation on
behalf of the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent set forth in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, 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.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By questioning employee Sidney Waller concerning
his union activities, Respondent violated Section 8(a)(1) of
the Act.
4. By threatening employee Sidney Waller with dis-
charge should he continue solicitation on behalf of the
Union, Respondent violated Section 8(aX 1) of the Act.
6 Ward Manufacturin& Inc., 152 NLRB 1270 (1965).
253
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent did not engage in other conduct
violative of Section 8(aXl) of the Act, as alleged in the
complaint.
The Objections in Case 10-RC-10569
Having found that Respondent, by Humphress, did not
threaten employees with loss of benefits should they vote
for the Union in violation of Section 8(aXl) of the Act, I
recommend that Objection 2 be overruled.
As I have found that Respondent violated Section 8(aX1)
of the Act by interrogating Sidney Waller and further by
threatening him with discharge if he continued his union
activity, I recommend that Objection 4 be sustained and a
second election be directed.7
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 recommend-
ed:
ORDER8
The Respondent, Custom Recovery, Division of Key-
stone Resources, Inc., Greensboro, Georgia, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union
activities.
(b) Threatening employees with discharge unless they
refrain from solicitation on behalf of the Union.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the purposes and policies of the
Act:
(a) Post at its Greensboro, Georgia, plant, copies of the
attached notice marked "Appendix." 9 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by the Company's
authorized representative, shall be posted by it immediately
upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Company to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges other violations of
Section 8(aXl) of the Act not found herein.
IT IS ALSO RECOMMENDED that, in Case 10-RC-10569,
Objection 4 be sustained and the election be set aside and
the case remanded to the Regional Director for Region 10
for the purpose of conducting a new election at such time
that he deems the circumstances permit a free choice of
bargaining representative.
7 Dal-Tex Optical Compaony, Inc., 137 NLRB 1782 (1962).
s 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.
9 In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOncE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and we
have been ordered to post this notice.
The Act gives the employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the purpose
of collective bargaining or other mutual aid or
protection
To refrain from the exercise of any or all such
activities.
WE WILL NOT interrogate employees regarding their
union activities.
WE WILL NOT threaten employees with discharge
unless they refrain from soliciting on behalf of United
Steel Workers of America, AFL-CIO, or any other
labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights under Section 7 of the Act.
CUSTOM RECOVERY,
DIVISION OF KEYSTONE
RESOURCES, INC.
254